text:
    COAST v. COAST.
    No. 3885.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1939.
    Rehearing Denied Jan. 4, 1940.

      Hyman I. Fischbach, of New York City, and Saye & Saye, of Longview, for appellant.
    Chas. F. Potter and Weeks, Hanker-son & Potter, all of Tyler, for appellee.
   PRICE, Chief Justice.

This is an action for divorce originally filed in the District Court, 71st Judicial District, for Gregg County. A somewhat extended statement of the record taken from the transcript is essential to a consideration of the issues involved in the appeal.

Appellee, on the 8th day of December, 1936, filed his petition for divorce from appellant in the 71st District Court for Gregg County; the petition contained the requisite jurisdictional averments and stated a cause of action for divorce; December 19, 1936, appellant filed her answer thereto; December 31, 1936, a hearing was held to determine whether appellant was entitled to certain interlocutory relief sought in her answer; this hearing was before the Honorable Clarence E. McGaw, Judge of the 124th Judicial District for Gregg County, who, as attested by his official signature, purported to act for the Judge of the 7lst Judicial District; the order made recited appellant was entitled to temporary alimony, but no amount was fixed; appellee was enjoined from encumbering or disposing of any real or personal property, with certain exceptions, and ordered to return an inventory; February 25, 1937, appellant filed her first amended original answer and cross action; the cross action sought a divorce from appellee and averred good grounds therefor; on the same day as the filing of the cross action appellee filed answer thereto; on the same day, to-wit, February 25, 1937, appellee, through his attorney, together with appellant and her attorney, appeared before, the District Court for Gregg County, 124th Judicial District; appellee announced through his attorney that while he would not dismiss his suit he did not intend to offer evidence in support thereof; it was the clear and manifest intention of-all parties to the litigation that the trial be had on appellant’s cross action; appellant offered evidence in support of her cross action; at the conclusion of the evidence the court pronounced judgment in favor of appellant on her cross action awarding her a divorce, all the relief sought in her cross action; at the time- the case was heard and judgment rendered no order appeared in the minutes of the 7lst District Court for Gregg County transferring this cause to the 124th District; prior to the hearing the Judge of the 71st District had made an order so transferring the cause and noted same on the docket.

The judgment rendered in the divorce case was' not recorded in the minutes of the court at the term of court at which it was rendered.

On the 24th day of October, 1938, the court, that is, the 124th, entered a judgment on the motion of appellee reciting the rendition of the divorce judgment on February 25, .1937 and the inadvertent failure to enter same in the minutes and ordered the judgment rendered on the 25th day of February, 1937 tobe entered nunc pro tunc, and same was so entered. This proceeding was all without notice of any kind to appellant or her attorney.

On the 27th day of October, 1938, appellant filed petition seeking to have the said judgment entered by the court on October 24, 1938 set aside. On the 2nd day of November, 1938, the Judge of the 71st Judicial District entered an order in the minutes of such court reciting the making of the order of transfer on the 25th day of February, 1937, and the failure to record same in the minutes and ordering the same to be recorded as of February 25, 1937. November 4, 1938, appellee filed reply to appellant’s petition to set aside the nunc pro tunc order. There was a hearing on the 5th day of November, 1938. The court denied appellant’s motion 'to set aside the judgment of October 24, 1938 providing for the nunc pro tunc entry of the divorce judgment and further adjudged that the judgment of February 25, 1937 was duly rendered, and adjudged the nunc pro tunc entry and establishment thereof. Appellant excepted to this judgment and gave notice of appeal, which she has duly perfected.

On the 22nd day of March, 1939, appel-lee filed a motion in the 71st District Court for Gregg County seeking the nunc pro tunc entry in the minutes of that court of the order of February 25, 1937 transferring the case to the 124th District Court for Gregg County. Appellant accepted service of this motion, but protested hearing thereon in vacation. A hearing was held on the 25th of March, 1939, and order was entered in accordance with the motion of appellee. This proceeding appears in the supplemental transcript.

Appellee has filed a motion to dismiss this appeal. This motion was passed by the court to be taken up with the consideration of the entire case. For grounds of dismissal it is urged that appellant is seeking to have set aside a judgment, the sole effect of which was to grant her all the relief sought by her in the trial court. Further, that since the rendition of the judgment and in reliance thereon that each, party assumed the status of an unmarried person and that appellee in reliance on the judgment married.

One of the grounds urged by appellant for reversal of the decree entered herein is that the court rendering same had not jurisdiction to render the judgment of February 25, 1937, and same is null and void. If this be established it goes without saying the judgment should have never been rendered and, of course, should not have been entered. There could be no appeal from the judgment until it was entered. Brinkley v. State, Tex.Civ.App., 49 S.W.2d 516; Frankfurt v. Grayson, Tex.Civ.App., 68 S.W.2d 533.

One, although seeking and obtaining a void judgment purporting to affix marital status, may appeal therefrom. As-to the second ground for dismissal we do not believe a party is estopped to assail the validity of a void judgment, especially where the prima facie effect of which is to confer upon such party a false marital' status.

The judgment, that is, the one rendered' on February 25, 1937, but not entered at that time, is assailed as null and void on the ground that the cause was then pending in the 71st District Court and the judgment was rendered in the 124th District. It is not contended that the Judge of the 71st District did not make an order transferring this case, but it is contended he did ffiot enter same upon the minutes of the court, and until said order was so entered it was ineffective. Reference is made to Vernon’s, Ann. R.C.S., Vol. 1, p. 362, Art. 199, sec. 13. It is there provided in substance that the Judge of the 71st District Court for Gregg County may transfer by order entered in the minutes of the 71st District to the 124th District, and the Judge of the 124th may so transfer cases to the 71st District.

This requirement to enter in the minutes might be jurisdictional. Johnson v. Williams, Tex.Civ.App., 24 S.W.2d 79. In the orderly keeping of records of the disposition of suits filed in the three courts exercising jurisdiction in Gregg County it may be a wise and salutary provision. However, either of the courts involved herein had potential jurisdiction over this, case. The question, then, to be determined is: Was jurisdiction of the court granting the divorce properly invoked?

The language used in the statute-construed in the case of Johnson v. Williams, supra, “when so entered,” the court shall have jurisdiction, was very specific. The language here “may enter an order,”' etc., referring to the jurisdiction the words “so transferred,” are used. We are loath, to hold that the entry of the order in the minutes is in all cases an absolute condition of jurisdiction over a transferred case. The question raised after all is in essence one of venue. A proper disposition of this appeal does not require a holding that such provision is absolutely jurisdictional.

It appears from the findings in the judgment of November 5, 1938, that the parties to the litigation appeared in open court and sought the action of the court on the matters included in the pleadings. These facts clearly and almost undisputably appear from the evidence taken upon the hearing on the motion for entry of the judgment nunc pro tunc.

The 124th District Court for Gregg County had potential jurisdiction over actions for divorce. Beyond question in the state of the pleadings there would have been full and complete jurisdiction over the persons and the parties thereto had the Judge of the 71st District Court for Gregg County entered an order transferring the case. The parties appeared in the 124th District Court and sought trial and exhibited the pleadings therein. The above facts, in our opinion, gave the court full jurisdiction to render the judgment. Gonzales v. Gonzales, Tex.Civ.App., 256 S.W. 658, reversed by the Supreme Court, 115 Tex. 16, 273 S.W. 798, on another point; Grand Lodge, Colored Knights of Pythias v. Kidd, Tex.Civ.App., 10 S.W.2d 420; Houston & T. C. R. Co. v. Walker, 107 Tex. 241, 173 S.W. 208; De Zavala v. Scanlan, Tex.Com.App., 65 S.W.2d 489.

Appellant, Mrs. Coast, was not a resident of Texas at the time of the filing of her cross action and the trial of the ■case. Jurisdiction depended on the domicile and residence of appellee. It is well ■established by authority and impliedly conceded by both parties therein that there was potential jurisdiction to grant the divorce on the cross action if appellant was ■entitled to maintain the action.

Appellant, however, urges that the cross action had not been on file for thirty ■days before February 25, 1937, and hence the court was without jurisdiction to grant ■decree thereon. Appellee’s petition had been on file for more than thirty days. On December 19, 1936, appellant filed answer to appellee’s petition and the decree was entered February 25, 1937. Article 4632, R.S., provides: “Suit shall not be heard ■or divorce granted before the expiration of thirty days after the same is filed.” Appellant concedes 'that she is unable to cite an authority holding that this applied to a cross action. To our minds the Legislature intended by this provision to give time for deliberate consideration on the part of each party involved before the action of the court could be invoked. Likewise, the provision might have a tendency to prevent fraud and overreaching. .Thirty days was considered ample time for this purpose.

In the suit for divorce the status of the plaintiff and defendant is the subject matter before the court. A decree granting a divorce necessarily changes the status of each party.

Article 4631, R.S., provides in substance it is necessary to the maintenance of divorce suit that petitioner be an actual bona fide inhabitant of the state, etc. A defendant to maintain a cross action in a suit for divorce does not have to be an actual bona fide inhabitant, but may in fact be a non-resident, as was appellant. It is clear to us that the word “suit,” in Art. 4632, is used in the same sense as in 4631, hence the thirty-day requirement does not apply to a cross action on behalf of defendant.

Appellant asserts that the nunc pro tunc order of October 24, 1938 is void and of no effect on account of lack of notice to her. If this be granted, it cannot be denied that there was a full hearing of all parties before the order of November 5, 1938 was made. This order after hearing adopted and vitalized the order of October 24, 1938, and was in effect a nunc pro tunc entry of the judgment as of November 5, 1938. ' '

The motion of appellant filed on October 27, 1938 made a broad attack on the order of October 24, 1938. The attack not only included the matter of the judgment as a nunc pro tunc order, but assailed the judgment as rendered February 25, 1937. She urged grounds seeking to show that the conduct of appellee had been such toward her as to estop him from seeking an entry of the judgment nunc pro tunc. Appellee urged grounds of estoppel against appellant. These matters will be briefly treated later.

With the exceptions noted above the allegations of appellant’s motion consisted largely of matters proper to be urged in a motion for a new trial as to 'the judgment of February 25, 1937. Evidence was heard as to these matters which were all intrinsic to the judgment at the prior trial. By way of illustration, it was alleged and evidence introduced that at the time of the filing of appellee’s suit he had not been an actual bona fide inhabitant of the State of Texas for a period of a year.

In the case of Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1041, in an opinion written for the Court by that great Jurist, Nelson Phillips, the scope of the issue in the nunc pro tunc proceeding is set forth with force and clarity. Stated in a sentence, the inquiry is not what the judgment might or ought to have been, but only what judgment was rendered. Dunn v. Cravens, Dargin & Co., Tex.Civ.App., 97 S.W.2d 242; Corbett v. Rankin Independent School District, Tex.Civ.App., 100 S.W.2d 113.

We do not mean to hold that it might not be shown in opposition to the entry of a judgment entered at a former term that there was no jurisdiction to enter same, and that for that reason it was null and void. These matters may be shown to prevent the entry. If the purported judgment rendered, sought to be entered, was void, it was not a judgment and should not have been entered when pronounced and should not now be entered for them. What we do hold is that we cannot retry the case resulting in the judgment of February 25, 1937. The evidence taken at the hearing held on November 5, 1938 will not suffice as a statement of facts as to matters intrinsic to the original judgment rendered as aforesaid on February 25, 1937.

In her motion appellant alleged that during the month of September or October, 1937, appellee came to her home in New York and induced her to resume relations with him as his wife, and that such relations were continued for about two weeks, when he abandoned her; that this reconciliation and resumption of marital relationship was secured by her reliance on the representation of appellee that the former divorce proceeding had been so disposed of as to no longer be a bar to this resumption of relationship of husband and wife. This allegation she supported by her testimony. Appellee admitted sexual relations with his former wife subsequent to February 25, 1937. He, however, denied in toto the representations testified to by appellant; he also testified that the relationship was of much shorter duration than as testified to by appellant. Appellee alleged as equity on his behalf that in reliance on the decree he had contracted a marriage which was then existing. This marriage was alleged to have taken place in October, 1937.

If the matters alleged by appellant were legal grounds to justify the refusal to enter the judgment as rendered, there was a conflict in the testimony with reference thereto. This conflict was solved against her by the trier of the facts, and both parties are bound thereby.

We are not impressed with appel-lee’s plea of estoppel on account of his marriage. He married when under the law of this State he was ineligible to contract a marriage. His present wife is not a party to this prpceeding, hence estoppel cannot operate in her favor. There is no averment in appellee’s answer to the motion as to whether his present wife knew when his former wife obtained a divorce and on what grounds.

However, a decree of divorce on the grounds of cruel treatment is not interlocutory, but effective to dissolve the bonds of matrimony. Ex Parte Castro, 115 Tex. 77, 273 S.W. 795.

It is not meant to cast any doubt upon the present or past validity of appellee’s last marriage.

There is no error in the record.

It is ordered that the judgment be affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    COMMERCIAL STANDARD INS. CO. v. DAVIS.
    No. 8826.
    Court of Civil Appeals of Texas. Austin.
    Dec. 30, 1939.
    Rehearing Denied Jan. 24, 1940.
    Application for Writ of Error Dismissed March 6, 1940.
    See 137 S.W.2d 1.

      Todd, Crowley & Thompson, of Fort Worth, for appellant.
    J. C. Darroch and E. M. Davis, both of Brownwood, for appellee.
   BAUGH, Justice.

This is a Workmen’s Compensation case. Appeal is from a judgment, based upon the jury’s answers to special issues, in favor of appellee against appellant for $714 past-due installments, $471.50 for hospital, doctors, nurses, and medical bills, $6,660 to be paid in 333 weekly installments of $20 each. The Workmen’s Compensation policy was issued to Daniel Baker College of Brownwood, Texas, by appellant insurance company. The appellant will hereinafter be referred to as the insurance company; Daniel Baker College as the college; and the appellee as Dr. Davis.

The first question presented is whether Dr. Davis was an employee of the college within the terms of the policy, and of the Workmen’s Compensation Law; or was the president of that corporation and as such excluded from the benefits of the policy and of the Law. It is riot controverted that Dr. Davis received serious bodily injuries in Mills County while said policy was in force and in the discharge of the duties of his employment.

A consideration of the first question presented requires an examination of the provisions of the charter of the college, the terms of the policy, the capacity in which Dr. Davis was employed, the duties he performed, and the terms of the Workmen’s Compensation-Law.

Daniel Baker College is a non-profit religious educational corporation. The original articles of incorporation, filed in the office of the Secretary of State on April 5, 1889, provided that this institution of learning should be owned and controlled by the Synod of Texas of the Presbyterian Church; that the authority of the Synod over the college be delegated to a board of 13 trustees elected by the Synod; and that, “This corporation shall provide for the election of such officers as it may deem necessary to transact the business of the corporation and further its objects and purposes; * * Subsequent thereto the charter of the college was variously amended, the last amendment being filed with the Secretary of State on September 9, 1932. Under and by virtue of this amendment the Synod of the Presbyterian Church relinquished all interest in and control over the college to the then board of trustees. It made that board a self perpetuating body; provided that said institution and its management should be conducted by the board of trustees; vested all properties and endowment in them in trust; and gave to the board all management, control and direction of the institution. No by-laws were ever promulgated, and nowhere in the articles of incorporation, nor in the charter amendments, do we find provision for any specific officers of the corporation other .than the board of trustees. The office of president of Daniel Baker College is not shown to have ever been expressly created or specifically provided for.

It was not shown whether Dr. Davis had any written contract of employment with the board of trustees of the college or not. The minutes of the May 1, 1933, meeting of the board of trustees show that on motion duly made, “the Rev. Guy Davis was duly elected as president of Daniel Baker College.” The minutes of July 17th showed that upon motion, “Dr. R. G. Davis as. President of Daniel Baker College is hereby empowered to sign all papers executed in the name of the college which are authorized by the Board of Trustees.”

It is not controverted that Dr. Davis was known as president of the college, was so listed in its catalogues and bulletins, signed diplomas as such along with the president and secretary of the board of trustees, contacted the public as such president, and signed written instruments executed by the college, but only under express authority of the board of trustees. On the other hand, however, he was not a member of the board of trustees, did not have authority • to employ or discharge teachers, had no voice by virtue of his position in any action taken by the board, and was subject to being discharged at any time by the board. He was president of the faculty which also had its deans, registrar, etc. He, together with the faculty, had supervision of the courses of instruction and the teaching activities of the college. As between the faculty and the board of trustees he was the faculty representative, sat with the board at its meetings, and made recommendations as to the operations of the college which were approved, modified, or rejected by the hoard as it saw fit. He was, notwithstanding his.election as president of the college, subject to the supervision, control, and direction of the board in the discharge of the duties he was employed to perform. We attach no importance to the term “election” by the board as president of the college. It amounts, we conceive, merely to an employment for an indefinite period of time, and could as well have been evidenced by a written contract between himself and the board of trustees. The latter body had its own president, vice-president, and secretary-treasurer.

At the time Dr. Davis received his injuries he was returning from Austin where he had had a conference with the director of the National Youth Administration in Texas relative to the allotment and expenditure of federal funds in aiding needy students of the college, manifestly but an administrative duty in the operation of the school.

The policy written was on the standard form prescribed by the Board of Insurance Commissioners and manifestly designed primarily for the protection of employees of industrial corporations. It provided, among other things, that “all provisions of each Workmen’s Compensation Law covered hereby shall be and remain a part of this contract as fully and completely .as if written herein, * * One of the provisions of such law (Art. 8309, Sec. la, R.C.S.1925) relating to corporations is that: “The president * * * or other officers thereof provided in its charter or by-laws * * * shall not be deemed or held to be an employe within the meaning of that term as defined in the preceding section hereof, and this notwithstanding they may hold other offices in the corporation and may perform other duties and render other services for which they receive a salary.”

The statute (Art. 8309, Sec. 1) provides that, “ ‘Employe’ shall mean every person in the' service of another under any contract of hire, expressed or implied, oral or written,” etc. It is not controverted that Dr. Davis, at the time of his injury, was engaged in the discharge of a duty clearly within the scope of his employment.

Prior to the 1923 amendment to the Workmen’s Compensation Law the courts had held that an officer of a corporation, who was also an employee within the terms of the Compensation Law, sustained a dual relationship to the corporation; and if injured in the capacity of employee, and not in the discharge of his duties as an officer, such injuries were compensable. Millers’ Mutual Cas. Co. v. Hoover, Tex.Com.App., 235 S.W. 863; Cook v. Millers’ Ind. Underwriters, Tex.Com.App., 240 S.W. 535. These decisions, however, were rendered prior to the 1923 amendment to the statute.

In Lumbermen’s Reciprocal Ass’n v. Bohlssen, 272 S.W. 813, the Court of Civil Appeals at Beaumont held that the 1923 amendment was specifically intended to meet the interpretations made in the Cook and Hoover cases, and to deny insurance coverage to an officer of a corporation regardless of the capacity in which he was' engaged at the time of his injury. Such holding was followed in Bell v. Tex. Employers’ Ins. Ass’n, Tex.Civ.App., 43 S.W.2d 290. If Dr. Davis is to be deemed an employee only, and not an officer, of the corporation, he was protected by the policy. Or if, under all the facts and circumstances, the insurance company itself elected to treat him only as an employee, specifically insured and treated him as such, and charged and collected premiums for that purpose, can it now be heard to deny liability?

No case has been cited to us, nor have we found one, wherein a non-profit religious educational institution was involved. The Workmen’s Compensation Law was manifestly enacted to apply primarily to industrial corporations and for the benefit of the employees thereof. It is now settled that the law and the policies written thereunder must be liberally construed to effectuate its purposes. It is equally manifest that “employees” of an educational institution are of a different type and perform different duties from those of industrial corporations generally. The policy here involved should be construed in the light of the “employees” to whom it applied. The language of the policy itself as applicable to such “employees,” and as evidencing the insurer’s' interpretation of its own liability, may be looked to.

The language of the policy itself expressly insured the president of the college, and included his remuneration in fixing the premium where “actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman.” Under the “Classification of Operations,” the principle coverage listed was “Professors, Teachers, or Professional Employees—Including Clerical Office Employees.” It is clear that Dr. Davis’ position with reference to the operations of the institution was that of a superintendent, or administrative executive. He had, by virtue of his position, no power of control over the official acts of the corporation as such, no authority to employ nor discharge anyone. He was, in his labors, entirely subject to the control and direction of the board of trustees, in whom had been vested by charter the complete and exclusive management, control and direction of the corporation, of its properties and of its employees. He could not, therefore, be deemed an employer, but was, we think, manifestly himself but a “Professional Employee” of the college within the meaning of the Compensation Law.

As above stated, there were no by-laws. The charter made no provision for the office of president of the corporation. The board of trustees had its own president, vice-president, and secretary-treasurer; but none of these had any part in actually conducting the educational work of the college. That work was delegated to the faculty and their assistants, employed for that purpose. Under these facts and circumstances, we think the designation of Dr. Davis as president of Daniel Baker College in its operation as an educational institution was, in legal contemplation, one of nomericlature only, not a creation of a legal status; and did not in law constitute him an officer of the corporation as a legal entity,—manifestly the official capacity contemplated by the legislature in the enactment of the Workmen’s Compensation Law. With no office of president of the corporation created by charter or by-laws, and the control, management, and direction of the affairs of the corporation vested exclusively in the board of trustees of which he was not a member; and with his duties being only those of a supervisor, or administrative executive, he was not, we conclude, in legal contemplation an officer of the corporation as such within the meaning of the Compensation Law.

Appellant also contends that if Dr. Davis be not held to be an officer of the corporation, as a matter of law, then that the evidence raised the issue as an issue of fact, and such issue should have -been submitted to the jury. This contention is not sustained. There was in reality no dispute over the facts involved,—that is, the manner of his employment; his relationship to the college; his authority; nor the duties he performed. Under these circumstances, therefore, his legal status as an officer vel non was, we think, a question of law; and not a fact question for jury determination.

Appellant next contends that the finding of the jury that a previous injury sustained by.Dr. Davis, which resulted in the loss of a foot, contributed nothing to his incapacity to labor, is so contrary to human experience that it should be set aside. This contention is not sustained. It is unnecessary to review the evidence on this issue. Suffice it to say that as to the character and type of work Dr. Davis was employed to do, and was qualified to do, the evidence was amply sufficient to show that his previous injury constituted no handicap to his performance thereof. Indeed, he had so effectively overcome the injury by the use of an artificial 'foot that his intimate friends did not know for years that he had it, and even then did not detect it in his walk, but were apprized of it otherwise.

Appellant’s next contention is directed at the manner in which the amount of the “average weekly wages” of Dr. Davis was submitted to the jury. This question was submitted under the provisions of Sub. 3 of Sec. 1 of Art. 8309, R.S.,—that is, the jury were asked to determine the amount of such weekly wages in a manner “that would be fair and just to both the plaintiff and the defendant.” Appellant’s objection -to this issue was that there were no pleadings and no proof that the weekly wages of Dr. Davis could not be determined under Subs. 1 and 2, Sec. 1 of Art. 8309; and it is here contended that it was necessary for appellee to first show by pleadings and proof that the provisions of Subs. 1 and 2 could not be followed before he was entitled to have this issue submitted under Sub. 3 of said article of the statute. Such, in general, is the rule announced in many cases. See American Employers’ Ins. Co. v. Singleton, Tex.Com.App., 24 S.W.2d 26, 27; Traders’ & Gen. Ins. Co. v. Bulis, 129 Tex. 362, 104 S. W.2d 488; 45 Tex.Jur., § 205, p. 650.

No exceptions were lodged against appellee’s pleadings on this ground. The amount of his weekly wage was duly pleaded. The amount of such weekly wage was one of the ultimate issues of fact to be determined. The provisions of Subs. 1, 2 and 3, Sec. 1 of Art. 8309, are for the guidance of the Industrial Accident Board, and of the court, in the method and manner of how such ultimate issue is to be determined under the facts of the particular case. It was not, therefore, necessary for appellee to specifically plead the manner in which this fact should' be ascertained. American Gen. Ins. Co. v. Richardson, Tex.Civ.App., 132 S.W.2d 161, writ refused.

It is not controverted that Dr. Davis was, and had been, employed on annual salary basis; that his compensation included monthly payments in cash, and rooms, board, etc., for himself, wife and one child, in a college dormitory; and that his remuneration, including the latter services, was valued at from $3,000 to $3,600 per year. These matters are not disputed. ■ It is likewise not controverted that whatever method is used in computing the average weekly wage of Dr. Davis, the amount of his recovery authorized under the Compensation Law, and under the injuries found by the jury to have been sustained by him, would have exceeded the maximum $20 per week. No contention is made by appellant, even if the error asserted be conceded, that it suffered any injury thereby. Consequently, if error there was, it was manifestly harmless. See Southern Underwriters v. Jordan, Tex. Civ.App., 122 S.W.2d 260, wherein the exact question was involved.

Appellant’s next contention must be sustained. The jury found that Dr. Davis’ injury resulted in his total incapacity to labor for'a period of 68 weeks; and that thereafter his incapacity was partial. Special Issue No. 6 submitted to the jury read as follows: “Do you find from a preponderance of the evidence that such partial incapacity to labor, if any such, is permanent ?”

Following this the jury was instructed:

“If you have answered Special Issue No. 6 ‘No,’ and only in that event, you will answer Special Issue No. 7.
“Special Issue No. 7:
“What do you find from a preponderance of the evidence will be the duration of such partial incapacity, if any such? Answer .in number of weeks.”

The jury answered Special Issue No. 6 “Yes”, and under the instructions given did not answer Special Issue No. 7.

Appellant objected to such submission in this manner on the ground that “said instruction results in a conditional submission to the jury of Special Issue No. 7, and plaintiff is entitled to an unconditional submission of Special Issue No. 7.”

We do not understand appellee to contend that the issue of temporary partial incapacity was not raised by the pleadings and the evidence. Under the evidence the jury could have found that Dr. Davis’ partial incapacity was not permanent. Appellee insists that the error, if any, was harmless, in that both the issues of total incapacity and of partial incapacity were unconditionally submitted; and that since the jury found that the partial incapacity was permanent no necessity existed for answering Special Issue No. 7. It is manifest that an answer to Special Issue No. 7 in a number of weeks less than permanent partial incapacity would have been inconsistent with the affirmative answer to Special Issue No. 6. It is also undoubtedly true that if Special Issue No. 7 had been submitted unconditionally, the jury would not, in all probability, after answering No. 6 in the affirmative, have answered No. 7 otherwise than as indicating permanent partial incapacity. But the exact question that where a defense is raised by the pleadings and the evidence, the defendant is entitled to have such defense submitted affirmatively and unconditionally, has been before the courts repeatedly, even in Workmen’s Compensation cases, and is now so well established, that we are not at liberty to hold otherwise.

Whatever may have been differences of opinion and uncertainties arising from the decisions of the Courts of Civil Appeals on this question, it was specifically presented and definitely set at rest by the Supreme Court in Wright v. Traders & General Ins. Co., 123 S.W.2d 314. See also Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Republic Underwriters v. Lewis, Tex.Civ.App., 106 S.W.2d 1113, wherein the exact question presented in the instant case was involved and the authorities thereon are collated.

For the error last above discussed, the judgment of the trial court must be reversed and the cause remanded for another trial.

Reversed and remanded.


author: GRAVES, Justice.

text:
    IMPERIAL LIFE INS. CO. v. BLAZEK.
    No. 10902.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1939.
    Rehearing Denied Jan. 18, 1940.
    Gammage, Gammage & Bauer, Earl W. Gammage, and Charles D. Bauer, all of Houston, and Lester Cross, of Caldwell, for appellant.
    Al L. Crystal, of Caldwell, for appellee.
   GRAVES, Justice.

This appeal is from a $481.07 judgment against appellant in favor of the appellee, entered by the district court of Burleson County in response to a jury’s verdict on special issues, as well as upon independent findings of the court itself from the evidence, as for the sum he was entitled to as the beneficiary under appellant’s policy No. P.D. 282 for the face value of $1,000, issued by it on April 2 of 1936 on the life of appellee’s deceased mother, Ida Blazek.

The material portion of the appealed from decree being substantially as follows:

“The jury after due' deliberation returned into the court, on the 8th day of December, 1938, their unanimous verdict in the form of answers to special issues, the material parts of which verdict being as follows:
“No. 1. What do you find from a preponderance of the evidence was the age of Mrs. Ida Blazek on April 2, 1936? Answer: 54 years, 11 months.
“No. 2. Do you find from a preponderance of the evidence that Mrs. Ida Blazek was suffering from arterio-sclerosis on April 2, 1936? Answer: No.
“No. 4. Do you find from a preponderance of the evidence that Mrs. Ida Blazek was suffering from chronic nephritis on April 2, 1936? Answer: No.
“No. 6. Do you find from a preponderance of the evidence that Mrs. Ida Blazek was suffering from high blood pressure on April 2, 1936? Answer: No.
“No. 11. What do you find from a preponderance of the evidence was the age of Mrs. Ida Blazek at her death on July, 20, 1937? Answer: 57 years.
“No. 12. Do you find from a preponderance of the evidence that the death of Mrs. Ida Blazek on July 20, 1937, was caused by a chronic disease? Answer: No.
“No. 13. What do you find from a preponderance of the evidence was the state of health of Mrs. Ida Blazek on April 2, 1936 ? Answer: Good.
“And the Court now having under consideration, on this the 16th day of December, A.D.1938, plaintiff’s motion for judgment on said verdict, and the matters established by the undisputed evidence; and the Court is of the opinion that the plaintiff is entitled to a sum in conformity with provision under caption ‘Reserves’ in said policy number P.D. 282, and which sum is admitted to be due and owing plaintiff, in the event the verdict of the jury established that plaintiff would be entitled under the alternative pleadings of the' defendant and set out in paragraph 10, pages 7 and 8, of the Defendant’s First Amended Original Answer; and the same having been admitted by the testimony of M. J. Carroll for defendant, which sum is admitted as being the sum of $481.07, and which sum the Court is of the opinion that plaintiff is entitled (to).”

It is recited in the appellee’s brief, and not denied by the appellant, that the issues thus quoted from the judgment, the findings on which the court terms “the material parts of which verdict”, were, together with certain further omitted special issues, Nos. 3, 5, 7 to 10, inclusive, and 14 to 21, inclusive, all submitted — as •embodying the fact issues in the cause — at the request of the appellant; of these last-mentioned ones the record shows that only Nos. 15 to 21, inclusive, were answered, and they — together with the answers thereto — were as follows:

“No. 15. From a preponderance of the evidence when do you find the last premium was paid on Policy No. 5662 of Paramount Life Insurance Company? Answer: Jan. First, 1936.
“No. 16., Do you find from a preponderance of the evidence that Paramount Life Insurance Company was in existence on February 24, 1936? Answer:. No.
“If you have answered the above special issue ‘No’, and only in that event, then you will answer the following special issue:
“No. 17. Do you find from a preponderance of the evidence that Mrs. Ida Blazek knew that Paramount Life Insurance Company was not in existence prior to receipt of letter from Imperial Life Insurance Company, dated February 24, 1936? Answer: No.
“No. 18. Do you find from a preponderance of the evidence that Paramount Life Insurance Company was in existence on April 2, 1936? Answer: No.
“If you have answered the above special issue ‘No’, and only in that event, then you will answer the following special issue :
“No. 19. Do you find from a preponderance of the evidence that Mrs. Ida Blazek knew that Paramount Life Insurance Company was not in existence on April 2, 1936 ? Answer: Yes.
“No. 20. Do you find from a preponderance of the evidence that Mrs. Ida Blazek accepted Imperial Life Insurance Company’s Policy No. P.D. 282, when she remitted her first premium of $1.92? Answer: Yes.
“No. 21. Do you find from a preponderance of the evidence that the Policy of Insurance, being Numbered P.D. 282 and issued by Imperial Life Insurance Company, insuring the life of Mrs. Ida Blazek, was issued in lieu of Policy Number 5662 issued by Paramount Life Insurance Company, insuring the life of Mrs. Ida Blazek? Answer: Yes.”

One of “the matters established by the undisputed evidence”, to which that recitation in the quoted judgment refers, was this:

By both the appellee’s pleading and the uncontroverted testimony, his suit upon appellant’s described policy P.D. 282 declared upon same as having been issued by it “in lieu of” a pre-existing policy in like sum upon his mother’s life, with himself and his brother designated as beneficiaries therein, issued to her by the Paramount Life Insurance Company of Texas, on October 15 of 1934, under its number 5662, such company having gone into a receiver’s hands before the policy in suit was issued by appellant.

Wherefore, the pre-existing Paramount policy disappeared from the picture, and this cause became referable to and was predicated upon appellant’s described policy only; it contained, among others not material for present purposes, these provisions:

(1) “The benefits provided in this Policy shall be payable out of the mortuary fund, created as provided by the by-laws of the Company. The maximum liability of the Company under this Policy, on account of the death of the Insured hereunder, shall be the mortuary portion of one assessment from this group, plus a pro rata of any mortuary reserves, if any, but in no event to exceed the face-value of this policy.”

(2) “When insured is past 55 years of age at date of issue or reinstatement, should death' occur between the fourth and ninth months from date of issue or any reinstatement, the company will ’be liable only for 10% of the maximum value of this policy, and the liability will automatically increase 10% each four months thereafter until the maximum-value is reached thereby.”

Like limitations of liability upon such a company (appellant being a state-wide mutual assessment insurance company, operating under Vernon’s Ann.Civ.St. Art. 4859f) have been quite generally upheld. Sessions v. National Mutual Benefit Ass’n, Tex.Civ.App., 103 S.W.2d 815; Imperial Life Ins. Co. v. Cartwright, Tex.Civ.App., 119 S.W.2d 683; National Mutual Benefit Ass’n v. Aaron, Tex.Com.App., 67 S.W.2d 855.

So that, as becomes apparent, the correct determination of the insured’s age at the time the policy involved was issued to her on April 2 of 1936, was an indispensable prerequisite to the fixing of what amount might be due her beneficiary at her death on July 20, 1937.

But it is equally plain, upon an inspection of it, that the jury’s verdict does not furnish such a finding — on the contrary, its answers to special issues 1 and 11 on that important inquiry being contradictory and self-destructive; in other words, the mere subtraction of 15 months— the period the policy was in force — from the 57 years, found as the insured’s age at the time' of her death on July 20, of 1937, would show her to have been past 55 when she got the policy on April 2 of 1936.

There was testimony in support of both these conflicting determinations, and the learned trial Judge’s independent findings in no way cleared up the resulting confusion.

Under well-settled authority, this situation left the court not only without proper basis for any judgment for either party, but no alterna,tive than to declare a mistrial. Title “Trial-Civil Cases”, 41 Tex. Jur. par. 361, p. 1226; Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 288 S.W. 145; Barnes Bros. v. International & G. N. Ry. Co., Tex.Com.App., 1 S.W.2d 273; Price v. Seiger, Tex.Com.App., 49 S.W.2d 729.

Appellant sought such relief by timely motion, but it was overruled; that action constituted, reversible error.

The judgment will accordingly be reversed, and the cause remanded for a new trial.

Reversed and remanded.


author: McClendon, chief justice.

text:
    HILLMAN et al. v. HILLMAN et al.
    No. 8895.
    Court of Civil Appeals of Texas. Austin.
    Jan. 4, 1940.
    Rehearing Denied Jan. 24, 1940.
    J. C. Marburger and Edw. H. Moss, both of LaGrange, for appellants.
    Amos Peters and W. C. Wofford, both of Taylor, Theo W. Lueders, of LaGrange, and Felts, Wheeler & Wheeler, of Austin, for appellees.
   McClendon, chief justice.

This is a suit in which the five children of Ludwig and Anna Hillman seek a partition of the property they inherited from their parents. Ludwig died intestate some years (date not shown) prior to 1924, leaving Anna and the five children his sole heirs at law. Anna was weak minded and the children took charge of the estate after Ludwig’s death, and managed it until it was all disposed of some time prior to Anna’s death in 1933. In 1901 they began keeping account of what each child received, and in 1924 the mother and four of the children (all except Elo Hillman) executed a general warranty deed conveying to Elo two tracts of land, aggregating 316.8 acres, the community property of Ludwig and Anna. The expressed consideration was $10 cash and a note of Elo payable to Anna twenty years after date, or within 90 days after Anna’s death, bearing 6% interest per annum from December 1, 1923, payable semi-annually, with a 10% attorney’s fee clause in case of default, and secured by vendor’s lien upon the conveyed property. The deed contained the following stipulation: “ * * * said sum of $5,500 shall after the death of our mother Anna Hillman be placed in hotch potch, together with all other indebtedness due the estate of Ludwig Hillman, deceased, and Anna Hillman, which other indebtedness was heretofore verified in writing by each of the respective heirs at law of Ludwig Hillman deceased and children of Anna Hillman, within a reasonable length of time not to exceed six months after the death of our mother Anna Hill-man there shall be an equal division made of all personal and real property owned by the estate of Ludwig Hillman deceased and Anna Hillman to be divided in five equal parts, between Henry Hillman, Annie Malek, L. H. Hillman, W. F. Hillman, and Elo Hillman, conditioned as hereinbefore specified. And for the further consideration that the said Elo Hillman shall board, (‘that is room and board our mother Anna Hillman’) for which he shall be allowed the sum of Twenty-five Dollars, per month from the first day of December A. D. 1923, twelve months of which said sum shall be credited toward his $5,500 note, toward the yearly interest and the deficit of $30 to be paid her, our mother, Anna Hillman, at the end of each succeeding December 1st thereafter while he keeps (that is board and rooms our mother) and not otherwise. The principal of the within before described note is not payable nor acceptable until after twenty years from the first day of December, A. D. 1923, unless our mother should die previous thereto.”

In 1927, a correction deed was executed by the four children grantors (the mother not joining), in which the only material differences from the 1924 deed are contained in the following quotations. Instead of the above-quoted stipulation the following appears: “Said sum of $5,500 vendor’s lien note shall be paid by Elo Hillman and said sum of $5,500 shall within ninety days after the death of our mother Anna Hillman, together with all other claims due the estate of Ludwig Hillman, deceased, and Anna Hillman, after the later departs this life, or within a reasonable length of time not to exceed six months, after the death of our mother Anna Hillman, there shall be an equal division made of all the other personal property owing said estates of Ludwig Hillman deceased, and due said Anna Hillman after she departs this life including the payment of the $5,500 note herein before stated, shall be placed in hotch potch and shall be divided in five equal parts between Henry Hillman, Annie Malek, L. H. Hillman, W. F. Hillman, and Elo Hillman, and for the further consideration that the said Elo Hillman shall board, room and care for our mother for which he shall be allowed the sum of $25 per month, from the first day of December A. D. 1923, twelve months of which said sum shall be credited towards his interest on the $5,500 note and the deficit of the sum of $30 shall be paid to her our mother Anna Hillman, at the end of each succeeding December first, thereafter, while he cares, boards and rooms her, and not otherwise, the principal sum of said note is not payable prior to 20 years from the first day of December, A. D. 1923, unless she, the said Anna Hillman departs this life previous thereto.”

The correction deed also contained the following: “It was our intention the time the first deed was executed to convey all of this property to said Elo Hillman, that is all our share, right, title and interest which we owned by virtue of inheritance into the estate of Ludwig Hillman, deceased, and all our maternal right, share, claim, title and interest which we may hereafter have, as it was the intention of said Elo Hillman taking charge of said property and render his note in lieu of the amount of the purchase price under conditions that that the children or heirs in whole shall after the death of our mother divide the said sum of $5,500 note in equal shares, share and share alike, and that the land, shall remain the property of said Elo Hillman intact, conditioned however that the note is accordingly paid after our mother departs this life.”

We have copied these portions of the two deeds in full as they constitute the terms of the agreement of the parties, in wording chosen by them, which forms the basis of the suit.

The suit was brought by L. H. Hillman and Mrs. Annie Malek (her husband joining) against Elo and wife, Henry, and W. F. Hillman. The two latter disclaimed in favor of Elo, and they passed out of the case and are not parties to the appeal.

Some time after the suit was filed, upon joint application of all parties at interest, an auditor was appointed to state the accounts involved in the controversy. The auditor’s report was filed November 8, 1938. It contained an itemized statement of the indebtedness of each child to the estate by reason of advancement with allowance of itemized credits. Recapitulation of the accounts was given in two forms, one with allowance of interest at 6% per annum, and the other without allowance of interest, as follows:

It will thus be observed that under the report, if interest be a proper allowance, L. H. and Mrs. Malek had received their, full share of the estates, whereas, without interest allowance, they were due, respectively, $377.77 and $416.77. November 8, 1938, Elo. and wife filed1 an amended answer in which they adopted the auditor’s report as a part of their answer. They reiterated the various items in the report, contended that the several sums advanced bore interest as calculated in the report, and prayed that plaintiffs take nothing by their suit. November 8, 1938, plaintiffs filed a supplemental petition in which they alleged (inter alia) that the auditor’s report was not correct in that it omitted an item of $1,400 chargeable to W. F. Hillman.

Upon the trial (to the court without a jury) the plaintiffs proved by Elo that the item of $1,400 was correct and a proper charge as an advancement against W. F., and that there was another item of $600' so properly chargeable against W. F. Objection was made to the testimony with reference to the $1,400 item, on the ground that there was no exception to the auditor’s report. Error is assigned upon the overruling of this objection. There appears to have been no objection to the evidence upon the $600 item, and no error is assigned regarding the admitted testimony. The court disallowed interest on advancements; approved the auditor’s report except as to the above omitted items against W. F.; added these items ($2,000) to his advancements; and found the amounts chargeable to each of the five children as follows:

Elo Hillman". $ 5931.65
Henry Hillman . 3776.00
L. H. Hillman.'. 2518.00
Annie Malek . 2479.00
W. F. Hillman. 2274.20
Total .$16478.85
Each distributive share. $ 3295.77

The amounts so received by plaintiffs, were, therefore short of what they were each entitled to receive, as follows: Annie Malek, $816.77, and L. H., $777.77. For these respective amounts the court rendered judgment against Elo and foreclosed the vendor’s lien upon the land above conveyed to him. Elo and wife have appealed.

While there are some questions raised as to the sufficiency of the pleadings, we do not regard them as having substantial merit. Both parties declared upon the agreement embodied in the 1924 and 1927 deeds, copies of which were attached to plaintiffs’ petition as exhibits. These assignments are therefore overruled.

The only assignments which we regard as having controversial substance sufficient to warrant discussion are those relating to the allowance of the items ($2,000) against W. F., and the refusal of the court to allow interest.

As to the former, it is to be observed that these items were conclusively established by the unequivocal testimony of Elo Hillman, himself. No evidence to the contrary was offered; and the testimony of Elo constituted an admission against his own interest. It is not even contended that the judgment was incorrect in this, or any other regard (except as to the issue of interest) ; and the only asserted ground for setting aside the judgment on this account is the fact that no formal exception was made to the auditor’s report and the evidence was therefore not admissible. Plaintiffs’ supplemental petition expressly challenged the accuracy of the report in omitting the $1,400. This was tantamount to a formal exception and was sufficient to put the item in issue. Barkley v. Tarrant County, 53 Tex. 251; 36 Tex. Jur., p. 696 and note 18. Plaintiffs do not appear to have been apprised of the $600 item until it was brought out on the trial in the testimony of Elo. The auditor testified that he compiled his report from documents and information furnished him by the respective parties. He consulted Elo, who did not apprise him of either of these items. As stated, the testimony of Elo on this point was not objected to and error is not assigned upon admission of the evidence. It would be an extremely technical holding that would require reversal of an admittedly correct judgment under these circumstances; which holding we decline to make.

Appellants’ contention that interest should be added to the several advancements appears to be predicated upon two grounds: (1) agreement to that effect; and (2) the fact that Elo was required to pay interest during the life of his mother' (as provided in the deeds — a provision with which he complied) on the $5,500, rendered it unfair and inequitable not to add interest to the advancements received by the other four children.

Elo testified in general terms that the agreement was that all were to pay interest. It is not clear whether this testimony was predicated upon a verbal understanding or upon his own interpretation of the agreement contained in the deeds of 1924 and 1927. In any event, the court was warranted in disregarding the testimony, since it was not corroborated and came from an interested witness.

A careful study of the terms of the two deeds leads, we hold, to the conclusion that there was no agreement therein regarding interest (except as to the $5,500 during the life of the mother — a subject we consider below) ; and that the rights of the parties were to be determined by the general rules relating to advancements brought into the settlement of estates in hotchpotch. Our statute upon the subject (Art. 2576, R.C.S.) provides that “it shall be sufficient to account for the value of the property so brought into hotchpotch at the time it was advanced.” No specific reference is made to interest; and we have found no case in this jurisdiction upon the subject. The general rule appfears to be that interest is not a proper charge prior to the death of the donor. 1 Am.Jur., p. 755, § 99; 18 C.J., p. 931, § 250.

Insofar as concerns interest on the $5,500, it is manifest that this provision was incorporated in the two deeds in order to provide sustenance for the mother during her declining years in her mentally enfeebled condition. There was no evidence of the real value of the property conveyed to Elo. And' it should be assumed (if such were necessary) that the obligation of Elo to pay interest to his mother during her lifetime in the manner provided, was compensated for in the value of what he received under the deed. None of the other children received any personal benefit from the payment. What the rights of the mother or the other children would have been had Elo failed to meet this obligation does not concern us. At any rate, the agreement, as expressed in the deeds, appears clearly to contemplate that upon the death of the mother only the $5,500 and other-advancements received by the five children should be brought into hotchpotch, the aggregate divided into five equal shares,, and the division or adjustment made accordingly. While the $5,500 was put in the form of a note and title to the conveyed property vested as of the date of the conveyance; the note was substituted for the conveyed property, the interest was to go to the mother during her life, and the principal amount of the note only was to be accounted for in the final distribution after the mother’s, death. This is our interpretation of the agreement of the parties; and, so interpreted, the trial court properly disallowed interest on the advancements.

The trial court’s judgment is affirmed.


text:
    JOHNSON et al. v. FIRST MORTG. LOAN CO. OF SAN ANGELO.
    No. 8845.
    Court of Civil Appeals of Texas. Austin.
    Dec. 30, 1939.
    Rehearing Denied Jan. 24, 1940.

      Murphy & Leslie, of San Angelo, for appellant.
    Carter T. Dalton and Robert T. Neill, both of San Angelo, for appellee.
   McClendon, chief justice.

Appellee sued appellant Meadows in his capacities, (1) as administrator of the estate of James W. Johnson, deceased, and (2) as guardian of the estate of Mrs. A. D. Johnson, n. c. m., upon a promissory note for $21,407.38, executed March 22, 1932, by Mr. and Mrs. Johnson (husband and wife), payable to a hank and later assigned to appellee; and to foreclose a trust deed of even date securing the note upon separate real estate of Mrs. Johnson in possession of the guardian. Appellee also sought reimbursement for taxes upon the property covered by the trust deed paid subsequently to the date of the note. Mrs. Johnson and the children of Mr. Johnson' Jas his sole heirs at law) and one Hud-speth (alleged to claim a lien upon the property) were also made parties defendant. The case was tried to a jury hut at the close of the evidence was taken from the jury and judgment rendered in accordance with a motion for judgment filed by appellee. This motion admitted that the evidence disclosed that Mrs. Johnson was insane when she signed the note and trust deed, and was not bound personally thereon. It prayed judgment against the administrator upon the note, and .against the guardian to establish a lien upon the trust deed property for certain sums aggregating with interest $14,195.92 incurred and paid for the benefit of said property. No personal judgment was rendered .against Mrs. Johnson and judgment was rendered in favor of Hudspeth and the Johnson children on their disclaimers. The judgment was ordered certified to the probate court for execution in the administration and guardianship proceedings. Meadows has appealed in his two stated capacities, without bringing up statement of facts.

The case was tried upon appellee’s fourth amended original petition, prior pleadings not being included in the record on appeal. This petition does not allege that the claim had been presented to the administrator or guardian as required by R.C.S. Arts. 3509, .3530, 4239, and (by reference) 4108 (see Humphrey v. McCarty, Tex.Civ.App., 251 S.W. 609); and the only asserted ground for reversal is the insufficiency of the petition on that account to confer jurisdiction upon the district court. The point is raised by special exceptions to the petition, which were overruled; and is also urged as fundamental error.

The above statutory requirement is mandatory; and compliance is an indispensable prerequisite to the right to sue, unless the claim falls within one of the classes as to which presentation to the administrator or guardian is held to be unnecessary. Generally speaking and for the purposes of this case, these excepted classes are (1) when the claim is unliqui-dated, and (2) where justiciable issues are involved calling for relief beyond the powers of the probate court adequately to afford. A petition which does not allege such presentation and rejection of the claim or show that the claim falls within one of the excepted classes is bad on general demuri-er. See Dempsey v. Gibson, Tex.Civ.App., 105 S.W.2d 423, for citation of pertinent decisions.

Whether "the claim, tested by the allegations of the petition, falls within one of the excepted classes, is therefore the determining question before us. The petition alleges that:

Mr. and Mrs. Johnson executed the note and trust deed in compliance with legal formalities. Mr. Johnson thereafter died and appellant was administrator of his estate. Mrs. Johnson had. been adjudged insane (date not given) and appellant was guardian of her estate. The note was the culmination of several renewals and embodied various sums paid by the bank upon Mrs. Johnson’s request and for the benefit of her estate. These sums were: (1) A stated indebtedness of Mr. Johnson to the bank secured by chattel mortgage on livestock which was transferred by the bank to Mrs. Johnson; (2) various stated amounts paid by the bank to defray taxes on Mrs. Johnson’s above real estate; (3) a stated amount advanced by the bank to take up a valid paving lien upon said real estate; (4) two stated amounts advanced by the bank to discharge judgments against Mr. Johnson which had been abstracted and execution levied upon said real estate; (5) stated amounts advanced by the bank to pay attorneys’ fees and other incidental itemized expenses incurred in protecting Mrs. Johnson’s above real estate from sale under said judgments. In addition to these sums embodied in the note recovery was sought for other stated sums paid out subsequently to the date of the note, to discharge tax liens upon the above property.

As to Hudspeth the petition alleged: “That the plaintiff, Roy Hudspeth, when first cited herein, claimed a lien on all or part of the property herein involved, which lien plaintiff alleges to be inferior to the lien of plaintiff, but that since the institution of said suit, has filed his disclaimer herein, and plaintiff prays judgment against the said Roy Hudspeth only on said disclaimer.”

As to the Johnson children the petition alleged that Mr. Johnson “died leaving as his heirs the defendants (naming the children), and that said defendants are claiming some interest, the exact nature of which is to plaintiff unknown, in the lands described herein; but whatever interest said defendants may have- in the lands herein described is inferior to and subject to plaintiff’s lien.”

It is quite clear that no item in appellee’s claim is unliquidated. Anderson v. First Nat. Bank, 120 Tex. 313, 38 S.W.2d 768.

As to the claim against the administrator: The petition shows that as to the items incurred for the benefit of Mrs. Johnson’s separate estate, that estate, or in any event that portion of her property for the benefit of which the items were paid, was primarily liable, and to the extent that those items were embodied in the note Mr. Johnson’s liability on the note was secondary or that of a surety.

R.C.S. Art. 6251 provides: “No surety shall be sued, unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in the cases otherwise provided for in the laws relating to parties to suits.”

The excepted cases referred to are: “When the principal obligor resides beyond the limits of the State, or where he cannot be reached by the ordinary process of law, or when his residence is unknown and cannot be ascertained by the use of reasonable diligence, or when he is dead, or actually or notoriously insolvent.” R.C.S. Art. 1987.

Mrs. Johnson, the principal obligor as to the stated items, manifestly does not fall within any of the excepted classes; unless it should be held that the fact that her estate was being administered by the probate court by analogy places her for the purposes of the statute in the class of one deceased—a question we later discuss.

The statute makes no reference to the status of the surety, and on principle it would seem that it would make no difference whether he were living or dead and his estate sought to be bound. The statute is for the benefit of the surety, and no valid reason suggests why his estate should not be accorded the same right that would be accorded to him if living.

It is also manifest that the probate court sitting in administration on the estate of Mr. Johnson had no jurisdiction to bring into that administration the guardian of Mrs. Johnson in a wholly separate and distinct estate. If, therefore, the statute applies to the case at bar, the claim falls within the second exception above noted as being one as to which presentation to the administrator is not a necessary prerequisite to suit in the district court against both the principal and surety.

The only case we have been able to find in which this question was raised and adjudicated is Hume v. Perry, 136 S.W. 594, decided in 1911 by the Fort Worth court,, in which a writ of error was granted but later voluntarily dismissed.

The pertinent facts of that case were these: Geo. R. Hume was guarantor upon a note upon which Evans was the principal obligor. The note was secured by vendor’s lien and by a trust deed lien upon real estate other than that securing the vendor’s lien. Hume died and Mrs. Hume was appointed executor, not, however, independent of probate court administration. Her status was therefore the same with reference to presentation of claims against the estate as that of an administrator (she is so designated in Jones v. Wynne, Tex.Com.App., 129 S.W.2d 279). The claim was presented to Mrs. Hume, who rejected it, and suit was brought thereon in the district court against her, as executrix, and Evans—not, however, until after the 90-day statutory (Art. 3522) period had elapsed within which suit might be filed upon a rejected claim. The judgment was. reversed by the Fort Worth court upon, the holding that the statute requiring suit against the principal before or simultaneously with suit against the administratrix applied; that presentation of claim to her was unnecessary and, in effect a useless formality; and therefore the 90-day statute had no application.

That case has been cited with approval a number of times on other points; but, so far as we have been able to find, only once (in Jones v. Wynne, above) on the point at issue.

The opinion in Jones v. Wynne (adopted by the Supreme Court) was by Judge Taylor, of the Commission, and evidences his characteristic painstaking investigation and analysis of the salient decisions. That case was a proceeding by certiorari to review an order of the probate court allowing a claim against the estate of the wife of the administrator predicated upon a note executed by the husband and wife upon which the wife was only surety for her husband. The proceeding was brought by heirs of the wife. After holding that certiorari does not lie to review an order of the probate court approving a claim against an estate in administration, the court considered the proceeding from the viewpoint of an independent plenary suit against the administrator, and held (1) that since all the parties at interest (the husband-principal, the surety estate, and the heirs of the estate) were parties to the probate proceeding, that court had jurisdiction to determine (which it did) the insolvency of the husband and the incidental right of the claimant to proceed against the surety estate without suing the principal; and (2) that the order ápproving the claim was not subject to collateral attack, which an independent suit to set aside the order constituted.

The following comment upon the Hume case is quoted from the opinion [129 S.W. 2d 285] : “Plaintiffs cite the case of Hume v. Perry, Tex.Civ.App., 136 S.W. 594, as holding that where a decedent has a secondary liability on a note the district court is the proper forum in which to file suit and that the presentation of the claim to the administrator prior to filing suit against the party primarily liable, is a nullity. In that case, however, the Court of Civil Appeals held, with respect to the question of insolvency, ,that in the absence of a contrary showing it would be presumed that the principal was solvent. In the present case the order in question carries with it a finding of insolvency which eliminates the question of jurisdiction to determine liability of a surety, unless, of course, such finding is beyond the power of the court. We see no reason why, with the parties before the court it could not so find. The Hume case does not support the contention of plaintiffs that the probate court was without such power. The application for writ of error in that case discloses that the administrator refused to approve the claim and that the original suit thereon was not filed in the district court within the ninety days provided by statute. Art. 3522, R.C.S.1925. The Court in granting the writ made the following notation: ‘Granted for probable error in not sustaining Mrs. Hume’s (the administratrix) general demurrer to plaintiff’s petition, since it showed (on) its face that claim was presented and rejected more than ninety days before suit was filed.’ The record in the office of the clerk of this Court shows that after the writ was granted and before the cause was submitted it was settled by agreement of the parties and dismissed.”

■ While the question of suretyship might have been involved in White Co. v. Stout, Tex.Civ.App., 102 S.W.2d 1065, error dismissed, we have examined the application for writ of error and find that the point was not raised. Nor is it adverted to in the opinion of the Court of Civil Appeals. This case is discussed below upon another point.

The opinion in the Hume case is an evidently careful consideration of the subject, and we are in accord with its reasoning and conclusion. The decision has never been overruled.

The fact that Mrs. Johnson was not sui juris, and her estate was in guardianship does not, we believe, constitute an exception to Art. 6251. The language of the article shows its provisions to be mandatory, “except in the cases otherwise provided for in” Art. 1987. The enumeration of the four situations or “cases” under established canons of legislative construction, by necessary implication, even in the absence of the express language of Art. 6251 (“No surety shall be sued * * * except”), excludes other “cases” not excepted. Courts should not by construction engraft upon the statutory exceptions- others not embraced therein, unless the reasons therefor were so cogent and impelling as to authorize the assumption that such was the legislative intent. We are here dealing with statutory requirements upon a subject clearly within legislative purview. Administration under guardianship of estates of insane persons is of very ancient origin, and has always existed in this state. There is therefore no warrant for the assumption that the legislature did not have in mind this class of “cases” in drafting the article. There are, of course, analogies between the two classes of estates when they are in actual administration. But there are important differences between 'estates of those deceased and of those who are insane. As to the former there may be no administration pending, in which case the creditor would be required to take out administration, if such were necessary; and if not necessary, he would be required to institute proceedings with their incident complications against heirs. Again, there are delays involved in the administration of decedents’ estates which do not pertain to those of insane persons. We do not find justification for enlarging, the express statutory exceptions so as to include the estates of the insane.

It follows that the trial court had jurisdiction of the claim against the administrator. This, in any event, if the claim against the guardian is such that presentation thereof was not required, a question we now consider.

In so far as concerns the question of suretyship, that is that portion of the notes’ consideration as to which Mr. Johnson was the principal debtor and • Mrs. Johnson the surety, there was no necessity to proceed against the principal debtor as prerequisite to proceeding against the surety since the former was dead, a “case” expressly excepted by Art. 1987. The fact that there were involved adjustments between the two estates was, it seems, a matter which did not concern appellee. White Co. v. Stout, above.

Jurisdiction over the guardian appears therefore to depend upon whether; (1) The alleged existence of an equitable lien against Mrs. Johnson’s separate property; or (2) the adversely asserted interests of Hudspeth -and/or the Johnson children were within the powers of the probate court to adjudicate and afford adequate relief.

Upon the first point, that of the assertion of an equitable lien upon the separate property of the ward in the hands of the guardian, we regard the case of Pavelka v. Overton, Tex.Civ.App., 47 S. W.2d 369, 370, error refused, as directly in point. The opinion is a well considered one by Judge Randolph, then of the Amarillo Court, formerly of the Commission of Appeals. That was a suit to set aside a judgment against the guardian of minors’ estates, which had been rendered by default. The facts in the prior case, as disclosed by the pleadings, were that the plaintiff asserted against the wards’ estates a money claim for a fixed amount and an equitable lien upon the wards’ real estate to secure such amount. The claim arose from exchange of real estate between plaintiff and the guardian, and an alleged misstatement as to the amount of encumbrance represented to exist against the property thus acquired by plaintiff." The pleadings did not show presentation of the ■claim to the guardian. The judgment, in so far as it was against the wards’ estates (guardian as such) w.as sustained upon the following express holding: “The probate court of Floyd county had no equitable jurisdiction to adjust the matters between the parties. That court had no jurisdiction to establish an equitable vendor’s lien upon the blocks of land sold by the appel-lee to appellants, and could not foreclosé such equitable liens.”

A great deal has been written upon the subject of the power of the probate court over mortgage and other express liens asserted against property of decedents in administration. The decisions seem to be in hopeless conflict. We shall not attempt to reconcile them. Many of them are cited and analyzed in the briefs. We shall only refer to the above case of White Co. v. Stout, supra, in which writ of error was dismissed. That was a suit upon a negotiable paving certificate secured by paving lien which was sought to be foreclosed. The lien property had been conveyed by general warranty deed, the grantee assuming two trust deed encumbrances on the property, but ho mention was made of the paving lien. The grantee died, his estate was in administration, the trust deed lien holders had proved up their claims in the administration and the property was sold free of lien. The suit was against the maker of the paving certificate for personal judgment and against the administrator, the holders of the trust deed liens, and ,the purchaser at administration sale, To foreclose the paving lien. Personal judgment against the maker of the paving certificate was affirmed. Other relief was denied upon the ground that the plaintiff had not presented his claim to the administ trator and therefore the court had no jurisdiction in the matter. This holding was essential to the judgment rendered, and we regard dismissal of the writ as -approving It, regardless of whether the Supreme Court was willing to approve the opinion as a whole. The holding is decisive of the issue as to the Hudspeth asserted lien. As stated, we have examined the application for writ of error in this case. The case of Pavelka v. Overton, above, was cited. Had the Supreme Court considered that a conflict was presented by the two decisions, we are confident the writ would have been granted.

As to the claim of the Johnson children it is to be observed that the allegations of the petition are extremely vague. If their claim were based solely upon heirship to their father’s estate, then clearly they were neither necessary nor proper parties to the litigation. O’Neil v. Norton, Tex.Com.App., 29 S.W.2d 1060; Zamora v. Gonzalez, Tex.Civ.App., 128 S.W.2d 166, error refused.

If, on the other hand, they were asserting some title or claim (other than a mere lien) upon the property of their mother, the probate court had no jurisdiction thereof, and the district court had jurisdiction. Since the rules of pleading in this character of cases require an affirmative showing of jurisdiction on the part of the plaintiff, we regard the allegations insufficient in this respect. Since we are holding that jurisdiction was alleged in the assertion of an equitable lien upon the property, it is not necessary to elaborate upon this point.

The trial court’s judgment is affirmed.

Affirmed.


text:
    GULF BREWING CO. v. GOODWIN.
    No. 10918.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1939.
    Rehearing Denied Jan. 18, 1940.
    Sewell, Taylor, Morris & Connally, R. C. Sewell, and Ben Connally, all of Houston, for appellant.
    King; Cox & Rowe and Burris & Benton, all of Houston (Earl Cox, of Houston, of counsel), for appellee.
   GRAVES, Justice.

This statement from the able brief for appellant, with the deletions of only a few disputed details, has been adopted by the appellee as being substantially correct:

“This suit was instituted by the plaintiff, Edward Lee Goodwin, in the District Court of Harris County, Texas, against the Gulf Brewing Company, a corporation, to recover damages for personal injuries sustained by him in a collision between the auto which he was driving and the second of a chain of two trucks, which allegedly were owned and operated by the defendant. * * *
“The undisputed evidence showed that the collision occurred at approximately 9:45 p. m. on the night of November 16, 1935, in the City of Houston. The plaintiff was alone in his car, a small 1933 model Willys coupe, and was proceeding in a westerly direction on Preston Avenue. At the same moment two trucks of the Gulf Brewing Company were proceeding south on Austin Street near the intersection of Preston and Austin. The second truck was disabled as the result of motor trouble and was being towed to the defendant’s garage by the first truck. Truck No. 2 was attached to truck No. 1 by a chain * * *. Truck No. 1 was operated by driver, J. K. Turnage. Truck No. 2 was being steered by driver, Cecil Harrison. Both trucks were painted white. The first was a stake-body truck. The second was a van-type track with a 'large refrigerator body painted white in its entirety, save for the name ‘Grand Prize’, appearing on the side thereof in colored letters.
“ * * * A street light located directly overhead was burning, and two filling stations, occupying the northeast and the northwest corners of the intersection, * * *. The trucks entered the intersection first, and truck No. 1 had passed on across the intersection and No; 2 was in the intersection when the plaintiff (coming from the left of the two trucks) ran into the left rear wheel of the second truck, causing the collision in question and serious injuries to plaintiff.
“The plaintiff alleged numerous grounds •of negligence on the part of the defendant, through its agents and employees, the track drivers in question, including allegations of negligence in respect to the length of its chain, failing to have lights facing to the sides of each truck, as well as failing to have proper headlights and taillights, in choosing the particular route taken by the •drivers to reach the defendant’s garage, in failing to have a permit from the chief of ■police for towing such vehicle, and in other respects. No complaint was made anywhere in plaintiff’s amended pleadings as to the speed at which the trucks were being operated, and no allegation of negligence was based thereon. * * *
“The defendant replied with a general •denial and allegations of contributory negligence on the part of the plaintiff in failing to keep a proper lookout, in driving at an unreasonable and reckless rate of speed, in exceeding the speed limit of twenty miles per hour, as imposed by the city ordinance .and state statutes, in failing to drive on the right-hand side of Preston Avenue in the • direction in which he was proceeding, in failing to drive behind the truck with which .he collided, and in other respects.
“The case was submitted to the jury on .thirty-four special issues, each of which was answered favorably to the plaintiff. The jury found that the defendant was guil,ty of negligence in each of the following particulars:
“(a) In failing to have the lights with which truck No. 2 was equipped burning.
“(b) In failing to have lights on the sides of truck No. 2.
“(c) In failing to have a light or flag on the chain connecting the trucks.
“(d) In failing to keep a proper lookout (by the driver of truck No. 1).
“(e) In failing to blow the horn on truck No. 1.
“(f) In attempting to tow the disabled truck through the streets of the City of Houston after nightfall.
“The jury likewise found that each of such acts of negligence was a proximate cause of the collision.
“The jury further found in favor of the plaintiff on each of the defensive issues of contributory negligence in the following particulars:
“(a) That the plaintiff was not operating his automobile at a rate of speed in excess of twenty miles per hour.
“(b) That the plaintiff did not fail to operate his car on the right-hand side of Preston Avenue.
“(c) That it was not negligence on the part of the plaintiff to fail to drive his automobile in such manner as to pass to the rear of truck No. 2.
“(d) That plaintiff was not operating his car at an unreasonable or reckless rate of speed.
“(e) That plaintiff did not fail to have his automobile under reasonable control.
“(f) That the plaintiff did not fail to keep a reasonable lookout as he entered the intersection.
“The jury further found that the collision was not the result of an unavoidable accident, and found, damages in the total sum of $15,452.00 (including $1,452.00 doctors’ and hospital bills), for which amount the court entered judgment in plaintiff’s favor against defendant; * * *.
“ * * * appellant intends to present to the court only one basic proposition, to the effect that the plaintiff was guilty of contributory negligence as a matter of law, in driving his car in excess of twenty miles per hour and in failing to keep a proper lookout, which proximately caused the collision and his resulting injuries, under the undisputed facts as to the manner in which the collision occurred; that the answers of the jury to such issues were not supported by the evidence, and that the trial court should never have submitted this case to the jury, or should have granted the appellant’s motion for judgment notwithstanding the verdict or appellant’s motion for new trial.”

True to the presage of its final quoted-statement, appellant only assails the jury’s findings under issues 18 and 31, submitting the excess over 20 miles per hour in speed and the keeping of a reasonable lookout, issues upon the appellee’s part, first, as being without any evidence to support them, and subsidiarily, as being so against the overwhelming weight of all the evidence as to be clearly wrong; in doing so, it further concedes the sufficiency of the evidence to support all the given findings of negligence upon its own part, so that the decks are stripped down to the single basic presentment it so announced its reliance upon.

The two main postulates upon which this appeal is thus rested are that: (1) “the appellee was not entitled to recover by reason of his unexplained and inexcusable failure to look and see the second truck from the light of his' own headlights and other lights surrounding the intersection”; (2) “there was- no competent evidence whatsoever in the record- that the appellee was going less thkn 20 miles per hour immediately before the collision, or, if there was any evidence, it was so meager as to be inadequate, hence the jury’s answer that he was not driving in excess of 20 miles per hour should have been set aside.”

In support of these presentments, after a very able and exhaustive review of the evidence deemed to support them, these main authorities are cited as determining the law thereon in appellant’s favor; Blakesley v. Kircher, Tex.Com.App., 41 S.W.2d 53; Cisco & N. E. R. Co. v. McCharen, Tex.Civ.App., 118 S.W.2d 844; Edmiston v. Texas & N. O. R. Co., Tex.Civ.App., 111 S.W.2d 848; Jones v. Sunshine Grocery & Market Co., Tex.Civ.App., 236 S.W. 614; Kypfer v. Texas & P. R. Co., Tex.Civ.App., 88 S.W.2d 528; Robinson v. Houston Belt & Terminal R. Co., Tex.Civ.App., 23 S.W.2d 894; Schawe v. Leyendecker, Tex.Civ.App., 269 S.W. 864; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456; Texas & N. O. R. Co. v. Adams, Tex.Civ.App., 27 S.W.2d 331; Texas & N. O. R. Co. v. Beard, Tex.Civ.App., 91 S.W.2d 1080; Texas & N. O. R. Co. v. Stratton, Tex.Civ.App., 74 S.W.2d 741; Texas-Mexican R. Co. v. Hoy, Tex.Com.App., 24 S.W.2d 18; Thompson v. St. Louis S. W. R. Co. of Texas, Tex.Civ.App., 55 S.W.2d 1084; Wichita Valley R. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714.

While it is not the duty of this tribunal, in passing upon the sufficiency of the evidence to support a jury-verdict, to reiterate in detail, or to essay a comprehensive resume of the testimony upon which its resolving of the question is rested, it is its duty to make a careful review of the entire record on that phase of the cause as presented to it, which has been faithfully done in this instance; from such a study of the statement of facts-brought before it, this court finds that appellant has seen through a. glass darkly the effect and purport of the testimony as a whole underlying the two fact-findings it attacks, and that, contrary to its appraisal thereof, there was not only sufficient support fdr both these findings, but, further,, that neither was • so against the great weight of the testimony as to'-be clearly wrong. ,

Indeed, this court,’ as a result of such examination, is impfelled to accept instead this very accurate and cómpfehen-sive summary of what the evidence reflects upon these two disputed features presented-in the opposing brief for the appellee, to-wit:

“There being testimony in this cause that at the time of the accident complained of the appellant-company, through . its agents, was engaged in towing through the streets of Houston in the night-time, a large truck, with no lights of any .kind burning thereon, such truck then being pulled along by another, large truck in front of it with all lights thereon burning, the trucks being connected with a tow-chain, and there being a distance of ten feet from the rear of the lighted truck to the front of the unlighted truck; and there being testimony ■ that the lighted truck was pulling the unlighted truck in a southerly direction on Austin Street and across the intersection of Preston Avenue with Austin Street, at a speed of ten or twelve miles per hour (approximately fifteen to eighteen feet a second), and there being testimony that the over-all length of the two trucks and the chain connecting them was as much or more than the entire width of the streets they were crossing; and there being testimony that the appellee was driving his automobile in a. westerly direction on Preston Avenue at a moderate rate of speed and not in excess of twenty miles per hour, and saw the lighted-truck pass into the intersection before him, but did not see the unlighted-truck being towed across the intersection until he was right upon it and too late to avoid colliding with it; and there being testimony by others who were actual eye-witnesses to the accident that they, too, saw the lighted-truck pass into the intersection before the collision but did not see the unlighted-truck being towed into the intersection until the collision took place; and there being testimony that there was a street-light hanging at the northwest corner of the intersection, and a light in a filling-station -on the same corner, as well as a light in a filling-station on the northeast corner, but no testimony as to how much illumination of the intersection was furnished by these lights, or that the intersection was completely lighted; the questions, (1) of whether the appellee was guilty of contributory negligence in operating his automobile at a speed in excess of twenty miles per hour prior to the collision, and (2) of whether he failed to keep a reasonable lookout, were ones of fact for the determination of the jury; and the findings of the jury that the ap-pellee was not guilty of contributory negligence in either of the particulars mentioned are sufficiently supported by the evidence.”

Were this court to undertake a firsthand restatement of the fair and controlling effect of the whole body of the evidence upon those two details, it could not hope to improve upon the quoted statement.

Further, such being the finding as to the evidence that is hereby expressly made that of this court, it is thought to be controlled in its legal reaches, with the result •of requiring the upholding of the trial court’s judgment, by these authorities: J. S. Abercrombie Co. v. Delcomyn, Tex.Civ.App., 116 S.W.2d 1105; Ferrell v. Beaumont Traction Co., Tex.Com.App., 235 S.W. 531; Pennington Produce Co. v. Wonn, Tex.Civ.App., 49 S.W.2d 482; Swiff v. Michaelis, Tex.Civ.App., 110 S.W.2d 933; Western Development Corp. v. Simmons, Tex.Civ.App., 124 S.W.2d 414.

It is this court’s conclusion that this Tecord does not show that this appellee “voluntarily exposed himself to a known ■danger”, or that there was presented to him a dangerous situation that was open and apparent, which he could not have failed to both see and realize, if he had been keeping a lookout — one or the other of which situations seems to have been requisite under appellant’s cited authorities, to hold him guilty of contributory negligence as a matter of law; but that, on the contrary, it clearly reflects the entirely dissimilar condition in composite effect that is so clearly stated in the quoted resume of all the testimony from appellee’s brief.

Wherefore, since, the correctness of this judgment depends upon which of the two states of fact thus severally relied upon by the parties existed, and since in the exercise of its province this court must find thereon as indicated supra, further discussion would seem to be a work of supererogation.

These conclusions require an affirmance of the judgment; it will be so. ordered.

Affirmed.

On Appellant’s Motion for Rehearing.

The expression in our former opinion that the appellant “further concedes the sufficiency of the evidence to support all the given findings of negligence upon its own part,” was erroneous and should have been to the effect that it only conceded the sufficiency of the evidence to support the jury’s finding that truck No. 2 was not lighted. The correction is accordingly made with pleasure, on reminder from appellant’s counsel.

The motion has been carefully considered — especially insofar as it attacks the findings of fact made by this Court upon original hearing as not being supported by the evidence, but, with all due deference to the appellant, it does not specifically point out any material respect in which there was an overstatement; neither has this court on a review of its former findings found them so lacking; they must accordingly be reiterated as' reflecting the substantial facts developed upon the trial below. ‘

Under the .conclusion that the cause was. correctly decided on original hearing, the motion will be overruled.

Refused.