author: LOONEY, Justice.

text:
    CONNOR v. CITY OF UNIVERSITY PARK et al.
    No. 13002.
    Court of Civil Appeals of Texas. Dallas.
    June 8, 1940.
    Rehearing Denied July 6, 1940.

      Burford, Ryburn, Hincks' & Charlton, Logan Ford, and W. M. Taylor, Jr., all of Dallas, for appellant.
    Percy C. Fewell, of Dallas, for appellees.
   LOONEY, Justice.

Dr. T.. V. Connor, Jr., the appellant, instituted this proceeding against the City of University Park and its officials, under the provision of Art. 101 lg, Vernon’s Ann. Civ.St., to review the action of the Board of Adjustment of said City in affirming the building engineer’s refusal to grant appellant a permit, authorizing the remodeling of the interior of his family residence, in the single-family dwelling district of said City, for use as an office for the practice of dentistry, praying that mandamus issue, compelling the proper officials of said City to issue a permit for such purposes, and to enjoin the enforcement officers of the City from interfering with or molesting appellant or his patients in utilizing the left wing of his residence as a. private office for the practice of his profession.

In their verified answer, appellees (defendants below)" set out, somewhat at length, the zoning ordinance, alleging its reasonableness, the necessity for its enactment, its constitutional validity as applied to appellant and his property, alleging that, more than twenty million dollars had been invested in single-family homes in the vicinity surrounding Southern Methodist University; that there had been built up, and was being maintained, a cultural, homelike environment and atmosphere; that the classification, restrictions and regulation as to the use of property in said district, involving the property in question, are parts of a complete, comprehensive plan of zoning for the entire City of University Park; and that, to relax its enforcement, as sought by appellant, would seriously imperil the entire zoning plan and program, produce anxiety and confusion among property owners and residents of the district disturbing to their peace of mind, pleasure and confidence, creating a feeling of insecurity in regard 4o home ownership in said district, and (causing the loss of property values, exceeding many times the value' of appellant’s property; would invite the entry into the district of other similar and kindred professions and occupations, increasing traffic and other hazards, also the cost of operating the municipality, that would be a menace to the public health, safety and general welfare of the community; alleging further, that appellant is misrepresenting his intentions, in that, if granted the permit sought, he intends to and would use his residence to operate a dental office in such a way as to constitute the carrying on of a business, and not merely as an incident to the use of the property as a home; that the proposed use of the property is neither essential nor incidental to the enjoyment of a bona fide home; wherefore, appellees prayed that the relief sought by appellant be denied.

After an exhaustive hearing, the court found the issues in favor of appellees, denying the relief sought by appellant, from which he appealed. Although the statement of facts is quite lengthy (700 pages), no findings and conclusions were requested, or filed by the trial court; hence it is our duty to affirm the judgment, if sustained upon any reasonable theory supported by the evidence and authorized by law.

Cities and incorporated towns and villages find their authority for the enactment of zoning ordinances in Arts. 1011a, 1011b and 1011c of Vernon’s Ann.Civ.St. For the promotion of the health, safety, morals and general welfare of the community, governing, bodies of these municipalities are authorized to enact zoning ordinances, providing restrictions and regulations in regard to the size of buildings, structures, their construction, alteration, regulate density of population, the use of buildings for trade, industry, residence, or other purposes; also regulations and restrictions in regard to the character of the district, its peculiar suitability for particular uses, “with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality”, and that, such regulations shall be uniform for each class or kind of buildings throughout each district.

The material facts are these: In December, 1929, the governing body' of the City of University Park adopted a zoning ordinance, creating, among others, a single-family dwelling district, which was amended in September, 1938, before appellant purchased the residence involved, which, at the time, was being used as a single-family residence, and has never been used for any other purpose. The pertinent provisions of the ordinance, as amended in 1938, are these: “In a single-family dwelling district no building or premises shall be used, and no building shall be erected or structurally altered which is arranged or designed to be used, for other than one or more of the following uses:”, naming single-family dwellings and accessory buildings, also certain institutions of a public nature, such as public utilities and institutions or places for education, culture, worship, pleasure and recreation, and, further, as follows: “(8) Uses customarily incident to any of the above uses, when-located upon the same lot and not involving the conduct of a business; including customary home occupation engaged in by the. occupants of the dwelling on the premises, and including one private office of a physician, surgeon, dentist, musician, or artist, when situated in the same dwelling used by such physician, surgeon, dentist, musician, or artist as his or her private dwelling and incidental to the enjoyment of such premises as a bona fide home, provided, however, that nothing herein shall be construed to permit the establishment, operation or maintenance of a clinic or the carrying on of any business in such district * * * ”.

The above represents the status of the regulations at the time appellant made his application for the permit; however, in September, 1939, after the institution of the suit, but before the hearing, the governing body of the City again amended the ordinance, providing that, in a single-family dwelling district, no building or premises could be used for other than one or more of the following uses, to-wit l A single-family dwelling used as the residence of a single family, also certain accessory buildings and public institutions, for worship, education, culture, and a telephone exchange; also “(c) The following, but only the following, incidental | uses may be permitted in a single-family I dwelling district:- As a secondary use, but\ never as a principal use, when indis- ⅜ pensably necessary to the enjoyment of premises for any one of the uses permitted by this section and actually made of the premises, but not otherwise, not more than one room or compartment when located upon the same lot, may be subjected to uses customarily (according to the then prevailing custom in the area and adjacent areas which are exclusively residential in character) incident to any one use authorized by this section, which is actually made of the premises; provided, however,j nothing herein shall authorize or be con-; strued to permit the use of any part of; premises within a single-family dwelling district for the purpose of conducting or carrying on the business, trade, or professional practice, or for carrying on the business or practice of the rendering of personal, trade or professional service for which a charge is made or any kind of remuneration is required or received by the occupant of the premises except that professional services may be rendered in unusual and occasional emergency cases, when such service is essential to the preservation of life or to the rendering of first-aid; * *

It is conceded, and the fact entered into the discussion, that on January 2, 1940 (since the trial of the case), the governing body of the City of University Park again amended the portion of the ordinance under consideration, expressly prohibiting! the use of any part of the premises within a single-family dwelling district, for the purpose of conducting or carrying on any business, trade, or professional practice, or giving any professional advice.

With reference to the authority of the governing body of the City to amend the ordinance, the statute (Art. 101 le, Vernon’s Ann.Civ.St.) provides that: “Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified, or repealed * * * ”; therefore, we think, the governing body of the City, in the proper exercise of the police power, was authorized, pending the litigation, to amend the ordinance in the respects mentioned, as appellant acquired no vested right by reason of having filed an application for a permit to remodel and use the residence as an office for the practice of dentistry. It follows therefore, that, if either of the last two amendments adopted is valid, the rights of the parties are to be determined as of the present time, rather- than the time the application for a permit was made. See Munn v. People of Illinois, 94 U.S. 113, 24 L.Ed. 77; City of University Park v. Rahl, Tex.Civ.App., 36 S.W.2d 1075; Ware v. City of Wichita, 113 Kan. 153, 214 P. 99; Sunny Slope Water Co. v. City of Pasadena, 1 Cal.2d 87, 33 P.2d 672. State ex rel. v. Christopher, 317 Mo. 1179, 298 S.W. 720; Brett v. Building Commissioner, 250 Mass. 73, 145 N.E. 269.

Appellant contends that, the amendment of September, 1939, in providing that it should not be construed to permit the use of any part of the premises, within a single-family dwelling district, for trade or for the practice of any profession, for which a charge is made or any kind of remuneration is required or received by the occupant of the premises, except that professional services may be rendered in unusual and occasional emergency cases where such service is essential to the preservation of life, or to the rendering of first aid, etc., in effect, was a prohibition of such use, and that, by implication, accomplished the same result sought by the explicit provisions of the amendment of January, 1940.

We are inclined to accept appellant’s view in regard to this matter. To say to a homeowner, “You are permitted to use an office in your residence for the purpose of practicing dentistry, provided you render a free service”, is to offer but an empty, profitless privilege, and, from a business standpoint, of no value whatever; in effect, is a prohibition of such use. So, we conclude that, whether appellant’s rights are to be tested by the provisions of the amendment of September, 1939, or those of the amendment of January, 1-940, the same question is presented; that is, whether or not the governing body of the City of Univ&rsity Park was authorized to prohibit the use, by a dentist, of any part of' his premises located in a single-family dwelling district, for the practice of his profession. In deciding this question, we must inquire whether or not the exclusion of the practice of dentistry from the residential area was reasonable, that is, bore such relation to the ordinary objects of the police power, as to authorize its exercise in the manner indicated.

The record discloses that quite a number of homeowners in the residential district vigorously oppose the granting of the permit to appellant; a number testified in regard to the probable effect the use of any part of the premises for the practice of dentistry would have upon the property and neighborhood; some placed their objections largely upon aesthetic grounds. In the nature of the case, the testimony was somewhat speculative, yet we' found in it real probative value, in its tendency to show that the establishment of a dental office in the residential district, open to those seeking treatment or relief from suffering, would .be an institution foreign to a neighborhood of homes, and not desired by the homeowners; . would . mar the general plan, increase the everpresent traffic hazard’and the opportunity for the spread of contagion, affect adversely the home environment, disturb the privacy of home life, render' the section less desirable ¡for homes, and adversely affect property lvalues; and, further, .that the invasion ■of the residential district by one such avocation probably would be the open sesame, admitting others of a similar nature, thus increasing the hazards and multiplying the evils mentioned.

The questions discussed in the 630 printed pages of briefs sweep the gamut of the zoning code, as well as that of the police power. The task .presented of studying the briefs — its enormity — was somewhat repelling, but, the task performed, we have the thought that the case was ably and thoroughly briefed and argued by counsel for the parties. However, we are of opinion that there will be found in the doctrines announced by this court in Scott v. Champion Bldg. Co., Tex.Civ.App., 28 S.W.2d 178, in Lombardo v. City of Dallas, Tex.Civ.App., 47 S.W.2d 495, and by the Supreme Court in the latter case, 124 Tex. 1, 73 S.W.2d 475, answers to practically all questions raised and discussed in the instant case.

We must indulge the presumption that the zoning ordinance was validly enacted. The burden rested upon appellant to clearly show that the regulations of which he complains were not authorized under the police power. We do not think i.t can be said as a matter of law that the exclusion of the practice of dentistry, or any other profession, from the residential district, was either arbitrary, or unreasonable, as having no relation to, the public health, safety, morals, or general welfare of the community. The presumption being to the contrary, the burden fested upon appellant to clearly show that the regulation was ■ unreasonable, and if its validity is fairly debatable, we would not be authorized to substitute our judgment for that of the governing body of the City. This doctrine is sustained by authorities the country over. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016, the Supreme Court said: “The exclusion from residential districts by zoning ordinances of business and trade of every sort, including hotels and apartment houses, cannot be, said to be so clearly arbitrary and unreasonable, and to have no such substantial relation to the public health, safety, morals, and general welfare, as not to be within the police power/’ — as it must be said, before the ordinance can be declared unconstitutional. Also, in Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 595, 71 L.Ed. 1074, the same court said: “The common council of the city, upon these and other facts, concluded that the public welfare would be promoted by constituting the area, including the property of plaintiffs in error, a zone ‘B’ district, and it is impossible for us to say that their conclusion in that respect was clearly arbitrary and unreasonable. The most that can ■ be said is that whether that determination was an unreasonable, arbitrary, or unequal exercise of power is fairly debatable. In such circumstances, the settled rule of this court is that it will not substitute -its judgment for that of the legislative body charged with the primar) duty and responsibility of determining the question.” And in Munn v. People, etc., 94 U.S. 113, 132, 24 L.Ed. 77, the same court used the following language: “For our purposes we" must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a- statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the Legislature is the exclusive- judge.” In Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 486, our own Supreme Court stated the same doctrine, as follows: “The rule is that in order- to hold a statute void we must be- able to say that it is clearly unconstitutional and to hold an ordinance invalid it must be clearly and plainly unreasonable.” In Munger, etc., Co. v. City of Groesbeck, Tex.Civ.App., 194 S.W. 1121, 1123, this court, quoting with approval from the Supreme Court of Minnesota, Evison v. Chicago, St. P., M. & O. Railway Co., 45 Minn. 370, 48 N.W. 6, 11 L.R.A. 434, said: “Much must be left to the judgment and discretion of the city counsel, and when they have exercised their judgment and discretion in passing an ordinance it is prima facie valid, and, to justify a court in setting aside their LC> UOUiy Ct CUUi l 11J. OVsLLllXCL CVOiVJ-L. action, its unreasonableness, and the want of necessity for it as a measure for the protection of life and property, must be clear, manifest, and undoubted, so as to amount, not to a fair exercise, but an abuse of discretion, or a mere arbitrary exercise of the power of the council.” Continuing the same opinion, this court said: “The presumption is that the ordinance is valid, and repeating what we have already said, when an ordinance like the one we are considering ‘is attacked upon the ground that it is unreasonable and therefore void, it is incumbent upon the party who alleges its invalidity to aver and prove the fact which made it so.’ ” To the same effect, see King v. Guerra, Tex.Civ.App., 1 S.W.2d 373; Harper v. City of Wichita Falls, Tex.Civ.App., 105 S.W.2d 743; Harvey v. City of Seymour, Tex.Civ.App!, 14 S.W.2d 901; West Bros. Brick Co. v. City of Alexandria, 169 Va. 271, 192 S.E. 881; Martin v. Danville, 148 Va. 247, 138 S.E. 629.

The expansive nature of the power was satisfactorily stated by the Supreme Court of California, in Miller v. Board of Public Works, 195 Cal. 477, 234 P. 381, 383, 38 A.L.R. 1479, as follows: “ * * * the police power, as such, is not confined within the narrow .circumscription of precedents, resting upon past conditions which do not cover and control present day conditions obviously calling for revised regulations to promote the health, safety, morals, or general welfare of the public; that is to say, as a commonwealth develops politically, economically, and socially, the police power likewise develops, within reason, to meet the changed and changing conditions. What was at one time regarded as an improper exercise of the police. power may now, because of changed living conditions, be recognized as a legitimate exercise of that power. This is so because: ‘What was a reasonable exercise (of this pel days of our fathers may t( so utterly unreasonable as to cult for us to comprehend the' of conditions that would justi what would by our fathers have jected as unthinkable is to-day as a most proper and reasonable thereof.’ Streich v. Board of Education, 34 S.D. 169, 147 N.W. 779, L.R.A.1915A, 632, Ann.Cas.1917A, 760.”

Thus we see that the police power ⅜ i “,.™ * by any means, but may be applied to any new situation, as the necessity demands; therefore,’we do not think it can be correctly said that, because dental offices and the practice of dentistry in districts zoned for single-family dwellings has not heretofore been regulated the subJect 13 wTlthout the domam of the P011^ P°wer; suW°rt of view we call attentior* to the language of the Supreme Court of Illinois in City of Aurora v. Burns, 149 N.E. 784, 788; the court said: The constantly increasing density of our urban populations, the mul-⅝⅛™* *orms ^dustry and the growing complexity of our civilization, make it necessary for the state, either directly or through some public agency by its sanction, to limit individual activities to a Sreate,f *an iormttiy With the growth-and development of the state the police power necessarily develops, within reasonable bounds, to meet the changing conditions. [State] Public Utilities Comm. v. City of Quincy [290 Ill. 360, 125 N.E. supra. The power is not circumscribed by precedents arising out of past conditions, but is elastic and capable of expansion in order to keep pace with human progress.”

The quotation from Judge Harlan (Chicago, B. & Q. R. Co. v. People of State of Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, 4 Ann.Cas. 1175) by Chief Justice Cureton, in Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 479, states the doctrine that, in our opinion, largely rules the jnstant case. Judge Harlan is quoted as saying: “Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not .taking property without due compensation, and the constitutional prohibition against the taking of private property without compensation is not intended as a limitation of the exercise of those police powers which are necessary to the tranquility ol ^^^^^^^Brdered community, nor of that over private property which for the orderly existence of ^^^^^^Fnments. * * The learned ^^^^^Bor the railway company seem to the adjudications relating to the ^BP^ower of the state to protect the jubile health, the public morals, and the public safety are not applicable, in principle, to cases where the police power is exerted for the general well-being of the community apart from any question of the public health, the public morals, or the public safety. * * * We cannot assent to the view expressed by counsel. We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.” (Citing authorities.)

The general welfare is served by the promotion of prosperity and the conservation of values. As before shown, the statute (Art. 1011c), authorizing cities and towns to enact zoning regulations, makes it the duty of such bodies to so regulate as to conserve property values, encourage the most appropriate use of property throughout the municipality; necessarily forbidding any regulation that would affect adversely the value of property, or encourage an inharmonious or inappropriate use thereof. That the authority to accomplish these purposes and intents is inherent in the police power is shown by the decisions of many courts. The Supreme Court of Wisconsin, in State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451, 454, 33 A.L.R. 269, said: “In this day none will dispute that government in the exercise of its police power may impose restrictions upon the use of property in the interest of public health, morals, and safety. That the same restrictions may be imposed upon the use of property in promotion of the public welfare, convenience, and general prosperity is perhaps not so well understood, but, nevertheless, is firmly established by the decisions of this and the federal Supreme Court. Thus in C., B. & Q. Ry. Co. v. People of the State of Illinois, supra, at page 592, of 200 U.S., at page 349 of 26 S.Ct. (50 L.Ed. 596, 4 Ann.Cas. 1175) it is said: 'We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. * * * ’ ” The same court, continuing, also said: “ * * It cannot be denied that a city systematically developed offers greater attractiveness to the home seeker than a city that is developed in a haphazard way. The one compares to the other about as a well-ordered department store compares to a junk shop. If such regulations stabilize the value of property, promote the permanency of desirable home surroundings, and if they add to the happiness and -comfort of the citizens, they thereby promote the general welfare. * * * The benefits to be derived to cities adopting such regulations may be summarized as follows: They attract a desirable and assure a permanent citizenship; they foster pride in and attachment to the city; they promote happiness and contentment; they stabilize the use and value of property and promote the peace, tranquillity, and good order of the city. We do not hesitate to say that the attainment of these objects affords a legitimate field jlor the exercise of the police power. j/He who owns property in such a district is not deprived of its use by such regulations. He may use it for the purposes to which the section in which it is located is dedicated. That he shall not be permitted to use it to the desecration of the community constitutes no unreasonable or permanent hardship and results in no unjust burden.”

Furthermore, in zoning, the aesthetic consideration is not to be ignored. Harmonious appearance, appropriateness, good taste and beauty displayed in a neighborhood not only tend to conserve the value of property, but foster contentment and happiness among homeowners. This phase of the subject was discussed by the Supreme Court of Louisiana in State ex rel. Civello v. City of New Orleans, 154 La. 271, 97 So. 440, 444, 33 A.L.R. 260, as follows : “ * „* * if the primary consideration for the enactment of an ordinance limiting the individual’s right to use his own property fis a substantial considera7 tion of public health, safety, comfort, or general welfare, considerations of taste and beauty may also enter in, and be not out of place. [Citing authorities.] If by the term '¿esthetic considerations’ is meant a regard merely for outward appearances, for good taste in the matter of the beauty of the neighborhood itself, we do not observe any substantial reason for saying that such a consideration is not a matter of general welfare. The beauty of a fashionable residence neighborhood in a city is for the comfort and happiness of the residents, and it sustains in a general way the value of property in the neighborhood. It is therefore as much a matter of general welfare as is any other condition that fosters comfort or happiness, and consequent values generally of the property in the neighborhood. Why should not the police power avail, as well to suppress or prevent a nuisance committed by offending the sense of sight, as to suppress or prevent a nuisance committed by offending the sense of hearing, or the olfactory nerves? An eyesore in a neighborhood of residences might be as much a public nuisance, and as ruinous to property values in the neighborhood generally, as a disagreeable noise, or odor, or a menace, to safety or health. The difference is not in principle, but only in degree.”- (Citation of authorities.) To the same effect, the Supreme Court of Minnesota, in State v. Houghton, 144 Minn. 1, 174 N.W. 885, 176 N.W. 159, 162, 8 A.L.R. 585, said: “Another reason is that giving the people a means to secure for that portion of a city, wherein they establish their homes, fit and harmonious surroundings, promotes contentment, induces further efforts to enhance the appearance and value of the home, fosters civic pride, and thus tends to produce a better type of citizens. It is time that courts recognized the aesthetic as a factor in life. Beauty and fitness enhance values in public and private structures. j/But it is not sufficient that the building is fit and proper, standing alone; it should also fit in with surrounding structures to some degree. People are beginning to realize this more than before, and are calling for city planning, by which the individual homes may be segregated from not only industrial and mercantile districts, but also from the districts devoted to hotels and apartments.” To the same effect, see Ware v. City of Wichita, 113 Kan. 153, 214 P. 99, from the Supreme Court of Kansas.

So, we conclude that, as authorized by the provisions of the controlling statute, the governing body of the City, in the exercise of its police power, was justified in prohibiting the use of premises in the residential' district for the practice of dentistry, and that, in prohibiting such use, the governing body was author-ized to give due consideration to the conservation of property values, the lessening of congestion in the streets, the prevention of undue concentration or overcrowding of the population, the appropriate use of land throughout the municipality, and. to the preservation of attractive homes and home surroundings.

However, appellant contends that, by express provisions of the ordinance and by condoning certain uses, the City of University Park permits the establishment and operation in the dwelling district of certain uses that are equal, if not greater, hazards' to the health, morals, safety and general welfare of the community, than would be produced by the establishment and operation of a dental office, thus the regulation discriminates against and denies to appellant equal protection of law, in violation of the Constitution.

The following are the pertinent facts: No dental office is being maintained in the dwelling district; the ordinance forbids alike the practice of the profession of dentistry and all other professions; there is only one private school in the district, which will move within a few months on the expiration of its lease; the amendments of September, 1939, and of January, 1940, permit, in the residential district, one church, chapel, library, kindergarten, public park, fire station, school or college, when and if — but only when and if — the lot or lots on which the same are located contain not less than 30,000 square feet of land, and the exterior of the structures so used are not less than 50 feet from each of the side lines of the lot; also, a telephone exchange, but not a public business office, repair or storage facilities; it also appears that the City authorities have heretofore condoned the use, by an architect, of an office in his residence, within the district, located about two miles from the residence of appellant. The above constitute the permitted uses, also the condoned use seized upon by appellant as basis for the contention that he is being discriminated against and denied equal protection of the law.

We cannot accept appellant’s view in regard to this matter. It is a matter of general knowledge that offices for the practice of dentistry and other kindred professions, in conformity to a sense of appropriateness, or fitness of things, usually are located in the business areas of cities and towns, and that it is unusual to find them in residential areas. On the contrary, public utilities, places of worship, schools and other cultural institutions, places of recreation and pleasure, usually are found accessible to the homes of the community, and, in our opinion, their location in such places makes for the convenience and welfare of the people. The lone architect, located two miles from the vicinity of appellant’s residence, it seems, has been tolerated, although we think such a business is within the terms of the amendments, both of September, 1939, and of January, 1940; but, even if not, the regulation would not, because of that fact, be invalid, as the governing body of the City was not bound to extend the regulation to all whom it could have included.

In West Coast Hotel Co. v. Parrish, 300 U.S. 379, 414, 57 S.Ct. 578, 585, 81 L.Ed. 703, 108 A.L.R. 1330, Chief Justice Hughes said: “This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach.” The same court, in United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 783, 82 L.Ed. 1234, used the following pertinent language: “Ap-pellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which veg-. etable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel 'their Legislatures to prohibit all like evils, or none. A Legislature may hit at an abuse which it has found, even though it has failed to strike at another.” And in two recent cases, New York Rapid Transit Corp. v. City of New York (Brooklyn & Queens Transit Corp. v. City of New York), 303 U.S. 573, 58 S.Ct. 721, 724, 82 L.Ed. 1024, Justice Reed, speaking for the Supreme Court, used the following language: “No question .is or could be made by the corporation as to the right of a state,, or a municipality with properly delegated - powers, to enact laws or ordinances, based on reasonable classification of the objects of the legislation or of the persons whom it ■ affects. ‘Equal protection’ does not prohibit this. Although the wide discretion as to classification retained by a Legislature often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification.” In Soon Hing v. Crowley, 113 U.S. 703, 704, 5 S.Ct. 730, 733, 28 L.Ed. 1145, Judge Field, speaking to the same point, used the following language : “The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws.” And in Francois Giozza v. Patrick Tiernan, 148 U.S. 657, 13 S.Ct. 721, 723, 37 L.Ed. 599, Chief Justice Fuller announced the same doctrine; he said: “It is enough that there is no discrimination in favor of one, as against another of the same class [authorities cited], And due process of law, within the meaning of the amendment, is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government. Leeper v. Texas, 139 U.S. 462, 11 S.Ct. 577 [35 L.Ed. 225]”.

So we overrule the contention that the regulation in question denies appellant equal protection of the law.

. Appellant contends further that, the amendments to the zoning ordinance, adopted in September, 1939, and in January, 1940, being void, because of the absence of any relation to either the health, morals, safety, or general welfare of the community, his application for the permit should have been granted under the express provisions of the amendment of September, 1938, in that he sought, and the amendment permitted, the remodeling of his residence and its use for the practice of dentistry, as an incident to the enjoyment of his home. As heretofore stated, appellees denied that appellant intended to practice dentistry simply as an incident to the use of his home, but alleged that he was misrepresenting his intentions and, if granted the permit sought,- intended and would use the premises for the practice of dentistry as a business.

This being one of the issues joined by the pleadings, in view of the judgment for appellees, we must indulge the presumption that the issue was correctly found in their favor, that is, if supported by evidence.

By a specific provision of the ordinance in question, permission was given a physician, dentist, etc., to maintain a private office in his residence, provided the permitted use was merely incidental to the enjoyment of the premises as a bona fide home, and did not involve the carrying on of a business. The Board of Adjustment that examined the facts and rejected appellant’s application for a permit, made a full report and assigned reasons for the action. Omitting the first, second and ninth paragraphs, the report in full is as follows:

“(3) The application for a permit to make structural changes in the building at 6014 Preston Road, which application was denied and not granted by the Building Inspector of the City of University Park, if granted, would permit the appellant to so alter the structure now adaptable to use exclusively as a bona fide place of residence, as to provide a large living room, usuable as a reception room, an examination room, a record room, a laboratory, an X-ray developing room, and X-ray diagnosis room, and a consultation room.
“(4) Although the appellant expresses an intent to use and occupy the premises as a bona fide home, the application for the permit to make the structural changes in the building on Lot 7 of Block E of St. Andrews Place Addition, shows that when the structural changes have been completed there will be only one room available for use as a bedroom and that room has an open west exposure and an exposure to the north which is interrupted by the garage only a few feet away.
“(5) That if the structural changes, for which authority is requested, are made, the property will not be used as a single-family dwelling.
“(6) That the use proposed by Dr. Thomas V. Connor is, in reality, a business use, and that the property, if structurally altered and used as the appellant proposes to use it, will be used for the professional business of a dentist, wherein there would be offices, accessible to the public, especially to the clients and patients of a dentist.
“(7) That the use proposed to be made of the property, by the appellant, and that use which would result from the structural changes for which a permit has been denied, are not uses customarily incident to any of the uses authorized in a 'Single-Family Dwelling" District by the Zoning Ordinances now in effect in the City of University Park.
“(8) That it is not customary for dentists to have public offices, consultation rooms, laboratories, record rooms or X-ray development compartments, or X-ray diagnosis rooms in their place of dwelling and that such use is neither essential nor incidental to the enjoyment of the premises herein involved as a bona fide home. * * *
“(10) That the appellant desires to make use of the premises in carrying on his professional career which is not an incidental use but is the principal use to which the premises would be subjected were the permit granted.”

For the reasons stated, the Board of Adjustment refused appellant’s application for the permit sought. The facts and circumstances in evidence sustain the conclusion reached by the Board, and, in our opinion, were sufficient to justify the trial court in reaching the same conclusion. So, if we should accede to appellant’s contention, that is, that the amendments of September, 1939, and of January, 1940, are void, and that he is entitled to invoke the provisions of the amendment of September, 1938, still, his good faith, in regard to the use he intends to make of the premises, having been successfully impeached, he would not be entitled to recover on that theory.

Appellant also contends that the provision of the amendment of 1938, prohibiting the carrying on of a business in the residential area, has no application whatever to his case, in that he does not propose to establish a business, but intends to practice a profession.

We cannot accept appellant’s view. The terin “business”- has no definite or legal meaning. It is of extensive use, flexible, of large significance, and when construed in statutes, its meaning depends upon the context and the evident purpose of the legislative body. 12 C.J.S., Business, pp. 761, 762. The term “business” is applicable to any particular employment, occupation, or profession followed as a means of livelihood; in this sense, the word has been defined in general as meaning calling, employment, trade, or avocation. 12 C.J.S., Business, p. 766.

So, .when it is understood that the dominant purpose of the governing body of the City of University Park was to regulate and restrict the “use of buildings, structures, and land for trade, industry, residence, or other purposes” (Art. 1011a), it is obvious, we think, that the term “business” employed, was intended to apply to all professions as well as to trades, industries, or other avocations pursued for a livelihood; and that, by permitting the homeowner to maintain an office in his residence, in aid of such pursuit, it was not intended that such use should be or become the principal, rather than the incidental, use of the premises.

It follows from what has been heretofore said that we are of opinion the trial court did not err in refusing appellant the relief sought; therefore, the.judgment below is affirmed.

Affirmed.


source: Caselaw Access Project

author: JOHNSON, Chief Justice.

license: Public Domain

text:
    PAGE v. ROGERS et al.
    No. 5623.
    Court of Civil Appeals of Texas. Texarkana.
    June 6, 1940.
    Rehearing Granted June 27, 1940.
    White, Taylor & Gardner, of Austin, for plaintiff in error.
    Wellborn & Wellborn, of Henderson, and McCall & Dawson, of Longview, for defendants in error.
   JOHNSON, Chief Justice.

J. E. (Gene) Rogers filed this suit in the County Court'of Rusk County against Holland Page, a resident of Travis County, and B. G. Byars, a resident of Smith County, to recover damages to plaintiff’s automobile as the result of defendants’ alleged negligence. ■ In substance .the petition alleges that while repairing a bridge in- the Henderson-Longview highway, in Rusk County, -under contract with said county, defendant Page had placed obstructions in the highway without placing warning signs or flagmen to warn users of the highway of said dangerous obstructions; that plaintiff was traveling on said highway in his automobile; that behind him traveling in the same direction was the heavily loaded truck of defendant Byars; that in approaching the bridge the view was obstructed by a hill near the bridge ;• that upon -coming over the hill and within a short distance of the bridge, plaintiff was compelled to make a sudden stop to prevent crashing into the said obstructions; whereupon plaintiff’s car was struck from the rear and caused to be wrecked by Byars’ truck.

Defendant Page filed in statutory form his plea of privilege to be sued in the county of his residence, and subject thereto, his answer. Defendant Byars answered but filed no plea of privilege. Plaintiff controverted defendant Page’s plea of privilege, specially alleging that this suit was based upon an offense or trespass committed in Rusk County, and also attached to and made a part of his controverting affidavit his petition. The plea of privilege was tried along -yvith the issues of the case. Upon the verdict of a jury judgment was entered that plaintiff recover as against Page the sum of $427, but that plaintiff take nothing against Byars. Page has appealed.

Appellant contends that error was committed in overruling his objections to special issue No. 1, because the question submits two issues in one. It reads as follows : “Special Issue No. 1: Do you find from a .preponderance of the evidence, if any, that the employees of Holland Page blocked the highway at the time and place in question without setting out flags or giving any warning to the approaching automobiles of such .blockade of the road ?”

Appellant's contention is sustained. Two controverted issues are contained in the one question. R.S. Article 2189, requires submission of the issues separately. 41 Tex.Jur. 1100, Sec. 274.

Appellant also complains of the trial court’s action in overruling his objections to the court’s instructions following special issue No. 19. The question, and the court’s instructions following the question, and the jury’s answer read as follows: “Special Issue No. 19: Do you find from a preponderance of the evidence, if any, that the collision was not an unavoidable accident P Answer: It was not an unavoidable accident or it was an' avoidable accident. Answer : It was an unavoidable collision.” This contention of appellant is also sustained. As framed, the instructions do not authorize the jury to answer the question in either one or the other of two ways, but restricts the jury to an affirmative answer; that is to say, an answer framed in either one of the two ways directed by the, court means one and the same thing, for an accident that is “not unavoidable” is the same as an accident that is “avoidable,” therefore the jury violated the instructions of the court when they answered, “It was an unavoidable collision.” Had it been rendered in accordance with the jury’s answer, the judgment would have been for defendants. The issue of unavoidable accident is one at the hands of which justice has suffered much punishment. Even when submitted in.approved form it is more of a puzzle than a practical working tool for the trial court'. But it is in our jurisprudence and this court is not authorized to take it out. In view of another trial of this case, we call attention to the case of Gulf, C. & S. F. R. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795, in which Judge Taylor of the Commission of Appeals has suggested some instructions to be given in connection with the submission of issue of unavoidable accident.

The judgment of the trial court will be reversed and the cause'remanded.

On Motion for Rehearing.

Upon further consideration of the record herein, we are of the opinion that we were in error in our judgment of June 6th, 1940, whereby it was directed that the judgment of the trial court be reversed and the cause remanded as to both of the appellees. Such judgment is set aside, and judgment is now here rendered reversing the judgment of the court below in so far as it is against Holland Page, and the cause will be remanded for a new trial in so far as it pertains to the controverted issues as between J. E. (Gene) Rogers and the said Holland Page.

The judgment of the trial court that plaintiff take nothing as against B. G. By-ars is affirmed.


author: SPEER, Justice.

text:
    PASCHALL et al. v. RENSHAW et al.
    No. 14147.
    Court of Civil Appeals of Texas. Fort Worth.
    July 12, 1940.

      Jennings C. Brown and H. G. Woodruff, both of Decatur, for appellants.
    M. W. Burch, of Decatur, and Chas. A. Baker and Mack & Mack, all of Fort Worth, for appellees.
   SPEER, Justice.

This is' an appeal from an order of the District Court of Wise County, granting a writ of mandamus against the members of the Commissioners’ Court of that County-

R. R. Renshaw, -Horace Renshaw and Federal Land Bank of Houston, as re-lators, hereinafter referred to as appel-lees,' applied to the District Court for the writ against Harlan Brown, County Judge of Wise County, R, H. McClung, Ed L. Paschall, T. F. Cook and Abe Birdwell, the latter four being the members of the Commissioners’ Court of Wise County, Texas, and Frank H. Clay, County Clerk and ex-officio clerk of the Commissioners’ Court, they being respondents in the trial court and will be referred to by us as appellants.

Appellees’ petition alleged that they had theretofore recovered a judgment in a condemnation suit against Wise County, a political subdivision of the State, in the County Court of Wise County, for $4,535, with interest thereon at six per cent per annum, from November 15th, 1938;, that the judgment was in all respects valid and a subsisting obligation owing by the county. That Wise County had excepted to and had attempted to perfect an appeal from the judgment upon which appellees’ claim is based, but failed to file a transcript in the Court of Civil Appeals, and upon motion of appellees, the Appellate Court had affirmed the judgment on certificate.

Allegations were made that subsequent to the affirmance on certificate, mandate had been returned to the County Court, and appellees presented to the Commissioners’ Court their verified account in the amount of their judgment, accompanied by a certified copy of the judgment of the County Court and the mandate from the Court of Civil Appeals, requesting the Commissioners’ Court to allow the claim as a second class one, and to issue the County’s warrant on the treasurer for its 'registration and 'payment out of any funds available for said purpose. That at a regular meeting of the Commissioners’ Court, three members were present, they constituting a quorum; two of the commissioners voted to disallow the claim and the issuance of a warrant for its payment, and one voted to the contrary. That an order was entered on the minutes of the court in keeping with the vote cast by a majority of the Commissioners’ Court present and voting.

It was further averred by appellees that said judgment was in all respects valid, subsisting and unsatisfied, and that in their verified claim filed with the Commissioners’" Court, they stated all the facts and circumstances reqttired by law to perfect the verification of said claim; that the claim was disallowed and issuance of warrant to the treasurer was denied by the Commissioners. They prayed for a writ of mandamus against the appellants, commanding them to perform the ministerial function of allowing said claim, to issue warrant on the treasurer therefor as a second class claim to be paid out of any funds available for that purpose.

Appellants’ answer consisted of pleas in abatement, general-demurrer, special demurrers, general denial and many special pleas. The answer consists of twenty-one pages, together with twenty pages of exhibits. The exhibits appear to be, (1) the petition of appellants here, to the County Judge of Wise County, to appoint commissioners to assess and award damages to ap-pellees for a strip of land to be taken for public highway purposes; (2) the order of appointment, the qualification of the commissioners, a report of their actions therein and the award of damages, all filed with the said County Judge; (3) the answer of appellants to objections of appel-lees (condemnees in the County Court) to the award of the commissioners, and (4) the judgment of the County Court in the condemnation proceedings, wherein appel-lees here recovered the sum which they asked the Commissioners’ Court to allow and order paid.

The two pleas in abatement presented by appellants were, (1) relators (appellees) sought a writ commanding the respondents (appellants) to allow and order paid a judgment against Wise County, when said County was not a party to the suit in which the judgment was rendered. The judgment was therefore void and the relief prayed for should not be granted; and (2) because appellants had filed suit in the County Court of Wise County, cause No. 2899, directly attacking the validity of the judgment entered by that court in cause No. 2871, in which the writ herein-applied for seeks to have allowed and paid; that suit being pending and undisposed of, the District Court has no jurisdiction to enforce payment of the judgment so attacked.

Among the special exceptions urged by appellants which were overruled by the court, were such as, the petition was insufficient because it disclosed that they sought the collection of a judgment against Wise County in a case to which said County was not a party; and because the petition did not disclose that appellees had no. adequate remedy at law.

Appellants’ special pleas in defense, as against the relief sought by appellees in the instant suit, were substantially: (1) the duties enjoined upon the Commissioners’ Court of Wise County was to audit and investigate claims presented and to determine whether or not they were such as should be paid; to either allow or disallow them, dependent upon the result of said investigation; that the decision reached by the Commissioners’ Court was entered upon its minutes and became a judgment and decree of a court created by law, and did not constitute a ministerial act; that the judgment and decree thus arrived at could not be reviewed or altered by the District Court in a mandamus proceeding, as was attempted in the case at bar; but the only means by which such a judgment could be reviewed was upon appeal therefrom; (2) the claim of appellees which they sought to have allowed, classified and ordered paid, was based upon a judgment rendered by the County Court of Wise County in cause No. 7871, and was void, because, (a) the court, in which the judgment was rendered, was without jurisdiction in that the objections of appellees (condemnees in the suit) to the award of the special commissioners were filed in the office of the County Judge and not with the County Clerk of Wise County; (b) Wise County was not a party to the condemnation proceedings in cause No. 2871, and no valid judgment could he rendered against it, as was attempted to be done in that cause. Prayer was that the relief sought be denied.

The instant case was tried to the court without a jury. The writ of mandamus was granted, to which action of the court exception was taken and this appeal was perfected by supersedeas bond.

No statement of facts is before us. The judgment recites that the pleas in abatement and all general and special exceptions were overruled. Insofar as the pleas in abatement are concerned, in the absence of a statement of facts, there is nothing before us for determination. Vilbig v. Faison, Tex.Civ.App., 296 S.W. 669, writ dismissed.

As we view this rather complicated and complex record, in which are findings of facts and conclusions of law by the trial court, there is little we can do about the matters complained of by appellants, except as hereinafter pointed out.

This action was instituted by appellees for the extraordinary remedy, of the writ of mandamus to require appellants to allow, classify and issue a warrant for payment out of any available funds, a verified account in the form- of a judgment rendered by the County' Court in a condemnation proceeding, held in Wise County. The judgment was by a court of constitutional and statutory power to hear and determine matters in condemnation. The judgment is plead haec verba by both parties. By its.terms, after reciting appearances, disposition made of special pleas, the special issues submitted and the jury’s answers thereto, it further states: “It is therefore ordered, adjudged and decreed by the court that the defendants (appellees) R. R. Renshaw, Horace Renshaw and the Federal Land Bank of Houston, do have and recover judgment against the plaintiff, Wise County, in the State of Texas, the sum of Four Thousand Five Hundred Thirty Five ($4535.00) Dollars, with interest from November 15th, 1938, at the rate of six (6) per cent, together with all costs in this behalf expended.”

The settled rule in such cases seems to be that a person applying for the writ must plead specifically all facts entitling him to the relief sought against an officer, and that all matters must be negatived that the pleader could reasonably anticipate that the one against whom the writ is sought could properly plead or prove in defense of the issuance of the writ. If the applicant fails to so plead a general demurrer should be sustained, and, of course, this would defeat the writ. Houston Tap & B. Railway Co. v. Randolph, 24 Tex. 317; Bledsoe v. Railroad Co., 40 Tex. 537; Watkins v. Huff, Tex.Civ.App., 63 S.W. 922; Johnson v. Elliott, Tex.Civ.App., 168 S.W. 968, writ refused; City of El Paso v. Carroll, Tex.Civ.App., 108 S.W.2d 251, writ refused. In the case of Watkins v. Huff, supra, test was made of the pleading by determining if the petition was subject to the general demurrer. In the original opinion, the petition was held to be bad as against the demurrer, but on motion for rehearing it was held that a general allegation that the contract (which was sought to be enforced) was in all things regular and legal, was good as against the general demurrer and a sufficient basis for the issuance of the writ of. mandamus.

In the instant case there were allegations by appellees that they “recovered at a regular term of County Court of Wise County, Texas, a valid, subsisting and final judgment against Wise County, Texas, in cause No. 2871 * * ;|!.” That condemned attempted to appeal therefrom, but did not file in the Court of Civil Appeals a transcript, and upon application of con-demnees, the judgment of the trial court was affirmed on certificate; that a certified copy of the judgment and the mandate of this court was attached to the account and all verified when presented for allowance. We think these allegations were sufficiently certain and specific, upon which to base a judgment granting the writ, if the evidence warranted it.

The finding of facts by the court is conclusive that there must have been some evidence adduced before him. The judgment rendered recites that the court heard the pleadings and the evidence. The finding of facts by the court is challenged by -appellants, but in the absence of a statement of the testimony offered, we are in no position to pass upon the contention made. It is almost axiomatic that when the evidence is submitted to the court in lieu of a jury, and no statement of facts is presented for review, the presumption prevails that the court found the facts to be such as would support the judgment entered.

Several of the twenty-five propositions urged by appellants, in one form or another, contend that the Commissioners’ Court, being a constitutional body, sits in a quasi judicial capacity, and some of its duties are to audit accounts which may be presented against the county; that its actions thereon become judicial functions and can only be reviewed by an appeal therefrom and cannot be determined in a mandamus proceeding, as was attempted to be done in the instant case.

It cannot be successfully denied that many of the functions of the Commissioners’ Court do involve a type of judicial determination, and when fairly arrived at, its discretion, as evidenced by its orders and decrees, is as binding as judgments of other courts acting within their respective jurisdictions.

•Article V, Section 8, of the State Constitution, Vernon’s Ann. St., among other things, provides: “The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law; and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.”

The Legislature has made no provisions of law by which appeals may be perfected from a Commissioners’ Court to the District Court. The only condition of law that we are able to find by which such supervision may be exercised by the District Court is a direct proceeding for that purpose. The claim presented by appellants to the Commissioners’ Court was one consisting of a judgment entered by a court of competent jurisdiction. There is no discretion left for the Commissioners’ Court in determining whether or not the claim is just and subject to payment. It becomes the official duty of that court to classify, allow the claim and cause it to be registered by the treasurer for payment. Article 1575, R.C.S., reads: “No execution shall be issued on any judgment against any county. When a judgment is rendered against a county the commissioners court of such county shall settle and pay such judgment in like manner and pro rata as other similar claims are settled and paid by said court.” Article 1626 provides how claims shall be classified. Section 2 of that article covers the class of claims asserted by appellees. Their request to the Commissioners’' Court was for that classification.

In Kaufman County et al. v. Gaston et al., Tex.Civ.App., 273 S.W. 273, 274, writ refused, the court had a similar question to that under discussion here. It was there said: “Where the commissioners’ court has refused to have the clerk issue a warrant in payment of a judgment or claim which has been established or approved against the county, a writ of mandamus will lie to compel them to issue said warrant, : 'nee it is a ministerial act which they arc required to perform, and which must be done before the county treasurer is authorized, to register or pay the warrant. Denman v. Coffee, 42 Tex.Civ.App, 78, 91 S.W. 800; Brown v. Ruse, 69 Tex. 589, 7 S.W. 489; Cobb & Gregory v. Parker County (Tex.Com.App.) 236 S.W. 1108.” To the same effect are White v. Calaway, County Judge, Tex.Civ.App., 282 S.W. 642, writ refused; Kirby v. Transcontinental Oil Co., Tex.Civ.App., 33 S.W.2d 472, writ refused. To our mind the last cited case goes even turther than either of the other cited cases. There, the Commissioners’ Court had raised an assessed valuation on property while acting as a board of equalization. The owner brought suit in the District Court to have the order of the Commissioners’ Court set aside. In defense, it was contended that the District Court was without jurisdiction, absent an appeal from the decree of the Commissioners’ Court. It was held that since no provision of law had been enacted whereby the District Court could review the acts of the Commissioners’ Court by a direct appeal, under the constitutional provision above referred to by us, plaintiff’s remedy was by a direct proceeding in. the District Court.

From what we have said and the authorities cited, we think the exceptions, even though general in their nature, were properly overruled. The petition of ap-pellees being based on a judgment against the county, it is clear that under. Article 1575, quoted above, they could not have execution against the county and their only remedy was one of mandamus to require the Commissioners to perform the ministerial .duty sought. The judgment upon which appellees’ claim was based shows upon its face, as pleaded by all parties, that it was against- Wise County. In the absence of evidence impeaching the judgment, it must be found to be correct; hence there was no error in the trial court overruling the exception that Wise County was not a party to the suit in which the judgment was rendered.

Nor do we see any merit in the group of propositions referred to which contend that the acts of the Commissioners’ Court in disallowing the claim of appel-lees was a judicial function r.eviewable only-on appeal therefrom. We hold that since the claim was for a judgment against the county, it became the duty of the Commissioners’ Court to allow the claim, classify it and cause a warrant to issue against the treasury to be paid out of funds available for that class of claim. These duties were ministerial and the district court had the power to order them performed. Kaufman County v. Gaston, supra.

Another group of propositions presented by appellants should be considered by us. They raise the question that the judgment in the County Court in cause No. 2871 was void, and that its invalidity is apparent upon its face; in that it discloses a lack of jurisdiction in the County Court to hear and determine the issues involved. That part of the judgment relied upon by appellees to avoid it recites that appellants (condemnees) “having excepted to the award of the commissioners heretofore filed on the 5th day of November, 1938, with the county judge of Wise County, Texas, by filing of their objections thereto in the office-of the County Judge of Wise County in the time and manner required in law * * ⅜.” Put another way, it is contended that because the judgment shows that condemnees filed their objections to the award of the special commissioners, in the office of the county judge, and not with the county clerk, the judgment discloses that the court was without jurisdiction to hear' the condemnation proceedings.

. !Aside from the reference just máde to a judgment in the County Court, this record contains references to other judgments entered by the County Court in connection with the condemnátion proceedings, as well also a suit now pending in that court, attacking .directly the judgment in cause No. 2871. These things prompted us in the early part of this opinion to refer to the record as.a complex one.

In the absence of an order consolidating. all of .the suits referred to, we must confine ourselves to a consideration of only the proceedings had upon the trial of the instant .case. Such records as have been made or may be made in other cases can hav-e no bearing upon this appeal. State v. Savage, 105 Tex. 467, 151 S.W. 530.

There being no statement of facts proved upon the trial, we are without light upon the subject of whether or not Article 3266' and the various sections thereof were strictly complied with. The trial court in this case entered judgment for the mandatory writ to issue commanding appellants to set aside their former order disallowing the claim of appellees and to allow the claim based on the judgment against Wise County, to classify the claim and cause the warrant to be issued upon which payment would be made. The County Court had exclusive constitutional and statutory power and jurisdiction to try the condemnation proceedings in cause No. 2871 and enter judgment therein. The granting of the writ of mandamus in this case was equivalent to a finding by the court that the judgment upon which ap-pellees’ claim was based was valid and binding. We must presume that there was evidence- before the court to support the judgment entered. The recitation in the judgment that condemnees filed their objections to the Commissioners’ award in the office of the County Judge does not negative a showing or even evidence that they were also filed with the County Clerk. The statute (Art. 3266, sec. 6) does not indicate where such objections shall be filed.

The controversy in the condemnation proceedings was properly triable in the County Court in cause No. 2871. That being a court having exclusive jurisdiction in such matters and having entered the judgment relied upon by appellees for the claim presented, there is nothing in the record of the case at bar to show that it did not acquire jurisdiction of the parties and subject matter. It is true that appellants alleged a want of jurisdiction in that court; the grounds alleged would require proof to establish the facts relied upon. While upon the other hand, if it was incumbent upon appellees to prove the validity of the judgment, we cannot say the proof was not made, in the absence of a statement of the evidence offered. The court entered judgment reciting that he had considered the pleadings and evidence, upon which he entered the judgment before mentioned.

Irrespective of how the objections of appellees to the Commissioners’ award found their way to the hands of the County Clerk, this much is certain, the suit was filed and docketed as cause No. 2871. The record is silent as to when this was done. We know it was prior to the time appellants filed their motion on April 4th, 1939, in that numbered cause, asking the County Judge to enter the award of the Commissioners as the judgment of the court. This motion was denied by the court and cause set down for trial.

We are not privileged at this time to review the County Court case in which appellees’ property was sought to be condemned, and by which it was taken and appropriated for highway purposes. That case is not before us; only the judgment there entered is incidental to the case under consideration. We do not think the judgment is such as to negative the jurisdiction of the court that entered it, and thereby render it void.

The policy of our law in matters of eminent domain is to require those enjoying that privilege, to pay the owner for the value of his property appropriated, through the means provided by law. We are not inclined to search for an irregularity or technical excuse to thwart that policy and purpose. If, as in this case, a fair interpretation of the somewhat ambiguous judgment entered can reasonably be given to the language used, the judgment of the court should be upheld and not stricken down.

Complaint is made by appellants in one proposition that the court erroneously taxed the cost of suit against them individually. In another proposition it is contended that the court should not have taxed the costs of suit against Ed L. Paschall, R. H. Mc-Clung and Abe Birdwell.

Article 2066, R.C.S., provides that the court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided in the chapter of which that article is a part.

The record in this case shows conclusively that when appellees’ claim was presented to the Commissioners’ Court, Harlan Brown, the County Judge, and three county commissioners, Cook, Birdwell and McClung, were present; Paschall was absent. McClung and Birdwell, being a majority of the three members present, voted to disallow the claim; Cook voted to allow it. The pleadings show that if all members of the court had been present and a tie vote had resulted, Judge Brown would have cast the deciding vote to allow the claim. The judgment entered assigns these and other reasons, which we think sufficient, for having taxed the costs in the case against Paschall, McClung and Bird-well. Taxing the costs under the above statute is largely a matter of discretion with the trial court, when reasons therefor are shown in the record, and unless he abuses that discretion we should not disturb it. Hays v. Tilson, 18 Tex.Civ.App. 610, 45 S.W. 479; Morrow v. Terrell, 21 Tex.Civ.App. 28, 50 S.W. 734; Cox v. Patten, Tex.Civ.App., 66 S.W. 64; Texas & P. Ry. Co. v. Davis, Tex.Civ.App., 66 S.W. 598; Beaumont Rice Mills v. Bridges, 45 Tex.Civ.App. 439, 101 S.W. 511, in each of which cases the writ of error was refused.

Officers, who are ordered by a writ of mandamus to perform an official duty, are liable individually and personally for the costs incurred in procuring the mandatory order; and costs will not be taxed against them in their official capacity unless they show they have funds in their hands, as such officers, with which to pay. 28 Tex.Jur. sect. 72, p. 651.

The writ of mandamus was properly issued and no error is shown by the manner in which the costs were taxed. The judgment of the trial court should be, and is, therefore, affirmed.


author: BLAIR, Justice.

text:
    SWAIM et al. v. COX et al.
    No. 8951.
    Court of Civil Appeals of Texas. Austin.
    July 24, 1940.
    Walter Miller and James K. Evetts, both of Belton, for appellants.
    Cox & Brown, of Temple, for appellees.
   BLAIR, Justice.

Appellant, Mrs. Elizabeth Willerson Swaim, joined pro forma by her husband, sued appellees, Mrs. Pearl Cox and her husband, in the statutory form of trespass to try. title to establish the boundary line to a 6-acre tract of land, and also asserted title thereto under the 3, 5, 10 and 25-year statutes of limitations. Appellees answered by a plea of not guilty, and by cross-action asserted title to the 6-acre tract under the 3, 5, 10 and 25-year statutes of limitations. A trial to the court without a jury resulted in judgment for appellees for title and possession of the land, and decreeing its true boundary line to be as described in the deed to appellees; hence this appeal.

The facts as to the titles of the respective parties are as follows:

Wm. H. -Carroll and his wife are the agreed common source of title. By deed dated October 14, 1874, filed for record October 16, 1874, they conveyed the 6-acre tract to R. A. White and others, describing it by metes and bounds. Fourteen years later Carroll and wife, by deed dated October 13, 1888, filed for record March 15, 1919, conveyed to R. A. Grimes a tract of land described as follows: “All that certain tract or parcel of land situate, lying and being in the County of Bell, State of Texas, more particularly described ag follows, to-wit: It being about 12 miles N. of the town of Belton in Bell County, State of Texas, it being 417 acres, more or less, excepting, 40 acres sold off to Thomas Nowlin on the N. side of said sur. Also 12 acres, more or less sold to Silas Baggett now owned by R. T. Willerson and also 8 acres sold to the widow White and deed to her heirs; said land is situated west of Leon River and S. of Owl Creek known as a part of the R. P. Forbes one-third of. a league.”

By deed dated September 17, 1901, filed for record September 18, 1901, R. A. Grimes and wife conveyed to R. T. Wilier-' son a tract of land described, as follows: “All the S. half of the R. P. Forbes ⅛' League, S. of Owl Creek and' W. of Leon River, except 40 acres sold to Thomas Nowland on the N. end, also 12 acres sold to Silas Baggett, now owned by R. T. Wil-lerson, and 8 acres sold to Mrs. White and deeded to her heirs; being 357 acres more or less.”

In 1919, R. T. Willerson employed S. D. Hanna, the county surveyor, 'to make and file field notes to the tract of land which he had purchased from Grimes and wife; which field notes the trial court found were erroneous as to the boundary line between the land of Willerson and the 6-acre tract which adjoined the Willerson tract on the north. After the death of R. T. Wil-lerson his daughter, appellant, acquired title to his land under a deed from his heirs, using the same erroneous Hanna field notes for description of the land.

The Nowlin 40-acre tract, specifically excepted from the aforementioned conveyances, has been, by mesne and regular chain of conveyances conveyed to the present owners of the Nowlin tract; all of which conveyances have been duly recorded. -The 6-acre tract in suit, which was the 8 acres conveyed to R. A. Cox and others in 1874, specifically excepted from the above-mentioned conveyances, has been by mesne and regular chain of conveyances conveyed to appellees; which "conveyances have been duly recorded.

Under the above facts, the trial court found that the record title to the 6-acre tract was in appellees, and having also found under the facts that neither of the parties had title thereto under any statute of limitation, accordingly rendered judgment for appellees upon their record title, it being senior and superior to appellant’s claim of title under the general grants which specifically excepted the 6-acre tract.

By five propositions, appellant makes two contentions for a reversal of the judgment of the trial court. The first contention is that the evidence established a matured limitation title in favor of appellant under both the 3 and the 10-year statutes of limitations, which could not be defeated by the record title of appellees.

The limitation title sought to be established by appellant began to run in 1898 when her predecessor in title, R. A. Grimes, enclosed about one-half of the fi-acre tract with his adjoining, larger tract by a fence. This fence was sold either by R. A. Grimes or R. T. Willerson to C. N. Knight, who took it down some time before 1905; and in doing so he cut down a chestnut-oak, bur-oak, or pin-oak tree that marked the boundary line of the 6 acres, and about which witness testified that “Uncle Bob Grimes” complained, because it was a bearing tree. From these facts the trial court could have concluded that the boundary line fixed by the fence was abandoned and could have also concluded that in complaining of the cutting down of the oak tree he recognized the corner described in the deed to the 6-acre tract. There was other evidence to the effect that in 1907 some sort of survey, not by an official surveyor, was made of the Willerson tract for the purpose of making a contract to cut the timber off of the Willerson tract; and that it was cut up to the line where the old fence built - by R. A. Grimes was situated.

The only other evidence on the adverse claim was the fact that S. B. Hanna surveyed the land for Willerson in 1919, and made field notes therefor which attempted to enclose 407 acres of land instead of 357 acres more or less, called for in the deed; and in supporting the survey- or’s field notes there was an affidavit purporting to have been signed by R. T. Wil-lerson and J. E. Trimmier, Trimmier having purchased the 6-acre tract in 1911, to the effect that such parties had agreed upon a certain dry branch or hollow as a division line between the 407 acres of land claimed by appellant and the 6-acre tract claimed by appellees. ' The trial court found that no such boundary agreement was made between these parties, which matter will be later adverted to. On the other hand, several witnesses testified that they had known the 6-acre tract for a long number of years, and that they had never heard of anyone other than the owners of it claiming title to the disputed strip. Another witness testified that R. T. Willerson also complained of the cutting down of the oak tree, which he claimed was a corner tree, and which is the tree called for in the field notes to the 6-acre tract. J. E. Trim-mier testified that he purchased the 6-acre tract in 1911, his deed being then recorded; that he had known it ever since; that there was never any fence along the disputed strip since 1911; that he never recalled any fence along that line even before 1911. During all the time he owned it, no question was ever raised about its true boundary as being where it is claimed to be by appellees. The 6-acre tract was fenced by appellees in 1931, but this suit was filed before the 3-year period had run in their favor. This evidence sustains the finding and conclusion of the trial court that neither party had title under any statute of limitation.

Appellant does not brief any claim of title under either the 5 or the 25 years’ statutes of limitations; but contends that the facts would establish a limitation title in her under both the 3 and the 10 years’ statutes of limitations. Vernon’s Ann.Civ.St. arts. 5507, 5510. Obviously, the 3-year statute is not applicable, because appellant claimed under the general grant or description in the deeds to her predecessors in title, which deeds specifically excepted the 6-acre tract in suit from the conveyances; and in consequence appellant did not claim under color of title, deed, or instrument of title. Nor did appellant show either adverse or continuous possession under the 10-year statute (Art. 5510). The only adverse possession was the time a part of the 6-acre tract was under fence from 1898 until 1901. Grimes fenced it in 1898, sold the fence to Knight, who tore it-down apparently before Grimes sold to Willerson in 1901, because Knight testified that “Uncle Bob Grimes” complained about his cutting the oak bearing tree at the time he tore the fence down. The only other act of possession was the testimony of the lease and cutting of timber in 1907, which ■was only nine years after the fencing, ■claimed as the beginning of the lirpitation period. These isolated adverse claims and possession are not the peaceable and adverse possession contemplated by Art. 5510 and Art. 5515, which states'that “‘adverse possession’ is an actual and visible appropriation of the land * * At most, .appellant’s claim of limitation title was predicated upon conflicting evidence, which the trial court, trying the case without a jury, concluded against her.

Appellant further contends that an affidavit purporting to have been made by R. T. Willerson and J. E. Trimmier, the immediate predecessors in title of appellant and appellees, respectively, established the boundary line of the 6-acre tract by agreement at the place now contended for by appellant; and that since this instrument was recorded in 1919, it could not be attacked nor disregarded by the court in absence of a plea of non est factum.

This claim is based in part upon the survey of appellant’s land in 1919 by Hanna for the purpose of making and filing field notes, the land having theretofore been conveyed by general description. These field notes were found by the trial court to be incorrect; and they are clearly so, particularly with respect to the boundary line of the Nowlin 40-acre tract, and the 6-acre tract, which had its beginning point at a Nowlin corner, and both of which tracts were specifically excepted from the conveyances to and from appellant’s predecessors in title. The Hanna field notes made and filed by Hanna ran across and cut off a part of the 40-acre tract, and across and cut off a part of the 6-acre tract; and the trial court found that Hanna mistakenly and erroneously stated in his affidavit and field notes that “I further certify that the 6 acres described as having been sold' off the northeast corner of said lower south half of said one-third league to Mr. Trimmier was located by making a dry hollow or ravine that empties into Owl Creek and extending to the head of said hollow the division line between said six acres alid this tract by agreement between Mr. Trimmier and Mr. R. T. Willerson”; because “Mr. Trimmier did not agree to any such division line as reported by the County Surveyor in said instrument above referred to.” With respect to the purported affidavit, J. E. Trimmier testified, and the trial court found, in effect that Trim-mier signed the affidavit to the Hanna Survey in blank; that although the notary’s certificate recited that affiant acknowledged the affidavit, he did not do so, and never appeared before the notary and acknowledged same; and that appellees were not estopped by said affidavit, and that neither party was bound by it. The evidence amply sustains this finding and conclusion of the trial court.

Nor was this testimony objectionable because no sworn plea of non est fac-tum was filed under the provisions of Art. 2010. Appellant’s petition was in statutory form of trespass to try title, and appellees’ answer was a plea of “not guilty.” Arts. 7364, 7366, 7372, and 7373. The authorities are uniform in holding that in a suit in statutory form of trespass to try title and where the defendant pleads “not guilty,” he is entitled to set up, assert and prove any defense or right which would defeat the recovery of possession by plaintiff, except limitation. McKamey v. Thorp, 61 Tex. 648; Texas Creosoting Co. v. Hartburg Lbr. Co., Tex.Com.App., 16 S.W.2d 255; Grundy v. Greene, Tex.Civ.App., 207 S.W. 964; Salazar v. Ybarra, Tex.Civ.App., 57 S.W. 303; Harrison v. MacGregor, Tex.Civ.App., 112 S.W.2d 1095; Tanton v. State Natl. Bank of El Paso, Tex.Civ.App., 43 S.W.2d 957, affirmed, 125 Tex. 16, 79 S.W.2d 833, 97 A.L.R. 1093.

The judgment of the trial court is affirmed.

Affirmed.


author: HALL, Justice.

text:
    BROWN et al. v. BENEFIELD.
    No. 5654.
    Court of Civil Appeals of Texas. Texarkana.
    July 11, 1940.
    Rehearing Denied Aug. 1, 1940.
    G. W. Lindsey, of Jefferson, for appellants.
    Bibb & Bibb, of Marshall, and Shelburne H. Glover, of Jefferson, for appellee.
   HALL, Justice.

This is a suit in trespass to try title instituted by Wm. Brown, appellant, against J. H. Benefield, appellee, for title and possession of 29½ acres of land located in Marion County. Appellant alleged: “ * * * that during the early part of the year 1927, plaintiff and defendant entered into an oral agreement, or contract of sale, by the terms of which it was mutually agreed, and understood by plaintiff and defendant that defendant would sell plaintiff the land in his petition described on a credit for the agreed sum of Four Hundred Dollars ($400.00). Said amount to be evidenced by-three Vendor’s Lien Notes, to be executed later, in favor of defendant. It was also agreed and understood that plaintiff was. to immediately go into possession of said land and improve it at his own expense;, that just after, and following said agreement, and in pursuance thereof, plaintiff entered upon and took possession of said land and began clearing same for cultivation, and building fences thereon, and out houses,, and built and erected a dwelling house at a considerable expense, for himself and family to live in, and made permanent improvements on said land, all with his own-efforts and expense and without cost or expense to defendant; that as soon as said house was completed, plaintiff moved into, it with his family, and cultivated and farmed said land during that year, 1927.”' Appellant alleged further that in the fall of 1927 lxe paid $65 to appellee as part of the purchase price of said land and gave hÍ9 vendor’s lien notes for the balance; that at the time of the execution of said notes appellee executed and delivered to appellant a “vendor’s lien deed to said land which was left with appellee for safe keeping. * * * ” Appellant also alleged that ap-pellee in 1932 dispossessed him, took possession of said land, and “has occupied and used said premises under such unlawful possession since said above date * * * ” to appellant’s damage in the sum of $11,000. G. W. Lindsey, attorney for appellant, and as assignee of Wm. Brown of an undivided one-half interest in said land, was permitted to intervene. The allegations in said intervention are similar to Brown’s and the relief sought is the same.

Appellee in his brief summarizes his answer as follows: “Defendant answered by general denial, plead the several statutes of limitation, including the four-year statute of limitation, and alleged that he made a parol contract with plaintiff, under the terms of which he agreed to sell the land to plaintiff, but further alleged that the plaintiff wholly failed to perform the contract or pay the purchase price, and that by reason thereof the defendant declared the parol contract rescinded and of no further force or effect, and took possession of the land and had had possession of the same for more than five years after the rescission of said parol contract of sale and before this suit was filed.”

Trial was to the court without a jury, which resulted in judgment for appellee.

By propositions 1 to 4, inclusive, appellants contend that the trial court committed error in finding as a fact that ap-pellee rescinded the oral contract for sale of said land made with Brown in 1927, which rescission occurred in 1932, and in the conclusions of law based thereon to the effect that Brown through failure to perform said contract had lost his interest in the property in controversy. The above contention sets forth a controlling issue on this appeal. We think it is un-controverted in this record that appellants’ right to this land is based upon oral contract for the sale thereof. It is also undisputed that appellant Brown was to pay a certain amount of money in cash and make notes for the balance of the purchase price before he was to receive a deed to the land. It was appellants’ contention, and Brown so testified, that he paid the $100 due in the fall of 1927, executed three notes for the balance of the purchase price, and received from appellee a deed to the land. The deed, Brown testified, he returned to appellee for safe keeping. Brown "testified further that appellee repossessed the land while he was temporarily absent therefrom. Appellee testified that no deed to this land was delivered by him to Brown; that Brown failed to pay the entire cash payment of $100 according to the oral contract; that he abandoned the premises in the early part of 1932, at which time ap-pellee rescinded the contract of sale and repossessed the land. Appellee’s possession was uninterrupted from the early part of 1932 until the filing of this suit in November 1938. It is undisputed that appellant Brown has lived only a short distance from this land during this period of time and had actual knowledge of appellee’s act of rescission in repossessing said land. The trial court’s findings of fact Nos. 1, 2 and sub-section “c” thereunder, 4, 5, 6, and 11, are:

“1. I find that the sole and only claim of the plaintiff and intervenor to the land in controversy is based upon a parol contract of sale of such land between the plaintiff, William Brown, and defendant, J. H. Benefield.
“2. I find that such parol contract for the sale of the land in controversy was made sometime in the spring of the year 1928, and that the material terms and provisions thereof were as follows:. * * *,
“(c) ' That said parol contract among other things provided that the plaintiff should immediately take possession of the land and cultivate the same, and if he desired to do so improve the same, but with the understanding that if the plaintiff failed to pay the $100.00 cash payment when it was due, plaintiff would have no rights whatsoever under the contract and defendant Benefield would have the right to repossess the land, and plaintiff would lose the amount which had been paid and any improvements plaintiff might have made upon the land, same to become- the property of the defendant, and to be considered as liquidated damages for plaintiff’s failure to perform the contract.”
“4. I further find that the plaintiff had failed to make the cash payment of $100.00 at the time the same became due, and that the defendant Benefield thereupon verbally agreed to give the plaintiff until January 1, 1930 in which to pay said $100.00 parol contract.
“5. I further find that the plaintiff failed to pay the $100.00 cash contemplated by the contract on or before January 1, 1930.
“6. I find that during the latter part of January or the first of February 1932, the plaintiff and his family left the land and premises in controversy and were either living with or visiting the mother of the plaintiff’s wife, where they remained for several weeks, and that after plaintiff had left the land as stated and at a time when plaintiff was not in possession of or occupying the land, defendant Benefield rescinded the contract and declared the same cancelled and repossessed the land, and rented it to a tenant who cultivated it during the year 1933.”
“11. I further find that although the defendant did not give to the plaintiff William Brown any form of written or verbal notice of his rescission of the parol contract of sale, which occurred in the latter part of January or the first part of February 1932, that nevertheless the said J. H. Benefield openly and visibly took possession of the land and premises at such time and that the plaintiff actually knew of such fact, and that the said J. H. Benefield placed a tenant on said land immediately after repossessing the same, and that said tenant farmed and cultivated the land in 1932 and 1933, and that said J. H. Benefield had another tenant farm and cultivate said land in 1936 and 1937, and that the plaintiff William Brown lived in the immediate vicinity of the land and knew that the parties were farming and cultivating said land as tenants of J. H. Benefield, and that the said William Brown had actual notice at the time that J. H. Benefield repossessed the land in controversy.”

Although appellants except to and criticize these findings as being without support in the evidence, we find the very opposite to be true. Not only those copied above, but all the findings of fact filed by ■the trial court, have ample support in the evidence and are hereby adopted by us. The trial court’s conclusion of law No. 1 is: “I find that as a matter of law the plaintiff through failure on his part to perform the parol contract of sale acquired no right, title, interest or estate in and to the property in controversy under the terms of the parol contract of sale, and is therefore not entitled to the relief sought.” Unquestionably the parol contract for the sale of this land was executory in nature and subject to be rescinded by appellee upon a breach thereof by Brown, unless some circumstance was present which would render it inequitable to do so. Lipscomb v. Fuqua, 103 Tex. 585, 131 S.W. 1061. In Bush v. Merrill, Tex.Com.App., 206 S.W. 834, 838, the Commission of Appeals held: “It is too well settled in this state to require authorities that, when the purchaser in an executory contract has made default in the payment of purchase money, the vendor may at his election rescind the contract.” See also Barker v. Temple Lumber Co., 120 Tex. 244, 37 S.W.2d 721; Tilley v. Kangerga, Tex.Civ.App., 83 S.W.2d 787, writ refused. , So, whatever rights appellant Brown might have had under the executory parol contract for the sale of this land, they were extinguished by' the rescission of appellee when he repossessed said land in the spring of 1932 after Brown had defaulted in the payment of the first $100 of the purchase price. And especially is this true when it is shown by the court below, in his finding of fact No. 12, “that no tender or offer to perform the parol contract has ever been made by plaintiff (appellant) William Brown to the defendant (appellee) at any time and that no tender or offer to perform is included in the plaintiff’s (appellant’s) pleadings in this cause.” In other words, no offer to pay the indebtedness owing appellee as the purchase price for his land was proposed by appellants either in their pleadings or proof. Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W.2d 1079, 115 A.L.R. 329, and authorities there cited; Barker v. Temple Lumber Co., supra.

It is our opinion that conclusion of law No. 1 of the trial court, set out in this opinion, is clearly correct, and our conclusions reached here render unnecessary the discussion of the. other propositions brought forward.

The judgment is in all things affirmed.


author: CODY, Justice.

text:
    LOVELACE et al. v. OVERTON.
    Motion No. 11943.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    E. R. Campbell and Lawrence Lipper, both of Houston, for plaintiffs in error.
    Lewis & Ingram, of Houston, for defendant in error.
    Geo. N. Lusch, of Houston, amicus curiae.
   CODY, Justice.

This is a motion by T. V. Overton to dismiss the appeal of Claribel Lovelace et vir, Plaintiffs in Error, v. T. V. Overton, Defendant in Error, numbered 11,088 on the docket of this court, upon the ground that by force of Art. 1883A, Vernon’s Ann. Civ.St., this court is without jurisdiction to consider a petition for writ of error which has been filed on or after January 1, 1940, by a party participating in the trial.

It is made to appear here that final judgment was rendered in the court below on July 22, 1939, in favor of defendant in error, and that on December 29, 1939, a copy of the petition for writ of error was delivered to the attorneys of record for defendant in error, who receipted therefor and who waived the issuance of process thereon and service thereof. It is further made to appear that on December 30, 1939, which was Saturday, that plaintiffs in error transmitted by special delivery United States mail to the office of the clerk of the court below said petition for writ of error, together with the aforesaid receipt and waiver of service, and that, pursuant to directions, the Postal Department tendered delivery of said mail at the clerk’s office in the afternoon, but that the clerk does not keep his office open on Saturday afternoons, and for that reason the petition for writ of error was not filed. It is further made to appear that, pursuant to instructions, the Postal Department attempted to deliver said petition to the clerk at his home on the same night. Both at the clerk’s office and at his home notice was left to the effect that there was special delivery mail being held for the clerk at the Post Office.

The practice of closing offices on Saturday afternoons is no doubt very general. But it is the policy of the law that the courts shall be open at all reasonable hours, and, since it is made to appear that but for the office of the clerk being closed because it was Saturday afternoon, the petition for writ of error, and the waiver aforesaid, would have been filed when it was tendered by the Post Office Department, we hold that the timely tender for filing, being all that it was within the power of plaintiffs in error to do, when it is clearly established, is tantamount in law to the filing of the petition and waiver on Saturday, December 30, 1939. The Post Office Department did not again make tender until the next business day, which was January 2, 1940, at which time the clerk declined to file as of December 30, 1939, or at any date other than January 2, 1940. Of course, on January 2, 1940, the clerk was without authority to file the petition and waiver as of December 30, 1939. Whether or not such petition bore the status of a paper filed in the case as of December 30, 1939, was necessarily a matter for judicial determination.

It is unnecessary for us to determine when, under the provisions of Art. 1883a, Courts of Civil Appeals are deprived of jurisdiction to consider appeals by writs of error where parties have participated in the trial. Motion is overruled.

Motion refused.