author: LOONEY, Justice. BOND, Chief Justice

text:
    TIDE WATER OIL CO. et al. v. BEAN et al.
    No. 12355.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 22, 1941.
    Dissenting Opinion March 10, 1941.

      W. H. Sanford and Conan Cantwell, both of Dallas,-and Y. P. Broome, of Tulsa, Okl., for appellants.
    B. J. Wynne, of Wills Point, for ap-pellees.
   LOONEY, Justice.

This case is before us for reconsideration, in answer to a conditional writ of mandamus issued by the Supreme Court on the petition of Tide Water Oil Company, styled Tide Water Oil Company, Relator v. Joel R. Bond et al., Respondents, 143 S.W.2d 751.

On May 14, 1938, we affirmed the judgment of the District Court of Van Zandt County, Texas, overruling the plea of privilege urged by the Tide Water Oil Company, one of the defendants, in a suit for the partition of a seven-reighths, etc., mineral interest in 8.69 acres of land situated in Rusk County, Texas. The suit was brought by Angus Wynne, a resident of Gregg County, Carlos Bean and his wife, non-residents, against Gordon R. Wynne, a resident of Van Zandt County, Texas, and the Tide Water Oil Company, a foreign corporation, having its principal office in Harris County, alleging that they and the defendants jointly owned the entire interest sought to be partitioned.

Contending that our decision, in overruling its venue plea, was in conflict with the decision of the Supreme Court, in Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, the defendant company requested us to certify to the Supreme Court for its adjudication, the question of law arising on the venue plea. We denied the request for the reason stated at that time, that our decision was not in conflict with any point decided by the Supreme Court in the Grays case. See Tide Water Oil Co. v. Bean, Tex.Civ.App., 118 S.W.2d 358, 362. Thereupon, the defendant company filed an original proceeding in the Supreme Court for mandamus to require this court to certify the question of venue involved, based upon the alleged ground of conflict, as just stated.

After interpreting our decision, and its decision in the Grays case, as amplified by its more recent decision in Pena v. Sling, 140 S.W.2d 441, 128 A.L.R. 1223, the Supreme Court, Tide Water Oil Co. v. Bond, 143 S.W.2d 751, 753, among other things, said: “Briefly it may be said that the Court of Civil Appeals has held that venue in this case is fixed by Subdivision 13 of Art. 1995 of the Revised Statutes, because the suit was brought in statutory • form of a partition suit, notwithstanding that defendant had injected into the suit a question of title and alleged in its plea that the suit was in reality one involving title to real estate, and venue was controlled by Subdivision 14 of Art. 1995. So holding it was further held that as Gordon R. Wynne, whose interest was common with that of plaintiffs, was a resident of Van Zandt County, venue was properly laid in that county”; the court also said: “We think the conflict between the decisions as thus interpreted is apparent. However, under the state of the present record it is doubtful whether a mandamus should issue. It is shown that a hearing was held by the court upon the plea of privilege and evidence was offered in support of the controverting plea. The action of the court in overruling the plea authorizes an implied finding that plaintiffs established by sufficient proof that the suit was in fact what it purported to be, and did not involve a question affecting the title to land. The statement of facts touching the plea of privilege is not before us, but it is stated by counsel that same is with the record in the Court of Civil Appeals. We would perhaps be authorized to deny the mandamus outright, but for the fact that the Court of Civil Appeals’ opinion appears to have been based entirely upon its construction of the statute, and not upon a finding that the suit did not in fact involve a question concerning title to the land. In addition, relator,strongly asserts that the evidence clearly shows that a question involving title to land is involved. Under the circumstances we are of the opinion that a conditional writ should be awarded, as hereinafter set out.”

Obviously, the Supreme Court is in error in interpreting our decision as having been based exclusively upon form of the action, as we did not predicate our decision alone on the ground that the suit was brought in statutory form for partition, but also had in view the undisputed fact, admitted by the Tide Water Oil Company, that the parties, plaintiffs and defendants, were joint owners or joint claimants. In its plea raising the question of venue, the company alleged, among other things, “That the real and primary issue involved in this suit, and the real matter in dispute between the parties, and the real subject matter of this action is the extent of the interest in said land owned by the plaintiff, Carlos Bean and his assignees, to-wit, the plaintiff, Angus Wynne, and the defendant, Gordon R. Wynne, said parties claiming to own an undivided 31.865% interest in fee simple in the tract of land described in plaintiffs’ petition; but this defendant, Tide Water Oil Company, claiming that in truth and in fact said parties only own an undivided 17½% interest therein, and that the determination of said controversy between said parties is the real purpose of this suit and is a necessary issue to be determined therein; and such controversy presents in fact a suit for the recovery of land and to quiet the title to land within the meaning of the statute hereinabove referred to.”

So, it appearing that the petition was in statutory form for the partition of real estate, alleging joint ownership of the property, and the fact being admitted by the Tide Water Oil Company that, the parties were joint claimants, and the residence of Gordon R. Wynne, one of the defendants, being in Van Zandt County, we held that the District Court of Van Zandt County had venue of the cause, under'that part of exception 13 to Art. 1995, unchanged from 1863 to date, providing that “Suits for the partition of land * * * may be brought * * * in the county in which one or more of the defendants reside, * * We did not think then, nor do we think now, that the contention of the Tide Water Oil Company, that it owned a larger interest or share in the property than that conceded by plaintiffs, thus presenting a controversy as to the extent of the company’s interest or share in the property, changed the nature of the action from one of partition to an action for the recovery of land, or an interest therein, within the meaning of exception 14 of the venue statute.

The statute authorizing compulsory partition of real estate (Art. 6082) express7 ly provides that, “Any joint .owner or claimant of any real estate or of any interest therein or of any mineral, coal, petroleum, or gas lands, whether held in fee or by lease or otherwise, may compel a partition thereof between the other joint owners or claimants thereof in the manner provided in this chapter.” And, by Art. 6083, the plaintiff is required to allege the name and residence, if known, of each of the other joint owners or joint claimants and the share or interest which the plaintiff and the other joint owners or joint claimants own or claim in and to the premises. Thus it appears that, a joint owner or one who simply claims to be a joint owner may maintain the action against a joint owner, or one who simply claims to own an interest, and that a controversy, in regard to the share or interest claimed by either party, shall be determined by the court before partition can be had, as provided in Art. 6086, as follows: “Upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.”

Both the actions of trespass to try title or for the recovery of land, the venue of which is controlled by exception 14' to Art. 1995, and the action to partition land, the venue of which is controlled by exception No. 13, are statutory; they deal .with the same general subject, are closely related, but are not identical, and, in our opinion, may readily be distinguished one from the other.

Trespass to try title is the common law of ejectment modernized; originally it furnished, and at the present time furnishes, the procedure by which rival claims, to the title or right to the possession of land, may be adjudicated, and, as an incident, partition may also be had when the controversy as to title or right to possession is settled. In McLean v. Moore, Tex. Civ.App., 145 S.W. 1074, 1075, 1076, the court used the following language in point: “The objection that this is a partition suit is not well taken in this case, if it could be in any case. The plaintiff had alleged that appellant herein was the owner of a two-thirds undivided interest in the land sued for, and the suit was to recover the other undivided one-third interest. This made it in fact, as in form, a suit of trespass to try title; and it is immaterial that, in addition to seeking to recover the one-third interest, plaintiffs also asked for a partition of said interest when so recovered as against appellant herein, who was admitted to own the other two-thirds interest.”

At common law, the right to compulsory partition of land was between co-parceners, a group claiming from a common source, but, as stated by Chief Justice Wheeler in Ross v. Armstrong, 25 Tex. Supp. 354, 371, 78 Am.Dec. 574, “The act of the 5th of February, 1840, ‘to enable part owners of land to obtain partition thereof,’ recognizes no distinction between these several kinds of estates in joint ownership, but treats the tenants all alike, simply as ‘part owners,’ and gives all alike the right of compulsory partition.” As provided by statute, and held in any number of cases, as an incident to the partition of land, the court may be required to adjudicate controversies between joint claimants, touching the share or interest of each in the land sought to be partitioned. See Art. 6086 heretofore quoted. Miller v. Odom, Tex.Civ.App., 152 S.W. 1185; Perkins v. Perkins, Tex.Civ.App., 166 S.W. 915. In De La Vega v. League, 64 Tex. 205, 216, Chief Justice Willie, of our Supreme Court, said: “In our state, where there is no distinction between law and equity in the determination of causes, an action to settle disputed titles, whether legal or equitable, may be combined with one to partition the land between the plaintiff and defendant. Hence there can be no objection to determining any, questions as to title between the co-owners in a partition suit in our state, and the strict rules of chancery do not prevail.”

The doctrine seems to be settled that, it is only where a defendant in a partition suit sets up in his answer a claim of ownership to all the land involved, that the action becomes one of trespass to try title, the venue of which is controlled by exception 14. This was specifically held in Green v. Church well, Tex.Civ.App., 222 S.W. 341, 342, the court saying: “A partition suit in the ordinary form may be converted into a suit of trespass to try title by the defendant alleging title and right of possession in himself to the whole of the land in controversy. De La Vega v. League, 64 Tex. 205; Banks v. Blake [Tex.Civ.App.] 143 S.W. [1183] 1184, 1185.”

We therefore respectfully submit that, the statutes and the doctrine of the adjudicated cases, lead inescapably to the following conclusions: (1) That suits for the recovery of land, denominated in the statute “trespass to try title”, venue of which is controlled by exception 14 to Art. 1995, essentially, is an action between rival claimants of land or the right to the possession thereof, and that, incidentally, partition may follow in accordance with the adjudication as to title or right to the possession; (2) that the action for partition of land, venue of 'which is controlled by exception 13 to Art. 1995, essentially, is an action between joint owners or joint claimants, and that, as an incident, before decreeing partition, the court may be required to. adjudicate controversies arising between the parties as to the extent of the share or interest of either party; (3) where, admittedly, as in the case at bar, the action is between joint claimants, presenting for adjudication simply a controversy ás to tne amount or size of the share or interest of the respective parties, the action nevertheless is one for partition, venue of which is controlled by exception 13; (4) but where, in a formal action for partition, the defendant sets up a claim of ownership to the entire property involved, the action becomes one for the recovery of land within the meaning of the statute, and is controlled by exception 14. Also where, as in the case of Pena v. Sling, Tex.Sup., 140 S.W.2d 441, 128 A.L.R. 1223, the defendants plead that plaintiff’s petition, although in form an action for the partition of land, in fact, camouflaged an action for the recovery of land, to evade the controlling venue statute, and plaintiffs failing to discharge the burden of proof resting upon them in such a situation, the suit, in our opinion, was properly held to be an action for the recovery of land, and controlled by exception 14 to Art. 1995.

In its opinion on the application for mandamus, among other things, the Supreme Court said: “The Honorable Court of Civil Appeals will no doubt gladly follow the law as now declared in the case of Pena v. Sling, supra. Said court is therefore directed to again review its decision in light of the law as now settled by the Supreme Court, and in light of the facts adduced upon the hearing on the plea of privilege. If that court shall conclude from a consideration of the evidence that a question affecting title, such as is comprehended by Subdivision 14 of Article 1995, is involved, and will reverse its decision and remand the case to the District Court of Rusk County, no formal writ of mandamus will issue. If the court shall conclude from the evidence that no question concerning title to land is involved, under the rule concerning burden of proof as announced in the case of Pena v. Sling, and shall furnish this Court with supplemental, opinion disclosing its holding in that respect, no formal writ will issue.”

So, we approach the task of determining the law, as announced by the Supreme Court in Pena v. Sling. Necessarily, this must be determined from the issues joined, and the pertinent expressions of the court in disposing of same. The nature and result of the case is as follows: Plaintiffs, residents of Duval County, filed in the District Court of Bexar County a formal action to partition 200 acres of land situated in Duval County, alleging in substance that, they owned a one-half undivided interest in the 200 acres, and that, the other half was owned in varying proportions by the defendants, three of whom were alleged to reside in Bexar County when the suit was brought.

In due order, and by proper pleas, the defendants challenged the venue of Bex-ar County, alleging among other things that, although plaintiffs’ petition was, in form, a pleading for the partition of real estate, in truth and in fact, they sought, principally, the recovery of an undivided interest in the lands involved, and to quiet the title to same, praying that, the venue of the case be changed to Duval County, as provided in exception 14 to Art. 1995. Nowhere in the pleas of the defendants was there an admission that the plaintiffs owned any interest in the lands, and no fact or facts were alleged from which a status of co-tenancy between plaintiffs and the defendants, could be implied.

In their controverting pleas, plaintiffs simply reiterated the allegations of their petition, alleged that the venue of the suit was controlled by exception 13 to Art. 1995, relating to partition, in that, three of the defendants, who resided in Bexar County, were asserting adverse claims or interests in and to the property.

On hearing, plaintiffs introduced no evidence other than their petition, which simply revealed the nature of the cause of action, and evidence showing that three of the defendants were residents of Bexar County, where the suit was instituted. In this status, the District Court sustained defendants’ pleas and changed the venue of the cause to a court of proper jurisdiction in Duval County, where the land is situated, from which plaintiffs appealed to the Court of Civil Appeals, and the latter court certified to the Supreme Court for its adjudication, the questions of law arising on the record.

The decisive and only question answered by the Supreme Court was as follows [140 S.W.2d 444, 128 A.L.R. 1223]: “First: In this suit brought in Bexar County for partition of land situated in Duval County, did the plaintiffs fully meet the burden resting upon them to sustain venue, by (1) introducing their original petition in evidence showing the nature of their suit to be, strictly and exclusively, a statutory action for partition of real estate, and (2) by showing that three of the defendants were residents of the county in which the suit was pending?”

After a lengthy discussion, the Supreme Court answered the question “No”, but, preceding the answer, among other things, said: “Under the express provisions of Article 2007, R.C.S.1925, supra, a statutory plea of privilege of venue, duly filed, is ‘prima facie proof of the defendant’s right to change of venue.’ It follows that such a plea is sufficient, in law, to require the plaintiff to assume the burden of pleading and proving that he has a statutory right to maintain his suit in the county where he has filed the same. The burden on the plaintiff to prove his right to such venue is as complete and absolute as is his burden to plead the same. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747; Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550.”

We are in hearty accord with the doctrine announced by the Supreme Court, as just quoted. It will be observed that the pleas of privilege challenged plaintiff’s good faith in bringing a partition suit, contending that, while bearing the semblance and form of a statutory action to partition lands, in truth and in fact, the action was one to try title to land, the venue of which, under exception 14 of the venue statute, was in Duval County. Although controverting these pleas, plaintiffs offered no evidence whatever, either showing or tending to show that the land was owned or claimed by the parties as co-tenants, therefore failed to prove the essential fact, that is, co-tenancy, to bring the case within the meaning of exception 13 to Art. 1995. The disposition the Supreme Court made of the case, on the record presented, in our opinion, was absolutely correct. But the Supreme Court entered upon a rather extended discussion and an elaborate construction of exception 13, which we respectfully suggest was not necessary to a decision of the rather narrow question certified for its adjudication; hence being, in our opinion, merely dicta, is not controlling as authority, under the doctrine of stare decisis, yet merits and has received our respectful and careful consideration, as will be shown.

After stating that, under exception 13, “partition suits may be brought in the following counties: 1. In the county'where such land or other property, or a part thereof, may be. 2. In the county in which one or more of the defendants reside. 3. In the county of the residence of any defendant who may assert an adverse claim or interest in such property, or seeks.to recover the title to the same”, the court then said that, “If exception 1'3 ended with the provisions just abovfe indicated, we would have little difficulty in determining its meaning, but it does not so end. It contains a general and very significant and all-inclusive provision at the end thereof. This provision is that, ‘Nothing herein shall be construed to fix venue of a suit to recover the title to land.’ Under this provision the legislative intent not to alter or change the provisions of exception 14, supra, regarding the venue of land title suits, is plainly indicated.” And, as further showing the court’s idea as to the controlling effect of the proviso, at another place in its opinion, the court used the following language: “Further, it is evident that the provision, ‘Nothing herein shall be construed to fix venue of a suit to recover the title to land,’ dominates and qualifies every part of exception 13 which precedes it, and prevents such exception from ever being relied on ‘to fix venue of a suit to recover the title to land.’ ” The Court also construed the part of exception 13 providing that, suits for partition may be brought “in the county of the residence of any defendant who may assert an, adverse claim or interest in'such property, or seeks to recover the title to the same,” as pertaining alone to personal property, and as having no reference whatever to one who asserts an adverse claim or interest, or who seeks to recover real estate.

As a corollary to these views, in its opinion in the instant matter, the court said: “2. That even if an action took the form of a partition suit, if in fact a question concerning the title to real' estate became injected into the case by defendant’s plea of privilege, the venue was governed by Subdivision 14 and not by Subdivision 13. In other words, that the provision of Subdivision 13, to the effect that suit for partition might be maintained in the county in which one or more of the defendants resided, or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover title to same, was dominated by the succeeding clause of said subdivision reading^ ‘Nothing herein shall be construed to fix venue of a suit to recover the title to land.’ ”

So, it seems, under the interpretation given to exception 13 by the Supreme Court, where, as in the instant case, a suit for partition is brought by a joint owner or joint claimant against another joint owner or joint claimant, in the county of the residence of one of the defendants, who, in his answer, injects a question of title — that is, claims to own a larger share or interest in the jointly-owned property, than the interest alleged by plaintiff, that under the proviso, as above stated, the suit instantly, and as a matter of law, becomes one for the recovery of land, and is controlled as to venue by exception 14 to Art. 199S.

Such construction in our opinion,.practically destroys the provisions of exception 13, 'permitting suits in the county of the residence of a defendant, or in the county of the residence of any defendant who may claim adversely, and re-establishes the rule announced by the court in Peterson v. Fowler, 73 Tex. 524-527, 11 S.W. 534, 535, where the court, in a similar situation, said: “It appears from the petition that appellees were claiming two-thirds interest in the land in Frio county, while appellant admitted their title to only one-hal-f. We think that to the extent of the difference between one-half and two-thirds the suit was necessarily an action of trespass to try title, and the district court of Lamar county did not have jurisdiction.”.

Obviously, this decision, rendered in 1889, brought about the amendment to exception 13, adopted by the Legislature on March 20, 1919. As amended, the exception read: “Suits for the 'partition of lands or other property may be brought in the county where such lands or other property or a part thereof, may be, or in the county in which one or more of the defendants reside, and any such suit for partition of lands or any other property may be brought and prosecuted in the county of the residence of any one or more of the defendants, notwithstanding any one or more of such defendants may assert an adverse interest in such property, or claim to be the owner thereof, or seek to recover the title-to the same, provided that nothing herein shall be construed to fix venue of any suit whose real purpose is to recover the title to land other than in the county where such land, or part thereof, may lie, but whenever on the trial of the case, the co-tenancy of the parties or any of them is established, or becomes an issue of fact, it shall not be held that the real purpose of the suit was to try the title of the land.”' See Session Acts General Laws, 36th Leg'., Ch. 93, p. 152.

It is evident that, in the codification of 1925, the committee denuded this exception, as amended in 1919, of all verbiage deemed useless, but, as they were not legislators or authorized either to amend or change the meaning of statutes, but simply to arrange them in appropriate titles, chapters and articles, it is safe to assume that exception 13, as it appears today, has the identical meaning it had when amended on March 20, 1919. It has been held in a number of cases that, it is permissible to go behind the adoption of the Code and give due consideration to the original act, in determining the legislative intent. See 39 T. J. p. 264, Note 11. i

The amendment of 1919 reproduced exception 13 as it then existed, and added the following: “and any suit for partition of lands or any other property may be brought and prosecuted in the county of the residence of any one or more of the defendants, notwithstanding any one or more of such defendants may assert an adverse interest in such property, or claim to be the owner, thereof, or seek to recover the title to the same, provided that nothing herein shall be construed to fix venue of any suit whose real purpose is to recover the title to land other than in the county where such land, or part thereof, may lie, but whenever on the trial of the case, the co-tenancy of the parties or any of them is established, or becomes an issue of fact, it shall not be held that the real purpose of the suit was to try the title of the land.”

Keeping in mind the decision of the court in Peterson v. Fowler, obviously the legislature intended to change the rule announced in that case, so as to authorize the prosecution of partition suits in the county of the residence of a co-tenant claiming adversely, and the proviso “that nothing herein shall be .construed to fix venue of any suit whose real purpose is to recover the title to land other than in the county where such land, or part thereof, may lie,” operated simply as a restraint on the clause to which it was immediately attached, and of which it formed a part, and, in our opinion, was not intended to nor did it have any relation to or effect upon any other provision of exception 13 or of exception 14.

The pertinent rule applied in construing provisos is stated in 39 T. J. p. 193, sec. 102, as follows: “Generally á proviso is construed in connection with the article or section of which it forms a part, and iá to be given effect, if reasonably possible, according to the clear meaning of the language used. Ordinarily a proviso is limited to the clause which next precedes it and to which it is attached. So where there are successive provisos, the qualifying terms of the last will be understood as referring to the one next preceding.” In a similar situation presented to the Supreme Court of Tennessee, in Frix v. State, 148 Tenn. 478, 256 S.W. 449, 451, the court said: “The rule of construction being that a proviso must be limited to its application in the particular section of the statute in which it is found, unless a contrary intent clearly appears, certainly it should be held that the effect of a proviso in an amendatory statute should be limited in its application to the statute in which it is found, and not extended to the original statute of which the statute containing the proviso is an amendment.”

But what restraint did the proviso place upon the next preceding provision? Obviously, we think, it was designed to deter the institution of suits for the recovery of lands in a county other than where the lands are situated, under the guise 'of a partition proceeding, and introduce no new procedure, for, in contemplation of law, each exception to Art. 1995 is impliedly restrained to the same effect. Wherever, in any case, venue is fraudulently laid, the defendant’s plea of privilege, in statutory form, shall be considered prima facie proof of his right to change the venue of the case and he is not required to either allege or prove that, plaintiff’s allegations were fraudulently made for the purpose of conferring venue of the case upon the court where it was instituted (see 43 T.J. p. 801, sec. 77); but in such a situation, the laboring oar is with the plaintiff to allege and prove the fact or facts relied upon to confer venue.

As originally adopted as a part of the amendment in 1919, the proviso also contained the following language, which we think furnishes the clue to a proper, construction of the provision added by the amendment in 1919; the language is this: “but whenever on the trial of the case [contest in regard to venue], the co-tenancy of the parties or any of them is established, or becomes an issue of fact, it shall not be held that the real purpose of the suit was to try the title of the land.” The complete added provision, we think, has the same meaning today that it had when adopted in 1919, and confirms the correctness of our views as to the real distinction between “suits for the. recovery of lands,” venue of which is controlled by exception 14, and “suits for the partitiqn of land,” venue of which is controlled by exception 13; the distinguishing feature being that, while a suit for the recovery of land is a contest between rival claimants, a suit for partition is between co-tenants, although in such suit, the court may be called upon to adjudicate controversies arising between co-tenants as to the extent of the interest or share owned by each party in the property sought ta be partitioned.

When the obvious purpose of the amendment, of 1919 is considered, the codified form being exception 13 as it now reads, we do not think it can be correctly said, as was said in Pena v. Sling, Tex.Sup., 140 S.W.2d 441, 447, 128 A.L.R. 1223, that, the language, added by the amendment of 1919, had reference alone to property other than land. To reach such conclusion, the occasion that brought forth the amendment must be ignored, also the import of the language of the proviso as originally adopted, referring to co-tenancy and the trial of the title to land, which in our opinion forbids the thought that, personal property alone was the subject matter of the amendment of 1919.

We are admonished by the Supreme Court, in reviewing our former decision, to “follow the law as now declared in the case of Pena v. Sling,” hence we felt at liberty to determine the law as thus declared; that is, the ruling principles applied and necessary to the decision of that case. As heretofore shown, we have no fault to find with the decision in Pena v. Sling. The case, in our opinion, was free from complication's and its decision did not involve the construction of exception 13 to the venue statute. In short, the case was an action to partition land, against several alleged joint owners, brought in a county other than where the land was situated, but in a county where several of the defendants, allegedly claiming adversely, resided. The defendants interposed pleas of privilege, in due form, raising the question of venue, challenging the good faith of the partition suit, alleging that, in fact, it was a suit for the recovery of land, praying that the venue be changed to the county where the land lay. These pleas entitled the defendants to a judgment changing the venue, unless plaintiffs alleged specifically and proved the fact, or facts, relied upon to confer venue on the court where the case was instituted; however, plaintiffs failing to discharge the burden cast upon them, judgment changing the venue of the case followed as a matter of law. (see Arts. 2007, 2008, and numerous cases decided under these Articles)-; and this without regard to the meaning that may be imputed to exception 13 to Art. 1995. >It follows therefore that, in our opinion, the construction of exception 13, by the Supreme Court, in Pena v. Sling, is dicta; but, because of its eminent source, was entitled to our respectful consideration, which it received, yet, in the face of our positive convictions to the contrary, cannot be accepted and applied as controlling authority. See 11 T.J. p. 835, sec. 94.

We have written at length, that our position, and .reasons for same, may be understood, which involves neither- contumacy nor disrespect on our part for the Supreme Court. We recognize fully that, in contemplation of law and, as suggested by the proprieties as well, we should follow the law as announced by the Supreme Court, whose decisions are final on all law questions, however much we may dissent from the doctrine announced.

That the plaintiffs and the defendants are cotenants, -is not controverted; however, a controversy having arisen as to the interest or share the parties owned in the property sought to be partitioned, the present suit ensued. The answer of the defendant company, while admitting the fact of co-tenancy, claimed to own a larger interest or share in the property than was conceded in plaintiffs’ petition. We think the suit was brought in perfect good fáith, plaintiffs believing their allegations to be true; also, we find that the contention of the company, as to the share or interest owned by it in the property, was urged in good faith. It appears that, some time prior to the institution of the suit, and before the controversy between the parties assumed definite shape, an amicable partition of the property was in contemplation. On the trial, volumino.us documentary evidence was introduced by each party, bearing more or less upon their respective contentions. We have no way of knowing the conclusions reached by the trial judge from the evidence, other than as implied from the judgment rendered in favor of plaintiffs, which we affirmed, and which we are reqested to reconsider; the Supreme Court saying that, if we “shall conclude from a consideration of the evidence that a question affecting title, such as is comprehended by Subdivision 14 of Article 199S, is involved,” and will reverse our decision and remand the cause to the District Court of Rusk County, no formal writ of mandamus will issue.

Responding directly to this language, we beg to respectfully say that, in view of what has been written in the preceding pages of this opinion, we cannot consistently hold that, a question affecting title, such as is comprehended by Subdivision 14 to Article 1995, is involved; therefore, decline to reverse our former decision; on the contrary, reaffirm all that was said and decided in our original opinion.

The clerk of this cburt is hereby directed to furnish the Supreme Court with a certified copy of this opinion and to the parties, respectively, or their attorneys, a copy thereof.

BOND, Chief Justice

(dissenting).

On original submission of this appeal, the question was raised that the only controversial issue in the suit was one involving title to land, and that partition of the land amopg the joint owners was merely an incidental matter; thus, when the disputed title is settled, the partition would necessarily follow without controversy. It can hardly be seriously contended that there is a controversy over the partition of the land involved in suit, the controversy centering on the question of title. The record reveals, as expressed in our opinion (118 S.W.2d 358), that on the trial of the plea of privilege, voluminous documentary evidence was introduced by each party, bearing more or less upon thei-r respective contentions affecting the title in dispute. Therefore, a question of title is involved. I see no reason to repeat the findings of fact here; as reflected by our former decision, they are reaffirmed.

The Supreme Court (Tide Water Oil Co. v. Bond, 143 S.W.2d 751), on application for mandamus, forwarned that a formal writ would issue to this court, requiring questions of law affecting venue to be certified to that court, unless we reverse our decision and remand the cause to the District Court of Rusk County, Texas. On such mandate, this court reconsidered its decision, but declined to follow the suggestion of the Supreme Court; on the contrary, reaffirmed all that was said and decided in our original opinion. I was not in accord with our action. Consequently, in the light of facts disclosed in our original and supplemental opinion, writ of mandamus was issued by the Supreme Court, expressing the opinion that the statement of the record, as disclosed in our decision, presents a question of title. Tide Water Oil Co. v. Bond, Chief Justice, et al., Tex.Sup., 148 S.W.2d 193, not yet reported [in state report]. I adhere to our findings of fact in the case, but, on further consideration, have decided to express briefly my opinion that a question of title, to an undivided interest in the land, is involved, such as is comprehended by Subd. 14 to Art. 1995; therefore, in deference to the record and the decision of the Supreme Court, I dissent 'from the action of the majority, believing our former decision should be reversed ánd the cause remanded to the District Court of Rusk County. This, I think, should satisfy the writ of mandamus; if not, the cause on certified questions should be submitted to the Supreme Court.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    TIDE WATER OIL CO. v. BOND et al.
    No. 7493.
    Supreme Court of Texas.
    Feb. 19, 1940.

      Y. P. Broome, of Tulsa, Okl., and W. H. Sanford, and Conan Cantwell, both of Dallas, for relator.
    Angus G. Wynne, of Longview, and Wynne & Wynne, B. J. Wynne, and Gordon R. Wynne, all of Wills Point, for respondents.
   GERMAN, Commissioner.

The original opinion in this case was reported in 143 S.W.2d 751. Therein it is shown that the opinion of the Court of Civil Appeals in this case, wherein it was held that venue of the cause was controlled by Subdivision 13 of Article 1995 of the Revised Statutes, was in conflict with the decision in the case of Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, as amplified and reaffirmed in the case of Pena et al. v. Sling et al., Tex.Sup., 140 S.W.2d 441, 128 A.L.R. 1223. We did not order mandamus to issue immediately, on the theory that perhaps the trial court was authorized to make a finding of fact that in reality no question affecting title to land was involved. The matter was referred to the Court of Civil Appeals with the following direction [143 S.W.2d 754]: “Said court is therefore directed to again review its decision in light of the law as now settled by the Supreme Court, and in light of the facts adduced upon the hearing on the plea of privilege. If that court shall conclude from a consideration of the evidence that a question affecting title, such as is comprehended by Subdivision 14 of Article 1995, is involved, and will reverse its decision and remand the case to the District Court of Rusk County, no formal writ of mandamus will issue. If the court shall conclude from the evidence that no question concerning title to land is involved, under the rule concerning burden of proof as announced in the case of Pena v. Sling, and shall furnish this Court with supplemental opinion disclosing its holding in that respect, no formal writ will issue.”

We have been furnished with a supplemental opinion by the Court of Civil Appeals. 148 S.W.2d 184. Some eighteen pages of this opinion are devoted to an exhaustive discussion of the law, whereby the court seeks to justify and demonstrate the correctness of its prior opinion. After such discussion the court concludes its opinion with the following [page 192] :

“That the plaintiffs and the defendants are co-tenants, is not controverted; however, a controversy having arisen as to the interest or share the parties owned in the property sought to be partitioned, the present suit ensued. The answer of the defendant Company, while admitting the fact of co-tenancy, claimed to own a larger interest or share in the property than was conceded in plaintiffs’ petition. We think the suit was brought in perfect good faith, plaintiffs believing their allegations to be true; also, we find that the contention of the Company, as to the share or interest owned by it in the property, was urged in good faith. It appears that, some -time prior to the institution of the suit, and before the controversy between the parties assumed definite shape, an amicable partition of the property was in contemplation. On the trial, voluminous documentary evidence was introduced by e'ach party, bearing more or less upon their respective contentions. We have no way of knowing the conclusions reached by the trial judge from the evidence, other than as implied from the judgment rendered in favor of plaintiffs, which we affirmed, and which we are requested to reconsider; the Supreme Court saying that, if we ‘shall conclude from a consideration of the evidence that a question affecting title, such as is comprehended by Subdivision 14 of Article 1995, is involved,’ and will reverse our decision and remand the cause to the District Court of Rusk County, no formal writ of mandamus will issue.
“Responding directly to this language, we beg to respectfully say that, in view of what has been written in the preceding pages of this opinion, we cannot consistently hold that, a question affecting title, such as is comprehended by Subdivision 14 to Article 1.995, is involved; therefore, decline to reverse our former decision; on the contrary, reaffirm all that was said and decided in our original opinion.”

In the original opinion we said “that the Court of Civil Appeals’ opinion appears to have been based entirely upon its construction of the statute, and not upon a finding that the suit did not in fact involve a question concerning title to the land.” We are now convinced of this, and are of the opinion that the statement above quoted clearly shows that a question of title is involved.

The writ qf mandamus as prayed for will therefore issue. The Court of Civil Appeals is requested to transmit with its certificate the statement of facts containing evidence heard upon the motion for a change of venue.

Opinion adopted by the Supreme Court.


author: SMEDLEY, Commissioner.

text:
    JONES FINE BREAD CO. et al. v. CITY OF GROESBECK et al.
    No. 1852-7598.
    Commission of Appeals of Texas, Section B.
    Feb. 19, 1941.
    Sleeper, Boynton & Kendall, Scott & Wilson, Rogers & Scott, Tom P. Scott, and W. E. Cureton, all of Waco, for appellants.
    Berry, Neathery & Berry, of Houston, and L. W. Shepperd, and L. L. Geren, both of Groesbeck, for appellees.
    Terrell, Davis, Hall & Clemens, of San Antonio, Clark & Rice, Wm. PI. Clark, Jr., and Russell V. Rogers, Jr., all of Dallas, Cantey, Hanger, McMahon, McKnight & Johnson and R. K. Hanger, all'of Fort Worth, and Cole, Patterson & Cole, and Bennett B. Patterson, all of Houston, amici curise.
   SMEDLEY, Commissioner.

The opinion of the Court of Civil Appeals for the Tenth Supreme Judicial District thus correctly states the nature of the suit and its result in district court:

“This suit was brought by Jones Fine Bread Company against the city of Groes-beck and its officers to enjoin the enforcement of a city ordinance requiring manufacturers of bread to pay an annual license and inspection fee as a prerequisite to selling bread within said city. Hilltop Baking Company intervened and sought the same relief. A trial before the court without a jury resulted in judgment denying the injunction. The plaintiff and the intervener appealed.”

The Court of Civil Appeals affirmed the judgment of the trial court, holding that the ordinance is not void on the ground that it seeks, contrary to law, to empower a municipal corporation to go beyond its limits and enforce the right of inspection of appellants’ bakeries, and further that the ordinance is not an arbitrary or unreasonable exercise of authority, does not unlawfully discriminate in favor of local bakeries and against those situated outside the limits of the City of Groesbeck and does not constitute a taking of property without due process of law:

Pending disposition of appellants’ motion for rehearing, the Court of Civil Appeals certified to the Supreme Court the question: “Under the facts stated, were we in error in holding that the ordinance in question was not unconstitutional?”

The facts referred to in the question certified are those stated in the opinion of the Court of Civil Appeals, together with additional facts set out in the certificate, and are as follows:

“The city of Groesbeck is a municipal corporation incorporated under the general laws of Texas under the terms of Title 28 of the Revised Civil Statutes of 1925, Vernon’s Ann.Civ.St. art. 961 et seq. The ordinance in question provides, in effect, that any manufacturer of bread, pies or doughnuts intended for human consumption desiring to sell such products within the city of Groesbeck must first allow his bakery to be inspected by the city health inspector and procure an annual license from the city authorizing it to do so. In order to obtain the license, he must pay an annual license fee of $12.50, and if the bakery is situated outside of the city of Groesbeck, the applicant must pay an additional sum of $2.40 per mile of distance that the bakery is from the city to cover traveling expenses of the inspector. The ordinance requires the inspector to make .at least one inspection each month.”
“In addition to the facts stated in our original opinion, the record discloses that appellants Jones Fine Bread Company and Hilltop Baking Company were the only bakeries selling fresh bread in the city of Groesbeck at the time of the trial in the lower court; that these bakeries are situated in the city of Waco, approximately forty miles from the city of Groesbeck;, that they are inspected at intervals by officials of the State Health Department, and of the city of Waco, and of the Federal Government; that their employees receive regular tests from the health department of the city of Waco for contagious diseases, and said bakeries otherwise fully comply with the state health regulations; that each of such bakeries serve from 100 to 125 communities and municipalities located within a radius of from 50 to 85 miles from the' city of Waco; that they were built and equipped to serve such trade territory; that the effect of the ordinance passed by the city of Groesbeck with its charge of $2.40 per mile per year as an inspection fee would be to destroy all profit on the business of such bakeries in the city of Groesbeck; and that if similar ordinances should be enacted and enforced by all other municipalities served by said bakeries, the effect would be to destroy their business because the expenses incurred for licenses and inspection fees would consume all profits and the annoyance incident to such frequent inspections would render it practically impossible for the employees to operate the bakeries.”

After the question as to the validity of the ordinance of the City of Groesbeck was certified to this Court by the Court of Civil Appeals, the Court of Criminal Appeals, in an original application for writ of habeas corpus, was required to pass upon the validity of an ordinance of the City of Winters, which as a whole is substantially the same as the ordinance of the City of Groes-beck and which in its eighth section, requiring inspection and the payment of an annual license and inspection fee as a condition to selling bread in the city, is identical with section 8 of the City of Groesbeck ordinance. Fay Ernest was arrested under a warrant issued by the Corporation Court of the City of Winters upon complaint charging him with having unlawfully sold and delivered bread baked in a bakery located in the City of Fort Worth, Texas, the owner and operator of which had not obtained from the health officer of the City of Winters a permit or license to sell bread within that city as provided by Section 8 of the ordinance.

The validity of the ordinance of the City of Winters was in that case attacked on the same grounds as those urged in this case. .The Court of Criminal Appeals deemed it unnecessary to decide the case on constitutional grounds, because of its .opinion that the ordinance was invalid .for want of power in the city under any legislative grant to pass such ordinance. It was held that neither Article 1015 of the Revised Civil Statutes of 1925, nor any other statute grants to cities incorporated under the general laws of the State authority “to exercise extraterritorial powers with reference to bread or any other commodity which extend into the confines of another city.”

The conclusion finally stated in the opinion written by Judge Krueger and approved by the Court is: “Having reached the conclusion that the ordinance in question, insofar as it authorized the city health officer of Winters to enter the domain of another city to inspect bakeries therein located and require the operator thereof to pay an inspection fee of $2.40 per mile as a prerequisite to sell its bread in said city, is void, it is therefore ordered that the relator be, and he is, discharged.” Ex parte Ernest, 138 Tex.Cr.R. 441, 136 S.W.2d 595, 598, 599.

The ordinance enacted by the City of Groesbeck, like that of the City of Winters, is penal. Section 9 makes it unlawful for any person, firm or corporation, to sell within the limits of the city, bread prepared, manufactured and baked in a bakery, the owner or operator of which has not obtained a permit as required by the ordinance, and Section 11 provides that the violation of any provision of the ordinance shall constitute a misdemeanor and that any person convicted thereof shall be fined in a sum not exceeding $100, each day of such violation being made a separate offense. The Supreme Court will follow the decision of the Court of Criminal Appeals as to the validity of the ordinance. Kadane v. Clark, 135 Tex. 496, 143 S.W.2d 197; Card v. Souter, 122 Tex. 77, 79, 52 S.W.2d 268; State v. Ferguson, 133 Tex. 60, 68, 125 S.W.2d 272; State v. Schwarz, 103 Tex. 119, 121, 124 S.W. 420.

We therefore answer the certified question in the affirmative.

Opinion adopted by the Supreme Court.


author: KRUEGER, Judge.

text:
    WATTS v. STATE.
    No. 21462.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for driving an automobile upon a public highway while under the influence of intoxicating liquor. The punishment assessed is a fine of $50 and confinement in the county jail for a period of five days.

No notice of appeal appears in the record. This is necessary under Art. 827, C.C.P., to give this court jurisdiction of the appeal. See Branch’s Ann.Tex.P.C., sec. 588, and cases cited; also cases cited under Art. 827, Vernon’s Ann.Tex.C.C.P., Vol. 3, page 197.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been' examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: BEAUCHAMP, Judge.

text:
    WRIGHT v. STATE.
    No. 21429.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.

      Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

■ The • appeal is from a penalty of six months in jail for 'failure to stop and render aid.

On March 5, 1940, at ten minutes before four o’clock in the afternoon appellant collided with a child who had just been discharged from a school bus. The evidence shows that the driver of the bus, together with some of the children, went to the child after the collision and that the appellant stopped his car within a very few feet and returned to it and' made some kind of examination of the boy. The driver of the bus asked appellant to, remove his car from the road and return to help him with the child Instead, appellant got in his car and drove hurriedly away. At nine o’clock that night he was arrested in bed at his home in Hamilton. The sheriff who arrested him was permitted to testify, over the objection of appellant, that when he arrested the accused he was drunk and had by his bed a part of a small bottle of gin. There was also testimony in evidence that he had purchased three bottles of beer and drank one soon after noon of that day at a “honky tonk” in McGregor. He was under the influence of liquor at the time, at least to some extent. The accident occurred a few miles east of Gatesville and between that' city and McGregor.

We fail to find any issue raised by the state or by the defendant which would authorize the testimony of the drunken condition five hours after the accident. Appellant objected to the testimony and then requested the court to instruct the jury that they could not consider it for any purpose. This the court refused to do, but did give a charge to the jury, saying that it was no evidence of guilt in the particular case, but was admitted for the purpose of determining “the motives and intent of the defendant at the time and as to whether his acts, if any, were knowingly done, and also may be considered by you in mitigation of the punishment you may see fit to fix in the event you should find the defendant guilty.”

We do not believe that the condition of the appellant revealed by the testimony five hours later could throw any light on the motives and intent of the accused at the time of the accident. There was no denial that it was knowingly done and no issue on the subject. The prosecution was for failing to stop and render assistance to the injured boy. He did stop. Consequently, the controversy is on whether or not he rendered necessary assistance. If there had ibeen drunkenness five hours later it would not avail to aid either the state or defendant on this issue. We are also unable to understand any theory by which this evidence might be used in mitigation of the punishment under the circumstances of this case, but, to the contrary, it would most likely be prejudicial as the jury would not consider its remoteness to in any way excuse the act. Appellant would receive all of the ill effects from a knowledge of his drunkenness without its mitigating influence.

We are unable to agree with the appellant that the evidence was insufficient to warrant a conviction. He stopped and examined the boy and announced that his injuries were not serious. They, in fact, were and the nature was easily discoverable by a layman by a casual observation. His broken leg should have been discovered by anyone of ordinary intelligence who made the examination which the law contemplates, and the evidence clearly discloses a wreckless disregard for the law requiring him to give all necessary assistance.

We conclude also that appellant was not entitled to the affirmative charge requested. He did not testify in his own behalf and we find no evidence raising affirmatively the defense which he seeks to have submitted to the jury. There is nothing in the evidence to show that, “It reasonably appeared to the defendant, viewed from his standpoint, that he had rendered the necessary assistance required by the apparent circumstances at that very time * *

While the punishment assessed is very light under the circumstances, yet it is not within our power to say that it is what the jury would have given had the objectionable evidence not been before them with the charge which the court gave to direct them in their consideration of it.

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


text:
    WATTAM v. STATE.
    No. 21451.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.
    Evans J. Adkins, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted of driving on a public highway while intoxicated, and assessed a penalty of five days in jail with a fine of $250.

We are presented with only one bill of exception in the case, which complains of the action of the prosecution in exhibiting a part of a bottle of gin which was taken off the person of appellant when he was arrested on the highway. We are unable to find any harmful result to appellant by the exhibition of the gin as described in the bill of exception.

The proceedings seem to be regular in every way; the evidence justifies the verdict of the jury and, consequently, there is nothing for this court to review.

The judgment of the trial court is affirmed.


text:
    KING v. STATE.
    No. 21450.
    Court of Criminal Appeals of Texas.
    Feb. 26, 1941.

      Oscar B. Jones, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

■The appellant, a negro woman, was convicted of killing a negro man and assessed a penalty of twenty years in the penitentiary.

By bill of exception appellant complains of the argument of the assistant district attorney, in which he is quoted as making the following statement: “If you bring in a verdict of guilty in this case you will throw a chill down the spine of every negro in Gregg County and thereby stop some of these negro killings.”

This mild effort at oratory'was very likely understood by the jury as such. At least, it has some of the characteristics of oratory in that it is voluminously worded for the little that is said. Thoroughly analyzed it means practically nothing. There is no charge that they are having any negro killings. There is nothing inflammatory, and he does not say how many negro killings would be stopped.

Generally one of the primary purposes for the assessment of penalties is to deter crime (art. 2, P.C.) and we see no harm in the jury’s being informed of this fact unless it is done in such a way as to bring matter outside the record specifically before the jury and so applied to the case before them as to constitute new evidence or to so inflame the minds of the jury as to affect their consideration of the evidence before them. The argument complained of does neither, so far as the record before us indicates. While there is nothing commendatory about it, we find nothing to condemn.

Appellant next complains of the conduct of the jury. During its deliberations a discussion arose among the members upon the question as to the percentage of time the defendant would actually be required to serve in the penitentiary, whereupon the foreman said: “I had read somewhere along the line that one-third was allowed to some prisoner somewhere along the line, in some State, for good behavior.”

The evidence of only one juror was heard as to what took place, and it is very apparent that the conversation was not fully developed in the record. As a result of what was said, a note was sent to the trial judge asking for instruction on the subject. This he declined to give and then it does not appear that anything further was said about it. The jury had widely varied ideas about the amount of penalty, though they had all agreed on a verdict of guilty. Thereafter, they brought in a verdict of twenty years. The evidence does not show what was in the minds of the jurors before that time and there is nothing to indicate that this discussion might have influenced them in raising the penalty. To the contrary, the jury showed by their conduct that they wholly disregarded the discussion •and referred the , matter to: the judge. When he declined to give instruction it is quite evident that the jury considered it an improper' matter and that they . thereafter proceeded in some other way to reach an agreement.

This case is distinguishable from Weaver v. State, 85 Tex.Cr.R. 111, 210 S.W. 698, 699, in which it is said: “It appears that the foreman and other members of the jury made statements in the presence of the jury bringing to their attention several instances occurring in Travis county in which, after conviction of persons accused of crime and sentenced to the penitentiary, as claimed by the jurors, the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned. In this discussion the murder of a Mr. Hornsby by Mexicans was disclosed; also, the murder of Eugene Smith, and a homicide committed by one Miller. These homicides were not known to some of the members of the jury, and they were in ignorance of the subsequent history of the trials of those charged with them. These were repeatedly referred to by the foreman and other members of the jury, and the jurors told that, if they failed to assess the death penalty against the appellant, the Governor would be guilty of misconduct like that in the cases mentioned and release him from the penitentiary, and that for that reason the death penalty should he assessed.”

A discussion of the foregoing conduct is hardly necessary to see the distinguishment which we have made. However, it is observed that the jurors discussed specific cases of local interest and, from a knowledge of the historic facts surrounding them, it is not too much to say that some of these cases had stirred the minds of the people of Travis County to an unusual degree so that the mention of them might have been considered inflammatory. They discussed specific cases and brought the facts relative to them before the jury for consideration in that case and it was upon these that the jury might have acted.

The indefinite statement made by the foreman of the jury in the instant case brings no fact before the other jurors. There is nothing inflammatory about it and it seems that it raised only a question in the minds of the jurors for which they sought an answer and received none. We see no reason for a conclusion that it affected their verdict or might have done so.

The judgment of the trial court is affirmed.


author: HAWKINS, Presiding Judge. CHRISTIAN, Judge.

text:
    LEFORIS v. STATE.
    No. 21361.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Rehearing Denied- March 12, 1941.
    Baskett & Parks, of Dallas, for appellant.
    Lloyd W. Davidson, State’s At'ty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for theft of an automobile, punishment assessed at three years in the penitentiary.

No bills of exception are brought forward.

' About nine o’clock on the night of February 27, 1940, M. E. Rawlins parked his car near the Episcopal Church in Dallas, from which place it was stolen.' In- the car at the time it was taken were a number of carpenter’s tools, and a rope and chain: hoist. The owner testified that he recovered his car “piece by piece”. The chassis of the car was found the next day— February 28th — near the Atlas Metal Works, about a mile and a half from where appellant lived. The radiator, motor and battery had been taken from the car, and also the carpenter’s tools and other things which had been left in the car. A mechanic testified that about the 27th or 28th of February appellant had employed witness to install a motor in appellant’s car; that witness went to appellant’s house and got the motor which was in appellant’s garage and installed it in appellant’s car. This motor was identified as the one which came out of the stolen car. The radiator on appellant’s car was also identified as the one from the stolen car. An officer testified as follows: “ * * * After the defendant here was placed in the city jail I had a conversation then with him. As a result of my conversation with the defendant I recovered some property that had been taken off of M. E. Rawlins’ automobile. Before I had that conversation with the defendant I didn’t know the location of a part of that property. Well, I didn’t know any of it, as far as that is concerned. They put a motor in there. He told me the battery and radiator and motor came out of Mr. Rawlins’ car and then he went with' me to West Dallas and got some tools and things that came out of the car. Yes, sir, the defendant here went with me and helped me gather up some of the tools that were in the car. In that same conversation the defendant told me he took the car and what he did with it the night he took it. He told me he took the car and put it in his garage that night and left it until the next night before he pulled it out for he had taken the motor out. Yes, sir, he told me he took those parts and the motor; he said he froze the motor in his car. Mr. Rawlins identified those parts and tools as being his property and the same property taken when his car was taken.” ■

Mr. Rawlins testified that he recovered part of the tools taken from his car at the City Hall, and part of them were returned to him by appellant after he was released on bond.

No objection was made at the time the officer testified as to what appellant told him after his arrest, and for the first time in this Court it is urged that the evidence was not sufficient to show that any of the stolen property was recovered as a result of said statement, and therefore the oral confession was not admissible under the exception to the provision of Art. 727, C.C. P. We think appellant stated to the officer facts and circumstances which were found to be true which conduced to establish his guilt.

It is further urged that the confession was not in accord with the provision of said Art. 727, C.C.P., and therefore inadmissible, and that complaint may be urged to its admission although no objection was urged in the trial court. The question was sought to be raised on motion for new trial in Walker v. State, 53 Tex. Cr.R. 336, 110 S.W. 59, 60, and this-court said: “* * * Nor can the suggestion of appellant in his motion for a new trial be considered, to the effect that the confessions were erroneously admitted. No exception was taken at the time, nor was the matter called to the attention of the court, so far as the record is concerned, until the motion for a new trial was made. In order to have taken advantage of the act of the Thirtieth Legislature * * * in regard to confessions, objection should have been interposed at the time the confessions were offered. It is not sufficient for objection to be raised for the first time on motion for a new trial.”

The judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After re-examining the record in the light of appellant’s motion for rehearing, we are constrained to adhere to the conclusions expressed in the original opinion.

' The motion for rehearing Is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    PORTER v. STATE.
    No. 21389.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Rehearing Denied March 12, 1941.

      Walter L. Johnston and Sherwood Brown, Jr., both of Galveston (King C. Haynie, of Houston, of counsel on appeal only), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appellant was indicted jointly with J. R. Kelly on a charge of pandering; The trial was separate, and the jury assessed a penalty of twelve years in the penitentiary. The indictment contained two counts, the first of which charged the of-: fense based on the allegation that Muriel Shields was forced to remain as an inmate in a house of prostitution and by threats and fraud and duress forced to ply the occupation of a prostitute. The second count alleges that appellant and Kelly, “did then and there unlawfully procure a female inmate, towit Muriel Shields for a house of prostitution * * *.” In submitting the case to the jury the court instructed them that the state elected to prosecute under the second count. ■

A full statement of the facts of the case is not necessary to a decision of the issues presented on the appeal. The one bill of. exception complains of the admission in evidence of the testimony of the witness Muriel Shields of a conversation between appellant’s co-conspirator” Kelly and the clerk of the hotel in the City of Galveston' in which the clerk quoted appellant in certain matters. The objection was that the testimony was hearsay and made in the- absence of appellant. This objection was unquestionably good, even though they were charged as conspirators. The clerk would have .been in position to have given the testimony as to" the conversation had he been called as a witness, but the prosecuting witness in the case was not. The objection should have been sustained.

However, this evidence was introduced on the first charge in the indictment and when the state later elected to stand on the second count of the indictment no motion was made by the defense to have the court then withdraw it as evidence. Inasmuch as it was not pertinent to any issue on the second count of the indictment, and took place after completion of .the offense there charged, .and in view of the 'fact that it is not inflammatory or in any way harmful to the appellant on the consideration of the' charge for which he was convicted, the error would appear to be harmless'-and does not call for a reversal of this case.

The conviction in the second count of the indictment is wholly upon the evidence of Muriel Shields. The evidence.is hot fully corroborated by any other testimony or circumstance. The defendant rer quested a.charge to the jury for'a determination of the question as to whether oi; not she was an accomplice witness. If the evidence raises that issue, the charge should have, been given, and the failure to‘ do so is reversible error. . ⅝

Appellant presents a line of decisions.to sustain the contention.that she was shown to be an accomplice. In the state’s brief it is submitted that there are two' lines of authorities on the subject, one. of which holds that she is not and the other indicating that she is. The state of the record calls for a distinguishment to be made between these two lines of authorities which we believe to be clear, but about which some confusion has arisen.

In Denman v. State, 77 Tex.Cr.R. 256, 178.S.W. 332, 333, Judge Davidson says: “The question at issue is whether or not, under the terms of this statute, Grace Johnston would be an accomplice. If appellant had originated the matter, and had approached Grace Johnston for the purpose of making a date, and she had subsequently accepted or employed him, we would have a different question presented. But the state’s evidence shows that Grace Johnston went to appellant and asked'him to make dates or procure men to visit her room, and that he did so, for which she paid him $1 for each man brought to her room, or she carried to his room. She originated the crime, or series of crimes, inducing appellant to conform with her wishes. While this would not relieve appellant of criminality, still under the terms of this statute we are of the opinion that she would be an accomplice. There is to be noted a marked distinction between the initiation of this matter by her and the initiation of it by the defendant. If Grace Johnston could be convicted under the terms of this statute, clearly she would be an accomplice. To relieve her of that position in the case, it would have to be asserted, and maintained as the law, that she would not be guilty of any criminal act under our statutory laws. If she could not be criminal in any way, then the proposition to the mind of the writer would be correct that she would not be an accomplice.” (Italics ours.)

This is followed in a number of decisions clearly laying down the proposition that the offense is committed when the solicitation is made, whether the female involved agrees to the proposed transaction or not. Other violations of the law may follow as a consequence of the negotiation and other offenses may be carved out of it, but it is not held that the evidence in other and subsequent matters would relate back to and make the witness a party to the crime so that she may be convicted for the offense of pandering as reasoned by Judge Davidson.

In Deatherage v. State, 91 Tex.Cr.R. 181, 237 S.W. 1111, 1112, Judge Lattimore says: “We are of opinion that, unless it was shozvn that she herself originated the criminal enterprise and in some maimer engineered or procured the solicitation extended to her to partake of the alleged intercourse, she would not be shown to be an accomplice.” (Italics ours.)

In Miller v. State, 107 Tex.Cr.R. 594, 298 S.W. 593, 594, Judge Christian summarizes this line of authorities in the following language: “Article 519, P.C., denounces as an offense an attempt to procure a female inmate for a house of prostitution. The offense is complete when the solicitation is made and the fact that the female consents does not make her an accomplice. Denman v. State, 77 Tex.Cr.R. 395, 179 S.W. 120. It is not shown by the record that the witness Onic Paris originated the criminal enterprise, or that she in any manner engineered or procured the solicitation extended to her to become an inmate of a house of prostitution. The witness, therefore, is not shown to be an accomplice. Deatherage v. State, 91 Tex.Cr.R. 181, 237 S.W. 1111; Denman v. State, 77 Tex.Cr.R. 256, 178 S.W. 332.” (Italics ours.)

In Muse v. State, 94 Tex.Cr.R. 71, 249 S.W. 861, Judge Morrow held the witness to be an accomplice. The facts of the case are not discussed and it will be presumed that they were in line with those authorities holding the witness to be an accomplice on,the theory that they were engaged in the origin of the transaction.

In Kelley v. State, 107 Tex.Cr.R. 254, 296 S.W. 531, in an opinion on motion for rehearing by Judge Morrow, the witness was held to be an accomplice because she voluntarily went to the place of appellant, approached him in the matter and was an actor from the origin of the enterprise, and on that basis was held to be an accomplice.

The cases discussed by appellant in his brief are likewise distinguishable from the Miller case and th'ose preceding it for the reasons therein given.

Newton v. State, 126 Tex.Cr.R. 482, 72 S.W.2d 1089, apparently justifies the confusion to which it contributes. It will be noted, however, that in that case reliance is had on the Muse case and on the Kelley case, neither of which, under their facts, could be .authority for appellant’s contention in the case before us, nor do we think they sustain the conclusion in the Newton case as the facts appear in that opinion. Insofar as the Newton case may be construed, to hold a female person an accomplice because she had been solicited by another party and thereafter yields to this solicitation and joins in the unholy enterprise, and if it does so hold, it will be understood that it is hereby overruled. The doctrine as laid down in the Miller case and those preceding it is followed under the facts of the instant case on the ground that there is no evidence authorizing the submission of an issue to the jury as to whether or not Muriel Shields was an accomplice witness. There is nothing to indicate that she originated the enterprise. She was approached in her hotel by appellant. who was introduced by Kellv. Her testimony on the subject is not denied by either of them or by anyone else.

In the absence of a state of facts showing that she originated the transaction, there is nothing to involve her in the charge laid in the indictment. She could not have been charged and convicted of the crime for which appellant received sentence, and she is therefore not a party making her an accomplice witness.

No error appearing in the case requiring a reversal, the judgment of the trial court is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, again asserts his contention that the trial court erred in not instructing the jury that Muriel Shields was an accomplice. We said in our original opinion that the evidence showed conclusively that appellant originated the enterprise and not Muriel Shields, and that, therefore, she was not an accomplice, citing a number of cases supporting the doctrine announced and overruling any and all decisions apparently to the contrary. See Jones v. State, 72 Tex.Cr.R. 496, 162 S.W. 1142; Miller v. State, 107 Tex.Cr.R. 594, 298 S.W. 593; Deatherage v. State, 91 Tex.Cr.R. 181, 237 S.W. 1111; Smith v. State, 73 Tex.Cr.R. 145, 164 S.W. 825, and many others.

Appellant re-urges his complaint to the testimony of Muriel Shields relative to the conversation which took place between Kelly and the clerk of the New Terminal Hotel operated by appellant after she and Kelly had spent the night together at the same, which conversation was in substance as follows: “Mr. Kelly asked the •clerk if Mr. Porter had left any instructions for him, to which the clerk replied: ■'Mr. Porter said that if they (Kelly and Muriel) got up before he did, that he had a charge account with a cab company and he (the clerk) was to call a cab for them to go down to the house on 2624 Avenue E.’ ”

We frankly admit that this was hearsay evidence and should not have been admitted, but in view of all the facts and circumstances proven relative to appellant’s trip to Houston to procure Muriel Shields, conveying her from Houston to Galveston in his automobile and telling her that she was to go to a house at 2624 Avenue E for the purpose of plying her vocation, brings the testimony within the rule of harmless error. It is inconceivable how it could have, under all the facts, affected him pre-jitdicially any more so than what was legitimately proven.

Believing that the case was properly disposed of on the original submission, the motion for a rehearing is overruled.


author: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    ROBINSON v. STATE.
    No. 21254.
    Court of Criminal Appeals of Texas.
    Jan. 29, 1941.
    Rehearing Denied March 12, 1941.

      K. C. Barkley, Herbert G. Tígner, Peden, Johnson & Peden, Lawrence Du Mars, Plenry Kahn, and Tom Branch, all of Houston, for appellant.
    W. L. Cook, Asst. Crim. Dist. Atty., A. C. Winborn, Asst. Crim. Dist. Atty., and Dan W. Jackson, Dist. Atty., all of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is swindling; the punishment, confinement in the penitentiary for seven years.

We quote from the indictment, in part, as follows:

“Ash Robinson, on or about the 8th day of June, A. D. 1938, in said county and state, did then and there unlawfully, falsely and fraudulently and by the use of false and deceitful pretenses and devices and fraudulent representations and by means of such deceitful pretenses and devices and fraudulent representations did obtain from Carl B. Ehman Five Thousand Dollars in money of the value of Five Thousand Dollars; the said Ash Robinson did obtain said money with the intent to defraud, the said money being then and there the personal property of and belonging to the said Carl B. Ehman, and the said Ash Robinson obtained said money with the intent to appropriate the same to his own use and benefit and with the intent to deprive the said owner of the value of the same, in this, to-wit :

“The said Ash Robinson then and there represented to the said Carl B. Ehman, that he, the said Ash Robinson, was the owner of an oil, gas and mineral lease covering three thousand acres of land in the State of Louisiana (said land being particularly described in the assignment of lease hereinafter set out) and that said land was very valuable as prospective oil producing property and that the said Ash Robinson would sell the said Carl B. Ehman an interest in the oil, gas and mineral lease covering said land for a consideration of fifty dollars per acre; and the said Ash Robinson, for the purpose of inducing the said Carl B. Ehman to purchase an interest in said oil, gas and mineral lease, falsely and fraudulently represented to the said Carl B. Ehman that the Humble Oil and Refining Company, a corporation, had offered to pay the said Ash Robinson Seven Hundred Fifty Thousand Dollars for said oil, gas and mineral lease, and further falsely and fraudulently represented to said Carl B. Ehman that the said Humble Oil and Refining Company had made a core test on said .3,000 acres of land and had found 165 feet of oil sand therein, meaning thereby that said Humble Oil and Refining Company had drilled into the ground at a point on said 3,000 acres of land and had removed from the ground a portion of sand saturated with oil, and that said removed portion indicated that there existed in the ground a stratum of oil-bearing sand 165 feet in depth, from which oil in commercial quantities could probably be produced; and by means of the aforesaid false and fraudulent representations the said Ash Robinson did obtain and acquire said money, to-wit, the sum of Five Thousand Dollars, from the said Carl B. Ehman and did then and there sell and deliver to the said Carl B. Ehman in exchange for said sum of Five Thousand Dollars, an assignment of an undivided one-thirtieth interest in and to the oil, gas and minerals underlying said 3,000 acres of land, * *

The assignment of the oil and gas lease is set out in the indictment, and thereafter allegations are made as follows:

“* * *; and the said. Five Thousand Dollars was then and there delivered to the said Ash Robinson by the said Carl B. Ehman in exchange for said assignment of .oil, gas and mineral leaseholds interest and the said Carl B. Ehman did then and there part with the title and possession of said money in consideration of the delivery to him of said assignment as aforesaid; the said deceitful pretenses, devices and representations so made by the defendant as aforesaid, were false and fraudulent and were known to be false and fraudulent by the said Ash Robinson at the time he so made them to the said Carl B. Ehman but were made by said Ash Robinson at the time with the intent to defraud the said Carl B. Ehman; and the said Carl B. Eh-man believed the said deceitful pretenses and devices and false representations, and relied upon them, and in believing said deceitful pretenses, devices and false representations to be true, and in believing that the said Ash Robinson had received an offer from Humble Oil and Refining Company to purchase said oil, gas and mineral .lease for $750,000.00, and that said Humble Oil and Refining Company had made a core test on said land and had found 165 feet of oil sand therein, and in relying upon this, and believing that said assignment of leasehold interest would be of great value because of said purported offer to purchase by Humble Oil and Refining Company, and said purported core test, the said Carl B. Ehman, was induced to part with the title and possession of said money as aforesaid; whereas, in truth and in fact, the said .Humble Oil and Refining Company had not offered to purchase said oil, gas and mineral lease for $750,000.00 and had not offered to purchase it at all, and said company had not made a core test on said 3,000 acres of land, and had not found 165 feet of oil sand therein, and had not found any oil sand therein; and the said Ash Robinson did secure the said $5,000.00 as aforesaid, from the possession of the said Carl B. Ehman with the intent then and there to deprive the said Carl B. Eh-man of the value of the same and to appropriate the same to his own use and benefit.”

It is appellant’s contention' that the indictment is insufficient in the absence of an averment that the lease assignment was of less value than implied in the alleged false representations relative to the amount of money appellant stated the oil company had offered him. In the same connection, appellant urges that at least it should have been averred in the' indictment that the lease was not worth the amount that Eh-man paid for it.

Article 1548 of the Penal Code reads as follows: “It is not necessary in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury shall result to the person intended to be defrauded, if it is sufficiently apparent that there was a wilful design to receive benefit or cause an injury.”

In making application of this article the court held in Baxter v. State, 51 Tex.Cr.R. 576, 105 S.W. 195, it was not necessary in an indictment charging that the accused secured a loan from a bank upon a false representation to allege that the note had never been paid. In referring to the article in question, it is said in 39 Texas Jurisprudence, 1087: “Since injury to the person intended to- be defrauded is not an essential element of the offense * *, it is not necessary to allege that the prosecuting witness has suffered loss by reason of the false representations complained of.” See also La Moyne v. State, 53 Tex.Cr.R. 221, 111 S.W. 950, 953, in which the court said: “The law concerns itself with two questions only:, (a) Was the false pretense willfully and knowingly made with respect to the property so fraudulently acquired ? and (b) what was the value of the property acquired by the person making the false representations, the possession of which was lost by the person trusting to the untrue statements so made?”

In view of Article 1548, supra, and the construction given it by the court, we are constrained to overrule the contention of the appellant that the indictment is insufficient in the respect mentioned.

The oil and mineral lease which appellant assigned to the injured party is set out in the indictment in haec verba. The original lease was on record in the State of Louisiana in the parish where the property described in the lease was situated. Having alleged the assignment by its tenor, it was necessary that the proof conform thereto. Baker v. State, 14 Tex. App. 332, 338. The state undertook to discharge this burden by introducing in evidence a purported certified copy of the assignment. There was no certificate of the presiding judge of the parish in which the office of the clerk certifying to the lease was kept; nor of any other official or person that the attestation was in due form and by the proper officer. In short, the provisions of Section 688 of Title 28 U.S.C.A., of the Judicial Code of the United States, known as the “Full Faith and Credit Act,” had not been complied with. This act reads as follows:

“All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in due form, and by the proper officers. * * * And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in évery court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken. (R.S. § 906).”

Appellant timely and properly objected to the copy of the assignment, and his objection was overruled. The opinion is expressed that the court fell into error. In Maunders v. Hanks, Tex.Civ.App., 278 S. W. 507, 508, it is said: “Before any certified copy of records from a foreign state can be offered - in evidence, they must be authenticated as is required by article 906 of the United States Statutes, being paragraph 1520 of the United States Compiled Statutes of the West Publishing Company [28 U.S.C.A. § 688]. Newsom v. Langford (Tex.Civ.App.) 174 S.W. 1036; Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 P. 995; Wilcox v. Bergman, 96 Minn. 219, 104 N.W. 955, 5 L.R.A.(N.S.) 938.” See, also, Burton v. State, 51 Tex. Cr.R. 196, 101 S.W. 226.

A second purported copy of the assignment, which varies in some respects from the first copy, was introduced in evidence over appellant’s objection. It had not been authenticated, as required .by the federal statute which we quoted. Appellant properly objected to its introduction in evidence and was overruled.

Because of the error discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BEAUCHAMP, Judge.

The state has filed a motion -for rehearing in this case in which the holding on the question of the admissibility of the certified copy of an instrument alleged in the indictment is attacked.

We have considered the authorities cited and do not believe that they sustain the state’s contention, but refrain from a discussion of them because we believe that to do so would serve no valid purpose and would lengthen a discussion already sufficiently definite on the subject.

The writer also refrains from discussing the case further, but does feel that the state has difficulties greater than that treated in the original opinion. These have been considered by the court before the original opinion was approved, and we are doubtful if the evidence will sustain a conviction. While it is not necessary to so hold in the state of the record, it may be understood we do not mean to hold that the evidence as it appears in this appeal would be sufficient to sustain a conviction even with the copy admitted in evidence.

The motion for rehearing is overruled.


author: GRAVES, Justice.

text:
    YELLOW CAB & TRANSFER CORPORATION v. WARREN CO., Inc.
    No. 11113.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 6, 1941.
    Rehearing Denied Feb. 27, 1941.
    • Vinson, Elkins, Weems & Francis, of Houston, for áppellant.
    Sam T. Cook, of Houston, for appellee.
   GRAVES, Justice.

This appeal is from a $324.05 judgment, entered in response to a jury’s verdict on special issues, and independent findings of the court itself from the evidence, in ap-pellee’s favor against appellant for damages to the former’s Packard automobile, found to have been negligently inflicted by o.ne of appellant’s cabs in a three-way collision, at the intersection of La Branch and Clay streets in Houston, on January 16th of 1939. It was alleged, and by the court and jury in substance found, in the appellee’s favor, that appellant’s cab struck a third person’s Chevrolet truck, knocking such truck about 30 feet across such intersection onto the appellee’s automobile, causing the damages so found.

The appellant had answered with a demurrer, a denial, and a plea of contributory negligence, all general, and also with a cross-action over against one C. P. Bol-linger, an original co-defendant along with the transfer corporation, who was disposed of below and is not a party to this appeal.

In this court, through several propositions, appellant first challenges the sufficiency of the proof to support the findings of either court or jury of any proper measure of damages so determined to have'been visited by its negligence upon appellee’s car; the $324.05 recovery, so allowed, was based upon a return by the jury of that amount as its answer to special issue No. 27, which ran as follows: “What do you find from a preponderance of the evidence was the reasonable cost of making necessary repairs so as to put the Packard automobile belonging to the plaintiff, The Warren Company, Inc., in as good condition as it was before the collision in question in the vicinity of Houston, Texas, at the time of the collision in question?”

Appellant’s insistence is that this finding was an insufficient predicate for the challenged judgment against it based wholly thereon, in that there, is no proof in this record — nor any finding of 'court or jury upon that feature — to show that the value of the appellee’s car, after being repaired, was not greatly enhanced over the condition it was in just prior to the collision declared upon.

A careful study of the statement Of facts, with a corresponding checking of the findings of both the court and the jury, verifies this contention; nor is it a sufficient answer to reply, as the appellee does, that in this instance the proof did show the car to have been restored to its condition immediately prior to the injury, which was identical with a determination of market value; this for the reason thus stated in 13 Texas Jurisprudence, p. 160: “The rule announced by some authorities that the reasonable value’of necessary repairs caused by an injury to personal property should measure the damage is inaccurate or incomplete, the reason being that after having been repaired, the property may be of greater or less value than before the injury, necessitating that such increased or decreased value be added to or subtracted from the cost of the repairs.” Union City Transfer v. Texas & N. O. Ry., Tex. Civ.App., 55 S.W.2d 637, Campbell v. Johnson, Tex.Civ.App., 284 S.W. 261, 263, [4-6] affirmed in Tex.Com.App., 290 S.W. 526.

Appellee further ably argues that its witness Ricks furnished the necessary proof that its car was not materially enhanced or decreased in value by the process of repairing; but the undisputed evidence —indeed, his own admission — shows that Mr. Ricks had not seen the car for two months prior to the time of the collision, hence was in no position to competently testify that the repairs had merely restored it (and no more nor less) to its former condition immediately before the accident. Furthermore, it otherwise appeared, without controversy, that throughout this two months’ period, during which Mr. Ricks had not seen it, this car was being driven by others, and used a great deal. Wherefore, there is no substantial proof in this record of just what the damage done to it was, other than that of the cost of the repairs thereto, and that these were reasonable charges for such work; under the cited authorities supra, that was an insufficient basis to predicate the recovery allowed upon. It follows that the judgment should be reversed.

On a re-trial, the form of quoted issue No. 27 should be so recast as to clearly elicit findings upon whether - or not the reasonable cost of the repairs — at or in the vicinity of Houston — had merely restored the car to its market value immediately before the collision, or had increased or diminished it, and if either, by how much.

Reversed and remanded.


author: HALL, Justice.

text:
    ANDERSON et al. v. WHEELER et ux.
    No. 5695.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 18, 1940.
    Rehearing Denied Jan. 2, 1941.

      Dorbandt & Dorbandt, of Tyler, for appellants.
    Israel Smith, of Tyler, for appellees.
   HALL, Justice.

It appears that on June 22, 1939, the record on appeal in this case was properly lodged with the Court of Civil Appeals, and thereafter, on-July 18, 1940, the case w-as regularly set down for submission on November 7, 1940, and counsel for both parties were given due notice thereof. The appellants did not present their briefs for filing therein until October 18, 1940, which was after the time prescribed by law for filing briefs in the Courts of Civil Appeals. Appellees strenuously object to consideration of appellants’ brief for the reason that -such briefs were- not timely filed within the statutory period, and have filed a motion to strike the same and to dismiss the appeal.

In the case of Rowntree v. Peck Furniture Company, 248 S.W. 26, 29, our Supreme Court has very aptly said: “The courts, as well as litigants, are interested in the reasonable dispatch of business, in .such manner as not to sacrifice any substantial right of either party. Hence rules are provided that will enable the trial court and our appellate courts to so dispatch such business as comes before them, without unnecessary delay. The Courts of Civil Appeals have the right to enforce these rules within such limitation as justice may require.”

Since the appellants did not comply with the rule in respect to filing briefs within the time required by law, appellees’ motion will be granted and the appeal dismissed. Article 1848, R.S., Vernon’s Ann. Civ.St. art. 1848; Rule 36 for Courts of Civil Appeals; Rowntree v. Peck Furniture Co., Tex.Com.App., 248 S.W. 26; Gray v. Kaliski, Tex.Civ.App., 8 S.W.2d 203; Watson v. Emp. Liability Assur. Corp., Tex.Civ.App., 80 S.W.2d 1098; McHard v. Nona Mills Co., Tex.Civ.App., 35 S.W.2d 1108; Land v. Land, Tex.Civ.App., 83 S.W.2d 407; Gulf Production Co. v. Kishi, Tex.Civ.App., 105 S.W.2d 733; Pearlstone-Ash Co. v. Rembert Bank, Tex.Civ.App., 135 S.W.2d 559.