text:
    CONNELL v. TEXAS LIQUOR CONTROL BOARD.
    No. 5828.
    Court of Civil Appeals of Texas. Texarkana.
    July 30, 1940.
    Rehearing Denied Aug. 1, 1940.
    W. H. Crunk, of Cooper, for appellant.
    E. G. Pharr, of Cooper, Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Fred C. Chandler, and M. C. Martin, Asst. Attys. Gen., for appellee.
   JOHNSON, Chief Justice.

On April 10, 1940, appellant, R. M. Con-nell, a registered pharmacist, filed his application with the Texas Liquor Control Board for a permit to sell intoxicating liquor at a pharmacy or drug store owned and operated by him under the name of City Drug Store in the city, of Cooper, Delta County. The application was by the Board refused because the facts showed that the pharmacy or drug store for which the permit was sought had not been in operation for a full period of two years next preceding the filing of the application. From the order of the Board the applicant appealed to the District Court of Delta County where a trial de novo before the court without a jury resulted in judgment denying the permit. From the judgment of the district court the applicant has appealed to this court.

No request was made for findings of fact and conclusions of law, hence none were filed by the trial court. The evidence as shown by the statement of facts in the record appears to be undisputed. The pharmacy or drug store in question was organized in 1897 by Ollie Clemm and R. L. Connell. Later Mr. Clemm sold his interest to Connell, and in 1907 Connell sold to Mr. Snell. Mr. Snell operated it until 1917 or 1918, when he sold to Dr. R. E. DeWitt who about one year later sold to Crowe and Garmany who operated it until 1924 or 1925, when they failed in business and went into bankruptcy. Snell bought the property from the trustee in bankruptcy and operated it until June, 1938, when he sold to Mr. Fei-genbaum who operated the business for a short time and sold to W. D. Price. Price operated the business until March 9, 1939, when the County Tax Collector for Delta County levied upon the entire stock of goods and fixtures for taxes due the State, County, the City of Cooper, and the Cooper Independent School District, and closed the door of the store and advertised same for sale. At the end of 20 days the entire stock and fixtures were sold to Delta County which held same for the joint ownership of the State, the County, the City of Cooper, and the Cooper Independent School District. About May 1, 19-39, Mr. Snell, a registered pharmacist, purchased the stock of merchandise and fixtures from Delta County. He operated the drug store under the name of Snell’s Pharmacy until April, 1940, when he sold to R. M. Connell who has since operated it under the name of City Drug Store. From the time the Tax Collector of Delta County levied upon the property March 9, 1939, until it was sold to Snell on April 29, 1939, a period of 50 days, the drug store was closed and not in operation and did not have a registered pharamacist employed or on duty. Twenty days of this time it was being advertised for sale by the Tax Collector. The other 30 days it was owned by Delta County, and no one was employed to or did attempt to operate it during that period of time. So, it appears that the pharmacy or drug store for which the permit was sought in this case did not have employed or on duty a registered pharmacist and was not in operation for a period of more than 1½ months, during the two years next preceding the filing of the application.

The pertinent sections of the Texas Liquor Control Act are as follows:

Article 666, Sec. 15, Subsec. (18), Vernon’s Ann.Penal Code: “Retail Pharmacists shall be entitled to receive medicinal permits and sell or dispense liquor for medicinal purposes only. The holders of such permits are authorized to purchase liquor from holders of wholesaler’s permits in this State. Any pharmacy for which a permit is sought must be a bona fide pharmacy registered with the State Board of Pharmacy; must employ and have on duty at all times a registered pharmacist and must have been in operation as a pharmacy for at least two (2) years in the particular political subdivision in which a permit is sought.”

Article 4542a of Vernon’s Annotated Civil Statutes, Sec. 19 reads: “A ‘pharmacy’ or ‘drug store’ as used in this Act is any store or place where drugs or medicines are sold or furnished in any bona fide manner at retail to the consumer wherein a registered pharmacist is continuously employed.”

Section 20 of said Article reads: “A ‘pharmacist’ as used in this Act, means a person licensed by the State Board of Pharmacy, to prepare, compound and dispense physicians’ prescriptions, drugs and medicines and poisons.”

The sole question here involved is whether the two-year period mentioned in the statute (Vernon’s Ann.Penal Code, Art. 666, Sec. 15, Subsec. (18) during which “any pharmacy for which a permit is sought * * * must employ and have on duty at all times a registered pharmacist and must have been in operation as a pharmacy for at least two (2) years in the political subdivision in which a permit is sought,” is to be construed as referring to the two years next preceding the filing of the application for the permit; or as referring to any two-year period, transpiring at any time in the past, prior to the filing of the application. We do not think the latter construction comes within the spirit and purpose of the Texas Liquor Control Act, Article 666, Sec. 2, of Vernon’s Ann.Penal Code, which expressly provides: “This entire Act shall be deemed an exercise of the police power of the State for the protection of the welfare, health, peace, temperance, and safety of the people of the State, and all its provisions shall be liberally construed for the accomplishment of that purpose.”

To construe the statute as referring to any two-year period transpiring at any time in the past would open the opportunity requiring issuance of permits to applicants who might acquire formerly existing drug stores just so same had operated for two years at some period in the past. We believe it more reasonable and in accord with the general purpose of the Liquor Control Act to construe the statute (Art. 666, Sec. 15, Subsec. (18), Vernon’s Ann.P.C.) as referring to the two-year period immediately preceding the date of the application.

It is undisputed that the pharmacy or drug store for which the permit is sought in this case lacked one month and twenty days of being in operation the full period of two years next preceding the filing of the application, therefore we think the Texas Liquor Control Board and the trial court correctly determined that it was not authorized to issue the permit.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    DAY v. STUCKEY.
    No. 5657.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 1, 1940.
    Bramlette, Levy &'Dotson and Frank C. Bolton, Jr., .all of Longview, and Z.. E. -Coombes, of Dallas, for appellant.
    Wynne & Wynne, of Longview, for. ap-pellee.
   HALL, Justice.

Appellant’s statement of this case, which is agreed to by appellee, is:

“J. Fred Stuckey filed this action in the 124th Judicial District Court of Gregg County, Texas, against D. McCann, a resident of Gregg County, Texas, and J. E. Day, a resident of Dallas County, Texas.
"“Appellee complains of fraud on the part of Appellants in connection with his purchase from them of a ‘royalty’ interest under a tract of land producing oil and gas located in Rusk County, Texas.
“Appellant, J. E. Day, filed his plea asserting his 'privilege to be sued in Dallas County, Texas. The appellee, relying on Sections 4, 7 and 29a of Article 1995, Revised Civil Statutes [Vernon’s Ann.Civ.St. a'rt. 1995, subds. 4, 7, 29a] duly controverted said'plea.
“From the order of the court overruling the plea of privilege, the appellant,' J. E. Day, has perfected his appeal to this court.”

Appellant’s first proposition is: “The court should not have admitted in evidence as confessed the unanswered ex parte interrogatories of the Appellant, J. E. Day, because such Appellant was never under subpoena to appear before the officer, taking such deposition.”

The certificate of the notary commissioned to take Day’s ex parte deposition is:

“I, Linden A. McCreight, a Notary Public in and for Dallas County, Texas, do hereby certify that on the 6th day of January, A. D. 1939, pursuant to the commission hereto attached, I issued a subpoena, original of which is hereto attached, .directed to J. E. Day, Dallas,- Dallas County, Texas, subpoenaing the said J. E. Day to be and appear before me at 11:00 A. M., January 7th, 1939, at the offices of the Associated Reporters, 481 Old Court House Building, Dallas, Texas, to give testimony and answer ex parte interrogatories directed to him in the case of J. Fred Stuckey versus D. McCann and J. E. Day, being cause No. 12820-B, pending on the docket of the District Court of the 124th Judicial District of Texas, in and for Gregg- County, Texas:
■ “That service, was had of said subpoena on said J. E. Day prior to 11:00 A. M. on January 7, 1939, and said witness was tendered $1.00 witness fee which he accepted, . as shown by the return on said subpoena hereto attached;
“That the said witness, J. E. Day, wholly failed to appear at the time and place set forth in said subpoena to give his deposition as directed therein;
“That at approximately 12:30 P. M. on January 7, 1939, Mr. Z. E. Combs, an attorney of Dallas County, Texas, called me over the telephone and stated that he represented the said J. E. Day in said case; that said J. E. Day had informed him, the said Z. E. Combs, that he had a subpoena to appear before me and give a deposition; said Z. E. Combs then stated J. E. Day was serving on a Jury in Dallas County, Texas, and that he would not appear in answer to said subpoena until the said Z. E. Combs had looked up some law with reference to the same;
“That thereafter and on or about January 10, 1939, at a subsequent conversation, the said Z. E. Combs informed me that in his opinion the commission would not be valid because he had received no notice thereof; and that the said J. E. Day would not appear in answer to said subpoena to give his deposition as directed.
,!I further certify the said J. E. Day has wholly failed and refused to appear and give his deposition and answer the questions to be propounded to him as directed by said subpoena duly served upon him; and that I here and now return said deposition, ex parte, into Court and unanswered by reason of the facts herein set forth.
“Given under my hand and seal of office this the 24th day of January, A. D. 1939.
“(Signed) Linden A. McCreight
“Notary Public in and for Dallas,
“Dallas County, Texas.”

Upon this certificate the trial court found: “That the defendant (appellant) J. E. Day, refused to answer said ex parte interrogatories, without any just or legal cause, and, it so appearing, the said interrogatories were and are taken as confessed and duly admitted in evidence upon said hearing.”

It is our conclusion that the court’s finding in this regard is correct, and authorized by Article 3769, Secs. 1, 2 and 7, R.C.S. See, also, Hubbard v. De Ford, Tex.Civ.App., 297 S.W. 869. Appellant in his brief states: “These ex parte interrogatories were worded so that when taken as confessed they were sufficient to prove the cause of action.” We are in accord with this statement, and it being undisputed that one of the defendants, D. McCann, was a resident citizen of Gregg County at all times mentioned in Day's plea of privilege, the venue of the main case was properly laid in Gregg County. This holding also disposes of appellant’s proposition No. 2.

The judgment of the lower court is in all things affirmed.


author: LOONEY, Justice.

text:
    SOUTHERN UNDERWRITERS v. ELLIS-SMITH & CO.
    No. 12901.
    Court of Civil Appeals of Texas. Dallas.
    July 6, 1940.
    Will R. Saunders, of Dallas, for plaintiff in error.
    Kennemer & Armstrong, of Dallas, for defendant in error.
   LOONEY, Justice.

Ellis-Smith & Company, a partnership, sued W. T. Pinkston and wife, Mrs. R. L. Pinkston, in an action of debt, and applied for the issuance of a writ of garnishment against “Southern Underwriters”, alleged to be indebted to the defendants, and a resident of Harris County, Texas. The application for garnishment failed to disclose whether Southern Underwriters was a corporation, a partnership, or an individual operating under that name; nor did it disclose the name of any person upon whom service of the writ could be had.

On April 18, 1938, Ellis-Smith & Company obtained judgment in the main suit against the Pinkstons, for the full amount sued for, and on October 25, 1938, took judgment by default against Southern Underwriters for the amount of the judgment against the Pinkstons, from which, in due time, Southern Underwriters perfected this appeal by writ of error.

Plaintiff in error urges a number of grounds for reversal, several of which, in our judgment, are well taken, but only one will be discussed, because we think it indisputably appears that, the court was without jurisdiction to render the judgment.

Although the judgment entry recites that, “ * * * the garnishee, Southern Underwriters, came not, though it appeared to the court that it had been duly and timely served and cited to appear and answer herein, but has wholly defaulted”, etc., yet the record contains no writ and, consequently, no return of the officer showing service, and the only evidence found in the record tending to show that a writ was ever issued or served is, an affidavit (bearing no file mark) by a deputy sheriff of Harris County, dated September 22, 1938, to the effect that, on August 4, 1936, two writs of garnishment, issued in cause No. 23,594-A, were turned over to the affiant and were served on same date. No other description of the writ was given, nor does the affidavit state how, or upon whom, service was had. Affiant also stated that the return, giving the name of the individual upon whom service was obtained and the date of service, was mailed to the attorneys, at Dallas, who represented plaintiff in the original suit.

We do not think the affidavit of the deputy sheriff can be considered as part of the record, for any purpose. The statute (Art. 2289, R.C.S.) furnishes ample procedure for the substitution of lost papers, but was not pursued in the instant case. As the record fails to show that a writ of garnishment was ever issued against, or served upon plaintiff in error, it is apparent that, the court was without jurisdiction to render the judgment; therefore, it is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    TRADERS & GENERAL INS. CO. v. DAVIS et al.
    No. 5619.
    Court of Civil Appeals of Texas. Texarkana.
    July 9, 1940.
    Rehearing Denied July 18, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort Worth, and Stinchcomb, Kenley & Sharp, of Longview, for appellant.
    Jones & Jones, of Marshall, for appellee.
   HALL, Justice.

W. M. Davis, acting as administrator of the estate of J. M. Mcllveene, instituted this suit to recover the sum of $6,000 alleged to be owing the estate of Mcllveene by appellant. Exception by appellant to Davis’ authority to prosecute this suit being by the court sustained, Mrs. J. M. Mcll-veene, wife of J. M. Mcllveene, deceased, was permitted to intervene as administra-trix in the place of Davis, and she will be referred to hereafter as appellee. It was alleged by appellee that prior to March 31, 1934, appellant issued to. one C. A. Jones its public liability policy of insurance whereby “it insured and indemnified him in such a way that it would become indebted and liable to persons who were injured by reason of his (Jones’) negligent or careless operation of his automobile, and agreed and became liable to pay off and satisfy such judgments as might be rendered against him (Jones) for injuries or death inflicted and caused by the operation of his automobile;” that on March 31, 1934, and while said policy was in force, C. A. Jones negligently inflicted serious and permanent injuries to J. M. Mcllveene by driving his automobile against him. Appellee alleged further that appellant received prompt notice of said injury, made an investigation thereof, and after suit was filed by Mc-llveene against Jones for damages resulting from his injuries, appellant took charge of the defense of said suit with attorneys employed and furnished by it; that the trial of the case between Mcllveene and Jones resulted in judgment for Mcllveene for $4,000; that appellant furnished the appeal bond and prosecuted an appeal of that cause to the court of civil appeals and to the Supreme Court, which resulfed in an af-firmance of same. That judgment became final on June 30, 1937. It was alleged further that after the rendition of the judgment' against Jones, Mcllveene died, leaving a widow and several children; that an execution had been issued against C. A. Jones to satisfy that judgment and had been returned unsatisfied on account of Jones owning no property subject to execution; and that C. A. Jones was insolvent. “That by reason of said contract of insurance made with C. A. Jones by appellant and under the said insurance policy, appellant became indebted to the said J. M. Mc-llveene, and upon his death to his estate, in the sum of $4,000 with interest at 6% per annum from the 29th day of June, 1935. * * * that all the requirements, exceptions, regulations and conditions in the said policy contained were fully complied with and there has been no breach of same that has the effect of creating or giving to defendants a defense to any part of this cause of action. All, if any breaches or defenses that would have relieved defendant from liability to plaintiff under said policy, have been waived by it;” and that having taken charge of the defense of the suit of Mcllveene v. Jones and participated therein throughout the trial, is estopped to urge said defense in this suit. Appellee alleged, in the alternative, being unable to collect said judgment from Jones, that under the law he is authorized to prosecute this suit against appellant for the amount of that judgment, together with the legal interest thereon from the date of its rendition.

Appellant, answered by general demurrer, and numerous special exceptions, all of which were overruled, and a general denial. It averred that Mrs. J. M. Mcllveene as temporary administratrix of the estate of J. M. Mcllveene, deceased, was without authority to prosecute this suit or intervene therein. Answering specially appellant alleged: (1) That the policy of insurance issued by it to C. A. Jones was one of indemnity and not public liability, that this suit is not by Jones, nor has Jones paid or discharged the judgment against him in favor of appellee, neither has he transferred to appellee any of his (Jones’) rights in said insurance policy (this was accomplished later by the act of Jones in transferring and assigning to Mrs. Mcllveene, temporary administratrix, for a valuable consideration, the insurance policy and all rights and claims therein owned and held by him). (2) That C. A. Jones was a necessary party to this suit (this was later complied with by Jones’ intervening and adopting in the main appellee’s pleadings). (3) That C. A. Jones is not insolvent and no liability exists against appellant until Jones has discharged appellee’s judgment against him in whole or in part or is shown to be wholly insolvent. (4) That the defense it made in the case of Mcllveene v. Jones “was made under a written 'non-waiver agreement’ between this defendant and the said C. A. Jones, whereby this defendant in no wise recognized any liability on or against it in said suit, but specifically reserved all its defenses as against the said C. A. Jones and the said J. M. Mcllveene under said policy' of insurance”. (S) That C. A. Jones breached each and all of said-terms of said insurance contract in that he (a) failed to give proper notice to it of the accident to Mcllveene; (b) that he failed to properly cooperate in the defense of the suit of Mcllveene v. Jones; (c) that he “failed to fully testify and develop all of the true facts concerning such accident in the trial of said cause;” and (d) that he withheld material facts from appellant in the Mcllveene case. (6) That appellee is barred by the one, two, and four years statutes of limitation. And (7) that J. M. Mcllveene had no cause of action against C. A. Jones in the case in which Mcllveene secured a judgment against Jones for his (Mcllveene’s) injuries.

C. A. Jones was permitted to intervene and he adopted all the allegations in. ap-pellee’s second amended petition, except that alleging his insolvency. By trial amendment appellant attacked the transfer from C. A. Jones to Mrs. J. M. Mcllveene, administratrix, of the policy of insurance sued on herein and his' rights ■ and claims thereunder and especially the claim involved in this suit. This transfer wds attacked as being void, of no force and effect, and in conflict with the provisions of the policy.

Trial was to a jury on special issues in answer to which the jury found: (1) That at the time and place J. M. Mcllveene was injured the car was not being operated by C. A. Jones for the purpose of committing a felony; and (2) that the intervenor, C. A. Jones, did not fail to properly cooperate with the defendant, Traders & General Insurance Company, in the defense of the suit of J. M. Mcllveene v. C. A. Jones. Other issues were submitted to the jury making inquiry as to the intoxication of Jones at the time he injured Mcllveene, and also with respect to the insolvency of Jones. These issues were not answered by the jury. Upon the issues answered by the jury the trial court entered judgment for appellee for the amount of the Jones judgment with interest thereon at 6% from the date of its rendition, and costs.

Appellant’s first proposition asserts that the judgment herein is a nullity for the reason that there was no plaintiff in the case and no authority vested in any one to act as plaintiff. As stated in the beginning, Davis, styled as administrator, instituted this suit. His authority to act as such was questioned by appellant, and the court below dismissed him from this case, holding that he had no authority to institute same. While the court below was considering Davis’ authority, Mrs. Mc-llveene and her children were permitted to intervene, and they did intervene, adopting the pleading theretofore filed in this cause by Davis. On the same day Mrs. Mcllveene made application for, was appointed and qualified as temporary adminis-tratrix of the estate of J. M. Mcllveene, deceased, with specific authority to prosecute this suit. On the same date appellant pleaded surprise, was permitted to withdraw its announcement of ready, and the court continued the cause for the term. At a succeeding term Mrs. Mcllveene filed .other pleadings upon which the case was tried.

It appears from the record that Davis, upon the death of Mcllveene, which occurred while the Mcllveene v. Jones case was pending on appeal in the court of civil appeals, was appointed temporary administrator to. represent the estate on appeal. After that case had been affirmed by the court of civil appeals and writ of error dismissed by the Supreme Court, Davis’ authority to act ceased. The trial court properly dismissed him from this case and permitted Mrs. Mcllveene, wife of the deceased and mother of their children, to act in such capacity as temporary administra-trix with authority to prosecute this suit. Hall v. Davison, Tex.Civ.App., 176 S.W. 642, writ refused. In her plea of intervention Mrs. Mcllveene alleged specifically her authority to intervene in this suit and that Davis was without authority to prosecute same in the capacity of administrator of Mcllveene’s estate. Moreover, the action of the county court appointing Mrs. Mcllveene temporary administratrix and the action of the district court in permitting her to intervene in this cause were brought about by the motion of appellant challenging Davis’ authority to institute and prosecute this suit, and we think the court below very properly permitted Mrs. Mc-llveene to intervene, both individually and as temporary administratrix, in order to save this cause of action to her as widow of J. M. Mcllveene, deceased, and their minor children. Certainly appellant is in no position to complain of this action of the trial court. This proposition is overruled.

By appellant’s 2nd, 3rd, 4th, Sth, 6th and 7th propositions it is charged that the failure of the jury to answer special issues submitted to them with respect to the solvency of Jones, the assured, rendered the verdict incomplete and’ insufficient upon which to base the judgment herein against it. The pertinent provisions of the insurance policy applicable to these and other contentions brought forward are:

“Automobile Policy
“Traders & General Insurance Company
“Home Office — -Dallas, Texas.
“In consideration of the Premium and the statements as set forth in the Schedule of Declarations, which the Assured represents to be true by the acceptance of this policy, and which are made a part hereof, does hereby agree to insure—
“C. A. Jones (hereinafter called the assured)
* * *
“Section II (Damage by Automobile)
“Against direct loss or expense arising or resulting from claims upon the Assured for damages by reason of the ownership or maintenance of the automobile described in Statement 2 of the Schedule of Declarations and the use thereof for the purposes described in Statement 3 of the Schedule of Declarations * * *, to an amount not exceeding the limits hereinafter stated, if such claims are made on account of
“Item 6. Bodily injuries or death accidentally suffered or alleged to have been suffered by any person or persons * * * as the result of an accident occurring while this policy is in force; provided there is a specific premium charge made in writing in Item 6 of the ‘Schedule of Coverage’ on the preceding page. The liability of the Company under this Item 6 for loss or expense on account of an accident resulting in bodily injuries to or in the death of one person is limited to Five Thousand Dollars ($5,000.00) and, subject to the same limit for each person,, the total liability of the Company for loss or expense on account of an accident resulting in bodily injuries to or in the death of more than one person limited to Ten Thousand Dollars ($10,000) * * *
* * *
“Item 9. In the event that loss or expense from the perils set forth in Item 6, and/or Item 8 is insured against hereunder, then as respects the peril or perils so insured against, the Company does hereby agree:
“Investigation and Defense (A) To investigate all accidents covered by Item 6 and/or Item 8 of this policy and to defend in the name and on behalf of the Assured all suits therein, whether groundless or not; and
“Interest and Costs (B) To pay all costs taxed against the Assured in any legal proceeding against the Assured under Item 6 'and/or Item 8 which is defended by the Company in accordance with the foregoing agreement; and to pay interest accruing upon that part of any judgment rendered in connection therewith which is not in excess of the policy limits, but only such interest as shall accrue after entry of judgment and up to the date of payment by the Company of its share of such judgment and will furnish supersedeas and appeal bonds to stay all executions on all judgments, not in excess of the limits of liability of the Company under this policy; * * *
“(6) This policy does not cover:
“(a) Under either Section I or II of the Schedule of Perils, any loss, damage or expense while the automobile insured hereunder is operated, maintained or used * * * (ii) for the carrying of explosives not used in connection' with the operation of the automobile or for other unusual, felonious or extra hazardous purposes ; * * *
“Personal Injury.
* * *
“(13) Upon the occurrence of any loss or accident covered under Section II hereof, and irrespective of whether any injury or damage is apparent af the time, the Assured shall give immediate written notice to the Company at its office in Dallas, Texas, or to the authorized representative who issued this policy with the fullest information obtainable at the time. If a claim is made on account of any such accident the .Assured shall give like notice thereof immediately after such claim is made, with full particulars; If thereafter any suit is brought against the Assured to enforce such claim, the Assured shall immediately forward to the Company every summons or other process as soon as the same shall have been served and attend all trials in connection with said suit: Whenever requested by the Company, the Assured shall aid in effecting settlement, securing information and evidence, the attendance of witnesses and in prosecuting appeals, and at all times render all possible cooperation and assistance; the Assured shall not voluntarily assume any liability or interfere in any negotiation for settlement or in any legal proceedings or incur any expense or settle any claim, except at Assured’s' own cost, without the written consent of the Company previously given, nor shall any. Assured as herein defined be a claimant under this Section: The Company reserves the right to settle or defend any such claim or suit brought against, the Assured.
“(14) No action shall lie against the Company to recover for any loss or expense under this policy unless brought after the amount of such claim for loss or expense shall have been rendered certain either by final judgment against the Assured after the trial of the issues or by agreement between the parties with the written consent of the Company. It is a condition of this policy that the insolvency or'bankruptcy of the named Assured shall not release the Company, and if because of such insolvency or bankruptcy recovery can not be sustained, the judgment creditor shall then have a right of action to recover against the Company the amount of said judgment to the same extent that the named Assured would then have had to recover had the .named Assured paid the judgment, but in no event shall the Company’s liability exceed the limits expressed in this policy or its obligation to the Assured.”

It will be noted that by the terms of said insurance policy appellant insures Jones against loss or expense resulting from claims upon him for damage arising from the operation of his automobile; that appellant will “investigate all accidents * * * and defend in the name and on behalf of the Assured all suits therein, whether groundless or not;” and “reserves the right to settle or defend any such claim or suit, brought against the Assured.” Giving effect to these provisions the conclusion is inescapable that appellant undertook by its policy of insurance to save harmless C. A. Jones, the assured, from damages, attorney fees, court costs and other expenses incident to any suit brought against him for damages on account of the operation of his automobile. Reading together the provisions quoted last above, the appellant binds itself unqualifiedly to “defend or settle” any suit for damages brought against the assured, whether said suit be “groundless or not.” In discussing a similar provision to this, Chief Justice Cureton in the case of American Indemnity Company v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 909, 37 A.L.R. 633, said: “* * The policy then provides that, if suit is brought, the assured must forward to the company every process and paper served on him, and the company agrees then, at its own expense, to either settle or defend the suit, whether groundless or not. It is provided that the money expended in the defense shall not be included in the limits of the liability fixed under the policy. However, the assured cannot assume any liability or interfere with any negotiations for settlement or any legal proceedings, ñor incur any expense, nor settle any claim, except at his own cost, without the written consent of the company. In other words, the effect of it is to turn the defense of the case against the assured completely over to the indemnity company. The company undertakes to relieve the assured of all trouble with reference to the matter, and undoubtedly of all liability for the suit, to the extent of the limit specified in the policy. The company’s obligation is manifestly to defend successfully, not imperfectly nor unsuccessfully, else its obligation is to settle. It is true that the provision does not say that if the indemnity company fails in its defense, and judgment is rendered against the assured, it will pay the judgment; hut we believe that this was the purpose and intention of the parties when the contract was made.” So, in this case the appellant insurance company is liable to appellee for the full amount of judgment rendered against assured Jones in the case of McIlveene v. Jones, unless its contention that the terms of the policy were breached by Jones lends it sufficient aid and comfort to escape the binding effect thereof. There is no contention that Mcllveene’s injury was not covered by the policy, and there is no serious dispute in this record but that appellant took complete charge of Jones’ defense in the damage suit filed against him by Mcllveene as it was obligated to do under the terms of the insurance policy. This case differs from that of American Indemnity Co. v. Fellbaum, supra, in that here the defense of the suit of McIlveene v. Jones by appellant was under what is termed a “non-waiver agreement”, which agreement is:

“The State of Texas
“County of Gregg
“Whereas, in a certain suit pending in the District Court of Gregg County, Texas, wherein J. M. Mcllveene is plaintiff, and C. A. Jones is defendant, the plaintiff claimed damages for personal injuries alleged to have been sustained by him on or about March 31, 1934, when he was hit by an automobile driven by the defendant; and,
“Whereas, the defendant, C. A. Jones carried a public liability insurance policy on his automobile, said policy having been issued to him by the Traders & General Insurance Company; and,
“Whereas, the Traders & General Insurance Company, through its attorneys, is willing to take charge of said litigation and defend the same on behalf of C. A. Jones, but is unwilling to admit that under the terms of its policy of insurance that it is liable to indemnify the defendant, C. A. Jones:
“Now, therefore, In consideration of the premises the undersigned C. A. Jones agrees that the action on the part of the Traders & General Insurance Company in taking charge of and defending the suit referred to above, or in negotiating for a settlement with the plaintiff or his attorneys, shall not be construed as waiving any existing rights or defenses which it, the Traders & General Insurance Company, may have.
“It is also expressly understood that the said C. A. Jones is not waiving his rights to insist that the Traders & General Insurance Company is liable to indemnify him against any loss or damage arising out of and incident to said suit filed by J. M. Mcllveene.”

In our opinion, appellant’s right under the non-waiver agreement, and its only right secured thereunder, was the benefit or advantage of defending in this suit against the 'Mcllveene judgment the alleged breach by Jones of the terms and conditions of the insurance policy. The non-waiver agreement does not purport to afford any other right. Appellant simply sought to avoid the effect of a waiver of its rights under the insurance policy as held in the Fellbaum case, supra. This it effectively did. Utilities Ins. Co. v. Montgomery, 134 Tex. 640, 138 S.W.2d 1062 (Com.App. adopted by Sup.Ct.); City of Wichita Falls v. Travelers Ins. Co., Tex.Civ.App., 137 S.W.2d 170, writ dismissed. So the defense of this cause by appellant on account of the alleged' breach by Jones of the conditions of the insurance policy was entirely proper, and had it secured a favorable finding from the jury substantiating said defense,- it would have been relieved of payment of the Mcllveene judgment theretofore secured against Jones. But as heretofore pointed out, the jury in this case found (1) that at the time and place J. M. Mcllveene was injured, the car was not being operated by C. A. Jones for the purpose of committing a felony, and that (2) the intervenor, C. A. Jones, did not fail to properly cooperate with defendant, Traders & General Insurance Company, in the defense of the suit of J. M. McIlveene v. C. A. Jones. In our opinion, these findings by the jury constituted a sufficient finding .on the ultimate facts in dispute as between Jones and appellant and rendered the other issues submitted immaterial. The above findings of the jury under the holding of the Supreme Court in American Indemnity Co. v. Fellbaum, supra, form sufficient basis for the judgment rendered in the court below, from which this appeal is prosecuted.

There is another reason, .and perhaps a better one, for affirming the judgment of the court below. It is provided in the insurance contract that no action shall lie against the insurer to recover for any loss or expense under the policy until the amount of such claim has been rendered certain either by judgment against the assured or by settlement. It is provided, further, that insolvency or bankruptcy of the assured shall not relieve the insurer; and if on account of such insolvency or bankruptcy a recovery can not be sustained, then the judgment creditor shall have a right of action against the insurer to recover the amount of such judgment not to exceed the limits of the policy.

A judgment was rendered in favor of J. M. Mcllveene against C. A. Jones, the assured, which has become final and which forms the basis of this suit. There is no dispute about these facts. But it is contended by appellant that there should have been a finding by the jury on the issue of the insolvency of Jones. After careful study of the record herein, we have concluded that Jones’ insolvency was established by the undisputed testimony and there was no necessity for a jury finding thereon. Appellee introduced in evidence the return of an execution by the sheriff of Gregg County showing “no property found.” This fact alone has been held to establish a prima facie case of insolvency to give right to a cause of action by the judgment creditor against the insurer under a “no action” provision similar to the one heretofore set out in this opinion. Weiss v. New Jersey Fidelity & Plate Glass Ins. Co., 131 Misc. 836, 228 N.Y.S. 314. In Horn v. Commonwealth Casualty Co., 105 N.J.L. 616, 147 A. 483, 484, the court said: “It is hard to conceive a more cogent proof of inability to answer pecuniary engagements than the return of an execution unsatisfied.” To the same effect are Knabe v. Independence Indemnity Co., 144 A. 179, 7 N.J.Misc. 93; Edwards v. Fidelity & Casualty Co. of New York, 11 La.App. 176, 123 So. 162. Other authorities hold that the sheriff’s return of execution showing “no property found,” coupled with evidence of the insured or some other person that assured has not sufficient property out of which to satisfy the execution, if not contradicted by the insurer, is sufficient to establish the insolvency of the assured. Metropolitan Casually Ins. Co. v. Blue, 219 Ala. 37, 121 So. 25; United States Fidelity & Guaranty Co. v. Williams, 148 Md. 289, 129 A. 660. For a complete discussion of the authorities dealing with this question see 85 A.L.R. 54, subd. d.

The assured’s testimony given on the trial of this case shows that he owns very little, if any, property and certainly not enough property to satisfy the judgment rendered against him in the case of McIlveene v. Jones, “The term insolvency is not always used in the same sense. It is sometimes used to denote the insufficiency of the entire property and assets of an individual to pay his debts. This is its general and popular meaning. But it is also used in a more restricted sense, to express the inability of a party to pay his debts, as they become due in the ordinary course of business.” Toof v. Martin, 13 Wall. 40, 47, 20 L.Ed. 481. These definitions were quoted with approval by Justice Stayton in Blum v. Welborne, 58 Tex. 157. In 32 C. J. p. 805, § 1, insolvency is defined: “In its general and popular meaning the term (insolvency) denotes the state of one whose entire property and assets, when converted into money without unreasonable haste or sacrifice, are insufficient to pay his debts.” In Luse v. Rea, Tex.Civ.App., 207 S.W. 942, 944, affirmed by Sup.Ct. 231 S.W. 310, it is said: “The court charged the jury that 'a person is insolvent if he has not property or means sufficient to pay his debts.’ He might have sufficient property out of which payment of any per cent, of his debt less than 100 per cent, might be made and yet be insolvent.” We think the last sentence more nearly denotes the meaning of the term “insolvency” as it is used in the insurance policy under discussion herein. The term does not mean that the insured must be judicially determined to be bankrupt before suit may be brought against the insurer by the judgment creditor. Metropolitan Casualty Ins. Co. v. Blue, supra; Horn v. Commonwealth Casualty Co., supra; Eagle Indemnity Co. v. Diehl, 9 Cir., 27 F.2d 76; Miller v. Union Indemnity Co., 209 App.Div. 455, 204 N.Y.S. 730. The question of Jones’ insolvency being established by the uncontroverted evidence, the right of Mrs. Mcllveene to prosecute this suit against the appellant insurance company to collect her judgment against Jones, the assured, became absolute under the very terms of the insurance policy, subject, of course, to any defense which the insurance company might have against Jones for alleged violations of the provisions of the insurance policy which it had reserved under the non-waiver agreement. Government Personnel Auto Ins. Ass’n v. Haag, Tex.Civ.App., 131 S.W.2d 978, writ refused. Therefore, these propositions are overruled.

Other propositions brought forward are not discussed, but have been examined and are respectfully overruled.

From a careful examination of this entire record it is clear to us that the appel-lee should recover the judgment rendered by the court below, appellant not having shown any reversible error.

The judgment is affirmed.


author: MONTEITH, Chief Justice.

text:
    LANGE CABLE TOOL DRILLING CO. v. BARNETT PETROLEUM CORPORATION.
    No. 11041.
    Court of Civil Appeals of Texas. Galveston.
    July 25, 1940.
    Kirmit Smith and Aubrey A. Wilson, both of Gladewater, for appellant.
    Florence & Florence, of Gilmer, and E. M. Dodson, of Marlin, for appellee.
   MONTEITH, Chief Justice.

This is an appeal in an action brought by appellant, Lange Cable Tool Drilling Company, against appellee, Barnett Petroleum Corporation, to recover for labor performed and services rendered in drilling out a plug in an oil well owned by appellee in Upshur County, Texas, and to establish and foreclose an alleged lien against the property on which the well was located.

The action was originally brought against appellee and Phillips-Packer Company but was dismissed by appellant as to Phillips-Packer Company when the case was called for trial.

Appellant alleged that it had entered into an oral contract with Phillips-Packer Company to perform said labor and services; that said contract had been ratified by appellee through its authorized agent, H. C. Duncan; that the said labor had been performed, its lien had been filed, and that all other acts necessary to protect its lien on the property on which said well was located had been done.

Appellee answered by general demurrer and general denial. It specifically denied that it had made any contract with appellant to do said work or that it had ratified any contract between appellant and Phillips-Packer Company to do said work. It pled that it had made a contract with the Phillips-Packer Company to plug said oil well at a specified price for the work prior to the time the work involved in this suit had been performed; that under said agreement it had no right to control the manner and method by which said work was done; that appellee did not employ appellant, and that, if appellant had performed the work alleged, said work was ■done for Phillips-Packer Company and not for appellee.

In answer to special issues submitted, the jury found, in effect, that appellant did not have an oral agreement with appellee for the performance of the services in question; that appellant had an oral agreement with Phillips-Packer Company for the performance of such services; and that H. C. Duncan, an agent for appellee, did not ratify said agreement or contract on its behalf to pay for said services. Based on said verdict of the jury judgment was rendered in favor of appellee.

The record shows that in November, 1938, appellee entered into a contract with Phillips-Packer Company to place a cement plug in its oil well known as Bradshaw # 1 for the purpose of shutting off the salt water in the well, with the understanding that no charges would be made therefor in the event the plug did not produce the claimed results. The plug did not prove to be satisfactory, in that it shut off both the salt water and the oil in the well, and thereafter Phillips-Packer Company agreed with appellee that it would, at its own expense, drill the plug out of the well. The labor in question was performed by appellant under an oral agreement with Phillips-Packer Company.

The jury having found the ultimate issues made by appellants’ pleadings in favor of appellee, to the effect that appellee had neither contracted with appellant nor ratified said contract or agreed to pay for the services rendered by appellant, the only questions to be determined in this appeal are whether reversible error was committed by the trial court in admitting in evidence testimony in reference to an agreement by Phillips-Packer Company with ap-pellee to drill the plug out of said well without having specifically pled it, and in the admission in evidence of agreements by representatives of Phillips-Packer Company to drill the plug out of said well at its own expense which were made out of the presence of representatives of appellant.

Appellant, as a basis for its recovery, pled that it did certain work and performed certain services under an oral contract with Phillips-Packer Company and that said contract was ratified by appellee. Appellee denied that it had made a contract with appellant to perform said services or that it had ratified the contract between appellant and Phillips-Packer Company to plug said well for it for a specified price. It alleged that Phillips-Packer Company was an independent contractor and that if appellant had done any work on said well, it was done for Phillips-Packer Company and not for appellee.

On the trial of the case appellee introduced evidence showing that the plugging of said well did not produce satisfactory results and that thereafter Phillips-Packer Company agreed that it would, at its own expense, drill the plug out of the well.

It is the settled law in this state that a pleader need only allege the ultimate facts constituting his claim or defense and that it is neither necessary nor proper to set forth the evidence by which he expects to prove it. 17 Tex.Jur. 340, Section 108. The evidence with reference to the plugging of said well, the fact that the results were unsatisfactory, and the subsequent agreement by the Phillips-Packer Company to drill the plug out of said well at its own expense was, we think, incidental to and admissible for the purpose of establishing appellee’s defenses that Phillips-Packer Company was an independent contractor and that, if appellant had performed labor on said well, it was done for Phillips-Packer Company and not for ap-pellee.

We cannot sustain appellant’s contention that reversible error was committed by the trial court in permitting the introduction in evidence by appellee of statements made by representatives of the Phillips-Packer Company out of the presence of representatives of appellant that they would drill the plug out of said well without cost to appellee.

The only objection made to said testimony was a blanket objection made by appellant that “any agreement between Barnett Petroleum Corporation and Phillips-Packer Company is not binding on the plaintiff, * * * that any contract between Phillips-Packer Company and Barnett Petroleum Corporation would be hearsay as to this plaintiff”, and also “that that is a stranger to this law suit in so far as any contract between Barnett Petroleum Corporation and Phillips-Packer Company are concerned.”

The rule is laid down in 17 Tex. Jur. 340, that: “It is permissible, to prove any fact that is relevant to the main fact in issue. To make testimony relevant, however, it is not necessary that it have a direct relation to one of the principal issues in the case, nor need it bear directly upon the issue. It may be relevant though it is but a link in the chain of evidence tending to prove the issue by reasonable inference.”

The above rule is followed in the case of Southland Life Ins. Co. v. Norton, Tex.Civ.App., 297 S.W. 1083, 1088, in which the court in its opinion held that: “Any evidence which tends to prove or disprove any fact involved in the issue before the court is relevant and material, and this is true of evidence which only tends to prove or disprove a link in a chain of circumstances from which the fact in issue may be reasonably inferred.”

The evidence in question was, we think, admissible to establish the defenses pled by appellee that Phillips-Packer Company was an independent contractor and that if appellant had done any work on said well it was done for Phillips-Packer Company and not for appellee. No question was raised by appellant as to the authority of the representatives of the Phillips-Packer Company who made said statements to bind the company, and the jury found, on sufficient evidence, that appellee had not agreed with appellant to perform said services and had not ratified the agreement between appellant and Phillips-Packer Company for the performance thereof.

Finding no reversible error in the record, ■ the judgment of the trial court is, in all things, affirmed.

Affirmed.


author: CODY, Justice.

text:
    BENEFIELD et al. v. BENEFIELD et al.
    No. 11040.
    Court of Civil Appeals of Texas. Galveston.
    July 25, 1940.
    John A. Hughes, of Jefferson, and W. J. Gerron and Evans J. Adkins, both of Brady, for appellants.
    R. K. Batten, of Houston, Bibb & Bibb, of Marshall, Smith & Smith, of Fort Worth, Ramey, Calhoun & Marsh, of Tyler, Shelbourne H. Glover, of Jefferson, Tom L. Beauchamp, of Austin-, Joe S. Brown and Irwin W. Coleman, both of Houston, Schluter & Singleton, of Jefferson, and Abney & Abney, of Marshall, for various appellees.
   CODY, Justice.

This suit was brought by appellants in the County Court of Marion County to set aside certain orders, including an order confirming a sale of property belonging to the estate of Mattie Jackson Bene-field which was made some seventeen years before this suit was instituted.

Appellants alleged that they were the children of Mattie Jackson Benefield and her husband, M. M. Benefield; and that she died intestate about the 15th day of August, 1919, and left surviving her, her said husband, and her children — appellants. They allege that at the time of her death she was seized and possessed of a separate estate consisting of less than 200 acres of land in Marion County, which is described in their pleading. That on the 20th day of December, 1919, one B. J. Benefield (the grandfather of appellants) applied to be appointed administrator of Mattie Jackson Benefield’s estate, and was appointed by the court, but that the inventory and ap-praisement filed by him on January 8, 1920, was never approved. That on January 8, 1920, one J. H. Benefield (an uncle of appellants) filed a claim based on a note dated April 8, 1915, for $1,570.82, due six months after date, which was executed by M. M. Benefield (the husband of Mattie Jackson Benefield, and father of appellants), payable to Rogers National Bank of Jefferson, which was endorsed by Mattie J. Benefield after it had been executed by her said husband; that J. IT. Benefield (the uncle) endorsed the note as an accommodation endorser; and that Mattie Jackson Benefield, joined by her husband, executed a deed of trust upon lands belonging to her separate estate to secure the payment of said note. That the said J. H. Benefield (the uncle of appellants) paid said note and it was transferred to him by the Bank. That attached to said claim of J. H. Bene-field was an attempted renewal and extension of the note and lien securing its payment made on September 30, 1919, which was after the death of Mattie J. Benefield, said attempted renewal purporting to renew said note until October 1, 1919. That said claim was allowed by the administrator on January 8, 1920, which allowance was approved by the court on December 13, 1920, but that said claim was never entered on the claim docket of the court. That the administrator filed his application to sell land belonging to the estate of Mattie Jackson Benefield on January 27, 1921, to pay debts owing by her said estate, setting forth the note aforesaid. That after-wards, on May 2, 1921, the court ordered the sale of said lands at private sale, and thereafter the administrator filed his report showing a sale of said lands to J. H. Benefield on May 2, 1921, at private sale. That on May 14, 1921, the sale was confirmed, the order of confirmation being set forth in the petition. That the land was conveyed pursuant to such sale.

Appellants alleged that all of the acts and orders referred to were null and void, because—

(a) It did not appear that any action had been taken against the principal on the note before resort was had against the security belonging to the estate of Mattie Jackson Benefield.

(b) That the Probate Court had no jurisdiction to determine the liability of the principal or maker of said note, or his insolvency, though there was no allegation of insolvency of said maker; and the court had no jurisdiction to determine the amount of money, if any, to be contributed by the estate of Mattie Jackson Benefield to her co-endorser, J. H. Benefield.

(c) That the claim showed on its face that the note and lien had been renewed and extended by the principal, M. M. Ben-efield, after the death of his wife. Appellants also alleged that the lands were homestead property.

The probate court of Marion County sustained a general demurrer to appellants’ petition; wherefore they appealed to the District Court, which likewise sustained a general demurrer thereto.

This is a collateral attack made on an essential link in the title to appel-lees’ land, and one made in the County Court. Our Supreme Court, speaking through the Commission of Appeals, has held that when the sale of land is effected by the execution of a deed to the purchaser in conformity to an order of the Probate Court, the order becomes completely executed and is no longer subject to the jurisdiction of the Probate Court. “This is so for the reason that in such case the order acquires the character of a muniment of title to the land involved, and, regardless of whether the order be void or merely voidable, the power to declare it void necessarily involves the exercise of power to try title to land.” Farley v. Dorsey, 134 Tex. 403, 135 S.W.2d 89, 90. And the court held that this power was by the Constitution exclusively vested in the District Court.

It is also settled law that the only method of reviewing an action of the Probate Court in allowing a claim against the estate of a deceased person is by statutory appeal to the district court. Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279; and by the same court, Dunaway v. Easter, 133 Tex. 309, 129 S.W.2d 286.

The judgment of the trial court should be affirmed, and it is accordingly so ordered.

Affirmed.


author: COMBS, Justice.

text:
    BROUSSARD et al. v. OLDHAM et al.
    No. 3564.
    Court of Civil Appeals of Texas. Beaumont.
    July 5, 1940.
    Rehearing Denied July 24, 1940.
    Lipscomb & Lipscomb, of Beaumont, for appellants.
    M. L. Lefler, Geo. Murphy, E. B. Votaw, and Herbert Oldham, all of Beaumont, for appellees.
   COMBS, Justice.

'This is a suit on two paving certificates issued by the City of Beaumont to Brous-sard-Warfield Company, a corporation, on October 28, 1930, for paving on Cartwright Avenue, in the City of Beaumont. The certificates were later assigned to the Broussard Trust, of which the appellants, J. E. Broussard et al., are trustees. Appel-lee, Mrs. Mollie Oldham, was and is the owner in her own separate right of the property affected. The certificates purport to represent an assessment against her for a total debt of $1,040.57, and to secure same by paving liens on certain lots in Block 37 of the Cartwright Addition to the City of Beaumont. Mrs. Oldham’s defense was that the assessment by the City of Beaumont was void and wholly insufficient to fix a lien on her property or any personal liability against her for the reason that prior to the time the assessment was made, she replatted Block 37 with the approval of the proper city officials, making important changes in the lots and the numbering thereof, and that as a consequence the assessment according to the Cartwright Plat was void.

The Cartwright plat of Block 37 according to which the assessment was made was as follows:

Certificate No. 57 for $181.79 was assessed against Lot 7, and certificate No. 58 for $858.78 was assessed against Lots 8, 9, 10,. 11, and 12, the two certificates thus covering the south half of the block from Cartwright Avenue north to the alley. Mrs. Oldham, owner of the entire block, replatted it nearly two years before the assessment was made or any proceedings begun therefor. Her plat of the block was as follows:

This replat was dated October 10, 1928, and contained the following approval of the city authorities:

“This is a satisfactory arrangement and fits up with present streets as expected to conform with present conditions and future developments. Approved:
“City Engr. R. C. Black
“Mayor E. W. Gross
“Com. Ross Combest
“Com. J. Appling”

The plat was filed with the county clerk of Jefferson County, January 22, 1929, and recorded two days later in the plat records of the county. With the exception of describing the property according to the Cartwright plat instead of the Oldham re-plat, the proceedings for assessing Mrs. Oldham’s property appear to have been in every respect regular and in accordance with the charter of the City of Beaumont. She had notice of the proceedings for assessing the property, but made no appearance to offer any protest. After the certificates were issued 'to the Broussard-Warfield Company, she made several payments of interest and installments of principal. In 1931 she obtained from the Broussard-Warfield Company a release of the paving lien as to Lot 7 and the W ½ of Lot 8 according to the Cartwright plat, she having sold the property. This suit was filed against Mrs. Oldham and her husband October 17, 1932, seeking judgment for balance alleged to be due on the two certificates, also for $150 attorney’s fees, and foreclosure of paving lien on all of the property except the lot and one-half previously released. An answer and amended answer were filed by defendants pleading generally, and then on August 29, 1938, they filed their second amended answer wherein they raised for the first time the invalidity of the certificates. On a trial to the court the trial court entered judgment denying the plaintiffs any recovery. The trial court filed findings of fact and conclusions of law wherein he found that certificate No. 57 had been paid in full and the lien released, and also: “It is my further conclusion that the assessment under certificate No. 58 is invalid because of inclusion of property not abutting on Cartwright Avenue on which street the improvements were made, and because of imperfections of description resulting from failure to conform to the replatting of the Block 37. The assessment being invalid, the certificate No. 58 will not support the claim of lien asserted nor a claim of personal liability.”

Opinion

We think the assessment 'was sufficient to fix the personal liability of Mrs. Old-ham and create a valid lien against the lots comprising the south half of Block 37 according to the Cartwright Addition plat. The assessment was not rendered void by reason of the fact that it was made according to the Cartwright plat instead of the Oldham plat. Mrs. Oldham owned all of the property involved. The assessment as made shows clearly what property was meant to be assessed. The reference to the Cartwright plat located it definitely. There is nothing to suggest that the assessment was not a just and fair apportionment of paving costs as between Mrs. Oldham’s property and that of other owners similarly situated. Stipulation of the parties shows that a number of blocks facing on the north side of Cartwright Avenue were assessed for paving that street according to the Cartwright plat, each block being of the same size and having identical arrangement of lots as Mrs. Oldham’s block. In replatting the block she did not dedicate any portion of the property to the city or the public, nor put the property or any part of it to any use prior to the assessment inconsistent with the intrinsic fairness of an assessment of benefits based on the Cartwright plat. She made no protest when the assessment was made, but was apparently satisfied and thereafter made payments on the certificates. Even here she does not attempt to raise any question that her replat of the block so changed the situation of her property as to affect the intrinsic fairness and equity of the assessment.

But the appellees contend that the assessment as made was void because Lots 7, 8 and 9 named in the assessment faced upon Corley Avenue according to the re-plat which had already been made and could not be assessed at all because they did not abut on Cartwright Avenue for the paving of which the assessment was made. Also, according to the replat there is a Lot 13 and Lots 3, 4 and 5 which would be affected, but which were not named in the description incorporated in the assessment. In support of their contention that the assessment so made was void, the ap-pellees cite the following cases. Cox v. Thurber Brick Company, Tex.Civ.App., 86 S.W.2d 849; Thurber Brick Company v. Johnson, Tex.Civ.App., 120 S.W.2d 839; Uvalde Rock Asphalt Company v. Warren, 127 Tex. 137, 91 S.W.2d 321, 104 A.L.R. 1043; El Paso Bitulithic Co. v. Neill, Tex.Civ.App., 266 S.W. 593. We think these cases are clearly distinguishable on the facts. It will be seen from a reading of the authorities cited that the assessments there under consideration included in the one unit of assessment property not owned by the person assessed or property which he did own but which because of its location was not assessable for the particular improvement. An assessment so made does not fix either a personal liability against the person assessed as owner or a lien against his property. The entire assessment is void. But such invalidity does not arise from an erroneous or imperfect description of the property. It is grounded upon the fact that the person sought to be charged has been assessed for purported benefits which were not lawfully chargeable to his property, of which fact the description contained in the assessment supplies conclusive evidence.

As remarked by Judge Funderburk in Cox v. Thurber Brick Company, Tex.Civ.App., 86 S.W.2d 849, 851, where property not belonging to the person assessed as owner had been included: “Theoretically, there is a material relationship between the amount of an assessment upon a lot and the amount of benefits it is to receive from the improvements. This being so, it seems to us that in the assessment of the south half of lot 1, block 49, without reference to its four subdivisions, it must be presumed that the benefits to be received by the property were considered with reference tó the whole property as a unit. If so, some of the benefits must have been referable to the three subdivisions of the lot which were in fact not owned by Johnson, and not assessable against him if they had been so owned because they were not abutting upon the street to be improved. There can be no contention that the assessment was valid upon three of the four subdivisions. Fiad the assessment covered only subdivision 4, it would have been valid. The court cannot make the assessment. To do so would involve a consideration of the amount of benefits to be received not by the south half of lot 1, block 49, but only by subdivision 4 thereof, a matter that the city council has never considered or determined.”

In the case before us, the city authorities intended to assess and did assess the south half of the block owned by Mrs. Oldham, facing on the paved street. They assessed it according to the benefits to be received by that specific property as delineated on the plat of the Cartwright Addition. Presumably every other property owner owning property in the Cartwright Addition which faced on the paved portion of that street, was assessed in exactly the same way. The city authorities were charged with the duty of assessing the costs of such paving fairly and equitably among the various property owners affected and in accordance with the benefits accruing to the property of each. It is to be presumed that they justly and fairly discharged their duty, especially in view of the fact that Mrs. Oldham offered no protest at the time the assessment was made. The assessment did not contain property not owned by Mrs. Oldham, nor did it contain property belonging to her which was not subject to assessment. And therefore, the present case is free of the vice that rendered the assessments void in the cited cases. The mere circumstance that prior to the assessment she had re-platted the property and arranged the lots and lot numbers differently does not, standing alone, establish unfairness or inequity in the assessment as made. The assessment of the property according to the Cartwright plat was a mere irregularity which in nowise impeached the fairness of the determination of benefits accruing to Mrs. Oldham’s property. City of Birmingham, Ala., v. Terrell, 229 Ala. 523, 158 So. 748; Uvalde Rock Asphalt Company v. Warren, 127 Tex. 137, 91 S.W.2d 321, 104 A.L.R. 1043; Thurber Brick Company v. Johnson, Tex.Civ.App., 120 S.W.2d 839; El Paso Bitulithic Co. v. Neill, Tex.Civ.App., 266 S.W. 593.

We agree with the comment of Judge Funderburk in Cox v. Thurber Brick Co., Tex.Civ.App., 86 S.W.2d 849, 851, where he observes: “It is not our view that all imperfect descriptions of property will render such assessments void. Had the city council intended to assess only the property upon which the assessment is now sought to be sustained; mere inaccuracies or imperfections in the description would not, we think, have rendered the' assessment void.” Had Mrs. Oldham desired the assessment to conform to her replat she should simply have presented the matter to the proper authorities at the proper time and had the correction made. She cannot at this late date avail herself of the matter to invalidate and thus extinguish obligations with which according to the record she is justly chargeable.

The appellant insists that the finding of the trial court to the effect that "certificate No. 57 had been paid is without any support in the evidence. The controversy as to that point resolves itself into merely a contention of the appellees that the payment made at the time the lien was released on Lot 7 and the W ½ of 8 should have been- credited entirely to certificate No. 57, thereby extinguishing it, while appellants credited the payment partly to both certificates. It seems to us the point is immaterial in practical result. According to appellants’ contention, there is still unpaid on certificate No. 57 $107.09, with interest from October 31, 1930, and a balance on certificate No. 58 of $598.64, with interest thereon from October 28, 1930, making a total of $705.73, while under the court’s findings the balance unpaid on certificate No. 58 is $707.73, two dollars, more than appellants claim, with interest thereon from October 28, 1931. As the assessment was sufficient to fix the personal liability of Mrs. Oldham for the unpaid balance, and attach a paving lien to her property, appellants’ debt is as well secured if all due on certificate No. 58, as it would be if the debt were charged partly to -each of the two certificates. In either case the debt is secured by a lien on the same property.

The judgment of the trial court is reversed and judgment here rendered for appellants for their debt in the amount of $705.73, with interest thereon at 7% per annum from October 28, 1931; and for $150 attorney’s fee, which it ,is stipulated is reasonable, and for foreclosure of lien on the E ⅛ of Lot 8, and all of Lots 9, 10, 11 and 12 of Block 37, according to plat of the Cartwright Addition to the City of Beaumont.

Reversed and rendered.


author: SMITH, Chief Justice.

text:
    PENA et al. v. SLING et al.
    No. 10539.
    Court of Civil Appeals of Texas. San Antonio.
    May 24, 1939.
    Rehearing Granted Aug. 15, 1940.
    William R. Quilliam, of Hebbronville, and Lester Whipple and Tabor Stone, both of San Antonio, for appellants.

      Andrew Dilworth, W. H. Shireman, and John J. Cox, all of San Antonio, for ap-pellees.
   SMITH, Chief Justice.

This action was brought in a District Court of Bexar County, in the prescribed form of a statutory suit for partition of land situated wholly within Duval County. Arts. 6082, -6083, R.S.1925.

The suit was brought by Hattie Morgan. Pena and others, herein referred to as plaintiffs, all residents of Duval County, against W. H. Sling, J. C. Nelson, F. M. Frasher and R. F. Schoolfield, herein referred to as defendants, it being admitted that Sling is a resident of McMullen County and the other three defendants residents of Bexar County.

The suit was for partition of a tract of 200 acres of land in Duval County, plaintiffs alleging that they are joint owners of an undivided one-half interest therein, and that the defendant Sling is the owner of the other undivided one-half interest, less, however, certain specified undivided interests in the mineral estate concededly owned by the other defendants under conveyances from Sling.

In due course defendant Sling filed his plea of privilege to be sued, not in his home county, McMullen, but in Duval, the situs of the land to be partitioned. The plea was in statutory form, in which it was alleged, by a general conclusion, that “the nature of the principal relief sought by plaintiffs in their original petition is for the recovery of lands and to quiet the title thereto, which lands are located wholly within the boundaries of Duval County, Texas, wherefore, under and by virtue of Article 1995, subdivision 14, Revised Civil Statutes of Texas of 1925, the exclusive venue for suits of that nature is in Duval County, Texas.” In addition to Sling’s plea of privilege, the other three defendants filed a plea in abatement of the suit, contending it should have been brought, not in their home county, Bexar, as it was, but in Duval County, for the same reason as that set up by Sling. To those pleas plaintiffs filed their controverting affidavits, reiterating the allegations in their petition, which they made a part of the controverting plea, showing the suit to be a statutory suit for partition of land, and claiming venue in Bexar County because three of the 'defendants, Frasher, School-field and Nelson, were residents of that county.

Upon a hearing the pleas of privilege and in abatement were sustained, and the venue ordered changed to Duval County. The plaintiffs appealed.

The thirteenth and fourteenth subdivisions of Art. 1995 are as follows:

“13. Partition. — Suits for the partition of land or other property may he brought in the county where such land or other property, or a part thereof, may be, or in the county in which one or more of the defendants reside, 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 the title to the same. Nothing herein shall be construed to fix venue of a suit to recover the title to land.” (Italics ours.)
“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove in-cumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Plaintiffs seek to sustain venue in Bexar County upon the italicized alternative exception in subdivision 13, which provides that “suits for the partition of land ⅜ * * may be brought * * * in the county in which one or more of the defendants reside, * * *'.” It seems obvious, and under the authorities we hold, that in order to sustain venue in Bexar County plaintiffs were required to affirmatively establish only that one or more of the defendants reside in Bexar County, which was admitted, and that the suit was “for the partition of land,” to establish which plaintiffs simply introduced their original petition and their affidavits controverting the' pleas of privilege and in abatement. We think that was sufficient, for the nature of a suit is determinable solely from allegations in the pleading of the party instituting and prosecuting it, unless, indeed, it is made to appear that those allegations have been fraudulently made for the very purpose of conferring jurisdiction where it does not belong, which is not the case made here. In this case, therefore, when plaintiffs put their petition in evidence they thereby established the nature of their suit, which, obviously and admittedly, was the plainest possible suit for partition of lands, with all the -elements, and none other, prescribed in the statutes for such suits. Art. 6083, R.S. 1925; 43 Tex.Jur. 846, § 110; 32 Tex.Jur. p. 180, § 31; XIII Tex.Law Rev., p. 215; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; American Fruit Growers, Inc., v. Sutherland, Tex.Civ.App., 50 S.W.2d 898; Commercial Standard Ins. Co. v. Lowrie, Tex.Civ.App., 49 S.W.2d 933, writ refused; Collins v. Griffith, Tex.Civ.App., 105 S.W.2d 895; Schoellkopf v. Daves, Tex.Civ.App., 71 S.W.2d 340; Tide Water Oil Company v. Bean, Tex.Civ.App., 118 S.W.2d 358; Rado Refining & Producing Company v. Lucas, Tex.Civ.App., 93 S.W.2d 613; Comer v. Landrum, Tex.Civ.App., 277 S.W. 743; Montgomery v. Turner, Tex.Civ.App., 233 S.W. 543; Caldwell v. Farrier, Tex.Civ.App., 248 S.W. 425.

It was'said by this court in Commercial Standard Ins. Co. v. Lowrie, supra [49 S.W.2d 936], in which writ of error was refused by the Supreme Court: -“The true rule is, as established by the overwhelming weight of authority, that the plaintiff’s petition is the ‘best and all-sufficient evidence of the nature of an action’ for the purpose of determining venue. For instance, the trial court may look alone to the petition to determine if the action is for divorce, or upon fraud, or to recover real estate, or 'for an award under the Workmen’s Compensation Law, or for libel and slander, and the like,” or, as in this case, for partition of land.

The trial court seems to have disregarded defendants’ contention that venue should have been changed to Duval County, the situs of the land, upon allegations in their pleas that the suit was one to recover title and to. remove cloud. This was proper for, as has been stated, plaintiffs’ suit was purely and solely one for partition, and defendants could not by their pleadings transform it into a suit to try title or to remove cloud. 32 Tex.Jur. p. 180, § 31.

The trial judge seems to have ordered the venue changed on the conclusions first, that the claims of plaintiffs and defendants, to the land sought to be partitioned must be adverse in order to sustain venue in the county of suit, and that no such conflict appears in this case; and, second, that it is necessary in a suit for partition of land for the plaintiff to make affirmative proof of his title to the land in order to sustain venue in the selected forum. We conclude the court was in error in both conclusions.

It does not matter whether the claims of the respective parties conflict, in determining venue of a suit for partition only, where one or more of the defendants reside in the selected forum. Tide Water Oil Co. v. Bean, supra.

Nor is it necessary in such suit for the plaintiff to make affirmative proof of his title in order to sustain venue in the forum, selected. In such suit the plaintiff may be put to proof of only one issuable fact, to-wit: the local residence of one or more of the defendants, which fact was agreed to by all parties in this case. The question of whether the suit was for partition of land was one of law, determinable from plaintiffs’ petition, as has already been stated.

We hold that the court erred in ordering, a change of venue, and that order must be reversed and judgment here rendered that defendants’ pleas of privilege and in abatement be overruled, at their cost.

On Motion for Rehearing.

Appellees’ motion for rehearing is granted, and the judgment affirmed, on authority of Pena v. Sling, Tex.Sup., 140 S.W.2d 441.