text:
    KIMBROUGH v. STATE.
    No. 2048.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1940.

      M. E. Lawrence, of Eastland, for appellant.
    Earl Conner, Jr., of Eastland, for ap-pellee.
   FUNDERBURK, Justice.

In the name of the State of Texas, the Texas Liquor Control Board, represented by the Attorney General and District Attorney, brought this suit on April 10, 1939, against G. O. Kimbrough seeking to have the defendant’s dwelling house, certain out houses and a garage adjudged to constitute a nuisance under authority of Vernon’s Ann.Penal Code, Art. 666 — 29. On the same day, in response to allegations and prayer of the petition, a temporary injunction was issued and served restraining the defendant from selling intoxicating liquors upon the premises, or doing any of the enumerated acts alleged to constitute the use of the premises a nuisance.

On August 14, 1939, the case came on for trial on the merits and all issues, including some involving a contempt proceeding, were submitted to a jury upon whose verdict rendered in response to special issues, the court gave judgment declaring the premises to be a nuisance and perpetually enjoining the defendant from selling, bartering, possessing for the purpose of sale, etc., intoxicating liquors, on and in connection with said premises. The court, finding the premises to constitute defendant’s homestead, refused to include in the judgment an order to have the premises padlocked. Both parties duly excepted to the judgment and gave notice of appeal.

On August 29, 1939, in response to a motion- therefor by the defendant, the court fixed the amount of 'a supersedeas bond at $500. On the same day the super-sedeas bond was duly approved and filed, and in due time the transcript and statement of facts were filed in this court by the defendant. Although by the notice of appeal alone the State duly perfected its appeal, the case is styled in this court as above indicated, being styled and numbered according to the record filed by the defendant.

The appellee, which will be referred to as the State, has filed in this court a “Request for Permission to File Attached Motion for Contempt.” The attached motion, referred to, seeks to have the appellant G. O. Kimbrough adjudged to be in contempt of this court for alleged violations of the injunction, occurring since the perfecting of the appeal.

The temporary injunction granted on April 10, 1939, contemporaneously with the filing of the suit, was, as to its nature and purpose, no different from the permanent injunction awarded by the final judgment on August 14, 1939. The only difference was that the one operated until the other should become operative by final judgment. The purpose of both alike was to prohibit a continuation of the alleged nuisance; such nuisance existing prima facie as shown by the verified pleadings, at the time the temporary injunction was ordered, and existing absolutely (subject to review upon appeal) as declared by the judgment, at the time the permanent injunction was ordered.

There is authority existing from an early day to the effect that when a court grants a temporary injunction and later upon the merits renders judgment having the effect of setting aside or dissolving such temporary injunction, and an appeal is prosecuted, with supersedeas, from such final judgment, the temporary injunction remains in effect. Williams v. Pouns, 48 Tex. 141; Gulf, C. & S. F. Ry. Co. v. Ft. Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199; Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14; Ford v. State, Tex.Civ.App., 209 S.W. 490.

This rule was held inapplicable to cases wherein the preliminary injunction was a temporary restraining order as distinguished from a temporary injunction. Ft. Worth St. Ry. Co. v. Rosedale Street Ry. Co., 68 Tex. 169, 4 S.W. 534; Riggins v. Thompson, supra; Ex Parte Rains, 113 Tex. 428, 257 S.W. 217; Ex Parte Zuccaro, 106 Tex. 197, 163 S.W. 579, Ann. Cas.1917B, 121; Ex Parte Olson, 111 Tex. 601, 243 S.W. 773.

In two or three decisions said rule was held applicable to cases wherein the final judgment, instead of being one having the effect of dissolving the preliminary injunction, awarded a permanent injunction. Ford v. State, Tex.Civ.App., 209 S.W. 490; Ft. Worth Fair Ass’n v. Ft. Worth Driving Club, 56 Tex.Civ.App. 167, 121 S.W. 213. The authority of the last two decisions, we think, has been, at least greatly shaken by subsequent decisions. In Ross v. Shook, 97 S.W.2d 505, 506, Chief Justice Smith, for the San Antonio Court of Civil Appeals, said of Ford v. State, supra, that it is “contrary to the great weight of authority in this state, and has never been followed in any authoritative case that has come to our attention.” Ft. Worth Driving Club v. Ft. Worth Fair Ass’n, supra, was in principle disapproved in Haley v. Walker, Tex.Civ.App., 141 S.W. 166. The decisions in both cases,' we think, are not, in principle, reconcilable with the leading cases dealing with the subject of superseding judgments under statutory provisions, of which it is deemed sufficient to cite only the following: Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103; Shell Pet. Co. v. Grays, 122 Tex. 491, 62 S.W.2d 113.

In the present proceeding there is no contention that the defendant (appellant here) is in contempt because of a violation of the temporary injunction. We only discover from the record that there was a temporary injunction, there being no mention of it in the motion now directly under consideration nor the attached motion which is sought to be filed. The contempt sought to be shown consists of the violation of the permanent injunction, the final judgment awarding which was, as said before, duly superseded.

But, even if it were contended that this court should entertain the contempt proceeding upon the ground that, under the authorities above mentioned, the superseding of the final judgment leaves in effect the temporary injunction, we are, nevertheless, of the opinion that we are not authorized to do so. If it be considered that there may be circumstances under which the subject matter of a temporary injunction and a permanent injunction awarded by the final judgment in the same case may properly be the same, saving only in the time of operation, still we think in such case the temporary injunction must be considered to have been merged in the permanent injunction. Otherwise, the right given by R.S.1925, Arts. 2270 and 2275, to supersede a judgment from which an appeal is prosecuted may be completely defeated. When a court, by its judgment in a trial upon the merits, decrees the same injunction previously and provisionally existing as a temporary injunction, there remains no function of the temporary injunction not equally as well performed by the permanent injunction. “The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged.” We quoted the above in Morgan v. Smart, Tex.Civ.App., 88 S.W.2d 769, 770, from the opinion in James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, and there cited many subsequent decisions of courts of civil appeals following it, to which more could now be added. Another good statement of the nature and function of a temporary injunction is as follows: “An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits, and its sole object is to preserve the subject in controversy in its then existing condition and without determining any question of right, merely to prevent a further perpetration of wrong dr doing of any act whereby the right in controversy may be materially injured or endangered until a full and deliberate investigation of the case is afforded to the party.” (Italics ours.) 32 C.J. p. 20, sec. 2. A great many Texas cases are cited as supporting the text. From said two statements of the law we reached the conclusion in Morgan v. Smart, supra, that “If the ‘sole object’ of a preliminary (temporary or interlocutory) injunction is to ‘preserve the subject in controversy’ and to preserve it ‘in its then existing condition’ until, such controversy is tried on its merits, it is apparent that such ‘sole object’ not only cannot be accomplished by a preliminary injunction embracing the entire subject-matter of the suit, but will be thereby defeated. Obviously, if in advance of trial and judgment, the rights and duties of the parties are controlled by, and made to conform to, the provisions of a temporary injunction issued in a suit which seeks no more than to continue, after final, hearing, the same, control with the same effect, the temporary injunction will necessarily have the effect of changing instead of preserving the subject-matter of the controversy.” This we further deduced was “the true reason supporting the legal proposition that ‘Ordinarily, where the issuance of a preliminary injunction would have the effect of granting fill the relief that could be obtained by a final decree and would practically dispose of the whole case, it will not be granted.’ 32 C.J. p. 21, § 2.” As supporting the preceding sub-quotfition, in addition to the authorities there cited, we may further cite the following later Texas cases: Vireca Corp. v. Cole, Tex.Civ.App., 93 S.W.2d 567; Morgan v. Brannon, Tex.Civ.App., 95 S.W.2d 509; Sinclair Ref. Co. v. City of Paris, Tex.Civ.App., 68 S.W.2d 230.

There was no appeal from the temporary injunction and we have adverted to the law governing same only by way of a reason supporting our conclusion that • a temporary injunction of identical nature and effect as the permanent injunction should be held not to so operate as in practical effect to defeat the right of an appealing party to supersede the judgment from which the.appeal is prosecuted.

In Haley v. Walker, supra, it seems that a majority of the justices entertained the view that there was a merger of the temporary injunction with the permanent injunction, Judge Higgins indicating the opposite view. However, the ground of his concurrence likewise exists in this case, namely, “Relator’s motion herein, being based wholly upon an alleged violation of the perpetual injunction granted by the final decree, from which decree respondent has appealed and filed an approved super-sedeas bond, it follows that his motion [for contempt] should be overruled and denied.” [141 S.W. 168.]

Contempt is undoubtedly one means, if not the only means, of 'enforcing a purely prohibitory injunction. “Where * * * a judgment requires of a party the performance of any act other than the payment of money, or delivery of real or personal property, a performance of such act may be enforced by proceedings as for contempt.” 34 C.J. 739, sec. 1141. When the statutes authorizing judgments to be superseded were held to apply not alone to judgments enforceable by means of writs of execution, but also to all judgments, whether mandatory or prohibitory, includingjudgments awarding a prohibitory injunction, it naturally and necessarily followed that such a judgment when duly superseded relieved the appealing party from liability for contempt because of the acts enjoined.

The motion of the State poses a question which may adequately be stated thus: In a case wherein by final judgment a permanent injunction is awarded which is but a continuation of a pre-existing temporary injunction and upon appeal by the defendant from the final judgment a super-sedeas bond is given, may the defendant be held in contempt by the appellate court for acts prohibited only by the injunction occurring since the perfecting of the appeal? The cases relied upon by the State to support an affirmative answer to that question are Lytle v. G. H. & S. A. Ry. Co., 41 Tex.Civ.App. 112, 90 S.W. 316; Ex Parte Travis, 123 Tex. 480, 73 S.W.2d 487; State v. Malone, Tex.Civ.App., 76 S.W.2d 163; to which we may add, as at least equally applicable, Ex Parte Duncan, 127 Tex. 507, 95 S.W.2d 675; International Ladies’ Garment etc. v. Dorothy Frocks Co., Tex.Civ.App., 97 S.W.2d 379.

Lytle v. G. H. & S. A. Ry. Co., supra, is like the case here, in that the appeal was from a final judgment awarding a perpetual injunction. It was unlike the present case in the very material respect that, so far as shown, there was no supersedeas of the judgment frqm which the appeal was perfected.

In Ex Parte Travis, supra, — an habeas corpus proceeding — -it appears that pending an appeal from the trial court to the. Court of Civils Appeals from an order granting a temporary injunction, contempt proceedings were instituted in the trial court resulting in an order committing agents of defendant to imprisonment. There was no question involving the authority of any court to enforce by contempt a superseded judgment.

State v. Malone, supra, differs from the instant case in two material particulars. First, there the appeal was from an interlocutory order granting a temporary injunction; here from a final judgment granting a permanent injunction. Second, there the judgment was not superseded; here it was superseded.

The case of International Ladies’ Garment, etc., v. Dorothy Frocks, supra, (the strike case) is distinguishable from the instant case upon the same two grounds as in State v. Malone, supra. In the strike case the court recognized that the question was whether ,the trial court or the appellate court had jurisdiction of the contempt proceedings. That same question, whether discussed or not, was involved in all of the cases relied upon to support the motion herein. That is a question which after mature consideration we conclude is in no way involved in the instant case.

Ex Parte Duncan, supra, was also an habeas corpus proceeding in the Supreme Court, but in that case, as in Ex Parte Travis, supra, the defendant in the trial court had, pending an appeal, without supersedeas, from an order granting' a temporary injunction, been adjudged in contempt by the court of civil appeals for violation of the injunction.

In short, this case is distinguishable from all those relied upon, in that it is sought here to enforce by a contempt proceeding a judgment which pending the appeal has been duly superseded.

Decisions, more or less in principle, supporting our disposition of the matter in issue, but not based upon the same grounds or reasoning, may be cited as follows: Antner v. State, Tex.Civ.App., 114 S.W.2d 640; Leonard v. Small, Tex.Civ.App., 28 S.W.2d 826; Yturria Town etc. v. Hidalgo Co., Tex.Civ.App., 114 S.W.2d 917; Spark v. Lasater, Tex.Civ.App., 232 S.W. 346;. Boydstun v. Ft. Worth Ind. Sch. Dist., Tex.Civ.App., 33 S.W.2d 811.

It is our conclusion, therefore, that the motion should be denied, • which is accordingly so ordered.


source: Caselaw Access Project

author: ALEXANDER, Justice.

license: Public Domain

text:
    STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS v. HATTER.
    No. 2187.
    Court of Civil Appeals of Texas. Waco.
    April 4, 1940.

      Gerald C. Mann, Atty. Gen., Geo. W. Barcus, Wm. J. Fanning, and Lloyd Armstrong, Asst. Attys. Gen., Shelton & Shelton, of Austin, and Jos. W. Hale, of Waco, for appellant.
    Kyle Vick, Gene McNamara, and Gene Maddin, all of Waco, for appellee.
   ALEXANDER, Justice.

This is an appeal from an order of the trial court overruling a plea of privilege. Lou Flatter brought this suit in McLennan county against the Texas State Board of Registration for Professional Engineers for writ of mandamus to compel the Board to issue to him a certificate of registration as a “professional engineer” and to enjoin the members of the Board from interfering with or hampering the plaintiff in the practice of his profession as a professional engineer during the pendency of the suit. The Board filed a plea of privilege to have the cause transferred to a district court of Travis county. After hearing the evidence, the trial court overruled plea of privilege, and defendant has appealed.

The material facts are these: The Texas State Board of Registration for Professional Engineers was created under Acts 1937, 45th Legislature, p. 816, chap. 404 (Vernon’s Annotated Civil Statutes, art. 3271a). None of the members of the Board reside in either McLennan county, where the suit was filed, or in Travis county, but the secretary of the Board resides in Travis county. The record discloses that in the year 1937, the plaintiff filed his application with the Board for a certificate of registration as a professional engineer. On December 31st of that year, he received from the secretary of the Board a letter, as follows:

“Your application for Certificate of Registration as ‘professional engineer’ has been received by the Texas State Board of Registration for Professional Engineers.
“You will be advised, in due course, as to the action of the Board on your application.
“This will be your authority, effective January 1, 1938, to practice in Texas as a Professional Engineer until, and' only until final action is taken by the Board on your application.”

The above letter was signed by the secretary of the Board only and not by the chairman of the Board. Later, after consideration of the matter, plaintiff’s application for a certificate was refused by the Board, and he was notified thereof. This suit was brought by plaintiff for'mandamus to compel the Board to issue the certificate as above set out.

Revised Statutes, art. 1995, sec. 20, provides: “Suits for mandamus against the head of any department of the State Government shall be brought in Travis County.”

In the case of Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S. W. 813, the Supreme Court held that the Prison Board was the head of a state department within the meaning of a statute exempting heads of state departments from giving bond on appeal. In the case of Board of Water Engineers v. Briscoe, Tex.Civ.App., 35 S.W.2d 804, it was held that the Board of Water Engineers constituted the head of a department of the state government within the meaning of the statute here under consideration, so as to fix the venue of a suit for mandamus against such a Board in Travis county. In the case of Railroad Commission v. Vanway Express Company, Tex.Civ.App., 103 S.W.2d 814, a like holding was made with reference to the Railroad Commission. See also Railroad Commission v. Interstate Motor Freight Lines, Tex.Civ.App., 77 S.W.2d 1100. Under the above decisions, we hold that the Texas State Board of Registration for Professional Engineers was the head of a department of the state government within the meaning of subsection 20 of Article 1995, so as to place the venue of this suit in Travis county.

Appellee contends that the letter written to him by the secretary of the Board of date December 31, 1937, and above set out, constituted a certificate of registration, and that this is a suit to vacate an order of revocation thereof by the Board, and as a consequence, he has a right to maintain the suit in the county of his residence under subdivision 22 of the Act. In our opinion, the letter referred to did not constitute a certificate of registration within the meaning of the Act. The Act contemplated that the certificate of registration therein referred to should be issued after full investigation and should be signed by the chairman and the secretary of the Board, under the seal of the Board, and should be subject to renewal each year for an indefinite period upon the payment of the fee provided for by the Act. The letter in question purported on its face to be a mere temporary permit issued to allow those engaged in the profession to continue therein until the Board had a reasonable time to investigate the numerous applications necessarily requiring investigation upon the creation of the newly constituted Board. It was signed only by the secretary of the Board and not by the chairman of the Board, as is required for. a regular certificate of registration. It was never intended to operate as a certificate that could be renewed annually for an indefinite period. It is our opinion that plaintiff’s cause of action, if any he has, is one for the failure of the Board to issue him a certificate of registration and not one to annul or vacate an order of revocation previously made by the Board.

The judgment of the trial court is reversed and remanded to the lower court with instructions to transfer the suit to a district court of Travis county as prayed.

TIREY, J., took no part in the consideration and disposition of this case.


text:
    STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS v. HATTER.
    No. 2200.
    Court of Civil Appeals of Texas. Waco.
    April 4, 1940.
    Gerald C. Mann, Atty. Gen., Geo. W. Barcus, Wm. J. Fanning, and Lloyd Armstrong, Asst. Attys. Gen., Shelton & Shelton, of Austin, and Jos. W. Hale, of Waco, for appellant.

      Kyle Vick, Gene McNamara, and Gene Maddin, all of Waco, for appellee.
   ALEXANDER, Justice.

Lou Hatter brought this suit in McLen-nan county against the Texas State Board of Registration for Professional Engineers for writ of mandamus to compel the Board to . issue to him a certificate of registration as a “professional engineer” and to enjoin the members of the Board from interfering with or hampering the plaintiff in the practice of his profession as a professional engineer during the pendency of the suit. A trial before a jury resulted in judgment for the plaintiff. The Board has appealed.

The defendant filed a plea of privilege to be sued in Travis county, and we have today reversed the judgment of the trial court in refusing to sustain the plea of privilege. Consequently, the judgment in this, the main suit, must be reversed .for a like reason.

The judgment of the trial court is reversed and remanded with instructions to the lower court to transfer the suit to a district court of Travis county as prayed.

TIREY, J., took no part in the consideration .and disposition of this case.


author: FUNDERBURK, Justice.

text:
    BENJAMIN STATE BANK et al. v. REED.
    No. 1968.
    Court of Civil Appeals of Texas. Eastland.
    March 15, 1940.

      L. M. Williams, of Benjamin, and Ocie Speer, of Austin, for appellants.
    J. W. Chancellor and Donald, Kearby & Donald, all of Bowie, for appellee.
   FUNDERBURK, Justice.

On March 27, 1936, Mrs. Mattie Reed, a feme sole, filed this suit against the Benjamin State Bank. By her first amended original petition, filed May 8, 1936, Z. Gos-sett, Banking Commissioner of Texas, was made a party defendant along with the original defendant, the reason therefor appearing from the allegation that “on or about the - day of April 1936, the said defendant The Benjamin State Bank closed its doors and said defendant bank and all of its assets and claimed assets were taken over * * by Z. Gossett, Commissioner of Banking”, etc.

The first part of plaintiff’s first amended original petition consisted of the usual allegations in a statutory action of trespass to try title. Then followed in purportedly an “alternative count”, but in which all previous allegations were adopted as a part of such (so-called) “alternative count”, the averment of a cause of action to remove clouds from plaintiff’s title to the land in question; the clouds consisting of a deed of trust purportedly executed by plaintiff and her since deceased husband on or about February 20, 1929, and a trustee’s deed to said bank executed under the power purportedly granted in said deed of trust. Said instruments were sought to be avoided upon a number of grounds, including the mental incapacity of plaintiff to execute the deed of trust, which mental incapacity was alleged to have continued until about three years before the filing of the suit, during all of which time up to May 1, 1933, she was in possession of .said land.

The case was submitted to a jury upon special issues. Upon the verdict of the jury judgment was rendered for the plaintiff, from which the defendants have appealed.

The parties will be referred to as “plaintiff” and “defendants”, the same as in the trial court. This is the second appeal of this case. Reed v. Benjamin State Bank, Tex.Civ.App., 114 S.W.2d 365. Upon the former appeal it seems there was no question presented regarding the sufficiency of the pleadings. Defendants now contend that the court erred in overruling their general demurrer to plaintiff’s petition. It is insisted that the petition was insufficient because of the omission of any allegation to the effect that prior to the filing of the suit the claim in' suit had been presented to the Banking Commissioner.

The plaintiff apparently attempted to fortify her petition against the general demurrer by a pleading entitled “Plaintiff’s First Supplemental Petition.” This pleading alleged no fact in the nature of an admission that at the time the suit was filed the assets had been taken over by the Banking Commissioner. We regard this pleading as tendering no issues which require further notice. 'If plaintiff’s petition was subject to the general demurrer as urged, then it received no aid from the allegations in the supplemental pleading. In First Nat. Bank of Knox City v. Boyd, Tex.Civ.App., 75 S.W.2d 928, 929, we cited a long list of authorities upon which we reached the conclusion, applicable here, that: “It is a basic principle of our system of pleading that a supplemental pleading cannot be made to supply such deficiencies in an original or amended pleading as are reached by general or special exceptions.”

In our opinion, the omission from the pleading of such allegation did not render the pleading subject to general demurrer. The suit was at first brought against the Benjamin State Bank as sole defendant. According to the allegations in the pleading, the sufficiency of which is here challenged, the suit was- filed on March 27, 1936, and the bank was closed, and possession of its assets taken over sometime in April thereafterwards. According to such allegations the suit was pending when the Banking Commissioner took possession of the assets of the bank. If so, the plaintiff was under no obligation to present the claim involved in the suit to the Banking Commissioner, even if such claim was one otherwise required to be so presented.

If at the time the suit was filed the assets of the bank, contrary to the allegations of the pleading, had in fact already been taken into the possession of the Banking Commissioner, the failure of plaintiff’s petition to show such fact, even if the claim in suit was one required to be presented as a condition precedent to the right to maintain the suit, would not render the pleading subject to a general demurrer. If it was a fact, and the fact had appeared from plaintiff’s pleading that at the time the suit was filed the assets of the bank had been taken over by the Banking Commissioner, then it would be necessary for us to determine whether the claim was •one required to be presented. Clearly we think that question is not presented by the action of the court in overruling a general demurrer. It was necessary for the defendants, by plea in abatement, or affirmative defense in bar, to present such question. The allegations in plaintiff’s petition were entirely consistent with the proposition declared in L. G. Balfour Co. v. Z. Gossett, 131 Tex. 348, 115 S.W.2d 594, 598, that the requirement for presentation of claims of the character which defendants contend this is one, has “no application to a case * * * where a bank, while a going concern, was sued on a claim against it, and thereafter, while such suit was pending, the bank failed and was taken in charge by the banking commissioner.”

In our opinion, if it be granted, provisionally, that the suit involves the subject matter of a claim which, under some circumstances, would be required to be presented to the Banking Commissioner before suit, the evidence did not conclusively establish the existence of such circumstances. Hence, the court did not err in refusing to direct a verdict for the defendants upon that ground.

If there was evidence raising such an issue, the issue was an element of an independent ground of defense which, not being submitted by the court, nor requested by-the defendant (so far as the record discloses), must be held to have been waived by the defendants.

The defendants requested a special issue stated thus:

“Do you find from a preponderance of the evidence that it was the intention of the parties, Mrs. Mattie Reed and her husband, W. H. Reed, that the proceeds of the plaintiff’s lands inherited from her parents, then in hand, should constitute and be their community property for the purpose of purchasing the lands in controversy? You will answer this issue ‘yes’ or ‘no’ accordingly as you find the facts to be.
“In connection with the foregoing issue you are instructed that by the term ‘community property’ as therein used is meant the common property of the husband and wife and not the separate property of either.”

It is our conclusion there was no error in the action, of the court in refusing to submit such requested special- issue. The question presented is in effect the same as that decided upon the former appeal. There the question was.whether land purchased with the separate property of the wife could by intention of the husband and wife be changed to community property; while the question here is whether money constituting the separate property of the wife, by the intention of the husband and wife, can be changed to community property. The requested issue, as worded, if it had been given, would not have elicited a finding of whether or not there had been a gift of the money by the wife to her husband. It seems to be contended that there was a gift of the wife’s separate property to the community estate. We recognize that the separate property of the husband or wife may be the subject of a gift by either to the other, but we think there is no warrant in law or logic for the proposition that the separate property of either spouse may be the subject of a gift to the community estate as something distinct from a gift to the husband or wife.

The definition of community property accompanying the requested special issue shows an assumption by the defendants that the term was one required to be defined or explained. This assumption, we think, was correct. The proposed definition would have afforded no aid to the jury in rendering their verdict upon the issue had it been given. The jury was supposed not to know the technical meaning of either “community property” or “separate property”, and such information would not have been affprded by telling them that community property was the “common property of the husband and wife and not the separate property of either.”

In order to be heard to complain of the refusal of the court to give a requested special issue, the burden was upon the defendants to prepare the issue accompanied by the necessary definitions or explanations of legal terms, if any, so that the court could give or refuse same simply by indorsing thereon the word “given” or “refused.” Harris v. Thornton’s Dept. Store, Tex.Civ.App., 94 S.W.2d 849.

Another issue requested by the defendants, the submission of which was refused by the court was: “Do you find from a preponderance of the evidence that between the dates of February 29, 1929 and March 27, 1932, the plaintiff, Mrs. Mattie Reed, had periods or times of mental soundness and capability? You will answer this issue ‘yes’ or ‘no’ accordingly as you find the facts to be.” The defendants pleaded limitation of four years. That was an affirmative defensive issue, the burden of establishing which, either conclusively by the uncontroverted evidence, or by the verdict of the jury, was upon the defendants. Such issue not having been submitted and it not appearing that the defendants requested its submission, we are authorized to presume, unless the contrary appears, that such issue was hot raised by the evidence. We cannot presume that the issue was conclusively established by the evidence, since in that case the judgment would presumably have been for the defendants. Evidence of mental unsoundness of the plaintiff had relation to two distinct issues. One which plaintiff had the burden of establishing involved the validity of the deed of trust. The other, which the defendant had the burden of establishing, involved limitation. The evidence supporting plaintiff’s mental incapacity to bind her property by the deed of trust at the same time warranted a presumption of the continuance of such condition of mental unsoundness. Unrebut-ted, such presumption would authorize a finding that the mental unsoundness continued, as alleged by the plaintiff, until May 1, 1933. It, therefore, appears that if special issue No. 5, found by the jury to the effect that the mental incapacity of plaintiff continued from February 20, 1929, until July, 1933, had not been submitted, that would have been immaterial as affecting plaintiff’s right to a judgment upon the other issues. The fact that it was submitted and found in the affirmative did not affect the correctness of the judgment. Issue No. 5 was itself a defensive issue relating to limitation. The issue requested and refused was, therefore, a mere-negative statement of the same issue. It was to say the least not a correct submission of the issues of limitation, but at most an inquiry seeking the finding of an eviden-tiary fact relating to that issue.

However, the issue of continued mental unsoundness up to within four years before the filing of the suit was not alone conclusive of the defense of limitation. As shown by the statement of the case, the cause of action alleged was one to remove cloud from title. Plaintiff alleged that she retained possession of the land until on or about May 1, 1933. Against a cause of action to remove cloud from title limitation did not begin to run during the continued possession of plaintiff. “An owner of land in possession has a right, continually arising, to maintain a suit to remove a cloud from his title. Hence limitation may not be successfully invoked as a defense.” 34 Tex.Jur. 829, § 16; State Mortg. Corp. v. Ludwig, 121 Tex. 268, 48 S.W.2d 950; Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601; Luker v. Anderson, Tex.Civ. App., 10 S.W.2d 149; Reese v. Granau, Tex.Civ.App., 27 S.W.2d 591; Pannell v. Askew, Tex.Civ.App., 143 S.W. 364. It was, therefore, immaterial if plaintiff did have lucid intervals — a finding of which fact was sought to be elicited by the question requested to be submitted as an issue. In order to establish its defense of limitation, thé defendants had the burden to show (1) that the otherwise presumed continuance of mental unsoundness ceased more than four years before the filing of this suit, and (2) that plaintiff gave up the possession of the land moré than four years before suit.

If there was any evidence even to raise these issues involved in the defense of limitation as barring the cause of action to remove the cloud from title, it certainly did not conclusively establish them, and hence same not having been submitted nor requested have been waived.

Upon the whole, it is our conclusion that no error is shown, that the judgment below should be affirmed, and it is accordingly so ordered.


author: MONTEITH, Chief Justice.

text:
    WHITTAKER et ux. v. SCHLANGER et al.
    No. 10989.
    Court of Civil Appeals of Texas. Galveston.
    March 28, 1940.
    Rehearing Denied April 18, 1940.
    Duncan Neblett and W. P. Neblett, both of Houston, for appellants.
    Albert J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal in an action brought originally by appellants, H. C. Whittaker and wife, Carrie I. Whittaker, seeking an injunction restraining appellees, Daniel Schlanger, as substitute trustee, and Seymour Wagner, as beneficiary, from proceeding with a trustee’s sale under a deed of trust and for the cancellation of a note and liens secured thereby.

A temporary order was entered by the trial court, restraining said sale pending the hearing of the cause on its merits.

Appellees answered denying the various allegations in plaintiff’s petition. By cross-action appellee Wagner sought the foreclosure of vendor’s lien and a deed of trust lien retained to secure the payment of a note for the sum of $2,500, alleged to have been executed by appellants as a part of the purchase price for Lots 7, 8, 9, and 10 in Block 43, Chapman’s Third Addition to the City of Houston. He alleged that by reason of their actions appellants were estopped to claim the invalidity of certain instruments executed by them.

In answer to appellee Wagner’s cross-action appellants pled that the note, deed of trust, and deed reserving a vendor’s lien on said property executed by them, were void for the reason that Sam Epstein had acquired title thereto under foreclosure sales under prior deeds of trust thereon which were inoperative as to said Lot 7 and part of said Lot 8, because of the alleged homestead character of said property.

At the conclusion of appellants’ evidence, in a trial before a jury, appellees rested their case and presented a motion for an instructed verdict. Said motion was granted and judgment was entered accordingly, denying the relief sought by appellants and granting appellee, Wagner, judgment for his debt, with foreclosure of his lien against said Lots 7, 8, 9 and 10 in said Block 43.

The record shows that the four lots in question were originally purchased by appellants in 1921; that shortly thereafter appellants moved into a house on said Lot 7 and occupied it as their homestead until the latter part' of 1927, when they moved to a section house located at Pierce Junction, outside of the limits of the City of Houston. In 1938, after the institution of this suit, appellants again took possession of and occupied the said house located on said Lot No. 7.

On March 20, 1931, after they had moved to Pierce Junction, appellants entered into a mechanic’s lien contract with one Frank Grundy for certain repairs and improvements to the house located on said Lot 7, contracting to pay therefor the sum of $313.50, evidenced by a note of that date payable to the order of Frank Grundy. Said contract contained a provision assigning said note and the lien therein created to Minor Stewart. It recited that said indebtedness was further secured by a deed of trust of even date therewith to the Houston Security Corporation, trustee.

Said deed of trust contained a recitation that the property therein conveyed formed no part of any property claimed by grantors as exempt from forced sale under the laws of the State of Texas, and that grantors disclaimed and renounced all and every claim thereto under any such laws.

On August 4, 1931, the Houston Security Corporation, as trustee under above deed of trust, conveyed-said Lot 7 to Sam Epstein.

By deed of trust dated December 16, 1925, appellants conveyed Lots 8, 9 and 10 in said. Block 43, to Harry W. Freeman, trustee, to secure the payment of a note for $850, payable to the order of M. D. Cohen. Said deed ‘of trust contained a designation of said Lot 7 as their homestead and expressly renounced any homestead claim to the property therein conveyed. At the time of the execution of said note and deed of trust appellants also executed an affidavit in which they represented that they were the identical parties who had executed said note and deed of trust; that said Lots 8, 9 and 10 were vacant lots upon which there were no improvements and that they were fenced off from adjoining Lot 7, in said Block 43.

By assignment dated December 13, 1928, M. D. Cohen transferred this note and the deed of trust lien sr curing it to Minor Stewart, and by assignment dated December 14, 1928, Minor Stewart transferred said note and lien to the Houston Title Guaranty Company. On the same day appellants executed a new deed of trust to the Houston Security Corporation, as trustee for the Houston Title Guaranty Company, covering said Lots 8, 9 and 10, reciting that it was given to secure payment of a note of even date therewith for $1,-050, and that said note was a renewal and extension of the original indebtedness to M. D. Cohen, originating in 1925, for $850. The Houston Title Guaranty Company was subrogated to all the rights of M. D. Cohen by reason of its payment to Cohen of said indebtedness. On August 4, 1931, the Houston Security Corporation, as trustee in this deed of trust, conveyed said three lots to Sam Epstein.

By deed of trust dated March 9, 1928, appellants conveyed said Lots 7, 8, 9 and 10 with other property-to the Houston Security Corporation as trustee for the use of the Flouston Title Guaranty Company, to secure a note for $1,000, payable to Houston Title Guaranty Company. This deed of trust contained a stipulation that said property formed no part of any property claimed as a homestead. This deed of trust was foreclosed and the property therein described was conveyed tó Sam Epstein by trustee’s deed dated August 4, 1931.

By deed of trust dated March 20, 1931, appellants executed a deed of trust conveying said Lots 7, 8, 9 and 10, with other property, to Minor Stewart, as trustee for the Houston Security Corporation, to secure the payment of a note for $813.65, payable to the Houston Security Corporation. This deed of trust contained recitals by appellants that the property therein conveyed formed no part of their homestead. It was foreclosed by Minor Stewart, trustee, and the property therein described was conveyed to Sam Epstein by trustee’s deed dated August 4, 1931.

By deed dated August 5, 1931, Sam Epstein conveyed the four lots in question to appellants for a recited consideration of $10 cash, paid by appellants, and the further sum of $2,500, cash paid to him by ap-pellee, Seymour Wagner. Said deed recited that the said payment of $2,500 by appel-lee Wagner was evidenced by a note of even date with said deed, payable to Wagner five years after date. A vendor’s lien was expressly retained in said deed to secure the payment of said.note, and said note was additionally secured by a deed of trust executed by appellants conveying said four lots to the Houston Security Corporation, as trustee, for the benefit of appellee Wagner. Appellee Schlanger was duly appointed substitute trustee under said deed of trust.

Each of the deeds of trust above referred to contains the following recitals:. “It is expressly agreed that the recitals in the conveyance to the purchaser shall be full evidence of the truth of the matters therein stated, and all prerequisites to said sale shall be presumed to have been performed, and such sale and conveyance shall be conclusive against the party of the first part herein, his heirs and assigns, whether such prerequisites shall have been performed or shall not have been performed.”

Each of the trustee’s deeds above referred to contains the recitation of request by the owners and holders of said notes for the foreclosure thereof by reason of default, due notice, sale within the regular time required by law, and conveyance to Sam Epstein in accordance with the powers given under said deeds of trust.

Appellants offered no evidence contradicting the terms of any of said trustee’s deeds, and there is no proof of any fraud in the execution of either said deeds of trust or said trustee’s deeds upon which their invalidity could be based. Further, the record does not show that the indebtedness secured by any of said deeds of trust was paid prior to said foreclosure sales.

The controlling issue to be determined in this appeal is whether the several deeds of trust which were foreclosed on August' 4, 1931, constituted valid liens against the property in question, and whether the title to said property passed to Sam Epstein by the four trustee’s deeds made thereunder. •

Appellants do not contend that the said deeds of trust were not executed by them or that they were not executed for the purpose of creating liens on the properties therein described, and no question is raised by them as to their execution of said mechanic’s lien contract and note or the deed of trust by which it was secured or that the work provided for in said contract was not performed in the manner provided for therein. While they contend that the note secured by said mechanic’s lien contract and deed of trust was paid by the rentals collected from said Lot 7, the record does not bear out this contention.

Appellants’ contention that the half of said Lot 8 adjoining Lot 7 was occupied by them as their homestead cannot be sustained. The mechanic’s lien contract and deed of trust executed by appellants provided for improvements to the house located on said Lot 7. We are referred to no evidence showing that half of said Lot 8 was occupied by appellants as their homestead. By deed of trust dated December 16, 1925, appellants expressly designated Lot 7 as their homestead and renounced any homestead claim to said Lots 8, 9 and 10, and by affidavit executed on the same date they represented that said Lots 8, 9 and 10 were vacant lots upon which there were no improvements and that said lots were fenced off from adjoining Lot 7. Linder above facts, appellants are estopped from claiming the half of said Lot 8 adjoining said Lot 7 as their homestead.

Under the established rule in this state that where a deed of trust recites that in case of sale all prerequisites of sale shall be presumed to have been performed and that all statements of fact in any conveyance given under the deed of trust as to advertisement of sale, etc., shall be prima facie evidence of the truth of the facts stated, we must presume that request was made by the owners of said notes for the foreclosure of said deeds of trust by reason of default, that due notice of said sale was given, that said sales were made within the regular time required by law, and that each of said trustee’s sales were made in accordance with the powers given under said deeds of trust, and that the title to said four lots passed regularly to Sam Epstein by said trustee’s deeds. Natali v. Witthaus, Tex.Com.App., 135 S.W.2d 969; Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; McFarlance v. Whitney, Tex.Com.App., 134 S.W.2d 1047.

Appellants, having accepted said deed from Sam Epstein, the purchaser of the property in controversy at trustee’s sale, and having executed a note in favor of appellee Wagner secured by a vendor’s lien thereon, which is superior to their alleged homestead rights in said property, and having executed a deed of trust to secure the payment of said note, and having raised no issue, either by pleading or evidence, as to the due execution, acknowledgment or delivery of any of these instruments, they are estopped to, at this time, attempt to set aside any of said deeds of trust and to avoid the payment of said note.

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

Affirmed.


text:
    HARRIS COUNTY et al. v. BASSETT et al.
    No. 10988.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Rehearing Denied May 2, 1940.
    Daniel Jackson, Crim. Dist. Atty., and Marshall T. Anderson, W. L. Cook, Morris G. Rosenthal, and Tod R. Adams, Asst. Crim. Dist. Attys., all of Houston, for appellants.
    J. S. Bracewell, of Houston, for appel-lees.
   MONTEITH, Chief Justice.

This is an appeal from an order of the Judge of the 55th District Court of Harris County granting an application for a temporary injunction brought by Sam Bassett and the Sam Bassett Lumber Company against the Commissioners’ Court of Harris County, sitting as a Board of Equalization, and Jim Glass, Tax Assessor and Collector of Harris County, restraining the appellants from issuing a capias or commitment on an order of the Commissioners’ Court of Harris County committing Sam Bassett to jail for contempt.

The appellants herein are the County Judge and the County Commissioners of Harris County and the Tax Assessor and Collector of Harris County.

Appellees Sam Bassett and Sam Bassett Lumber Company, a corporation, are resident taxpayers of Harris County. They are engaged in the retail sale of lumber and building material, and own taxable property in the county consisting of real estate, a stock of merchandise, money, notes, bills and notes receivable, automobile trucks and office furniture.

.The record shows that the Tax Assessor and Collector of Harris County had called upon Sam Bassett, individually and as president of the Sam Bassett Lumber Company, to make a rendition of his property and the property of the Sam Bassett Lumber Company. This he refused to do. Thereupon the Tax Assessor and Collector made out and signed an unrendered assessment for both Sam Bassett and the Sam Bassett Lumber Company and submitted them to the Commissioners’ Court with a memorandum of such refusal.

Upon being notified of such refusal the- Commissioners’ Court had issued and served on Sam Bassett its subpoena to appear before it on August 7, 1939, and to bring with him “the records, ledger sheets and inventories of properties, both. real and personal, owned by the Sam Bassett Lumber Company as of January 1, 1939.” Sam Bassett appeared at said hearing but did not bring or produce said books or records, contending before said board that said subpoena duces tecum was so vague, indefinite and general in its terms that he was unable to determine therefrom what books the court required him to produce on said hearing.

The assessment sheets submitted by the Tax Assessor and Collector show assess-mpnts for Sam Bassett, individually, of numerous items of real estate but no personal property with the exception of three automobiles valued at $1,200.

The assessment sheet for the Sam Bas-sett Lumber Company shows numerous items of real estate and the following personal property:

5 trucks valued at. $500.00
Goods, wares & Merchandise valued at. 4000.00
Tools, implements & machinery valued at. 150.00
Office furniture valued at. 100.00

At said hearing he answered all questions propounded by members of the court as to his and his company’s ownership of the personal property listed on the rendition sheets submitted by the Tax Assessor and Collect- or, but refused to give information with reference to property belonging to himself or his company which was not listed thereon, and refused to sign the rendition sheets submitted by the Tax Collector.

At the conclusion of said hearing the board, upon the refusal of Sam Bassett to answer the questions above . referred to, voted and entered an order holding him in contempt. It assessed against him a jail sentence of 24 hours and a fine of $25, and ordered that he be confined in jail until such time as he should purge himself of such contempt by producing the books, records and papers called for in said subpoena and until he should give -testimony as required by the court. This order was later modified by eliminating said fine.

Immediately after said order was entered and prior to the issuance of the commitment thereon, appellee, Sam Bassett, filed his petition in the district court praying for an injunction against the enforcement of said order. The judge of the district court immediately granted a temporary restraining order. Later, upon a full hearing on the facts, he issued a temporary injunction, restraining the enforcement of said contempt order.

Appellants contend: (1) That, since the act sought to be restrained was the execution of an order holding a witness in contempt of court, the only relief under such circumstances is an application for a writ of habeas corpus; (2) That, since the Commissioners’ Court had jurisdiction of the person and subject matter of the suit and the undisputed evidence shows that there has been 'no abuse of discretion by the court, that therefore the trial court erred in granting a temporary injunction; and (3) that appellees had failed to either allege or prove a cause of action for injunction.

The contention that the district court has no supervisory control over the Commissioners’ Court cannot be sustained.

Article 5, Section 8, of the Constitution of the State of Texas, Vernon’s Ann.St., by its express terms, gives to the district court appellate jurisdiction and general supervisory control over the Commissioners’ Court with the power to restrain said court in an abuse of its discretionary power.

The part of said Article 5, Section 8, of the Constitution material to this appeal, reads: “The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law; and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law.”

Articles 1908 and 1909, Revised Statutes of 1925, give the same jurisdiction to the district courts as that embraced in the above constitutional provisions, and since there are no other provisions in the Constitution or statutes conferring jurisdiction upon the district court over orders or judgments as made by the Commissioners’ Court, it is now well settled that any one aggrieved at an order or judgment of said court can have same reviewed by bringing a direct proceeding in the district court for that purpose. Kirby v. Transcontinental Oil Co., Tex.Civ.App., 33 S.W.2d 472; Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363; Haverbecken v. Hale, 109 Tex. 106, 204 S.W. 1162.

Under the above authorities we think that the district court unquestionably had the authority to restrain the enforcement of said order of commitment if, for any reason, it was void by reason of the court having exceeded its jurisdiction or having abused its discretion in entering the order.

The duties of the Commissioners’ Court sitting as a Board of Equalization and its authority as such board are clearly defined in the following articles of the Revised Statutes:

Article 7206, Revised Statutes of 1925, provides in part as follows:

“Each commissioners court shall convene and sit as a board of equalization on the second Monday in May of each year, or as soon thereafter as practicable before the first day of June, 'to receive all the assessment lists or books of the assessors of their counties for inspection, correction or equalization and. approval.
“1. They shall cause the assessor to bring before them at such meeting all said assessment lists, books, etc., for inspection, and see that every person has rendered his property at a fair market value, and shall have power to send for persons, books and papers, swear and qualify persons, to ascertain the value qf such property, and to lower or raise the value on the same.
“2. They shall have power to correct errors in assessments.
«3 * * *
“4. After they have inspected and equalized as nearly as possible, they shall approve said lists or books and return same to the assessors for making up the general rolls, when said board shall meet again and approve the same if same be found correct.
“5. * * *
“6. The assessors of taxes shall furnish said board on the first Monday in May of each year, or as goon thereafter as practicable, a certified list of names of all persons who either refuse to swear or to qualify or to have signed the oath required by law, together with the assessment of said person’s property made by him through other information; and said board shall examine, equalize and correct assessments so made by the assessor, and when so revised, equalized and corrected, the same shall be approved.”

Article 7225 of the Revised Civil Statutes in part provides: * * * and,, should his rolls and books, when presented' for approval to the commissioners court,, prove to be imperfect or erroneous, the-court shall have the same corrected or perfected, either by the assessor or some other-person than the assessor * *

Article 2351, Section 14, of the Revised' Civil Statutes, 1925, provides: “Issue all such notices, citations, writs and process, as may be necessary for the proper execution of the powers and duties imposed by such court and to enforce its jurisdiction.”'

While it is evident from above articles of the Revised Statutes that the Commissioners’ Court had the authority to con- - duct a hearing for the purpose of equalizing and correcting the assessments made by - the Tax Assessor and Collector, and that., it had the authority for that purpose to require that Sam Bassett produce his books and records, the authorities are uniform in holding that the Board of Equalization is concerned only with the properties on the rolls and with the correction of the valuations placed thereon by the Tax Assessor, and that the board may not add to the rolls property not entered, nor eliminate therefrom entries appearing thereon. 40 Tex. Jur., pa£e 133, section.96.

It is further held that the powers of the Board of Equalization to correct errors in assessments extends to the correction of an erroneous designation by the owner, to the description of the property, and to valuations placed on the rolls by the assessor without authority, and that the adding to or eliminating therefrom property appearing on the rolls is not the correction of an error within the purview of R.S. Article 7206, and is invalid if done without the taxpayer’s consent. 40 Tex.Jur., pp. 137, and 138, section 99; Sullivan v. Bitter, 51 Tex.Civ.App. 604, 113 S.W. 193; City of Fort Worth v. Southland Greyhound Lines, 123 Tex. 13, 67 S.W.2d 354; Crocker v. Santo Consolidated Ind. School District, Tex.Civ.App., 116 S.W.2d 750; Mar-Quart v. Harris County, Tex.Civ.App., 117 S.W.2d 494.

Appellants contend that appellees have failed to either allege or prove a cause of action for injunction. A careful analysis of the record convinces us that appellees’ petition contains the necessary averments to support the relief granted.

The trial court conducted a full hearing on the facts of the case, in which each side was allowed a wide latitude in the introduction of evidence, before granting the injunction prayed for.

It is uniformly held in this state that the granting or refusal of a temporary injunction is within the sound discretion of the trial court and is not reviewable upon appeal unless it clearly appears from the record that there has been an abuse of such discretion. Houston v. Interstate Circuit, Tex.Civ.App., 132 S.W.2d 903, 904; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778; Dallas v. Fry, Tex.Civ.App., 263 S.W. 653; Frels v. Consolidated Theatres, Tex.Civ.App., 134 S.W.2d 369; Renfro v. Sperry, 134 S.W.2d 438, 439.

In this case the judge arrived at his decision after a thorough hearing of the facts and a consideration of the record convinces us that he did not abuse his judicial discretion in granting the temporary injunction.

Further, under the established rule in this state that if a court interrogates a witness about a matter over which it has no jurisdiction and about which it has no right to inquire, the refusal of the witness to answer the question is not contempt of court, the order of the Commissioners’ Court holding Sam Bassett in contempt for his refusal to answer questions or furnish information in reference to properties not shown on said rendition sheet, and for his refusal to sign and verify said rendition sheet, under the record herein, is void. Ex parte Gould, 60 Tex.Cr.R. 442, 132 S.W. 364, 31 L.R.A.,N.S., 835; Ex parte Richards, 109 Tex.Cr.R. 387, 4 S.W.2d 974.

These conclusions require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.