author: BEAUCHAMP, Judge.

text:
    IRVEN v. STATE.
    No. 20818.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Leon P. Howell and S. D. Bennett, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a conviction in the County Court of Jefferson County upon a charge denounced by section 19, subdi-' vision (e) of Article 667 of the Penal Code, authorizing the cancellation of the license by the Texas Liquor Control Board when it is found that one has: “Permitted at his place of business any conduct by any person whatsoever that is lewd, immoral, or offensive to public decency”.

Article 667 is divided into many sections and concludes with the following penalty clause: “Any person who violates any provision of this Article shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Twenty-five ($25.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.”

The language found in the complaint and information in the case before' us is as follows: “He, the said E. E. Irven, did then and there unlawfully permit Woodrow Tiller to be on said premises, while he, the said Woodrow Tiller, was then and there intoxicated, and the conduct of the said Woodrow Tiller in such intoxicated condition, was then and there offensive to public decency,” etc.

While there are other errors complained of in the case which we feel constrained to sustain, we believe that it is sufficient to consider only that which relates to the validity of the statute under which this prosecution is brought.

The State’s Attorney has filed a brief confessing the invalidity of the particular section of the article of the statute on the ground that it is too indefinite and uncertain and is therefore unenforceable. An examination of the statute reveals the correctness of this admission. The case of Griffin v. State, 86 Tex.Cr.R. 498, 218 S.W. 494, is in point and controlling on the subject.

In the first place, the court should have sustained the exception to the complaint and information because, in the language written, it is a conclusion on the part of the County Attorney that the conduct was “offensive to public ■ decency”. The only conduct mentioned is that the party involved was intoxicated. There is no allegation and no proof in the record of any act or conduct on the part of the individual that would support the conclusion that he was “offensive to public decency”. Our greatest trouble, however, is as indicated by the admission of the State’s Attorney, the indefiniteness of the expression, “offensive to public decency”.

It may be reasoned that because drunkenness in a public place is a fineable offense regardless of the conduct of the individual while intoxicated, it is per se offensive to public decency. We think, however, that there are other reasons for making it a fineable offense than that it is offensive to public decency. Frequently, the conduct of the individual is such as to make it so, and the danger of it becoming offensive to public decency is sufficient to warrant legislation on the subject. We do not believe that the validity of the statute depends upon the conclusion that it is always offensive to public decency. The element of danger to public safety, as well as other considerations, play a part in sustaining the statute and must be considered. If it rested for its validity on the one thing, there might be a question as to the right of the Legislature to prohibit it.

We are sustained in our view that the expression is too indefinite and uncertain by the following quoted paragraphs from Words & Phrases, First Series, Volume 6, page 5792, under the heading of “Public Indecency”:

“ ‘Public indecency’ has no fixed legal meaning. It is vague and indefinite, and cannot in itself imply a definite offense. The courts have, by a kind of judicial legislation in England and the United States, usually limited the operation of the term to public exhibitions of the person, the publication, sale, or exhibition of obscene books, and prints or the exhibition of a monster — acts which have a direct bearing on public morals and affect the body of society. The term is different from, and more limited in its meaning than, the word ‘indecency,’ as commonly understood. Mcjunkins v. State, 10 Ind. 140, 144.
“ ‘Public indecency* has no fixed legal meaning. It is vague and indefinite, and cannot in itself imply a definite offense. The acts which constitute it must vary with the different phases of society, depending upon the fastidious, refined, or primitive views of the community in which they happen to be committed. Acts which in one place might be regarded as amounting to public indecency might in another be considered harmless, and even proper. Jennings v. State, 16 Ind. 335, 336.”

Because subdivision (e) of Section 19 of Article 667 does not sufficiently define “offensive to public decency” and because the term is too indefinite of enforcement, we think, so far as it attempts to fix the penalty for acts that are offensive to “public decency” as therein stated, the law will be ineffective. However, it may be understood that this does not include the other offenses enumerated in said subdivision or affect the validity of them.

The case is reversed and the prosecution ordered dismissed.


source: Caselaw Access Project

author: HAWKINS, Presiding Judge.

license: Public Domain

text:
    GASS v. STATE.
    No. 20816.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Leslie J. Bretz, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for aggravated assault, punishment being a fine of $35.00.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: KRUEGER, Judge.

text:
    PHELAN v. STATE.
    No. 20829.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is burglary. The punishment assessed is confinement in the state penitentiary for a term of 4 years.

Appellant was- charged by indictment with having unlawfully by force entered a house known as the Parks Absorption Pump Room, then and there occupied and controlled by A. A. Harden, with the fraudulent intent to take from said house certain personal property therein located, etc.

When his case was called for trial, appellant waived- a jury in the manner provided by law and entered a plea of guilty. Notwithstanding his plea of guilty, the state offered proof to substantiate the charge in the indictment. After his conviction, appellant filed a motion for a new trial in which he asserted that he was induced to plead guilty by the district attorney, who advised him that if he did plead guilty, he would recommend that his punishment be assessed at confinement in the state penitentiary for a term of two years. That he believed said promise and relied thereon when he entered said plea. This motion was contested by the state. A categorical' denial of the allegations were made by the district attorney. Appellant offered no proof in support of his allegations. Under the circumstances as disclosed by the record, we are unable to say that the trial court-abused his discretion in declining to grant a new trial.

No error of a reversible nature appearing, the judgment is affirmed.

PER CURIAM.

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


text:
    GARZA v. STATE.
    No. 20821.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Gus Garcia, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for unlawfully carrying a pistol; punishment being sixty days in jail.

No statement of facts or bills of exception are found in the record. In this condition nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    BOREN v. STATE.
    No. 20817.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    A. W. Cameron, of Edinburg, for appellant.
    Lloyd W.. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Conviction for a misdemeanor; punishment being assessed at confinement in jail for thirty days.

The record is before us without a statement of facts. In the absence of a statement of facts we are unable to appraise appellant’s exceptions to the charge of the court.

The judgment is affirmed.

PER CURIAM.

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


text:
    Ex parte FLOWERS.
    No. 20992.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    W. W. Ballard, of Wichita Falls, for appellant.

      Lloyd W. Davidson, State’s 'Atty., of Austin, for the State. '
   HAWKINS, Presiding Judge.

Resisting an extradition warrant directing his return to Oklahoma appellant obtained a writ of habeas corpus.

Apparently appellant is appealing from an order remanding him. However, from the record before us no remanding order or judgment appears; neither is there any notice of appeal found in the record.

Both the judgment and notice are necessary to confer jurisdiction on this court. Ex parte Davis, 105 Tex.Cr.R. 146, 287 S.W. 246.

The appeal is dismissed.


text:
    HUFF v. STATE.
    No. 20827.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    A. F. Nossoman and R. G. Baker, both of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for having in possession whisky in a container to which no tax stamp was affixed; punishment assessed at six months in jail.

The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


text:
    RUSHING v. STATE.
    No. 20832.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    H. F. Grindstaff, of Rotan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Fisher County for the offense of unlawfully selling intoxicating liquor in a dry area, and his punishment was assessed at a fine of $100.

The only evidence introduced upon the trial of the case is that coming from an inspector for the Texas Liquor Control Board, who testified that he bought a pint of whisky from the appellant on June 11, 1939, and paid him a dollar therefor. Appellant did not testify upon the trial and introduced no evidence in his behalf.

The only bill of exception found in the record is that complaining of the action of the court in overruling appellant’s motion to quash the complaint and information upon the ground that same are insufficient to charge any offense. The particular objection which the appellant makes is not pointed out and we have been unable to discover what he has in mind. The bill points out no error, and we are unable to discover any error from the record requiring a reversal of the case, for which reason it is affirmed.


text:
    MANLEY v. STATE.
    No. 20822.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Curtis Douglass, of Panhandle, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is knowingly receiving and concealing stolen property; the punishment, confinement in the penitentiary for two years.

The indictment charged that the appellant received the property from some person to the grand jurors unknown. We understand from the testimony that the grand jury did know or should have known by the exercise of reasonable diligence that appellant received the property from Less Downey and Gordon Parks, both of whom appear to have stolen from Ed Rawson several joints of pipe having the value of’ more than fifty dollars. These witnesses' testified for the state to the effect that' they delivered the property to appellant.’ Appellant contends that there is a variance-between the proof and allegation relative to the party from whom the property was received. It appears that his contention is sustained by the holding in Hunnicutt v. State, 131 Tex.Cr.R. 260, 97 S.W.2d 957, 958. In that case the court said: “It has been held by this court that whenever it is charged in the indictment that the property was received by the accused from a person whose name was unknown to the' grand jury, some proof must be offered that said party’s name was unknown to the grand jury and that by the exercise of reasonable diligence it could not be ascertained.” The State’s Attorney before this court confesses error on this point.

Downey and Parks were accomplice witnesses and the court instructed the jury that they were accomplice witnesses as a matter of.law. Appellant excepted to the charge because it failed to instruct the jury that one accomplice witness could not corroborate another accomplice witness. This exception was well taken. Jolly v. State, 132 Tex.Cr.R. 102, 103 S.W.2d 161.; Lightfoot v. State, 128 Tex.Cr.R. 281, 80 S.W.2d 984. The State’s Attorney also confesses error on this point.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


text:
    ROACH v. STATE.
    No. 20835.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1940.
    Willis & Via, of Pampa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is passing a forged instrument. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant complains of the court’s action in declining to instruct the jury on the law of circumstantial evidence, or to give his requested instruction on the subject. We are of the opinion that under the evidence he was entitled to such an instruction, because no witness testified to having seen appellant forge the check of heard him say that he forged the same. There was no direct testimony from any source that appellant had knowledge that the check was a forged one; nor is there any evidence that it was in his handwriting. The fact that the check was not made by the company whose act it purports to be is not shown by any direct evidence, but is to be inferred from the testimony of the sheriff and the injured party, who testified that they made some inquiry in Moore County, but could not find any company by that name. Consequently, the conclusion that appellant forged the check or knew it was forged is but an inference arising from the testimony.

This court seems to have uniformly held that although there is direct proof of passing a forged instrument, it will not relieve the trial court from charging the jury on the law of circumstantial evidence when the case is one for passing a forged instrument, and especially is this true when the evidence of forgery, as well as the knowledge thereof on the part of the accused, depends on circumstantial evidence. See Nichols v. State, 39 Tex.Cr.R. 80, 44 S.W. 1091; Verner v. State, 117 Tex.Cr.R. 112, 35 S.W.2d 428; Mixon v. State, 129 Tex.Cr.R. 584, 90 S.W.2d 832, and authorities.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: PRICE, Chief Justice.

text:
    McKINLEY et al. v. SALTER et al.
    No. 3869.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 2, 1939.
    Rehearing Denied Jan. 4, 1940.

      J. A. Lantz and Mayfield, Lantz & May-field, all of Tyler, for appellants.
    ' Clayton Bray, of Longview, Florence & Florence, of Gilmer, Roy C. Ledbetter, W. H. Sanford, W. H. Francis, Walace Hawkins, and Conan Cantwell, all of Dallas, and Rufus S. Garrett, of Fort Worth, for ap-pellees.
   PRICE, Chief Justice.

This is an appeal from the judgment of the District Court of Gregg County. The judgment was entered in a consolidation of two cases numbered 11,275-A and 12,605-A on the docket of that court. These two cases were of the same nature and sought the same relief. Each was a proceeding by cer-tiorari to set aside the same judgments and orders of the County Court of Gregg County in a guardianship proceeding in County Court numbered 1026 and entitled Guardianship of Grady McKinley, et a1., Minors. In fact the petitions in the cases were in many respects identical, the only difference being that, identical as well as additional grounds of attack were set forth in cause No. 12,605-A to those set out in No. 11,275-A.

The judgments and orders attacked by the petition were as follows: (1) An order of sale made by the County Court on the 4th day of February, 1928. This order directed the sale by M. F. McKinley as guardian of the two-fifths interest of the four minors in two tracts of land in Gregg County, Texas, one of twenty-five acres and the other of thirty acres. (2) An order made by said court on the 18th day of February, 1928 confirming the sale of the two-fifths interest of the minors, Grady, Eunice, Luther and Lewis McKinley, in said tracts of land to R. L. Salter for $360, and ordering the execution of a deed by the guardian on compliance of R. L. Salter with the terms of sale; (3) an order and decree of the County Court made on the 23rd day of March, 1936, in a proceeding by bill of review wherein plaintiffs here, or those in privity with them, sought to set aside orders one and two as set forth in this paragraph. The defendants in that proceeding are the defendants here, either in person or by privity. The decree denied plaintiffs therein the relief sought.

The grounds urged by appellants, hereinafter referred to as plaintiffs, in the consolidated suit were broadly and generally as follows: (1) that at the time the order of sale was made and likewise the order confirming the same, M. F. McKinley was temporary guardian only, and that citation or notice on the order making his appointment had neither been issued nor served; (2) that there was no necessity for a sale of the property; (3) that the property was sold for an inadequate price; (4) that the guardian was interested, in that he owned an undivided interest in the property sold; (5) that the application failed to allege a necessity for a sale of the property and that at the hearing no testimony was introduced to show the necessity for a sale; (6) that the sale was made in pursuance of an agreement between McKinley, before he was appointed guardian, and the purchaser Salter, that McKinley should seek to be appointed guardian, and, if successful, should sell the minors’ interest to Salter for $360; (7) that McKinley never sought to obtain a better price for the property than $360; (8) that the order of confirmation of the sale was made in vacation and hence was void; (9) all or most of the above enumerated grounds were set up in the petition or amended petition in the bill of review proceeding in which judgment was entered on the 23rd day of March, 1936.

After the consolidation of the two cases the Magnolia Petroleum Company filed on October 10, 1938 its first amended original answer in the consolidated case. This answer was adopted by the other defendants other than those disclaiming and defendant M. F. McKinley as guardian. McKinley, as guardian, filed under leave of the court an answer setting up that for reasons personal to himself he did not join as party plaintiff; that the said cause was being prosecuted by Grady McKinley as next friend of the minor plaintiffs with his consent and approval.

It might be noted here that H. R. Smith, the next friend of the minors in the bill of review proceeding, was neither a party plaintiff nor a defendant in the consolidated suit.

The amended answer of defendant Magnolia Petroleum Company consisted of a general exception, special exception, general denial and a special plea in substance to the effect that the matters set up in plaintiffs’ petition . were mere irregularities; that the sale in question was fair, necessary, and for the best interest of the minors.

The trial was to a jury. On the 11th day of October, 1938 the court instructed the jury to return a verdict in favor of defendants. Judgment was rendered in accordance with the instructed verdict. Plaintiffs in due time filed motion for new trial and same was duly overruled, and appeal in due time perfected.

The facts of the case are practically undisputed. On the 5th day of January, 1928 M. F. McKinley filed in the County Court of Gregg County application to be appointed guardian of the estates of his minor children, Grady, then about sixteen years of age, Eunice, about fourteen years of age, Luther, about twelve years, and Lewis, about ten years. On January 12, 1928 Grady McKinley and Eunice McKinley filed in the County Court a written waiver of service and made choice of M. F. McKinley as their- guardian. On January 17, 1928 the court entered an order appointing McKinley temporary guardian of said minors and fixed the amount of the bond at $1,000. The order further provided that notice should issue and unless the appointment was contested at the next regular term after the service of citation and notice same should be permanent. Appraisers were appointed in the order. January 23, 1928 McKinley filed his bond and oath and on the same day the County Judge approved same. On the same day McKinley filed application to sell at private sale the two-fifths interest of the minors in the two tracts of real estate hereinbefore mentioned. The application set up that the interest- was undivided; that it would be more advantageous to the estate of the minors to sell such undivided interest in the real estate. On February 4, 1928 the court made an order reciting that notice had been given as required by law of the application, and that it was to the best interest of the minors to sell the land, and that the application was granted. A bond was required of the guardian in double the amount of the sale price of the land. The caption of this order was as follows:

February 6, 1928 McKinley as guardian filed report of sale stating therein that he had sold the property to R. L. Salter' for $360 on terms, one-third cash and the balance on credit, one-third in twelve months and one-third in twenty-four months. February 18, 1928 the County Court entered an order confirming' the sale. The caption of this order is the same as the caption on the order hereinbefore copied. On the same day, February 18, 1928, McKinley filed bond for the sale of .real estate in the sum of $720, which bond was approved February 22, 1928. Febrüary 25, 1928 McKinley executed deed as guardian conveying the property to Salter. The deferred payments bore interest at the rate of eight per cent per annum and, were secured by, a vendor’s lien. These notes have been paid in the course of-the guardianship.

The deed from McKinley as guardian to Salter recited that the order of sale and order confirming same were made in vacation.

On the 26th day .of March, 1928 notice was issued on the order of appointment of McKinley as temporary guardian and served and executed in a legal manner, and on April 25, 1928 the court made an order that the guardianship be permanent.

The last order of the’ Commissioners’ Court of Gregg County fixing the terms of the County Court was made on the 12th day of July, 1923. In substance it was that the court should convene on the second Monday in January and on the second Monday in April and on the second Monday in July and on the second Monday in September of each year and should continue in session for each term until the business may be disposed of. The order provided it was to become effective on September 8, 1923.

On the 9th day of June, 1934 McKinley, purporting to act as guardian,, as father, custodian of the person and next of kin and next friend, and H. R. Smith, also purporting to act as next friend, filed the bill of review proceeding on b\ehalf of the minors, Eunice, Luther and Lewis McKinley. Grady McKinley, being then of age, joined in the proceeding in his own right. The defendants were R. L. Salter, E. B. McFarlin, Magnolia Petroleum Company and Rio Oil Corporation. The purpose of the suit was to set aside the order of sale beforementioned and the confirmation thereof. The defendants all filed answers in the suit. February 5, 1928 plaintiffs filed an amended petition and on April 24th filed a second amended petition. This last amendment added A. L. Hughes, E. E. Stancil and J. I. Morgan as new defendants. A judgmfent was entered in said-cause by the County Court on the 23rd'day of March, 1936 reciting the appearance of all defendants and adjudging that plaintiffs take nothing. The parties to this bill of review were all of the parties whose interests could be affected by the orders and judgments assailed. All of the parties plaintiff in this bill of review proceeding were parties plaintiff in the consolidated suit in the District Court, and all of the parties defendant in the bill of review suit were parties defendant to the consolidated suit. To this general statement this modification should be made: J. I. Hill appearing as next friend in the bill of review suit was neither a party plaintiff nor a defendant in the consolidated suit and McKinley was a party defendant therein instead of plaintiff.

We will preface our further discussion of the case with the statement that in our opinion the attack made by plaintiffs on the orders and judgment of the County Court is direct and not collateral. Hill was not a party to the consolidated suit but he merely appeared as a nominal party. McKinley appeared in the consolidated suit as a party defendant. The making of him a party defendant was all that was necessary. The court very properly, we think, allowed the minor plaintiffs to appear by next friend. From the record, as we read it, it appears that all possible parties that are in any way affected are parties to this proceeding.

A certiorari proceeding instituted in the District Court to review and correct the judgment of the County Court for errors specified in the petition therefor is a direct attack on such judgment. Article 4329, R.S.1925; Tex.Jur., vol. 9, p. 21, § 2; Tex.Jur., vol. 21, p. 375, § 110; Linch v. Broad, 70 Tex. 92, 6 S.W. 751; Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325; Jirou v. Jirou, 104 Tex. 136, 135 S.W. 114.

In the decision of the question of power to render a judgment the character of the attack thereon becomes unimportant. If jurisdiction or power to render the judgment exists, then it may become of controlling importance whether the attack be direct or collateral. The questions tendered here largely involve potential jurisdiction and not jurisdiction dependent for its exercise on condition of service of notice, etc.

The first ground of attack urged by appellants against the orders and judgment sought to be annulled is that the County Court, in the administration of the estate of minors, has not the power through, the instrumentality of' a temporary guardian before the notice and citation have been issued on the appointment, to sell the real estate of minors. It is further urged that an attempt on the part of the Legislature to invest the County Court with this power would violate the Fourteenth Amendment to the Constitution of the ■ United States. The constitutional question will he briefly discussed later in the opinion.

The Constitution is a primary source of power of the County Court to manage and control estates of those under legal disability to act in their own right. Art. 5, Sect. 16, paragraph 2, provides: “The County Court shall have the general jurisdiction of a Probate Court; they shall probate wills, appoint guardians of minors, idiots, lunatics, persons non compos mentis and common drunkards, grant letters testamentary and of administration, settle accounts of executors, transact all business appertaining to deceased persons, minors, idiots, lunatics, persons non compos men-tis and common drunkards, including the settlement, partition and distribution of estates of deceased persons and to apprentice minors, as provided by law.”

Article 5, Sect. 29 provides: “The County Court shall hold at least four terms for both civil and criminal business annually, as may be provided by the Legislature, or by the Commissioners’ Court of the county under authority of law, and such other terms each year as may .be fixed by the Commissioners’ Court; provided, the Commissioners’ Court of any county having fixed the times and number of terms of the County Court, shall not change the same again until the expiration of one year. Said court shall dispose of probate business either in term time or vacation, under such regulation as may be prescribed by law. Prosecutions may be commenced in said courts in such manner as is or may be provided by law, and a jury therein shall consist of six men. Until otherwise provided, the terms of the County Court shall be held on the first Mondays in February, May, August and November, and may remain in session three weeks.”

Further, the following Articles of the Statutes of 1925Í are deemed applicable and are here set out:

Article 4134: “Whenever it appears to the county judge that the interest of any minor and his or her estate, or either, requires immediate appointment of a guardian, he shall, either in term time or in vacation, without citation and with or without written application therefor, appoint some suitable person temporary guardian of the person of such minor and his or her estate or either. Such appointment shall not take effect until such appointee has taken the oath and given the bond required by law. The appointment so made may be' made permanent.” ■

Article 4135: “The order of the court in making such appointment shall state that unless the same is contested at the next regular term of the court, after notice, the same shall be made permanent.”

Article 4136: “If such appointment is contested, the court shall hear and determine the same as the law and the facts require. During the pendency of such contest, the person so appointed as temporary guardian shall continue to act as such. If such appointment is set aside, the court shall require the person so appointed to make out and file in court a complete sworn exhibit of the condition of such minor’s- estate, and what disposition he has made of the same.”

Article 4137: “Immediately after the appointment of a temporary guardian, the clerk of the court shall issue notice which shall state the name of the person appointed and when so appointed, and the name of the minor, or minor’s estate, or both, which notice shall cite all persons interested in the welfare of such minor to appear at the term of court named in such notice, and contest such appointment if they so desire; and, that, if such appointment is not contested at the term of court so named in the citation, then the same shall become permanent.”

Article 4138: “All the provisions of this title relating to the guardianship of the persons and estates of minors shall apply to temporary guardianship of the persons and estates of minors, in so far as the same are applicable.”

Article 3373: “Whenever it appears to the county judge that the interest of an estate requires the immediate appointment of an administrator, he shall, either in open court or in vacation, by writing under his hand and the seal of the court, attested by the clerk, appoint a suitable person temporary administrator with such limited powers as the circumstances of the case may require; and such appointment may be made permanent, as herein provided.”

Article 3379: “Temporary administra- - tors shall have and exercise only such right's and powers, as are specifically expressed in the order of the court appointing them, and any acts performed by them as such administrators that are not so expressly authorized shall be void.”

Let us preface our discussion by the statement that it has never been determined whether or not under the circumstances shown by the record a temporary guardian has, under the direction of the County Court, the power to sell the real estate of minors. Judge German, in the conclusion of his opinion in the case of Carroll et al. v. McLeod, Tex.Com.App., 130 S.W. 2d 277, 282, said: “We do not wish to be understood as holding that Wall as temporary guardian could not, as agent of the Court, have been authorized to make sale of real estate. See Shumard v. Phillips, 53 Ark. 37, 13 S.W. 510; Alexander v. Pointer, 54 Ark. 480, 16 S.W. 264; and Baker v. Cureton, 49 Okl. 15, 150 P. 1090.”

Our Constitution confers on the County Court general jurisdiction in the management, control and disposition of the estates of minors. See sections of Article 5 quoted supra; Weems v. Masterson, 80 Tex. 45, 15 S.W. 590; Ex parte Reeves, 100 Tex. 617, 103 S.W. 478; Hannon et al. v. Henson, Tex.Com.App., 15 S.W.2d 579.

That the County Court had the power of appointing McKinley temporary guardian of the estates of his minor children is beyond question. The sections of the statutes above quoted applicable confer the power and in a proper case command its exercise. It is equally clear that upon taking the oath he became such temporary guardian. The record herein shows that he was appointed by order duly entered in the Minutes of the County Court on the 17th day of January, 1928. Bond and oath were filed and approved on the 23rd day of January, 1928; that citation was issued on the order of his appointment and served ten days before the next regular term of the County Court, and that no contest was filed. Under the facts of the record as above narrated McKinley became temporary guardian on the 23rd day of January, 1928. See Articles 4134 to 4138, R.S.1925, quoted supra; Gann v. Kern et al., Tex.Civ.App., 249 S.W. 878, writ denied; Hannon v. Henson, Tex.Com.App., 15 S.W.2d 579; Burton v. McGuire, Tex.Com.App., 41 S.W.2d 238.

McKinley’s appointment as temporary guardian and his qualification as such certainly empowered him to perform certain acts under the authorization of the Probate Court. It was in and of itself an assumption of present duties by the guardian of the estate of the minors. The mere issuance of citation would give no notice that the court had assumed jurisdiction of the estates of the minors. We are constrained to hold that the taking of the oath and filing of the bond conferred power and at the same time encumbered duty upon the guardian. The law providing for the appointment of a temporary guardian has this provision: “All the provisions of this title relating to guardianship of the persons and estates of minors shall apply to temporary guardianship of the persons and estates of minors, in so far as the same are applicable.” Under this provision a temporary guardian has all the powers and duties of a guardian of minors given by law to a permanent guardian if applicable.

Article 4108, R.S.1925, is as follows:

“The provisions, rules and regulations which govern estates of decedents shall apply to and govern such guardianships, whenever the same are applicable and not inconsistent with any provision of this title.” •

Articles 3373 to Article 3381, R.S.1925, provide for temporary administration of estates of decedents.

There are some analogies between the powers and duties of a temporary guardian, and likewise there are many differences. There is a similarity in that each may be appointed without notice. The tenure of each may become permanent if not contested under the conditions set. down in the applicable statutes. Now as to the differences between these two temporary agencies of administration: a temporary guardian and a temporary administrator are provided for in separate and distinct sections of our statutes relating to administration. The limits of the authority of a temporary administrator are fixed and determined by what is conferred upon him in the written order of appointment. Art. 3379, R.S.1925. He may be an instrumentality for the exercise of such powers as the County Court may exercise through a temporary administrator only to the extent provided in the order of his appointment. If might be noted here that it has been held that a County Court has not the power to sell real estate through a temporary administrator. Cruse v. O’Gwin, 48 Tex.Civ.App. 48, 106 S.W. 757. The powers and duties of a temporary guardian may not be limited by the order of his appointment. Under express provision of Ar-tide 4138, quoted supra, he has the powers and duties, in so far as same are applicable, of a permanent guardian. The bond he gives is for the proper exercise of such power. The bond of a temporary administrator is in such sum as the County Judge may direct. This is a specific direction and the considerations determining the amount of a bond exacted will, of course, be determined by the County Judge with reference to the duties he must perform under the order of his appointment. The duties and powers of a temporary guardian are not fixed by the order of his appointment. See Article 4138. The bond he gives is the bond required by law. We go to the general law governing regular guardianship for the conditions of the bond, and the amount therein probably should be fixed under the same considerations that govern the amount of the bond of a regular or permanent guardian. It seems that in the absence of contest of his appointment no new bond would be required for a temporary guardian to become the regular guardian. Burton v. McGuire, Tex.Com.App., 41 S.W.2d 238. We think there is not such an analogy between the authority a County Court may exercise through a temporary administration and that it may exercise through a temporary guardian as should govern here. It is our opinion that the County Court has jurisdiction and power to order a duly qualified temporary guardian of the estate of a minor to sell an undivided interest in land. Shumard v. Phillips, 53 Ark. 37, 13 S.W. 510; Alexander v. Pointer, 54 Ark. 480, 16 S.W. 264; and Baker v. Cureton, 49 Old. 15, 150 P. 1090.

The question, however, still remains: Granted that the Court has the power to make sale of the interests of minors through a temporary guardian, has it that power prior to the issuance and service of citation provided by law? Plaintiffs do not seriously question here that such a power exists, provided the notice and citation have been issued provided for in Article 4137, R.S.1925. It might be noted here that the law providing for notice does not concern or expressly exact personal service on minors fourteen years of age or over. That requirement is to be found in the general law applicable to guardian and ward.

If a temporary guardian cannot function as such until after the issuance and service of notice provided in the law providing for his appointment, then what is the purpose of his appointment? The County Judge is to appoint only in event it appears to him that the interests 'of the minor require the immediate appointment of a guardian. Why appoint a temporary guardian if he cannot function? In our opinion McKinley, upon the filing of his oath and bond, became temporary guardian from the moment he filed his oath and bond. Carroll v. McLeod, Tex.Com.App., 130 S.W.2d 277, supra.

The case of Wilkinson v. Owens, Tex. Civ.App., 72 S.W.2d 330, 334, has been carefully read and considered. In that case on September 27th an application-was filed for appointment as temporary guardian. On the next day an application was filed for appointment as guardian, praying for citation thereon. Both of these applications sought guardianship of the person and the estate. On September 27th an order was entered in the Probate Minutes appointing the appellant applicant temporary guardian of the person and estate of the minors. On October 12th, applicant filed a bond as guardian of the estate of the minors, and on October 15th took the oath as guardian of the estate. On November 11th the court entered an order making the temporary guardianship permanent. On October 20th application to sell the land was made. This application was granted on November 21st and on November 27th the sale was confirmed. No notice was ever issued on the appointment as temporary guardian. In the course of the opinion this statement appears : “The court could proceed no further until notice was issued as provided by statute.” The statement was made in reference to Article 4135. It was in the course of the discussion of the requisites to ’ the appointment of a -regular or permanent guardian. It is true that as to one of the minors the court did hold the order of confirmation void and the conveyance thereunder ineffective. The case persists in the conception .that an order is necessary to constitute one appointed temporary guardian regular or permanent guardian, even though the requisite notice be given and no contest filed. Conveyance is upheld in the case as to the two minors who, on September 28th, were over fourteen years of age and on that date filed a waiver of citation and made written choice of C. E. Cook as their guardian.

The discussion in the opinion is not as to . the power of the temporary guardian. It seems to assume that the power of convey-anee depended on the order of November 11th making the guardianship permanent. In the case the attack seems to have been collateral. If we are correct in this, it conflicts in this particular with Carroll v. McLeod, supra. However, we are aware that some of the ideas expressed therein conflict with the ideas hereinbefore expressed.

In our opinion the exercise of the power by a County Court to confirm a sale theretofore ordered does not depend upon whether the notice provided for for the appointment of a temporary guardian be either issued or served. In a proper case the power exists independent of the issuance of the notice or the service thereof.

We come now to the consideration of the question as to whether or not the order of confirmation was made and entered in vacation or term time. In order to discuss this question it is necessary to endeavor to settle the only disputed question of fact in this case. This question only arises on the proper construction of the orders of the Commissioners’ Court of Gregg County and the Minutes of the County Court and the recital in the deed from McKinley as guardian to defendant Salter. The substance of the order of the Commissioners’ Court dated July 12, 1923 as to the terms of the County Court has been herein-before set forth. County Court commenced on the second Monday in January and on the second Monday in April and on the second Monday in July and on the second Monday in September of each year and continued . in session for each term until the business could be disposed of. A proper construction of this order seems to be that it provided for four terms of the County Court of Gregg County and each term might continue for three months. If the January Term, 1928 had convened as provided by law it was in session on the 18th day of February, 1928 unless the Court had adjourned sine die before that time. We quote from the second syllabus in the case of International & G. N. R. Co. v. Susan A. Smith, 62 Tex. 185: “When the statute allows a term of the district court to remain open until all business of the term has been disposed of, it is for the district judge to determine when the term shall be closed.” Supporting this statement might be cited Labadie v. Dean, 47 Tex. 90; Union Pac. Ry. Co. v. Hand, 7 Kan. 380, at page 238; Schofield v. Horse Springs Cattle Co., C.C., 65 F. 433.

The statement of facts does not show the Minutes of the County Court of Gregg County with reference to the adjournment of the January Term, 1928. The natural place to find such adjourning clause is in the authentication of the Minutes of the County Judge and County Clerk at the close thereof. We have hereinbefore set out the caption of the order of sale and the caption of the confirmation order. It is our view that the only necessary and essential part thereof is the style and number of the proceedings. The words appearing to the right thereof, “In-County Court of Gregg County, Texas, In Vacation,” are perhaps surplusage. We do not believe that in and of themselves these words, taking into consideration the place of their appearance, are sufficient to attest the formal act of the adjournment of court. Likewise it is believed that the recitals in the conveyance from McKinley as guardian to Salter are insufficient to show that the January Term, 1928 had adjourned.

But let it be assumed that we are in error as to the January Term being in session on the date of the order of sale and confirmation, and assume same was in vacation, Article 5, Section 29 of the Constitution provides in part: “Said court (the reference is to the County Court) shall dispose of probate business either-in term time or vacation, under such regulation as may be prescribed by law.” Let us assume further that this constitutional provision is not self-executing and it is the province of the Legislature to determine what matters must be determined in term time and what may be determined in vacation. If this assumption be correct, the determination of the question depends on a construction of the Acts of the Legislature applicable to guardianship sales. Article 4158 and Article 4177 of the Revised Statutes of 1911 were as follows:

Article 4158: “Whenever an application for the sale of real estate is filed, it shall be the duty of the clerk immediately to issue a citation to all persons interested in the ward to appear at a regular term of the court, to be named in such citation, and show cause why such application should not be granted; which citation shall state the property sought to be sold, and shall be served by posting, as in the case of sales of real estate of the estates of decedents, for at least twenty days before the first day of the term of the court to which such citation is made returnable.”

Article 4177: “At any time after the expiration of five days from the filing of a report of sale, it shall he the duty of the court in which the same has been filed, at a regular term thereof, to inquire into the manner in which'such sale was made, and to hear evidence in support of or against such report; and, if satisfied that such sale was fairly made and in conformity , with law, the court shall cause to be entered upon its minutes a decree confirming such sale, and order the report of sale to be recorded by the clerk, and the proper conveyance of the property sold to be made by the guardian to the purchaser, upon compliance by such purchaser with the terms of sale.”

The Thirty-Third Legislature in 1913 amended these articles to read as follows:

'• Article 4158: “Whenever an application for the sale of real estate is filed, it shall be the duty of the clerk to immediately call the attention of the judge of the court in which such guardianship is pending to the filing of the application, and the judge shall designate a day to hear such application, which may be heard in term time or vacation, provided, such application shall remain on file at least five days before any orders are made and the judge may continue such hearing from time to time until he shall have been satisfied as to the facts concerning the application.”

Article 4177: “At any time after the expiration of five days from the filing of a report of sale, it shall be the duty of the court in which the same has been filed to inquire into the manner in which such sale was made, and hear evidence in support of or against such report and, if satisfied that such sale was fairly made and in conformity with law, and that the guardian has filed his bond as required herein, which has been duly approved by the court, the court shall cause to be entered upon the minutes a decree confirming such sale, and order the report of sale to be recorded by the clerk, and the proper conveyance of the property sold be made by the guardian to the purchaser, upon compliance by such purchaser with the terms of salé; provided that in cases pending at the time this law becomes effective and in which the guardian has a satisfactory bond filed, equal to twice the amount of. all personal property of the ward and twice the,amount of the real estate sold, he shall not be required to file a new bond.”

See Acts 33rd Legislature, Regular Session, page 323 et seq.

Articles 4158 and'4177 as amended are respectively substantially Article 4198 and Article: 4216 of the Revised Statutes, 1925. It needs no construction to determine that Article 4158, as. amended, does away with the prior requirement that the guardian’s sale must be ordered in term'time.

A more difficult question is presented as to Article 4177, as amended, carried forward in the revision of 1925 as Article 4216 thereof. Article 4177, as amended in' 1913, omits the specific requirement that the action of the court be at a regular term thereof. It is to be noted that it further provides specifically “At any time after the expiration of five days from the filing of a report of sale, it' shall be the duty of the court,” etc. However, it does not require “in the event the sale be approved hy the court, the court shall cause .to be entered a decree confirming such sale.” The clause last quoted is common to Article 4177 and as amended in Article 4216, Revised Statutes, 1925. The literal words of Article 4216, 1925, are “At any time after the expiration of five days,” etc. “At any time” might mean either in term time or vacation. If these literal words are to be limited in their application to such time as there is a regular term of court in session, it must be so on account of the context. As before stated, in amending the article, the Legislature omitted the words “at a regular term.” Article 4158, R.S.1911, provided for citation on application for order of sale and Article 4159, R.S.1911, provided in substance that no sale shall be ordered unless citation be issued and served. The amendment of 1913 so amended 4158 as to do away with the requirement of hearing in term time and the issuance of citation, and specifically repealed Article 4159. The initiatory step for sale of real estate in a guardianship proceeding is the application by the guardian for an order of sale. No citation was required in 1928 in order to invest the court or judge with the power to order a sale. Under the procedure provided for in Articles 4158 and 4159, R.S.1911, notice was given that a sale was sought and, if ordered, in due course there would be a report of sale upon which the court must act. The provision of Article 4177, R:S.1911, that the action must be in term time was of some importance then, in that with some degree of certainty it fixed the time of the action of the court. After the amendment of Article 4158, confining the confirmation to a term of court could be of little value to anyone in so far as notice was concerned. Under the procedure outlined by Articles 4195 and 4216, Revised Statutes, 1925, the sale might be consummated by the court or judge without actual notice to anyone save the guardian, the purchaser and the witnesses. The only real notice, if such be required, was the notice imputed from the fact that the court, through the agency of the guardian, was administering the property of the minors. The articles of the Constitution quoted supra give the Legislature power to authorize the county courts to function in either term time or vacation. See, also, Ex parte Reeves, 100 Tex. 617, 103 S.W. 478, supra. The apparent deliberate elimination from a former law requiring the confirmation to be in term time, the repeal of the law in regard to the necessity of notice on the application for the sale of the property and the further fact that the Legislature had the power to authorize and compel the county court to function a's such in probate matters, lead us to the conclusion that the law authorized the county court to pass upon the confirmation of this sale in vacation. The judgment of the County Court of Gregg County confirming the sale, whether in term time or vacation, was a warranted and valid exercise of jurisdiction.

It might be contended that the law as to sale by administrators governs here. On an application for sale of real estate by an administrator citation must issue. See Article 3567. Further, under Article 3569, the court is specifically confined to a regular term of the county court for a hearing of such application; likewise, under Article 3584 it is specifically provided that a hearing as to the confirmation of the sale must be in term time. Article 4108, R.S.1925, makes the rules and regulations governing the estates of decedents apply to guardianship whenever applicable. The terms of said Article 4108 maké the provisions as to the sale of real estate by administrators inapplicable to sales by guardians in the matters herein under consideration. Sales by administrators in these respects are specifically regulated by statutes applicable to them, and sales by guardians are regulated by specific statutes applicable thereto.

In regard to Article 3302, R.S.1925, it is deemed, taking into consideration the circumstances under which Article 4216, R.S. 1925, was amended, that same limits Article 3302, and that 4216 is a specific provision to act in the matter of confirming of a sale in vacation.

Plaintiffs contend that the construction we have placed upon the statutes that the Probate Court may sell land through a temporary guardian before notice of the appointment of such guardian has been issued or served would cause said statutes to violate the due process of law provision of the Fourteenth Amendment to the Constitution of the United States. The provision of the Fourteenth Amendment relied upon is as follows: “ * * * nor shall any State deprive any person of life, liberty, or property, without due process of law; ⅜ ⅜ * ft

Proceedings for the) apptointment of a guardian are not adversary in their nature. A jurisdiction when exercised is exercised to preserve and protect the estate of the ward. The county judge, without application, is authorized to make the appointment under Article 4134, R.S. 1925. In this case the applicant was the father of the minors, having, in the absence of disqualification, prior right to the appointment as regular guardian. In the nature of things he was the person primarily interested in the welfare of the minors. The fidelity of his acts was guarded by two bonds before the final confirmation of the sale. The case of Whittelsey v. Conniff, 266 Mo. 567, 182 S.W. 161, 163, 1 A.L. R. 913, clearly and amply states out view of the law involved. It was there stated: “Appellants say that the sale of a minor’s land by a curator who was appointed without any notice to the minor of the application for such appointment is a violation of constitutional law in two respects: First, that it violates the federal Constitution by denying to him the equal protection of the laws; second, that it violates the state Constitution by taking his property without due process of law. There is one answer to be made to both those propositions: When the Legislature, as parens patriae, takes from a minor the power fo dispose of his property, and, through the instrumentality of the probate court and a curator, sells that property for the purposes of his education and support, it does not deny to him the equal protection of the laws, but gives him the benefit of laws especially designed for his protection; it does not take from him his property, but used it for his benefit.”

It is to be further borne in mind that the two minors entitled to act in their own right in the matter of appointment designated their father as guardian. On the whole, the proceedings, so far as shown by the record, show a careful regard for and observance of the many safeguards prescribed by law to protect minors. If any deviations there were therefrom, same in no way affected the real rights of the minors. Each minor owned a one-tenth interest in two small tracts of land. It is common knowledge that an entire interest in a tract of land can naturally be sold to a greater advantage thán by sale of an undivided interest therein. The law of guardian and ward makes the ownership of an undivided interest a valid ground for sale of the real estate of a minor. The record fails to show that $360 was other than a full and fair value of the land. We feel that under the law applicable the sale should be upheld.

There is a question of practice raised by appellees that merits consideration. It is contended that, having prosecuted the bill of review proceeding to final judgment and given notice of appeal, plaintiffs may not again attack the judgment by certiorari. In other words, that certiorari and bill of review are alternative remedies and not cumulative, and the prosecution of one precludes resort to the other.

The orders here attacked by cer-tiorari were obviously attacked in the County Court by bill of review. In that proceeding the judgment was adverse to the plaintiffs here and notice of appeal was given and a record thereof appears in the judgment. Here the judgment in the bill of, review proceeding is necessarily attacked along with the confirmation order. One of the reasons that two years are given for the filing of a bill of review in the Probate Court or an attack by certiorari is to be found in the very nature of guardianship proceedings. The proceedings are in a large measure purely administrative in character. Most of the orders are made on notice that is constructive in character and are made in proceedings ex parte in nature. It is true that an attack on the former order of the County Court by bill of review is in its nature adversary. All parties affected by the order are, or at least should be, before the Court and have actual notice of the proceeding. Further, the policy of the law is to limit the period of attack by bill of review or certiorari by 'one not under disability to two years from the date of the order. If the judgment in the bill of review proceeding may be reviewed by certiorari, for all practical purposes the period is extended to four years, in which there may be a lack of immunity from attack on an order of the County Court. Be that as it may, Article 932, R.S. 1925, is as follows: “Any person interested in the estate of a decedent or ward may have the proceedings of the county court therein revised and corrected at any time within two years after such proceedings were had, and not afterward. Persons non compos mentis, infants and femes covert shall have two years after the removal of their respective disabilities within which to apply for such revision and correction.”

We are inclined to believe that the judgment in the bill of review case is a proceeding in the estate of a ward and as such comes within the very terms of Article 932.

We want to express to the attorneys for all parties to this appeal our appreciation of the able presentation of the matters involved. The assignments of error are brief, clear and concise. The propositions urged thereunder are likewise applicable thereto and characterized by brevity and clearness. The same is true of the counter propositions urged by the appellees. The discussion of the principles involved in the briefs of the parties have in all respects been frank and candid.

Judgment is affirmed.


author: BLAIR, Justice.

text:
    WHITFIELD v. TRADERS & GENERAL INS. CO.
    No. 8857.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1940.
    Cecil H. Barnes, of San Angelo, for plaintiff in error.
    Newman & McCollum, of Brady, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for defendant in error.
   BLAIR, Justice.

This is the second appeal of this workmen’s compensation case. Plaintiff, J. B. Whitfield, alleged that he was the employee of Maytag Southwestern Company; that defendant, Traders & General Insurance Company, was the insurer; and that plaintiff received an injury to his eye in the course of his employment with Maytag Company, resulting in the loss of the eye. The first appeal was from an instructed verdict and.judgment upon the theory that the evidence showed as a matter of law that plaintiff was not the employee of Maytag Company when he received the injury to his eye; which judgment this «ourt reversed (106 S.W.2d 359), holding that the evidence raised a jury question as to whether plaintiff was the employee of Maytag Company when he received his injury. On the second trial the jury found that plaintiff was not the employee of Maytag Company, and judgment was accordingly rendered for defendant Insurance Company; hence this appeal.

The defendant Insurance Company introduced the cross-interrogatories and answers of L. L. Whitfield to the deposition taken by plaintiff, but not introduced by him, to the effect that plaintiff was not the employee of the Maytag Company, but of the said L. L. Whitfield, the father of plaintiff, at the time plaintiff received the injury to his eye. This deposition was taken between the time of the first and second trial, and was apparently in conflict with the testimony given by L. L. Whitfield on the first trial, to the effect that plaintiff was the employee of Maytag Company when he was injured.

It was contended that the trial court erred in refusing to'permit plaintiff to introduce certain independent testimony as showing bias on the part of his father in his answers to the cross-interrogatories; and in refusing to permit plaintiff to have the court reporter read to the jury the father’s testimony on the former trial as showing bias, and, according to counsel’s statement, as showing that the father had “turned coat” on his son. The independent testimony was that of plaintiff to the effect that after the first trial of this case and before he took the deposition of his father, plaintiff took the part of his mother in her divorce suit against his father, testified m her behalf, and as the result had a personal difficulty with his father. He was only permitted to testify that the feeling between himself and father was “very unfriendly” at the time he took the deposition. These contentions cannot be sustained because no proper predicate was laid either for the introduction of the independent testimony as showing bias, or the testimony given on the former trial as impeachment of the testimony.

The cross-interrogatories were answered and returned sometime before the second trial. No attempt was made by plaintiff to take the further deposition of his father in order to lay the predicate to introduce the independent testimony as showing bias or prejudice growing out of the divorce proceedings, or in order to lay the predicate for the introduction of the discrepancies between the father’s testimony on the former trial and that given in his answers to the cross-interrogatories. No motion for a continuance was made for time to take this further deposition of the father. Therefore, the father had no opportunity to admit, deny, or explain any contradiction, bias, or prejudice; and defendant was not afforded any opportunity to cross-examine this witness as to such matters.

In civil cases one party cannot show bias of a witness in favor of his adversary by independent testimony unless the witness has himself been questioned as to his bias towards the party. Vance v. Upson, 66 Tex. 476, 1 S.W. 179; 45 Tex. Jur., 95, § 236. It is true that the opposing party may cross-examine a witness in order to show bias or prejudice, but that is not the question here presented. It is also true that the opposing party may cross-examine a witness with reference to his testimony on a previous trial and to thus lay the predicate for impeaching the witness by the testimony given at the former trial; but no such question is here presented. No attempt was made to take the further deposition of the father in order to lay a predicate for the impeachment testimony. This rule with respect to laying a predicate for both independent testimony as showing bias and for impeachment testimony had its origin in the common law and is sustained by the Texas courts. Such predicate is required: (1) to give the witness an opportunity to bring out his version of the statement or testimony and, in any event, to explain bias or prejudice and inconsistent statements; and (2) because unless introduced to contradict and discredit the witness, testimony as to what the witness said on another occasion would be hearsay. 45 Tex.Jur., 158, § 282, and cases there cited. The Texas authorities sustain the rule and also hold that it applies with reference to independent testimony in connection with depositions. Gulf, C. & S. F. R. Co. v. Young, Tex.Civ.App., 284 S. W. 664; Texas & P. R. Co. v. Brown, 78 Tex. 397, 14 S.W. 1034; Good v. Texas & P. R. Co., Tex.Civ.App., 166 S.W. 670; Tolivar v. Howth, Tex.Civ.App., 100 S.W.2d 1090; Acker v. Thompson, Tex.Civ.App., 128 S.W.2d 852; Galveston H. & S. A. R. Co. v. Briggs, 4 Tex.Civ.App. 515, 23 S.W. 503; Long v. Galveston Electric Co., Tex. Civ.App., 59 S.W.2d 228, 229; St. Louis Southwestern R. Co. v. Bishop, Tex. Civ. App., 291 S.W. 343; and Seale v. Schultz,. Tex.Civ.App., 3 S.W.2d 563.

The judgment of the trial court is affirmed.

Affirmed.


author: WALTHALL, Justice.

text:
    HUBBARD et al. v. TEXAS INDEMNITY INS. CO.
    No. 3890.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 4, 1940.
    Rehearing Denied Jan. 25, 1940.

      Wm. V. Brown, of Texarkana, for plaintiff in error.
    Joe W. Sheehy and Ramey, Calhoun & Marsh, all of Tyler, and Sidney C. Lee, of Texarkana, for defendant in error.
   WALTHALL, Justice.

This is a compensation case under the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq.

The parties will be referred to as in the briefs. Plaintiffs in error will be referred to as plaintiffs and defendant in error as defendant.

The statements we make will have their foundation in the transcript. The statement we make is substantially the statement made by defendant, which we find to be a correct statement as reflected by the transcript.

During the month of November, 1933, and for some time prior thereto, W. F. Hubbard or Walter F. Hubbard, husband and father of plaintiffs herein, was in the employ of Southwestern Transportation Company at its shops in Texarkana, Bowie County, Texas.

On April 14, 1934, the said W. F. Hubbard, through his attorney, Hon. William V. Brown, and who is the attorney for plaintiffs herein, filed a claim against this defendant, the workmen’s compensation insurance carrier for the Southwestern Transportation Company, with the Industrial Accident Board of the State of Texas for compensation benefits under the Workmen’s Compensation Act, claiming and alleging that on or about the 16th day of November, 1933, while in the course of his employment with Southwestern Transportation Company, he received an accidental injury and as a result thereof was rendered totally and permanently disabled. Not being satisfied with the award of the Industrial Accident Board made subsequent to his filing of said claim, the said W. F. Hubbard, through his said attorney, filed suit against this defendant in the District Court of Bowie County, Texas, seeking to set aside the award of the Board theretofore made and seeking to recover from this defendant workman’s compensation benefits for total and permanent disability which he claimed was the result of an alleged injury he received on or about November 16, 1933, which in the course of' his employment with Southwestern Transportation Company, the said suit being styled “W. F. Hubbard v. Texas Indemnity Insurance Company,” and numbered 19824 on the docket of said court.

Subsequent to the filing of said suit, to-wit, on October 16, 1934, the said W. F. Hubbard and his said attorney, on the one hand, and this defendant, on the other hand, entered into a compromise settlement agreement as provided for by the Workmen’s Compensation Act of Texas, agreeing to compromise and settle all matters in controversy between them for the sum of twelve hundred and fifty dollars and costs of court. In said compromise settlement agreement it was specifically agreed by the parties that the facts and circumstances connected with and surrounding the infliction of the alleged injury W. F. Hubbard claimed to have received on or about November 16, 1933, made the liability of Texas Indemnity Insurance Company uncertain, indefinite and incapable of being satisfactorily established, and that the nature, extent and duration of said alleged injuries were uncertain, indefinite and incapable of being satisfactorily established. It was further agreed that said compromise settlement agreement was made subject to the approval of the District Court of Bowie County, Texas, and that judgment should be entered in accordance with said agreement.

On the said 16th day of October, 1934, a judgment 'was entered in said District Court of Bowie County, Texas, in said cause No. 19824, approving said compromise settlement agreement, and, in accordance with the terms of said compromise settlement agreement, the sum of twelve hundred and fifty dollars was adjudged in favor of the said W. F. Hubbard and his attorney against the defendant.

The said W. F. Hubbard, or Walter F. Hubbard, as he is referred to in the pleadings of plaintiffs herein, died on May 13, 1937.

Subsequent to the death of the said Walter F. Hubbard, to-wit, on or about January 15, 1937, the surviving wife and children of the said Walter F. Hubbard, the plaintiffs herein, filed a claim against this defendant with the Industrial Accident Board of the State of Texas seeking to recover workmen’s compensation benefits under the Workmen’s Compensation Law because of the death of the said Walter F. Hubbard, alleging that the death of the said Walter F. Hubbard resulted from the alleged injuries he received on or about November 16, 1933, while in the course of his employment with Southwestern Transportation Company.

The Board having entered an award denying plaintiffs’ claim as statutory beneficiaries of Walter F. Hubbard, plaintiffs, through their attorney, Hon. William V. Brown, timely instituted this suit (the case at bar) in- the District Court of Bowie County, Texas, seeking to recover of and from this defendant death benefits under the Workmen’s Compensation Act because of the death of the said Walter F. Hubbard less the sum of twelve hundred and fifty dollars heretofore paid the said Walter F. Hubbard and his attorney of record in the compromise settlement above referred to.

On December 1, 1937, plaintiffs filed their first amended original petition and, since it is the action that the trial court took in reference, to that pleading that plaintiffs are complaining of on this appeal, we will hereafter refer to it rather than to the original petition.

Briefly, among other things, plaintiffs in said first amended original petition set out the judgment entered in, said cause No. 19824, being the judgment entered on the 16th day of October, 1934, approving the compromise settlement agreement entered into by Walter F. Hubbard and his attorney, on the one hand, and the defendant herein, on the other hand, and being the same judgment hereinabove mentioned, and pleaded said judgment as res adjudicata of all issues raised by the plaintiffs in said cause No. 19824, and particularly pleaded said judgment as res adjudicata of the question as to the said Waller F. Hubbard having received an injury while in the course of his employment with Southwestern Transportation Company on or about the 16th day of November, 1933.

On December 17, 1937, defendant filed its first amended original answer, in answer to plaintiffs’ said first amended original petition, wherein it made certain special exceptions to various parts of plaintiffs’ said petition. Among the special exceptions made, defendant specially excepted to that part of plaintiffs’ said petition wherein they sought to plead the said judgment in cause No. 19824, above referred to, as res adjudicata of all questions raised by the pleadings in said cause No. 19824, and particularly as to the question of the said Walter F. Hubbard having sustained an injury in the course of his employment with Southwestern Transportation Company on or about November 16, 1933.

The court, on the 25th day of April, 1938, after hearing said special exceptions of defendant to plaintiffs’ said petition, entered an order sustaining same and gave plaintiffs leave to amend.

The plaintiffs, on June 1, 1938, filed their second amended original petition, wherein they omitted the allegations as contained in their said first amended original petition relative to the judgment in said cause No. 19824 being res adjudicata as to any issue raised in this suit, and it was on this petition that plaintiffs went to trial.

The trial was had before a jury, and on August 30, 1938, the jury returned their verdict, in the form of answers to special issues, into court, and said verdict was by the court accepted and ordered filed.

The jury, in answer to the special issues submitted them, found: In answer to special issue No. 1, that Walter F. Hubbard did not receive an injury in the course of his employment with. Southwestern Transportation Company on November 16, 1933; in answer to special issue No. 2, that the injury, if any, received by Walter F. Hubbard on November 16, 1933, was not the producing cause of the death of Walter F. Hubbard; in answer to special issue No. 3, that the death of Walter F. Hubbard on May 13, 1937, was caused solely by disease; in answer to special issue No. 4, that the death of Walter F. Hubbard on May 13, 1937, was caused solely by other causes than the injury; in answer to special issue No. 7, that a manifest hardship and injustice would not be worked on plaintiffs if their compensation was not paid in a lump sum; and, in answer to special issue No. 8, that the average weekly wage of Walter F. Hubbard was $25.47½.

The trial court rendered judgment for defendant on the verdict of the jury, from which this appeal is prosecuted by writ of error.

Opinion.

Plaintiffs filed a number of assignments of error and as germane thereto present the proposition to the effect that plaintiffs’ cause of action being based upon facts and matters which had been adjudicated in a former suit by W. F. Hubbard, plaintiffs’ husband and father, against the same defendant upon the same facts, and that plaintiffs necessarily had to give defendant credit on the judgment for the amount of money recovered and received in the former suit by plaintiffs’ husband and father, plaintiffs were privy to such former suit, though not parties thereto, the trial court erred in sustaining defendant’s special exceptions to plaintiffs’ first amended original petition setting up such plea as res adjudicata. Plaintiffs make contention in their brief that the former judgment in the suit of W. F. Hubbard v. Texas Indemnity Insurance Company settled all questions involved in the present suit except as to whether the death of W. F. Hubbard was the result of such injuries; that is, whether the injuries pleaded caused his death. Plaintiffs further contend that “they are privies to such former judgment,'” that their cause of action accrued subsequent to the former suit and was based upon the same injuries received by W. F. Hubbard. Plaintiffs’ one proposition, it seems to us, does not fully and clearly present the grounds of error contended for in their brief, and for that reason we have considered the errors as set out in their assignments of error. In their assignments plaintiffs complain of the action of the court in sustaining certain special exceptions to their first amended petition.

The court permitted plaintiffs to amend and they did amend and filed their second amended original petition upon which plaintiffs went to trial. So far as we can see, the second amended original petition contained the same facts contained in the first amended petition to which the special exceptions were directed and sustained by the court. The trial court qualified the bills, of exception complaining of the action of the court in sustaining the special exceptions, and said that no such exception of defendant to the second amended petition was sustained, and that plaintiffs went to trial with all of the allegations contained in the second amended petition.

Any error the trial court might have committed in sustaining the special exceptions to matters contained in the first amended petition was cured and rendered harmless when plaintiffs amended and went to trial on the amendment, and especially would that he true when the matters excluded in the first amendment were embraced in the second amendment on which the trial was had.

The judgment rendered in the former suit of W. F. Hubbard against defendant in that suit, being the same defendant in the present suit, is not res adjudicata of any issue raised in the present suit. That conclusion arises, we think, by reason of the compensation law by which it is provided, in effect, that. if death should result from the injuries a cause of action arises to the legal beneficiaries of the deceased and for their benefit; the cause of action arises not because of a privity of interest they might have with the deceased, as suggested by plaintiffs, but because of the provision of the Compensation Law and the interest is limited and controlled by the Compensation Law, which we need not further discuss. The plaintiffs in the present suit are suing as beneficiaries of the deceased in the former suit, and are in no way-bound by the judgment in the former suit, and the burden of the plaintiffs in the present suit is to show that the death of the deceased resulted from the injuries received by him on November 16, 1933, as alleged.

In plaintiffs’ first amended original petition plaintiffs pleaded said com! promise judgment in the former case as an adjudication of the issue of fact that Hubbard sustained said injuries when and as expressed in the judgment. The trial court sustained a special exception to that portion of the petition pleading said judgment as an adjudication of and as a conclusion .or ■ finding of fact that the deceased Hubbard sustained the injuries complained of in the present suit. To that ruling plaintiffs excepted, and by permission of the trial court filed their second amended original petition, and omitted therefrom the pleading as to said compromise judgment. The trial was had on the second amended petition and not on the first amended petition.

It is of the essence of an amendment that it completely supersedes the pleading intended to be amended. 33 Tex.Jur. page 513, par. 83, and cases referred to under note 13. We think the error, if any, in sustaining the special exception is not before us. However, appellants having briefed the point presented we will consider it. '

Briefly stated, in the former suit of Hubbard against the Texas Indemnity Insurance Company, plaintiff alleged that at the time stated he was an employee in the mechanical department of the Southwestern Transportation Company in Bowie County, and on November 16, 1933, while he was working on the motor of one of the Company’s busses or trucks as directed by his employer, and in doing said work he was injured as therein stated at much length and thereby was totally and permanently incapacitated, and statéd other matters not necessary to. state here, such as notice of his injuries, his weekly wages, the action of the Industrial Accident Board, etc.

To that suit the Texas Indemnity Insurance Company answered, the case went to trial, and a judgment was rendered.

The judgment recites in substance: That Hubbard, plaintiff, and Texas’ Indemnity Insurance Company, defendant, agreed upon' a compromise settlement of said cause of action; to-wit, the judgment recites that the parties in open court announced ready for trial,; that “It appearing to the court that all matters in controversy having been compromised and settled by an agreement in writing, which is now on file among the papers in this, cause; and it further appearing that said agreement is in all things fair, just and equitable to the parties herein, and it appearing that plaintiff voluntarily signed the same, fully understanding the legal consequences thereof, the court is of the opinion that said agreement ought to be approved, and judgment entered in said cause in accordance therewith.”

Without further copying the judgment, the court withdrew the case from the jury docket and the case was submitted to the court; the court rendered judgment in accordance with the agreement, awarded to plaintiff the sum agreed upon, apportioned the -amount between plaintiff and his attorney as agreed, discharged the defendant insurance carrier on payment of the award on account of the injuries sustained by Hubbard, annulled and set aside the award of the Board.

In pleading the above judgment it is the contention of the plaintiffs in this case that they are privies to such former judgment, in that their rights accrued subsequent to the trial of the former suit and is based upon the same injuries received by Hubbard; that under the law, plaintiffs being required to give to the defendant insurance carrier credit for the money judgment awarded and paid to Hubbard, that plaintiffs are entitled to the benefit of all facts necessary to establish Hubbard’s action in the former suit and decided therein; one of the facts therein being that Hubbard received the injuries therein complained of and of which injuries plaintiffs allege Hubbard died.

It is evident that the compromise agreement was made under and in compliance with Section 12 of Article 8307 of the Revised Civil Statutes providing that: “Where the liability of the association or the extent of the injury * * * is uncertain, indefinite or incapable of being satisfactorily established,' the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties,” and necessarily made subject to the action of the Board.

The answer of the insurance carrier is not before us, but we -may well assume that the defendant insurance carrier claimed there was no liability, basing its claim upon its contention as to the injuries alleged, that the injuries, if any, were not the result of an accidental happening while Hubbard was working for his employer; in other words, the receipt of the injuries was involved in the controversy and was settled by the compromise agreement, and no evidence was offered to the effect that the employee had received the injuries under circumstances creating liability.

There is no identity of causes of action; there is no identity of parties; plaintiffs herein are not privies of Hubbard in the former suit in that plaintiffs did not derive their rights, if any, herein under or through W. F. Hubbard, but acquired such rights, if any, because of being the statutory beneficiaries of Hubbard under the Workmen’s Compensation Act.

There is no identity of the matter sued for. Plaintiffs’ suit is to recover death benefits under the Compensation Act; Hubbard’s suit was to recover workman’s compensation because of disability, a right personal to him.

We might say there was no mutuality in the binding effect of said judgment insofar as plaintiffs and defendant are concerned.

Under Section 12 of Article 8307 of the statute, the Board may approve any compromise settlement where the extent of the injury of the employee is uncertain, indefinite or incapable of being satisfactorily established, and such seems to be the case here made so by the agreement.

We have found no reversible error and the case is affirmed.


author: MONTEITH, Chief Justice.

text:
    KING et al. v. HILL et al.
    No. 10913.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 4, 1940.
    Rehearing Denied Feb. 1, 1940.

      Henry Adams, of Crockett, and H. A. Leaverton and Bramlette, Levy & Dotson, all of Longview, for appellants.
    J. W. Young, Kennedy & Granberry, and F. P. Granberry, all of Crockett, for ap-pellees.
   MONTEITH, Chief Justice.

This is an appeal in an action in trespass to try title brought by appellants, Hannibal King and wife, LuElla King, H. A. Leaverton, C. W. Killough and T. J. Tucker, against appellees, Charles C. Hill, and Mrs. T. A. Mobley, both individually and as executors of the estate of G. W. Mobley, deceased, for the title and possession of 44⅛ acres of land out of the C. C. Marsh Survey in Houston County, Texas, and for damages.

Appellants pled a formal suit in trespass to try title. Appellees answered by general demurrer, general denial, and a plea of not guilty. They pled specially the 5 and 10 statutes of limitations, Arts. 5509 and 5510, R.C.S. There were no pleadings by either plaintiffs or defendants seeking equitable relief of any kind.

The jury found in answer to special issues submitted that H. G. Denby and his family were occupying the land in controversy as their homestead at the time Denby conveyed said land to G. W. Mobley by deed dated October 8, 1927; that he executed said deed to secure his indebtedness to G. W. Mobley for money borrowed, and to secure the payment of vendor’s lien notes outstanding against said land. The jury found further that H. G. Denby remained on the land in controversy after the execution of said deed, as a tenant of G. W. Mobley and the executor of his estate, and that G. W. Mobley and the executor of his estate had held peaceable and adverse possession of said land, paying all taxes due thereon, and claiming and using the same, for five consecutive years after the purchase of said land and prior to the filing of this suit.

Based on the answers to said special issues, the court rendered judgment in fav- or of appellees and that appellants take nothing by their suit as to the land in controversy.'

Appellant LuElla King is the daughter of H. G. Denby and his deceased wife, Lulu Denby, to whom he was married in May, 1910, and who died in April, 1924. Appellants Leaverton, Killough and Tucker intervened as plaintiffs, claiming interests in the land in controversy through mineral assignments.

The record title to the land in controversy is in G. W. Mobley. The record shows that H. G. Denby acquired said land from T. F. and Henry Dailey by deed dated November 26, 1910. By deed dated October 8, 1927, filed for record on December 16, 1927, H. G. Denby conveyed said land to G. W. Mobley for a recited consideration of $300 paid. At the time of the execution of this deed H. G. Denby and his then wife, Catherine Denby, who did not execute said deed, were occupying the land as their homestead. This deed was afterwards signed and acknowledged by Catherine Denby and by Haisure and Abner Lee Denby and re-filed for record on December 8, 1930. The acknowledgment of Catherine Denby to said deed, which was dated November 29, 1930, was defective in that the certificate does not show that she was known to the notary. G. W. Mobley, the grantee in this deed, died in September, 1930, prior to the date of the certificate of acknowledgment of' Catherine Denby to said instrument and prior to the time it was re-filed for record.

Appellants contend that the deed of H. G. Denby to G. W. Mobley is void, since the evidence shows and the jury found that H. G. and Catherine Denby were occupying said land as their homestead at the time of its execution; that it was not signed by Catherine Denby at the time it was originally executed by H. G. Denby and that it was not made legally binding as against the homestead rights of H. G. Denby and Catherine Denby by Catherine Denby signing said deed in 1930, for the reason that she was not joined at that time by H. G. Denby; that her acknowledgment was fatally defective; and that said deed was signed and acknowledged by her after the death of G. W. Mobley, the grantee in said deed.

While it is the general rule that a deed absolute in form given to secure the payment of a debt may be shown by parol to have been intended to operate as a mortgage, it is the established rule in Texas that, in an action of trespass to try title, it is incumbent upon the party to an action whose claim or defense is that the deed is a mortgage, and where the relief sought is an equitable one, to specifically plead such equities, otherwise they cannot be tried and he will be bound by the legal effect of the deed according to its terms, although facts may have existed which, if properly pleaded and proved, would have entitled the opposing party to affirmative relief. Groesbeeck v. Crow, 85 Tex. 200, 20 S.W. 49; Elder v. King et al., Tex.Civ.App., 69 S.W.2d 479; Hall v. Bradley, Tex.Civ.App., 282 S.W. 874; Franzetti v. Franzetti, Tex.Civ.App., 124 S.W.2d 195; McKivett v. McKivett, Tex.Civ.App., 45 S.W.2d 1102; Packard v. De Miranda, Tex.Civ.App., 146 S.W. 211, 213.

In the instant case appellants’ only plea is in trespass to try title and for rentals claimed by them to be due, and the evidence showing the legal title to the land in controversy to be in appellees; they are entitled to judgment.

Under this view of the case the other issues presented become immaterial. The judgment of the trial court will therefore in all things be affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    GIBSON v. HENDERSON.
    No. 10928.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 1, 1940.
    W. C. McClain, of Conroe, for appellant.
    Gammage, Gammage & Bauer, of Houston (Charles D. Bauer, of Houston, of counsel), for appellee.
   GRAVES, Justice.

This appeal is from a $990 judgment in favor of the appellee against appellant, entered by the court below, sitting without a jury, as for damages for personal injuries found by the court to have been negligently inflicted upon the appellee in a collision between an automobile in which he was riding as a guest of one Sam Benton and appellant’s truck, which was in charge of his regular driver, Bennie Burke, on October 3 of 1937, near Houston in Harris County. The decree was a general one, to the purport stated, no findings of fact nor conclusions of law having accompanied the record, nor did it appear that any were requested by either side below.

There has been filed in this court, however, a transcript in regular form, as well as a like statement of facts.

Appellant’s brief thus epitomizes the sole issue as he conceives it to be involved on the appeal: “There was no issue made as to the truck belonging to the defendant, Gibson, and neither was it disputed that the witness Bennie Burke was the regular driver of said truck, and at the time of the collision, was engaged on a mission for the defendant. Issue is made as'to the liability of the principal for the acts of the substitute-driver, placed in charge of the principal’s truck, without the principal’s knowledge and consent, while driving said truck.”

The appellee, in turn, thus states the two opposing theories underlying the controversy :

“Appellee’s theory of the collision, as testified to by his witnesses, was that the collision in question was wholly due to the fact that appellant’s truck, traveling at a high rate of speed, without warning cut over .from behind two automobiles proceeding ahead of it, crossed the center marker in the highway, got over on the side of the road on which the automobile in which ap-pellee was a passenger was traveling, and thereupon struck said automobile in attempting to pass same when there was not sufficient space on the highway, under the circumstances, for such movement to be made in safety of all the vehicles and parties involved.
“Appellant’s theory of the collision was •that same was due to either an. unavoidable accident, or to a new and intervening cause, by reason of a person stepping out on the highway from one of the automobiles which was moving along the highway ahead of appellant’s truck, and at the same time meeting the automobile in which appellee was riding.”

Appellant’s single presentment, which alone he elaborates upon in his argument, materially reduces the task of this court in reviewing the judgment; the fact that there are no findings of either sort by the triál court, together with the resulting presumptions that must be indulged here on a record without them, further restricts the reaches of appellate consideration.

Indeed, under our practice and procedure, the general rule seems to be as thus stated in Hart v. Huie, Tex.Civ.App., IS S.W.2d 654, at page 655: “Although the testimony and issues are voluminous, there are no findings of fact or conclusions of law by the trial court, and none seems to have been requested by either party. From this condition of the record arises the presumption that there was evidence to support every fact essential to sustain the judgment, and that the trial court resolved these facts in favor of appellee. By appealing upon such record appellant has assumed the bur-, den of pointing out undisputed facts negativing one or more presumed findings essential to the validity of the judgment or of pointing out the absence of evidence to support such findings.” See, also, 3 Texas Jurisprudence, pp. 1059-1065; Yturria Town & Improvement Co. v. Schunior et al., Tex.Civ.App., 289 S.W. 188; Clark v. Goldberg, Tex.Civ.App., 3 S.W.2d 920.

So that, upon the whole question he himself thus reduces his appeal to, appellant’s burden here is to point out Undisputed facts showing both that his regular diriver, Bennie Burke, whom he admits to have been such, was not driving this truck at the time it struck the Benton automobile so carrying the appellee, and that, to use his own language: “Some substitute-driver, placed in charge of appellant’s truck without his knowledge and consent, was driving it at the time of the collision.”

It is the opinion of this court, "after an examination of the statement of facts, that appellant has failed to meet this burden in either particular; in the first place, there is sufficient evidence in the record to support findings to the effect: (1) That Bennie Burke, the regular driver, was himself doing the driving when the collision happened; and (2) that, if he was not, another regular employee of the appellant for somewhat different duties had been properly designated as appellant’s sub-agent by Burke for that purpose; hence, if he 'was actually driving the truck at the time, he was doing so as an authorized “substitute-driver”, within the scope.of such designation, and in furtherance of appellant's business.

Therefore, in either instance, the appellant would be bound for the consequences of the driving, whether done by the regular driver, Bennie Burke, or such a chosen and authorized sub-agent, Charles Simon. Some of the Texas authorities holding the principal liable in such circumstances for the acts of the sub-agent, exercising implied authority, are these: Campbell v. Trimble, 75 Tex. 270, 12 S.W. 863; Texas & Pacific Ry. Co. v. Mother, 5 Tex.Civ.App. 87, 24 S.W. 79; International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039, 27 Am.St.Rep. 902; Gibson v. Texas Company, Tex.Civ.App., 20 S.W.2d 349.

It would serve no useful purpose, nor is it required, for this court to either set out in detail or make a resume of the evidence upon which it arrives at this conclusion; suffice it to say that it is this court’s opinion that the question of whether or not appellant’s regular driver, Bennie Burke, was doing this driving at the time was indisputably a fact issue, as well as the further one of whether or not he as such so deputized Charles Simon to take charge of the wheel of the truck just before the collision; and, so much being true, that the presumption here is the judgment was properly supported.

While under the disposition determined upon for this appeal, no written opinion is incumbent upon this tribunal, this statement of the general grounds upon which its af-firmance of the action taken below is based has been made in deference to the able counsel for both sides, who have so helpfully aided — by their briefs and arguments —in the consideration of it.

Without further discussion an affirmance will be entered.

Affirmed.