text:
    HODGES v. STATE.
    No. 20766.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    A. W. Morris, of Conroe, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is swindling. The punishment assessed is confinement in the state penitentiary for a term of 2 years.

There are no bills of exceptions or objections to the court’s charge; the indictment is sufficient to charge the offense. The only question presented for review is the sufficiency of the evidence to support the conviction. The evidence adduced by the state, briefly stated, shows that on Saturday afternoon of August 28, 1936, appellant and one J. E. Goggan walked into Dr. Hicks office in Conroe and requested a loan of $200. The doctor inquired as to' the security they had to offer and the men replied that they had none. Upon being informed by the doctor that he was not interested in making the loan without security, appellant stated that Goggan owned certain lots in the City of Waco and suggested that they be used as collateral. A note was drawn for $200 payable to Dr. Hicks and due 60 days after date, which was signed by Goggan. To secure the prompt and punctual payment of said note when due, Goggan made, executed and delivered to Jerry Cartwright, as trustee, a deed of trust on lots 3, 4, 7 and 8 in Block 12 of the Lazarus Addition in Waco, Texas. It was shown by the evidence that Goggan had no title or interest whatever in the property mentioned in the deed of trust. Consequently, the representations made by appellant and Goggan to Dr. Hicks upon which he relied were false. By said representations they induced Dr. Hicks to deliver to appellant $200, and one-half of this amount was turned over to Goggan. It also appears from the testimony that appellant and Goggan knew these representations were false when they made them. They carried with them a description of property which neither of them owned, and which was doubtless used in the furtherance of their unholy enterprise. See Dix v. State, 136 Tex.Cr.R. 296, 124 S.W.2d 998, and authorities.

Having reached the conclusion that the evidence is ample to sustain the jury’s conclusion of appellant’s guilt, 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.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    SEARCY v. STATE.
    No. 20780.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    G. H. Crane, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in jail for ten days.

The record is before us without a state-' ment of facts or bills of exception. No question is presented for review.

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.


author: KRUEGER, Judge.

text:
    OWENS v. STATE.
    No. 20785.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Williamson & Nordyke, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., -of Austin, for the State.
   KRUEGER, Judge.

The conviction is for the sale of whisky in dry area. The punishment assessed is a fine of $100.

From the record it clearly appears that Comanche County, by virtue of an election held in 1909, is dry area. On the 22d. day of June, 1939, J. M. Rich went to -appellant’s place of business, located about 100 yards from Comanche County in Erath County and purchased a pint of whisky from him. The evidence shows that appellant was operating a package store just across the line in Erath County, but clearly within 400 yards of Comanche County. Appellant offered no affirmative defense, but requested an instructed verdict on the grounds that the uncontradicted evidence showed that he was guilty of no offense* His request was overruled by the court and he excepted.

The prosecution apparently arose under and by virtue of Art. 190, C.C.P., which provides that where an offense is committed on the boundary of • any two counties, or within four hundred yards thereof, an accused may be prosecuted in either county. The law prohibiting the sale of intoxicating liquor is a local law which applies only to those counties which have, as provided by the Constitution and Statutes, availed themselves by an election of the right to local option. Art. 190, C.C. P., is purely a venue statute and does not make an offense of an act which is legalized where committed. We find no proof in the record at all that Erath County was dry territory. The prosecution in the instant case proceeded on the theory that an “offense” had been committed in Erath County. The proof does not bear out this supposition. Consequently the evidence is insufficient. See Talley v. State, 66 Tex.Cr.R. 342, 147 S.W. 255; Hutchins v. State, Tex.Cr.App., 40 S.W. 996; Earl v. State, 136 Tex.Cr.R. 490, 126 S.W.2d 664; Allen v. State, 136 Tex.Cr.R. 462, 126 S.W.2d 485; Sweeten v. State, 135 Tex.Cr.R. 445, 120 S.W.2d 1074; Stewart v. State, 132 Tex.Cr.R. 79, 102 S.W.2d 416; Hudson v. State, 118 Tex.Cr.R. 284, 40 S.W.2d 141.

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: BEAUCHAMP, Judge.

text:
    MARTIN v. STATE.
    No. 20940.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for driving an automobile upon the public highway while intoxicated; penalty assessed at confinement in' the county jail for thirty days and a fine of fifty dollars.

The record is before us without bills of exception or statement of facts.. No question has been presented for review. However, the appellant, through his attorney, has filed a written motion requesting the affirmance of the case. The judgment is therefore affirmed.


text:
    ALLUMBAUGH v. STATE.
    No. 20779.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1940.
    G. H. Crane, of Dallas, for appellant..
    Lloyd W. Davidson, State’s Atty., of ■ Austin, for the State.
   CHRISTIAN, Judge.

The offense is negligent homicide; the punishment, confinement in jail for thirty days.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


author: KRUEGER, Judge. GRAVES, Judge.

text:
    HENSON v. STATE.
    No. 20643.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Feb. 7, 1940.
    Vernis Fulmer, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

Appellant challenges the sufficiency of the evidence to justify and sustain his conviction. The record shows that on the night of December 27, 1932, the store of Brookshire Brothers in Nacogdoches was entered by forcing open a double door with some instrument which made a dent near the lock. On the night in question, the night watchman noticed two men walking in front of the building back and forth on two occasions. He walked behind the ice plant and observed from this point that two men were sitting in front of the store. Upon approaching the spot where they had been sitting, he found the door to the store open and only one person sitting in front of it, whom he recognized as Baby Spencer. He asked Spencer who was inside, but Spencer replied that he did not know. The watchman then entered the building and called: “Whoever is in here, come out where I can see you.” Appellant came out and the officer started with him toward the jail, but had not gone very far when another person came out of the building and ran away. He left appellant in the street and gave chase, but was unable to catch this other person. Upon his return, he found appellant gone. However, he was arrested on the following day.

Appellant testified in his own behalf and denied that he was in the store on the night in question. It was his contention that he was on his way to town when he saw a person run by.him whom he took to be an acquaintance named Ryan Reid, who had died since the alleged offense was committed. It is obvious that the testimony raised an issue and that the jury was justified in their conclusion of appellant’s guilt.

By a number of bills of exception ' appellant complains that he was forced to trial without the testimony of Baby Spencer and one, Collins. He claims that one of these witnesses (Collins) would have testified that he and Reid alone burglarized the store. That Spencer would have testified that he was near the burglarized premises and saw the door to the building open. That from this point he could also see appellant at his home at that time. All of these matters were set up in his motion for a new trial and evidence heard thereon. The court, in his qualification to the bills, states that appellant’s case was set for trial on April 10th, and that he failed to appear as he had done on previous occasions. That his appearance bond was forfeited and a capias issued for his arrest. That he was immediately arrested and brought into court where he remained nearly all day without any attempt to secure the attendance of witnesses, although he was informed that his case was set for the following day. It appears that the indictment was returned against appellant in March, 1933. From that date down until the date of the trial the record' does not disclose any efforts on the part of appellant to secure the attendance of these witnesses. Appellant claims in his bills that efforts were made, but these efforts are not reflected in the official record. On the following morning the State announced ready for trial. It was brought to the attention of the court that appellant was without counsel, and an attorney was appointed to confer with him relative to a possible suspension of sentence. It was determined, however, that appellant was ineligible for a suspension since he had already had one suspension of sentence. When the district attorney began to examine the prospective jurors on their voir dire, appellant’s mother made arrangements with the Honorable V. Fulmer to represent him upon his trial. The court was informed of this arrangement. The employed attorney requested a postponement of the case until the attendance of Baby Spencer could be obtained. The court declined to order an attachment on the ground that said witness had not theretofore been summoned. A subpoena was then issued and placed in the hands of the sheriff. This witness did not appear until the jury had retired to consider their verdict. When he did appear, the court inquired of him as to what he knew about the facts of the case and he replied that he knew nothing. The court qualified these bills and in his qualification ■thereof states that when the case was called for trial on the morning of April 10th, appellant failed to appear. That he ordered a capias to be issued, had him arrested and brought into the court room at 11:00 A. M. on said date, when he was advised that his case would be called for trial on the following morning, but appellant made no effort to obtain process for the desired witness. Appellant accepted these bills as qualified, and as thus qualified they fail to reflect reversible error. We think the trial court was justified in concluding that appellant had failed to show proper diligence to secure the attendance of the witness. See 9 Tex.Jur. pp. 785-786, secs. 100-101; Bowen v. State, 3 Tex.App. 617, 624. See also Boyd v. State, 108 Tex.Cr.R. 138, 299 S.W. 902, and authorities cited.

Appellant also complains of the court’s action in overruling his Second Amended Motion for a New Trial, in which he asserts that after the court had denied his oral request for a continuance or postponement based on Spencer’s absence, he asked leave to reduce his oral motion to writing and file’ it at a later day. Attached to this motion was the affidavit of Spencer in which he stated that on the night of the alleged burglary he was standing in front of Dr. Young’s place. From this point he could see appellant’s house and also the burglarized store, which was lighted at this time. He further stated that he went across the street where he. had agreed to meet a negro who was to sell him a pint of whisky, and that while there, he noticed appellant walking about in his room at his home. That he did not see appellant either enter or leave the burglarized premises; that the next time he saw him was when he and the night watchman were in front of the store. He stated that about this time he saw Ryan Reid and some other man run out of the store. There is also a statement to the effect that Spencer had been summoned once or twice as a witness after the indictment was returned against appellant.

The state contested the motion and the court heard evidence thereon. Appellant offered no other testimony in support of his allegations. The state’s witnesses showed that Spencer had stated to the clerk and the presiding judge on the day of the trial that he knew nothing about the case. Under the authority of Wiley v. State, 117 Tex.Cr.R. 449, 36 S.W.2d 495, and authorities there cited, we think this court would not be authorized in holding that the trial court abused his discretion in determining that under all the circumstances, had the absent testimony been before the jury, no different result would have been likely. Moreover we think that appellant failed to exercise due diligence to secure the attendance of Spencer. See the authorities cited ante. It is the well settled and established rule that the denial of a motion for a new trial rests within the sound discretion of the trial court, and unless it is made to appear that the court abused his discretion in this respect, this court will not reverse the judgment. Branch’s Ann.P.C., Sec. 314 and authorities cited.

Appellant addressed a number of objections to the court’s charge and requested a number of special charges. We had carefully examined the charge in the light of the objections thereto and reached the conclusion that the same was a full and fair instruction to the jury on the law applicable to the facts. Hence, there was no error in declining to give his special requested instructions.

All other matters complained of by appellant have been carefully examined by us and are deemed to be without merit.

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.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again complains because of the court’s refusal to grant to him a continuance in his case in order that he might have present the testimony of one “Baby” Spencer, which testimony, as shown by affidavit of the witness attached to the motion for a new trial, was material to his defense.

It is apparent from such affidavit that the testimony of this witness was certainly material to the appellant’s defense, and if a motion for a continuance had been filed with the trial court at the proper time this court would have a different question- presented relative thereto. We do think the testimony of the witness material, and if believed to be true by the jury it would probably have resulted in a favorable verdict for the appellant. Unfortunately for appellant, according to the trial court’s qualification to his bill, he made no application for a continuance, nor did he make any oral request therefor, and ask permission to reduce the same to writing at a later date. The trial court’s qualification to each bill referring to the absence of the witness Spencer is the same, and is in part as follows:

“Upon * * * Tuesday, April 11, 1939, about 9 o’clock A. M. the case was called for trial, and the State announced ready * * * and the defendant announced ready for trial. The names appearing on the list of jurors for the week were drawn and lists prepared and delivered to the district attorney and to the defendant, and the'district attorney commenced interrogating-the jury panel. Before this was completed; Hon. Vernis Fulmer, present attorney for. defendant, came into court and advised the court that he had just been retained by defendant’s mother to represent the defendant, and asked whether it would be satisfactory for him to do so and was assured that it was. He asked the court for a little time to confer with the defendant, which was granted, and when he returned, he asked that the trial be delayed in order to secure the attendance of E. V. (Baby) Spencer as a witness. This request was made orally and was refused. It was not made in writing, nor was any request made for time to commit it to writing, nor for permission to reduce it to writing and ‘file it back’ as of the time of the making of the oral request. Mr. Fulmer then requested án attachment for the witness, which was refused, in view of the absence of any showing whatever, or any claim or representation that said Spencer had ever been summoned as a witness, or that the defendant had ever applied for process for him. I did, however, order that a subpoena issue for said witness, and ordered the sheriff to telephone Sheriff McMurray at Henderson and advise him that such subpoena had been issued and to request Sheriff Mc-Murray to have the witness summoned at once and ordered to report at once, and to report back if such service was not had'. The sheriff reported back to me that my instructions had been carried out, and from time to time reported to me that he had had no further report from Sheriff McMurray. I informed Mr. Fulmer that he would be permitted to use Spencer as a witness if he appeared before the 'conclusion of the trial, but that the trial would riot be delayed on account of the absence of' the witness, because of the total failure of defendant to exercise any sort of diligence to secure the attendance of the witness, stating to him, substantially, that the defendant had had nearly seven years in which to secure the attendance of the witness and had never done so. Mr. Fulmer from time to time through the trial asked permission to have Spencer called, which in every instance was granted, the officer in attendance upon the court making inquiry from time to time in" the court room and without, as to whether the witness had arrived. Said attorney, from time to time during the trial, orally requested further time within which to procure attendance of Spencer.
“5. The trial was -concluded some time in the afternoon, without the said Spencer having arrived, and the jury retired. Subsequently, and before the jury’s verdict was rendered, Spencer put in his appearance, and defendant’s counsel, as well as the court, were so advised, but he was not used as a witness.”

Under' this qualification we have no proper or legal grounds presented to us for granting this motion, and the motion will therefore be overruled.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    CARPENTER v. STATE.
    No. 20572.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    Rehearing Denied Feb. 7, 1940.

      Barnes, McElroy & Hudspeth, of Terrell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Kaufman County for the unlawful sale of whisky in a dry area, with punishment assessed at confinement in the county jail for a period of 120 days.

Attack is made by the appellant on the record of the election as introduced in the case in which it is contended that the election was not regularly held. No attack may be made on the election in this proceeding. Ferguson v. State, 133 Tex.Cr.R. 250, 110 S.W.2d 61.

Again, it is the principal contention on this appeal that the local option law is not in force in Kaufman County at the present time. This question was recently decided by this court in the case of Odell Stephens v. State, 133 S.W.2d 130, from Brown County, case not yet reported in State reports. The contention made by the appellant in this case was not sustained in that opinion. A motion for rehearing was presented and is this day overruled. Accordingly, appellant’s bill of exception No. 2, together with the other bills relating to the same subject, are overruled.

Another question presented by the appeal is that the representative of the Liquor Control Board who testified to having purchased whisky from the appellant in this case was an accomplice and that a portion of his testimony was not corroborated by other evidence and that, therefore, the conviction should not stand. This question was likewise considered by this court in the case of Stevens v. State, 133 Tex.Cr.R. 333, 110 S.W.2d 906, and the holding there was contrary to the contention of the appellant on this appeal. Under the authority of that opinion the appellant’s bill of exception No. 12 is overruled.

In bill of exception No. 13, appellant complains of the following instruction contained in the court’s charge: “You are instructed that under the law of Texas it is unlawful for any person to sell whiskey in a dry area.”

The ground of the objection is that it is not unlawful for “any person” to sell whisky in a dry area. We see no reason why the jury might have been misled by such instruction. Inasmuch as appellant made no contention that he was authorized by any provisions of law to sell whisky in Kaufman County, we do not think he is in a position to complain of this instruction to the jury.

Appellant also complains in bill of exception No. 16 of the action of the county judge in answering a question of the jury, through the sheriff, as to which paper they should write their verdict on. The complaint is that neither the appellant nor his counsel was present when this communication was received and the answer returned by the judge. The appellant was being tried for a misdemeanor, and the rule is different from that in a felony case. Furthermore, this bill was qualified by the court with the statement that this oral instruction was given to the jury direct and not to the sheriff at the time the argument was closed and when he instructed them to retire to consider their verdict, all of which, the qualification says, was done in the' presence and hearing of the defendant and his counsel and without any objection being filed at that time. This qualification is a part of the bill and must be so considered by this court. By it no error appears, even if it were a felony prosecution.

There are other bills of exception in the record complaining of the refusal of the court to admit certain testimony of two girls who were called by the appellant as witnesses. A part of the evidence contained in each bill was admissible. Definitely, a large portion of the evidence complained of in each bill was properly excluded, and we are, therefore, precluded from considering the bill even if some portion of the evidence should be held to be admissible and wrongfully excluded. Branch’s Ann.Penal Code, p. 135, sec. 211; Tex.Jur. Vol. 4, p. 305, sec. 212, and cases there cited.

No errors appearing in the record, the judgment is affirmed.

On Motion for Rehearing

GRAVES, Judge.

Appellant complains in his motion that we misapprehended his contention relative to the complaint and information in our original opinion wherein it was said that: “No attack may be made on the election in this proceeding.” He contends that he was not attempting to make an attack on the election herein, but was making an attack upon the information and complaint in that they had each failed to allege that an election was held in said county under and by virtue of an order of the county commissioners’ court of said county theretofore entered, etc. It is true that the information and complaint did both allege that “after an election had been held by the qualified voters of said county in accordance with law to determine whether or not the sale of intoxicating liquor should be prohibited in said county,” etc., his contention being that such phrase should have further contained the allegation that such election was held “under and by virtue of an order theretofore made and entered by the commissioners court of said county.”

We find that the complaint and information herein complained of are an exact copy of Form No. 314, Fourth Edition, of Judge Willson’s Texas Criminal Forms, and also a copy of the form laid down by Mr. Branch in his Penal Code, page 688, Sec. 1220. We find that this form has been followed in Key v. State, 37 Tex.Cr.R. 77, 38 S.W. 773; Shilling v. State, Tex.Cr.App., 51 S.W. 240; Holloway v. State, 53 Tex.Cr.R. 246, 110 S.W. 745; Stephens v. State, Tex.Cr.App., 97 S.W. 483; Starnes v. State, 52 Tex.Cr.R. 403, 107 S.W. 550; Wade v. State, 53 Tex.Cr.R. 184, 109 S.W. 191, and many other cases. Also see the late case of Boyd v. State, 135 Tex.Cr.R. 123, 117 S.W.2d 457, wherein a complaint identical with this one was upheld by this court.

We quote from Whitmire v. State, 130 Tex.Cr.R. 372, 94 S.W.2d 742, 743, in which Judge Hawkins said: “Forms for indictments or informations thereunder which have been approved -in many cases will be found in Willson’s Tex.Cr. Forms (4th Ed.) Form No. 314, p. 169, and in Branch’s Ann.Tex.P.C., § 1220, p. 689,” and it will be noted that these above mentioned forms are identical with the one herein attacked. It is true that Judge Morrow did say in the opinion in Alexander v. State, 132 Tex.Cr.R. 1, 102 S.W.2d 209, that: “It is •well settled that an information charging the unlawful sale of intoxicating liquor in a dry area must allege that an election was held under an order of the commissioners’ court for the purpose of determining whether the sale should be prohibited; that the commissioners’ court canvassed the election returns and declared the result; and that the result was published as required by law in force at the time of the election,” citing several cases, the trend of the cited cases, however, being that the pleader in local option cases could not adopt the loose pleading of the mere statement that the sale was made in a “dry area,” but must of necessity allege the different steps showing a proper election, its result, and the publication of the result thereof, and order prohibiting the sale. In none of such cases is it said, nor do we think it is intended to be said, that the long line of cases above herein quoted should be overruled and that the form here used is inadequate. We do not think the general statement found in the Alexander case, supra, not borne out by the authorities there cited, should upset the long line of precedents holding in effect that this complaint and information set forth in proper allegations a violation of this special law. Appellant’s contention is therefore overruled.

Appellant further contends that the State’s witness was an accomplice, and that the court should have so charged the jury. Under the statute, Art. 666 — 23a (8) Vernon’s Ann.P.C., it is provided that: “Upon a trial for a violation of any provision of either Article I or Article II of this Act [the liquor act], a conviction may be had upon the uncorroborated testimony of an accomplice.”

It is evident that since the passage of this portion of the above act it has not been necessary to corroborate the testimony of one who would be an admitted accomplice. Such a charge should not have been given .herein.

The motion is overruled.


text:
    STEPHENSON v. STATE.
    No. 20642.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1939.
    Rehearing Denied Feb. 7, 1940.
    John A. Veillon and O. M. Lord, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

• The offense is embezzlement. The punishment assessed is confinement in the state penitentiary for a term of 5 years.

It appears from the record that appellant is an attorney engaged in the practice of law in the City of Beaumont, and was so engaged on the 24th of September, 1931. On that day, Bill Forney, who was injured while employed by the Chronister Lumber Company, entered into a written contract with appellant to file for him with the Industrial Accident Board a claim for compensation and to represent him at the hearing thereof before the Board. In consideration of said services, appellant was to receive 15% of the first $1,000 and 10% of any excess thereof. Under the terms of said contract, appellant had full authority to settle, adjust and compromise the claim as he might deem just and proper, with full power and authority to collect and receive all moneys, sign all receipts, checks and releases, and to do and perform all acts necessary to be done. By virtue of his employment, appellant received and collected from-the Texas Employers Insurance Association $498.52, evidenced by two checks —one of $74.78 payable to appellant as his share under the contract, and one in the amount of $423.74 payable to Bill Forney. These checks were received by appellant about March 5, 1932. He failed to forward Forney his check. Forney made inquiry by letter as to when he would receive his award. On May 12th, appellant replied to Forney’s letter and stated that the company would pay off soon, about the first or middle of June, 1932. At this time appellant had already collected the money awarded to his client by the Industrial Accident Board.

Appellant denied that he embezzled the money. His version of the transaction was that he had advanced Forney at one time $5.25 and at another time’ $50; that he had paid hospital fees of $17.50, doctors’ bills of $30, plus a small bill of $2.20 which amounted to the total sum of $144.95. That in the settlement which he made with his client, Forney, the amount was deducted and the balance given to him in cash and by a cashier’s check in the sum of $225.52. Appellant asserted that he went with Forney to the bank in Beaumont and identified him when he cashed the check. No one in the bank seems to have seen the injured party with appellant at the time of this alleged transaction.

Appellant contends that the evidence is wholly insufficient to sustain his conviction for embezzlement of money over the value of $50: (1) Because if he is guilty of any offense, it is theft by bailee, and (2) because if he is guilty of embezzlement, he is not guilty of embezzlement of money but of a check. Neither of his contentions is tenable. He was the trusted agent and attorney for Forney and by virtue of his employment he came into possession of the check which was but the means by which he obtained the money, and this money he converted to his own use and benefit. See Bennett v. State, 124 Tex.Cr.R. 128, 60 S.W.2d 790.

Appellant also contends that there is a fatal variance between the allegations in the indictment and the proof adduced by the State in this: The indictment charged that appellant was the agent and attorney in fact of Bill Forney, and as such agent and attorney in fact did unlawfully and fraudulently embezzle, misapply and convert to his own use, $423.74, belonging to said Bill Forney, etc. The proof shows that appellant was an attorney at law, and that Forney employed him to prepare and file a claim with the Industrial Accident Board and to represent him at the hearing thereof. The proof also shows that Bill Forney, by written power of attorney, appointed appellant his agent and attorney in fact to settle, adjust and compromise the claim as he might deem proper, with full power and authority to collect and receive all moneys, sign all receipts, checks and releases of whatsoever nature and to do and perform all acts necessary to be done in the premises, etc. Without a doubt, appellant acting as an ordinary attorney had only such limited authority as was necessary or incidental to the prosecution of the claim to final judgment. But for some reason best known to appellant, he obtained a written power of attorney under which he might act as agent and attorney in fact, with his authority extended much further than an ordinary attorney, as will be noted from the above statement herein. Under his authority as attorney he could not legally endorse any check payable to his client; nor could he execute any'release, but under the power of attorney he did have such authority. When the claim of Forney was settled and the two checks, in full settlement of the claim were delivered to appellant, all legal duties required of him as attorney at law ceased, and then, when he endorsed and cashed the check payable to his client, he acted under the authority of the power of attorney. He could not have been prosecuted for forgery, because he had the express authority under the power of attorney to endorse the check. Appellant cites us to the case of Harkins v. Murphy & Bolanz, 51 Tex.Civ.App. 568, 112 S.W. 136, as sustaining his contention. We do not regard that case in point because in that case Harkins, who was appointed by Kruegel as his agent and attorney in fact, was not an attorney and could not legally prosecute the suit. We do not deem it necessary to further draw a distinction between that case and the one at bar, because a casual reading thereof will disclose a difference. A most careful consideration of the question leads us to the conclusion that there is no fatal variance.

Bill No. 1- complains of the introduction in evidence of the contract, coupled with a power of attorney executed by For-ney. The objection thereto was that it was not properly proved or identified as the one executed by Bill Forney. The contract was identified by Forney as the one he executed. Hence there was no error in admitting it in evidence. Appellant, who testified in the case, did not deny the authenticity of the contract.

Bill of exception No. 2 reflects the following occurrence. Appellant placed one, F. P. Knapp, on the witness stand, who testified that he was in the office of appellant some time between the 1st and 15th of March, 1932. That while in the office he saw Bill Forney there, and that appellant was forced to quit some work he was doing for him (Knapp) at the time and go with him, Forney, to the bank to get the check cashed. This witness stated that he was having some conveyances drawn from the Southwestern Settlement & Develop-, ment Company to himself, and from himself to Ike Mitchell, conveying the same land. That these deeds of conveyance were recorded in Orange County and by looking at the Deed Records of Orange County they could get the date that he was in appellant’s office. The state called Mrs. Ethel Burton, the Chief Deputy County Clerk of Orange County, who testified that she had brought the index to the deed records of said county with her and had made a search of the same to see if she could find any conveyance from the Southwestern Settlement ■& Development Company to F. P. Knapp in the year 1932, but had been unable to find any. Neither did she find any conveyance from Knapp to Ike Mitchell. She stated that she did find a conveyance from Knapp et al. to Southwestern Development Company describing 20 acres of land dated March 20, 1935, this being the same land conveyed in 1931 from the Southwestern Settlement & Development Company to Knapp. This testimony was offered by the state to refute that given by Knapp to the-effect that he saw Forney ip. appellant’s office and saw appellant accompany Forney to the bank with a check. Appellant objected to the introduction of this testimony and the records on the ground that Knapp had not identified the transaction sufficiently to connect it with the records offered in evidence. We cannot agree with him;. He specifically referred to th& conveyance from the Southwestern Settlement & Development Company to himself and from himself to Ike Mitchell. He went further and stated that the day that he was in appellant’s office and saw Forney there could be definitely ascertained by the deed records of Orange County, where the instruments referred to bearing the date might be found. We think the evidence was clearly admissible in rebuttal to the testimony given by Knapp.

A great many objections have been urged against the court’s charge.' If there was any error in the charge, it was not specifically pointed out as required by Art. 658, C.C.P., Vernon’s Ann.C.C.P. Art. 658. See Fiveash v. State, 125 Tex.Cr.R. 345, 67 S.W.2d 881. His objection that the court failed to instruct the jury upon the law of circumstantial evidence is without merit, inasmuch as there is direct and positive testimony that appellant received the amount of the award made by the Industrial Accident Board to Forney which he never delivered to him. Mr. Pondrom, Vice-Pres. of the bank, testified that appellant exhibited the power of attorney to him as his authority to cash the check, and that in pursuance thereof, the check was cashed for him.

We have carefully examined all other matters complained of by the appellant, but find none that would require a reversal of the case.

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.

On Motion for Rehearing.

GRAVES, Judge.

Appellant again offers herein propositions which were written upon in our original opinion, and which we think were there properly decided.

He further urges that the court was in error in its charge to the jury, as shown by his objections to the court’s charge, as follows: “The defendant objects to the two paragraphs of- the court’s charge wherein the court instructs the jury if a settlement was made with Bill Forney to acquit the defendant, because the court does not instruct the jury that if they had a reasonable doubt that they should give the defendant the benefit of the doubt.”

While such objected to charge may have been inaptly worded in the first portion thereof in that it might be contended that the court required the jury to have believed beyond a reasonable doubt that certain moneys belonging to Bill Forney came into defendant’s possession, and that thereafter a full and complete settlement was made with Bill Forney, such would be but a strained construction of the entire paragraph, because the court immediately thereafter did apply the doctrine of reasonable doubt .to the acceptance of such settlement by Forney, and to appellant’s right to an acquittal based thereon.

Again we find practically the same defense charged upon by the trial court in the preceding paragraph of such charge, as follows: “If you believe from the evidence, or if you have a reasonable doubt thereof, that the defendant received certain monies as agent and attorney in fact of said Bill Forney, and thereafter paid or delivered to said Bill Forney the amounts due him therefor, after deduction of advances and expenses, if any, paid by the .said defendant to the said Bill Forney or for his benefit, then you will acquit the defendant and say by your verdict not guilty.”

We also note that the court’s charge also embodies a paragraph applying the doctrine of reasonable doubt to the whole case.

The objections of appellant to the paragraph in the court’s charge first above discussed are vague and indefinite, and while same might have properly applied to a portion of the paragraph, it would not apply to a major portion thereof, and is so general that we think it fails to point out the particular point claimed to have been erroneous. We think the objection is too general and not sufficient to call the court’s attention to any alleged error in his charge. See Boss v. State, 134 Tex.Cr.R. 593, 116 S.W.2d 739; Clinton v. State, 132 Tex.Cr.R. 303, 104 S.W.2d 39; Crabtree v. State, Tex.Cr.App., 127 S.W.2d 906.

The remaining matters contained in .the motion have been discussed in the original opinion, to which ruling we still adhere.

The motion is overruled.


author: WALKER, Chief Justice.

text:
    WEATHERHEAD et al. v. VAVITHIS.
    No. 3557.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 1, 1939.
    Rehearing Denied Jan. 1, 1940.

      Battaile & Burr, of Houston, for plaintiffs in error.
    S. C. Lipscomb and A. D. Lipscomb, both of Beaumont, for defendant in error.
   WALKER, Chief Justice.

On the 11th day of July, 1937, appellee, Savas Vavithis, riding as a passenger in a taxicab owned and operated by appellants, E. F. Weatherhead and J. O. Baggett, was injured in a collision in the City of Beaumont between appellants’ taxicab and an automobile owned and operated by a third party. This suit was filed by appellee against appellants for damages for the injuries suffered by him in the collision. Appellants have duly prosecuted their appeal to this court from the judgment on the verdict of the jury for the $1,500, entered against them in favor of appellee.

We overrule appellants’ assignments that the evidence did raise and was insufficient to support the jury’s finding on the issue of the reasonable present cash value of appellee’s diminished earning capacity, which resulted from his injury. The following statement supports the jury’s verdict on this issue: Plaintiff is a Greek manual laborer, forty-three years of age, with no prospect shown for any other class of employment. For nine years he has been employed by one company as a pump man on an American tanker. He has his domicile in the State of New York. The pumps which he.operates are down in the hold of the vessel forty feet below deck, and his job requires hourly trips up and down the forty-foot perpendicular on the ladders between deck and hold. He must operate the pumps and valves in the hold, and care for and operate the pipes and machinery and valves on deck, requiring hard physical labor with freedom of muscular activity in his arms, both for pushing and pulling. He received his injury due to the fault of defendants, July 11, 1937. The trial was had in October, 1938. At that time he was still suffering wéakness, inconvenience in performance of his work, and some pain from the injury, according to his own testimony. He had recovered use of the muscles used in pulling, but still hdd disability, weákness and pain in pushing, not being able to exert the power in pushing a valve, or. in any other, kind of work involving pushing with his arm on the injured side, that he had before the injury. He had earned in the past $110 a month, with food and lodging on the vessel and an állowance of $3.25 a day for expenses ashore while the vessel was tied up. He plead his earnings, with these incidentals, as the equivalent of $150 a month.

After his injury, and after about nine years of service with the same company, his pay was increased $5 a month. There was medical testimony to the effect that his restoration should have been complete within one year from the date of the injury. But Dr. English testified that ap-pellee might, until the bone gets set, “say six or eight months or a year,” have to favor that arm, and that “of course he. might have a little neuritis following,” “an inflammatory condition of the nerve, the callous thrown out on the nerve”; that it would be hard to say how long it would cause pain and discomfort, depending on whether appellee had any nerve involved in the callous formation on the bone. Appellee testified:

“And after the accident then I can’t sleep on my right side and if it happen at any time in my sleep I turn on my right side and if I don’t know because I am asleep, then my right hand there is almost paralyzed and it takes a few minutes before it comes back and then another thing, if I put pressure up against and push with it I can’t do it. * * * Any time I got to open the valves, I got all the machinery there to take care of and oil the pumps there and got to work the valves back and forth. Well, if I get hold- of my hand and pull to me it doesn’t bother me but if I go to do the other way, supposed to push the other way, I can’t get much power to do that. * * * I don’t know * * * when I try to put weight up against my hand, right there, the joint there, what you call the joint, that bone. - * * * I don’t know, if you want to take my shirt off you can see it, it come this way.
“Q. Take your shirt off and show us, explain to the jury what you want to say? A. Back here, this bone come way down here, come inside right here and any time I put my hand there, all the weight there and I want to push, it come right through, the pain right through, the way I feel myself, I don’t get enough power.”

In Dallas Consol. Electric St. Railway Company v. Motwiller, 101 Tex. 515, 109 S.W. 918, 921, our Supreme Court said: “It appears that before she was hurt she could and did walk to and from her work, and that since her injuries she has been compelled to ride upon street cars. From their own general knowledge and experience the jury could say that this diminished to some extent the returns from her employment, and we think this evidence was as definite as should be required to show loss of earning power to the extent indicated by it. Evidence is adduced to put the jury in possession of facts from which they can determine the extent of impairment of earning power, and is not intended in itself to establish a fixed measure of damages. When the jury are informed of such a fact as that just stated, they have enough to enable them to allow something upon that score. That they are not so informed as to permit them to allow for the full extent of such loss is no reason for saying that they cannot allow for-the part of which they are sufficiently informed.”

See also: Texas & P. R. Co. v. Perkins, Tex.Civ.App., 284 S.W. 683, 687; Dallas Ry. & Terminal Co. v. Darden, Tex.Civ.App., 23 S.W.2d 739; South Plains Coaches v. Behringer, Tex.Civ.App., 32 S.W.2d 959; Quanah, A. & P. Ry. Co. v. Eblen, Tex.Civ.App., 87 S.W.2d 540, 544; Miller v. Hooper, Tex.Civ.App., 94 S.W.2d 230; Panama Refining Co. v. Crouch, Tex.Civ.App., 98 S.W.2d 271, affirmed 132 Tex. 608, 124 S.W.2d 988; Merchants Bldg. Corp. v. Adler, Tex.Civ.App., 110 S.W.2d 978; Jackson-Strickland Transp. Co. v. Seyler, Tex.Civ.App., 123 S.W.2d 928, 937.

We give appellants’ sixth proposition : “Since the pleading and the evidence raised the issue that the failure of the driver of the other automobile involved in the collision with the taxicab to stop at the stop sign on Irving Street before entering the intersection of that street with Doucette (where the collision occurred) was a new and independent cause of the collision, such issue should have been separately and specifically submitted to the jury in view of defendants’ objection to the Court’s charge, because it failed to so submit the same, and of their requested special issue No. 5 requesting such submission.”

If it be conceded that appellants were entitled on the evidence to an affirmative submission of the issue of “a new and independent cause”, the court did not err in refusing to submit issue No. 5: “Do you find from a preponderance of the evidence that the failure of the driver of the other automobile involved in the collision with the taxicab to stop at the stop sign on Irving Street before entering the intersection of that street with Doucette, if you have found that he did so fail, was a new and independent cause of the collision?”

There was no evidence of “a new and independent cause” except as that issue was predicated on the negligence of the driver of the other car. The acts of negli-gences of the driver of the other car could not constitute “a new and independent cause”, unless his negligence was “the sole proximate cause” of the collision. The negligence of the driver of the other car was submitted to the jury and was found not to be “the sole proximate cause”. Appellants did not have the right to a second submission of these same acts of negligence as constituting “a new,and independent cause”. Safeway Stores v. Rutherford, Tex.Civ.App., 101 S.W.2d 1055, 1059, affirmed 130 Tex. 465, 111 S.W.2d 688.

Judgment of the lower court is in all things affirmed.

Judgment affirmed.


text:
    SMITH et ux. v. SMITH et al.
    No. 3484.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 17, 1940.

      A. D. Dyess, of Houston, for appellants.
    Cain & Wheat, of Liberty, for appellees.
   WALKER, Chief Justice.

Oúr opinion in this case, reported Smith v. Smith, 130 S.W.2d 1096, reforming and affirming the judgment of the lower court, was filed on the 8th day of June, 1939. The judgment taxed all costs against appellees. Motion for rehearing was overruled on the 19th day of July, 1939. Appellants’ petition for writ of error was dismissed by the Supreme Court on the 4th day of October, 1939. Mandate issued to the district clerk of Liberty county, from which the appeal was prosecuted, the 2nd day of November, 1939. Mandate was recalled on the 4th day of December, 1939, on appellants’ statement to this court that appel-lees had not paid all costs taxed against them — the point made was that an item of $55 taxed in the' transcript had not been paid and that a second item of $254 for preparing the statement of facts, not taxed in the transcript, had not been paid. Ap-pellees have paid the item of $55 taxed on the transcript, but resist appellants’ motion that this court tax as cost the item of $254 for preparing the statement of facts, on the ground that the motion was filed too late. On authority of Houston & T. C. R. Co. v. Montgomery, Tex.Civ.App., 189 S.W. 350, we sustain appellees’ contention. The facts in that case are on all fours with the facts before us; the court said: “On a former day we rendered judgment in this case reversing and remanding the same. The clerk taxed the costs against the appel-lee, as shown by the record. Appellant has filed a motion to retax the costs, and attached thereto a certified bill of costs showing stenographer’s report and statement of facts $207, which was not shown by the certified bill of costs in the original record. Appellant asks us to recall our mandate and to tax this cost against appellee. Of course, the appellant, having been successful on the appeal, is entitled to recover the costs of such appeal in a proper proceeding in a proper tribunal; but appellant’s motion asking us to recall the mandate and retax this cost is, in effect, a motion for certiorari to correct the judgment. The appellant should have seen to it that the bill of costs was correct in the first instance, and it had 30 days after filing the record in this court in which to ask for certiorari to correct the same. Under these circumstances we do not feel called upon to recall the mandate and amend our judgment herein.”

Pullman Co. v. Hays, 114 Tex. 490, 271 S.W. 1108, cited by appellant, is not in point. That case simply construes an item of cost taxed in the transcript; and the item in issue before us was not taxed in the transcript.

Answering the proposition announced by the court in the Montgomery case, supra, appellants contend that they were not guilty of laches. This contention is denied. Appellants received the transcript from the clerk of the district court and filed it in this court on the 8th day of November, 1938; the transcript did not contain the item of costs - in issue. And it was their duty to examine their transcript at the time they received it from the clerk for the purpose of having errors and omissions corrected. They filed their brief in this case on the 18th day of April, 1939, showing that they must again have had the transcript in their possession, with full opportunity to examine it. They did not discover the error in taxing the costs until after our mandate issued on the 2nd day of November,. 1939. It is no excuse that, answering appellants’ inquiry of the 26th of October, 1939, appellees’ attorney, on November the 11th, 1939, advised appellants that the costs had been paid, and that appellants did not discover that the item in issue had been omitted from the costs taxed by the clerk of the district court until subsequent to November 11, 1939. With all available data before them, appellants did not discover the error in taxing the costs until one year after they received the transcript from the clerk, and there is no explanation of this oversight on their part.

It was the duty of the clerk of this court to issue the mandate when the costs certified by the clerk of the trial court were paid. It was not his duty to examine the record to determine whether or not certain items had been omitted.

The motion to retax costs is overruled and our clerk is directed to issue the mandate upon request of either party.


text:
    GAINER v. BALCAR.
    No. 3597.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1940.
    B. L. Collins, of Lufkin, for appellant.
    C. W. Wiedemann, of Beaumont, for ap-pellee.
   WALKER, Chief Justice.

This suit was filed in the County Court of Jefferson County at Law, Jefferson County, Texas, by appellee, F. L. Balear, against appellant, W. O. Gainer, on a promissory note in the sum of $274.16, on the allegations of the petition, executed by appellant and payable to appellee at the First National Bank of Beaumont, Texas. Appellant filed his plea of privilege to be sued in Angelina County, Texas. By his controverting affidavit, appellee attempted to sustain his venue in Jefferson County on the ground that the note was payable in Jefferson County. In support of his controverting affidavit, he offered in evidence only the note sued upon, which was received over appellant’s exception, that, as against his plea of privilege, no predicate was laid for the introduction of the note, “there being no proof in the record, establishing the execution and delivery of the note by defendant to plaintiff.”

The court erred in receiving the note in evidence over appellant’s objection. The plea of privilege constituted a plea of non est factum, and required appellee to show that appellant in fact executed the note. The mere introduction of the note in evidence with appellant’s name signed thereto did not raise the issue of its execution by him, as against the plea of privilege. Chambers v. First National Bank of Hemphill, Tex.Civ.App., 104 S.W.2d 58. See note on this point, A. H. Belo Corporation v. Blanton, Tex.Sup., 129 S.W.2d 619; 18 Texas Law Review, page 111.

It follows that the judgment of the lower court must be reversed and the cause remanded for a new trial, and it is accordingly so ordered.

Reversed and remanded.


author: JACKSON, Chief Justice.

text:
    CHANDLER et ux. v. CITY STATE BANK IN WELLINGTON.
    No. 5099.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 8, 1940.
    R. H. Templeton and R. H. Cocke, both of Wellington, for appellants.
    Luther Gribble, of Wellington, for ap-pellee.
   JACKSON, Chief Justice.

This is an action in trespass to try title instituted by appellee, the City State Bank in Wellington, in the District Court of Collingsworth County against the appellants, W. F. Chandler and Lula Belle Chandler, husband and’ wife, to recover title and possession of the following tracts of land situated in Collingsworth County, Texas. All that part of the southeast quarter of section No. 66 in block 10 that lies south of the Wichita Falls & Northwestern Railway Company right of way, containing 147.7 acres; the 5 acres, more . or less, • of the southeast quarter of said section which l'e north and east of said railway right of way and also the southeast 25 acres of the northeast quarter of said section, and a tract of 130 acres out of said northeast quarter. These tracts of land are described separately and with sufficient detail in the petition.

The alleged cause of action pleaded in the alternative by appellee will not be stated since no question is presented in this appeal relative to the disposition thereof.

The appellants filed a disclaimer to all their right, title or interest in the land described in appellee’s petition save and except the west 40 acres of the southeast quarter of said section.

By way of answer and cross-action they pleaded that they are husband and wife and have been such at all the times involved in this controversy; that they acquired title to the part of the southeast quarter of section 66 which lies south of the right of way of the Wichita Falls & Northwestern Railway Company on December 3, 1915; that on November 21, 1917 they acquired title to the southwest quarter of said section 66 and since that time the southwest quarter of the section and the west 40 acres of the southeast quarter of the section have been claimed, used and occupied by them as their homestead.

On December 18, 1925 they alleged that they obtained a loan from the Federal Land Bank at Houston, Texas, for the sum of $5,400 for which they executed their note and a deed of trust lien on the land owned by them in the southeast and northeast quarters of said section to secure the payment of such loan; that $2,-000 of the money so borrowed was advanced to them by the Federal Land Bank to take up and extend, among other debts, a note the principal and interest of which amounted to $2,160 and that said west 40 acres of the southeast quarter of said section, although a part of their 200 acre homestead, was liable for its' proportionate part of the $2,160; that at the time of negotiating this loan the Federal Land Bank agreed that in lieu of the west 40 acres its lien should cover the 5 acres above described lying in the southeast quarter north of the railroad and the 25 acres above described out of the northeast quarter of said section against which there was no lien but by mistake said west 40 acres was included in the deed of trust of the Federal Land Bank and the 5 acre tract and the 25 acre tract were left unencumbered.

They pleaded the close and confidential business relations between themselves and appellee and its predecessor; that such relations had existed for approximately 25 years; that they had relied upon and trusted the appellee for advice in the transaction of their business and in the preparation of legal papers they were required to execute; that they became indebted to the appellee in various sums and in 1933 executed and delivered to it three notes, one for $4,400 one for $600 and one for $900, and executed a second lien covering all the land described in the deed of trust given to the Federal Land Bank save and ’ except the west 40 acres of the southeast quarter of said section which had theretofore been designated as a part of their homestead; that in preparation of the instruments for the second lien the agents and employees of the ap-pellee did omit said west 40 acres but fraudulently included the 5 acre tract.out of the southeast quarter and the 25 acre tract out of the northeast quarter of said section; that such fraud was not discovered by appellants until the title to their land was investigated immediately preceding the parole agreement between the appellants and appellee hereinafter alleged; that in the contract in which they agreed to execute to appellee this second lien on the land covered by the deed of trust held by the Federal Land Bank they also agreed that the deed of trust should cover lots 13 to 24, inclusive, in block 99, lots 20 to 22, inclusive, in block 122, lots 6 to 9, inclusive, in block 141, and lots 1 to 4, inclusive, in block 215 in the city of Wellington; that the second deed of trust was executed and delivered to appellee for the purpose of securing appellants' debt to it evidenced by the notes last mentioned.

On or about August 1, 1938, with the existence of the relation recited and the indebtedness between the parties as above stated, the appellee through its agents began negotiations with the appellants for the announced purpose of winding up and settling the indebtedness between them; that such negotiations resulted in an oral contract in which appellants agreed to deliver possession of the 267 acres of land owned by them in the east half of said section 66 and to exchange the equity held by them in the entire 267 acres for and in consideration of the payment by appellee of the indebtedness the appellants owed the Federal Land. Bank; the cancellation’ and delivery to them of the $4,-400 note held by the appellee secured by a second lien on the land and the town lots; the release of the lots in block 215 and the extension of the due date of the $900 note held by appellee, all of which terms and conditions were agreed to by appellee but on account of a judgment against appellant, W. F. Chandler, which constituted a lien against the entire 267 acres, appellee declined to accept a deed of conveyance from appellants but promised that it would acquire title to said 267 acres by a friendly foreclosure of its lien thereon; that appellants agreed to this proceeding but in connection with the foreclosure the appellee requested the appellants to execute an instrument asking the Federal Land Bank to transfer to appellee the amount then matured and due on the loan to said Federal Land Bank together with the lien securing the payment of the same; that the amount so matured was evidenced by an interest coupon note for the sum of $537.72 and taxes amounting to $254, which had been paid by said Federal Land Bank; that to induce appellants to sign this instrument ap-pellee represented that it was necessary to secure such written transfer to enable it to acquire title to said 267 acres of land clear of other liens including the judgment lien, and relying on such representations, such instrument was executed by appellant, W. F. Chandler; that such transfer was secured after which appellee foreclosed its lien on the 267 acres and also foreclosed the lien so transferred to it by the Federal Land Bank and thereby acquired title not only to the 267 acres covered by its. second lien but also secured title to the west 40 acres of the southeast quarter of said section, which was of the -market value of $4,000.

The appellants ask for judgment removing the cloud on.the title to said 40 acres created by the foreclosure of the lien transferred to appellee by the Federal Land Bank.

In reply to the alleged oral agreement for the exchange of appellants’ equity in the 267 acres for the consideration recited in appellants’ answer and cross-action, the appellee pleaded the statute of frauds. The court in effect sustained this plea by directing a verdict in favor of appellee and rendering judgment that the City State Bank in Wellington have and recover the title and possession of the land from appellants .who perfected this appeal and ask for a review of such judgment.

The appellants challenge as error the action of the court ,in holding that the oral contract which they had set out in their petition was for the sale of real estate and therefore within the statute of frauds.

It is admitted that the note given to the Federal Land Bank evidenced a bona fide debt and was secured by a valid lien which, among other tracts, covered the west 40 acres of the southeast quarter of section 66. It is likewise conceded that the notes executed to appellee evidenced bona fide debts which had been secured by a second lien and default had been made in the payment by appellants of the note to the Federal Land Bank as well .as the notes to appellee.

The appellants owned the title, both legal and equitable, to the land described in the pleadings subject to the existing liens ■covering said lands to secure the payment of such indebtedness.

The written instrument, signed by the .appellant, W. F. Chandler, requesting the Federal Land Bank to transfer its debt and lien or a portion thereof to appellee, •was as follows: “This is to certify that .1 am -indebted to the City State Bank in "Wellington, Texas which is secured by a deed of trust and since they have agreed to take up the loan owing the Federal Land Bank of Houston and accept title to the security by way of friendly foreclosure in order to have a perfect and merchantable title to the land I hereby ask that the lien securing the past due installments and/or the entire loan be transferred by the Federal Land Bank to the City State Bank in Wellington, Texas in consideration of their releasing me from any further liability in connection with the one promissory note for $4400.00 and accumulated interest thereon. Said bank is to release the three houses south of jail from the $900.00 note and leave the lien against the other houses.”

This instrument indicates that the ap-pellee was to purchase the debt and lien, or a portion thereof, held by the Federal Land’Bank and obtain title to the security, which was the land held by the bank, by a foreclosure, and it is conceded that the Federal Land Bank held a valid debt and lien to secure its debt and the west 40 acres of the southeast quarter was liable for its proportionate part thereof. The testimony of an officer, of tlie bank tends to show that this written proposition was made by appellants to the bank and accepted by the bank and the testimony of Mr. Chandler which was excluded shows that the oral agreement upon which he sued was made subsequent to the time of his execution of this written instrument. ' There, is no contention that any term, provision or condition of the oral contract was omitted from the written instrument by mistake, fraud or accident, hence under the record the execution of such written agreement becomes immaterial in determining appellants’ contentions.

The appellants alleged that in an oral contract they agreed to exchange or sell to appellee their equity in the - entire 267 acres of land for certain stipulated considerations stated in their pleading.

Article 1288 of the Revised Statutes is as follows: “No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing.”

Article 3995 of the Revised Statutes provides in part that:

“No action shall be brought' in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *
“Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; * *

An oral contract for the exchange of land is unenforceable under the statute of frauds. Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505; Laufer et al. v. Powell et al., 30 Tex.Civ.App. 604, 71 S.W. 549, writ denied. Appellants’ claim that if appel-lee had complied with its contract it would have cleared their title to the wést 40 acres of the southeast quarter of the section would not take the c®ntract out of the statute of frauds since the Supreme Court held in Sprague et al. v. Haines, 68 Tex. 215, 4 S.W. 371, that a parol contract to clear the title to lands for another and after such title was cleared receive as compensation one-half of the land is unenforceable because within the statute.

In 20 Tex.Jur. 279, para. 70, the author says:

“The words ‘any contract for the sale of real estate’, as used in the statute, include every agreement which contemplates the alienation of an existing interest in land. If the consideration for a promise or contract is a .conveyance of real estate, the case is held to be within the purview of the statute, and the undertaking is not binding unless it is evidenced by some instrument in writing or unless the agreement has been acted on by the parties.
“ ‘The effect of the provision, as expounded by the courts, is to render unavailing to the parties, as the ground of a claim, any parol contract, in whatever shape it may be put, by which either of them is to part with real estate.’ ”

It is also held that an executory contract for the sale of land cannot be rescinded by an oral agreement. 22 Tex.Jur. 306, para. 97. See the following cases in support of the text in Texas Jurisprudence: Waggoner v. Herring-Showers Lumber Co. et al., 120 Tex, 605, 40 S.W.2d 1; Hooks et al. v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216.

The record fails to show that appellee-paid or had transferred to it the entire debt and lien of the Federal Land Bank or made any improvements on any of the land acquired by foreclosure and no 'sufficient part performance of the oral contract is shown to relieve it from the inhibition of the statute.

In Robertson v. Melton, supra, 115 S.W.2d at page 625, paragraph 8 of the syl-labi, it is said: “In action for breach of land exchange contract where defendant refused to perform because of statute of frauds, the statute could not be disregarded, notwithstanding a wrong was done to plaintiff and plaintiff had suffered a possible loss. Rev. St. 1925, art. 3995.”

In our opinion, the conclusion that appellants’ allegation that by oral contract they agreed to exchange their interest in the 267 acres for the consideration alleged was an oral contract for the sale of land and hence .unenforceable because of the statute of frauds.

If we are correct in the foregonig conclusion it is unnecessary to pass on the assignments presenting as error the action of the court in excluding certain testimony by which appellants offered to' prove the terms of the alleged oral contract.

The judgment is affirmed.


author: FUNDERBURK, Justice,

text:
    SPANN BROS. AUTO SUPPLY CO. v. MILES.
    No. 1970.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 12, 1940.

      Bert Derden, of Wichita Falls, for appellant.
    Roberts & O’Conner, of Breckenridge, for appellee.
   FUNDERBURK, Justice,

The members of the copartnership named Spann Brothers Auto Supply Company brought this ¿uit, on October 14, 1938, against J. D. Miles to recover $242. Liability of the defendant was predicated upon the claim that one J. C. Burkett on or about December 18, 1936, and while indebted to plaintiffs in said sum of $242 ■sold a stock of merchandise of approximately the value of $250 or $300 to the defendant without compliance (on the part of the purchaser) with provisions of the Bulk Sales Statutes. R.S.1925, Arts. 4001, 4002. It was alleged that plaintiff was the only creditor and that defendant had converted the stock of merchandise.

The defendant (not in due order of pleading) excepted to plaintiffs’ petition (1) specially, on the ground that the cause of action was barred by limitation, and (2) generally. There was a general denial and other special pleas.

In a non jury trial judgment was rendered for the defendant from which the plaintiffs have appealed.

The judgment is difficult to understand. It recites that the court “after Considering the dilatory pleas urged by the defendant, overruled the same and ordered the case to trial upon its merits” etc. However, it further recites that “after the plaintiff had introduced his testimony and rested, the defendant again renewed his pleas to the jurisdiction of the court and general demurrer to the evidence and removed [moved] the court for judgment in favor of the defendant; whereupon the court, after considering the pleadings and the evidence, the plea to the jurisdiction and general demurrer to the plaintiff’s petition and the evidence introduced thereunder and the defendant’s motion for judgment, being of the opinion that said pleas and motion should be sustained for the reason that this court is without jurisdiction of the subject matter, the plaintiff having failed to prove a bulk sale or any sale in excess of $200 involved herein, it is, therefore, ordered, adjudged and decreed by the court that plaintiff take nothing by reason of this suit and that the defendant go hence” etc. (Italics ours).

The record shows no plea to the jurisdiction, nor demurrer to the evidence. If as, the judgment recites, the court had no jurisdiction of the subject matter, it also had no jurisdiction to pass upon a demurrer to the pleadings, or to the evidence, or to render any other judgment than one dismissing the suit. Aside from any question of jurisdiction, if the court really adjudged that plaintiffs pleadings were insufficient to state a cause of action (i. e., subject to a general demurrer) then also, in the absence of amendment, the court had no authority to render any other judgment than one of dismissal. Certainly the court had no authority to adjudge that the plaintiff take nothing: and the defendant go hence.

Considering the judgment actually rendered, we would be inclined to disregard as inadvertence and surplusage the recitations regarding want of jurisdiction and purported action on demurrers but for the certainty appearing in the judgment that it was really predicated upon the erroneous view of the law that jurisdiction was a matter controlled by the evidence.

It was wholly immaterial that the plaintiff may have “failed to prove a bulk sale or any sale in excess of $200.” (Italics ours) Jurisdiction was determined by the averments in plaintiff's pleadings showing the amount in controversy. In the absence of a plea attacking the jurisdiction on the ground that the averments were made fraudulently for the purposes of conferring apparent jurisdiction, the averments of the pleadings were conclusive of the question of jurisdiction.

Under the circumstances the record wholly fails to show that there was any real consideration and determination upon their merits of the issues involved.

It is, therefore, our decision that the judgment should be reversed and the cause remanded, which is accordingly so ordered.


author: GRISSOM, Justice.

text:
    THOMAS et al. v. CLINE.
    No. 1966.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 12, 1940.
    Thomas & Thomas, of Big Spring, for plaintiffs in error.
    Jno. B. Littler and W. M. Taylor, both of Big Spring, for defendant in error.
   GRISSOM, Justice.

Clyde E. Thomas, R. V. Fryar and Clarence Fryar sued'B. R. Cline for damages for trespass and sought an injunction restraining Cline from interfering with plaintiffs’ possession of a tract of land. Defendant’s answer consisted, among other things, of a general denial. Defendant further alleged that he was the owner of all of section 46, Block 33, Township 2 N, Howard County, Texas, except two tracts out of said section, to-wit, a tract of 200 acres patented to J. F. Thixton December 17, 1919, and a tract of 210.8 acres patented to Thixton April 6, 1936; that the defendant was the owner of the third tract of land out of said section, containing 246.7 acres to which defendant obtained a patent in the name of Ben Hatch, March 11, 1937. Defendant alleged that in November, 1936, Thixton gave a deed of trust to the State National Bank of Big Spring on two tracts of land out of section 46 described therein as the “N ⅛ of NE ¼, the N of NW ¼ and 200 acres off of the south side of W ½, same aggregating 400 acres of land.” That said Thomas purchased the 400 acres of land out of said section 46 described in said deed of trust; that a resurvey of section 46 disclosed that it contained an excess, leaving a balance of 246.7 acres to defendant after deducting the two tracts aggregating 410.8 acres formerly owned by Thixton and patented to Thixton and acquired by plaintiff Thomas through a sale under said deed of trust. That defendant purchased from the State the 6.7 excess acreage and had a patent issued, in the name of Ben Hatch, to the 246.7 acres.

The record shows that section 46 was, in January 1903, classified and appraised by the Commissioner of the General Land Office as dry grazing land, priced at $1 per acre, listed as 640 acres of land, and sold to R. C. Coffee May 10, 1899. The certificate of proof of occupancy by the Commissioner of the General Land Office showed that G. L. Brown, in' March, 1903, filed proof of three years’ residence and occupancy on said section. On February 24, 1937, Ben Hatch and wife, being the owners thereof, executed a general warranty deed to defendant to all of the SE ¼ and the S ½ of the NE ½ of section 46. The deed contained the following recital: “comprising 240 acres of land.”

In September, 1916, W. J. Hardy conveyed to J. F. Thixton 40 acres off the south side of the NW ⅛ of section 46 and the SW ½ of section 46. Said deed contained the recital “both of said tracts of land herein conveyed comprising the south 200 acres off the W ½ of section 46.”

On December 17, 1919, Thixton procured a patent from the State to the SW ¼ and the S ⅛ of the NW ¾. of section 46, stated therein to be 200 acres. On December 29, 1920, B. Smith and wife conveyed to Thix-ton the N ½ of the NE ¼ and N % of the NW ¼ of section 46. The deed contained the recital “containing 200 acres of land.”

In April, 1936, Thixton obtained a patent to 210.8 acres of land described as the N ½ of the NE ¼ and the N ¾ of the NW ¼ of section 46.

In November, 1936, Thixton and wife executed a deed of trust conveying to T. S. Currie, trustee for the State National Bank of Big Spring, the N ½ of the NE ¼ and the N ¾ of the NW ½ of section No. 46 “also 200 acres off of the south side of the W ½ of Section No. 46.”

On February 1, 1938, plaintiff Thomas, having purchased the land at a trustee’s sale under said deed of trust, received a trustee’s deed describing the land as “all of the N ½ of the NE ½ and the N ¾ of the NW ½ of Section No. 46” and “also 200 acres off the South side of the W ½ of Section No. 46.”

In March, 1937, defendant Cline caused a patent to issue to “Ben Hatch, assignee, his heirs and assigns” to 246.7 acres of land described as being “in Howard County known as the SE ¾, and S ½ of NE ¼ of Survey 46 * * * bought and fully paid for on the application of R. C. Coffee filed in the General Land Office May 10, 1899 under the laws regulating the sale of public free school lands.”

Until about the time Thixton obtained a patent to the 210.8 acre tract apparently neither Thixton nor Cline knew there was excess acreage in section 46 and dealt with the land as if Thixton owned 400 acres and Cline owned 240 acres of said section. On April 12, 1938, Cline, having had his land surveyed and patented, moved the fence on the north and west of his tract of land (which fence had been at the old location since about 1916) a short distance north and west into the tract of land which was being cultivated by the Fryars as tenants of Thomas. The space between the old and the new fence is the land in controversy in this suit. It is alleged by plaintiffs to contain 6'.7 acres, but, according .to the testimony of defendant’s surveyor, actually contains slightly in excess of 3 acres.

At the close of- the evidence the court instructed a verdict for defendant on plaintiffs’ cause of action, and for defendant on its cross-action seeking removal of cloud on his title. Judgment was accordingly entered and plaintiffs have appealed.

It appears to be plaintiffs’ contention that he, and those under whom he claims, having been in possession of. the disputed strip since 1916, and Cline having moved the fence so as to include land being cultivated by plaintiffs, without their consent, and the new fence being erected partly in the nighttime, as a matter of law, proof of such facts show Cline guilty of trespass and plaintiffs entitled to damages. Plaintiffs further contend that the old fence had been treated as a boundary fence since about 1916, and Cline occupied his tract of land as a tenant prior to the time he purchased it, and purchased it knowing the location of said fence; therefore, Cline is estopped to claim that his boundary line is at another place. Plaintiffs further contend, as we understand it, that even if said strip of land between the old and new fence was in fact owned by Cline that, under the aforesaid facts, Cline nevertheless is guilty of trespass. Plaintiffs contend further that they and their predecessors in title, having claimed said strip of land, cultivated, used and enjoyed it since 1916, acquired title thereto by limitation.

The evidence shows that the new fence built by Cline was built along the line fixed by the field notes in the patents to Thixton, and the patent to Hatch and assigns obtained by Cline; that the patents to said two tracts of land acquired by Thixton conveyed to Thixton his proportionate share of the 17.5 acres of excess in the section; that Cline in obtaining his patent to 246.7 acres of land purchased from the State the 6.7 acres excess which remained in the section. That the new fence erected by Cline is within the boundaries of the land described in the patent to Cline and outside the boundaries of the land described in the patents to Thixton.

We think the introduction of a patent from the State to defendant’s assign- or Hatch, to the land in controversy, is a complete answer to plaintiffs’ contention that plaintiffs established their case by proof merely that plaintiffs were in possession of the disputed strip and were ousted by the defendant whom plaintiffs assume was a mere trespasser. The introduction by defendant of a recent patent to' said land prevented plaintiffs’ said evidence from having such supposed effect. The introduction by defendant of a patent to the land in controversy made a prima facie case entitling defendant to the ownership and possession of the land in dispute. Elliott v. Nelson, 113 Tex. 62, 251 S.W. 501; Burkhead v. Bush, Tex.Civ.App., 75 S.W. 67; Johnson v. Eldridge, 49 Tex. 507. Proof of issuance of said patent by the state further constituted prima facie evidence that until its issuance title to the disputed strip was in the State. Walters v. Witcher, Tex.Civ.App., 44 S.W.2d 511; Stevens v. Geiser, 71 Tex. 140, 8 S.W. 610; Koch v. Poerner, Tex.Civ.App., 55 S.W. 386.

The acreage in excess of 640 acres in said section 46, until purchased from the State, was never owned by plaintiff Thomas, nor defendant Cline, nor their predecessors in title, but it was owned by the State and held for the benefit of the public free schools of Texas. Until the disputed strip became the property of Cline, by purchase from the State, plaintiff Thomas could not acquire title thereto by limitation, and limitation did not begin to run until the conveyance by the State to Hatch for the benefit of Cline.

In Austin v. Dungan, 46 Tex. 236, 246, the court said: “It is unnecessary for us to say that there is nothing in the decisions of this court to give countenance to the supposition that a grant of the, public domain Will be presumed from ten years’ possession. Nor is there anything in the statutes, or in the practice and usage of the State, in the granting of land, to authorize the inference that the State must eject trespassers, or recover possession of the public land from occupants, before it can make a valid grant or conveyance of it to other parties. * * * It follows, as a necessary consequence, that a purchaser from the State will not be barred; for it would be tantamount to a denial of the title of the State or its right to convey, to say that the bar, though not directly applicable to the State, would take effect immediately on the title vesting in the purchaser or grantee from it.”

In Smith v. Power, 23 Tex. 29, 30, 35, the Supreme Court said: “On general principles, and by the express provision of the statute * * * limitation does not run against the state. And it is well settled, in cases like the present, that the statute does not commence to run against a party claiming under the government, until the right accrues to the claimant.”

To the same effect see Truehart v. Babcock, 49 Tex. 249, 259, and Brown v. Sneed, 77 Tex. 471, 14 S.W. 248, 251.

Title to said land belonging to the State was not acquired by plaintiff Thomas by adverse possession, even if Cline recognized the old fence line as the boundary between the tracts. Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259.

We think the issuance to and acceptance of the patents by Thixton, in whose shoes plaintiff Thomas must neccs-sarily stand, to the 200 acre tract and to the 210.8 acre tract (containing 10.8 acres of the excess in section 46, being Thixton’s proportionate share of the total excess in the section) is conclusive as to the extent of the claim of Thixton, binding on his vendee, Thomas, “both as to the limitation of acreage as described in the patent[s] and as to any claim to excess in the survey.” Anderson v. Robison, 111 Tex. 402, 238 S.W. 883. Also see Miller v. Yates, 122 Tex. 435, 441, 61 S.W.2d 767, 769; Id., Tex.Civ.App., 15 S.W.2d 730, 734; Turner v. Smith, 122 Tex. 338, 61 S.W.2d 792; Anderson v. Robison, 111 Tex. 402, 229 S.W. 459; Doty v. Barnard, 92 Tex. 104, 47 S.W. 712; 34 Tex.Jur. 92 et seq.; Wright v. Gale, 104 Tex. 450, 140 S.W. 91, 94; Id., 104 Tex. 450, 143 S.W. 141; Garcia v. State, Tex.Civ.App., 274 S.W. 319, 321; Sullivan v. State, 41 Tex.Civ.App. 89, 95 S.W. 645, 648, writ dismissed; Hamilton v. State, Tex.Civ.App., 152 S.W. 1117, 1121; Montgomery County v. Angier, 32 Tex.Civ.App. 451, 74 S.W. 957, 959, writ refused.

We are of the opinion reversible, error is not shown and the judgment should be affirmed.

Affirmed.


author: MONTEITH, Chief Justice.

text:
    TRINITY INDEPENDENT SCHOOL DIST. v. DISTRICT TRUSTEES, DIST. 24, TRINITY COUNTY, et al.
    No. 10883.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 14, 1939.
    Rehearing Denied Jan. 25, 1940.
    Crow & Chessher, of Groveton, for appellant.
    Joe J. Newman, of Trinity, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from a judgment setting aside an order of the County Board of School Trustees of Trinity County, Texas, annexing New Zion Common School District No. 24 and Red Branch Common School District No. 31 to the Trinity Independent School District, for high school purposes.

On June 6, 1938, the Board of Common School Trustees of Trinity County called an election to be held in said three districts as a unit, for the purpose of determining whether the Board would be authorized to annex said districts Nos. 24 and 31 to the' Trinity Independent School District. No attempt was made to secure the approval of the Board of Trustees of either of the Common School Districts sought to he annexed. After due notice said election was held, and the election having carried in favor of annexation over the territory as a whole, the returns were made in favor of said annexation.

On July 25, 1938, the County Board of School Trustees entered an order providing fpr said annexation. In the order and notice for said election it was recited that said three districts were contiguous and more than 100 square miles in area, and that it was 'to the best interests of said districts, and each of them, and to the scholastic population thereof, that such common school districts be annexed to Trinity Independent School District for the purpose of forming a single unit for high school purposes.

On July 30, 1938, appellees, as trustees of said districts Nos. 24 and 31, brought this action in the district court of Trinity County against appellants, trustees of Independent School District of Trinity County, the County School Trustees of Trinity County, and the Superintendent of Schools of Trinity County. They alleged that the Trinity Independent School District was a rural high school district; that said election and order of annexation pursuant thereto was void, because no petitions of the appellee trustees were presented to the County School Board; that each of appel-lee districts voted unanimously against the proposed annexation, and that said election was void for failure to comply with Arts. 2922a, Vernon’s Tex.Civ.St.1936, Art. 2922a, as'amended by Art. 2922aa, both of the Revised Civil Statutes of 1925, Vernon’s Tex.Civ.St. 1939, Supp. Art. 2922aa.

Appellants answered by general demurrer and general denial, and by a special plea to the jurisdiction of the court that the petition of appellees was insufficient, in that it did not show an appeal had been made to the proper school authorities of the State of Texas.

On a trial before the court without a jury, judgment was rendered that the order of the Board of School Trustees of Trinity County, entered on July 25, 1938, attempting to annex or consolidate Common School Districts Nos. 24 and 31 with the Trinity Independent School District, was void for failure to comply with the provisions of Art. 2922aa, Revised Statutes of 1925. The court found as a fact that Trinity Independent School District was a rural high school district.

It is the contention of appellees that Art. 2922aa, Revised Statutes of 1925, as added, Vernon’s Tex.Civ.St.1939 Supp. Art. 2922aa, repealed those parts of Arts. 2922a and 2922c, Revised Statutes of 1925, under which School Districts Nos. 24 and 31 were annexed to Trinity Independent School District, and that the annexation was void for failure to comply with the provision of said Art. 2922aa, as added, which requires procedure under Art. 2806, Revised Statutes of 1925, providing for calling, holding, and canvassing the election for consolidating the type of school districts therein named by the County Judge and Commissioners Court.

Art. 2922aa, R.S.1925, Vernon’s Tex. Civ.St.1939 Supp. Art. 2922aa, relates to the consolidation of rural high school districts and common school districts. It makes no provision for the annexation of common school districts with Independent School Districts. As amended, it provides that any rural high school district already formed may consolidate with any contiguous common high school district upon an election being held in the respective districts, and that said election shall be held in conformity with Art. 2806, R.S.1925.

Art. 2806, R.S.1925, provides that on a petition of twenty or a majority of the voters of each of several contiguous common school districts, or contiguous independent school districts, praying for the consolidation of such districts for school purposes, the County Judge shall issue an order of an election to be held on the same day in each such district; that the County Judge shall give notice of the date of such elections, and that the Commissioners Court shall canvass the returns of said elections, and if the votes in each and all districts show a majority in each district voting separately in favor of such consolidation, the court shall declare the school districts consolidated.

Said article further provides that if a common school district be consolidated with an independent school district, such independent school district shall be given all the rights and privileges of all other independent school districts.

Arts. 2922a, 2922b, and 2922c, R.S.1925, Vernon’s Tex.Civ.St.1936, Arts. 2922a-2922c, with others of the same Act (Title 49, Chapter 19a), provide a method for the grouping and annexation of school districts and independent school districts.

Art. 2922a provides that the county school trustees shall have the authority to form rural high school districts by grouping contiguous common school districts or by annexing an independent school district to a common school district, or by annexing one or more common school districts to an independent school district “under the approval of the Board of Trustees of each school district affected.”

Art. 2922b, R.S.1925, Vernon’s Tex.Civ. St. 1936, art. 2922b, provides that all independent school districts enlarged by the annexation thereto of one or more common school districts as provided in Art. 2922a, shall retain their status and names as independent school districts 'under the provisions of the existing laws and the laws hereafter enacted governing other independent school districts, except as otherwise provided.

The part of Art. 2922c, R.S.1925, Vernon’s Tex.Civ.St.1936, Art. 2922c, material to this appeal, reads: “No rural high school district, as provided for herein, shall contain a greater area than one hundred square miles, or more than seven elementary school districts, except that the county school board of school trustees may form rural high school districts, as provided in Article 2922a, containing more than one hundred square miles, upon a vote of a majority of the qualified electors in the said proposed rural high school district voting at an election called for such purpose; * *

The election in question involved the annexation of common school districts Nos. 24 and 31 with the Trinity Independent School District, which was an independent school district and not a rural high school district.

While the record shows that there have been consolidations and annexations of school districts with Trinity Independent School District, under the express terms of Art. 2922b those annexations and consolidations have not changed the status-of the Trinity Independent School District from an independent school district to a rural high school district, and since Arts. Nos. 2922aa and 2806 apply only to elections for the consolidation of rural high school districts, with contiguous common school districts, these articles would have no application to the election involved in this appeal.

Further the Supreme Court, in the case of Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770, in construing Arts. 2922a and 2922c of Chapter 19a, Title 49, Vernon’s Ann.Civ.St., has laid down the rule, that while the County Judge has been authorized to order special elections already provided for, such as elections for the consolidation of rural high school districts with contiguous common school districts, there is no statute conferring on the County Judge such power to order elections on the question of the grouping or annexing of districts to form rural high school districts such as is provided for under said Arts. 2922a and 2922c, and that such power is conferred upon the County Board of School Trustees.

It is further held that the fact that the consent of the trustees of each of several districts to be affected by proposed consolidation was not secured, and that the election was defeated in the districts proposed to be consolidated, did not invalidate said consolidation where the election carried in the proposed district at large, as in the instant case. Florey Common School District No. 5 of Andrews County et al. v. Board of School Trustees of Andrews County et al., Tex.Civ.App., 126 S.W.2d 536; Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770; Cox v. Beard et al., Tex.Civ.App., 87 S.W.2d 882; Coffee v. Lieb et al., Tex.Civ.App., 107 S.W.2d 406.

The exact question involved in this appeal is decided in the recent case of State ex rel. Lowe et al. v. Cadenhead et al., Tex.Civ.App., 129 S.W.2d 743, 746, in an opinion handed down on April 7, 1939, in which the court said:

“Specifically, the contention of appellants is, as we understand it, that Vernon’s Ann.Civ.St. Art. 2806a repealed Art. 2922c, particularly wherein the latter authorized the County Board of School Trustees to order and declare the result of elections held under authority of said statute. A mere reading of said Art. 2922c will not disclose that it granted such authority. That effect of said article in connection with those of the same act, is recognized as the result of a decision of the Supreme Court upon a question of construction. Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770, decided May 16, 1931. Said Art. 2806a became effective in October, 1935, long after the former statute had received its settled construction. * * * Importance seems to be attached by appellants to Vernon’s Ann.Civ.St. Art. 2922aa (1937) which, in providing for the consolidation of Rural High School Districts with contiguous common school districts, to be effected by elections, provides that the required elections shall be held ‘in conformity with Art. 2806, R.S. of Texas, 1925.’ The importance is not apparent when it is considered that generally elections for consolidations, as distinct from elections to authorize the grouping or annexation of districts to form rural high school districts, are, as already noticed, required to be held in conformity with said Art. 2806, which is to say, said elections shall be ordered by the county judge and returns canvassed and results declared by the County Commissioners’ Court. * * * On the other hand, when school districts are grouped, or one or more annexed to another under the authority of said chapter 19A, Title 49 of the R.S. 1925, to form a rural high school district, the former districts do not cease to have an independent existence. As to such districts comprising rural high school districts it is provided in R.S. 1925, Art. 2922b, that they, ‘whether common or independent’, shall ‘be referred to * * * as elementary school districts.’ Since the Legislature as its acts have been construed by the Supreme Court (Countz v. Mitchell, supra) has provided that elections for consolidations shall be ordered by the county judge, and elections on the question of grouping or annexing of districts to form rural high school districts shall be ordered by the county board of school trustees, no inconsistency is apparent in the provision of the new act that the consolidation of rural high school districts with common school districts be determined by elections to be ordered by the county judge.”

If follows from the above authorities and the conclusions expressed, that in our opinion the judgment of the trial court should be reversed and judgment here rendered for appellant.

Reversed and rendered.


author: NORVELL, Justice.

text:
    GOLDMAN v. GORDON.
    No. 10653.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    .Alfred C. Baass and E. L. Dunlap, both of Victoria, for appellant.
    Dick Young, of Houston, for appellee.
   NORVELL, Justice.

This is an appeal from an order of the County Court of Victoria County sustaining the plea of privilege of appellee, J. A. Gordon. The appellant, Henry Goldman, has filed no brief in this Court, and the case was submitted on the brief of the appellee. We have inspected the record for fundamental error. McGraw v. Albracht, Tex.Civ.App., 16 S.W.2d 1112.

Concluding that there is no fundamental error in the case, the judgment of the trial court is affirmed.