author: BROWN, Justice.

text:
    HILL v. REYNOLDS TRUST et al.
    No. 14029.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1940.
    Rehearing Denied March 8, 1940.
    Myres & Myres, of Fort Worth, and J. L. Bird, of Walnut Springs, for appellant.
    Bryan, Stone, Wade & Agerton and B. G. Mansell, all of. Fort Worth, for ap-pellees.
   BROWN, Justice.

Appellees brought suit in the County 'Court at Law No. 2 of Tarrant County^ Texas, against Ray O. Moore and W. R. Hill, for conversion of about 1,077 pounds of wool, alleged to be of the market value of $376.77.

The defendant, Hill, denied generally the allegations of the petition, and appeared at the trial and contested the suit. It appears that the defendant, Moore, answered but did not appear in person or through counsel, at the trial.

The cause was tried to a jury, and one special issue was submitted: “Do you find from a preponderance of the evidence that the wool purchased by W. R. Hill was the same identical wool as that taken from the Reynolds Trust Farm in Tarrant County?” The jury answered, “Yes.”

The court instructed the jury to return a verdict in favor of appellees against Ray O. Moore for $376.77, with 6% interest.

On this record the court rendered judgment jointly and severally against Moore and Hill, in favor of appellees.

Hill’s amended motion for a new trial having been overruled, he has appealed and timely filed a supersedeas bond.

Appellant’s original motion for a new trial was filed April. 22nd, 1939, and, with leave of court, he filed his amended motipn on April 29th, 1939.

We do not understand that a litigant may rely upon both his original motion and his amended motion for a new trial. Having filed the amended motion, with leave of court, he thereby abandons his original motion, unless he obtains leave to withdraw his amended motion and insists upon the original.

The order of the trial court, insofar as it makes mention of overruling the original motion, is mere surplusage and a nullity. We conclude that appellant must rely upon his amended motion.

The first paragraph of the amended motion complains of the trial court’s action in overruling Hill’s plea of privilege. This matter is not brought forward in the brief and is not attempted to be presented.

The second paragraph complains of the trial court’s action in overruling and in not sustaining Hill’s objections to statements made by the defendant, Ray O. Moore, to the witness, Frank, in the absence of Hill, such statements being hearsay as to Hill.

We find that assignment of error No. 3 in appellant’s brief is a reconstructed' statement of this paragraph of appellant’s motion, but no reference to the proper paragraph is made. (This should always be done to assist the appellate court).

The third paragraph of the amended motion complains of the action of the trial court in overruling and in not sustaining Hill’s objections to statements made by Ray O. Moore to the witness, P. D. Smith, in the absence of Hill, such statements being hearsay as to Hill.

We find that assignment of error No. 2 is a reconstructed statement of this paragraph of the amended motion, and that no reference is made in the brief to such paragraph.

The fourth paragraph of the amended motion complains of statements made by Ray O. Moore to the witness, E. C. Watson, being admitted in evidence over similar objections as shown in the assignments just above discussed.

Assignment of error No. 4 is a reconstructed statement of such paragraph 4 of the amended motion, but no reference to the proper paragraph is given.

Paragraph 5 of the amended motion complains of the introduction in evidence of a written statement (or confession) made by the defendant, Ray O. Moore, to the witness, E. C. Watson, as being hearsay as to Hill.

Assignment of error No. 5 is a reconstructed statement of this paragraph of the amended motion, but no reference to the proper paragraph is given.

The sixth paragraph of the amended motion complains of the failure of the trial court to give Hill an instructed verdict, as requested, and the sixth assignment of error is a reconstructed statement of this paragraph, but no reference to the proper paragraph is given.

We are considering appellant’s 2nd, 3rd, 4th, Sth and 6th assignments of error, but we must decline to consider the first assignment of error, which touches upon the testimony given by one of the plaintiffs, because we find no complaint made of this in the amended motion for a new trial.

We will consider the 2nd, 3rd, 4th and Sth assignments of error together, as they are identical in principle.

It appears that the defendant, Ray O. Moore, stole the wool in Tarrant County and carried it to Bosque County, where he contacted the witness, Smith, and requested Smith to help him sell the wool. That Smith got in touch with defendant, Hill, and Hill came down to Smith’s place of business with a motor vehicle, transferred the wool from Moore’s vehicle to his and carried the wool to his (Hill’s) place of business, where it was weighed, and that Hill gave Smith a check, payable to Moore, in the sum of $376.77, which Moore cashed and paid Smith for his services out of the proceeds. Moore made a written statement and confession of the transaction.

Any oral statements made by Moore to the witnesses Smith, Frank and Watson, or either of them, touching the transaction, and such stateménts being admissions against interest, and made by a party to the suit, were admissible against the defendant, Moore.

If the defendant, Hill, wanted this testimony limited, he had a right to request the court to so instruct the jury, but this he did not do, and he cannot now complain because it was admitted.

We recently had this question before us. See Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed—correct judgment.

What we have said of oral statements is equally applicable to the written confession made by Moore.

The assignments of error are overruled.

There is no merit in the 6th assignment of error. Under no phase of the case was Hill entitled to a peremptory instruction.

The record is replete with evidence showing that appellant, Hill, bought the identical wool, the conversion of which is involved here. Hill’s testimony, standing alone, shows that he bought certain sacks of wool “from Moore, through Smith”, and that he paid the exact sum which Smith testified was received for the wool, and Smith’s testimony, standing alongside of Hill’s admissions, even if we disregard other evidence, would render the trial court powerless to instruct a verdict for Hill.

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: CODY, Justice.

license: Public Domain

text:
    SPEARS et al. v. CITY OF SOUTH HOUSTON et al.
    No. 11021.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.
    Rehearing Denied Feb. 29, 1940.

      J. S. Bracewell, of Houston, for appellants.
    J. E. McWhorter, of South Houston, and Sewall.Myer, of Houston, for appellees.
   CODY, Justice.

The trial court sustained a general demurrer to that portion of plaintiffs’ pleading which sought a temporary injunction.

The petition shows that the suit is brought by resident taxpayers of the City of South Houston, which is incorporated under general law, against the city officials to enjoin them in the respects hereinafter indicated, and for the recovery of $16,000, alleged ' to ■ have been misappropriated and misapplied, and for the removal from office of such officials. The city is made a party defendant, as well as two banks, which are alleged to be the city’s depositories, and also on.e of the city’s bondholders.

The petition alleges that the officials are under bond, and the amounts of the bonds; and that the city has an outstanding bonded indebtedness in the sum of $258,000, consisting of three issues, as follows:

in the sum of. $123,000.00

And that the city had cash on'hand in the general fund at the beginning of the •fiscal year, July 1, 1938, in the sum of $448.-22. That on September 14, 1938, the city council by ordinance adopted a certain tax levy, levying a tax of $1.50 on each $100 valuation of all of the taxable property within the city, apportioned as follows:

Sewer Bonds,.55
Waterworks Extension Bonds,.15
City Hall Bonds,.17
Refunding Bonds of 1934,.42
General operating fund, .21

The petition alleged that prior to the passage of said taxing ordinance the city had authorized the issuance of City Hall Bonds, but same were never issued and on November 21, 1938, the City Council purported to, but did not in fact, rescind said issue; that by said taxing ordinance defendants were obligated to observe the apportionment therein set forth, and to place the amounts so appointed in the respective sinking funds for each of said issues, out of the taxes for the year 1938. The petition alleges with particularity that this was not done, but that the amount of taxes collected for the year 1938 which should have been apportioned to sinking funds, but which were in fact disbursed as the general operating fund of the city, was in excess of $16,000, and that thereby all of said officials had misapplied and misappropriated the taxes levied for the interest and sinking fund accounts provided by the ordinance on the bond issues above set forth. The petition alleges that the defendants expended unlawfully the 1938 taxes which had been levied for bond purposes, as follows: Commission for sale of bonds, $6,028.75; attorney’s fees, $3,500; to the mayor for services over his fixed compensation, $1,897.50; to Tom Hodge for services claimed to be in connection with the issuance of bonds, $2,700; and other smaller items for stenographic hire, for printing and miscellaneous expenditures. That all of said expenditures were far in excess of anticipated revenues for the general operating fund, and even if the expenditures were otherwise proper, they could not lawfully be taken out of taxes levied for the interest and sinking fund accounts, and same constituted a deliberate diversion and misapplication of funds, which plaintiffs are entitled to recover for the use and benefit of the city. The petition further alleged that there was expended through said general revenue account for the fiscal year ending June 30, 1939, the sum of $34,113.56, same being an overdraft of all revenues received (after transferring $1,700 to the refunding bond account) in the sum of $1,575.03.

The petition then alleges that the obligations payable out of the general revenues of the current fiscal year far exceed such anticipated revenues, alleging that such general revenues will aggregate not exceeding $14,500, which will be required for the economical operation of the necessary functions of government; and that in addition, the city owes a bank a note for $5,000, and other accounts of approximately $5,000 payable out of the general fund; that unless restrained the defendants will expend funds and incur additional obligations far in excess of anticipated revenues for the current fiscal year.

The petition then alleges that plaintiffs have notified defendants not to place any of the taxes levied for interest and sinking funds to the account of the general revenue fund or expend same other than lawfully, and such notice and demand was made in writing'but defendants have refused to desist from such acts or to answer said written demand or give any assurances that they will not continue to misappropriate and misapply funds levied for interest and sinking fund purposes, and these plaintiffs believe that said course of conduct will continue in the future unless restrained. A tax of $1.50 on the $100 valuation for the year 1939 has been duly levied, 43 cents b§ing for general fund and $1.07 for interest and sinking fund purposes, ahd that all of the taxes so levied for interest and sinking fund will be deposited in the' general fund, as heretofore, and misapplied, and that a far greater ■ sum has been. misapplied than is covered by the "surety bonds of the officials.

The petition further alleges that plaintiffs furnished defendants with a copy of their original petition and therein sought no relief against the City of South Houston, but sought relief only against the officials, and the city was made a party only because recovery was sought in its behalf, but pursuant to their purpose to squander the revenues of the city that appellees employed the Honorable Sewall Myer, an eminent attorney of the Houston Bar, to represent the city, though it has a regular attorney, competent in all respects, and the employment was made in bad faith, that is, the employment was made in fact for their own defense and to resist the claims made on behalf of the city, and the defendants are jointly and severally liable to repay the fee paid to employ said attorney; and that unless restrained, defendants will pay large additional sums belonging to the city' under the guise of defending this suit, but in fact to defend themselves against the claims against themselves.

The prayer, as relates to the temporary injunction, is for enjoining defendants from apportioning said taxes other than as set forth in said ordinances, or placing any taxes collected for interest and sinking fund purposes to the. general fund of the city, or expending same as such, or from directly or indirectly making any expenditures from or. creating any obligations against the general fund beyond the reasonably anticipated revenues for such purposes for the current year, or .paying- any other costs and expenses of this case except as directed by the court.

Taxes which are levied, assessed and collected for sinking fund and interest may not lawfully be diverted to the general fund of a municipality and expended for general purposes. Art. XI, Section 6, of State Constitution-Vernon’s Ann.St.; Art. 1040, R.S.1925; City of Sherman v. Williams, 84 Tex. 421, 19 S.W. 606, 31 Am. St Rep. 66. See also City of Austin v. Cahill, Tex.Civ.App., 88 S.W. 536, 537, and Article 839, R.S.1925 and Art. 2565, Vernon’s Ann. Civ. St. art. 2565. Any asserted power of transfer of tax money from one fund to another “and the consequent expenditure thereof for a, purpose essentially differ-' ent from that for which, ostensibly, it was taken from the taxpayer, effectually is inhibited and nullified, in law, by reason * * *. that our Constitution itself. — to say nothing óf our statutes — specifically has designated and permitted the creation of each such separate fund, and for each expressly and specifically has prescribed a separate maximum, tax rate. Utterly and radically at variance with those provisions is the whole conception of a transfer of money from one to another such fund, and its consequent application accordingly.” Carroll v. Williams, 109 Tex. 155, 202 S.W. 504, 507. It is clear, therefore, that the City Council was without power to authorize the transfer of tax money, collected on a levy made to service an outstanding bond issue, to the general operating fund. And a taxpaying citizen has such an interest in having tax money devoted to the purposes for which it was assessed and collected that, in a proper case, he can qualify for an injunction against its unlawful ■ diversion. Terrell v. Middleton, Tex.Civ.App., 187 S. W. 367. Since the court sustained a demurrer to so much of plaintiffs’ petition as sought a temporary injunction against defendant (appellee) officials, ■ the sole question is the sufficiency of the allegations of said petition to entitle appellants, as taxpaying citizens of the city, to the temporary injunction prayed for.

Naturally injunctions will not issue to command defendants not to do what it is made to appear to the court that they have already done. Therefore, if .the. allegations of the petition are subject to the. construction that appellants are seeking to have ap-pellees enjoined from diverting tax money which has already been diverted to the operating- fund, and expended, for general purposes (that' is, the allegations relating -to the tax year or 'fiscal year ending June 30j 1939), then the court properly sustained a demurrer thereto.

In so far as appellants seek to have appellees temporarily -enjoined “from directly or indirectly making any expenditures from or creating any obligations against the general fund beyond the reasonably anticipated revenues for such purposes for the current year”, the court was correct in sustaining a general demurrer. What will constitute the creation of “obligations against the general fund beyond the reasonably anticipated revenues for such purposes” is obviously a matter of judgment, and if .a writ of injunction were directed against the city official appellees in the quoted language, it would be defective for failure to lay down a definite test by which to know what they could or could not do. A writ of injunction should be certain and clear in its terms that the defendant may readily know what he is restrained from doing and what he must obey at his' peril. Royalty v. Strange, Tex.Civ.App., 204 S.W. 870. Appellants, in such respect, are seeking to control the city officials in the exercise of powers of government which has been entrusted to them by law. And this court, speaking through Justice Graves said, in Mayer v. Kostes, Tex.Civ.App., 71 S.W.2d 398, 401, “By universal recognition in the domain of equity jurisprudence, the control through injunction by a single litigant, professedly acting only in a representative capacity pro bono publico, of the official acts of those intrusted with the powers of government, is a drastic procedure, and one who essays such a rule must bring his undertaking strictly within the requirements of the position he so assumes; no mere difference of opinion on his part with the public policy or official discretion involved being permissible.” If the court were to command the city officials not to make “any expenditures from or create any obligations against the general fund beyond the reasonably anticipated revenues for such purposes”, it would only be commanding them to do what the law has already commanded them to do, and entrusted to their judgment. But a writ of injunction in such language would not be certain and clear in its terms so that the defendants could readily know what they are restrained from doing and what they must obey at their peril.

■ The court’s' refusal fo enjoin' the city officials from paying any expense or costs of this case except as the court might order was also correct. Conceding the truth of all the allegations of fact in appellants’ petition as required in testing the sufficiency of a pleading, we believe that the action of the city officials in defending this suit is a matter addressed to their • official discretion. This suit is brought against the officials for their official acts, and the city is made a party defendant. Appellants are in effect asking that the court suspend the city officials from exercising their official and governmental functions, or control same, inclusive of defending this suit, during the pendency of such suit. The mere fact that appellants ask no relief against the city does’ not deprive appellees of their official connection with the city. ' It is in respect to this official connection that appellants are seeking to control appellees, that is, to control their official actions, actions for which they are answerable to the city. It clearly appears that, in addition to a suit for damages against the city officials and for their removal, that the suit is one to control such officials in the administration of the city’s affairs during the pendency of such suit. It is obviously a conclusion of the pleader that in resisting the suit appellees are acting only in their own interests, and not in the interest of the city. To us it seems clear that the city is a necessary party. But appellants have themselves made the city a party, and as it i's clearly the responsibility of the city officials to determine whether, when the city is a party defendant to a suit, it. will or will not defend against it. The court correctly refused to substitute its judgment for the discretion of the officials by sustaining a demurrer to the petition in so far as it sought to enjoin “paying any other costs and expenses of this case except as directed by the court, pending a hearing hereof.”

Does the petition state a case which, if true, would entitle appellants to an injunction restraining appellees “from apportioning said taxes other than as set forth in said ordinances or placing any taxes collected for interest and sinking fund purposes to the general fund of said City of. South Houston, or expending the same as such. * * * ” ?

The Legislature has provided a legal remedy for enforcing compliance with the legal duty of apportioning taxes to the purposes for which they have been levied. Art. 1015, section 42, provides, with reference to special funds: “To provide by ordinance special funds for special purposes, and to make the same disbursable only for the purpose for which the fund was created. Any officer of the city misappropriating- said special fund shall be deemed guilty of malfeasance in office, and shall, on complaint of any one interested in said funds misappropriated, be removed from office, and be incapable thereafter to hold any office in said city.” In so far as the present suit is brought for the conviction of malfeasance and removal of appellees from office, it appears to be brought under this article. Appellants have alleged, we believe, no reason for delay in resorting to this remedy of removal for. the misapplications alleged to have occurred a year and a half ago.- The misapplications, complained of specifically, occurred in 1938. The removal of an officer from office for malfeasance is a simple remedy, and -works no injustice. 'But to undertake to control an officer in the exercise of his official duties 'by temporary injunction is a matter of the greatest delicacy, and might work the gravest'injustice. In the present case, for ■instance, appellants in effect concede that they have failed to specify what acts of misapplication are threatened, and which will be done by appellees with reference to the 1939-40 tax money, unless restrained pending the trial. They affirm that in the nature of things they are unable to specify such acts any more specifically; and they contend that this apparent defect in the allegations is cured by the specific references to the misapplications made of the tax money in 1938, such as commission on the sale of bonds in the sum of $6,028.75, .and attorney’s fees in the sum of $3,5Q0, etc., on the one hand, coupled with the allegations that appellants notified appellees in writing to desist and refrain from placing the taxes levied for interest and sinking fund purposes to the account of the general fund or expending same other than as authorized by law, and that appellees have failed and refused to desist from such acts or to give assurance that they will not continue to misappropriate and misapply funds, etc.,- on the other. In support of this contention appellants cite the case of Commissioners’ Court of Henderson County v. Burke, Tex.Civ. App., 262 S.W. 94. It does not appear that the case referred to was one to remove defendants from office for malfeasance; and it is made to affirmatively appear at the time an attempt was made to have the cause advanced on the docket of the Court of Civil Appeals, that the appeal was from, the action of the trial court granting a permanent injunction after a trial had on the merits. Id., 255 S.W. 793.- That alone is sufficient to distinguish that from this case. In the instant case appellants have charged appel-lees with malfeasance in office, an offense which, if appellees are proved guilty, will result in a removal from office and a partial loss of rights of citizenship. Appellees cannot be required to say they will cease misappropriating funds as charged on penalty of being enjoined by the trial court during the pendency of the suit, for, as put, that would be an admission that they had misappropriated-funds. To be required to say they will cease being guilty of malfeasance is to be required to accuse themselves. The failure of appellees to say they will cease doing acts they are accused of as the basis for removal from office, can scarcely form the basis for the court, to grant a temporary injunction, ágainst appellees doing', during the pendency of the suit, acts of the same character as that for which the suit is brought to remove appellees from office. Such an action by the trial court is tantamount to a finding by the trial court that, unless restrained by a temporary injunction, appellees will, during the penden-cy of the trial, be guilty of acts for which they ought to be removed from office. And such an action on the part of the court would tend to lead the jury, when the merits were tried, to conclude that appellees were guilty as charged. In such a case as this, where a suit seeking a temporary injunction against defendants is combined with a suit to remove such defendants from office, there can be no relaxation in the rule, “In a suit for injunction, the allegations of fact should be direct, certain, and particular and, if they are in this respect insufficient, we think the defect is not corrected by the addition of conclusions of either fact or law.” Pearson v. Black, Tex.Civ.App., 106 S.W.2d 787, 789. See Gillis v. Rosenheimer, 64 Tex. 243, 246. We are not at all sure that a temporary injunction would lie at all where the granting of it would indicate to the jury, before the trial on the merits, that the judge believes that defendants would be guilty of acts, unless restrained,' for which their removal from office is sought. But where the basis of the inference which the pleader desires to have drawn is that defendants will do, during the trial, the acts they are accused of, because they will have, a chance to if not restrained, etc., the Tule of pleading as applied to injunctions applies in full force. And the court did not err in sustaining the demurrer in the connection just discussed.

Believing the action of the trial court was not erroneous, the judgment below, appealed from, is affirmed.

Affirmed.


author: WILLIAMS, Justice. ' .

text:
    JOHNSON et ux. v. WOOD.
    No. 5482.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1940.
    Rehearing Denied March 7, 1940.
    Jack E.. Price, of Longview, for appellants.
    Harrington & Harrington, of Longview, for appellee.
   WILLIAMS, Justice. ' .

Appellee R. M. Wood, and appellant Dutch Johnson, on March 5, 1928, entered into an agreement in which Wood agreed to convey by warranty deed to Johnson Lot 5, Block 52, Gladewater, Texas, upon Johnson’s payment of a purchase price of $125. This was to be paid $10 cash, the receipt of which was acknowledged, and the remainder in 23 monthly installments of $5 each, due on the first day of each month thereafter, with 10% interest per annum on deferred installments. Johnson was to pay taxes levied on the lot subsequent to the year 1927. The contract further provided that upon failure to make any of the monthly payments or the performance of any of the other covenants, including the agreement to pay taxes, Wood could cancel the contract by giving Johnson ten days -written notice of his intention to cancel; it being therein agreed that ten days was a reasonable and sufficient notice; that time was of the essence of. the agreement, and that any payments received prior to such rescission should be by the parties considered as liquidated damages retained by Wood. The $115 to be paid was evidenced by a note executed by Johnson payable to Wood and provided for the installment payments with interest.

Plaintiff plead he and defendant Johnson made above contract on March 5, 1928, setting out the contract in full. And alleged that thereafter Johnson defaulted in the payment of all monthly payments which became due after April 12, 1929, and failed to pay taxes due for 1928 and 1929; that defendant refused to pay after repeated demands; that thereafter on or about October 15, 1930, plaintiff gave defendant written notice of his intent to cancel and determine the contract and after the expiration of 10 days therefrom plaintiff re-entered and re-possessed the premises. Plaintiff alleged further that after his termination of the contract, defendant asserted no right, title or interest thereto until on or about February 9, 1932; that on this last-named date Johnson took a copy of the contract before a notary public and acknowledged same and caused it to be recorded in the Deed Records of Gregg County; that this recordation constitutes a cloud upon the title. He alleged he was the owner in fee simple of the lot and prayed that he be decreed the owner and for removal of this cloud cast upon his title. This suit was filed January 27, 1937.

On January 6, 1938, defendants, Johnson and his wife, filed their first amended answer and cross-action in which they plead that Johnson had paid in full all sums due under the contract to one Dr. Walker to whom the note had theretofore been assigned by Wood, and to whom Wood' had instructed defendant tov continue his payments. In this connection defendant alleged he had cleared and fenced a ■ certain tract of land of Dr. Walker under an. agreement that Walker credit him with all sums due under the sales contract and pay to Johnson the difference; that he completed this labor in April 1929; that the value of this labor was far in excess of the amount due by Johnson on the con-, tract; and prayed that plaintiff take nothing. His cross-action was in trespass to try title. To this plaintiff pleaded in a supplemental petition that the contract had been rescinded and terminated in 1930, and all rights of defendant thereunder ceased and defendant is now barred by the four years statute of limitation from asserting any claim under and by virtue of said contract.

Johnson went into possession of the small shack on the lot shortly after this agreement was made. After some monthly payments had been made to Wood and credited by him on the note, he endorsed, assigned in blank and delivered the note to one Dr. Walker, as collateral security for money borrowed. Johnson was advised of this transfer and instructed by Wood to make his future payments to Walker. Defendant offered evidence in support of his claim that he had paid all obligations to Walker that were due under the contract. He testified that in January 1929, he made a trade with Walker to clear up a certain tract of land and fence it, and for this, work Walker-had agreed to pay him $250 by first crediting the amount due on the contract and to pay him the difference; that he fully completed this work in April 1929; that after he completed the- work Walker put him off and failed to give him credit on the sales contract or to pay him. a. balance still left due him. Walker is now dead. The jury found that defendant did not fail to make all the monthly payments, and did not fail to pay the taxes for 1928 and 1929 on or before November 1, 1930; that he made the trade with Walker to clear the.land and Walker agreed to credit the note with amount sufficient to satisfy the debt due on the sales contract, but Walker had, refused to credit the note. The jury further found that Wood knew nothing of the alleged agreement between Johnson,and Walker. .. ■

The note offered in evidence shows a total credit of $65, the last being on April 12, 1929, fo.r $10; Some of these payments were credited by Walker. Wood testified that Walker represented to him that Johnson had made default in meeting the monthly installments and demanded of him to make good under his endorsement. Wood gave his check to Walker on October 15, 1930, for $56.70, the amount Walker claimed to be due on the note, and it was re-delivered to Wood. In November, 1931, Wood paid the taxes for 1928 and all subsequent years. The jury found that Wood on or about October 15, 1930, mailed notice to defendant of his intention to cancel and terminate the contract and that Wood took possession of the premises on or about November 1, 1930, and has remained in-possession to the present time. Since November 1930, Wood collected the weekly rentals for the shack on. the lot; erected an additional tenant house; later, in 1934, tore both down and removed them preparatory for drilling operations. The evidence does not disclose that Johnson exercised any control or possession of the property subsequent to November 1930, or asserted any claim to or interest in the property until February 9, 1932, on which date he went before a notary public and acknowledged one of the copies of the contract agreement and caused same to be recorded.

The court, without disturbing any jury finding, entered judgment which awarded plaintiff title and possession of the lot and removed the cloud ’ cast-' upon1 his title by reason of the recordation of this contract. This action of the court is sustained. At the same time this agreement was entered into, Wood owned the fee simple title to the lot- This title did not pass out of him. This contract did not convey or attempt to convey any title ’ to Johnson. Plaintiff contracted to convey if and when certain conditions were performed. Johnson pleaded and offered proof that he had performed by April 1929; His cause of. action for specific performance;then arose. He asserted .a legal action for specific performance for the first time in January-1938, when -he filed his first amended original answer. This was more than eight years ■ after his cause of . action accrued. Notice of plaintiff’s refusal or failure to, convey by deed was brought to Johnson, when, as found by the jury, he received notice that Wood had rescinded and terminated the contract and had re-possessed the property. This occurred in October or November 1930. Article 5*531, R.C.S. of 1925, reads: “Any action for the specific performance of a contract for the conveyance of real estate shall be commenced within four years next after the cause of action shall have accrued, and not thereafter.” Plaintiff pleaded the provisions of this article in bar to the action asserted by defendant. It was incumbent upon Johnson under this record to first legally sustain his action for specific performance before he could successfully maintain in this or a subsequent suit an action for trespass to try title. McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315, 319; Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025; Knapp v. Read, Tex.Civ.App., 21 S.W.2d 705; Chamberlain v. Boon, 74 Tex. 659, 12 S.W. 727, 729.

. The judgment is affirmed.


author: GRAVES, Justice.

text:
    SCANLAN et al. v. CITY OF HOUSTON.
    No. 11029.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.
    Rehearing Denied March 7, 1940.
    Walter F. Brown, of Houston, for appellants.
    Sewall Myer, City Atty., and Vernon Coe, Spurgeon Bell, Will Sears, and A. L. Lewis, Asst. City Attys., all of Houston, for appellee.
   GRAVES, Justice.

This appeal, brought to and advanced for hearing in this court, pursuant to R. S. Article 4662, is from an order of the 113th District Court of Harris County refusing the appellants a temporary injunction against the appellee restraining it from proceeding with the pavement it had previously determined upon of land it found constituted the unpaved portion of Fannin Street in Houston, frbm the south property line of Calhoun Avenue to the north property line of Pierce Avenue; such unpaved portion lying on the west side of. Fannin Street, between those two avenues, and abutting appellants’ property, known as. Block 404 of such City.

The challenged order was entered by the court, after a full hearing of pleadings and evidence from both sides, but otherwise than as recited in the decree itself, was not supported by filing findings of either fact or law.

The recitations referred to, in so far as deemed material, were as follows:

“Whereupon the Court having considered the said pleadings, evidence and argument of counsel, announced * * * that the plaintiffs were not entitled to such temporary injunction,, provided that the defendant, City of Houston, acting through its duly authorized Mayor and City Council, would within five days file an agreement to prosecute with due diligence this suit to final judgment, to not attempt to discontinue the said suit until final judgment is entered, to prosecute its cross-action seeking in the alternative to condemn the land in dispute east of the fence on Fannin Street, in 'the event that a final judgment was entered adjudging the land in controversy to the plaintiffs, and in such event to pay the amount awarded in the condemnation proceedings as damages to the plaintiffs, which said agreement was to further expressly waive any question of invalidity of the agreement by reason of the court not requiring the City to put up any amount of cash or bond or other security.
“Now, on this 13th day of December, 1939, it appearing to the court that the City of Houston has duly and legally caused to be executed the said agreement and has filed the same with the Clerk of the Court as a part of the record in this cause, and the Court having examined the same and approved such agreement,
“It is therefore ordered, adjudged, and decreed, that the petition of the plaintiffs, Lillian Scanlan and Stella Scanlan, praying for a temporary injunction against the defendant, City of Houston, be aftd the same is in all things refused and denied, to which ruling the said plaintiffs except and give notice of appeal.”

The single question the appeal presents is whether the court abused its discretion in thus refusing the writ. Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S. W.2d 537, at page 539, column 2, and authorities there cited.

In insisting here that the quoted order did go beyond the bounds of a sound judicial discretion, in denying them the coveted writ, the appellants do so upon the ground that the threatened paving, if permitted to be carried out, will forcibly take from them a strip of about 20 feet by the entire length of the block off of the east side of their Block' 404, which they claim to be not only the owners of in fee simple, but to have been in peaceable and adverse possession of against the world at all times since the year 1871, describing such property as follows:

“Block Four Hundred and Four (404) of the City of Houston, Harris County, Texas, and of all land lying between Pierce Avenue and Calhoun Avenue and extending Southeast from Main Street to the concrete curb as it has existed for many years along the Northwest line of Fannin Street, the said curb being the curb which extends from Pierce Avenue to Calhoun Avenue Southeast of the old line of trees on the Southeast part of said property.”

In answer, the appellee insists that such evidence showed the disputed strip to have been a part of Fannin Street, under dedication thereof to public uses as such, from at least the year 1898 to the time of this hearing.

So that, as between these two contentions, the controversy is to be determined from what the evidence does show, each side claiming it to have been undisputed in its own favor.

In such a proceeding, this court, in the cited Scanlan v. Houston L. & P. Co. cause, supra, at page 540 of 62 S.W.2d, in which writ of error was refused, thus stated the principle in accordance with which the evidence must be appraised: “ * * * as stated in section 253 of 24 Texas Jurisprudence, supra, the rule is that, ‘if the order was based on conflicting evidence or diverse inferences, it will not be disturbed. The evidence is not reviewed for sufficiency, as it would be upon appeal from a final judgment, but only to see if it supports the court’s exercise of discretion.’ ”

When this evidence is measured by that standard, it seems plain that no -such abuse is shown; this for the main, reason' that, taking the body of the testimony as an entirety — it was at least susceptible- of,if it did not require of the learned -trial court, these among other findings:

(1) That this disputed strip of property abutting block 404 along its entire eastern' side, had in fact been- a part of Fannin Street, which at all material times1 had-been a public highway within the corporate limits of' the City of Houston, from about the year 1898 continuotisly until the entry of this order;

(2) That, perforce of the acts and conduct of the predecessors of appellants, as well as of appellants themselves, a dedication of it as such a public highway within the corporate limits of Houston, had come about from practically the same time, that is, from about 1898 or 1899, to the date of this trial.

(3) That, in consequence, such uses and services as appellants were shown to have subjected such strip to, did not in any sense constitute a proprietary possession thereof by themselves, as against the right of the public and the appellee as the governing body thereof to so appropriate and use the same as a public street.

These briefly stated features of the evidence, taken partly from the testimony of appellant, Miss Lillian Scanlan, are thought to support the court’s exercise of the discretion its action reflects.

The Scanlan family moved upon block 404 in 1892, there being then a fence on its Fannin Street side, a little further out east than where the present concrete curb exists; Fannin Street was then untravelled except by street-cars; in 1898 the Scanlans removed that fence and placed it back on the line where the present fence now stands, which is 20 feet, more or less, west of such concrete curb, which appellants claim is still the east boundary line of their block 404; after the fence was so set back in 1898, or maybe in 1899, a. cjnder-path was constructed by .the Scan-lans just outside of it to the east, along its whole length, for the convenience of people generally coming through there; there being from 1898 on to the present nothing to the east of such fence to obstruct the use of the strip by the public generally; appellants’ father, Mr. T. H. Scanlan, at one time mayor of Houston, died in 1906 (their mother having died in 1898), Miss Lillian Scanlan testifying that she had never heard her father, while living, assert any claim to this disputed strip of land lying between the present fence and curb, respectively; further, that she and her sisters (of whom the present appellants are the successors in interest) asserted such a claim in their conversations. She further testified that she and her sisters in 1916 built a new fence (the present one in its present location) on the line of the former fence their father had so built in 1898, and at the same time, that is, in 1916, constructed a permanent sidewalk adjacent to their new fence for the entire length of their block, the position of which was and is a little further back toward that fence than was the former cinder-path referred to, supra. The use the Scanlans made of the disputed strip, during all the years, lying thus open as it did, may be epitomized in this further statement of Miss Lillian Scanlan on that feature: “We planted grass and watered the trees and trimmed them and planted flowers and tied the cow out in the early days.”

In addition, appellants have pointed to no testimony of surveyors, engineers, or others — in so far as this court has perceived — showing or tending to show that the easterly line of their block 404 is in the location claimed by them, that is, coincident with the concrete curb referred to supra; whereas, on the contrary, the evidence presented by the appellee from ancient maps of the City, like the Tipton Walker and Wood maps, the former dated 1845, the latter 1868, as well as one made by Surveyor Moscowitz and offered in connection with his testimony at this trial, all without controversion, at least strongly if not conclusively, tend to show that such eastern line of the Scanlan block 404 had never at any time throughout the record history of that area, gone further out than, about the location of the 1916 fence of the Scanlans; that such block substantially conformed to the general plan of the City in that area, lining up its east line with like lines of the blocks both to the north and. south of it; indeed, Surveyor Moscowitz testified and well-nigh demonstrated from his own survey made of the property for the purposes of this suit, that the present sidewalk so placed by the Scanlans east of their fence in 1916 is in almost exact-line with the sidewalks along the east lines of the blocks both to the north and south of such block 404; in other words, this-witness, after allowing for deviations of a few inches here and there, testified undis--putedly that the boundaries of Fannin; Street were in a straight line, following a. general conformation to the other blocks along there, all the way from Hadley Avenue on the south to Buffalo Bayou on the north; his summarized statement being-that the width of Fannin Street for such entire length, as actually laid out, recognized, and used on the ground, was 80-feet without material offset or encroachment; and that, throughout the history of block 404, as shown by such maps and his. own survey, its east line appeared as being. about coincident with the line of the fence so erected by Mr. T. H. Scanlan in 1898. In fact, it appeared without dispute that not only had- Mr. Scanlan bought that block by reference to the Tipton Walker map, but, as a member of its City Council in 1868, he participated in the adoption of the Wood map, which exactly conformed to that of Walker, as Houston’s official bne for future use.

Under the law, as applicable to such a state of facts, it is thought no other judgment than the one entered could properly have been rendered;, further, that such facts distinguish this cause from San Jacinto Construction Co. v. Scanlan, Tex. Civ.App., 300 S.W. 220, upon which appellants strongly rely, and bring it rather under the rules applied by this court in Scanlan v. Houston L. & P. Co., Tex.Civ.App., 62 S.W.2d 537, writ of error refused, cited supra, and Coombs v. City of Houston, Tex.Civ.App., 36 S.W.2d 1066.

In the San Jacinto Construction Co. v. Scanlan case — unlike this one in being without a statement of facts — the conclusive presumption of law required the holding that the judgment was properly supported; whereas in this instance, as indicated, the facts before the trial court have all been brought up, and — it is thought— were clearly sufficient to justify, if not to require, the previously stated findings to the effect that this strip had constituted a part of Fannin Street, and that a dedication of it for such public uses had been •shown.

Wherefore, the strip having been a dedicated part of Fannin Street at all material times, such possession and use of it as appellants may have had become immaterial, since they never could have nor did acquire any right or title therein by adverse possession or occupancy. Coombs v. City, supra, and authorities therein cited.

‘ It also follows, upon the same considerations, that no right of appellants vouchsafed under Art. I, Section 17, of the Texas Constitution, Vernon’s Ann.St., was violated, no property of theirs having been liere involved; nor was the quoted recitation in the judgment, which appears to have been an attempt to apply the provisions of R.S. Article 3269, Vernon’s Ann.Civ.St. art. 3269, of any controlling effect; this for the reason that the hearing was one for temporary injunction only, and did not finally dispose of the whole cause on its merits, nor adjudicate the title to the land; the court had the power, since it heard the evidence of both parties fully, as well as the pleadings, to dispose of the issue as to a temporary injunction, independent of that statute.

Without further discussion an affirmance will be entered.

Affirmed.


author: SMITH, Chief Justice.

text:
    PETROLEUM PRODUCERS CO. et al. v. STOLLEY et al.
    No. 10733.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1939.
    Rehearing Denied March 6, 1940.

      E. G. Lloyd, Jr., of Alice, Linebaugh & Guittard, of Victoria, and Kilgore & Rogers, of Wichita Falls, for appellants.
    ■Gerald C. Mann, James Noel, Polk Shelton, and Henry H. Brooks, all of Austin, for appellees.
   SMITH, Chief Justice.

The property involved in this suit consists of a strip of land three miles long and fifty-one varas wide at one end and fifty-six at the other, comprising fifty-six acres, in Duval County.

Appellees contend, while appellants deny, that the disputed strip is vacant public land lying between the Alexander League (survey 102) on the north, and surveys 78, 211, 212 and 215 on the south. Survey 102 is the senior survey, and 78, 211, 212 and 215, the junior.

The Commissioner of the General Land Office had leased the strip to R. R. Stolley for oil and gas purposes, and Stolley, joined later by the State, brought this suit in trespass to try title to establish the claimed vacancy and sustain his lease from the State. .

J. B. Wood and tibe heirs of James F. Welder, .claiming the fee in the land, and their lessee's, Petroleum Producers Company and United Producers Company, were named as defendants below.

A jury trial resulted in judgmént in favor of the plaintiffs below, and the defendants have appealed. The parties will be herein referred to as plaintiffs and defendants, respectively, as in the trial court.

The Alexander League, or .survey 102, was located in'the year 1878, by John J. Dix, then County Surveyor of Duval County, “based on actual ground work done in the field -during November, 1875, as reflected by his field notes.”

‘On the other hand, the mentioned surveys oil the south, 78, 211, 212 and 215, were located two years later, in 1880, by A. M. French, through office surveys within a traverse made on the ground by him. At the times of • both senior and junior surveys, Dix and French were partners in their professional work. Both partners died prior to the trial of this cause and therefore neither could testify thereat.

The controlling question in the case was made to turn below on the issue of whether Dix marked the southwest corner of survey 102 with a stake and mound at the time he located that survey, as evidenced by his field notes returned on October 8, 1878. The jury answered that issue in the negative.

Both parties in their oral argument in this court contended that under the evidence the issue is one of law rather than of fact, plaintiffs, upon whom the burden rested to negative the issue, claiming that the evidence was conclusive that Dix did not so mark that corner, while defendants contend with equal vigor that there was no evidence, or at least insufficient evidence, to sustain the adverse finding. The vital question calls for a minute and exhaustive study of the somewhat complicated evidence covering nearly 700 pages of the record. ■ .

It is conceded by all the parties that an excess exists in the Alexander League, regardless of whether the disputed strip is excluded from or included within the grant, and therefore the matter of acreage' can have no bearing upon this appeal.

Plaintiffs contend that the disputed strip comprises a vacancy between the Alexander League on the north and surveys 78, 211, 212 and 215 on the south, while defendants contend that the strip lies within the League and is included in the grant thereof —that the south boundary of the League coincides with the north boundary of 78, 211, 212 and 215. If surveyor John J. Dix placed a stake and mound, as' the southwest corner of the League in 1878, at the point claimed by defendants, but denied by plaintiffs and negatived by the jury finding, then under the theory of both plaintiffs and defendants, and adopted by the trial court, the claimed vacancy does not exist, and plaintiffs have no cause of action; otherwise, they have.

It is impossible in this opinion to undertake an analysis of all the evidence upon this issue, and yet to attempt even a summary of any part of it would require a summary of all of it, for all of it presents a composite mass from which no part may be fairly segregated and separately considered, because all are related and each has some bearing on the ultimate issue.

We may say, generally, however, that the evidence upon the issue submitted to the jury consists of literally hundreds of elements. There is' no direct evidence,- other than that gleaned from his field notes, which the jury impliedly -found were made- from an office survey,- that John J. Dix, in 1878, placed the stake and mound at the point claimed by plaintiffs, and rejected by the jury. The nearest approach to direct evidence was made by Hayes Dix, son of John J. Dix, and himself a surveyor. Hayes Dix testified that he accompanied his father when, in 1899, the latter was called upon to identify the southwest corner of the Alexander League in order to fix the beginning point of .a line for a fence; that although the alleged stake and mound marking that corner was located far out in an open pasture of cactus and huisache, his father went straight to those markings, locating them without difficulty, and pointed them out to the witness as the markings he had placed there in 1878, twenty-one years before, as the southwest corner of the League. The witness further testified that in the course of his work as a surveyor he had had occasion to return to that point in 1908, 1914 and 1925, and each time observed the same markings at the same place indicated to him by his father in 1899, and that those markings, although disturbed, are still there in the same location. This evidence supports defendants’ theory, and, if true, expressly and by necessary implication destroys plaintiffs’ case. Plaintiffs do not attempt to impeach that testimony, except in degree, in that they contend, only, that the stone mound was placed on the ground by French in 1880, and (1) that French’s “X” tree witnesses the present location of the mound; or in the alternative (2) that the mound was placed by French at the point witnessed by his “X” tree, and subsequently moved 51 feet west and 6 feet north to its present location.

Plaintiffs undertook to destroy the effect of, and defendants to bolster, that testimony of Hayes Dix, which was sufficient to establish the corner in question at the point insisted upon by defendants, and which, if given full probative effect, would defeat the plaintiffs’ suit. The record, however, presents a great mass of additional evidence, parol and documentary, direct and hearsay; opinion, argumentative, expert, technical, practical; conclusions, assumptions, presumptions, inflections, implications. Numerous surveyors of long practical experience in that and like sections of the State, testified at length upon the issue under scrutiny here. They analyzed the territory and terrain, and applied their knowledge and experience to the issue. They testified to the engineering habits and peculiarities of Dix and French, respectively, their methods of surveying and markings, as well as to the customs of surveyors generally in that section. They sought to follow in theory the footsteps of Dix and French, and to explain, distinguish, question, reject or justify the diverse lines and markings of those original surveyors, respectively. When all that evidence is shuffled and sifted, examined and re-examined, and its separate and diverse parts weighed and considered, it discloses two conflicting theories of fact, the one supporting and the other refuting the contention of defendants that Surveyor John J. Dix, on or before October 8, 1878, marked the southwest corner of the Alexander League with a stake and mound, admitted to be the controlling issue of fact in the case. The jury found against that contention. Frankly, this court cannot say that, upon the bald record, we would have found as the jury did. But that is not the test to be applied upon this appeal. The true test is that made by the jury, upon first hand evidence, adduced before them from living witnesses whose credibility, and the weight to be given their testimony, was determinable by the jury, with the approval of the trial judge. The jury and the trial judge have thus resolved the issue, from a material conflict in the evidence, and that settles the case so far as that issue of fact affects it. We overrule defendants’ first and second propositions in which this aspect of the case is presented.

Defendants’ third proposition is best stated by quoting it:

“The statement of the attorney for plaintiff Stolley, the vacancy claimant, in the closing argument to the jury,
“ ‘I proved by Mr. Jim Wood (defendant owning part of the fee) — I think we get along all right — if we win this suit he is going to have more wells than if we lose it. If he loses it he will have less wells than if we win it. They talk about getting the oil. We think that belongs to the state. If that belongs to the state it is not the Welder heirs’ (defendants owning the remainder of the fee) oil. The state is entitled to its oil like the Welder heirs are entitled to their oil. Mr. Kilgore’s clients, the oil companies, may have to spend money offsetting our wells there. We are not hurting the Welders because the oil companies will have to offset it. Thereby they will get more wells by losing the suit than they will by winning it.’ — by importuning and inviting the jury to consider matters not in evidence, with reference to drilling such offset wells, and by improperly informing the jury of the effect of their answer to the special issue propounded, and by improperly arguing matters of law, aroused and invoked sympathy for the landowning defendants, and prejudice against the oil company defendants, by persuading the jury that an adverse verdict would not hurt but would help the Welder heirs, and would hurt only the oil companies. Hence the trial court erred in refusing defendants’ motion for new trial, complaining of such improper argument.”

Plaintiffs’ counter proposition is that “the argument complained of by defendants’ third proposition represents a fair inference to be drawn from the evidence, and was not reversible error.”

The effect of the argument objected to was that the individual defendants would “get more wells” by losing the suit than by winning it, in that if they lost it the disputed strip would be drilled, thereby forcing their lessees, the corporate defendants, to expend money and drill wells on defendants’ adjoining Alexander League in offset of the wells to be drilled on the strip; that an adverse verdict would not hurt the individual defendants, “because the oil companies would then have to spend money offsetting the” individual defendants’ land. The argument was an adroit appeal to the jury to return a verdict which would give the strip to the State and the individual plaintiff, without injuring, but inuring to the benefit of, the individual defendants, thereby placing the whole loss on the two defendant oil corporations. It was, in our opinion, improper argument, presumably harmful to the defendants, and therefore requiring reversal unless, as plaintiffs contend, it was a proper deduction from the evidence, or was waived by defendants’ failure to timely object to it and by inviting it by adducing related testimony.

The record shows that defendants did not object to the argument at the time it was made, or until defendants included it in an amended motion for new trial. The record further shows that wells have been drilled on adjoining lands, within 330 feet on each side of the disputed strip. Defendants themselves elicited testimony from one of the individual defendants that even though the drilling of the strip would force offset wells on his property, he would not “want that strip through his pasture.” We are of the opinion that the argument, if not warranted by the record, was of such nature that any instruction to the jury thereon by the trial judge would have had the effect of stressing, rather than of eradicating it from the minds of the jury, and that defendants were thereby relieved from the usual duty of objecting to it at the time it was made. But we are of the further opinion that the evidence stated — particularly defendants’ voluntary statement to the jury, that he would not want the strip of vacancy through his pasture even though its segregation would result in the drilling of more wells on his land — warranted counsel in speculating as he did upon that phase of the case. Our conclusion is, then, that defendants’ third proposition does not present reversible error.

Plaintiff Stolley’s claim rested upon his lease from the State, which owned the fee in the strip. That lease contained the usual conditions subjecting the leasehold interest to forfeiture unless Stolley paid the annual rentals provided for in lieu of development, or developed the lease by way of offset wells to prevent drainage. Defendants urge in their fourteenth proposition that Stolley failed to prove he had complied with those conditions in avoidance of forfeiture and therefore failed to establish his case. We overrule the proposition. The vacancy having been established, the State holds the fee, Stolley being a mere lessee under the State and subject to its ownership of the fee. We are of the opinion that in the absence of any sort of affirmative showing to the contrary, we must presume that the lessee is performing his obligations under the lease according to law. But, if the lessee has defaulted in any condition of the lease, the State, only, may complain; defendants, owning no interest in the property, certainly cannot complain. The fact that the State has joined its lessee in prosecuting the suit precludes any presumption that the lessee has forfeited his leasehold interest, and the lessee is entitled to recover along with the lessor.

In their fourth and fifth propositions defendants complain of the failure of the trial judge to direct a verdict for defendants. We overrule the proposition on the ground that the case was one for the jury.

In their sixth, seventh and eighth propositions defendants question the sufficiency of the evidence to support the verdict, and insist that verdict should have been rendered in their favor. Those contentions have already been disposed of in effect, and by implication, and the propositions will be overruled.

Defendants contend in their ninth proposition that the trial court erred in excluding from evidence a certified copy of the judgment roll in.a cause previously tried and disposed of finally in the District Court of Duval County to which none of the parties in this case were parties. Defendants contend that the judgment of the District Court in that case is stare de-cisis of the issue of vacancy in this case. We overrule the proposition for the reason that the parties and subject matters of the two cases are not identical, and that the judgment in the former case can be given no binding effect upon the decision of this case.

In their tenth proposition defendants complain of the admission of the testimony of the witness Dellis to the effect that in his opinion as an expert the southeast corner of survey 102 was not marked on the ground and was a mere office call. There was, and we think could be, no objection to the qualification of the witness to give an opinion in that matter, and, being qualified, we think it was proper for him to state from the facts and circumstances in evidence, and put to him in a hypothetical question, that in his opinion the corner in question was not marked on the ground, but was a mere office call. Moreover, the testimony objected to was in response to like testimony adduced by defendants. We overrule the proposition.

Defendants complain of the admission in evidence of the field notes of John J. Dix to a resurvey of survey 220, adjoining survey 102 on the east. We think the evidence was admissible, if for no other reason, for what, if anything, it might be worth, to show the characteristics, as well as the accuracy of the work, of the surveyor, which was under consideration in the case. In any event, however, even if erroneously admitted, it was harmless and not of such nature as to warrant reversal. This question is raised in defendants’ eleventh proposition, which is overruled. Without discussing them, we also overrule defendants’ propositions twelve and thirteen, as being without merit.

The trial court instructed the jury to answer the special issue “wholly upon the evidence admitted by the court in your presence, and not upon any consideration of any facts or circumstances whatsoever which may be known to you or which may have been learned by you from any source whatsoever other than the evidence admitted by the court.” Defendants complain of this instruction in their fifteenth proposition on the ground that it prohibited the jury from considering matters of common knowledge in arriving at a finding , upon the issue. And in their sixteenth proposition defendants, as an alternative, complain of the refusal of the court to instruct the jury that they could consider matters of common knowledge in determining the issue. In our opinion neither proposition presents reversible error. We think it is settled law that it would have been error had the court affirmatively advised the jury that they could consider matters of common knowledge, or to affirmatively charge them upon the subject, one way or the other. While it is equally well settled that jurors may consider matters commonly known to all men, they may do so only upon their own motion, without suggestion from the trial judge. We think it is, itself, a matter of common knowledge that jurors, in the processes of determining facts, do resort to that character of knowledge, and we think this is true, regardless of general instructions from the judge. In recognition of that fact, we express the conclusion that the trial judge’s instruction in this case, restricting the jury to consideration of facts or circumstances actually in evidence before them, did not have the effect of hampering the jurors in the exercise of the time-honored prerogative, or cause them to shut their eyes and consciences to such matters of common knowledge, if any, as were available to them in the consideration of the one special issue submitted to them. In this connection defendants submit the following as a correct type of charge, as against that actually given: “You are instructed that you must not obtain or receive, and in arriving at your verdict and in your deliberations thereon you must not discuss or take into consideration, any evidence not introduced and admitted upon the trial.” We cannot say that the jury would have been less timid under one charge than the other in resorting to facts of common knowledge in their deliberations. We overrule defendants’ fifteenth and sixteenth propositions.

In their seventeenth and last proposition defendants contend that the finding of the jury in answer to the one issue submitted to them was not sufficient to support the judgment. We overrule that proposition. We are of the opinion that that finding, considered with undisputed evidence upon subsidiary or evidéntiary issues, settled the case, and that the judgment should be affirmed.

After the foregoing opinion was written, and on November 22, 1939, our Supreme Court handed down its opinion in the case of Stanolind Oil & Gas Co. et al., v. State of Texas et al., 133 S.W.2d 767, reversing the decision of the Austin Court of Civil Appeals in that case (114 S.W.2d 699). A careful consideration of the opinion of the Supreme Court leads to the conclusion that it is decisive of the case presented here, and requires affirmance of the judgment of the trial court, regardless of the other questions raised in this appeal and hereinabove discussed. It is not deemed necessary to here compare the two cases, in detail.

It is sufficient to say, generally, that prior to the time the Commissioner of the General Land Office declared the strip of land involved to be unsurveyed public school land, and leased the same to plaintiff Stolley, the defendants filed with the County Surveyor of Duval County, and after-wards with the Commissioner of the General Land Office, their applications to purchase said strip as unsurveyed public school land, accompanying said application with maps and field notes made by said surveyor at the instance of defendants, in which the strip was represented to he a vacancy identical with that decreed in the judgment from which this appeal is prosecuted. Upon the representations in said application, maps and field notes, the Land Commissioner declared the strip to be vacant, and it not being subject to sale on defendants’ application, leased it to plaintiff Stolley.

Under a substantially similar state of facts the Supreme Court, in Stanolind Oil & Gas Co. v. State supra, held that the land owners questioning the existence of the .vacancy, by their representations admitted the vacancy, and were hound by their admission. It is true that in that case the Supreme Court based their decision, in part, upon the conclusion that the undisputed facts disclosed the vacancy, but that premise is met in this case by a jury finding, upon a conflict in evidence, of the controlling facts establishing the vacancy. We conclude that the decision in that case must rule in this, and for that additional reason the judgment of the court below should not be disturbed.

The judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    TRADERS & GENERAL INS. CO. v. GRANT.
    No. 5528.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 7, 1940.
    Rebearing Denied Feb. 15, 1940.
    Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellant.
    Aubery A. Wilson and Samuel C. Harris, both of Gladewater, for appellee.
   JOHNSON, Chief Justice.

This suit was filed by appellee, Roy Grant, upon a policy of insurance issued to him by appellant, Traders & General Insurance Company, on February 21, 1934, covering a certain Ford automobile described therein. The risks insured against included loss of the car by theft. A copy of the policy was attached to and made a part of the petition. The petition alleged that the car was stolen from plaintiff at Glade-water, Texas, on June 16, 1934; that its value was $600, for which plaintiff asked judgment, together with $100 attorney’s fee, interest and costs. Walter Bennett, Inc., owned a series of purchase money notes against the automobile and intervened in the suit, and prayed for judgment against plaintiff and defendant for the amount of the notes. The case was tried to a jury tin special issues. Upon the verdict of the jury the court rendered judgment in favor of the plaintiff against the defendant for $600 with interest at the rate of 10% per annum, from June 10, 1934, and the costs of suit; and judgment in favor of intervenor, Walter Bennett, Inc., against plaintiff for $270 with interest at the rate of 10% per annum from February 21, 1934, and an additional 10% on the amount due as attorney’s fees. No recovery was awarded intervenor against the defendant. From the judgment in favor of the plaintiff against the defendant, the defendant has appealed.

Appellant complains of the action of the trial court in overruling its motion for an instructed verdict, based upon the terms of the policy and the uncontradicted evidence set out below. Appellant further contends that the trial court erred in overruling its motion for judgment, based upon the findings of the jury in response to special issue No. 2 set out below.

The terms of the policy referred to read as follows: “This policy does not cover * * * any loss, damage or expense while the automobile insured hereunder is operated,, maintained or used * * * for the carrying of explosives not used in connection with the operation of the automobile or for -other unusual, felonious, or extra hazardous purposes.”

Plaintiff, Roy Grant, testified by deposition as follows:

“Q. What did you use the car for? A. Hauling — several different things.
“Q. Name some of the things you hauled in the car. A. At that time I was hauling whiskey out of Louisiana.
“Q. Hauling whiskey out of Louisiana? A. Yes.
“Q. For whom were you hauling the whiskey? A. Myself.
“Q. Were you selling whiskey in Glade-water at that time? A. Yes.
“Q. Did you have a license to deal in the sale of liquor? A. No.”

He further testified that the car was parked in front of the Reiio Hotel in Glade-water, Texas, between 8 and 9 o’clock, Sunday night, and that it did not have any whiskey in it, at the time it was stolen.

Special issue No. 2 and the jury’s answer thereto read as follows: “Do.you find from a preponderance of the evidence that the automobile in question was operated, maintained or used, at the time it was stolen (if you have, found it was stolen) for the purpose of transporting whiskey? Answer Yes or No.”

Jury’s Answer: “Yes.”

Article 666 of the Penal Code of this State (repealed by Acts of 1935, 44th Legislature, 2d Called Session, page 1795, Chapter 467, art. 1, § 49, Vernon’s Ann.P.C. art. 666 — 49) which was in force at the time the automobile in question was stolen, made it an offense to transport any spirituous, vinous, or malt liquors or medicated bitters capable of producing intoxication. By Article 689, Penal Code, said offense was made a felony, punishable by confinement in a penitentiary for not less than one year and not more than five years. Courts take judicial recognizance of the fact that whiskey is an intoxicating liquor. ' Maxwell v. State, 121 Tex.Cr.R. 190, 51 S.W.2d 334.

We think that plaintiff’s own statement-admitting; that the purpose for which he was using the automobile at the time it was stolen was that of hauling whiskey out of the State of Louisiana to Glade-water, Texas — a felony — shows that the purpose for which the automobile was being maintained and used was a ‘.‘felonious purpose”, within the clear meaning of that term as used in the policy. That the automobile was parked in front of the hotel and had no whiskey in it at the time did not alter, destroy or affect the purpose for which it was admittedly being used. Nor was such use shown in the testimony to be just an occasional use. To the contrary,, there was no showing that the automobile' was being used for any- other purpose than, as testified to by plaintiff, that he was using it for the purpose of hauling whiskey from Louisiana to Gladewater, Texas.

The judgment of the trial court awarding plaintiff recovery against the defendant will be reversed and judgment here rendered that the plaintiff take nothing as against the defendant, and that plaintiff pay all costs of suit. The judgment in favor of Walter Bennett, Inc., against the plaintiff, Roy Grant, is not disturbed.


text:
    BAIRD v. FESLER.
    No. 10934.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 8, 1940.
    Rehearing Denied March 7, 1940.
    E. R. Berry, of Huntsville, for appellant.
    Charles M. Burdeaux, of Galena Park, for appellee.
   CODY, Justice.

Appellee, who was plaintiff below, brought suit in the county court of Walker County to recover on a contract to repair and install fixtures in a certain residence in Huntsville, Texas.

The allegations of appellee were, in substance, that he entered into an oral contract with appellant to repair, and install new parts and fixtures in a house belonging to appellant in Huntsville. That it was at first agreed between the parties that the total amount to be paid for such repairs, etc., was to be about $450, but it was afterwards discovered that additional parts and fixtures were wanted and that more labor would be required than originally contemplated and1 it was agreed: “That the following items of fixtures would be installed and necessary to complete and fulfill the contract, and necessary to overhaul and properly equip said residence as contemplated by the original contract and by the new and subsequent modification said parts and fixtures with the reasonable, proper and customary price thereof in Huntsville, Walker County, Texas, at said time, together with the reasonable cost of labor required to install same, being as follows(Here follows an itemized list of parts, fixtures, and hours of labor, with the value indicated opposite each listed item.) Performance of the contract by appellee was alleged, as well as the reasonableness of the charges. It was further alleged that appellant had paid on account $393.47, and that there was due an unpaid balance of $334.20.

The list or account of the parts, fixtures and hours of labor, and the value, was not verified.

Appellant answered by general demurrer, general denial and sued to recover damages for the manner in which appellee had done the work, etc.

Upon answers of the jury to special issues, the court rendered judgment in favor of appellee and against appellant for $331.70.

. The evidence, which the court permitted to be introduced over appellant’s objection, of changes and alterations made in the installment of parts and fixtures and of the labor done in connection therewith, was doubtless admitted by the court on the theory that said evidence was in support of the itemized list sued on by appellee. Appellant’s assignment of error that there were no pleadings to justify the admission of such evidence is overruled.

We are unable to see that the special issues submitted are without support in the pleading. By special exception appellant could have required appellee to have specified the details of how and for what the 165 hours of mechanic help, and the 145 hours help were employed. But appellee having pled these hours of labor as items used to make the repairs, under the contract, we fail to see why he cannot be permitted to prove same merely because he did not specify in his pleadings how the various hours were employed.

The objection to the submission of special issufes relative to the reasonableness of the charges for the various items of material furnished and labor performed on the ground that these items and their value were insufficiently established by evidence because not taken up and proved item by item, does not seem to us tenable. We see no reason why a witness who knows the contents of a list of items and the repective 'values of such items may not testify thereto, without taking them up item by item. If the adverse party desires he may cross-examine the witness.

Appellant vigorously contends that in order for a plumber to be entitled to recover on a plumbing contract that he must plead and prove that he has a license to practice that trade. It would seem that none of the plumbers in Huntsville hold licenses. At least none that testified in this case held a license. It would seem that in order for it to be illegal to conduct a plumbing business without a license in a town, such town must either have underground sewers or cesspools, or maintain a plumbing examiners’ board. Brown v. State, 74 Tex.Cr.R. 108, 167 S.W. 348. In the absence of proof that appellee -was carrying on his business illegally, it will be presumed that he was conducting it lawfully. This presumption is the stronger, in that the plumber testifying for appellant, who also lived in Huntsville, testified that he had no license and that none was necessary in Huntsville.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: WILLIAMS, Justice.

text:
    KELLY et al. v. W. C. TURNBOW PETROLEUM CORPORATION et al.
    No. 5760.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1940.

      Clay Cooke, of Fort Worth, and Hurst, Leak & Burke, of Longview, for appellants.
    Edwin M. Fulton and W. C. Hancock, both of Gilmer, and W. C. Linden, Jr., of Longview, for appellees.
   WILLIAMS, Justice.

This is an appeal from a judgment wherein the Special District Court of Gregg County sustained a plea in abatement urged by appellees against the prosecution of this suit because of the alleged pendency of a suit in the 124th District Court of Gregg County. After the perfection of this appeal, judgment in a consolidated suit was entered in the 124th District Court. Appellees further urge the matters involved in this appeal have now become moot. For brevity, the instant suit will be referred to hereafter -as the Kelly suit, the second as the Harris suit, and the consolidated action as the Graddy suit.

A. J. Eilers and R. K. Harris are designated plaintiffs with W. C. Linden, Jr., and Clay Cooke as their attorneys in the Harris suit filed on August 21, 1937, in the 124th District Court. W. C. Turnbow Petroleum Corporation, W. C. Turnbow, W. C. Turn-bow doing business as Turnbow Petroleum Trust, and W. C. Turnbow, sole Trustee, are designated defendants. It is unnecessary to set out the petition, except to note that it alleged Turnbow to have organized and sold a large amount of stock in above-named units and to have invested the proceeds of such sales in numerous mineral interests and other properties, taking title in himself. Turnbow was charged with misappropriation of moneys and properties and other fraudulent acts in handling the assets. All allegations are stated in general terms. This petition sought a full and fair accounting; judgment for such sums and interests as shown to be due; for dissolution of the Corporation and the Trust; and pendente lite for the appointment of receiver.

On July 27, 1939, approximately two years after institution of the Harris suit, the first amended original petition in the Kelly suit was filed, the original petition having been filed July 21, 1939. In this first amended original petition S. M. Kelly, A. R. Hamilton, W. L. Zent, Mrs. Sallie Elliott and husband are designated as plaintiffs, and the parties named as defendants in the Harris suit are here named defendants. This pleading charges various specific acts of embezzlement and misappropriation of corporate and trust funds by Turn-bow, namely: (1) Overdrawing in his personal account $85,000 and a $25,000 item and covering with fictitious credits; (2) illegal issuance of a large amount of corporate stock to himself; (3) production of large amounts of “hot- oil” from the corporate leaseholds and his appropriation of same; (4) acquisition of other specified properties in his own name and shifting title to same; (5) depositing corporate funds in various names; and (6) officers and directors of defendant corporation being Turnbow and members of his family, had refused to call a stockholders meeting or to give an accounting of his or the company’s operations. The-prayer for relief was, in effect, substantially the same as in the Harris suit.

Harris and Eilers were made defendants in a second amended original petition filed August 15th. In a third amended original petition filed on October 16th Eilers and Harris were named plaintiffs together with Kelly and others above set out, all of whom are appellants here. In his third amended original petition Turnbow Petroleum Trust and Turnbow, Trustee, were dropped as defendant, and W. C. Linden, Jr., and Edwin Fulton, attorneys, F. E. Mitchell and the Hon. C. E. McGaw, Judge of the 124th District Court, a pipe line company, and a bank were named as additional defendants. Additional charges of misappropriation by Turnbow were included and other charges which were alleged in the first amended original petition were more particularly detailed. It was alleged in addition that the Harris suit was filed at the solicitation of Linden; that as the result of an agreement with Turnbow to keep it pending on the docket to forestall the institution of litigation by any other stockholder, Linden had taken no steps in the prosecution of the Harris suit; and that in pursuance to the alleged collusive agreement he and Turnbow’s other attorney, Fulton, had cooperated in filing the plea of abatement in an effort to forestall prosecution of the Kelly suit. In addition to the prayer for relief, being substantially the same as in the first amended original petition, plaintiff sought to restrain Linden from further proceeding in the Harris suit, and from pretending to represent Harris and Eilers. The original petition in the Harris suit and each amended petition in the Kelly suit alleges that the plaintiffs therein named were suing for themselves and all minor stockholders similarly situated. W. C. Turnbow and Turnbow Petroleum Corporation on September S, 1939, filed the first and only pleading in answer to any pleadings of plaintiffs in the Kelly suit. This answer was directed to the first amended original petition.

On the hearing held November 8, 1939, to show cause why a temporary injunction should not be in all things granted as prayed for in the third amended original petition, these two defendants pleaded and urged as a defense in bar to the granting of such relief and the further prosecution of the Kelly suit that the Harris suit was filed as a class suit for the benefit of all stockhotders similarly situated which included the plaintiffs in the Kelly suit; that the Kelly suit was a similar action; that the allegations and relief sought in each were substantially the same; that the Harris suit was pending in the 124th District Court and that court had acquired jurisdiction of the parties and subject matter. Subject to this plea in abatement they answered with general demurrer and denial. Appellants in their replication, besides a demurrer, asserted that the Harris suit had been filed without the consent- or authority of the plaintiffs therein named, and if ever lawfully pending, it had been dismissed on August 23, 1939.

The issues were thus joined upon the hearing on November 8th. Appellees in support of their position, the burden of proof resting upon them, offered in evidence from the judgment roll in the Harris suit the original petition; defendants' original answer filed on September 4,1937; another pleading styled defendants’ original, answer and cross-action filed September 1, 1939, by Hancock & Fulton, Attorneys; Cooke’s motion to withdraw and the court’s order dated July 21, 1939, authorizing his withdrawal; application of F. E. Mitchell for leave to intervene,-the court’s order authorizing him to intervene, and his plea o.f intervention, all filed September 5, 1939; the decree of the Hon. C. E. McGaw, Judge, entered on September 8, 1939. This decree recites that on that date came on to be heard the written motions of Harris and Eilers to dismiss; being presented to the court by Cooke and Burke and opposed by Linden, attorney of record for plaintiffs; that these motions to dismiss were signed by Eilers and Harris and filed August 23, 1939; that said motions were secured by one Pelton, not an attorney, and Cooke who did not at thé time represent either. The decree further recites that on September 8th a motion was' filed for Harris in which it is recited that he had changed his mind since filing his motion to dismiss on August 23rd, and desired to have Linden prosecute his cause of action; and that at the same time another application to dismiss was filed for Harris in which he recites he was induced to sign the instrument revoking his former application to dismiss through the use of force and fraud practiced on him at his office in Weatherford, Texas, that therefore Harris’ motion to dismiss having not been filed until September 8th, after the cross-action and intervention had been filed, refused the motion of Harris to dismiss, but granted Eilers’ motion subject to the right of cross-plaintiffs in their cross-action and rights of in-terven or.

Appellants offered in evidence from the same judgment roll the respective motions of Harris and Eilers to dismiss. Each was filed on August 23rd. The docket sheet discloses an entry made by Judge McGaw setting the hearing for August 25, 1939.' These motions were presented in open court by L. F. Burke and Clay Cooke, Attorneys, who at the same time presented an order of dismissal at costs of the plaintiffs, to be signed by the court. The court did not enter or sign the requested order, but passed same to August 25th. Burke testified that the court stated he was doing this to give Linden a chance to be heard. The hearing was reset for August 29th due to illness of Linden’s wife. It was then postponed by the court until September •8, 1939, a subsequent term of said court.

In the judgment entered from which this appeal has been perfected, the Hon. D. S. Meredith, Judge, found that Eilers and Harris had filed' their’ motion to dismiss on August 23, 1939, but he was of the opinion that the judge of the 124th District Court having not entered an order dismissing the cause, the same was still pending in that ■court; and sustained the plea in abatemen.t, denied all injunctive relief, and dismissed this Kelly suit.

It is apparent from the findings of Judge McGaw and Judge Meredith that the motions to dismiss were filed on August 23rd. It is obvious from the docket sheet that these motions were presented to that court on the same date. At that time appellees had not filed a cross-action or an answer seeking affirmative relief, and Mitchell had not been granted leave to intervene. The right of Harris and Eilers to take a non-suit at that time was a statutory right and was not a matter of discretion for the court. When these motions were presented to the court they were entitled to an order of dismissal at that time, and the fact that the court did not enter an order of dismissal then did not ■operate to continue said cause on the docket and permit subsequent filing of the cross-action and intervention so as to defeat the right to take a non-suit. Article 2182, R.C.S. of 1925; Walker & Sons v. Hernandez, 42 Tex.Civ.App. 543, 92 S.W. 1067; Weil v. Abeel, Tex.Civ.App., 206 S.W. 735; Clevenger v. Cariker, 50 Tex. Civ.App. 562, 110 S.W. 795; Dannelly v. Jeffrey, Tex.Civ.App., 283 S.W. 351; Ex parte Norton, 118 Tex. 581, 17 S.W.2d 1041; Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22. It becomes unnecessary to determine if both the Harris and the Kelly suits be construed as 'class, suits and involved the same subject matter, or if Linden had in fact been employed to file' and prosecute the Harris suit.

We recognize the doctrine as contended for by appellees of the right of one or a few persons to sue for themselves and others similarly situated, as for example, when the joinder of all would be impracticable and would interminably delay and probably obstruct the purpose of justice. Bailey v. Morgan, 13 Tex. 342; 32 T.J. 28. But in this connection, those so voluntarily assuming the duty to prosecute such a class suit are legally and equitably bound to faithfully and honestly discharge such duty. 20 R.C.L. 670; 1 C.J. p. 974 ; 32 C.J. p. 86.

Shortly after Linden filed the Harris suit, he accepted employment as an attorney for Turnbow at a monthly salary of $350. He has remained in such employment from that time to the present. When the motions to dismiss were filed and presented, Linden, Turnbow and Fulton made a trip to Weatherford to persuade Harris to withdraw his motion to take a non-suit. That suit had been on file for two years. No action had been taken. Linden’s apparent effort to represent the plaintiffs and defendants in the same lawsuit has caused the unusual situation found in this record which is not complimentary to the legal profession. Evidently the Hon. C. E. Mc-Gaw was not aware of such a relationship, and'the Hon. D. S. Meredith through deference for Judge McGaw did not disturb his actions.

We briefly notice the judgment entered in the Graddy suit. Subsequent to appeal ip the Kelly suit, the 124th District Court did on November 14, 1939, enter an order in which Harris was dismissed and the cross-action against Eilers was also dismissed, as of-that date. On this same day another judgment was entered in the same court which recites that F. E. Mitchell, R. A. Spence, and R. A. Graddy, each representing himself and all the stockholders of defendant corporation, and all defendants appeared in person and by their respective attorneys, waived a trial by jury. The judgment is lengthy. Sufficient to state that the judgment picks tip each charge set out in Kelly’s first amended original petition and finds in favor of defendants on each. This judgment although not reciting a consolidation, carries Nos. 11,404-B and 13,799-B. Neither of above plaintiffs excepted to the judgment so entered. It is made to appear that Graddy filed his suit on November 13, 1939, and Turnbow answered the same day. What has been stated in the previous paragraph on class suits is applicable here. Whether the last-mentioned proceeding was collusive, which is asserted by appellants, is an issue that must be tried below when and if such judgment is pleaded as “res adjudicata” to the Kelly suit, for such plea depends on facts and pleading, neither being before this court.

From conclusions herein reached, it becomes axiomatic that the Special District Court acquired jurisdiction of the Kelly suit and now has jurisdiction to grant such relief as in his discretion the law and facts warrant upon another hearing.

The judgment is reversed and the cause remanded.


author: NORVELL, Justice.

text:
    GUTIERREZ et ux. v. RODRIGUEZ.
    No. 10678.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 14, 1940.
    H. B. Galbraith, of Brownsville, for plaintiffs in error.
    C. C. Bryant, of Harlingen, for .defendant in error.
   NORVELL, Justice.

This is an action of trespass to try title involving an undivided interest in and to part of Tract 217 of Share 143, of the Ojo de Agua Grant, Cameron County, Texas, as partitioned by decree entered in cause No. 2935, by the District Court of Cameron County, Texas.

Francisco Gutierrez and wife brought suit against Cristobal Rodriguez for the •recovery of the real property involved; their petition being in the statutory form of trespass to try title. Rodriguez pleaded not guilty and, by way of reconvention, specially pleaded his title, which rests upon a money judgment rendered in favor of Rodriguez against Francisco Gutierrez by the Cameron County Court at Law in Cause No. 6288, the writ of execution issued upon said judgment," and the levy and sheriff’s sale had under the execution.

Trial was to the court', which rendered judgment for Rodriguez. Gutierrez and wife bring the case here by writ of error. The parties will be designated as in the trial court. No findings of fact or conclusions of law were requested of the trial court, so that here it will be presumed that all facts supported by the evidence were found by said court in favor of the .judgment.

The sole question involved is that of the legal sufficiency of the description contained in the sheriff’s levy, notice of sale, and sheriff’s deed, which followed the judgment in Cause No. 6288, above mentioned.

Plaintiffs’ attack upon the proceedings relating to the sale' is collateral rather than direct. Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596. Many of plaintiffs’ contentions relating to the' inadequacy of the price paid at the sheriff’s sale and kindred matters aré therefore not applicable here.

The description contained in the sheriff’s levy, notice of sale and deed, is as follows: “The undivided interest of Francisco L. Gutierrez, in Share II, as set aside to him in the decree in Cause No. 2935, in the District Court of Cameron County, Texas, (103rd Judicial District) said share being the North 100 acres of the 350 acres undivided tract included in Agua Dulce Farms Subdivision of Cameron County, Texas, and all being in Abstract 27 Vicente Hinojosa, East of the Barreda Subdivision in said Cameron County, Texas.”

The ambiguity, if any, present in the above description is not patent-as distinguished from latent. 14 Tex.Jur. 995; Slack v. Dawes, 3 Tex.Civ.App. 520, 22 S.W. 1053.

The description contained in the partition decree (Cause No. 2935) was as follows:

“Share No. 143.
“To Tiburcio Flores Garza, * * * Francisco Gutierrez and Tomasa C. Gutierrez, his wife, * * * and Juan Trevino, in the undivided proportionate parts hereinafter stated, the following described lands:
“Tract 217: Containing 100 acres of land, more or less, in Cameron County, Texas, out of the Ojo de Agua Tract, shown on Map No. 2, hereto attached, and made part of this judgment and decree, same being the north 100 acres of a 350 acre tract shown unsubdivided on the map-of Agua Dulce Farms, recorded in Book 7, page 7, of the Map records of Cameron County, Texas, which said north 100 acres was set apart to Tiburcio Flores Garza and others as the heirs of Pladido Flores, deceased by deed of partition between Browne Land & Cattle Company and others, dated December 20, 1926, and recorded in Book 155, p. 580, of the Deed Records of Cameron County, Texas, referred to as Share No. 11 in said partition, this tract being described by the metes and bounds thereof as follows: (Here follows metes and bounds description).
“This tract 217 is adjudged to the above named owners in the following proportionate amounts stated in acres:
“Francisco Gutierrez and Tomasa C. Gutierrez, his wife, (Community property) .. 36.56 acres.”

The ambiguity in the description contained in the sheriff’s deed when compared with the description of the partition decree is the reference to Share 11 (or Share II, Roman numerals, a possible construction) rather than to Share 143, Tract 217. ■ The reference in the decree of partition to Share 11 of a prior partition tends to explain the reference to Share “II” in the sheriff’s deed. It is necessary to refer to the decree in Cause No. 2935 to develop the- ambiguity, and reference to that judgment in effect contributes to the destruction of the ambiguity." The description in the sheriff’s levy, notice and deed contains a reference to lands awarded to Francisco Gutierrez by decrée entered in Cause No. 2935. In the case of Slaughter v. City of Dallas, 101 Tex. 315, 107 S.W. 48, involving a tax foreclosure sale, it was held that reference to the ownership of a lot or tract of land made" it possible to definitely ascertain the particular property involved and that the rule, “That is certain which can be made certain” applied.

Applying this rule to the facts presented here, it will be seen that the trial court properly, received extrinsic evidence for identification purposes. 14 Tex.Jur. 992.

The description in the sheriff’s levy, notice and deed, taken with the description in the decree referred to, and the extrinsic evidence properly admitted by the trial court, leave no doubt as to the identity of the real property involved, and the judgment of the trial court is accordingly affirmed.