author: KRUEGER, Judge. HAWKINS, Judge.

text:
    CAMPBELL v. STATE.
    No. 20759.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1940.
    Rehearing Denied April 17, 1940.
    Application to File Second Motion for Rehearing Denied May 29, 1940.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the state penitentiary for a term of 10 years.

By bill of exception number one, appellant complains of the action of the trial court in declining to instruct the jury to return a verdict of not guilty on the grounds that the evidence was not sufficient'to authorize and sustain his conviction.

The testimony adduced by the state, briefly stated, shows that appellant operated a still on the Hitson place, located north of the town of Cisco in Eastland County. The deceased knew of the still’s location and on the morning of April 2, 1936, he, accompanied by two friends, Quenville Ingram and Herman Notgrass, drove from Cisco to its location. They found it in operation but no one was present. A short distance away they located some hidden whisky, a part of which they drank. Then they returned to Cisco. The deceased told his companions that the still belonged to his brother but that appellant had stolen it. After dark the deceased and two friends went back to the still and moved it about a mile from where it had been located to a ravine. In the meantime someone 'had removed the distributor cap to their car in which they were riding, and upon their return, they found that it would not, start. The deceased went to town and brought back with him another cap. After repairing the car, deceased’s companions got into the car and started out of the premises with the deceased following in his own coupe. Just after the first car had gotten off the premises, lights from a parked car were flashed on them and some shots were fired. The men speeded up and a few minutes later heard another shot. After driving some distance, they noticed that the deceased was not following them and turned around and went back. They found the deceased’s car standing on the side of the road, lights burning and motor still running. The body of the deceased was lying on the ground nearby. They immediately hurried to town and reported the matter to the police who found deceased dead from a bullet wound in his chest.

Bert Bradley testified that he went with the appellant and two other parties on the afternoon in question to the still to get some whisky, but found that it had been moved. They then returned to Cisco but later went back. Before going the second time, appellant and one of the other men armed themselves' with shotguns. They also had a 38-calibre pistol in the glove compartment of the car. On their first trip to the still, they found a car parked on a hill nearby and appellant took something off it to prevent the parties from driving away. When they went back the second time it had gotten dark, and they parked their car on the opposite side of the road and waited for the parties to come out. They had not waited long before the first car came out of the pasture. Bradley fired the first shot at them with a shotgun and then appellant drove his car in front of the deceased’s car and walked back to talk to him. The witness did not see the shooting, but testified that he heard two shots fired. That just before these shots were fired, appellant and the deceased were standing on the right side of the car. The parties then drove back into town. On the same night, appellant, his wife and Bradley went to Big Springs, about 150 miles away, and from there to Midland; then they went back to Big Springs where appellant’s father-in-law met them and they returned to' Cisco. The bullet taken from the deceased’s body by the undertaker was a 38-calibre bullet. It entered the body in the chest.

Appellant did not testify or offer any affirmative defense. We deem the evidence sufficient to support the jury’s conclusion of appellant’s guilt.

By bill of exception number one, appellant complains of the action of the trial court in overruling his motion for a continuance based on the absence of one George Bryant, who was an employee of the alcoholic unit of the Treasury Department of the U. S. located at Fort Worth, by whom he stated that he expected to prove and would prove that Bryant made some investigation in connection with the offense charged. That he filed a charge against appellant in the United States District Court for the possession of a still and whisky. In construing the allegations in the application as to what appellant expected to prove by said witness, it is our conclusion that they amount to nothing more than that Bryant filed a complaint against him charging him with the operation of a still and the possession of whisky. Just how this testimony was material to any defense of the appellant is not made to appear from the record and we fail to see the materiality of the same. See Sec. 312 Branch’s Ann.P.C., pp.. 184, 185, and authorities cited. Moreover,, the court in his order overruling the motion-states that it was a second application. This being true, the matters as they are recited in the application rested within the soundi discretion of the trial court.

Appellant, in due time, addressed a number of objections to the court’s charge. By his bill of exception number four, appellant specifically.objects to the charge on the ground that the court declined to instruct the jury that if the defendant’s property were stolen by the deceased, or others acting. with him, the defendant would have a right to approach him, either armed or unarmed, in seeking a return of said property. We do not think the evidence called for any such instruction. The appellant did not claim self-defense; he did not know that the deceased had stolen his still or his liquor; he merely suspected it. The record is silent as to what appellant’s object was when he drove his car in front of the deceased’s and shot him. We fail to see under just what theory he was entitled to such an instruction. We have examined the other objections to the charge in the light of the criticisms addressed thereto and reached the conclusion that.the charge is not subject to the objections.

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

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

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Judge.

In his motion for rehearing appellant urges that the witness Bradley was an accomplice witness, that his evidence was necessary to a conviction and that there is no sufficient corroboration of his testimony; hence he insists that the judgment should be reversed under Art. 718, C.C.P., which precludes conviction on the testimony of an accomplice witness unless corroborated as required by said article.

The learned trial court did not instruct on the question as to whether Bradley was an accomplice witness. From the fact that the charge was not excepted to for said omission nor any special charge on the subject requested we might conclude that at the time of the trial appellant did not seriously think Bradley was an accomplice witness. However, if this court should find that he was an accomplice witness as a matter of law, not sufficiently corroborated, and that a conviction could not stand without his testimony, appellant would be entitled to a reversal on account of the failure of the evidence to support the judgment of conviction.

Appellant was operating a still on the “Hitson place” several miles from Cisco. In the forenoon of April 2, 1936, Notgrass, Ingram and Buford Tarver (the deceased) went to said still in Notgrass’ car. It was claimed by deceased that the still belonged to his brother and he wanted to retake possession of it and move it. Notgrass objected to moving the still in his car. The three parties went back to Cisco and returned to the still later, deceased driving his own car and Notgrass driving his car. Notgrass parked his car some distance from the still, which was then loaded on deceased’s car and moved. Appellant, Bradley and Elliott went to the still and discovered it had been moved. They did not see deceased’s car, but saw the Notgrass car, and appellant removed from it the distributor cap so the car would not run. Appellant and the two parties with him then went back to Cisco, but returned after dark in appellant’s car which they parked near -the gate into the “Hitson” pasture. In the meantime deceased and his companions (Notgrass and Ingram) had discovered the absence of the distributor cap from Notgrass’ car and deceased went to Cisco, secured another cap, returned to the pasture and placed it on the Notgrass car. Ingram and Notgrass, in the latter’s car, then started back to Cisco. As they passed out at the gate or gap near which appellant’s car was parked, shots from a shot gun were fired from appellant’s car. None of the shot struck the Notgrass car. He and Ingram proceeded towards Cisco and appellant’s car soon followed it. At this time deceased’s car apparently was still in the pasture. Bradley’s connection with the transaction is learned through his own testimony. He lived at Big Spring, some ISO miles from Cisco. A party by the name of Gunn had brought Bradley to Cisco on the day of the killing. We gather from the evidence that he had some business with appellant, but the nature of it is undisclosed. It seems clear that it had no reference to the killing bcause the thing out of which the homicide grew — the moving of the still- — had not yet occurred when Bradley arrived in Cisco. He, Elliott and appellant went to the location of the still in appellant’s car and discovered that the still had been moved. They also found Notgrass’ car from which appellant removed the distributor cap. They never saw the car of deceased. Appellant, Bradley and Elliott went back to Cisco, but later returned to a point near the gate leading into the “Hitson” pasture. They either already had a shot gun in their car or secured one when they returned to Cisco. As the Notgrass car came through the gate from the pasture Bradley fired the shot gun. He testified that he did not shoot at anybody; but fired to scare them, as his party wanted to find out who was in the car coming out of the pasture, evidently believing they had moved the still. Bradley’s claim that he was not trying to hurt anybody is borne out by the fact that none of the shot from the shot gun even struck the Notgrass car. Bradley testified that after the Notgrass car proceeded towards Cisco appellant started his car and followed it. Soon another car, which turned out to be deceased’s, overtook appellant’s car and stopped to one side of the road. As appellant’s car passed he said he thought he knew who was 'driving the other car and wanted to talk to him, whereupon appellant stopped his car a few steps in front of the other, got out and went back to the other car. Bradley testified that he did not know who was in the other car when appellant went back towards it and did not know that appellant had a pistol with him at the time, although he had seen a pistol in the glove compartment some time during the day. After some loud talking, which Bradley could hear but did not understand, two pistol shots were fired back at deceased’s car. Appellant then came to his own car, got under the wheel and proceeded to Cisco. Appellant took Elliott home, got his wife and then drove to Big Spring, taking Bradley with them in appellant’s car; Gunn, who had brought Bradley to Cisco, having already returned to Big Spring. It was late at night when they arrived. Bradley’s wife was not at home and he let appellant and his wife occupy his (Bradley’s) room for the night, Bradley spending the remainder of the night with Gunn. The next day appellant returned to Cisco and surrendered to the officers.

Because of appellant’s insistence that Bradley was an accomplice witness we have detailed at some 'length his connection with the killing. We entertain serious doubt if the evidence even raises an issue of fact upon the point mentioned. Certainly it does not characterize him an accomplice witness as a matter of- law. It would only be in the latter event that appellant’s contention that the judgment should be reversed for lack of corroboration could be sustained. Pitts v. State, 85 Tex.Cr.R. 14, 210 S.W. 199.

The only other matter urged in the motion for rehearing is that the trial court erred in refusing to permit appellant to develop on cross-examination of the witness Stephens some conversation with appellant, a part of which he contends the State developed. The bill is defective in failing to show what the conversation was. It merely states that he had a conversation. We observe that the statement of fact leaves the subject in the same condition. Stephens testified that he had a conversation with appellant, but never goes any further.

Believing the case was properly disposed of on original submission, the motion for rehearing is overruled.


source: Caselaw Access Project

author: GRAVES, Judge.

license: Public Domain

text:
    GRIFFIN v. STATE.
    No. 21012.
    Court of Criminal Appeals of Texas.
    April 10, 1940.
    R. F. Peden, of Houston, for appellant.
    Lloyd W.. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The conviction is for the unlawful sale of marijuana; punishment, two years’ confinement in the penitentiary.

The record is before us without a statement of facts or bills of exception, hence no question is presented for review. All matters of procedure appearing regular,, the judgment is affirmed.


author: BAUGH, Justice.

text:
    MARYLAND CASUALTY CO. v. MORITZ.
    No. 8892.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1940.
    Rehearing Denied April 3, 1940.
    R. H. Mercer, of San Antonio, for appellant.
    Hart & Brown, of Austin, for appellee.
   BAUGH, Justice.

Appeal is from a judgment in favor of Moritz against the Maryland Casualty Company for attorney’s fees incurred by him in defending a damage suit against him and others. Appellee alleged that the Casualty Company was bound to pay such fees under an indemnity insurance policy carried by Moritz with that company. The suit in which the attorney’s fee was incurred was by the wife and children of Rob Marshall against Moritz, doing business under the name of O. K. Freight Lines; L. O. Wells, doing business under the name of L. O. Wells Fruit & Produce Company; S. A. and Percy Neilson, also truck operators; Henry W. Klein, employee of Moritz; and Claude Berry, employee of Wells. It was for damages for the death of Rob Marshall resulting from a truck collision on State Highway No. 20, at Oak Hill, a few miles west of Austin. The insurance policy involved was one of indemnity issued to Moritz as a common carrier of freight over the highways in accordance with the provisions and requirements of Sec. 13, Art. 911b, Vernon’s Ann.Civ.St. The sole question presented is whether the aver-ments in the petition of the Marshalls were sufficient to bring the asserted cause of action against Moritz within the terms of the policy.

The policy in question covered two specifically described Chevrolet trucks, owned, used and operated by Moritz, doing business as the O. K. Freight Lines over Highway 20 between Austin and Fredericksburg.. Coverage A insured Moritz against liability for damages for personal injuries; coverage B against property damage. It also provided that “Coverage granted by the policy applies to all trucks and trailers belonging to or under the direction of the named insured, whether particularly identified in the policy or not, while same are being used in the business of carrying property for hire or compensation and com-, ing within the terms of the statutes, above referred to * *

In addition to binding the insurer to pay the damages included in coverages A and B, the policy also bound the insurer to “defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * *

The suit of the Marshalls was predicated upon the concurring negligence of all of ■the named defendants. Briefly summarized, the facts surrounding the collision were alleged to be substantially as follows: The Wells truck, a common carrier truck, driven by Berry, was returning eastward from Fredericksburg to Austin. Due to engine trouble it had been stopped on its right-hand side (the south side) of the highway on the pavement in Oak Hill, thus blocking the highway on that side. The Moritz truck, driven by Klein, and specifically covered in said policy, and the Neilson truck, owned by S. A. Neilson and driven by Percy Neilson, were also returning to Austin from the west. At Dripping Springs, a point about 30 miles west of Austin, Klein, the driver of the Moritz truck, and Percy Neilson, the driver of the Neilson truck, met and agreed between themselves that, from that point, Neilson would drive the Moritz Chevrolet truck toward Austin, followed by Klein driving the Neilson Ford truck. When Klein, so driving the Neilson truck, undertook to pass the parked Wells truck on the left in Oak Hill, he ran into Marshall’s truck, wrecking it and causing Marshall’s death.

We quote the following from the petition of the Marshalls:

“That on the 6th day of February, A. D. 1937, being the day of the collision causing the death of the deceased Bob Marshall, the defendants, S. A. Neilson and Percy Neilson, were owners .of and jointly operated a certain 1935 Ford truck, license No. 57c/m498, and were using the same in the trucking business. That on said date shortly before the collision occurred, the said truck was being driven on the joint business of the two defendants by one of the defendant partners, to-wit: Percy Neilson. That the said defendant Percy Neilson, was driving said truck east on Highway 20 from Stonewall in Gillespie County toward Austin in Travis County. That about 15 miles west of the scene of the collision the defendant Percy Neilson, stopped his truck near the village and community of Dripping Springs in Hays County, Texas, and met and exchanged trucks with one Henry W. Klein. The said Henry W. Klein was employed by and working for the defendant, James J. Moritz, doing business as O. K. Freight Lines, his duties being to drive a truck or trucks in the hauling of freight for the defendant, James J. Moritz, in connection with said business.”
“That thereupon on said day aforesaid the defendant, Percy Neilson, and the agent, servant and employee of the defendant, James J. Moritz, to-wit: Henry W. Klein, exchanged trucks by mutual agreement, and Percy Neilson proceeded to take charge of the O. K. Freight Lines u uclc, and Henry W. Klein took charge of the truck belonging to Neilson.”
“That at the same time while driving the Neilson truck Henry W. Klein was expressly authorized by Percy Neilson to act for the defendants, S. A. Neilson and Percy Neilson, and was acting in their behalf in driving their truck from Dripping Springs to Austin, and at all times from the exchange of trucks to the collision was the duly authorized agent, and servant of the two defendants, S. A. Neilson and Percy Neilson.”
“The O. K. Freight Line truck arrived at the scene of the collision first and passed the truck of the defendant L. O. Wells, parked on the highway before the deceased drove up on the highway. That the said Henry W. Klein followed behind and ran into the truck of the deceased causing the injuries to him and resulting death as here-inbefore alleged.”

It is the contention of appellant that, these allegations affirmatively show that the Casualty Company was not liable under its policy for the injuries inflicted, and 'that under the holdings of the Texas Supreme Court in United States Fid. & Guaranty Co. v. Baldwin Motor Co., Tex.Com.App., 34 S.W.2d 815; and of the federal Circuit Court of Appeals in Allen v. American Fid. & Casualty Co., 5 Cir., 54 F.2d 207, it was not required to defend that suit. The ground of this contention is that since the truck, driven by Klein, did not belong to Moritz, and was not expressly covered by his policy, it must not only be shown to have been used by Moritz in his “business of carrying property for hire or compensation,” but also as “coming within the terms of the statutes.” And that to come “within the terms of the statutes,” it must be shown to have been approved and licensed to operate by the Railroad Commission; the required fees to have been paid thereon, including premiums for insurance thereon; and motor carrier license plates to have been issued by the Railroad Commission and attached to said truck. Such, in effect, was the rule laid down in the Allen case, supra, before the insurer could be held liable for payment of the damages sustained. In that case, however, suit was upon a judgment already obtained against the insured, and the court’s holding of no liability was based upon the proof on the merits.

In the instant case, the issue involved depends not upon ultimate liability, established after trial on the merits, of the insurer for the damages sustained; but upon the provision of the policy wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy even though such suit may have been groundless, false or fraudulent. In such instance, in testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff’s petition. But if, as stated in the Baldwin Motor Company case, such petition shows a state of facts “excluded by the policy,” the insurer is not required to defend. If the allegations above quoted from the petition of the Marshalls were the only ones upon which liability of the insurer under its policy to defend that suit could be predicated, appellant’s contention would, we think, be correct. But the fact that other grounds of damage against Moritz than those stated in the policy; or liability against others than Moritz for such damages were pleaded is immaterial; if the plaintiffs in that case, in addition to or in connection with other parties and other grounds, also pleaded any grounds against Moritz coming within the terms of the policy. Christian v. Royal Ins. Co., 185 Minn. 180, 240 N.W. 365.

In addition to the allegations above quoted, and here relied upon by appellant to negative any ground of liability, we find in the petition of the Marshalls in their suit, also the following:

“The said Henry W. Kline was employed by and working for the defendant, James J. Moritz, doing business as O. K. Freight Lines, his duties being to drive a truck or trucks in the hauling of freight for the defendant, James J. Moritz, in connection with said business. That at said time the said Henry W. Kline was driving a certain truck owned and operated by ⅛⅜ said defendant in his said business and was hauling freight and making a regular return trip from Fredericksburg to Austin. That plaintiffs do not know the exact description or kind of said truck, but such information is peculiarly within the knowledge of the defendant, James J. Moritz.
“That thereupon on said day aforesaid the defendant, Percy Neilson, and the agent, servant and employee of the defendant, James J. Moritz, to-wit: Flenry W. Kline, exchanged trucks by mutual agreement, and Percy Neilson proceeded to take charge of the O. K. Freight Line’s truck, and Henry W. Kline took charge of the truck belonging to the Neilsons.
“That the said defendant, Percy Neilson, and the said Flenry W. Kline, agent, servant and employee of the defendant, James J. Moritz, proceeded along Highway 20 one following the other until within about two or three miles of the scene of the collision. That at all of said times and continuously up until the collision with and injuries to the deceased, the said Henry W. Kline was acting for the defendant, James J. Moritz, overseeing the safe transportation of the freight for the O. K. Freight Lines and its truck from Fredericksburg to Austin and maintained control of the truck belonging to the defendant, James J. Moritz, by keeping close to and in contact with it while it was being driven by Percy Neilson. That the said Henry W. Kline at no time ceased to ac,t for his principal nor surrendered the responsibility for his master’s truck to any person.”
“That the said Henry W. Kline, agent, servant and employee of the defendant, James J. Moritz, doing business as O. K. Freight Lines, and agent and servant of the defendants, S. A. Neilson and Percy Neil-son, while acting in the scope of his authority as agent and servant, in said dual capacity was guilty of wrongful acts, negligence, and want of care as follows, to-wit: ⅝ *

As above stated, we are not here concerned with what the proof showed upon the trial of that damage suit. The issue of appellant’s liability to pay whatever judgment was rendered, and whether such judgment came within the terms of coverages A and B of its policy, is not the question here presented. The only issue before us is whether the allegations above quoted, if taken as true, were sufficient to state a cause of action against Moritz coming within the terms of the policy. If so, it was the duty of appellant, under its policy, to defend the suit. We construe these allegations as broad enough to do so; and think that the trial court properly so held. The judgment will therefore be affirmed.

Affirmed.


author: GRAVES, Justice.

text:
    URBANEC v. JEZIK.
    No. 10978.
    Court of Civil Appeals of Texas. Galveston.
    March 14, 1940.
    A. F. Urbanec, of East Bernard, in pro per.
    No brief for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the county court of Wharton County, entered on the 4th day of August, 1939, sustaining a general demurrer to the petition of the appellant for an injunction against the ap-pellee and dismissing the same, whereby he sought to enjoin the' latter from enforcing — through writ of restitution or execution — a final judgment in forcible detainer appellee had theretofore obtained against the appellant in such county court upon an appeal therein from the justice court of precinct No. 4 of Wharton County.

In such petition now under review appellant alleged, in so far as deemed material, substantially that appellee had sued him, along with another, in the justice court for possession of a small piece of land at East Bernard, which had formed the subject-matter of a five-year written lease between them, the initial term of which expired on November 30 of 1938, but which carried a renewal-privilege under certain conditions; that such trial in the justice court resulted in appellant’s favor, but the cause was appealed to the county court by the appellee, without, however, giving the required notice of appeal in open court as provided by R.S. Article 3987; that although such alleged failure to give the prescribed notice of appeal had been urged upon the county court, it nevertheless decided such appeal in the appel-lee’s favor and gave him judgment for the possession of the property, pursuant to the statutes applying in such causes; that appellant thereupon in that proceeding, after his motion for a new trial therein had been overruled by the court, took no further action, but separately and independently thereof resorted to the same court in this application for an injunction to set aside the final judgment so rendered against him in the other proceeding, upon this, among other averments: “Because. the plaintiffs are without adequate remedy at law, in that County Court judgments are final in forcible detainer, and that plaintiffs are without a remedy, except by injunction to set aside a void judgment.”

It is the conclusion of this court that the finality of the county court’s judgment on appeal from the forcible detainer proceeding, made so by R.S. Article 3992, which appellant thus invokes as giving him the right in this application to enjoin the enforcement of the same upon such mere errors, as he so alleges, cuts just the other way; in other words that, taking as true all of his given averments, his bill does not state a good ground for injunction at the hands of the county court in this proceeding, because, as seems to be well settled under our decisions, an injunction will not — in such situations — be granted, either (1) to correct errors in a judgment which might have been corrected by legal remedies, or (2) to prevent the issuance of, or to correct an execution, where the right of appeal from that proceeding has been denied by statute; Hayes v. Bone, Tex.Civ.App., 69 S.W.2d 180; Reast v. Hughes, Tex.Civ.App., 33 S.W. 1003, at page 1004; Odom v. McMahan, 67 Tex. 292, 3 S.W. 286.

Further discussion being deemed unnecessary, the judgment will be affirmed.

Affirmed.


author: DUNKLIN, Chief Justice.

text:
    MOORE v. WILSON et al.
    No. 14052.
    Court of Civil Appeals of Texas. Fort Worth.
    March 8, 1940.
    Rehearing Denied April 12, 1940.
    White & Cogdell, of Fort Worth, and W. S. Moore, of Gainesville, for plaintiff in error.
    Cecil Murphy and John W. Culp, both of Gainesville, for defendants in error.
   DUNKLIN, Chief Justice.

This suit was instituted by James S.' Moore to recover title to an alleged oil and gas lease on ISO acres of land in Cooke' County, and for the value of oil and gas removed therefrom.

Two separate groups of individuals were' named defendants. The first group, designated lessors, included Mrs. O. Wilson, a widow, and her eight children, some of whom were married daughters, and their husbands were also included in that group.

The second group of defendants, designated lessees, was composed of E. L. Gill and M. L. and O. W.. Witherspoon.

According to allegations in plaintiff’s petition, on the 14th day of May, 1937, the first group of defendants, as lessors, executed and delivered to plaintiff an oil and gas lease contract and an oil and gas lease-in performance of the contract, covering the 150-acre tract of land in controversy.. The lease was in the customary form of what is known as Producers 88 Special. Texas form, by the terms of which, for a recited consideration of ten dollars cash paid and covenants and agreements therein appearing, the lessors granted, demised and leased to plaintiff the land in controversy for the purpose of exploring and developing the same for oil and gas. The lease was to continue for one year, and as long thereafter as oil or gas is produced from the land. The lessors were to receive $25 per acre for the contract to be paid out of ⅜⅛ of %ths working interest when produced from the land, and in addition, a royalty of ⅜⅛ of the oil and gas produced. With a further provision that if no well be commenced on or before the 15th day of July, 1937, the lease would terminate, unless continued under certain conditions stated, including payment of rentals, according to further allegations.

The parties to those two instruments agreed that the same be placed in escrow with First State Bank of Gainesville for a period of 60 days, to enable plaintiff to comply with its stipulations and conditions, and if he should comply therewith within that period, the contract and lease would be delivered to plaintiff; otherwise, they would be returned to said lessors. There were further allegations in plaintiffs petition, in substance, as follows: After said contract and lease were executed and delivered to plaintiff, said lessors, by fraudulent acts, procured possession of said contract and lease, without plaintiff’s knowledge or consent, and refused to allow same to be placed in escrow in said bank, and still have possession thereof. After execution and delivery to him of the contract and lease, he was ready, willing and able to begin and finish drilling operations within the 60 day period stipulated in the lease, and offered so to do, but the offer was refused.

An alleged copy of the lease was attached to the petition as a part thereof.

As against the second group of defendants, it was alleged that they acquired from the first group a purported oil and gas lease on the same land, which is invalid as against plaintiff’s suit, because the same was acquired with full knowledge of plaintiff’s prior rights, as above alleged; and acting under said purported lease, they have developed said land for oil and gas, by drilling wells, from which they have produced and appropriated oil and gas, to plaintiff’s damage in the sum of $25,000, for which plaintiff sought a recovery, on the theory of wrongful conversion, as well as for cancellation of the' lease, as a cloud upon plaintiff’s title to the lease, which he sought to establish.

The first group of defendants filed answers which included general demurrers, numerous special exceptions to plaintiff’s petition and a general denial; followed by a duly verified special answer, including allegations that no consideration was paid by plaintiff for the alleged contract and lease; and further, that neither the lease contract nor the alleged lease was ever delivered to plaintiff by them or by any one with their authority or consent. In that connection, they alleged that on or about May 15th, 1937, they did sign and acknowledge an oil and gas lease on the land in controversy, together with plaintiff’s drilling contract, but did so with the distinct understanding and agreement with plaintiff that defendants would have the privilege to submit those instruments to their attorney, Hon. John W. Culp, for his examination and approval, and should he approve same, then they were to be deposited in escrow with the First State Bank of Gainesville, together with a deposit by plaintiff of a sum of money sufficient to guarantee the drilling of the first well to the contract depth, the drilling of which was to begin within 60 days after said escrow deposit, and the money deposited to remain in the bank until the completion of the well. And if their said attorney should not approve said instruments, or should plaintiff fail to make said money deposit in the bank at the time said instruments were ready to be placed therein in escrow, then and in either of said events, said lease and lease contract were not to be delivered to plaintiff or in escrow with the bank and would not be binding on defendants. With further allegations of refusal of their said attorney to approve the lease and contract; failure of plaintiff to make said deposit of money with said bank; and that at no time has plaintiff been financially able to drill the well to the required depth of 1,200 feet, by reason of his insolvency.

The second group of defendants filed an answer, adopting the pleadings of the first group; with further allegations that they acquired their lease from their said co-defendants, in good faith, paying a valuable consideration therefor, all without notice of plaintiff’s claim of a lease on the same land, with prayer that plaintiff’s said claim be removed as a cloud upon their title.

In his supplemental petition, plaintiff presented a general and special exception to the defendants’ special pleading, just noted, a general denial and a special pleading of an agreement by all parties thereto that both the contract for lease and the lease would be placed in escrow with D. W. Crawford for the purpose of having him place the same in said bank on the following day, but immediately thereafter, without plaintiff’s knowledge or consent, defendants induced Crawford to turn over the instruments to defendant, Mrs. O. Wilson, for the purpose, on her part, of having her attorney, Hon. J. W. Culp, examine them, which Mrs. O. Wilson failed to do; and plaintiff, acting under the belief that -said instruments had been deposited in escrow in said bank, incurred great expense in preparing to drill said land for oil, and would have begun drilling and developed the lease for oil production, in accordance with the terms of his said lease, at a profit to him of $25,000.

The truth of those special pleadings was put in issue by defendants’ pleadings, filed in reply thereto.

Following are special issues submitted to the jury, with their findings thereon:

“No. 1. Do you find from a preponderance of the evidence that after the lease •and drilling contract in question were signed and acknowledged by'Mrs. Wilson •and the other lessors the same were, by agreement of the parties, handed to Dwight Crawford to be escrowed in the First State Bank? Answer yes or no. Answer: No.
“No. 2. Do you find from a preponderance of the evidence that the defendants, lessors, signed and acknowledged the contract and lease with the understanding that they were not to become effective until Mr. Moore deposited a sufficient amount of money in the escrow bank to guarantee the drilling of the first well? Answer yes or no. Answer: Yes.
“No. 3. Do you find from a preponderance of the evidence that the defendants, Mrs. O. Wilson, Mr. and Mrs. Sparkman, Clarence Wilson, Mrs. Johnson, Mrs. Terry and Mrs. Womack, signed and acknowledged the contract and lease with the understanding that they should not become effective unless Mr. Culp approved the instruments? Answer yes or no. Answer: Yes.
“No. 4. What do you find from a preponderance of the evidence to be the reasonable cash market value of an oil and gas lease on the 150 acre Wilson tract where the land owners are - receiving ⅛ of the •oil and gas. and $25.00 per acre oil payment out of ¼8 of the working interest? Answer giving amount in dollars and cents. Answer: $1500.00.”

On that verdict judgment was rendered that plaintiff take nothing of any of the defendants; that the second group of defendants named above have a valid and subsisting oil and gas lease on the land in controversy, acquired by them from the first group of defendants, and that all clouds cast upon their said lease by the claims asserted by plaintiff in this suit be removed. From that judgment plaintiff has prosecuted this writ of error.

By three different propositions, which are the only ones presented here, complaint is made of the admission of parol testimony in support of the allegations in defendants’ answers, which were sustained by the findings of the jury, in answer to issues Nos. 2 and 3, over plaintiff’s objections that, in the absence of allegations and proof of fraud of plaintiff, inducing the execution by defendants of the lease contract annd lease alleged by plaintiff, such testimony was inadmissible, because it tended to, vary, add to or contradict those instruments.

In support of those propositions, plaintiff in error has cited this excerpt from 17 Tex.Jur., sect. 354, p. 794: “Where parties have reduced to writing that which appears upon its face to be a complete and certain agreement, importing a legal obligation, the court will, in the absence of fraud, accident or mistake, conclusively presume that the writing contains the whole agreement between them; and parol evidence of prior or contemporaneous negotiations, conversations, representations or statements will not be received for the purpose of adding to or varying the written instrument. Under this rule it is not permissible to show that an oral agreement was made at the time of the execution of a writing, that the instrument should have another and different effect than that imported by its terms, * * * ”

Numerous decisions are cited announcing and applying that familiar rule, such as Belcher v. Mulhall & Scaling, 57 Tex. 17; Self v. King, 28 Tex. 552; Texarkana & F. S. Ry. Co. v. Brass, Tex.Com.App., 262 S.W. 737; Jackson v. Pure Oil Operating Co., Tex.Civ.App., 217 S.W. 959; Cottingham v. Harrison, Tex.Civ.App., 89 S.W.2d 255; Southwestern Life Ins. Co. v. Brooks, Tex.Civ.App., 89 S.W.2d 1059.

That parol evidence rule is applicable only after a contract in writing or deed of conveyance has been legally executed and delivered. It has no application in the determination of the issue whether or not there was a legal delivery of the instrument in the first instance so as to give it the standing of a legally binding contract or deed, unless set aside or modified on the ground of fraud, accident or mutual mistake, inducing its execution.

In Steffian v. Milmo Nat’l. Bank, 69 Tex. 513, 6 S.W. 823, 824, this was said, in opinion by Justice Gaines:

“It is elementary law that the delivery of a deed is requisite to its validity as a conveyance. To take effect, it is quite as necessary that it should be delivered as, that it should be signed. To complete a delivery in its legal sense, two elements are also essential. The instrument must not only be placed within the control of the grantee, but this must be done by the grantor with the intention that it shall become operative as a conveyance.
“It follows from these first principles that an instrument which passes into the possession of the grantee, without such intention on part of the grantor, is wholly inoperative; and that a purchaser from the former acquires in law no title to the property which it purports to convey.”

That statement of the rule has been quoted and applied in numerous decisions, including Cox v. Payne, 107 Tex. 115, 174 S.W. 817; Coleman v. Easton, Tex.Com.App., 249 S.W. 200, 202, and in the latter case this was said:

“The cases all hold that the question of delivery is one of intention, as manifested by the words and acts of- the grantor, and there is no delivery unless there exists an intention that the deed is to pass, title immediately to the land conveyed. In the case of Taylor v. Sanford, 108 Tex. 345, 193 S.W. [661], 662, 5 A.L.R. 1660, Judge Phillips makes it clear that the manual delivery of the instrument, or the dominion and control over same, is of secondary importance, and the chief thing is the grantor’s intention. As very concisely stated by him:

“ ‘If the instrument be so disposed of by him, whatever his action, as to clearly evince an intention- on his part that it shall have effect as a conveyance, it is a sufficient delivery.’ ”

We quote the following from Thomason v. Berry, Tex.Com.App., 276 S.W. 185, 186: “A contract is not effected until there has been a delivery, either actual or constructive,' and if the instrument in controversy was delivered upon' the express condition that it was not to be binding as an instrument until signed by De Pascale, then the failure of De Pascale to sign destroys the very existence of the contract, and it may be.shown in defense. Steffian v. Bank, 69 Tex. 513, 6 S.W. [823], 824; Coleman v. Easton (Tex.Com.App.) 249 S.W. 200; Morris v. Logan (Tex.Civ.App.) 273 S.W. 1019.”

In Morris v. Logan, Tex.Civ.App., 273 S.W. 1019, writ refused this was said: “A written contract, be it deed or note or otherwise, does not become effective until it is delivered to the grantee, or some one for him, for that purpose and with that intention. If it is delivered into the possession of the grantee upon a special condition, as in this case, it is but a conditional delivery; and such delivery does not become absolute, and the instrument does not become effective, until the happening of the contingency provided for. In such case it is proper to show the stipulated condition, to which end the true facts and circumstances evidencing the intention and agreement of the parties may be shown by parol evidence, and when thus ascertained will be given effect. Steffian v. Bank, 69 Tex. 513 [6 S.W. 823]; Coleman v. Easton (Tex.Com.App.) 249 S.W. 200; Silliman v. Oliver (Tex.Civ.App.) 233 S.W. 867 [Id., Tex.Civ.App.], 247 S.W. [902], 903 (writ refused).”

See, also, McCartney v. McCartney, 93 Tex. 359, 55 S.W. 310; Skeen v. Skeen, Tex.Civ.App,, 204 S.W. 379; Roddy v. Citizens’ State Bank of Copeville, Tex.Civ.App., 11 S.W.2d 652; Holt v. Gordon, Tex.Civ.App., 176 S.W. 902; Farrar v. Holt, Tex.Civ.App., 178 S.W. 618.

As shown by plaintiff’s pleadings and his testimony, the alleged contract and lease were to be placed in the bank in escrow for future delivery to him. According to his testimony, at the time the lease was handed to him, he did not have the money necessary to drill a well within the 60 day-period, as required by the terms of the lease, and it was necessary for him to procure the money from another person, but could not do ■ so until the lease was first deposited in escrow with the bank; and after the lease was- handed to him by Mrs. O. Wilson at her home, he handed it'back to her, with the request she have D. W. Crawford place it in escrow with the bank, which was never done, and by-reason thereof, he was unable to drill a well within the required period- of time, as a result of which he suffered damages in the sum of $25,000.

His testimony, in connection with that of Mrs. O. Wilson and other members of her family, who executed the lease, fully supports the findings of the jury in answer to issues Nos. 2 and 3. And under the decisions last cited, that testimony of defendants was admissible.

Accordingly, all assignments of error are overruled and the judgment of the trial court is in all respects affirmed.


author: SMITH, Chief Justice.

text:
    SAMUELS GLASS CO. OF CORPUS CHRISTI v. MARTIN.
    No. 10718.
    Court of Civil Appeals of Texas. San Antonio.
    March 27, 1940.
    H. J. Putman and R. C. Van Ness, both of Corpus Christi, for appellant.
    O. Kennedy, of Beeville, for appellee.
   SMITH, Chief Justice.

This appeal is from an order of the District Court of Bee County overruling the plea of privilege of Samuels Glass Company of Corpus Christi to be sued in Nueces County, in which it is domiciled.

The suit was brought by H. B. Martin against the Glass Company for alleged breach of a contract in the form of a written bid alleged to have been submitted by the Company to Martin and accepted by him. Martin sought to sustain venue in Bee County upon the ground that the Glass Company had agreed in writing to perform the obligation of the contract in that County, as provided in the fifth exception to the General Venue Statute, Art. 1995, as amended by the Acts of 1935, as follows: “5. Contract in Writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” As amended Acts 1935, 44th Leg., p. 503, ch. 213, § 1, Vernon’s Ann.Civ.St. art. 1995, subd. 5.

It is contended by appellee that the written contract binding appellant to perform the obligations thereof in Bee County was as follows:

“Samuels Glass Company Of Corpus Christi, Texas Telephone 1453
“Salesman-No.-- Date: 4 — 29-39
“Sold to Piggly-Wiggly Job
“Address: Beeville, Texas
“Ship by-
“When Ship- Terms: -
Quan. Description Price
“All Steel Sash and Glazing
“All Structural Glass
“Stainless Steel Door Facing
“Awning Face Metal
“Plate Glass & Metal Sash
“All materials as per Plans and Specifications $1130.00”

Obviously, there is nothing in this writing obligating the Glass Company to deliver the articles described to anybody in Beeville, or Bee County. Giving effect to an inference from the writing that the Glass Company “sold” the articles described to appellee or any other person, “address, Beeville,” the instrument still falls far short of an express agreement upon the part of the Glass Company to deliver the articles to the purchaser at Bee-ville. Nor may such agreement result as a necessary implication from the written provision to sell the articles to a person whose address was Beeville. So far as the writing shows, the parties may have contemplated that the articles be shipped f. o. b. cars or trucks at Corpus Christi, the recited and admitted domicile of the seller. The record does not show such obligation on the part of appellant to perform in another county as would deprive it of its statutory privilege of being sued in its own bailiwick.

Appellee contends in his brief, for the first time, that venue lay in Bee County by virtue of the 23d exception to the venue statute, because a part of his cause of action against appellant, a corporation, arose in that county. But appellee did not set up that ground, or facts constituting it, in his controverting affidavit, and cannot raise it for the first time on appeal.

The judgment is reversed and the venue of the suit ordered changed to the 117th District Court of Nueces County, as provided in Art. 2020, R.S.1925, as amended by the Acts of 1933, 43d Leg., p. 546, ch. 177, Vernon’s Ann.Civ.St. art. 2020.

Reversed with instructions.


author: McClendon, chief justice.

text:
    BATES v. RAILROAD COMMISSION et al.
    No. 8988.
    Court of Civil Appeals of Texas. Austin.
    March 13, 1940.
    Rehearing Denied April 10, 1940.
    A. M. Felts, of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Glenni R. Lewis and Geo. W. Barcus, Asst. Attys.. Gen., for appellees.
   McClendon, chief justice.

Appeal from a final judgment of dismissal (after sustaining a general demurrer and Bates’s declining to amend) in a suit in which Bates sought to enjoin the Commission, its members, and certain other - officials and employees of the State, from; interfering with his operating over the state highways of twelve trucks, “in the-transportation of merchandise and freight for hire exclusively in interstate commerce-by motor vehicle.” Bates had no certificate, permit or other authorization from the Texas Commission to operate over Texas highways; but claimed the right to so operate under the “grandfather clause” of the Federal Motor Carrier Act 1935, 49 U.S.C. § 306, 49 U.S.C.A. § 306. The case is ruled by the decisions in McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164; Winton v. Thompson, Tex.Civ.App., 123 S.W.2d 951, error refused; Railroad Comm. v. Tips, Tex.Civ.App., 130 S.W.2d 1078.

The trial court’s judgment is affirmed..

Affirmed.


author: STOKES, Justice.

text:
    FORD et al. v. STATE ex rel. SCHULTZ.
    No. 5131.
    Court of Civil Appeals of Texas. Amarillo.
    March 18, 1940.
    Art Schlofman, of Dalhart, and Works & Bassett, of Amarillo, for appellants.
    Harry Schultz, J. S. Bailey, and Tatum & Tatum, all of Dalhart, for appellees.
   STOKES, Justice.

This is an appeal from a temporary injunction granted by the district judge in Chambers enjoining and restraining appellants from removing or in any manner molesting a building located upon property formerly belonging to them but which had been condemned for highway purposes. In connection with their motion to dissolve the temporary injunction appellants filed an answer to the allegations of the petition and, upon grounds alleged in their answer, they sought, by way of cross-action, an injunction against appellees and the sheriff of Dallam County restraining them from executing a writ of possession which had been placed in the hands of the sheriff.

The case made by the petition, the motion to dissolve and the answer and cross-action was set for hearing on the 25th of April, 1939. On that day, the record shows, all parties appeared and announced ready for trial. The court heard the pleadings, the evidence and argument of counsel and, after duly considering the same, rendered judgment denying the motion to dissolve the injunction theretofore granted, denying also the application for injunction contained in appellants’ cross-action and extending the original injunction until the further orders of the court. It is from that judgment this appeal is prosecuted.

The record is before us without a statement of facts, assignments of error or briefs and we are not apprised, therefore, of the nature of appellants’ complaint of the judgment. We have examined the transcript, including the pleadings, judgments and other documents shown therein and we do not find anything in the record which' could be considered fundamental error. The rule is well established by the decisions that the granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the trial court and, unless it clearly appears from the record that there has been an abuse of that discretion, the action of the trial court will not be disturbed by an appellate tribunal. Harding v. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; City of Farmersville v. Texas-Louisiana Power Co., Tex.Civ.App., 33 S.W.2d 271, 272; Woods v. Humber, Tex.Civ.App., 282 S.W. 834; City of Waco v. Grimes, Tex.Civ.App., 279 S.W. 312.

Appellees’ pleadings were amply sufficient to support the relief granted and, in the absence of a statement of facts, we have no way of knowing what was shown by the evidence. The record shows that the case was presented by both pleadings and evidence and we must presume the evidence was sufficient to support the judgment rendered by the trial court.

We find no error revealed by the record and the judgment of the court below will be affirmed.


author: McCLENDON, Chief Justice.

text:
    McDERMOTT v. STECK CO.
    No, 8905.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1940.
    Rehearing Denied April 3, 1940.

      Wallace & Wallace, of Cameron, for appellant.
    W. A. Morrison, of Cameron, for ap-pellee.
   McCLENDON, Chief Justice.

This is a suit to recover title to and possession of 50 acres of land in Milam County, brought by appellee, Steck (The Steck Company, a corporation), against appellant, S. H. McDermott. In a. trial to the court without a jury, Steck recovered as prayed. McDermott has appealed.

The facts are without dispute. Mrs. Witliff is common source of title. April 26, 1937, Steck recovered a personal judgment against her for $94.51, in a justice court in Travis County. An abstract of this judgment was filed, recorded, and (as noted below) indexed in the judgment records of Miiam County, July 24,- 1937." Mrs. Witliff conveyed the land to Mc-Dermott by general warranty deed dated July 26, 1937, acknowledged July 29, 1937, and recorded in Milam County August 2, 1937. At that time there were, state, county, and school and road district taxes due on the land for the years 1926-1937, inclusive. These were paid by a bank at the request of McDermott September, 27, 1937, and, also at his (verbal) request, the tax collector at the time of the payment transferred to the bank the lien securing the taxes. McDermott later paid the bank- and the tax lien was by it transferred to him. McDermott in reconvention (in the alternative, in case Steck recovered the land) sought foreclosure of his asserted lien for the taxes he had thus paid. May 3, 1938 Steck purchased the land at sheriff’s sale under alias execution issued upon its judgment March 4, 1938, and levied upon the land March 12, 1,938; and sheriff’s deed, executed the same day, conveyed the land to Steck.

The first point raised by appellant is to the, effect that appellee acquired no valid abstract of judgment lien because the abstract was not indexed under the letter “T”, the corporate name of appellee being, “The Steck Company.” The abstract was otherwise properly indexed under the letters “S” and “W”. We overrule this point upon the authority of Burnett v. Cockshatt, 2 Tex.Civ.App. 304, 21 S.W. 950, and B. F. Avery & Sons v. Tex. Loan Agency, Tex.Civ.App., 62 S.W. 793, 794. The opinion in the former was by • Judge Williams, then on the Galveston court, later on our Supreme Court. The plaintiff’s corporate name there was “The J. L. Mott Iron Works,” the indexing as to the corporation was only under the letter “M” as follows: “Mott, J. L., Iron Works.” This was held proper and sufficient. We read from Judge Williams’s opinion (which, so far as we have discovered, has never been overruled) : “The article ‘the’ is so habitually used in naming corporations that it may be held that, for purposes like this, it is not to be treated as forming any part of the name. It in no way helps to distinguish one body from another, for it is used in connection with nearly all corporations, in the legislation of the day. The name ‘Mott’ [‘Steck’ here] is that which does identify this corporation, and seems more completely to do so than any other word in the name.”

The same conclusion was reached in the latter citation (opinion by Judge Temple-ton of the Dallas Court), where the corporate name was “B. F.- Avery & Sons,” and the indexing was under the letter “A” and not “B”. Judge Templeton adverts to-the fact that: “This rule appears to be universally followed .by court reporters in indexing reported cases to which such corporations are parties.” . And further: “Any other rule would be: confusing and misleading, and defeat the purpose of the statute.”

The'second point urged is that the trial court should have sustained general and special demurrers to Steck’s petition upon the asserted ground that Steck chose to plead specially its title and did not affirmatively allege that its abstract of judgment was properly indexed. The first and second paragraphs in the petition are in the' usual form of trespass to try title and are manifestly sufficient for all purposes and against every demurrer. The third paragraph reads: “Plaintiff would further show that Defendant S. H. Mc-Dermott is claiming said property under and by virtue of a deed from Mrs. Winifred Witliff; that at the times of the execution and delivery filing' and recordation of said deed, plaintiff had a valid and subsisting judgment lien against the said Mrs. Winifred Witliff, under whom said defendant S. H. McDermott claims; that such claim of said defendant McDermott was acquired subsequent to and is subordinate to the rights of the Plaintiff.”

If this pleading be properly construed as a special one of title, it was clearly sufficient against a general demurrer. Overruling the special demurrers, if error, was harmless, since no prejudice was shown. Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822.

The third point urged is that certified copy of the justice court judgment was improperly admitted in evidence, because (1) it was shown not to have been recorded on the justice’s docket as required by Art. 2431, R.C.A.; and (2) “it was never filed in the trial court as required by Art. 7382.”

The copy of the judgment which was signed by-' the justice and certified to by him read: “On this the 26th day of April, A. D. 1937, this cause being 'regularly reachéd on the docket, and called for trial and the defendant, though being duly cited as the law directs, came not but who wholly made default, and this cause being now submitted to the Court for trial without a jury, the Court,-after hearing the evidence and being advised in the premises, finds for the plaintiff, The Steck Company, a corporation, that there is due it on the sworn account sued on, the sum of Ninety-four and '51/100 ($94.51) Dollars, which is past due and unpaid. It is therefore ordered, adjudged and decreed by the Court that the plaintiff, The Steck Company, a Corporation, do have and recover from the defendant Winifred Witliff, a widow, the sum of Ninety-four & 51/100 ($94.51) Dollars; and that the same bear interest from this date until fully paid at the rate of 6% per annum, together with his cost and charges in this behalf expended, for all of which let execution issue.”

McDermott, in connection with this objection, introduced a certified transcript of the justice’s docket covering the case which contained the following over the justice’s signature:

“Judgment for Plaintiff 4-26-37
“Judgment for the Plaintiff on the 26th day of April, A. D. 1937, for the sum of $94.51 plus interest from this date at the rate of 6 per cent per annum all costs of suit in this behalf expended, for all of which let execution may issue. Judg. on file with papers in this cause.”

The docket gave the names of plaintiff and defendant, and described the action as “Suit upon sw. acct. for $94.51.”

San Antonio & A. R. Ry. Co. v. Thigpen, Tex.Civ.App., 57 S.W. 66 (Judge Fly writing for the San Antonio Court) and Texas & N. O. Ry. Co. v. Garrett, 42 Tex.Civ.App. 258, 92 S.W. 1040 (Judge Pleasants writing for the Galveston Court) held Art. 2431 directory, and that failure of the justice to comply did not affect the validity of the judgment Moreover, in the former, where the judgment entry on the docket read, “Judgment for plaintiff for $110.00. Interest from this date at rate of 6% int. per annum,” it was held: “Had there been no other entry made than the one -made on July 8th [that quoted], it would be sustained as a valid judgment.”

Art. 3726 which requires filing in the cause of certified copies of instruments to be used in evidence has no application to certified copies of judgments from other counties. McDaniel v. Weiss, 53 Tex. 257; Cannon v. Cannon, 66 Tex. 682, 3 S.W. 36. The introduction of certified copies of judgments and other court records is governed by Art. 3720. The point is overruled.

The fourth point (which we overrule) asserts error in admitting in evidence the execution and return thereon because it was shown that the transcript of the judgment and execution issued thereon had not been recorded in Milam County as required by Art. 6637, R.C.S. Failure to comply with this article does not render inadmissible other proof of the judgment and proceedings thereunder. 26 Tex.Jur., pp. 851, 852, § 60.

The fifth point urges that there was no competent evidence of the judgment because the certified copy introduced by Steck was shown not to have been recorded on the justice’s docket, and the transcript of the docket was introduced only by McDermott, and for the limited purpose only of showing the non-recording of copy introduced by Steck. We overrule this point for the reasons stated under point 3 above.

Moreover, the certified copy showed on its face a judgment regular in every respect. The impeaching evidence (the transcript of the docket) showed on its face that a judgment was rendered substantially as that certified, and one sufficient to support the execution.

We sustain appellant’s sixth point to the effect that he was entitled to foreclosure of a lien (equitable, if not legal) upon the land to secure the amount he had paid in taxes thereon. As above shown appellant acquired title to the land from Mrs. Witliff in July, 1937. At that time the involved taxes were secured by a first lien upon the property and Steck’s abstract of judgment lien was subordinate thereto. As owner of the beneficial as well as the legal title, appellant had the right to discharge that lien in order to protect his title. He was in no sense a volunteer. His procuring the bank to make the payment was the same as if he had made the payment himself. He was personally liable to the bank for the sum it had so advanced; and he later discharged that obligation. It is not material whether the bank acquired a lien upon the property under Art. 7345a, Vernon’s Ann.Civ.St. Having discharged a senior incumbrance (the tax lien) to protect his own title, appellant was in equity entitled to subrogation to that lien as against a junior incumbrancer (Steck). The following decisions support this holding. Hill v. Moore, 85 Tex. 335, 348, 19 S.W. 162; Meador Bros. v. Hines, Tex.Civ.App., 165 S.W. 915, error 'refused; Hines v. Meador, Tex.Civ.App., 193 S.W. 1111, error refused; Capital, etc., Ass’n v. Sosa, Tex.Civ.App., 72 S.W.2d 936, 937.

The trial court’s judgment is reformed so as to establish a lien upon the land in suit in favor of appellant for the sum of $62, with 6% interest per annum thereon from September 27, 1937, and to foreclose such lien. As so reformed it is affirmed.

Reformed and affirmed.

On Appellee’s Motion for Rehearing.

Our holding that appellant was entitled to an equitable lien to reimburse him for taxes he had paid on the property is assailed by appellee on the ground that “appellant could not possibly become sub-rogated to the tax lien because such subro-gation can never be in favor of, but is always against the true owner of the land at the time such payment is made.” The cases cited in our original opinion are asserted to be inept; and in support of the above contention Harrison v. First Nat. Bank, Tex.Com.App., 238 S.W. 209, 210, is cited. This case fully recognizes the principle we have here applied; and quotes as a rule of universal application the following from Pomeroy’s Eq. Juris, 4th Ed., Vol. 3, par. 1212, p. 2902: “In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays oil the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subro-gated to the rights of the mortgagee to the extent necessary for his own equitable protection.”

A distinction, which is fundamental and controlling, is made between such case and one where the purchaser of property is himself obligated to pay the debt which is secured by the prior incum-brance. The rule in the latter case is thus given in the syllabus: “When a grantee as part of the consideration for land assumes the payment of a mortgage or other lien against it, the payment of the indebtedness which the lien represents completely extinguishes the lien, and the grantee cannot be subrogated to the rights of the lienholder, nor keep the lien alive for any purpose.”

The applicable rule is thus stated in 25 R.C.L., p. 1353: “There are numerous decisions to the effect that where a purchaser buys land and takes a deed thereto, and subsequently pays a prior lien on the • property which he is not primarily bound to pay, but which if not paid might cause him to lose his interest therein, he is subrogated to the rights and remedies of such prior lien, as against a lien which is superior to his title.”

The same rule is announced in 60 C.J. p. 789, § 99, and 39 Tex.Jur. p. 780, § 23.

In so far as concerns the question at issue, there is no difference in principle between a tax lien and other incumbrance. The rule is one of general application based upon established principles of equity jurisprudence of long standing.

There is an extended note upon the subject as related specifically to taxes in 61 A.L.R., beginning on page 599, second column. See, also, 39 Tex.Jur. p. 779, § 22.

Appellant was in no sense liable for these taxes. He acquired the property from Mrs. Witliff, July 26, 1937, by general warranty deed for $500 cash. At that time the involved taxes, which were for prior years, had already accrued and were a first lien upon the property. Appellee’s lien was subordinate thereto. There was no obligation on appellant’s part to discharge the tax lien, and his only purpose in discharging it was to protect the title he acquired under his deed. Under the above authorities he was entitled to an equitable lien, superior to appellant’s lien, to reimburse him for the taxes he had so paid.

The motion is overruled.

Overruled.


author: PER CURIAM.

text:
    RENFRO v. BURRELL.
    No. 12856.
    Court of Civil Appeals of Texas. Dallas.
    March 9, 1940.
    Bishop & Parsons, of Athens, for appellant.
    Jack T. Life, of Athens, for appellee.
   PER CURIAM.

The appeal is from an order of temporary injunction. On March 4, 1939, Julia Bur-rell, administrator of the estate of Marion Barker, deceased, filed sworn petition for such relief against appellant, alleging that, as administrator of said estate, she had rented 112 acres thereof to Jim Massey for the year, and that said tenant was living thereon and attempting to farm the same; that appellant was trespassing on the property and endeavoring to cultivate a part of the land, against the wishes and demands of the administrator; that regardless of protest, appellant was exercising rights of tenancy for the year 1939; appellee, as plaintiff, pleading irreparable injury and no adequate remedy at law. A writ of temporary injunction was granted ex parte, which was forthwith superseded, the record being filed in this court March 13, 1939.

Though, from the nature of the proceedings, this cause had priority over other pending cases, no motion has been made by either party to advance and promptly dispose of the issues on appeal. Art. 4662, R.S. It is further obvious from appellee’s verified pleading that the same involves possessory rights to the acreage in question for the year of 1939 — subject matter which has now become moot. As a consequence, this appeal must be dismissed at appellant’s cost.


author: BLAIR, Justice.

text:
    LALLY v. STATE et al.
    No. 8933.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1940.
    Rehearing Denied April 10, 1940.
    Harry C. Weeks and R. B. Cannon, both of Ft. Worth, for appellant.
    Gerald C. Mann, Atty. Gen., and Geo. W. Barcus, Ocie Speer, and Morris Hodges, Asst. Attys. Gen., for appellees.
    Kemper, Hicks & Cramer, of Houston, and Saner, Saner & Jack, of Dallas, ami-cus curiae.
   BLAIR, Justice.

This is an appeal from an order overruling the plea of privilege of appellant, Ed. Lally, to be sued in Tarrant County, the county of his residence. The suit was instituted under authority of the Texas Unemployment Compensation Act, herein, referred to as Compensation Law, by the State of Texas and its Attorney General to recover the contributions or taxes and penalties alleged to be due by appellant as an employer under the Compensation Law. Art. 5221b — 12(b) Vernon’s Civil Statutes. Venue of the suit was sustained in Travis County under two articles of the statutes,— Art. 7076, which relates to venue of suits of the state for taxes and penalties, and which provides that: “The venue and jurisdiction of all suits arising hereunder is hereby conferred upon the courts of Travis County.” And Art. 7076a, which provides that: “It is further specifically provided that all of the provisions of this Act shall apply and be applicable to all delinquent State taxes due and owing to the State of Texas, of every kind and character whatsoever, including all franchise, occupation, gross receipts, gross production, gross premiums tax on insurance companies, inheritance, gasoline, excise and all other State taxes which become delinquent other than State ad valorem taxes on property.”

Appellant concedes that if the sums of money sued for are taxes other than state and ad valorem taxes on property, and penalties, then the venue of the suit is properly laid in Travis County under the statutes quoted. We hold that the sums sued for are such taxes and penalties and that the venue of the suit is in the District Court of Travis County.

The Texas Compensation Law (Art. 5221b — 1 et seq.) is a comprehensive scheme providing for unemployment benefits to laborers employed within this state by the employers designated therein. It was enacted by the Legislature, among other purposes, to comnly with the Federal Social Security Act, 49 Statutes 620-648, 42 U.S.C.A. §§ 301 to 1304, which imposes an excise tax on employers of eight or more employees at progressively increasing rates to be paid into the United States Treasury, and provides that the tax so imposed may be credited with not in excess of 90% of the amount of any contributions paid by such employers under any approved state law. Under the Compensation Law here involved, and when levied and collected by the state organization, the contributions, fines, penalties, and interest are deposited in the State Treasury to a special account designated as the “Unemployment Compensation Administration Fund,” which is then transmitted to and deposited in the United States Treasury to a fund designated “Unemployment Trust Fund,” which is repaid on the requisition of the state agency for its use in the administration of the state Compensation Law, and the act appropriates all monies so collected for that purpose.

The Texas Compensation Law provides-in its title that its enactment is for the purpose of creating and providing an unemployment compensation system and imposes a “tax” on employers of eight or more persons for the purpose of paying unemployment benefits. Its preamble declares that its enactment is for the “public good and general welfare of the citizens of this State,” and that “the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own” is necessary. Acts 1936, 3d Called Sess., c. 482, §§ 1, 2. It provides for unemployment benefits, the amount thereof, and the method of computing same. It creates the Texas Unemployment Compensation Commission to administer the state law in accordance with the Federal Social Security Act; and imposes a schedule for “contributions” which each employer is required to pay; and provides for the method for computing the annual “contributions” or taxes; and it provides the method of refund of “all payments of levies and taxes made hereunder” and unexpended, if the Social Security Act should be de--' dared unconstitutional, or if the contributions are for any reason not due.

Before amendment, the Compensation Law, Acts 1936, 3d Called Sess. c. 482, § 14(a), under which the sums here sued for became due, provides that: “Contributions unpaid on the date on which they are due and payable, as prescribed by the-Commission, shall bear interest at the rate of one (1%) per centum per month from and after such date until payment plus accrued interest is received by the Commission. Interest collected pursuant .to-this subsection shall be paid into the Unemployment Compensation Fund.”

And as emphasizing the purpose of the Compensation Law as being public rather than as creating a trust fund, it provides that: “The Legislature reserves the right to amend or repeal all or any part of this. Act at any time; and there shall be no-vested private right of any kind against such amendment or repeal. All the rights, privileges, or immunities conferred by this Act or by acts done pursuant thereto shall exist subject to the power of the Legislature to amend or repeal this Act at any time.”

The “contributions” herein sued for are in all material respects similar to the “contributions” required by the “Unemployment Compensation Act” of the state of Alabama ; and the Supreme Court of that state has declared such “contributions” to be “taxes”. Becland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516. In the case of Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 871, 81 L.Ed. 1245, 1255, 109 A.L.R. 1327, the Supreme Court of the United States approved the holding of the Alabama Supreme Court, as follows:

“In Beeland Wholesale Co. v. Kaufman, supra, the Supreme Court of Alabama held that the contributions which the statute exacts of employers are excise taxes laid in conformity to the constitution and laws •of the state. While the particular name which a state court or legislature may give to a money payment commenced by its statute is not controlling here when its constitutionality is in question, cf. Educational Films Corp. v. Ward, 282 U.S. 379, 387, 51 S.Ct. 170, 171, 75 L.Ed. 400, 71 A.L.R. 1226; Storaasli v. Minnesota, 283 U.S. 57, 62, 51 S.Ct. 354, 355, 75 L.Ed. 839; Wagner v. Covington, 251 U.S. 95, 102, 104, 40 S.Ct. 93, 94, 64 L.Ed. 157, 168; Standard Oil Co. v. Graves, 249 U.S. 389, 394, 39 S.Ct. 320, 63 L.Ed. 662, we see no reason to doubt that the present statute is an exertion of the taxing power of the state. Cf. Carley & Hamilton v. Snook, 281 U.S. 66, 71, 50 S.Ct. 204, 206, 74 L.Ed. 704, 68 A.L.R. 194.

“Taxes, which are but the means of distributing the burden of the cost of government, are commonly levied on property or its use, but they may likewise be laid on the exercise of personal rights and privileges. As has been pointed out by the opinion in the Chas. C. Steward Machine Co. Case [Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293], such levies, including taxes on the exercise of the right to employ or to be employed, were known in England and the Colonies before the adoption of the Constitution, and must be taken to be embraced within the wide range of choice of subjects of taxation, which was an attribute of the sovereign power of the states at the time of the adoption of the Constitution, and which was reserved to them by that instrument. As the present levy has all the indicia of a tax, and is of a type traditional in the history of Anglo-American legislation, it is within state taxing power, and it is immaterial whether it is called an excise or by another name. See Barwise v. Sheppard, 299 U.S. 33, 36, 57 S.Ct. 70, 71, 81 L.Ed. 23. Its validity under the Federal Constitution is to be determined in the light of constitutional principles applicable to state taxation.”

The decisions in these cases are in accord with our views and are so decisive of the question that the contributions exacted by our Compensation Law are excise or other state taxes (other than state ad valorem taxes on property), that further discussion of the question is not necessary. Having so determined, it follows that the venue of the suit by the state to recover such taxes is in Travis County under the terms of Arts. 7076 and 7076a, supra. These statutes are broad and comprehensive in their terms, express the long established policy of the legislature to fix the venue of suits for delinquent taxes (other than ad valorem taxes) due the state in Travis County. They fix the venue of every character of suit for delinquent taxes (other than ad valorem taxes), including taxes which might thereafter be levied; and this is true even though the subsequent taxing statute is silent as to venue. The venue statutes are intended to apply when any character of taxes due the state is sought to be recovered by suit; and they fix the venue of such suit in Travis County,

The question raised as to whether the District Court has jurisdiction of the suit because the amount of the contributions or taxes sued for is less than $500, is not determinable on this appeal from the interlocutory order determining only the venue issue. But if so, the contention is without merit because the suit is also one for penalties due the state, and Sec. 8, Art. 5, of the State Constitution, Vernon’s Ann. St., provides that, “the District Court shall have original jurisdiction * * * in all suits in behalf of the State to recover penalties,” etc.

It is true that the Compensation Law, before amendment, and under which the sums sued for herein' accrued, provides that past due contributions or taxes “shall bear interest at the rate of one (1%) per centum per month,” but the socalled “interest” is a penalty, and is recoverable only in the District Court. The calling of a penalty imposed by a statute for delay in payment of taxes, “interest” does not make it interest. This question was determined by our Supreme Court in the case of Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 133, 79 A.L.R. 983, wherein the court say:

“This view of the law makes it necessary for us to determine whether or not the interest exactions shown in some of the statutes, past and present, for tax delinquencies are to be regarded as interest eo nomine, imposed and demanded by the state as compensation for the detention of money, or whether such interest exac-tions are penalties, and subject to the same legislative power. We have carefully considered the history of our tax legislation, from the first act of the Republic to the law here involved. On the whole, we have concluded that the impositions made for delinquency in rendering property for taxation, and for failure to pay taxes, whether these impositions are denominated ‘penalties,’ ‘interest,’ ‘forfeitures,’ or whether prescribed without definition or name, are all in reality penalties imposed for delinquency or failure of duty, and all enacted in aid of the state’s revenue, rather than as charges made by the state for the use or detention of its money. In other words, the exactions are ‘penalties’ rather than ‘interest’ in the commercial or statutory sense.
* * * * * *
“In the first place, impositions for failure to make returns of and pay occupation taxes and other business and special taxes have been from the beginning to the present time penalties, sometimes named as such, sometimes referred to as forfeitures or fines, sometimes as ‘double the amount of the tax,’ or defined in some other manner, but all so plainly penalties that we deem an analysis and discussion of the laws unnecessary.”

It is further contended that if this court should hold that the “contributions” levied by compensation statute are taxes, then it is void upon several constitutional grounds. These attacks upon the constitutionality of the statute go to the merits of the case and are not determinable on this appeal from the interlocutory order overruling the plea of privilege. The issue raised by the plea of privilege relates solely to venue and the court has no jurisdiction to determine any matter or question involving the merits of the controversy until the venue issue is settled. Tide Water Oil Co. v. Bean, Tex.Civ.App., 118 S.W.2d 358, 360; Sumner v. Volunteer State Ins. Co., Tex.Civ.App., 100 S.W.2d 1079, 1083; Farmers Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Highway Motor Freight Lines v. Slaughter, Tex.Civ.App., 84 S.W.2d 533, 537.

The order overruling the plea of privilege is affirmed.

Affirmed.


text:
    BARRETT v. STATE.
    No. 8921.
    Court of Civil Appeals of Texas. Austin.
    March 20, 1940.
    Rehearing Denied April 10, 1940.

      Grady Barrett, of San Antonio, for appellant.
    Gerald C. Mann, Atty. Gen., and George W. Barcus, Ocie Speer, and Morris Hod.ges, Asst. Attys. Gen., for appellee.
    Kemper, Hicks & Cramer, of Houston, and Saner, Saner & Jack, of Dallas, amicus ■curiae.
   BLAIR, Justice.

This appeal is from an order overruling •the plea of privilege of appellant, Thur-man Barrett, to he sued in Bexar County, the county of his residence. The suit was brought by the State and its Attorney General to recover the “contributions” or taxes and “interest” or penalties alleged to be due by appellant as an employer under the Texas Unemployment Compensation Act, Vernon’s Ann.Civ.St. art. 5221b — 1 et seq. The case is companion to the case of Lally v. State, 138 S.W.2d 1111, this day decided by this court, except in the instant case the additional proposition is presented •that: “The caption of Senate Bill No. 412, Acts 43rd Leg., Regular Session, p. 581, wherein Article 7076, Chapter 2, Title 122, Revised Statutes of Texas of 1925, was .amended [Vernon’s Ann.Civ.St. art. 7076], .is misleading and deceptive, in that there is no intimation in said caption that Sections 1 and 2 of said Act would apply to any other additional taxes thereafter levied by the State of Texas, not contained in Title 122 of said Statutes, such as contributions to the Texas Unemployment Compensation Fund, required under an entirely ■different Title to said Statutes, and therefore, said Section 2 (Article 7076a, Vernon’s) violates Section 35, Article 3 of the Constitution [Vernon’s Ann.St.].”

The material portion of the title to the .amendatory act reads: "An Act for the purpose of strengthening and providing for .a stronger and more efficient administration and enforcement of all inheritance, occupation, gross receipts, gross production taxes, gross premiums taxes on insurance companies, gasoline, excise, sales, and all other State taxes, including intangible, and all ■character of delinquent State taxes other ■.than ad valorem taxes on property; •* * * fixing venue and jurisdiction of all suits in the courts of Travis County; * * * »

This title to the amendatory act is broad enough to cover every character of taxes due the state (other than ad valorem taxes on property), and fixes venue in Travis County. The title enumerates or mentions with reasonable certainty to apprise both the legislators and the public interested in the matter, the scope of the venue legislation and its pi obable contents, and particularly that venue of suits by the state for “all character of delinquent State taxes other than ad valorem taxes on property” is in Travis Copnty. These venue statutes are broad and general in their nature, and were intended to include taxes which might thereafter be levied, and were intended by the legislature to apply when any such character of taxes due the state is at any time sought to be recovered by suit.

The other questions raised on this appeal from the interlocutory order overruling the plea of privilege have been this day decided in the Lally case, supra; and the order appealed from in the instant case is affirmed.

Affirmed,


author: KRUEGER, Judge.

text:
    MIKESKA v. STATE.
    No. 21078.
    Court of Criminal Appeals of Texas.
    April 10, 1940.

      W. A. Wright, of San Angelo, and Wm. W. Tupper, of Seminole, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of five years.

Appellant’s main contention is that the evidence does not warrant and justify his conviction in this : That the preponderance of the evidence showed that he was insane at the time of the commission of the offense.

The state’s testimony, briefly stated, shows that sometime in the latter part of January or the first part of the month of February, 1939, appellant backed his car into a car belonging to Wesley Jennings, the injured party, and bent its fenders. Mr. Jennings asked him to pay for the damage to the car. Appellant replied that he would see Jennings the next morning but he failed to do so. About one week later, Jennings saw appellant at a basket ball game. Jennings asked him why he had not come to have the car repaired. Appellant replied that he did not get to it and did not know whether he would and then started to run. Jennings caught him by the arm, jerked him around and knocked him down twice. The next day appellant came to the filling station where Jennings was employed and purchased a bottle of Coca Cola and apologized for his previous conduct. Thereafter, on two or three occasions he came to where Jennings was employed and seemed to be friendly. On June 4th, about 8:00 P. M., he again came to the filling station anS inquired for Jennings, stating that he wanted Jennings to go fishing with him that night. Mr. Hawes, who was working at the station at the time, informed appellant that Jennings had gone home. Appellant then inquired where Jennings resided. After having obtained the proper directions of how to go to the home of Jennings, he left. Mr. Hawes, who became suspicious that everything was not well and serene, got into his car and hurriedly drove to the Jennings home, arriving there a few seconds before appellant did. Appellant stopped his car in front of the Jennings home, honked the horn on his car several times, and when Jennings appeared in his front yard, appellant began to shoot at him and continued to shoot until he had fired six or seven bullets into the body of Jennings, when he hurriedly drove away.

Appellant did not testify but he proved by several doctors and a number of lay witnesses that he was of unsound mind, while a number of lay witnesses offered by the State testified that he was sane; and also some of the witnesses offered by appellant testified that he was sane. Consequently, the question is one of fact to be determined by the jury who are the exclusive judges of the facts proven, the credibility of the witnesses, and the weight to be given to their testimony.

Appellant contends, however, that he not only established his insanity by a preponderance of the evidence but beyond a reasonable doubt. Whether he did so to the satisfaction of the jury was also a question for them to determine. Under the facts as disclosed by this record, we would not be justified in holding as a matter of law that appellant was insane at the time of the commission of the offense. To do so would be a usurpation of the functions of the jury and a substitution of our judgment for that of the jury.

Bill of Exception No. 2, complaining of the action of the trial court in overruling his motion for 'a new trial based on misconduct of the jury, cannot be properly appraised by us in the absence of a statement of the facts proven at the hearing of the motion. Moreover, it appears that appellant concedes that the bill, under the circumstances, fails to reflect any error.

Not being able to agree with appellant’s contention, the judgment of the trial court is affirmed.

PER CURIAM.

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


author: CRITZ, Justice.

text:
    J. T. JOHNSON, Plaintiff in Error, v. PROSPER STATE BANK, Defendant in Error.
    No. 7566.
    Supreme Court of Texas.
    April 24, 1940.
    W. H. Hall and B. W. Ashworth, both of Dallas, and Smith & Dowdy, of McKinney, for plaintiff in error.
    John D. Reese, of McKinney, for defendant in error.
   CRITZ, Justice.

We have carefully examined the opinion of the Court of Civil Appeals, reported in 125 S.W.2d 707, and, in our opinion, it correctly decides all questions of law necessary to be determined to decide this case.

The judgment of the Court of Civil Appeals is affirmed.


author: HAWKINS, Presiding Judge.

text:
    Wade BURTON, Appellant, v. STATE of Texas, Appellee.
    No. 21119.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    Clarke Wills, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for murder, punishment assessed being five years’ confinement in the penitentiary.

Since this court acquired jurisdiction of the case appellant has filed his affidavit advising that he does not desire to further prosecute his appeal, and at his request the same is ordered dismissed.


text:
    W. L. LAWHON, Appellant, v. STATE of Texas, Appellee.
    No. 21143.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Alvin F. Nemir, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for forgery, punishment assessed at two years in the penitentiary.

Since the jurisdiction of this court attached appellant has filed his personal affidavit advising that he no longer desires to prosecute his appeal, and the same is dismissed at his request.


text:
    M. N. NUNN, Appellant, v. STATE of Texas, Appellee.
    No. 21116.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for injuring a person while attempting to break jail; the punishment assessed is confinement in the state penitentiary for a term of two years.

The appellant has filed an affidavit to dismiss this appeal, duly verified as required by law. The motion is granted as prayed for and the appeal is dismissed.

PER CURIAM.

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


author: HAWKINS,. Presiding Judge.

text:
    Guthrie SHELBY, Appellant, v. STATE of Texas, Appellee.
    No. 20963.
    Court of Criminal Appeals of Texas.
    April 3, 1940.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS,. Presiding Judge.

Conviction is for receiving and concealing stolen property, punishment assessed being three years’ confinement in the penitentiary.

Since this court acquired jurisdiction of the cáse appellant has filed his affidavit advising that he does not further desire to prosecute his appeal, and at his request the same is ordered dismissed.


author: BROWN, Justice.

text:
    ANDERSON & KERR DRILLING CO. et al., Appellants, v. F. A. BRUHLMEYER et al., Appellees.
    No. 13795.
    Court of Civil Appeals of Texas. Fort Worth.
    April 5, 1940.
    Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, and Hayes, Richard son, Shartel, Gilliland & Jordan, of Oklahoma City, Old., for appellants.
    John W. Culp, of Gainesville, Fred H. Minor, of Denton, A. A. White, of Tyler, Wynne & Wynne and Wm. A. Wade, all of Longview, and A. W. Walker, Jr., and Preston Shirley, both of Austin, for ap-pellees.
   BROWN, Justice.

As is shown in our opinion published in 115 S.W.2d 1212, this is an appeal from an order granting an application for a receiver in a cause pending in the District Court of Cooke County.

The cause being certified to the Supreme Court, that Court, as is shown by its opinion published in 136 S.W.2d 800, answered the questions so certified in a manner nullifying the original opinion handed down by us.

In obedience to and in accordance with the opinion of the Supreme Court, the former opinion by this court is withdrawn, the order entered in accordance with our former opinion is set aside, .and all assignments of error are overruled, and the judgment of the trial court is affirmed.


text:
    R. C. HENDERSON, Plaintiff In Error, v. C. A. HORN, Defendant in Error.
    No. 10710.
    Court of Civil Appeals of Texas. San Antonio.
    March 13, 1940.
    Rehearing Denied April 10, 1940.
    Atlas Jones, of Uvalde, for plaintiff in error.
    William J. Fuller, Jr., of Montgomery, Ala., for defendant in error.
   PER CURIAM.

Affirmed without written opinion. Associated Indemnity Corporation et al. v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.


text:
    The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. Dora R. FLORES et vir., Appellees.
    No. 10677.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Motion for Rehearing Withdrawn March 27, 1940.
    G. Woodson Morris, of San Antonio, for appellant.
    Gus B. Mauermann and Albert C. Buss, both of San Antonio, for appellees.
   PER CURIAM.

The judgment of the trial court is affirmed.


text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. M. C. PALACIOS, Appellee.
    No. 10713.
    Court of Civil Appeals of Texas. San Antonio.
    March 27, 1940.
    Cox, Hasting & Gragg, of Dallas, for appellant.
    N. C. Burney and F. C. Canfield, both of Floresville, for appellee.
   PER CURIAM.

Affirmed without written opinion. Associated Indemnity Corporation et al. v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.


text:
    CAMP v. BOND, Chief Justice, et al.
    Motion No. 14459.
    Supreme Court of Texas.
    April 24, 1940.
    Bowyer, Gray, Thomas & Jaffe, of Dallas, for the motion.
    McCombs & Andress and Wm. And.ress, Jr., all of Dallas, opposing thé motion.
   PER CURIAM.

Relator by motion seeks leave to file in this Court a' petition for mandamus to require the Justices of the Court of Civil Appeals at Dallas to certify certain questions arising upon his' plea of privilege. The privilege casé has twice been appealed. Gn the first appéal the Waco Court remanded the case for a new trial on the privilege question. See Camp v. Screen Broadcasts, Inc., Tex.Civ.App., 118 S.W.2d 398. On the next appeal the Dallas Court arrived at a conclusion contrary to that announced by the Waco Court on the former appeal. The opinion of the Dallas Court on the second appeal will be found reported in Film Advertising Corp. v. Camp, 137 S.W.2d 1068; After carefully considering the petition in’ connection with so much Of the record as accompanies same, including the opinion of the Dallas Court, we have concluded that that Court has followed a prior decision of this Court. See Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810. The motion for leave'to file the petition will therefore be denied, even though a conflict exists between the opinions of the two courts of civil appeals upon the question. As stated in Aetna Life Ins. Co. v. Gallagher, 127 Tex. 553, 94 S.W.2d 410, 412, “* * • * the Supreme Court will not require the certification of a question which it has already decided,, unless the decision of the Court of Civil Appeals on that question is contrary to the Supreme Court’s decision thereon.”

The motion is overruled.