author: GRISSOM, Justice.

text:
    HERNANDEZ v. ALMENDAREZ.
    No. 1976.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 2, 1940.
    Rehearing Denied March 1, 1940.

      Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellant.
    Kazen & Kazen, of Laredo, for appel-lees.
   GRISSOM, Justice.

, Marcelino Almendarez, by his next friend, brought this suit against Adan Hernandez for damages alleged to have resulted from defendant’s negligence in causing his automobile to run over plaintiff’s foot. Plaintiff testified, in substance, that his was 11 years of age; that prior to the accident he had been living with defendant’s mother, defendant being a member of the same household; that on the day of his injury defendant and Falcon and two other boys pushed an old light delivery truck from their yard into the street trying to start the engine, the battery being “dead;” that defendant told plaintiff to help push the truck; that the fenders had been removed from the truck and only the brackets, which had formerly supported the fenders, remained on the sides of the truck; that while pushing on the side of the truck plaintiff got his foot hung on one of the brackets protruding from the side of the truck, causing the truck to run over his foot and mash three of his toes, etc.

Upon the verdict the court rendered judgment for plaintiff for $850. Defendant has appealed.

Special issues Nos. 5 to 9, inclusive, and the answers thereto, are in substance as follows: (No. 5) That defendant knew of plaintiff’s presence at the truck before the accident happened. (6) That a person of defendant’s capacity, discretion and intelligence would have known plaintiff was “in such position of danger upon the occasion in question.” (6a) “Do you find from a preponderance of the evidence that defendant so observed and knew of plaintiff’s dangerous position a sufficient time before the accident to have enabled the defendant in the exercise of that degree of care which would have been ordinarily exercised by a person of his capacity, discretion and intelligence, under the same or similar circumstances, to have caused the removal of the plaintiff from such position before the happening of the accident upon the occasion in question?” With reference thereto the court instructed the jury to answer: “He did have a reasonable time to remove plaintiff”, or “He did not have a reasonable time to remove plaintiff.” The jury answered: “He did have a reasonable time to remove the plaintiff.” (7) “Do you find from a preponderance of the evidence that the defendant upon discovering such position of plaintiff failed to cause the removal of the plaintiff, but permitted him to remain therein, before putting the truck in motion?” Issue No. 8 inquired whether such conduct constituted negligence, and No. 9 whether such negligence was the proximate cause of plaintiff’s injuries. All of said issues were answered favorably to plaintiff. The answers to said issues constitute the only finding of negligence and proximate cause.

Defendant’s first proposition is to the effect that the court erred in submitting said special issues because they were not supported by the pleadings. In particular it is urged that none of the pleadings in the case allege as a ground of negligence defendant’s failure to remove plaintiff from the truck, or its vicinity, or that such failure was the proximate cause of plaintiff’s injuries, as inquired about in issues 6a and 7. Their submission was objected to for the reason.they were not supported by the pleadings. After careful consideration of the pleadings we have concluded said proposition must be sustained. We think it is evident plaintiff did not attempt to charge defendant with failure to remove plaintiff from the truck, or its vicinity, as a ground of negligence, and that defendant’s objection to special issues Nos. 6a and 7, in particular, should have been sustained.

Defendant further contends, in connection with issues Nos. 6 and 6a, that there was no pleading that “a person of defendant’s capacity, discretion and intelligence ordinarily under the same or similar circumstances would have known and appreciated the fact that plaintiff was in such position of danger upon the occasion in question.” Defendant’s contention is correct. However, plaintiff in his brief says that it was discovered upon the trial of the case for the first time that defendant was only 17 years of age. This statement is supported by the statement of facts. We do not understand, however, how such language could have been detrimental to defendant. Such allegations were made with reference to plaintiff, a boy 11 years of age, and the issues as to his negligence likewise submitted. The court, itpon ascertaining defendant was only 17 years of age, evidently intended to give defendant and plaintiff alike the benefit of such allegations.

Since, as heretofore stated, the issues discussed are found to be without support in the pleadings, and since the jury’s answers thereto constitute the only finding that defendant was negligent, and that his negligence was the proximate cause of plaintiff’s injury, the judgment must be reversed. Dollahite-Levy Co. v. Phillips, Tex.Civ.App., 99 S.W.2d 688; Gulf, C. & S. F. Ry. Co. v. Baldwin, Tex.Civ.App., 2 S.W.2d 520; Texas & N. O. Ry. Co. v. Crow, 121 Tex. 346, 48 S.W.2d 1106; Connecticut General Life Ins. Co. v. Banderbee, Tex.Civ.App., 82 S.W.2d 764; Texas & N. O. Ry. Co. v. Harris, Tex.Civ.App., 101 S.W.2d 640; Texas Emp. Ins. Ass’n v. Phelan, Tex.Civ.App., 103 S.W.2d 863; Dorsey v. Temple, Tex.Civ.App., 103 S.W. 2d 987; City of Winters v. Bethune, Tex. Civ.App., 111 S.W.2d 797.

We sustain defendant’s second proposition. The court erred in failing to submit to the jury special issues requested by the defendant inquiring, in effect, whether plaintiff was warned to stay away from the truck; whether plaintiff’s failure to heed the warning, if given, was negligence and the proximate cause of plaintiff’s injuries. We think said issues were raised by the pleadings and evidence, and that the issues submitted by the court were not sufficient to take the place of the requested issues.

In view of another trial we call attention to the fact that the Supreme Court, in Gulf C. & S. F. Ry. Co. v. Giun, 131 Tex. 548, 116 S.W.2d 693, 695, 116 A.L.R. 795 has suggested the proper form for submission of the issue of unavoidable accident and instructions to the jury as to how the issue should be answered. Also see Texas Emp. Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.2d 658; McClelland v. Mounger, Tex.Civ.App., 107 S.W.2d 901, 906; Thurman v. Chandler, 125 Tex. 34, 81 S.W .2d 489; Psimenos v. Huntley, Tex. Civ.App., 47 S.W.2d 622; Fidelity & Cas. Co. v. Van Arsdale, Tex.Civ.App., 108 S.W. 2d 550, 554; S. Blickman, Inc. v. Chilton, Tex.Civ.App., 114 S.W.2d 646, 650.

We overrule defendant’s propositions Nos. 8 and 9, which are to the effect that the submission of the question of negligence to the jury should have been controlled by Automobile Guest Statute, Art. 6701b, Vernon’s Ann.Civ.St, that is, that it was necessary for plaintiff to allege and prove plaintiff’s injury was caused by defendant’s willful misconduct, or was caused by the heedless and reckless disregard of plaintiffs rights by defendant. Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564. We think the evidence fails to bring this case within the purview of Art. 6701b.

Although not directly in point we call attention to the following decisions: Elkins v. Foster, Tex.Civ.App., 101 S.W.2d 294, writ dismissed, and Johnson v. Smither, Tex.Civ.App., 116 S.W.2d 812, writ dismissed.

Defendant says that his defensive issues were conditionally submitted over his objection. We think his objection to the charge, to-wit, that it constituted a general charge, is insufficient to present the question attempted to be presented here. Therefore, defendant’s tenth proposition is overruled.

We have heretofore expressed our views with reference to the conditional submission of issues in the following cases: Harris v. Thornton’s Dept. Store, Tex. Civ. App., 94 S.W.2d 849, 853; Southern Underwriters v. Erwin, Tex.Civ.App., 134 S.W. 2d 721, 723; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, affirmed, 132 Tex. 172, 123 S.W.2d 314; International-Great Northern R. Co. v. Acker, Tex.Civ.App., 128 S.W.2d 506, 521. Also see 41 Tex.Jur. 1128 & 1129; 16 Tex. Law Review, 384.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: GALLAGHER, Chief Justice.

license: Public Domain

text:
    CITY OF WACO v. MURRAY.
    No. 2216.
    Court of Civil Appeals of Texas. Waco.
    Feb. 8, 1940.
    Rehearing Denied Mar.ch 14, 1940.
    Geo. W. Morrow, City Atty., and Mabel Grey Howell, Asst. City Atty., both of Waco, for appellant.
    F. M. Fitzpatrick, of Waco, for appellee.
   GALLAGHER, Chief Justice.

This appeal is prosecuted from a judgment of the county court of McLennan county awarding appellee, J. W. Murray, a recovery against the city of Waco for the sum of $180, with legal interest thereon, amounting in the aggregate to $213.60, and for costs. The suit was filed and tried originally in the justice court and an appeal from the judgment there rendered prosecuted to the county court.

Appellee alleged that he was employed by the city of Waco, acting by Mr. McAdams, a former city manager, in what appears to be a dual capacity; that such employment began about October 1, 1930, and continued in whole or in part until October 1, 1935; that during such time Mr. McAdams was succeeded as city manager by Mr. Hultgren, and he in turn by Mr. Torrence. Ap-pellee further alleged that under the agreement of the parties, he was to operate the elevator in the city hall the entire year at a salary of $60 per month, amounting in the aggregate to $720, and in addition thereto, that he was to operate the heating plant, furnace and radiators for six months each year from November 1st to April 30th, inclusive, for the additional sum of $30 per month, amounting in the aggregate to $180; that in accordance with such agreement, he served in such capacity or capacities from the fall of 1930 to the spring of 1935, and that he was paid for such services except for the additional services rendered by him for attending and operating the furnace, heating plant and radiators for six months beginning November 1, 1934. Appellee further alleged that such additional services for said winter months were rendered under the direction and with the consent and acquiescence of the city, and that said city, by its actions, led appellee to'believe it would pay him for said services, and that same were reasonably worth the amount claimed therefor. He sought, if denied a recovery on an express contract, to recover on an implied contract.

Appellant answered by general demurrer and general denial.

Appellee and his attorney were the only witnesses who testified in the case. Ap-pellee testified that he was employed to operate the elevator at a specific sum per month and that he was also employed to look after the heating plant, furnace and radiators for a period of six months beginning November 1st of each year for an additional compensation of $30 per month. He testified that his hours for' operation of the elevator were from eight o’clock in the morning until five o’clock in the afternoon; that during the six months of the year above recited when the heating plant was in operation, he arrived at such plant at 5:30 in the morning, gave it necessary; attention during the day and stayed until 6:00 o’clock in the afternoon; that he also was in attendance during such hours on Sunday when said plant was in operation; that he was paid regularly for such additional service at the rate of $30 per month each year until November 1, 1934; that sometime after said last named date, when he did not receive such compensation, he took the matter up with the city manager and he said the same had been left out of the budget but that he would get it straightened out and corrected; that he never did so; that he, appellee, rendered such additional services from and after November 1, 1934, under the direction and with the acquiescence and consent of the city manager; that when, in June, 1935, he asked for his pay, he was discharged, but that the man afterwards employed to take his place was paid such compensation the same as appellee had been paid prior to November 1, 1934. The statement of facts shows that the parties agreed that the annual budget for 1934-1935 contained the following entry: “Building engineer and elevator operator $60.00 $720.00.” There was no testimony, except as related by appellee as aforesaid, concerning the different tasks imposed upon or duties required of such building engineer and elevator operator.

The case was submitted on special issues, in response to which the jury found, in substance, that in 1930, appellee and the city of Waco, acting through its then city manager, entered into an agreement whereby said city was to pay appellee $30.00 per month on a month to month basis for tending the furnace and heating plant at the city hall for six months out of the year; that the monthly sum to be so paid was in addition to appellee’s regular salary for operating the elevator; that appellee tended said furnace and heating plant each winter thereafter down to and including the winter of 1934 — 35; that the city paid appellee for such services for each winter prior to the winter of 1934; that ap-pellee tended said furnace and heating plant for the city during the winter of 1934 — 35 under the direct acquiescence and consent of the city of Waco; that said city, by its acts, led appellee to believe that he would receive $30.00 per month for tending said furnace and heating plant during such last named period; that appellee did in fact so tend said furnace and heating plant for the city during the months of November and December, 1934, and January, February, March and April of 1935; that said city accepted the services of appellee for tending said furnace and heating plant for it for said six months; that appellee rendered such service for said period in the belief that he would be paid therefor; that the reasonable value of the services so rendered for said months was the sum of $30 per month and that ap-pellee had not been paid for said services. The court, on February 16, 1939, rendered jrtdgment on the verdict so returned by the jury in favor of appellee Murray against the city of Waco for the sum of $213.60, with interest from the date thereof. The city presents said judgment to this court for review by appeal.

Opinion.

The city presents a proposition in which it contends that since, in the budget adopted for the fiscal year 1934-1935, a salary of $60 a month or an aggregate of $720 per year was provided for “building engineer and elevator operator”, appellee could not, under the facts' hereinbefore stated, lawfully receive or recover compensation for the services rendered by him in operating the furnace and regulating the radiators. The city of Waco was at all times here under consideration operated by a city manager under provisions prescribing his powers and duty. City Charter (1930) Sec. 15, Art. 61. Under the provisions of said article, he was authorized to employ and remove all subordinate employees without notice. Appellee was such an employee. Regardless of the rather vague and technical description of the nature of his employment, as shown by the excerpt from the budget hereinbefore quoted, the uncontra-dicted testimony showed, as hereinbefore stated, that his employment, so long as the same should continue, was to operate the elevator daily, with the possible exception of Sundays and holidays, and to operate the furnace and regulate the radiators if and when necessary to do so during the winter season. This arrangement seems to have continued without discussion or controversy for more than four years. When his customary compensation for his services in operating the furnace and regulating the radiators was not paid during the fall of 1934 as had been theretofore done, he called the matter to the attention of the city manager, who advised him that he would get the matter straightened out and corrected. Appellee, relying on such assurance, continued to perform his duties in that capacity and the city continued to accept and enjoy the benefits of the same until the then current six months period was completed. Incidentally, there was no proof that the then current budget was regularly prepared and adopted as provided by Vernon’s Ann.Civ. St. art. 689a, subdivisions 13 to 16, inclusive. Neither was there any proof of its contents other than the brief excerpt above quoted. Appellee’s suit, however, is upon an implied contract and not upon a formal contract based on that budget. The city manager had authority to discharge him at any time and he had a right to quit at the end of any month. Apparently, the city manager preferred to have him continue to perform the onerous extra duties incident to the winter season. It is shown without contradiction that on two separate occasions he promised appellee that he would take the matter up and get it straightened out and corrected, and that appellee relied on such assurances.

Our courts have held in similar cases that regardless of strict legality or formality, when a municipal corporation receives the benefits of a contract illegal because not made in conformity with statutory or charter provisions, such corporation will be held liable on an implied contract for the reasonable value of the benefits received by it. Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841 et seq.; Id., Tex.Com.App., 9 S.W.2d 1032; City of Texarkana v. Keeney, Tex.Civ.App., 50 S.W.2d 339, pars. 1 and 2; Dallas Joint Stock Land Bank v. Colbert, Tex.Civ.App., 127 S.W.2d 1004, 1008, par. 5, and authorities there cited. Said proposition is overruled.

The city presents a second proposition in which it contends that since appel-lee accepted his salary warrants for operating the elevator as such warrants were issued and delivered to him, he was estopped to claim other and further compensation for services rendered on an implied contract. The city filed written pleadings and did not include therein any plea of estoppel. Said proposition is therefore overruled. 17 Tex.Jur., p. 146, sec. 16; Leon v. Gulf Production Co., Tex.Civ.App., 35 S.W.2d 1101, 1105, par. 5, and authorities there cited; Texas & N. O. Ry. Co. v. Booth, Tex.Civ.App., 99 S.W.2d 430, par. 3; Cooper Co. v. Werner, Tex.Civ.App., 111 S.W. 2d 823, par. 7; Washington Nat. Ins. Co. v. Booker, Tex.Civ.App., 123 S.W.2d 975, par. 7.

The judgment of the trial court is affirmed.


author: GRAVES, Justice.

text:
    PEEPLES et al. v. NAGEL et al.
    No. 11034.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1940.
    Rebearing Denied March 14, 1940.

      Gammage, Gammage & Bauer, of Houston (Earl W. Gammage, of Houston, of counsel), for appellants.
    Sewall Myer, City Atty., and Spurgeon E. Bell, Asst. City Atty., both of Houston, for appellees.
   GRAVES, Justice.

The record before this court in this cause is one brought here, in due compliance with R.S. Art. 4662, and reflects an appeal from an order of the 127th District Court of Harris County, refusing the appellants a temporary injunction against the appellees, as well as a sought-for writ of mandamus; such appeal has likewise under that statute been advanced for consideration here; in addition, and somewhat as ancillary to such appeal, the same appellants have likewise by an original application, given motion No. 11842, in this court, sought what they term “writs of temporary injunction, mandatory injunction, and mandamus, and/or temporary restraining order”, the objective of which is in the aggregate essentially the same relief as is prayed for in their appeal, referred to.

The whole purpose of both proceedings in this court is to get a reversal of the action of the trial court in having sustained the appellees’ general demurrer to the appellants’ petition, seeking all such enumerated writs, mainly against W. H. Maunsell, Comptroller of the City of Houston, as well as other officers and agencies of the city, requiring him to approve certain bonds placed with him officially by the appellants (constituting a group of master-electricians and their bondsman, appellant Lloyds Casualty Insurer, along with its attorney in fact, appellant Earl W. Gammage); the challenged order, insofar as deemed needful of precise mention, being in part as follows:

“And thereupon next came on for consideration before the Court said general demurrer of defendants to said petition and application of plaintiffs for the ordering and granting by this Court that writs of temporary injunction, mandatory injunction and mandamus issue as herein prayed for; and the court, after considering said general demurrer and hearing1 the arguments of counsel thereon, is of the opinion that same is good and should be here and is hereby sustained, and plaintiffs are given ten (10) days from date hereof to amend, which leave to amend was not sought by plaintiffs, and plaintiffs declined to amend and again offered the petition and application for a temporary injunction, mandatory injunction and mandamus, and the court being of the opinion that the pleadings state no cause of action therefor, the same is denied and refused, to which action plaintiffs, and each of them, in open court duly and timely excepted, and each of them, in open court duly and timely gave notice of appeal to the Court of "Civil Appeals for the First Supreme Judicial District of Texas, sitting at Galveston.

“ * * * and that plaintiffs have duly and timely in open court requested that writs of temporary-injunction, mandatory-injunction, and mandamus .issue and be granted herein, as prayed for in their petition and application herein, in order to preserve and protect the subject-matter of this suit and keep same in status quo pending the appeal of this case, the Court is of the opinion and finds that each of said requests are without merit' and that to fix the amount of supersedeas bond woidd serve no purpose and is not proper upon sustaining a demurrer, should be, and are hereby, denied and refused, to which actions, plaintiffs, and each of them, except and object.”

All well-pleaded averments of the petition so acted upon being taken as true, as must be done in reviewing that order, it is the opinion of this court that the learned trial court exceeded a sound judicial discretion at least in not having, by writ of temporary injunction, preserved', and protected the subject-matter of this suit, and thereby kept it in statu quo, pending the final trial on the merits of the cause pending there for the various forms of permanent relief so sought therein by the appellants.

It is further concluded that a decree from this court, instructing the granting of that relief now by the learned trial court, will be all that is necessary to keep the subject-matter of the suit in'such statu quo until its final trial there upon the facts; wherefore, and for that reason only,' without discussing the reasons therefor, the original jurisdiction of this court so invoked in the ancillary motion or application numbered 11842 will be denied.

The conclusion that the appellants were entitled to such temporary injunctive relief below rests in the main upon these considerations :

(1) The only ground for the comptroller’s refusal to approve the bonds, taken as true under the rules stated, is in substance thus alleged in the petition:

“defendant Maunsell, City Controller, charged with the duty of approving said bonds, refused to approve plaintiff-electricians’ bonds with said Lloyds Casualty Insurer as surety thereon tendered to and deposited with him, upon the sole ground that Lloyds Casualty Insurer was not one of. the surety companies listed by the United States Government and Treasury Department, regardless of the solvency or good financial condition of plaintiffs’ said surety company, and without said defendant checking or inyestigating plaintiffs’ surety company, or asking for its financial statement, or any other evidence of its solvency; and by virtue thereof there is no other reason why said defendant Maunsell declined to accept said bonds of plaintiffs

(2) The ordinance of the City of Houston, under which the Comptroller so acted, merely in effect providing that it should be the Comptroller’s duty to approve all such bonds, did not vest him with the broad discretion to do so or not as he saw fit in the circumstances thus alleged here; because, to so hold would amount to decreeing that such ordinance took precedence over the general law of the State, as declared in R.S. Ch. 16, Arts. 4969 to 4977, inclusive, wherein, in substance, the law is contrarily provided to this effect:

“And such execution by such [surety] company of such bond, undertaking, obligation, recognizance or guarantee shall be in all respects a full and complete compliance with every law, charter, rule or .regulation, that such bond, undertaking, obligation * * * shall be executed by one surety * * * and all courts, judges, heads of departments, boards, bodies, municipalities, and public officers of every character shall accept and treat such bond, undertaking, obligation, recognizance or guarantee, when so executed by such company, as conforming to, and fully and completely complying with, every requirement of every such law, charter, ordinance, rule or regulation.” Article 4970.

(3) The limitation of an eligible bondsman to such only as appeared in the U. S. Treasury list, calling for a paid-up capital of not less than $250,000, together with a deposit with the Insurance Department of nqt less than $100,000 in legal securities, so far exceeded those of R.S. Art. 4969, supra, which only required a $100,000 capital stock and a $50,000' deposit, as to have constituted an arbitrary and unreasonable construction; R.S. Art. 5009, and Art. 5016, as amended by Acts 1929, 1st Called Sess., c. 11, § 1, Vernon’s Ann.Civ.St. Art. 5016; Universal Transport Co. v. Cantu, reported in Tex.Civ.App., 75 S.W.2d 697; Giles v. City of Houston, Tex.Civ.App., 59 S.W.2d 208, 209.

(4) The holding herein made is available to all of the appellants as against all the appellees named in this record, irrespective of the contention of appellees that twelve of the appellants eliminated themselves from any relief by mandamus because they had meanwhile, since the perfection of their appeal in the temporary injunction cause, tendered bonds which had been approved by the appellee Maunsell; this for the reason that both appellants and appellees, as indicated, supra,, are all here before this court under the appeal bond filed in the temporary injunction cause, and all such appellants therein seek still the injunctive relief prayed for and herein granted.

(5) Pursuant to these conclusions, the cause for injunctive relief will be remanded to the trial court, with instructions to grant that relief in favor of all appellants as against all appellees in such manner and form as will preserve the status quo of the entire controversy upon that phase, as it existed when the court’s order was entered, refusing appellants any relief on January 15th of 1940, and until final trial of the whole cause on the facts.

It will be so ordered; reversed and remanded, with instructions.

Reversed and remanded.


text:
    BALDWIN v. BALDWIN et al.
    No. 10554.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 29, 1940.
    Ewing Werlein, of Houston, for appellant.
    R. H. Kelley, Harry R. Jones, and Andrews, Kelley, Kurth & Campbell, all of Houston, for appellee F. T. Baldwin.
    Ernest A. Knipp, of Houston, for appel-lees James C. Baldwin and Robert Basil Baldwin.
   GRAVES, Justice.

This appeal is from a judgment of the 80th District Court, in a cause there between these same parties, involving the construction of the will of Jacob C. Baldwir-deceased; the controlling issues below, as well as on the appeal, were these two: (1) Did the testator in such will attempt unequivocally to dispose of the entire com-, munity estate of himself and his wife, Mrs. Hattie Baldwin, the appellant here; (2) did the will confer a benefit upon Mrs. Baldwin, the wife, that she would not otherwise have had.

The learned trial court, in considering these among other incidental or subsidiary matters, without a jury’s aid, determined both of the stated inquiries in the affirmative, rendering judgment accordingly, couching its decree upon those features in these paragraphs:

“2. At the time of his death, all property — title to which stood in the name of testator — was community property of himself and his wife, defendant Hattie Baldwin. In his said will, testator undertook to, and did dispose of said estate as a whole, including defendant Hattie Baldwin’s community interest therein, and said will constitutes in law a full and complete disposition of all such property, and of all of defendant Hattie Baldwin’s interest therein.
“3. After testator’s death, defendant Hattie Baldwin elected to take under the will of her deceased husband, and accepted and received all of the benefits, which the court finds were substantial in amount and value, accruing to her in and under the will, and consequently such election is now irrevocable, and testator’s will is binding upon said defendant and upon her interest in said estate.
“4. Under testator’s will, defendant Hattie Baldwin took an estate for life in one-half of all of the royalties from oil lands then forming a part of said estate and thereafter acquired by said estate, and she will hereafter be entitled to receive a full one-half of all such royalties without deductions for and during her natural life.”

On consideration of the appeal, this court, on May 26 of 1938, certified the substance of the stated issues to the Supreme Court; through its adoption of an opinion by Commissioner J. E. Hickman, which was filed here on February 23 of 1940 (having also been reported in 135 S. W.2d 92), that court has in effect expressed the conclusions, both that the testator did attempt unequivocally to dispose of such entire community estate, and that the will, which she construed that way and so acted under it, did confer such an additional benefit upon Mrs. Baldwin.

' Wherefore, this court, so viewing the record and the reaches of the review sought here, and considering itself bound by that decision of the Supreme Court, although it did not answer the questions submitted “yes or no” (135 S.W.2d 96, col. 2), finds nothing left for it to properly do than to affirm the trial court’s action.

It will be so ordered.

Affirmed.


author: BOND, Chief Justice.

text:
    FILM ADVERTISING CORPORATION v. CAMP.
    No. 12843.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 10, 1940.
    Rehearing Denied March 2, 1940.

      McCombs & Andress, of Dallas, for appellant.
    Bowyer, Gray, Thomas & Jaffe, of Dallas, and Joe S. Gambill, of Denton, for ap-pellee.
   BOND, Chief Justice.

This is the second appeal on the question of venue, the first having been decided by the Waco Court of Civil Appeals, Camp v. Screen Broadcasts, 118 S.W.2d 398, reversing and remanding the case for another trial, generally. The trial judge considered the opinion binding on the subsequent trial, hence sustained defendant’s plea of privilege and transferred the cause to Den-ton County, Texas. We are not in accord with the holding.

When a cause is reversed and remanded for a new trial, generally, without instructions to render a specific judgment, as in the first appeal of this cause, the effect is to restore the parties litigant to the same situation as that in which they were prior to the appeal; the parties are allowed to proceed in the court below, and have their rights determined in the same manner and to the same extent as if their cause had never been heard or decided by any court, leaving the trial court entirely free to ex--ercise his own judgment upon the evidence reviewable on appeal, as in the first instance. However, it might be said that the decision of the Appellate Court is deemed to have expressed the legal conclusion drawn from the facts; but, no reversible error is presented when the lower court fails to conform to the opinion, and the trial court’s action is not open to remedy by mandamus or prohibition. Clem v. Fulghum, Tex.Civ.App., 37 S.W.2d 201.

The mandate in the former appeal of this cause directs a retrial of the cause, which the trial court accorded the parties litigant, and the court’s action in sustaining the plea of privilege is here for review. We think the venue of the suit lies in Dallas County, by reason of subdivision 5 of article 1995, R.S. 1925, Vernon’s Ann.Civ. St. art. 1995, subd. 5, — a suit upon a contract, in writing, showing on its face liability performable in Dallas County, Texas.

The venue facts available on defendant’s plea of privilege are prescribed by statute (article 1995, section 5): (1) An obligation, in writing; (2) the execution of the obligation by defendant, or by his authority; and (3) the obligation performabl'e in the county where the 'suit is filed. The instrument in suit is in writing, dated April. 24, 1934, executed by the defendant, in which he agreed to pay plaintiff “at Dallas, Texas, the sum of $20.00, payable on the first day of each month, in advance”, for certain advertising service, through medium of moving pictures displayed on screen in a theatre, in the City of Denton, Texas, extolling defendant’s cleaning and dyeing business. The agreement provides that the object of the contract, the advertising film, shall start on or about the 10th day of May, 1934, and that a new film shall be shipped to the theatre, for screening, every 2 weeks,' until 52 weeks of actual service have been rendered. Defendant seeks to sustain the plea of privilege on an alleged contemporaneous oral agreement, to the effect that he signed and delivered the contract with an understanding that the agents of plaintiff Company would go to a Mr. Hendrix, at the Oak Cliff Cleaners, Dallas, Texas,- and get the “wording for the advertising”, on occasions of change in films, and their failure to get Hendrix’ approval of the advertising voided the obligation.

It will be observed that the written instrument declared upon imports a valid obligation to perform in Dallas County, Texas. The merits of liability are not necessarily involved on this appeal."'The venue of the suit is not conditioned on the performance of the covenants. The obligation contracted to be performed, that is, the payment of money, evidenced' by the written instrument, is conditioned that the obligee shall furnish the- advertising motion picture service in accordance with the understanding of the parties. To' sustain the judgment changing the venue of the suit to Denton County, would be to' fry the' cause on its merits. The validity of the contract, or the breach of it's covenants, are defensive matters to be heard and determined .by the Court having venue .of the' suit, not available on a plea of privilege. The merits of the case not being involved, it was not incumbent upon the plaintiff to prove that the covenants in the contract had been performed, or that it did not fail' to perform' the undertakings agreed upon. The validity of the contract, as well as the breach of any of its covenants, cannot defeat the very purpose of the venue statute, thus compel litigants to try their cases upon the merits at a hearing upon a plea of privilege. It is clear, we think, that'the venue of the suit is- not' Conditioned on plaintiff-securing the approval of a third party to the advertisement copy of the film ads. The contract purports payment of an obligation in Dallas County; it was executed and delivered, hence a breach of its terms is of no concern on the venue question. Benavides v. Benavides, Tex.Civ.App., 218 S.W. 566; Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810; Dallas Joint Stock Land Bank v. Harrison, Tex.Civ.App., 131 S.W.2d 742; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W. 2d 675; Forman v. Prince, Tex.Civ.App., 97 S.W.2d 1002; Gonzales v. Adoue, 94 Tex. 120, 58 S.W. 951; Rabb v. Rabb, Tex. Civ.App., 108 S.W.2d 440; Tuttle v. Turner, Wilson & Co., 28 Tex. 759; Vitopil v. Gray, Tex.Civ.App., 111 S.W.2d 1202; Wadsworth v. Vinyard, Tex.Civ.App., 131 S.W. 1171.

The judgment of the court below is reversed and here rendered, overruling defendant’s plea of privilege.


author: NORVELL, Justice.

text:
    ELLIOTT et al. v. SAN BENITO BANK & TRUST CO.
    No. 10671.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1940.
    P. F. Dominy, of San Benito, for plaintiffs in error.
    Charles C. Bowie, of San Benito, and W. H. Betts, of Hempstead, for defendant in error.
   NORVELL, Justice.

This is a suit brought by defendant in error, the San Benito Bank and Trust Company, against the heirs at law of F. M. Elliott, deceased, to subject property formerly owned by the deceased to the payment of a certain judgment held by the bank.

It appears that the original judgment against F. M. Elliott was rendered on March 3, 1928, and corrected on April 4, 1928. On April 6, 1928, an order of sale and execution was issued. On April 5, 1938, the bank brought this action. Trial was to the court, and in its judgment the trial court found that the bank had a valid judgment against F. M. Elliott, who died on July 16, 1935; that defendant Mrs. Ozoriah Schwartz Elliott was the surviving widow, and that defendants Jack Elliott and Mrs. Iva Entringer were the children, and only surviving heirs at law of F. M. Elliott, deceased.

The judgment decreed that the former judgment against F. M. Elliott be “revived” as against defendants insofar as they have any claim in and to the N.E. ¼ of Section 45, Block 1, H. & T. C. Ry. Survey, Waller County, Texas, and that order of sale issue.

Jack Elliott brings the case here. The petition for writ of error was apparently made on behalf of all defendants below, but Jack Elliott alone executed a cost bond, consequently error proceedings on behalf of others than Jack Elliott will be dismissed for want of jurisdiction. Article 2265, Vernon’s Tex.Civ.Statutes; Lyle v. McDowell, Tex.Civ.App., 116 S.W. 2d 1109.

Many of the contentions of plaintiff in error, Jack Elliott, relating to the validity of the original judgment, are fully answered in Elliott v. San Benito Bank & Trust Company, Tex.Civ.App., 133 S. W.2d 831. We hold that the filing of the waiver by F. M. Elliott precludes an attack upon the corrected judgment for the reasons stated by Judge Alexander in the opinion above mentioned. Further discussion of this feature of the case is unnecessary here.

The remaining assignments of plaintiff in error, in effect, present two related contentions, (1) that the bank’s action will not lie as the judgment upon which the present suit is based was not dormant at the time the present suit was filed, and (2) the suit is barred by the statute of limitations.

The general rule is that suit on a judgment by scire facias proceedings or an action of debt will not lie except in cases where the judgment sued upon has become dormant because of a failure to have execution issued. However, an action similar to revival may be brought upon a judgment which is not dormant when it would give the holder of the judgment some additional advantage to which he is legally entitled under the circumstances of the case. Stevens v. Stone, 94 Tex. 415, 60 S.W. 959, 86 Am.St.Rep. 861; White v. Stewart, Tex.Civ.App., 19 S.W.2d 795; Mayhew Lumber Co. v. Nash, Tex.Civ. App., 268 S.W. 1050; 26.Tex.Jur. 467.

Clearly, the judgment of the trial court was more advantageous to the bank in that it established the bank’s right to an execution against a particular piece of property, as against the heirs at law of the original judgment debtor. The judgment further established the fact as between the parties that there was no pending administration upon the estate of F. M. Elliott, deceased, and that no administration was necessary. The bank’s action therefore lies.

As to the question of limitations, it is well settled that actions such as the one involved here are not barred until the lapse of ten years from the issuing of the last execution. The bank’s action here was filed within the ten-year period. Stevens v. Stone, supra.

No reversible error being shown, the judgment of the trial court as to Jack Elliott is affirmed. The writ of error as to the remaining defendants below, Mrs. Ozoriah Schwartz Elliott, Mrs. Iva En-tringer, P. R. Entringer, S. C. Ferrell and L. H. Beal, is, upon motion of defendant in error, dismissed for want of jurisdiction.


author: STOKES, Justice.

text:
    STANFORD v. DUMAS et al.
    No. 5106.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1940.
    Rehearing Denied March 4, 1940.

      R. L. Graves, of Brownfield, for appellant.
    Crenshaw, Dupree & Milam, of Lubbock, for appellees.
   STOKES, Justice.

This is an action of trespass to try title filed by appellant, P. G. Stanford, against appellee, H. L. Lowe and a number of others, including M. E. Dumas, not necessary to mention. The case was tried before the court without the intervention of a jury and resulted in a judgment denying appellant any relief. Appellant duly excepted, gave notice of appeal, and presents the case in this court upon a number of assignments of error and propositions of law, contending that the judgment is erroneous and should be reversed.

' The record shows that on the 17th of May, 1917, P. Z. Conrad purchased from D. B. Tingle and wife the property involved, being a lot in the town of Plains, in Yoakum County, and it was agreed that Conrad was the common source of title. On the 17th of November, 1931, M.. E. Dumas recovered a judgment against Conrad in the county court of Yoakum County, execution upon which was issued on the 10th of August, 1937, and placed in the hands of the sheriff who levied upon -the town lot as the property of Conrad and, after duly advertising the sale for September 7, 1937, sold it to appellee, H. L. Lowe, in the manner provided by law. Appellee’s bid was $155 and upon payment of that amount the sheriff executed to him a deed in regular form which was immediately placed of record in the deed records of Yoakum County.

On August 28, 1938, almost a year after appellee purchased the property at the sheriff’s sale, P. Z. Conrad executed and delivered to appellant what is termed a quitclaim deed, which purports to be a substitute for a former deed executed by Conrad to one W. L. Turner. The deed recites that Conrad had executed a deed to W. L. Turner on October 12, 1929, in which the town lot was conveyed but that such deed had been lost and was never filed for record nor recorded in the deed records of Yoakum County.

It is revealed by the record that on the 12th of October, 1929, W. L. Turner and wife executed a deed of trust conveying the property to Marion McGinty as trustee to secure the payment of a note in the sum of $525, payable to P. Z. Conrad in monthly installments of $15 each, and that W. L. Turner conveyed the property to W. W. Pollard on February 17, 1932. Pollard conveyed it to J. C. Moore on- May 15, 1932; Moore conveyed it to T. C. Perkins on the 21st of January, 1933; Perkins conveyed it to W. H. Ratcliff on the 28th of February, 1933, and Ratcliff conveyed it to appellant, Stanford, on the 4th of December, 1937. The deed executed by Turner to Pollard was filed in the office of the county clerk of Yoakum County on the 20th of January, 1936, and duly recorded, but none of the subsequent deeds was filed or recorded in the deed records until after the sheriff’s sale in which appellee purchased it and after his deed was executed and placed of record. These deeds constitute the chain of title under which appellant contends he was entitled to recover.

Appellant contends the judgment entered by the court denying him any relief is erroneous and should be reversed, first, because, he asserts, the execution issued upon the judgment of Dumas against Conrad and under which the property was sold to appellee by the Sheriff of Yoakum County, was void because it was the original execution and was not issued until more than twelve months after the judgment was rendered. Secondly, that appellee had notice, both actual and constructive, at the time he purchased the property at the sheriff’s sale, of the conveyance from Conrad to W. L. Turner.

The judgment against Conrad was rendered by the county court of Yoakum County on November 17, 1931, and no execution issued thereon until the 10th of August, 1937, being the execution under which the sheriff’s sale was made. The judgment was, therefore, dormant at the time the execution was issued. Art. 3773, Revised Civil Statutes, 1925. The article mentioned, before it was amended in 1933, Vernon’s Ann.Civ.St. art. 3773, and which controlled the execution in this case, provided that if no execution was issued within twelve months after the rendition of the judgment, the judgment should become dormant and no execution should issue thereon unless the judgment be revived. There is no showing in the record that the judgment in favor of M. E. Dumas had been revived, but it is well established by the courts of this state that an execution issued upon a dormant judgment is not void but merely voidable and not subject to collateral attack. Ayres v. Duprey, 27 Tex. 593, 594, 86 Am.Dec. 657; Maverick v. Flores et al., 71 Tex. 110, 8 S.W. 636; Odum v. Menafee, 11 Tex.Civ.App. 119, 33 S.W. 129; Taylor et al. v. Doom et al., 43 Tex.Civ.App. 59, 95 S.W. 4; Scott v. McGlothlin, Tex.Civ.App., 30 S.W.2d 511; Collins v. Jones et al., Tex.Civ.App., 79 S.W.2d 175.

There can be no question that the attack made upon the execution in this case by appellant was a collateral one and although the execution was issued upon a dormant judgment, the sale made' by the sheriff to appellee was a valid sale in so far as the execution was concerned. Appellant’s assignments of error in respect to the first contention made by him are, therefore, overruled.

Under his second group of assignments appellant contends that appellee had notice, both actual and constructive, of the deed made by P. Z. Conrad to W. L. Turner on October 22, 1929. We cannot accede to this contention. The record shows that, if there was such a deed, it was never filed in the office of the county clerk nor recorded in the deed records of Yoakum County. The only evidence in the record tending to prove that such a deed was ever executed was the statement in the quitclaim deed executed by Conrad on the 28th of August, 1938. It was recited in the quitclaim deed that Conrad had executed a prior deed to Turner on October 12, 1929. Appellee objected to the introduction of the recitation mentioned but since the deed was not executed until almost a year after the appellee purchased the property at the sheriff’s sale, it could not have constituted notice to appellee when he purchased the property at the sale on September 7, 1937. The question of whether the recitations concerning the prior deed were admissible or were, as contended by appellee, hearsay, therefore, becomes immaterial. Regardless of any statement contained in the deed, it could not have been effective nor have any bearing upon the action of the court in determining the issues in this case.

It is further contended by appellant in this connection that the other deeds in his chain of title constituted notice to appellee and were effective in conveying the title to the property as against the sheriff’s sale, but this contention cannot be sustained for several reasons. In the first place, it was not shown that appellee had any actual knowledge of the existence of any such deeds and, in the second place, they were not filed in the office of the county clerk nor recorded in the deed records of Yoakum County until after appellee had purchased the property at the sheriff’s sale. The only deed in appellant’s chain of title that was filed in the office of the county clerk and recorded prior to the sheriff’s sale was the deed from Turner to Pollard, which was filed January 20, 1936. That deed could not constitute any notice to appellee that a deed had theretofore been executed by P. Z. Conrad conveying the property to Turner because it did not appear in appellee’s chain of title. It has many times been held by our courts and is well settled law in this state that, while a purchaser is bound by, and has constructive notice of all instruments appearing of record in his chain of title, the record of a deed or instrument lying outside of his chain of title visits no notice upon him whatever. White v. McGregor et al., 92 Tex. 556, 50 S.W. 564, 71 Am.St.Rep. 875; Fullenwider v. Ferguson, 30 Tex.Civ.App. 156, 70 S.W. 222; Davis v. Lund, Tex. Com.App., 41 S.W.2d 57.

Appellant contends in this connection that the deed of trust executed by W. L. Turner to McGinty which was given to secure a note in the sum of $525, payable to P. Z. Conrad, having been executed on the same date the alleged deed from Conrad to Turner was executed and by which appellant alleges the property was conveyed, should be held to visit notice of the execution of the deed of conveyance of Conrad to Turner because the deed of trust shows a portion of the same transaction and that Turner must have been claiming title to the property or he would not have executed the deed of trust upon it. It is not shown by the deed of trust that the $525 note was given as part of the purchase price for the property, but even if it did, the deed of trust would be governed by the same rules which govern the deed from Turner to Pollard. W. L. Turner not appearing in the chain of title purchased by appellee in the sheriff’s sale, no deed, deed of trust, or other instrument executed by him, although recorded in the records ■of Yoakum County, would have been effective as constructive notice of an adverse ■claim. The opinions in the cases we have cited, and many others, establish this principle of law so well that we do not ■deem it necessary further to discuss it. Appellant’s assignments of error in reference to this contention will be overruled.

In connection with the question of notice, appellant makes the further contention that, at the time of the sheriff’s sale, he was in possession of the property through one Joe Cheek who, he contends, ' was his tenant. It is unquestionably the law that a purchaser of property is charged with notice of an adverse claim evidenced by possession of the property even though such possession is by a tenant. If Joe Cheek was in possession and was the tenant of appellant at the time appellee purchased at the sheriff’s sale, appellant was charged by law; with notice of whatever information he would have obtained by an investigation as to the capacity in which Cheek was occupying the premises. The evidence shows that either on the day he purchased the property or a day or two afterwards, appellee had a conversation with Joe Cheek concerning his occupancy of the property and that Cheek informed him he was “just living there and did not know who claimed the property, if anyone.” Cheek stated that he was working in a cafe for some other person and that the owner of the cafe was furnishing him the house to live in. He said that he was not paying rent to anyone. It is not contended by appellant that any further investigation than this would have revealed anything else with reference to his claim to the property and although this investigation was perhaps not made until a day or two after the purchase, still it shows that even if appellee had made the inquiry before he purchased the property, he would not have obtained any information that would have charged him with notice of any claim being asserted by appellant to the property. Appellant testified that he told appellee when the sheriff’s sale was being conducted that he claimed an interest in the property but this was denied by appellee, and the fact being controverted by the testimony, we must conclude that it was considered by the trial court and resolved in favor of the judgment.

From what we have said it follows that, in our opinion, none of the assignments of error presented by appellant furnish a basis for disturbing the judgment as entered by the court below and they will all be overruled.

The judgment is affirmed.


author: BROWN, Justice.

text:
    REECE v. CITY OF WICHITA FALLS
    No. 14040.
    Court of Civil Appeals of Texas. Fort Worth.
    March 1, 1940.
    Rehearing Denied March 22, 1940.
    Kearby Peery, of Wichita Falls, for appellant.
    Thelbert Martin and T. A. Hicks, both of Wichita Falls, and Hobert Price, of Dallas, for appellee.
   BROWN, Justice.

This is a companion case to that of Pittman v. City of Wichita Falls, reported in Tex.Civ.App., 120 S.W.2d 847, writ dismissed, and it was agreed by counsel that the facts adduced upon the trial of the Pittman case should constitute the Statement of Facts in the instant suit.

The trial court instructed a verdict for the defendant City, and the plaintiff has appealed.

Appellant contends that she pleaded a different cause of action in this case from that pleaded in the Pittman case.

If it should be considered that a somewhat different case, with respect to the duty imposed upon the City and its consequent negligence, was pleaded — all of which we doubt — nevertheless, the facts are the same.

On the authority of Pittman v. City of Wichita Falls, Tex.Civ.App., 120 S.W.2d 847, and the principles there announced, the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    GENERAL EXCHANGE INSURANCE CORPORATION, Appellant, v. N. E. JONES, Appellee.
    No. 10673.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied March 13, 1940.
    Hayden C. Covington, of Brooklyn, N. Y.,- and Walter F. Schwartz, of San Antonio, for appellant.
    John J. Pichinson and Frank C. Sergeant, both of Corpus Christi, for appellee.
   PER CURIAM.

The judgment of the trial court is affirmed.


author: SPIARP, Justice.

text:
    CROUCH et al. v. McGAW, District Judge, et al.
    No. 7650.
    Supreme Court of Texas.
    March 27, 1940.

      Jones & Jones, of Marshall, J. E. Smith, of Longview, and C. A. Brian, of Marshall, for relators.
    Lee & Porter and Edward A, Brown, all of Longview, for respondents.
   SPIARP, Justice.

Relators have filed an application here for a writ of prohibition, enjoining Panama Refining Company, a corporation, A. F. Anding, Tom Potter, and Honorable Clarence E. McGaw, Judge of the 124th Judicial District Court of Texas, from further interfering with the enforcement of the judgment of this court, entered on February 22, 1939, in Cause No. 7210, Panama Refining Company v. Leo Crouch, 132 Tex. 608, 124 S.W.2d 988. This court granted a temporary writ of prohibition, restraining respondents from proceeding further in the above-mentioned suit, pending a decision of this court upon the merits of the application.

Leo Crouch filed the original suit in the District Court of Gregg County against the Panama Refining Company, A. F. Anding, Tom Potter, and M. Ulmer, for damages caused by their negligence while he was employed by them. Judgment was rendered in his favor on April 2, 1935, for $12,000, and the judgment of the trial court was affirmed by the Court of Civil Appeals. 98 S.W.2d 271. A writ of error was granted by this court, and the judgments of the trial court and Court of Civil Appeals were affirmed. 132 Tex. 608, 124 S.W.2d 988. Reference is made to the opinions rendered by the Court of Civil Appeals and this court for a full statement of the facts and issues involved in the case.

In pursuance of the mandate issued by the clerk of this court, an execution was issued on April 12, 1939, commanding the enforcement of the judgment, and same was placed in the hands of the Sheriff of Gregg County for collection. On April 13, 1939, Panama Refining Company, A. F. Anding, and Tom Potter, respondents, filed as plaintiffs, in Cause No. 13266-B, in the 124th Judicial District Court of Gregg County, a petition to set aside the judgment entered in the trial court. On April 13, 1939, Honorable Clarence E. McGaw, District Judge, without notice to relators, and without a hearing, issued a temporary restraining order, restraining relators from enforcing said judgment. A hearing on said temporary restraining order was had by the district' judge on May 3, 1939, and evidence was introduced by both sides at said hearing.

• Respondents’ complaint for setting aside the judgment of the trial court is based substantially on the following grounds: (1) That Crouch and his attorneys fraudulently conspired to recover excessive damages from the Panama Refining Company, for an injury known to them not to be total and permanent; (2) that Crouch received money from his attorneys, pending the outcome of the suit, in which he falsely alleged and swore that his injuries were total and fully incapacitated him, when in fact they were only partial and temporary; (3) that Crouch and his attorneys refused a request for the medical examination of Crouch; (4) that the attorneys for Crouch stated during the trial that Dr. Richardson, who had treated Crouch at the request of Ulmer, would be present to testify, and that a subpoena had been issued for him, when in fact none had been issued, and which deprived respondents of the opportunity of cross examining the doctor, who would have sworn that Crouch’s disability was partial and temporary; and (5) that Crouch led respondents to believe he would not testify that his injuries were total and permanent, and that he would appear in court without a cane or brace at the trial.

On May 3, 1939, the court heard the application of plaintiffs for a temporary writ of injunction, and after overruling the general demurrer and special exceptions to plaintiffs’ application, the trial court in the order said: “And, thereupon, the Court did hear evidence on said petition and application for injunction and, after hearing said evidence, concluded that same was insufficient to show any conspiracy among the defendants, but the Court, being of the opinion that there was evidence tending to raise the issue of whether or not Leo Crouch did perjure himself on the original trial of this cause, concluded a temporary injunction should be granted on the application and petition of plaintiff.”

A suit instituted for the purpose of setting a judgment aside and to retry the cause is an equitable proceeding, and the grounds on which such suit may be instituted are narrow and restricted. To obtain a new trial after the expiration of the term, something more than injustice must be shown. For a full statement of the essential requirements that must appear before a judgment may be set aside, we cite: Harding v. W. L. Pearson & Co. et al., Tex.Com.App., 48 S.W.2d 964, and cases cited therein; Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963; 25 Tex.Jur. p. 585, § 185. Respondents’ petition falls far short of meeting the requirements for a bill of review. The trial court concluded that the evidence was insufficient to show a conspiracy on the part of relators, but was of the opinion that the evidence was sufficient to raise the issue that Crouch perjured himself in the original cause, and for that reason granted the temporary injunction as prayed for in the petition. Thus it appears, from an analysis of the facts alleged, that the petition for injunction and for setting aside the judgment is narrowed to one ground, and that is whether Crouch swore falsely on the original trial. That this reason does not justify the setting aside of the original judgment and the issuance of a temporary injunction prohibiting its enforcement is now well settled. Besides, the affirmance of the judgment of the trial'court made it the judgment of this court.

The rule is universally recognized that alleged perjury of a witness upon a trial of a contested issue, to which the opposing party had the opportunity to refute, will not furnish a basis for setting aside the judgment on bill of review. Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493; United States v. Throckmorton, 98 U.S. 61, 68, 25 L.Ed. 93; Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95; Houston, E. & W. T. Ry. Co. v. Chambers, Tex.Civ.App., 284 S.W. 1063; Reed v. Bryant, Tex.Civ.App., 291 S.W. 605; 15 R.C.L. 770; 34 C.J. 280; Freeman on Judgments, 5th Ed., vol. 3, § 1241. It is the policy of the law to give finality to judgments of the courts. To do otherwise would add much uncertainty ánd confusion. The reason for this rule is quite obvious. The Supreme Court of the United States, in the case of United States v. Throckmorton, supra, tersely stated the reason for the rule in the following language: “That the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.”

To permit the respondents, under the facts contained in this record, to prosecute the suit above mentioned, would give them the privilege of relitigating issues previously decided by this court, and upon which a final judgment has been entered. Furthermore, the prosecution of such, suit would interfere with the enforcement of the judgment of this court in Cause No. 7210 above described. It has been repeatedly held, under grounds similar to those alleged here, that such procedure will not be permitted. In the case of Rio Bravo Oil Co. et al. v. Hebert et al., 130 Tex. 1, 106 S.W.2d 242, 247, this court said: “As applied to a case where the issues are settled by judgment, the rule has been clearly stated in the case of Houston Oil Co. of Texas et al. v. Village Mills Co. et al., 123 Tex. 253, 71 S.W.(2d) 1087, 1089, in the following language: ‘Where rights are established by a judgment of this court, the court has undoubted power to secure, by any proper writ necessary to the end, the enjoyment of the rights so established. Where a suit is brought in an inferior court, by any of the parties or privies to such judgment, against those in favor of whom the judgment was rendered, or their privies, and the suit directly involves the relitigation of rights established by the judgment, and is of such nature that, if successfully prosecuted, will result in a judgment which will purport the divesting of those rights, the prosecution of such suit will be prohibited as being an interference with the enforcement of the judgment of this court.’ See, also, Yount-Lee Oil Co. v. Federal Crude Oil Co. (Tex.Civ.App.) 92 S.W. (2d) 493.”

The law authorizes courts after the expiration of terms to set aside certain final judgments. This power includes the right to set aside after adjournment, among others, void judgments (25 Tex.Jur., pp. 551 and 552, § 156) and judgments obtained by fraud. 25 Tex.Jur., p. 585, § 185. Generally the mode for obtaining equitable relief from a judgment, after adjournment of the court for the term, is by a bill of review. When the question of fraud is urged as the ground of relief, the rule prevailing is stated in 25 Tex.Jur., p. 585, § 185, in the following language: “It has always been the law in Texas that where, through no fault of his own, a party has been prevented by fraud, accident or mistake from prosecuting his suit or making his defense, and an opportunity has 'not been afforded him for moving for a new trial during the term, he may after its close bring a suit in equity to reopen the case and dispose of the litigation on its merits; the judgment entered may be set aside and such relief granted as is warranted by the pleading and proof on the entire case.”

Fraud is classified as intrinsic or extrinsic. Included in the term “intrinsic fraud” are false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment. Intrinsic fraud does not furnish a ground, in an independent suit brought for that purpose, for setting aside a judg-ment. Fraud must be extrinsic to justify the setting aside of a judgment, and must be collateral to the matter tried, and not something which was actually or potentially in issue in the trial; unless the presentation of such defense was prevented by fraud, accident, or act of the opposing party, without fault or negligence of the party against whom the judgment was rendered.

In the case of State et al. v. Wright et al., Tex.Civ.App., 56 S.W.2d 950, 952, Judge Baugh, in rendering the opinion of the court, used the following language: “But the fraud which will authorize vacation by the court of its former judgment in such case must be what has been termed ‘extrinsic".fraud.’ By that is meant fraud by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert.”

See, also, for a discussion of this question, Traders & General Ins. Co. v. Rhodabarger, Tex.Civ.App., 109 S.W.2d 1119, and the cases discussed therein.

It clearly appears that the judgment assailed cannot be classified as a void judgment; nor can the judgment be set aside for the alleged fraud. This record shows that the case was tried before a jury, and respondents and their counsel were present, and had full opportunity to refute the testimony of the plaintiff in that cause, and present whatever defenses they had to plaintiff’s cause of action, during the trial. Unquestionably the questions presented now could have been urged in the motion for new trial filed in the original cause in the trial court. The case was appealed, and the judgment became final, as above stated. The allegations made by respondents for relief against the judgment do not meet the strict requirements of the law. The judgment has become final, and under the state of this record its enforcement should not be interfered with.

" It clearly appearing that Cause No. 13266-B, above described, constitutes an attempt on the part of plaintiffs therein to relitigate the same issues which have already been litigated by the same parties, and which, have been decided by this court, and that such suit would interfere with the judgment of this court in Cause No. 7210, Panama Refining Co. v. Leo Crouch, 132 Tex. 608, 124 S.W.2d 988, it is therefore ordered that the respondents be, and they are hereby, prohibited and enjoined from further prosecuting such suit. This order, however, shall not prevent any court in which such cause is pending from entering an. order dismissing said cause from its docket.


author: CHRISTIAN, Judge.

text:
    JOHNSON v. STATE.
    No. 20843.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Rehearing Denied March 20, 1940.
    Application for Leave to File Second Motion for Rehearing Denied April 3, 1940.
    Percy Woodard, of Marshall, for appellant.
    . Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense- is possessing beer and wine in a dry area for 'the purpose of sale; the punishment, a fine of $100.

Appellant’s motion for new trial appears to have been filed June 28, 1939. The order overruling the motion for new trial bears no date and the record fails to disclose the date upon which said motion was overruled. At the time said order was made appellant was given sixty days in which to file her bills of exception. Several bills of exception are brought forward which appear to have been filed August 28, 1939. If we should assume that the motion fop new trial was overruled on the date it was filed — June .28, 1939, — it appears that appellant’s bills of exception were filed sixty-one days from such date. This was too late to warrant their consideration.

No statement of facts is brought forward.

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 Rehearing.

KRUEGER, Judge.

At a former day of this term we affirmed this cause in the absence of a statement of facts and because it did not appear that the bills of exceptions were filed within the 60 day period granted to appellant by the Court. Appellant has amended the record by a certified copy from the trial court’s docket, showing that the motion for new trial was overruled on June 30, 1939. Consequently her bills, of exceptions were filed in time.

Ordinarily bills of exceptions cannot properly be appraised by us in the absence of a statement of facts, unless such bills embrace all ■ of the evidence adduced before the jury. See Jackson v. State, 127 Tex.Cr.R. 329, 76 S.W.2d 1046; 4 Tex. Juris. p. 234, and authorities cited.

Appellant was charged by complaint and information with the possession in dry area of beer and wine for the purpose of sale. Bill of exception number oiie complains of the action of the trial court in permitting the county attorney to introduce in evidence a container- with one-half gallon of port wine therein, which the officers found in an outhouse on the premises belonging to appellant and her husband. The objection urged thereto was that it was not shown that she ever knew it was there or that she had any connection therewith. The officers found in the dwelling house nine cans of beer and a quart of wine. They also found some empty beer cans and whisky bottles on the premises. Appellant testified that she did not place the wine in the outhouse, did not know it was there and had no connection therewith; that the beer and wine found in the dwelling house belonged to her son. The bill fails to show that she denied having possessed for the purpose of sale the intoxicating liquor which had been in the empty containers, or by whom such had been placed on her premises. Nor was it shown that appellant did not make a voluntary confession. We are of the opinion that if this bill could be considered, the wine found in the outhouse, although she denied any knowledge thereof, was admissible as a circumstance, in connection with all other facts and circumstances shown to have existed on the premises at the time. It seems that the outhouse was locked and that when she was asked for the. key to unlock- it, she could not find it. From this an inference might be drawn that she possessed the key to the outhouse; hence it follows that she was in possession of everything contained therein to the exclusion of anyone else. We think the objection went more to the weight thereof than to its ¿dmissibility.

Bill of exception number two complains of the court’s action -in declining to submit to the jury a plea of former conviction .in cause No. 3057 entitled “The State of Texas v. Mary Graham.” It appears from the bill that in said cause appellant was charged with the possession for the purpose of sale of whisky in dry area. It also appears, from the bill that after the conviction but before appellant’s motion for new trial had been acted upon, the court set aside the judgment in the case and dismissed the cause against appellant. A new complaint and information was filed against appellant in this cause styled “The State of Texas v. Mary Graham Johnson, No. 3088. We see no error in these proceedings. In -effect it amounted to the granting of appellant’s motion for a new trial, the case against her being dismissed after the judgment had been set aside, and then the.state being allowed to re-file against her. 'This was permissible under the law. See Sterling et al. v. State, 25 Tex.App. 716, 9 S.W. 45, 8 Am.St.Rep. 452; Robinson v. State, 23 Tex.App. 315, 4 S.W. 904, Branch’s Ann.P.C. Sec. 631, p.320 and authorities cited.

Bill of exception number three is insufficient. and we ate unable to appraise the same in the absence of a statement of facts. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972, Enix v. State, 112 Tex.Cr.R. 376, 16 S.W.2d 818. Bills numbers four and five are without merit and we see no need in discussing them. As qualified, bill number six is without merit. The argument complained of in bill. of exception number seven, when properly analyzed, shows nothing more than that the members of the Liquor Control Board had no interest in the case further than to enforce the liquor laws of this state. Moreover the bill fails 'to show that such argument was not invited or justified by the evidence. In the absence of a statement of facts, we cannot say that the evidence is insufficient to justify and sustain appellant’s conviction for possessing intoxicating liquor for the purpose of sale.

Cases brought to this court with the record in the condition in which we find this one are very unsatisfactory, and appellants might well realize that under such circumstances their chances of getting bills of exceptions properly considered by this court are exceedingly small.

The motion for a rehearing is overruled.

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: GRAVES, Judge. HAWKINS, Presiding Judge.

text:
    SINGLETON v. STATE.
    No. 20800.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1940.
    Rehearing Denied April 3, 1940.
    John F. McLaurin, of San Augustine, and Minton & Minton, of Hemphill, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant, a negro man, was convicted by the -jury of the unlawful killing of his wife, Wealthy Roberts Singleton, and given a penalty of seventy-five years in the state prison.

The State’s testimony shows that appellant and his wife had been separated for about three weeks, and the deceased and her fourteen year old daughter, appellant’s step-daughter, were living at the house of Laurie Roberts, the deceased’s brother. The testimony -shows that appellant had been coming to the house of Laurie Roberts practically every day during this separation, attempting to get his wife to come back to him. That he threatened to kill her at one time while she was at her brother’s home, drawing his pistol on her. That finally she did go back home with him, and that he beat her while on the way back home, and treated her so brutally that she again left him on the next morning and came back to her brother’s. That on the date of the killing, June 5, 1939, late in the afternoon, the deceased and appellant were sitting out on the porch of the Roberts’ home in a swing, and a witness saw both parties running towards the front door of such home, the deceased being closest to the door, and appellant following her, at which time appellant fired two shots, and after the parties got inside the house the witness heard three more shots. It developed that the deceased was shot, as evidenced by four wounds, in her chest and back, and one in her hand, one of the chest wounds entering from the front, and the other three entered from the back. Prior to the date of the killing the officers had found appellant at the Roberts house with a pistol on his person, and it was testified that he had been threatening the life of his wife at such time.

Appellant’s defense was that he was present at such place in an endeavor to get his wife to go back to him, and that one Tom Moore, the father-in-law of Roberts,—and who lived with Roberts,—came out on the porch where they were talking, and while appellant and his wife were arguing over who should pay for a divorce case that appellant had filed against his wife, appellant said: “She would make me pay for the divorce and kill me before I left there. Tom Moore said, ‘If you don’t pay for this divorce,, g— d-you, you will never get out • that gate,’ and he started in the east room to get a gun.” That appellant was shooting at Moore, and not his wife. That he hit her accidentally every time that his bullets struck her. Evidently the jury did not accept appellant’s version, of these five accidental shots.

The only bill of exceptions relates to the argument of the district attorney, which bill we quote from as follows:

“ ‘The defendant has asked for a suspended sentence; the State joins the defendant in this request, but it is not the same kind of suspended sentence' that the defendant wants; and although you. can not give it to him, the kind of suspended sentence the defendant deserves is to be suspended from the end of a 10-foot grass rope swung over a limb, with the blue sky above and the green grass below.’
“Immediately upon making such argument, the defendant excepted to such argument as being inflammatory and prejudicial to the rights of the defendant, and the defendant then and there requested the court to instruct the jury to disregard such argument; the court granted the defendant’s request and immediately instructed the jury to disregard such argument and give no consideration to same.”

Appellant in his brief complains because he asserts that such argument was an appeal to mob violence and race prejudice, and although the court very promptly instructed the jury to disregard the same, it was so serious and damaging that its injurious effect could not be withdrawn by such instruction. In his brief appellant cites many authorities relative to improper argument, and we find ourselves in accord with a .great portion thereof., In the majority of instances the fault in such argument lies either in a veiled appeal to mob law, or to some matter unknown to the proper record of said case, but merely being testimony brought into the case in the State’s attorney’s speech.

We are of the opinion that the above objected to quotation was not an appeal to mob law, and .was not so intended. We would rather say that it was a reference to the method in vogue but a few years ago of the infliction of the death penalty, that is, by a legal hanging of one to be executed under the mandate of the law. It was surely well known as a matter of common knowledge that prior to the year 1923 all legal executions were had by means of hanging, but since the passage of Art. 798, C.C.P., such unfortunate person,? are executed by an electrocution. It is evident that such was the intended reference from the quotation: . “and although you can not give it to him.”

We do not think any'serious error is evidenced'by said bill; -and .in the light of the careful trial court’s prompt withdrawal thereof, we are constrained to overrule this bill.

There is nothing further presented’ herein, and although the severity Of'the verdict is complained of, we are impressed with the idea • that the facts amply show a brutal killing of a fleeing woman because she refused to live with appellant, a reputed prize' fighter, who had brutally be'aten her more than once. . '

The judgment is affirmed.'

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for. rehearing appellant assumes that the argument of which he complains was an appeal to race prejudice and mob violence. If we could agree with appellant upon either proposition a reversal would follow under many authorities to which we are referred. However, we think our appraisement of the argument in our original opinion is correct.

The motion for rehearing is overruled.


author: ' CHRISTIAN, Judge.

text:
    CAIN v. STATE.
    No. 20878.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Otto Mullinax, of Winnsboro, and Chris Dixie and Mandell & Combs, all of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, confinement - in jail for 90 days.

The trial was before the court without the intervention of a jury.

The complaint reads as follows:

“I, H. E. Abernathy, being duly sworn do state upon my oath that I have good reason to believe and do believe that, in said County and State heretofore on the 3rd day of August, A. D., 1939, J. W. ‘Smokey’ Cain, D. C. Grayson, Avis Au-gustia Bleeker, O. P. Hatton and Alford Jack Estes, did in and upon H. E. Abernathy make an assault.
“And the affiant aforesaid, further states upon his oath that he has good reason to believe and does believe, that in said County and State, heretofore on the 3rd day of August, A. D. 1939, the said J. W. ‘Smokey’ Cain, D. C. Grayson, Avis Augustia Bleeker, O. P. Hatton and Alford Jack Estes did in and upon the said H. E. Abernathy make .an aggravated assault and battery, and did then and there inflict upon the said H. E. Abernathy serious bodily injury, by then and there striking him with their hands and fists, and by kicking him with their feet, and by striking him with iron clubs, and with steel clubs, and with blunt instruments the exact'nature of which is to the affiant unknown, and by means then and there calculated to. inflict serious bodily injury upon the said H. E. Abernathy.”

The information follows the complaint.

Among other things, Article 1147, P. C., provides:

“An assault or battery becomes- aggravated when committed under any of the following circumstances,: .* * * - ,
“7. When a serious bodily injury is inflicted upon the person assaulted.
“8. When committed with deadly weapons under circumstances not amounting to an intent to murder or maim.
“9. When committed with premeditated design, and by the use of means calculated to inflict great bodily injury.”

In 4 Texas Jurisprudence 896 it is said: “The decisions holding that an indictment for aggravated assault must charge that offense in terms do not necessarily mean that the term ‘aggravated assault’ must be specifically employed. However, in order that the accused may be apprised of what he will have to meet on the trial, it is necessary to charge the circumstances of aggravation, — that is, some of the particular acts or circumstances which are necessary to constitute the offense of aggravated assault. It is necessary that the circumstances of aggravation so charged amount to technical grounds of aggravation; anything less will not suffice, Merely charging that the assault and battery was aggravated is not enough.” '

Looking to the complaint, it is manifest that in its entirety it is only sufficient to charge an aggravated assault under Subdivision 7 of Article 1147, supra, that is, the infliction of a serious bodily injury. In Pinson v. State, 23 Tex. 579, the court said: “The only allegation contained in the indictment before us, which amounts to a charge, that the assault committed by the accused, was an aggravated assault, is the allegation, that it resulted in great bodily injury to the person assaulted. The assault is charged to have been made with a stick, and the stick is described as a dangerous weapon; but an assault does not become aggravated, because of the weapon used, unless it be a deadly weapon. And when we look to the 9th subdivision of art. 488 [now article 1147] of the penal code, we find that an assault committed by the use of means calculated to inflict great bodily injury, is not, ipso facto, an aggravated assault, but is so only when there exists also a premeditated’ design.”

In Miles v. State, 23 Tex.App. 410, 5 S.W. 250, 251, the court said: “It was error to overrule the exception to the indictment in so far as said indictment undertakes to charge an aggravated assault. ‘Striking and beating with a pistol in a manner calculated to inflict serious bodily pain and injury’ does not per se constitute an aggravated assault. If the pistol was a deadly weapon when thus used, or if the assault had been made with premeditated design, it would have been an aggravated assault; but the indictment does not allege either of these conditions. * * * The indictment is good for a simple assault and battery only.”

There is no averment in the. complaint and information that the weapon was deadly. Moreover, there is no averment that the assault was committed with 'premeditated design. We say this in view of the fact that there appears to be sufficient proof that the weapon used was a deadly weapon and further there is proof sufficient to warrant the conclusion that the assault was committed with premeditated design with means calculated to inflict great bodily injury. However, in view of the fact that the complaint and information failed to. embrace sufficient aver-ments to charge these circumstances of aggravation, the court would''not be warranted in sustaining, a conviction for an aggravated assault; notwithstanding the mentioned circumstances of aggravation are given sufficient support in the evidence.

It follows from what we have said that in order to sustain a conviction for aggravated assault the proof must show, under the present pleadings, that the injured party sustained a serious bodily injury. The injured party, H. E. Abernathy, gave the only testimony relative to the extent of his injuries. He testified that he was struck across the head with a steel pin and knocked unconscious. It appears that he regained consciousness shortly after he had been attacked. He said the lick he received on the head was hard enough to break the skin -and that he had to go to a doctor. He testified, in part, “I went back to the hospital after that. I believe I made three trips. I did go to work the next day down in the warehouse but I didn’t do much work. I don’t know just how big the bruises or abrasion was on the side of my head but this side here (indicating) was all skinned up and there was a place on my cheek.' Where I was hit with a steel pin was skinned and bruised both. I wouldn’t call it a cut, just the skin knocked off.” There is no evidence that Mr. Abernathy was confined to his bed or incapacitated. The attending physician failed to testify, and, as we have already observed, the injured party was the only person who described the nature of his wounds.

In Lewis v. State, 103 Tex.Cr.R. 82, 279 S.W. 819, 820, in holding the evidence insufficient to show a serious bodily injury was suffered by the injured party, the court said: “An altercation took place in which the appellant, using his pistol as a bludgeon, struck Herrera on the head and put him under arrest. Herrera was not, by reason of the injury, confined to his bed and was not prevented from going to work on the morning following the injury. There was no expert testimony with reference to the effect of the wound.”

In Branch’s Ann.Texas P.C., Section 1583, it is said: “To constitute 'serious bodily injury’ the injury must be grave, not trivial, such an injury as gives rise to apprehension of danger to life, health or limb.”

We are unable to reach the conclusion that the proof supports the averment that the injured party received a serious bodily injury.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    BLEEKER et al. v. STATE.
    No. 20879.
    Court of Criminal Appeals of Texas.
    March 20, 1940.
    Otto Mullinax, of Winnsboro, and Chris Dixie and Mandell & Combs, all of Houston, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is aggravated assault; the punishment, confinement in jail for ninety days.

J. W. “Smokey” Cain v. State of Texas, 138 S.W.2d 102, this day delivered, and the appeal herein present companion cases. The appellants herein were convicted upon the theory that they acted with J. W. “Smokey” Cain in committing 'an aggravated. assault on H. E. Abernathy. The complaint and information are identical with those shown in the companion case. The description of the wounds Mr. Abernathy received is the same as that disclosed by the testimony in the companion case. In short, the records are in the same attitude. The companion case was reversed because of the failure of the testimony to show that the wounds inflicted upon the injured party were serious. Following the holding there, we are constrained to reverse the judgment herein.

The judgment is reversed, and the cause remanded. •

PER CURIAM.

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


author: ' 'BEAUCHAMP, Judge. ■ CHRISTIAN, Judge.

text:
    BERRY v. STATE.
    No. 20849.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    On Rehearing March 20, 1940.
    Curtis Douglass, of Panhandle, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' 'BEAUCHAMP, Judge.

The appellant was convicted in the District Court of Carson County for the offense of driving an automobile upon a public highway while intoxicated and was given a penalty of five days in jail and a fine of fifty dollars.

There are no bills of exception in the case. Appellant filed a motion for an instructed verdict at the close of the testimony on the theory that the evidence was insufficient to support a conviction.

Appellant also filed a motion to have a mistrial declared before the case was argued to the jury and after the close of the evidence. The ground for the motion sets out that after the selection of the jury to try the case a request was. made that the witnesses be placed under the rule. The court called the witnesses to the floor to be' sworn and; asked appellant’s counsel in. .the presence of the jury if he wanted the defendant sworn. No reply was made and the court reiterated the question in the presence of the jury. Appellant did not take' the stand in his own behalf, and complaint is made that this was an allusion to the failure of the defendant to testify. The unguarded remark of the learned District Judge might, under' some circumstances present a difficult question. Certainly it is not á necessary or proper inquiry, but under the facts of the present case, we are unable to see how the rule would be violated. Had the question been asked at a later time, it might be different, depending upon all of the circumstances surrounding the asking of the question. It is quite true that there is no need for any concern upon the part of the trial judge as to whether the defendant in a criminal case is sworn or not. Yet, unless it can be so linked with the procedure in the case as to constitute a reference or an allusion to the “failure to testify” it will not be construed as a viola-' tion of the rule.

The indictment properly charges the offense for which the appellant was convicted. The evidence supports the finding of the jury. A constable and a deputy sheriff had observed the appellant driving his automobile on the streets and when he had parked his car and left it for a short while, they went to it and found another man in it who was helplessly drunk. They took him out and carried him to jail, returning in some twenty or thirty minutes later. Appellant re-entered his car and drove through the streets, as detailed by the ’constable and the deputy sheriff, later stopping and going across the street to a garage. Mr. Williams, the ■ city marshal, arrested the appellant and turned him over to the constable and the deputy sheriff. It is true that the evidence of Mr. Williams on the subject is not sufficient to raise an issue as to the intoxicated condition, of the appellant, but the constable testified as follows: “We saw him get out of his car there at the Panhandle Inn and walk across to the Night and Day Garage; we got to that corner just in time to see him getting out of his car. He was staggering when he was walking. From my observation that I made of him then-at that time as he was walking from his car across to the Night and Day Garage, I figured he was drunk. I figured he was drunk then.”

John White,..the deputy sheriff, testifying as to the condition of the appellant at the same time, said: “At that time I saw the defendant Roy Berry; he was going across the street. I don’t believe I saw him get out of the car but I saw him right by the car going across the street to' the Night and Day Garage. I observed the manner in which he was. carrying himself in walking. The manner in which he was carrying himself was that he was stagger-" ing a little bit. From what I observed of him 'there at that time, he was in an intoxicated condition.”

There was also testimony as to the smell of liquor on his breath. While there is a sharp difference between the opinions of the witnesses on the opposing’ sides as to the condition of the appellant, as well as the statements made by the officers concerning' him, the question was one for the jury to pass on and not for this court: • In the state of the record, we have no jurisdiction to find further than that the facts were sufficient to support the jury’s verdict.

-On Appellant’s Motion for Rehearing.

■ CHRISTIAN, Judge.

In his motion for rehearing, appellant, among other things, insists that the appeal should be dismissed and points out that the transcript embraces no judgment of conviction. Appellant is. correct in this contention.. In the absence of a- judgment of conviction this court is without jurisdiction.

The motion for rehearing is granted, the judgment of affirmance is set aside and the appeal is now 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: BEAUCHAMP, Judge. KRUEGER, Judge.

text:
    BLACKBURN v. STATE.
    No. 20836.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    On Motion to Reinstate Appeal March 20, 1940.
    L. W. .Sampson and S. K. Sampson, both of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for the unlawful possession of intoxicating liquor for the pur-ppse of sale in a dry area; penalty assessed at confinement in the county jail for fifty days.

The record fails to show that notice .of appeal was given and entered upon the minutes of the trial court. In the ábsence of such a showing, this court is without jurisdiction to determine the matters presented for review. Art. 827, C.C.P. See Curbow v. State, Tex.Cr.App., 132 S.W.2d 853, and cases there cited. -

'The appeal is dismissed.

On Motion to Reinstate Appeal.

KRUEGER, Judge.

At a former day of- this term we iismissed 'the appeal in this case because the record failed to show that notice of’ appeal was given, and entered upon the minutes of the trial court. Since then the record has been perfected in this respect and we will now consider and dispose of the case on its merits. The only question presented for review is the sufficiency of the evidence to sustain ‘appellant’s conviction.

The state’s .testimony .shows that the officers drove- up to. appellant’s home and called’ for him. -He invited- them -intp the ’house. They told hirp -their, .purpose in being there. Th ey'.did not- tell; him they had any search warrant. He told them to go ahead and search; - that they did- not need a search warrant. They found 10 half-pints of whisky in the barn and two empty whisky cases in the house which had the same brand marked thereon as the whisky which they found in the barn. The state also offered in evidence the minutes of the Commissioners Court showing that local option was in full force and effect in Wise County. Appellant did not testify or offer any affirmative defense. We deem the evidence sufficient, to sustain his conviction. In his brief, appellant complains of the introduction of the whisky found as a result of the search, but no oN jection seems to have been interposed to its introduction in evidence. Appellant in his brief also speaks of certain bills of exceptions, but none appear in the transcript. Hence these matters,’ although discussed in his brief; cannot be considered in .the áb-sence of proper bills of exceptions;

No error of a reversible nature appearing, 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: BEAUCHAMP, Judge. •GRAVES, Judge.

text:
    ROSENBAUM v. STATE.
    No. 20812.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.
    Rehearing Denied March 20, 1940.
    Forrest Campbell, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted for the offense of unlawfully carrying a pistol and his punishment was assessed at a fine of one hundred dollars.

The record is' before us without statement of facts or bills of exception, in the absence of which nothing has been presented authorizing a reversal of the conviction. ....

The judgment is affirmed.

On Motion for Rehearing.

•GRAVES, Judge.

This cause has been heretofore affirmed, there having been an absenc'e of á statement óf facts and bills of exception. In this motion, however, óur' attention is called to the fact that the complaint and information charge Harry Rosen baum with unlawfully carrying a pistol, and the judgment and sentence refer to the defendant as Harry Rosenbauer. It is to be noted however that upon the reading of the State’s pleadings herein appellant pleaded not guilty and made no suggestion of a misnomer-; that a jury was waived and the matter presented to the court; that 'appellant was by the court found guilty and assessed a fine of $100; .and that appellant, under the name of. Rosenbauer, filed a motion for a new triál.

Under Art. 495 et seq., C.C.P., if there is no suggestion made by the defendant as to a mistake in his true name, the trial shall proceed in the name set forth in the indictment or information.

We have heretofore held in the case of Kinkead v. State, 61 Texas Cr.R. 651-654, 135 S.W. 573, 575, as follows: “In regard to the suggestion that defendant was not indicted in his true name, this is immaterial. Under articles 548 [now 495] and 549 [now 496], C.C.P., he had a right to suggest his true name when the case was called for trial. Not having done so, he cannot for .the first time complain in this court. Henry v. State, 38 Tex.Cr.R. 306, 42 S.W. 559.”

The motion is overruled. ■