author: COBBS, J.

text:
    CORLEY v. W. D. CLEVELAND & SONS et al.
    (No. 8134.)
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1929.
    Rehearing Denied March 6, 1929.
    R. S. Dorsett, of Raymondville, for appellant.
    A. B. Crane, R. F. Robinson, and Davis E. Decker, all of Raymondville, for appellees.
   COBBS, J.

Up to October, 1927, one C. E. Belden bad been running a grocery store in Raymondville and bad a man working for him •named W. R. Corley, the appellant in this case. About the 1st of October, 1927, Belden closed his store and left it with taxes unpaid for that year and the year 1926, and some of the house rent unpaid. During the year 1927 appellees, W. D. Cleveland & Sons, Wichita Mill & Elevator Company, and Pruitt Commission Company, all had judgments against Belden and had them in the sheriff’s hands in Willacy county; but he had not levied them. On October 26, 1927, and while the above executions were in the hands of the sheriff, the said W. R. Corley filed his purported laborer’s lien against said stock of goods which Belden had left, saying that he had been hired by Belden in 1925 to work at $125 per month; that he worked till March 1, 1927, at which time he was paid up, but that Belden, being in a/ destitute condition, contracted with Corley for his services in the store, and Belden “was not to pay Corley till Belden was in better financial condition.” Corley then sued on this lien and contract and obtained judgment for $620, in which suit Belden waived service; then Corley issued order of sale and had it levied on the goods and had them advertised for sale on December 24. Thereupon the three appellees above named brought this suit to enjoin the sale and set aside Corley’s judgment on the ground that nothing was owing to Corley and that Corley had been paid, and asking for a receiver for the property and that the property be sold and distributed to the creditors.

The injunction was issued, but upon motion it was dissolved in term time and the case tried at the next term of the court, resulting in judgment in favor of the plaintiffs setting aside said judgment and approving tile receiver’s report. The said W. R. Corley intervened in the suit and was denied Ms relief, and the court denied Mm any lien and set aside the judgment which he had already obtained. Prom the judgment Corley has appealed, and we find only two assignments of error.

The facts show that Corley put into the bank, on almost each Monday, about $30 to $35, the purported wages that he received each week, and about the same wages that he claimed to be owing to him in his purported lien, that is, $125 per month. The facts further show that neither Corley nor Belden had any property in the state at the time of the attempted sale of this property under order of sale. The judgment is against Corley on all questions of fact; hence he had imposed upon the court to obtain his judgment; when all this was brought home to him in the trial of the case, he never took the stand to testify to any facts. The facts show that the money put into the bank by Corley from the 1st day of January, 1927, to October 27, 1927, the day after the store closed, amounted to the sum,of $1,345.79 for the ten months, or $134.57 per month. He claimed that he had contracted to work for $125 per month, and the evidence of the banker shows that Corley had no other occupation than working in the store; hence he must have received more wages than he contracted to receive for his work. The judgment of the court is against Corley on all matters of fact; therefore, since his judgment was set aside, the stock of goods was subject to the debts of all the creditors, among which are the appellees.

Under our statute, the only court in which the suit could be brought was the district court of Willacy county, since that is the court in which the judgment was rendered ánd since this was a suit primarily to set aside the judgment; and unless this was done the appellees, of course, would have no rights in the court. Under article 2128 of the 1914 Vernon’s Civil Statutes, receivers may be appointed by the courts in a case where creditors bring suit to subject property to their claim.

The whole case shows that was all that was done; the receiver took the stock of goods, sold it, and accounted well for the proceeds, and the report made by him was approved by the court. We fail to see where ¿he appellant has any rights in the case at all, since the court found his judgment had been fraudulently obtained and set it aside. He had no right in the goods because he- had no debt owing to him; and in this suit he did not even attempt to establish his debt or his lien, and no objection is raised in this court to the court’s setting aside his judgment and finding that he has no debt against Belden. He has no rights in the case anywhere under the record as made, and the only thing this court can do is to affirm the case.

Judgment is affirmed.


source: Caselaw Access Project

author: PUT, O. J.

license: Public Domain

text:
    SYKES et al., v. PANDORA INDEPENDENT SCHOOL DIST. et al.
    (No. 8165.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1929.
    Rehearing Denied March 6, 1929.
    R. R. Smith, of Jourdanton, for appellants.
    S. B. Carr, of Eloresville, for appellees.
   PUT, O. J.

This is a suit filed by C. Sykes, •G. Sykes, and Evans, against Pandora independent school district and its board of trustees, consisting of Terrell Irvin, J. H. Collins, L. D. Holstein, F. T. Magee, Fritz Ku-patt, E. E. Irvin, and Tom Garner, seeking a judgment, declaring that a certain election held to authorize the issuance of certain bonds from which to realize a sum of money to erect a schoolhouse in said district was null and void, and, in the alternative, for an injunction to restrain the trustees from issuing and selling said bonds. The court sustained certain special exceptions to the petition, and, appellants failing to amend, the suit was dismissed.

We copy the purposes sought in the petition from the brief of appellants:

“(1) Of enjoining the issuance of certain school bonds of appellee school district (a) because of a lack of public necessity for the use of the funds to be raised by sale of the bonds, and (b) because of an abuse of discretion by the board in calling the election and of the participants in voting the bonds in the amount named ($22,000), and (c) because the issuance of the bonds and levying of the tax would constitute the taking of complainants’ property in said district without due process of law;
“(2) Of contesting the validity of the election itself because of a lack- of proper notice in the matter of time of giving and of an insufficiency of the petition, order of election and notice of election in the matter of form and substance; and,
“(3) To enjoin the carrying out of a contract to sell the bonds made before they were issued or even approved by the attorney general.”

The validity of the election was assailed on the grounds of the insufficiency of the petition, of insufficient notice, and because there was no public necessity for issuing the bonds and using the funds arising from their sale in the erection of a schoolhouse.

There are four assignments of error relied on by appellants, each presenting an error in the action of the court in sustaining certain special exceptions to the petition, and, in order to test the soundness of the assignments of error,' we will analyze the articles of the statute relied" upon to sustain the attacks made on the election. Subdivision 2, art. 2784, Revised Statutes of 1925, authorizes the purchase, construction, repair, or equipment of public free school buildings by independent districts, and the levy of a tax not exceeding 50 cents on the hundred dollars valuation, and specifies that such tax is “to be for the payment of the current interest on and provide a sinking fund sufficient to pay the principal of bonds which said districts are empowered to issue for such purposes.” Subdivision 3 applies to a maintenance tax, and has no applicability to the tax sought to be levied in this case. Subdivision 4 requires the question of the issue of bonds to be authorized by a majority of the votes cast at an election held in the district for such purpose, and provides the qualifications of-the voters.

Article 2785 provides that, before an election is held to determine as to the levy of a tax or issuance of bonds in an independent district, a petition signed by twenty or more or a majority of the qualified voters shall be presented to the school trustees, and, when such is presented, the trustees shall issue an order for an election and order the sheriff to post notices in three places in the district for three weeks prior to the election. It is also provided that the petition, election order, and notice of the election shall in all cases either state the specific' rate of tax to be voted on, or that the rate shall not exceed the rate specified, and the orders and notices shall state the time and place of holding the election. The trustees of the district are empowered to canvass and declare the result of the election.

In article 2786 it is provided -that the issuance of bonds is to be voted on in an independent school district; the petition, order, and notice of election must distinctly specify the amount of the bonds, the rate of interest, their maturity dates, and the purpose for which the bonds are to be used. The article also provides the maximum rate of interest, the form of the ballot, and other matters not involved in this suit.

In the case of Hill v. Smithville Independent School Dist., 251 S. W. 209, the Commission of Appeals, in passing upon the requirements in calling bond elections, held: “As to the claim of irregularity urged by the plaintiffs in error as invalidating the election authorizing the 60 cent tax, the rule is that statutes regulating the manner of holding an election are merely directory, and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure or such irregularity have affected or changed the result of the election.” It is not alleged in appellant’s petition that any of the irregularities alleged affected or changed the result of the election. In the opinion in the case from which we quoted the Court of Civil Appeals (239 S. W. 987), it appeared that notices had not been posted, and the court said: “The voters had actual notice of such election, as is shown by the fact that a large majority thereof voted at the election. It was not alleged or proven that any one failed to vote at the election for want of notice thereof.” That opinion was approved in the Commission of Appeals. In this case there is no allegation that any of the irregularities charged deprived any voter of his right to vote or had any effect whatever upon the result of the election.

In the case of Williams v. Glover (Tex. Civ. App.) 259 S. W. 957, the court considered several irregularities in calling the election, and held that they did not invalidate the election in the school district, and especially on the question of irregular notices of election said: “It is not shown, nor even contended, that any voter failed to participate in the election because of any irregularity in said notices. * * ⅜ We do not think the irregularity shown was sufficient to affect the validity of such election.”

There is a general allegation, a mere conclusion, that a majority of the voters were deceived as to the amount of tax they were attempting to vote, but it is not alleged that the amount was not within the limits of the law. The petition seems to present academic questions of irregularities as to notices and other matters, but the allegations fail to state facts showing that such irregularities in any manner affected the result of the election.

The voters passed on the necessity for the issuance of bonds by voting for their issuance, and courts have no right or power to inquire into such necessity. If there are ninety-nine children in the school district, as alleged, they are entitled to have an education, and must necessarily have a schoolhouse in which such education can be imparted.

The judgment is affirmed.


author: ELY, C. J.

text:
    HAMILL v. AGEY.
    (No. 8133.)
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1929.
    Rehearing Denied March 6, 1929.
    E. T. Yates, of Brownsville, for appellant.
    H. B. Galbraith, of Brownsville, for appel-lee.
   ELY, C. J.

Appellant alleged in his petition that he resided in Cameron county, and appellee resided in Potter county, that on or about April 1, 1928, appellee owned block 55, of El Jardin subdivision, better described as Banco No. 88, as made by International Boundary Commission of Mexico and the United States, in Cameron county, and appellant wrote appellee that he had been informed that the land was about to be sold for taxes and offered $500 and the taxes for the land. Appellee wrote appellant that he would take $1,000 for the land, appellant to pay all taxes due on the land. Appellant prepared a deed and sent it to appellee by mail, but appellee then refused to execute the deed. Appellant sought specific performance of the contract evidenced by the letter. Appellee pleaded his privilege to be sued in Potter county and his plea was sustained. Erom that order this appeal has been perfected.

The following was agreed to as a true statement of the facts:

“On May 19th, 1928, the defendant was a resident of Potter County, Texas, and has been a resident of that county ever since; that the Plaintiff E. C. Hamill was on said date a resident of Cameron County, Texas, and has been such resident ever since.
“On said date of May 19th, 1928, the defendant owned in fee simple title Banco No. 88, designated as Block No. 55 of the E. S. Hunt, et al., Subdivision, in Cameron County, Texas ; that on said date there were no incum-brances on said property and no liens, except tax liens. A contract lien in favor of Nelson Loan Company had been legally released, but the release had not been filed for record in Cameron County, Texas, and the defendant W. M. Agey did not know that this lien had been released on May 27th, 1928.
“On May 19, 1928, the plaintiff E. C. Hamill wrote defendant W. M. Agey, as follows:
“ ‘May 19, 1928.
“ ‘Mr. W. M. Agey, East King Street, Tulsa, Oklahoma.
“ ‘Dear Mr. Agey: By the record I see you own Block 55 in El Jardine District, 51.85 acres, which is advertised for sale for taxes amounting to $100.00.
“ ‘A party here is willing to pay $500.00 and pay the taxes, if you wish to sell it, and you furnish the deed and abstract. Kindly let me know at once if you will accept this proposition. I will charge you five (5%) per cent.' commission. Hoping for a prompt reply, I remain,
“ ‘Yours truly, E. C. Hamill.
“ ‘Inclosed please find self-addressed envelop and stamp. 1316 Elizabeth Street, Brownsville, Texas.’
“Said letter was forwarded to defendant, who received same at Amarillo, Potter county, Tex. On May 27, 1928, defendant from Potter county wrote plaintiff as follows:
“‘Mr. E. C. Hamill, 1316 Elizabeth St., Brownsville, Texas.
“ ‘Dear Sir: Your letter received regarding property being sold for taxes.
“ ‘The amount of taxes are $137.00, or something like that. As to the irrigation taxes and drainage taxes, we requested them to drain that portion of the tract, but they did not do so, so wé cannot see why we should pay such taxes, as we received no benefit whatever.
“ ‘If you wish to pay me one thousand dollars for my interest in this tract, I will accept it.
“‘Yours truly, W. M.-Agey.'
“This letter was received by plaintiff at Brownsville, Texas.
“The plaintiff by his attorney, on May 31, 1928, wrote defendant as follows:
“ ‘Mr. W. M. Agey, 106 Cheyenne Roads, Amarillo, Texas.
“ ‘Dear Sir: Mr. E. C. Hamill has turned over to us your letter of May 27, and requested us to forward to you proper deed to your property, and to suggest that you send deed with draft for one thousand ($1,000.00) dollars,- and the abstract, on your property, to the Merchant’s National Bank of this city, with the instruction to the bank here to permit examination of the deed and abstract, and to allow thirty days, if needed, within which to examine the abstract.
“ ‘As soon as abstract has been passed upon, if there are no incumbrances other than taxes, Mr. Hamill will take up the deed and pay the draft.
“ ‘We are uncertain as to whether you are married, and for that reason we have drawn the deed W. M: Agey and wife, -. In ease you are not married, merely draw lines through the portion and wife - Agey, and write above it, a single man.
“ ‘As soon as the abstract and deed reaches the bank here we will examine the abstract and see that Mr. Hamill takes the deed up within thirty days.
“ ‘Yours very truly,
“ ‘Davenport, West and Ransome,
“ ‘By R. X Ransome.’
“The above letter was mailed at Brownsville, Texas, by plaintiff and received by defendant at Amarillo, Texas.”

It may appear from the last letter, written by attorneys for appellant, that he desired to have the deed executed in Potter county, and sent to a bank in Cameron county; but there cannot be found in the agreed facts one word binding appellee to perform any part of the contract in Cameron county. He at no time agreed to send the deed to Cameron county and have the money paid to him there, and it can readily be surmised that he preferred placing the deed in escrow in a bank in Amarillo and receiving the purchase money there. However that may be, he at no time agreed to perform any act in connection with the sale of land in Cameron county.

Appellee’s offer to appellant was: “If you wish to pay me one thousand dollars for my interest in this tract, I will accept it.” Where was the money to be paid and the deed executed? Appellee did not state where the money was to be paid or the deed delivered. When appellant replied to the $1,000 offer, he wanted the deed sent to a certain bank in Cameron county, together with an abstract, and sought 30 days in which to examine the abstract, and made his acceptance of the deed upon no other incumbrance than the taxes, then the draft sent with the deed would be paid. Appellee did not agree to this last proposal. He did not agree to send the deed to Cameron county and did not agree to accept the purchase money there.

The judgment is affirmed.


author: JACKSON, J.

text:
    MASONIC TEMPLE ASS’N et al. v. AMARILLO INDEPENDENT SCHOOL DIST.

    (No. 3085.)
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1928.
    Rehearing Denied Nov. 7, 1928.
    Stone & Guleke, of Amarillo, for appellants.
    P. F. Sapp, of Amarillo, for appellee.

      Writ of error refused.

   JACKSON, J.

The plaintiff, the Amarillo Independent School District, instituted this suit in the district court of Potter county, Tex., against the defendants, the Masonic Temple Association of Amarillo, and the Mercantile Trust Company of St. Louis, Mo., to recover the sum of $1,047.10, delinquent taxes, interest, penalties, costs, etc., for the year 1926, legally levied and assessed by the plaintiff against lot No. 6 and the south 20 feet of lot No. 7, block 4, of the Glidden and Sanborn addition to Amarillo, and the improvements thereon, all of which is situated within the Amarillo Independent School District.

The Masonic Temple Association is a corporation incorporated under and by virtue of the laws of the state of Texas, with a capital stock of $200,009, divided into shares of $100 each, with a board of nine directors selected as follows: Two from the members of Amarillo Lodge No. 731, two from the members of Amarillo Chapter 196, two from the members of the Amarillo Commandery No. 48, and two from the members of Khiva Temple and one from some other Masonic body that may be hereafter admitted to joint ownership in the building by acquiring stock in the corporation. The Mercantile Trust Company is a corporation incorporated under and by virtue of the laws of the state of Missouri.

The defendants urge as a defense to the payment of taxes that the Masonic Temple Association is an “institution of purely public charity” within the contemplation of the Constitution of the state of Texas, the statutes exempting the property of such institutions from tax liability.

The case was tried before the court without the intervention of a jury, and judgment rendered against the defendants for the taxes, interest, penalties, costs, etc., and a foreclosure of the tax lien against the above-described premises, from which -judgment this appeal is prosecuted.

The agreed statement of facts discloses: That the charter of the Masonic Temple Association provides that “the purpose of the corporation is the support of benevolent and 1 charitable undertakings, to wit: The erection of a building not for profit but for the use and benefit of such various Masonic bodies and lodges of Amarillo, Texas, as may become stockholders and joint owners and for the free use of visiting Masonic bodies and the promotion of charitable and educational activities of the order, but shall never be dedicated to the purpose of commercial gain or profit.” That the Masonic Temple Association paid $20,000 for the land and erected thereon a three-story brick building with a full basement at a cost of $201,358.51. That the building contains lodge rooms for the Blue Lodge, the Chapter, the Commandery, and the Khiva Temple. That in addition to such lodge rooms, the building was constructed with a banquet hall and kitchen, a dance hall, a library room, a pool and billiard room, etc. That the lot and improvements are owned by the Masonic Temple Association of Amarillo, Tex., subject only to an outstanding incumbrance of the Mercantile Trust Company and the alleged tax lien sued upon ■by the plaintiff. That the building is occupied by Amarillo Lodge No. 731 Ancient Free and Accepted Masons, Palo Duro Lodge No. 1239 Ancient. Free and Accepted Masons, Amarillo -Chapter No. 196 Royal Arch Masons, Amarillo Commandery No. 48 Knights Templar, and Khiva Temple, which together own $61,200 of the capital stock of the Masonic Temple Association. That each of said Masonic bodies is incorporated under a charter that provides in substance that it is formed for charitable and benevolent purposes, to cement the bonds of good fellowship and brotherly love among its members and adherents, and to practice, the art of ancient free and accepted Masonry, Royal Arch Masonry, etc., as has 'been done from time immemorial.

That neither the Masonic Temple Association nor the Masonic bodies are organized tc conducted for profit. That no officer of the Masonic Temple Association receives any salary and no officer of any of the Masonic, bodies mentioned receives any consideration for his services, except the secretary of each, who is paid for his services. That the Masonic Temple Association owns no other property except the lot and the building, and that the furniture and fixtures in tlie 'building belong to the respective lodges. That the property involved in the suit is actually used by the members of the Masonic bodies above named,' and no person is permitted the use of the property except Master Masons in good standing. That the building is used by such Masonic bodies for the purpose of conducting lodge meetings, initiations, ceremonials, and such entertainments as are provided from time to time by the respective organizations, but no person is permitted to attend any function unless he is a member in good standing in the organization which he visits and no charge is made for any attendance upon any function or ceremonial. That the Masonic Temple Association has no income from rents or otherwise except that the Masonic bodies occupying the building pay annually to the Masonic Temple Association $18,000, which is applied to the payment of interest on outstanding indebtedness, interest-bearing capital stock held by individuals amounting to $75,000, and “.current expenses in the nature of heat, light, water, and janitor service in the building, as well as insurance premiums and taxes to be paid.” That the lodges ure secret fraternal organizations using said Masonic building for their lodge meetings in which are conducted initiations and ritualistic work, from which the public is excluded.

The lodge work is the usual and customary work of Masonic lodges and in its nature is fraternal, educational, social, and charitable, but the work is only partly charitable and the lodges do other work besides dispensing charity. That public charities are not conducted in the building, but are discussed and decisions made on needy charity cases. That the actual dispensing of charity to the public is never made in the building, but is made to Masonic institutions in the state of Texas and elsewhere, such as hospitals, schools, homes for aged Masons, widows, orphans, etc., and that all moneys acquired from initiations, dues, etc., by such Masonic bodies not paid out for current expenses and on building obligations are devoted to charitable and educational purposes and never become the subject-matter of gain or profit for private interests. That the Blasonic Temple Association rents no portion of its property and grants no concessions whatever for commercial purposes. That the building is never open to the public and is exclusively used by members in good standing of the Masonic lodges occupying it and visiting members from other lodges; that the Grand Lodge of Texas, the Grand Royal Arch Chapter of Texas, the Grand Commandery of Texas, and tlio Imperial Council of the Shrine, to whieh tl"' Masonic bodies ■ occupying the building • subordinate, maintain Blasonic institutions of charity ifi this state and elsewhere, and that the Masonic bodies occupying the building and such grand lodges contribute to suffering humanity in periods of disaster, such as stoi'ms, floods and other calamities, regardless of whether the recipients are members of the organizations or not, and that all moneys acquired by all such organizations, not expended for administration purposes, building obligations, etc., are devoted to charitable and educational purposes and never become the subject-matter of private gain or profit. That during 1926, Amarillo Lodge No. 731 made disbursements aggregating $7,201.-53, which was appropriated as follows: To charity ahd educational’ funds, 34.4 per cent.; administrative expenses, including salary to secretary, 21.2 per cent.; Masonic Temple Association for building obligations, 44.772 per cent.; refreshments, .028 per cent. That during the same year, Ralo Duro Lodge No. 1239 made disbursements aggregating $1,186.-50, apportioned as follows: To charity and educational funds, 17.2 per cent.; administrative expenses, including salary to secretary, 18.9 per cent.; Masonic Temple Association for building obligations, 63.9 per cent.; entertainment, none. That Amarillo Chapter No. 196 Royal Arch Blasons made disbursements during the year aggregating the sum of $2,259.67, apportioned as follows: To charity and educational funds, 21.3 per cent.; administrative expenses, 16.1 per cent.; to Bla-sonic Temple Association for building obligations, 62.6 per cent.; entertainments, none. That the Amarillo Commandery No. 48, during the year, made disbursements aggregating $5,330.60, apportioned as follows: To charity 12 per cent.; to educational funds, 8.1 per cent.; administrative expenses, including salary to recorder, 7.8 per cent.; to the Masonic Temple Association for building obligations, 72.1 per cent.; entertainment, none. That the Khiva Temple, for the year 1926, disbursed $22,986.37, apportioned as follows: 22.8 per cent, to charity; 44.5 per cent, to the building fund; 6 per cent, to equipment; 8.1 per cent, to miscellaneous expenses; 14.1 ■per cent, to salaries of recorder and treasurer ; and 4.5 per cent, to entertainment. That house rules have been adopted providing for a committee of three members to be appointed by the board of directors of the Masonic Temple Association, who shall have charge of the building. The duties of this committee are purchasing supplies, furniture, literature, etc., hiring of necessary help, and enforcing rules for the government of the building, all of which is subject to the approval of the directors of the Blasonic Temple Association.'

These rules, among other things, provide: That the library room shall be opened on Sundays from 9 a. m. to 7 p. m. That the banquet room and kitchen, together with its equipment, shall not be used except by the regularly appointed banquet committees. That nonresident Master Blasons visiting Amarillo may have the privilege of the reere-ation rooms of the Temple for a period of two weeks when holding guest cards issued by the secretary, etc. That no part of the building shall be used at any time by religious or political organizations. That no charge shall be made for any form of entertainment given in the Temple. That hats, coats, etc., must be deposited in the regular ha.t and coat room on the main floor or adjacent to the lodge-room. That strict decorum and quietude must be maintained in the library so as not to disturb those wishing to read. That the clubroom on the first floor of the Temple shall be open for the use and enjoyment of all Master Masons who are members in good standing of the lodges occupying the building from 9 a. m. to noon, from 1:30 p. m. to 6 p. m., and from 7:80 to 10:30 p. m. on week days, with certain exceptions, and shall be open from 1 p. m. to 6 p. m. on Sundays. That Masonic courtesy and conduct must be maintained in the clubroom, and no group of players should monopolize billiard, pool or domino tables when others are wanting to play. Three games should be sufficient for any group in such a case. That the members, by careful playing, will keep the billiard and pool balls from jumping tables and chipping on the concrete floor. No massie shots allowed at any time. No sitting on billiard or pool tables allowed. That the board of directors of the Masonic Temple Association reserves the right to close the clubroom at any time at its discretion should the conditions warrant such action. That the Masonic Temple Association owes the taxes sought to be recovered on the property unless it is exempt from taxation as an institution of purely public charity.

In the case of City of Houston v. Scottish Rite Benev. Ass’n, 111 Tex. 191, 230 S. W. 978, the charter of the Scottish Rite Benevolent Association states that the purpose of the incorporation is to provide for needy Masons, their wives, widows, mothers, and children. The facts show that the Scottish Rite Be--nevolent Association had no capital stock; that it purchased lots in the city of Houston and erected a building thereon called the “Scottish Rite Cathedral,” which was owned by the Scottish Rite Benevolent Association, “subject to the rights of two Masonic organizations named San Jacinto Lodge of Perfection No. 6, and Houston Chapter of Rose Croix No. 5,” which had furnished “the funds to purchase the property and to erect the improvements thereon” ; that the Cathedral was not rented for commercial purposes, and the Scottish Rite Benevolent Association owned no other property used for gain or profit; that none of the officers of said association or said lodges were paid anything for their services ; that the funds of said association were voted to it by San Jacinto Lodge of Perfection No. 6 and the Houston Chapter of 'Rose Croix No. 5, whose funds were derived from fees of initiation and dues of members; that the funds received by the association from these two Masonic bodies were appropriated for various charitable purposes and invested in a home to enable them to pursue their work as Masonic lodges; that the money dispensed for charity was for the purpose of relieving needy Masons, their wives,- widows, mothers, and children; that the principal object of the association was to expend its funds for the relief of the classes named above, or for supporting institutions for Masons; that large portions of its money had been spent during' the Galveston flood and contributions had been made to the Harris County School for Girls, the Industrial Home for Girls, and other organizations; that the property was used exclusively to furnish a lodgeroom for the members of the Scottish Rite Benevolent Association and to provide a lodgeroom for San Jacinto Lodge of Perfection No. 6 and Houston Chapter of Rose Croix No. 5; that said lodges were engaged in the work of the Blasonic order “which, in the language of the agreement of counsel, is not an order ‘that does nothing but-dispense charity, but it does dispense charity.’ Their entire receipts were donated to the association less only necessary operating expenses.”

The facts in the case at bar show that the Masonic Temple Association of Amarillo was incorporated- with a capital stock of $200,000 for the purpose of erecting a building which shall never be dedicated to the purpose of commercial gain or profit, but for the use and benefit of such Blasonic bodies and lodges of Amarillo as may become stockholders and joint owners, and for the use of visiting Bla-sonie bodies and the promotion of charitable and educational activities of the order; that the Masonic Temple Association purchased land and erected thereon the building in controversy at a cost of $221,358.51; that the association owned the property subject to the liens against it and to the interest of private individuals who own $75,000 of the capital stock and subject to the interest of the Bla-sonic bodies which occupy the building and own $61,200 of the capital stock; that said association does not occupy the building and does not rent it for commercial purposes, profit or gain, but permits Amarillo Lodge No. 731, Palo Duro Lodge No. 1239, Amarillo Chapter No. 196, Amarillo Commandery No. 48 Knights Templar, and Khiva Temple to actually and exclusively occupy the building; the lodgerooms for lodge purposes and the banquet hall and kitchen, the ballroom, the library and reading room, and the pool and billiard room for the recreation of the rnenj.-bers of said lodges and visiting Blaster B&sons, and in order that they may enjoy the fellowship and companionship which is promoted by frequent social intercourse and/association; that all of the moneys derived by said Blasonic bodies from fees for initiation, dues of members, and all other sources, except the sums required to defray current expenses and outstanding indebtedness, with interest thereon, against the building, are devoted to charitable purposes; that no official of the Masonic Temple Association receives any salary and no official of any of the Masonic bodies receives any remuneration for his services except the secretaries; that said Masonic lodges are secret, fraternal organizations and use the lodgeroom for their lodge meetings, in which are conducted initiations and ritualistic work, and the other rooms are for social purposes ; that the lodge work is the usual and customary work of Masonic lodges, and in its nature is fraternal, •educational, social, and charitable, but the work is only partly charitable and the lodges do other work besides dispensing charity.

Judge Greenwood, in City of Houston v. Scottish Rite Benevolent Association, supra, says:

“The opinion of Judge Gaines, in Morris v. Masons, supra’, made certain the meaning of the terms of the Constitution, in section 2 of article 8, that: ‘The Legislature may, by general laws; exempt from taxation * ⅞ ¾ all buildings used exclusively and owned by persons or associations of persons, for school purposes * * ⅜ and all institutions s ⅞ * of purely public charity.’ Such meaning is that the Legislature may, by general laws, exempt from taxation ‘all buildings used exclusively and owned by persons or associations of persons for school purposes,’ and ‘all buildings used exclusively and owned by institutions of purely public charity.’ So no building comes within the exemption authorized by the Constitution to ‘institutions of purely public charity’ unless it is both owned and used exclusively by such an institution. No departure from the above construction of the mandate of the Constitution can be favorably considered, for it was the language of section 2, of article 8, as construed by the Supreme Court, which was carried without change into the subsequent amendment of the section. The presumption is conclusive that the people readopted the provision with knowledge of its declared intent.”

After disposing of the contention of the appellant in the ease, the city of Houston, that the Scottish Rite Benevolent Association was not an institution of purely public charity, because those to whom it extended aid were confined in the main to Masons and their relations, he concludes as follows: “But the question remains whether the property was owned and used exclusively by an institution of purely public charity. It does not satisfy the constitutional requirement that the use by others was permitted by the owner to obtain revenues to be devoted entirely to the owner’s work of purely public charity. Morris v. Masons, 68 Tex. 703, 5 S. W. 519. Nor is the requirement satisfied by the fact that those sharing the use pay no' rent. Red v. Johnson, 53 Tex. 288. The actual, direct use must be exclusive on the part of such an institution as is favored by the constitutional provision. By the very manner and terms of this property’s acquisition, it was required to be used, as it wás in fact used, by the two Masonic orders, ‘to enable them to pursue their work as Masonic lodges,’- such work being, as agreed, only partly charitable. To the extent that the property was used by Masonic organizations, whose activities included other fields than charity, it was not, and could not be, used exclusively by an institution of purely public charity.”

The agreed statement shows that the “lodge work is only partly charitable and the lodges do other work besides dispensing charity.” Therefore their activities include other fields than charity, and to that extent the property is not used exclusively by an institution of purely public charity.

In our opinion, the opinion of Judge Greenwood in the case, supra, is conclusive against appellant’s contention, and the judgment is affirmed.

RANDOLPH, J., not sitting.


text:
    McMILLAN v. RUTHERFORD.
    (No. 3186.)
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 13, 1929.
    Kinder & McMath and C. D. Russell, all of Plainview, for appellant.
    Joiner & Cook, of Plainview, for appel-lee.
   JACKSON, J.

On February 22, 1927, C. W. Sewell recovered a judgment in the district court of 1-Iale county, Tex., in cause No. 2630, against J. N. Morrison for the sum of $1,606.77, with interest thereon from January 1, 1926, until paid, at the rate of 6 peí-cent. per annum.

On January 10, 1928, in the cause of A. M. McMillan v. C. W. Sewell, No. 2849 in the district court of Hale county, Tex., A. M. McMillan recovered a judgment for the sum of $832.33, with interest thereon at the rate of 10 per cent, per annum and all costs, against C. W. Sewell.

On December 13, 1927, after the institution of the suit in cause No. 2849, and before judgment was obtained therein, on a sufficient affidavit and bond, a writ of garnishment was issued against J. N. Morrison as garnishee, commanding him to appear in the district court of Hale county, Tex., on January 9, 1928, and answer what, if anything, he was indebted to C. W. Sewell.

On April 25, 1928, in response to the writ of garnishment, J. N. Morrison answered that in cause No. 2630 (O. W. Sewell v. J. N. Morrison) C. W. Sewell recovered a judgment against him for the sum of $1,608.77, with interest thereon, from which judgment an appeal was taken and the judgment affirmed by the Court of Civil Appeals (4 S.W.(2d) 1029); that in December, 1927, there was filed with the clerk of the district court of Hale county, Tex., and recorded in the minutes of said court, an instrument which purported to transfer and assign all of the interest of O. W. Sewell in said judgment to Dr. O. A. Cantrell, L. C. Penry, and Leola Rutherford. J. N. Morrison, the garnishee, prayed that said parties be cited to appear- and answer what right, if any, they had in said judgment, so as to protect him from having to pay the amount evidenced thereby more than once. • Under proper allegations he asked to be allowed $75 attorney’s fees and costs for answering as garnishee.

O. W. Sewell answered that he no longer had any interest in the judgment in cause No. 2630, but that he had, for a valuable consideration and in good faith, transferred and assigned all of said judgment to Dr. O. A. Cantrell, Judge L. C. Penry, and his daughter Leola Rutherford. L. C. Penry filed no answer, but was allowed to recover a one-third interest in the judgment, about which there is no complaint.

Mrs. Leola Rutherford, joined by her husband, J. D. Rutherford, answered that she is the daughter of C. W. Sewell; that he transferred to her a one-half interest in said judgment in cause No. 2630; that the transfer was made in good faith and for a valuable consideration in payment of just debts which were due her by her father, which debts were evidenced by notes executed by her father to her for different sums furnished at different times. She describes the notes, all of which aggregate the sum of $046, with 10 per cent, interest thereon from their respective dates.

A. M. McMillan controverted the answer of the garnishee, J. N. Morrison, alleging that the transfer of the one-half interest in the judgment in cause No. 2630, from C. W. Sewell to Mrs. Leola Rutherford, was made without a valuable consideration for the purpose of defeating McMillan in collecting his debt from C. W. Sewell.

The case was 'Submitted to the court without. the intervention of a jury and the court found that one-fourth of the judgment in cause No. 2630, $463.95, was assigned to Dr. O. A. Cantrell, and had been paid to him; that one-third of the judgment, amounting to $618.60, was assigned to L. C. Penry and had been paid to him; that there was a balance in the hands of the garnishee, J. N. Morrison, amounting to the Sum of $773.25, which he had deposited with the clerk of the district court, which constituted the balance of the original judgment in cause No. 2630; that J. N. Morrison was entitled to the sum of $75 as attorney’s fees, and Mrs. Rutherford was entitled to the remainder.

Judgment was rendered directing the clerk of the court to pay to J. N. Morrison’s attorney the sum of $75, and to pay over to Leola Rutherford the. sum of $698.25 as the part of the judgment assigned to her, and that the garnishee be discharged and go hence without day. From the judgment in favor of Mrs. Leola Rutherford, the appel-lee herein, A. M. McMillan, who is appellant, prosecutes this appeal.

The appellant challenges, as error, the action of the trial court in rendering judgment against him and in favor of Mrs. Rutherford, because she pleaded that the assignment was in payment of the notes held by her against her father, and she was required to prove that said notes had been paid, and, as the testimony shows that she still holds and claims the notes, no consideration was shown for the assignment to her of an interest in the judgment.

The record discloses that on December 6, .1927, C. W. Sewell, for a recited consideration of $10 and other valuable considerations, by one instrument in writing transferred and assigned to Dr. O. A. Cantrell a one-fourth interest, and to L. C. Penry a one-fourth (which should have been a one-third interest) and to Leola Rutherford a one-half interest in said judgment. In the instrument transferring the judgment, the assignees were given full authority to demand and receive the money specified in said judgment for their own use and, upon the payment of said judgment or any part thereof, to release and discharge it. The transfer recited that C. W. Sewell covenanted with the assignees that the amount due on the judgment was the sum of $1,606.77, and inter.est thereon from January 1, 1926, with court costs, and that he wpuld not collect nor receive the money due on said judgment, nor any part thereof, and neither release nor discharge said judgment, and that the transfer was made without recourse on the said Sewell; that at the time'said assignment was made, C. W. Sewell was indebted to his daughter, Mrs. Leola Rutherford, in the sum of $946, evidenced by notes of different dates and different amounts, executed by Sewell and payable to Mrs. Rutherford; that each of the notes were given for money earned by Mrs. Rutherford and loaned to her father at different times'; that the intention of C. W. Sewell and his daughter Mrs. Rutherfprd, at the time the assignment was made, was to transfer to her an interest in the judgment to pay such notes as the money received by her on the judgment would discharge; that the notes had not been delivered to C. W. Sewell nor credited with any payment, because it had not been determined the amount she would receive out of the judgment; that the assignment to her had been in litigation since before the judgment in favor of Sewell against Morrison in-cause No. 2630 had been made final by the judgment of the Court of Civil Appeals.

“With respect to its assignable qualities, a judgment is governed by the rules applicable to other dioses iu action; and may be assigned by any person and by any method competent and sufficient for the assignment of any other chose in action.” 2 Freeman on Judgments, p. 2187, § 1049.

Under the common law, a chose in action could not be assigned in part. However, it is settled in Texas that, “when one has agreed, for a valuable consideration, that another shall have a part of a debt due to him from a third party, and has accordingly made a transfer of such part, justice manifestly requires that the agreement Should be enforced, when it can he done without prejudice to the debtor. Accordingly, it now seems to be held by the great weight of authority that an assignment of a part of a chose, in action for a valuable consideration is good in equity, and that' it may be made either by- direct transfer, or by. an order drawn upon the particular fund.” Harris Co. v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467.

Appellant’s contention that no consideration was shown for the assignment of an interest in the judgment to the appellee, because the notes were not marked paid or delivered to her father, O. W. Sewell, is not tenable, because an assignment may be sufficient if it is made as security for instead of the payment of a pre-existing debt. 5 C. J. 982, § 91. This, in effect, is the doctrine announced in Doty et al. v. Moore (Tex. Civ. App.) 113 S. W. 905; Campbell v. Grant Co., 36 Tex. Civ. App. 641, 82 S. W. 794, which is approved by the Supreme Court in Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 216 S. W. 621. Under these authorities, it was not necessary to a valid assignment that the notes be marked paid and delivered to C. W. Sewell in order to constitute a consideration for the transaction.

Appellant insists, however, that inasmuch as the appellee pleaded that the transfer waS in payment of just debts due by C. W. Sewell to her, which debts were evidenced by notes in various sums, and the testimony showed that the notes had not been paid and delivered, but were Still retained by appellee, the allegations and proof are at such variance as to prevent a recovery by the appellee.

It was conceded by appellant that the assignment was valid as to Dr. C. A. Cantrell and Judge L. C. Penry. The uncon-troverted testimony discloses that C. W. Se-well retained no interest in or control over the judgment and that it was his intention to transfer to appellee, and her intention to accept, an interest in the judgment as payment on the notes; that no credit had been given on the notes and none of the notes delivered because the amount to which appel-lee was entitled and her right to an interest in the judgment had been in litigation since before the judgment assigned was made final; that at the time the assignment was made the appellee had no knowledge that her father was indebted to the appellant in this case; the written assignment gave the assignees full authority to collect and discharge the judgment and bound C. W. Sewell not to collect or discharge the same; that the transaction constituted a valid assignment of a portion of the judgment under the facts cannot be questioned. Empire Mortgage Co. v. Morgan Lumber Co. (Tex. Civ. App.) 292 S. W. 557; Patterson v. Citizens’ National Bank (Tex. Civ. App.) 286 S. W. 130, and authorities therein cited.

It is universally held that the pleading and proof must correspond to support a judgment, but the rule is equally well settled that a variance between the pleading and evidence is not fatal, unless it misleads the adverse party to his prejudice. McClelland v. Smith, 3 Tex. 210. The rule announced in this case has been consistently followed by the courts of this state. Hays & Co. v. Samuels & Sons, 55 Tex. 560; Wiebusch v. Taylor, 64 Tex. 53; Mast v. Nacogdoches County, 71 Tex. 380, 9 S. W. 267; Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288.

In Fowler Commission Co. v. Charles Land & Co., 248 S. W. 314, approved by the Supreme Court, the Commission of Appeals says: “The extent of the liability of defendant in error was the same whether sued as an individual or as a member of the partnership, and the petition was sufficient to inform him of the theory under which he was to be held liable. Although the stated facts may have been set out somewhat different, if he had been sued in his capacity as a partner, yet the cause of action would have been the same. ⅜ * * Besides, to constitute a variance the difference between pleadings and proof must be such as to mislead or surprise; and the evidence in the case clearly shows that defendant in error was neither deceived nor surprised by the alleged variance.”

The appellant in this case, under the record, was neither deceived nor surprised by the alleged variance, nor was he prejudiced thereby, because the assignment, which was valid, transferred all of the interest of C. W. • Sewell in the judgment to the assignees therein, and whether or not the interest in the judgment transferred and assigned to appel-lee was to pay off and discharge all of the notes held by her against her father, or pay off and discharge such of said notes as the amount she realized from her interest in the judgment would pay, did not contravene appellant’s rights, because in dither event, all of her interest in the judgment would be consumed and nothing left to be applied on appellant’s debt.

The judgment is affirmed.


author: HARVEY, P. J.

text:
    GWYNN v. WISDOM.
    (No. 1194-4908.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    Kenley, Dawson & Holliday, of Wichita Ealls, for plaintiff in error.
    Bullington, Boone., Humphrey & King, of Wichita 'Palls, for defendant in error.
   HARVEY, P. J.

On October 30, 1925, Mrs. Bell Wisdom executed to P. P. Gwynn an oil and gas lease on a tract of 10 acres of land owned by her in Archer county. The relevant portions of the lease read as follows:

“Agreement made and entered into the 30th day of October,'' 1925 by and between Mrs. Belle Wisdom, a feme sole, of Hands County, Texas hereafter called lessor (whether one or more) and P. P. Gwynn, of Wichita County, Texas, hereinafter called lessee:
“Witnesseth: That the said lessor, for and in consideration of ten dollars ($10.00) cash in hand paid, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of lessee to be paid, kept and performed in— has granted, demised, leased and let and by these presents does grant, lease and let unto the said lessee for the sole and only purpose of mining and operating for oil and gas and of laying pipe lines and of building tanks power stations and structures thereon to produce, save and take care of said products, all that certain tract of land situated in the county of Archer, State of Texas, described as follows, to wit: * * *
“As a part of the consideration of this lease the grantee covenants to and with the grantor that on or before 30 days from this date he will commence the drilling of a well for oil on the above described tract of land and with due and reasonable diligence thereafter continue the drilling of said well until it reaches a depth of 1400 feet, unless oil or gas in paying, quantities is discovered at a lesser depth. * * *
“It is agreed that this lease shall remain in force for a térm of three years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.
“In consideration of the premises the said lessee covenants and agrees:
“1st. To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal oné-eighth of all oil produced and saved from the leased premises.
“2nd. To pay the lessor ⅛ of the gross proceeds at well for the gas from each well where gas only is found, while the same is being used off the premises, and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the time by making her own connections with the well at her own risk and expense. ;
“3rd. To pay lessor for gas produced from any oil well used off the premises at the rate of ⅛ of the gross proceeds derived from the sale of said casing head gas at the wells.
“Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing. * * *
“Should oil and gas, or oil or gas be found in paying quantities upon above land, then same is to be reasonably developed.” •

The lessee, Gwynn, failed entirely to drill or commence to drill a well on the land. A few days after 30 days from the date of the the execution of the lease had expired, Mrs. Wisdom, through her attorney, notified Gwynn that the lease had expired, and, in effect, forbade Gwynn from conducting further operations under the lease. Shortly aft-erwards she brought this suit seeking to recover general damages in the sum of $10,000, alleged to have resulted from the breach by Gwynn of his obligation, expressed in the lease, to commence the drilling of a well on or before 30 days from the date of the lease.

On the trial of the ease, the jury found, in answer to special issues: (1) That on or about November 30, 1925, it would have reasonably cost Mrs. Wisdom $6,300 to have drilled a well for oil or gas on the land to a depth of 1400 feet; (2) that the reasonable market value of the lease at the time it was executed was $150 per acre; • (3) that the reasonable market value of the lease on December 1, 1925, and for some fifteen days prior thereto, was $5 per acre. There is evidence in the record to sustain each of these fact findings. Upon this verdict of the jury, the trial court rendered judgment for Mrs. Wisdom in the sum of $1,450, being the market value of the lease at the time it was executed, less its value on December 1, 1925. Both parties excepted to the judgment. Mrs. Wisdom perfected an appeal and duly filed assignments of error based on the refusal of the trial court to enter judgment in her favor for the sum that it would have reasonably cost her to drill the well, as found by the jury. Gwynn duly filed cross-assignments of error based on the aotion of the court in refusing to render judgment in his favor. The Court of Civil Appeals rendered judgment for Mrs. Wisdom for the sum of $6,300 damages, measured by the amount which it would have cost her to drill the well. 294 S. W. 917.

The only questions presented in the record, which require consideration, have reference , to the proper measure of damage to be applied in awarding Mrs. Wisdom compensation for the breach of Gwynn’s obligation to commence the drilling of the well within 30 days from the date of the lease. It is needless to consider whether the lease stipulation in question involves within its terms merely a covenant on the part of the lessee, or involves also a limitation to mark the duration of the estate acquired by him under the lease, or a condition subsequent furnishing ground, in case of breach, for forfeiture at the option of the lessor. Eor in either case, the breach of the obligation fixed the liability of the lessee to the lessor for such damages as will compensate her for the loss sustained by her as a’ 'proximate result of the breach.

In ascertaining the loss suffered by the lessor, Mrs. Wisdom, as a result of the breach, resort must be had to the purposes intended to be accomplished by the drilling of the well, and the user rights of the respective parties in the well when drilled. The terms of the lease disclose that the only .purposes for which the well was to be drilled were to search for and produce oil and gas. No use of the well was contemplated other than the use of same by the lessee, for the common benefit of the parties to the lease, as a means of searching for oil and gas, and producing those minerals if found. The benefits which the parties contemplated would accrue to the lessor from the drilling of the well did not include proprietorship of the well, either as a dry hole or as a producing well, but included only such benefits as would result from the discovery of oil or gas by means of the well. No special liability growing out of the breach of the lessee’s obligation to drill the well is alleged or proved in the case. The general liability of the' lessee which arose from the breach does not extend beyond compensation for the loss of the benefits last mentioned. And inasmuch as there is no evidence tending to show that oil or gas would have been discovered in paying quantities if the obligation had been performed, no means of estimating such loss is supplied; hence a legal basis for compensatory damages is lacking,

We are not to be understood as intimating that Mrs. Wisdom, under proper pleading and proof, would not have been entitled to compensation, by way of special damages, for reasonable expenses incurred by her in drilling the well upon Gwynn’s failure to drill it. The proof shows that she incurred no expenses in that respect, and such question is hot before us. And, too, had Gwynn’s obligation to drill the well rested upon an independent consideration moving from the lessor, a properly asserted claim by the latter for the restoration of such consideration, or to compensation for its value, would have raised an entirely different question.

Decisions are to be found which recognize the reasonable cost of the drilling of the well, even though no well be drilled by the lessor, as a proper measure of the latter’s damage in cases of this sort. Other decisions to the contrary may be found. Our Supreme Court has never decided the question. In this situation, we have felt free to adopt the views we have expressed bcause we regard them as fundamentally sound.

The case appears to have been fully developed. We therefore recommend that the judgment of the trial court, as well as that of the Court of Civil Appeals, be reversed, and that judgment be here rendered for the plaintiff in error.

CURETON, C. .1. Judgments of the district court and Court of Civil Appeals both reversed, and judgment rendered for plaintiff in error, as recommended by the Commission of Appeals. ,


author: CRITZ, J.

text:
    GULF COAST IRR. CO. v. GARY.
    (No. 1213-5231.)
    Commission of Appeals of Texas, Section A.
    March 7, 1929.

      Baker, Botts, Parker & Garwood and Barksdale Stevens, all of Houston,- W. E. Davant, of 'Bay City, and Rodman Cosby, of Houston, for appellant.
    Kelley & Hawes, of Wharton, and A. D. Dyess, of Houston, for appellee.
   Statement of the Case.

CRITZ, J.

In August, 1928, in pursuance of R. C. S. Tex. 1925, art. 3264, the Gulf Coast Irrigation Company, a corporation enjoying the rights of eminent domain, failed to agree with J. B. Gary, appellee, qn the amount of damages that might inure to appellee, and as a consequence filed its written petition with the county judge of Wharton county, Texas, seeking the condemnation of an irrigation canal of a strip containing 71 acres of land, across appellee’s farm of about 4,009 acres of land. This petition, so far as the record shows, was in due form of law. The county judge, in conformity with law, appointed three commissioners to assess the damages, who regularly qualified as such, and gave the statutory notice of the hearing of ■the matter before said commissioners on September 18, 1928.

In due time, the appellee 'filed answer and exceptions to the petition of plaintiff, alleging in substance that his land consisted of 4,000 acres, 4 miles long and 1½ miles wide, and that the proposed canal would cut through the entire length of sáid land, and divide same into five different parcels of irregular shape, and, without being of any benefit to him, would damage him by requiring him to build and maintain 16 bridges across, and 4 miles of fences along the sides of, said canal; that said land was potential sulphur-bearing land, and said canal would destroy his right to mine sulphur, and other minerals adjacent to it, etc. In this answer appellee claimed damages in the, total sum of $74,975, being $14,975 for the alleged market value of the land taken, and damages to the remainder of the tract of $60,000. Up to and including the filing of this answer by appellee there is no claim by either party of any illegality or irregularity in the proceedings.

After the filing of the appellee’s said answer the appellant filed before said commissioners two supplemental pleadings, in reply' to the said answer of the appellee, the material portions of which are set out in the certificate, as follows:

(1) “This plaintiff says: That the canal proposed to be constructed on the land described in plaintiff’s petition will be constructed in such a manner that the same will not interfere with or destroy adequate and proper drainage for use of the remainder of the land through which it passes, but that the same will have proper and adequate drain ditches and underpasses where required by nature, or the drainage of the terrain and will be adequately and properly Burned at those.points where same shall cross any natural drain and that no damage to the surrounding land will be occasioned by reason of the construction of the proposed canal and the maintenance thereof.
“Plaintiff denies that it is necessary for the proper handling of this land either for stock raising purposes or agricultural purposes, that the right of way of the plaintiff be fenced from the surrounding land and denies the necessity for any such fence or fences as plead by the defendant.
“Plaintiff specifically denies that the right of way or any part thereof is underlaid by sulphur capable of being mined and says that no mining operations for sulphur are now under way or are contemplated along said right of way. And for further answer this plaintiff says that this condemnation does not and could not affect the minerals belonging to J. B. Gary, but that the title to same, if any, could and would remain in the said J. B. Gary, together with the 'right of producing the same, when not unreasonably interfering wifi, use of tiie right of way of plaintiff, and here and now offers in the event that oil is sought to be produced that same may be produced upon said right of way without interference of this plaintiff, so long as same is produced in an orderly and proper way, without unreasonable interference with the use of said canal.
“Plaintiff further 'denies that any such necessity of the building of 16 bridges exists or could exist, ánd says that the plaintiff will build bridge or bridges at such .point or points across said right of way as in the opinion of the commissioners is reasonably necessary.
“Plaintiff further denies that the values of said land are as stated by the defendant, J. B. Gary, but, on the contrary, says that the values of said land, so far as that portion of 'the right of way traversing the prairie and wood section of said land is concerned, is not in excess of $40 per acre and that the value of said land in so far as that portion of the right of way is composed of Caney land is concerned is not in excess of $100 to $125 per acre. And this plaintiff specifically alleges that the construction of the proposed canal ' will not injure the remainder of said land of this defendant, but on the contrary says that such canal will enhance the value of the remainder of defendant’s land, will increase the income of the defendant and that such enhancement would far more than offset any damage to same by the defendant if any is sustained.”
' (2) “The Gulf Coast Irrigation Company, plaintiff herein, hereby agrees that the said •J. B. Gary, defendant herein, 'his heirs or ■assigns and lessees, shall be in no way liable to plaintiff, its successors br assigns, by reason of subsidence of the surface of the right of way herein described by reason of the mining of oil, gas or sulphur in a proper manner upon the lands owned by the defendant adjoining said right of way or on the right of way as hereinbefore stipulated.”

After the filing of the above pleadings the commissioners proceeded to hear the evidence, •and at its conclusion rendered and filed with the county judge of said county the following award:

“On this the 19th day of September, A. D. 1928:
“(1) We, the commissioners, award- damages to defendant J. B. Gary in the sum of- $8,-944.50 for value of land taken and described in plaintiff’s original petition, and injuries •to the remainder of the 4,000-acre tract.
“(2) We also award and adjudge that plaintiff construct and maintain 10 bridges adequate for passage of vehicles, live stqck and .ordinary traffic, across the right-of way described in plaintiff’s petition, at such points .as may be designated by defendant, upon the construction of said canal.
“(3) We also adjudge and award that plaintiff construct and maintain fences across said canal at any point where present or future fences of defendant cross said canal right of way.
“(4) In arriving at amount of damages we have taken into consideration the stipulations filed by plaintiff and also those contained in its second supplemental petition on file herein.
“(5) We award all costs against plaintiff.”

Thereafter appellant, after paying the accrued costs, deposited in the county court of said county double the amount of the money damages awarded by said commissioners, and also 'filed an approved cost bond for further costs, as required by law. Thereafter and within 10 days, as required bylaw, appellee filed with the county judge of Wharton county his exceptions and objections to the above award, the more material portions of which are set out in the certificate, and are as follows:

“This defendant further specially excepts to said second supplemental petition because same sets forth conditions and promises, which the plaintiff sought thereby to impose, and to which defendant has at no time agreed, which said promises are promissory in their character and relate to acts to be performed upon contingencies to arise after the act of appropriation has been completed by the payment of the award, and after the taking of the land appropriated.
“This defendant further specially excepts to said second supplemental petition of the plaintiff filed herein and with the commissioners, as aforesaid, because thereby the plaintiff sought, over the protest of the defendant and without his consent, to obtain a conditional right of way over defendant’s land and sought to condemn only a right to the joint use and occupation of that part of defendant’s land sought to be taken by plaintiff for right of way purposes, which would result in the conjoint occupation and use of defendant’s land, to which conjoint occupation the defendant has at no time consented or agreed.
“This defendant further specially excepts to plaintiff’s said second supplemental petition because under the Constitution and statutes of the state of Texas, the defendant is entitled to be compensated in money for the value of the land taken plus the depreciation in the market value of his adjoining land, by reason of the taking of said right of way and the construction and operation of the proposed canal.
“This defendant excepts generally to the purported award of said commissioners of date the 19th day of September, 1928, and filed herein on said date, for the reason that said award shows on i’ts face that same is totally void, illegal and of no force or effect in that same does not award to plaintiff herein the amount of damages in money, as required by the Constitution and laws of this state, but attempts to award and adjudge that the plaintiff, Gulf Coast Irrigation Company, have constructed and maintained ten (10) bridges on said proposed right of way upon the construction of said canal, and also attempts to adjudge and award that said company constructs and maintains fences across said canal, present and future, and because it is specifically set forth in said purported award that the said commissioners, in arriving at the amount of damages to which the defendant is entitled, took into consideration the promises of the plaintiff to be performed in the future, and because said purported award shows, on its face, that said commissioners also took into consideration, in fixing the award made to the plaintiff, an instrument executed by said company and filed with the commissioners, by which said company attempted to leave in this defendant a mere license to enter on said right of way for the purpose of mining minerals under said land, and providing that this defendant should in no way be liable to the plaintiff, its successors or assigns, by reason of the subsidence of the surface of said right of way by reason of the mining of oil, gas or sulphur in a proper manner upon the lands owned by the defendant adjoining said right of way or on the right of way, as hereinbefore stipulated ; because, under the Constitution and laws of this State, the plaintiff has no right to condemn a conditional right of way, and, by the filing of such instrument and petition, limit and reduce the amount of compensation in money, to which this defendant was entitled.”

Seven days after filing -the above exceptions and objections, and, so far as shown by the record, without any further proceedings in the county court of Wharton county, the appellee, for the purpose of preventing the appellant’s entry upon saidffand to construct said canal by virtue of said award, filed this suit in the district court of Wharton county, in form of an action in trespass to try title, with prayer for injunction and .damages, and presented this petition to Hon. M. S. Munson, judge of said district court, who, on the same day, October 5, 1928, sitting in chambers and without notice, granted the injunction as prayed for, requiring appellee to give a $2,-500 bond.

As a basis for the injunction sought and obtained in the district court, and after reiterating in substance what he had alleged in his exceptions and objections to the commissioners’ award filed in the county court, the appellee pleaded as follows:

“As is clearly shown from the purported award of the commissioners, and as set forth in said purported award, said commissioners did take into consideration said proposals and promises and attempted to make the same a part of their award, in contravention of the laws of this State and in derogation of the rights of this plaintiff.
“That said purported award is void, and it appears from the face thereof that the same is void; that the said commissioners acted capriciously and arbitrarily and wholly beyond their powers in attempting to provide that a portion of the compensation to which plaintiff is entitled be satisfied by said promises and proposals, both present and future, on the part of Gulf Coast Irrigation Company, hereinbefore referred to, and that said purported award is no award of the amount of damages to which plaintiff is justly entitled to in money; that said purported award is wholly void and illegal and Gulf Coast Irrigation Company acquired no right to take possession of said land and premises thereunder, in that it is impossible to comply with the provisions of said purported award prior to the taking of possession of said land and premises, as provided by the Constitution and laws of this state; that defendant has not complied with the provisions of the said award, and it is impossible at this time for it to comply with the terms thereof, in that a provision thereof consists of continuing promises, which can only be carried out in the future; that this plaintiff has not accepted or acquiesced in said purported award in any way whatsoever, and has not consented to, and is not willing to accept either the construction or maintenance of bridges, the construction or maintenance of present or future fences across the right of way, or any attempted license or • promise offered by said company as to the mining of minerals under said land, in lieu of the money damages to which he is entitled, and here now protests against any such conditions or provisions, and earnestly asserts his right to compensation in money to which he is justly entitled prior to the taking of said land and premises; that plaintiff has never accepted any sum of money from the Gulf Goast Irrigation Company for the rights which it is attempting to wrongfully take, and has never consented to said company’s entering upon his said land or its attempt to so do, and is in no wise estopped to deny the right of said company to wrongfully enter upon and take his land as it is threatening to do.”

As shown by the certificate, the following matters and proceedings then transpired:

“Thereafter appellant filed its answer to and motion to dissolve the injunction, first separately presenting pleas of privilege to be' sued in the county of its domicile — Matagorda —and to the jurisdiction of the district court of Wharton county, on the grounds that the suit, being one purely for injunctive relief, was not maintainable against it out of the county of its corporate domicile, and especially not in the district court of Wharton county, because the appellee had seasonably filed his exceptions and objections to the award of the commissioners of condemnation in the county court of that county, thereby in effect vacating such, award and conferring upon the latter court sole jurisdiction to try the case de novo on an appeal thereto so duly perfected; second, after a general demurrer, reiterating in detail the condemnation proceedings, asserting them to have been in .all respects duly and regularly instituted and carried out, and that they constituted a full compliance by appellant .with the Constitution and statutes of Texas in the exercise of its right of eminent domain, and that, if in any way aggrieved thereby, ,the appellee in turn had thereunder an adequate remedy likewise prescribed to correct or revise any irregularities or defects in the resulting award by pursuing the appeal he had perfected therefrom to the county court of Wharton County;
“Further averments were to the effect (1) that the appellee, by the conduct of his counsel in open court before the commissioners of condemnation in demanding what stipulation appellant would make as to bridges over, drainage of land adjacent to, and mining operations on or near the proposed canal, had invited the supplemental pleadings and stipulations of appellant with reference to those features, and that, if any error by reason thereof had crept into the award, he was es-topped to complain on account of it; (2) that the injunction suit had been brought solely for delay and to harass the appellant, which was entirely solvent 'and able to respond in any possible damages in the orderly conduct of its public service operations under its right of eminent domain; (3) that the balance of convenience with respect to the granting of an injunction lay with appellant, since, after having paid into the county court of Wharton county in money double the amount of the award, as well as filed the bond there, it had placed equipment upon the land condemned and contracted obligations looking toward the immediate construction of the canal, all of which, if the injunction should be continued in force, would result in irreparable injury and damage to it, whereas the ap-pellee had adequate protection by virtue of the cash deposit and of appellant’s solvency;
“The district judge heard the motion to dissolve, under the presentment of evidence by appellant, and on October 13, 1928, overruled the motion, as well as appellant’s plea of privilege and to the jurisdiction, and, holding the award ‘not in conformity with the law and not sufficient to authorize the appellant to enter upon the property until a proper award is made,’ continued the injunction in force with the modification that appellant ‘is restrained from entering upon said premises under the award of the commissioners until further orders of this court,’ requiring, however, an increase in appellee’s bond from the $2,BOO originally fixed to $10,000. The appeal now pending here proceeded from that decree.
“The facts showed that, in the interim between the filing of the commissioners’ award and the granting of the injunction by the district judge, appellant had in part entered upon the premises and done many things in preparation for the immediate construction of the canal, which at the latter date was imminent.”

The Court of Civil Appeals propounds the following question: “Did the district judge err in taking jurisdiction and in granting the writ as so modified?”

Opinion.

We are of the opinion that the question certified should be answered “Yes”; that is, the district judge did err in taking jurisdiction, and granting the injunction as so modified. In .answering the above question as above we are fully aware, under the decisions of this court, that where the condemnation proceedings are void for want of power or jurisdiction in the county court to condemn the property, then an attempted entry under such void proceedings may be enjoined. Haverbekken v. Hale, 109 Tex. 106, 204 S. W. 1162; Benat v. Dallas County, 266 S. W. 539 (Tex. Civ. App. writ ref’d).

The rule announced in the abo.ve authorities can have no application to the facts of the case at'bar. As shown by the certificate, and admitted in the briefs and arguments of both parties in this court, every step in the proceedings in the county court were in absolute conformity with the statute up to and including the filing of appellee’s answer before said commissioners. Under such circumstances the county court obtained jurisdiction of said cause. G., H. & S. A. Ry. Co. v. Mud Creek Irrigation Co., 1 White & W. Civ. Cas. Ct. App. § 394. In the above quoted case the court very correctly announces the following rule of law: “Under our statute, the written statement provided for by art. 4182 is the initiatory step, and it is by virtue of this step that jurisdiction over the subject-matter involved is acquired.”

Revised Civil Statutes, art. 3269, provides: “When those having the right of eminent domain are sued for property or for damages to property occupied by it for the purpose for which it has the right to exercise such power, the court in which such suit is pending may determine all matters in dispute between the parties, including the condemnation of property, upon petition or cross-bill asking such remedy by defendant, but the plea for condemnation shall be admission of the plaintiff’s title to such property.”

Under the above-quoted statute and the other provisions of title 52, Revised Civil Statutes of Texas 1925, the county court “may determine all matters in dispute between the parties,” and no necessity can exist for the invoking of the powers of the district court as a court of equity. Davidson v. T. & N. O. Ry. Co., 29 Tex. Civ. App. 54, 67 S. W. 1093; Johnston v. O’Rourke & Co. (Tex. Civ. App.) 85 S. W. 501 (writ refused); T. & N. O. Ry. Co. v. City of Beaumont (Tex. Civ. App.) 285 S. W. 944 (writ refused); Taylor v. Travis County, 77 Tex. 333, 14 S. W. 137.

It is contended by appellee that the commissioners have gone beyond their authority, and granted damages in property and rights other than money, and therefore the award of the commissioners is void, and no rights are obtained thereunder.

We do not pass directly on the various exceptions and objections by appellee made to the award. All these matters may legally and properly be adjudicated and settled in the case pending In the county court. We think it proper to say, however, that in a condemnation proceeding by an irrigation company, under the laws of this state, the irrigation company does not take a fee-simple title to the land condemned, but merely takes an easement that carries no greater dominion by the irrigation company than is proper and needful to carry out the purposes for which the land is taken. The principle upon which such companies are allowed to exercise the right of eminent domain is not that they may do what they please with the land condemned, but that they may do what is reasonably needful to carry out the purposes for which the land is taken. Anything beyond this is not the taking of private property for public use, but the taking of private property for private use. It follows, therefore, when the whole of the tract is not taken, that the kind and character of easement condemned, and the manner in which the rights of the con-demnor are to be exercised and maintained, and the rights and privileges left in the owner, may properly be taken into consideration in assessing the damages. St. Louis, K. & N. W. Ry. Co. v. Clark, 121 Mo, 169, 25 S. W. 192, 26 L. R. A. 751. See, also, annotations in 26 L. R. A. supra.

We therefore recommend that the question propounded by the Court of Civil Appeals be answered “Yes.”

OUBETON, C. J. The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.


author: LATTI'MiO’BE, J. HAWKINS, J.

text:
    COIT v. STATE.
    (No. 12239.)
    Court of Criminal Appeals of Texas.
    Jan. 23, 1929.
    Rehearing Denied March 6, 1929.
    F. M. Chaney and Sullivan & Wilson, all of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTI'MiO’BE, J.

Conviction for misdemeanor theft; punishment, confinement in the county jail for a period of 30 days.

Certain fence posts were stacked on the right of way of the Texas & New Orleans Bailway Company in Dallas county, Tex. They were missed, and about a week later were located on the premises of a Mr. Ford who lived in Highland Park, Dallas. H. H. Beddick, section foreman for said railway company, testified that he had charge of the property of said railway company along the right of way on his section and was responsible for same; that he knew the general market value of new posts like these, and, while these posts had been used, they were practically new, and, in the opinion of witness, were worth 25 or 30 cents each. Some 200 posts were lost and recovered. Mr. Foixl testified that he bought the posts in question from appellant and another negro, paying appellant $3 per load; that he bought four loads each, containing 50 or 60 posts. He did the bargaining with both appellant and the other man. Appellant told him they were working in some addition to the city, tearing down a fence, and that he got these posts for 'the labor he performed. Witness judged the posts to be worth 10 or 15 cents each. Mr. Thomas testified that he talked to appellant about these posts, and was first told by him that Jim, the other negro referred to, was driving his (appellant’s) wagon and team, and that he had helped Jim unload a load of posts at Mr. Ford’s place, which Jim said he had gotten somewhere. Appellant denied in this conversation that he got the posts. Witness testified further that appellant told him afterwards that Jim said he got the posts off the railroad. Appellant said he did not know where they came from. The posts were claimed and taken back by the railway company.

There are three bills of exception, two of which set out appellant’s complaint of Reddick’s testimony as to the value of the stolen posts. We regard the matter of no materiality. The charge in the complaint was misdemeanor theft, and there was no controversy over the proposition that the posts were of value. Mr. Ford fixed the value at 10 to 15 cents each, and Mr. Reddick at 25 to 30 cents each. There appears no claim that the posts taken by appellant at any one time were of the value of less than $5. Either value—that fixed by Ford or that fixed by Reddick—was sufficient to be responsive to and support the charge in the information, and to be met by the verdict.

The complaint in the other bill that the venue was not proved seems wholly without merit. Reddick said this all occurred in Dallas county, and Mr. Ford testified that he lived in Dallas county. The trial court gave a requested charge on circumstantial evidence, and also told the jury to acquit if they found that, when appellant’s possession of the posts was first called in question, he made an explanation which was natural, reasonable, and probably true, and accounted for appellant’s possession in a manner consistent with his innocence. Appellant’s possession of said posts was first called in question when he offered to sell them to Mr. Ford, at which time he told Ford that he had acquired said posts in payment for labor performed in tearing down a fence. This was his account of' how he got the posts. Needless to say, such explanation was shown to be false. Appellant’s counsel filed an extended brief, but we are of opinion that none of the complaints possess merit.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

The witness Reddick testified that the posts stolen were of the value of 25 or 30 cents each. Appellant objected to this evidence on the ground that the witness had not qualified to speak as to value. In view of other evidence found in the record, we did not deem it necessary to discuss the bill of exception- complaining of Reddick’s testimony, but said: “We regard the matter of no materiality.” A number of pages of the motion for rehearing are devoted to an apparent lecture to this court for using the expression quoted. The writer of the motion seems to find it difficult to distinguish between forcefulness and offensiveness, and in striving for the former—unintentionally, no doubt—trenches closely upon the latter. The evidence of the witness Ford as to the value of the property is in the record without ob-jeetibn. , It is sufficient to support the verdict. No evidence upon that subject or any other was introduced by appellant.

Under such state of the record, the admission of Reddick’s testimony, even if erroneous, would not call for a reversal; hence the point made that Reddick was not a qualified witness as to value was regarded as immaterial under the circumstances.

The motion for rehearing is overruled.


author: MARTIN,' J.

text:
    SCOTT v. STATE.
    (No. 12022.)
    Court of Criminal Appeals of Texas.
    Jan. 30, 1929.
    Rehearing Denied March 6, 1929.
    G. B. Fenley, of Uvalde, and A. L. Love, of Austin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN,' J.

Appellant was convicted under the second count of an indictment wffiich charged that he “did then and there unlawfully possess for the purpose of sale spirituous, vinous and malt liquor capable of producing intoxication.” The penalty assessed was one year in the penitentiary.

The proposition is very interestingly argued that the evidence is insufficient to show that the liquor in question was spirituous, vinous, or malt, and likewise insufficient to show that it wras capable of producing intoxication. It is earnestly insisted that the record as a whole show's that the liquor possessed -by appellant wras “home brew” only, and, in the absence of proof that it was an intoxicating malt liquor, this court cannot take judicial knowledge of such fact.

■The averments of the indictment make proof of three facts indispensably necessary, namely: (1) That appellant had in his pos. session liquor wMeli was either spirituous, vinous, or malt; (2) that same was possessed for the purpose of sale; and (3) that it was capable of producing intoxication.

We quote literally and very briefly from the statement of facts:

“I went over there and got some beer. I met Mr. Scott at the door and I asked him if he had any and he said he thought there was a little in the icebox, to go in there and see. I went in there and got two bottles. * * * I left the money laying there on the , table and walked out. I left $1.50 and I got six bottles. * * ⅜ I. drank two bottles. As to whether or not this was capable of producing intoxication, I think it would if you drank enough of it.”

A part of this beer that witness took off was shown to have gone into possession of the sheriff, who testified:

“As to whether I tasted that beer, or examined it, I did. As to whether X have had sufficient experience with liquor, beer in particular, to give an opinion as to whether it is capable of producing intoxication, .1 can. I sampled three of them. * * * In my opinion that beer was intoxicating. * * * I drank one ivhole bottle and part of two others/’

Other witnesses testified to buying home-brew from appellant. It will be noted that the quoted evidence is sufficient to sustain the conclusion that appellant had beer in his possession for sale, and that same was intoxicating. The third element, that it was a malt liquor, was not directly proven. Upon this question it has been said:

“The fact that the evidence is sufficient to show that- the appellant sold to the purchaser named in the indictment a beverage known as ‘beer’ is sufficient, under the precedents named, to characterize the liquid as malt liquor.” Eubank v. State, 104 Tex. Cr. R. 632, 286 S. W. 236.

This same authority holds expressly that “the courts have judicial knowledge that beer is a malt liquor,” and cites the following authorities .supporting such statement: Webster’s New International Dictionary, p. 202; Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 19140, p. 863; 1 Words & Phrases, Second Series, p. 417; Black on Intoxicating Eiquors, § 17, p. 18; Henson et al. v. State, 103 Tex. Cr. R. 123, 280 S. W. 592.

Again it was said in Williams v. State, 106 Tex. Or. R. 419, 292 S. W. 898:

“Proof that the liquid was ‘beer,’ would be sufficient to support a conviction on the first phase o'f the indictment mentioned, for the reason that ‘beer’ is, • within the judicial knowledge of the Court, a malt liquor containing in excess of 1 per cent, of alcohol by volume and usable as a beverage.”

Both the witnesses above mentioned refer to the liquor in question as beer, and the above authorities fully support the announcement that this court will take judicial knowledge of the fact that beer is a malt liquor without direct proof of such fact, thus supplying the third essential fact necessary to establish under the allegations of the indictment. It thus becomes unnecessary to decide whether or not this court will take judicial knowledge of the fact that both “home brew” and beer are intoxicating, since the record does not disclose that the state depended upon proof of a sale of “home brew,” and since there is direct proof that the liquid sold was beer and same was intoxicating.

We think the verdict was sufficiently responsive to the pleadings and evidence, and, there being no errors in the record, the judgment is affirmed.

PER OURIAM. 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: CHRISTIAN, J.

text:
    PEREZ v. STATE.
    (No. 12340.)
    Court of Criminal Appeals of Texas.
    Feb. 20, 1929.
    B. F. Patterson, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is unlawfully transporting intoxicating liquor; the punishment confinement in the penitentiary for one year.

After the adjournment of court appellant entered into an appeal bond. Said bond is approved by the sheriff, but not by the district judge. Article SIS, O. C. P., requires that an appeal bond shall he approved by the sheriff and the court trying the cause, or his successor in office. In the absence of a recognizance or appeal bond approved as the law requires, this court is without jurisdiction to pass on the merits of the case. Perkins v. State (Tex. Cr. App.) 298 S. W. 577.

The appeal is dismissed.

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


author: MARTIN, J. LATTIMORE, J.

text:
    WILLIAMS v. STATE.
    (No. 12323.)
    Court of Criminal Appeals of Texas.
    Feb. 13, 1929.
    Rehearing Denied March 6, 1929.
    Second Motion for Rehearing Denied March 20, 1929.
    F. O. Fuller, of Houston, for appellant.
    A. A. Dawson and Sam D. Stinson, State’s Attys., both of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Del Rio, for the State.
   MARTIN, J.

-Offense, theft of cattle; penalty, two years in the penitentiary.

A. V. White owned two head of cattle, which ranged in the vicinity of appellant’s residence, some miles distant from the residence of White. A. V. White, Jr., a son of prosecuting witness, looked after these cattle. They appear to have been sold by appellant, who told the buyer at the time that they were the property of A. V. White, l5ut that he had the authority to sell them and collect the money. The cattle were delivered by appellant to the buyer in consideration of a check, which appears to have been cashed by appellant, but according to state’s witnesses never paid to A. Y. White. White denies that he ever knew the appellant prior to the transaction, and both he and his son deny any authority to appellant to sell the cattle.

Two bills of exception appear in the record bearing a file mark of October 31, 1928. Notice of appeal was given and court adjourned on September 10, 1928. An order of extension appears in 'the record for filing bills of exception, but no time is mentioned therein, and same is insufficient. The bills, appearing to have been filed more than 30 days after the adjournment of court, cannot be considered. Article 760, C. O. P. 1925.

The only question remaining is the error of the court in overruling appellant’s motion for a new trial, based upon tbe allegation of newly discovered evidence.' The affidavit of J. G. Bennett is attached to said motion, purporting to show that witness would testify that A. V. White, Jr., just prior to the time of the alleged theft, told witness, Bennett, that he wanted a loan of $20, stating that appellant had been employed by him to sell two head of cattle for him, and that, as soon as he obtained the money from said sale, he would repay the said $20. It is clearly inferable from the record that Bennett was a close neighbor of appellant. This is alleged to have occurred in the summer of 1926. Appellant was indicted in March, 1928. His trial was had in September, 1928. One S. L. Bennett appeared and testified as a witness on the trial on behalf of appellant, and he is alleged by the district attorney, in a reply to appellant’s motion for new trial, to be a brother of the aforesaid J. G. Bennett, and to have lived in the same house with the aforesaid witness.

It is not alleged that inquiry was made of the witness J. G. Bennett, or any of his family, as to his knowledge of any fact known to him or them, nor is the failure to do so explained. If such an inquiry had been made, and the witness failed or refused to divulge the information, a different question might be presented. Other neighbors were interviewed apparently, and, considering the long lapse of time and ample opportunity given appellant, we think the motion for new trial fails to show diligence. It should be made clearly to appear that appellant was ignorant of the evidence at the-time of the trial, and that such ignorance was not the result of want of diligence on his part to discover it. Price v. State, 36 Tex. Cr. R. 403, 37 S. W. 743; Evans v. State, 6 Tex. App. 613; Wheeler v. State, 15 Tex. App. 607; Vernon’s C. C. P. 1926, art. 763, note 28, for full collation of authorities.

The evidence is deemed sufficient. Judgment affirmed.

PER CURIAM. The foregoing opinion of ■ the Commission of Appeals has been examined by the judges,of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

In connection with his motion for rehearing, appellant presents an application for certiorari, to which is attached a certified copy of the docket entries in this case, as well as a copy of the order of the court below denying appellant a new • trial. We are asked to issue a writ of certi-orari, commanding the clerk of the trial court to forward to this court “a perfect transcript of the record in this case in accordance with the law, and a corrected judgment of the trial court’s action in overruling appellant’s motion for new trial.” This court is given no authority to accept mere docket entries in lieu of orders and judgments which are required by law to be shown in' the minutes of the lower court. The power to correct judgments and orders is for the trial court, upon proper application and the hearing of supporting facts, and not for this court.

We cannot,grant the motion for certiorari upon the showing made, and the motion for rehearing will be overruled.

Opinion on Application for Leave to File Second Motion for Rehearing.

Appellant makes application for leave to file a second motion for rehearing, and accompanies same by a proper showing that he has obtained at the hands of the trial corn-t a nunc pro tunc order correcting the minutes of the court below, so as to show that in overruling his motion for new trial the court granted 80 days within which to file bills of exception. The bills of exception which we have heretofore declined to consider were filed within said period. We grant the application to the extent of considering said bills. Each bill complains that the state was permitted to introduce testimony supporting the good -reputation for truth and veracity of state witness A. V. White; appellant’s contention being that he had not in any wise attacked the credibility or reputation of said witness, so as that the state might introduce such testimony. We are not in accord with this view. The appellant introduced proof that said witness made statements contradictory to those testified to by White while a witness. Under all the authorities this gave to the state the right to prove White’s general reputation for truth and veracity. Graham v. State, 57 Tex. Cr. R. 109, 123 S. W. 691; Alderson v. State, 53 Tex. Cr. R. 527, 111 S. W. 738; Dickson v. State, 66 Tex. Cr. R. 270, 146 S. W. 916. See Branch’s Crim. Law, § 877. The bills manifest no error.

The second motion for rehearing is without further merits. Same will be overruled.