text:
    McCUTCHEON v. STATE.
    No. 21110.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Oct. 16, 1940.
    V. M. Toomey and King C. Haynie (on appeal), both of Houston, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Appellant was charged by complaint and information with the theft of one commode and tank and one wash basin alleged to have been the property of Mrs. Tom. B. Turner.

The case was tried before the Hon. Frank Williford, Jr., Judge of the County Court of Law No. 2 of Harris County, Texas, without a jury and resulted in a conviction with the punishment assessed at sixty days in jail.

The stolen property was dismantled and taken from a house belonging to Mrs. Gal-lager, but which was at the time of the theft under the control, care and management of Mrs. Turner. The latter party discovered that the property was gone Friday or Saturday, about December 8, 1939. She immediately notified Mrs. Gal-lager, who found the property on the Monday following at the South End Wrecking Company’s place of business on Congress Street in Houston. Mr. Mathews was the proprietor of the business mentioned. He testified that on Saturday morning December 9th about seven o’clock appellant came to his place of business and stajed that he had started hunting and “stumbled on some second hand fixtures,” and wanted to sell them to witness. Appellant told witness he found the things in the weeds, and when they were brought in they had weeds, leaves and grass on them. Later appellant brought to witness’ place the things identified by Mrs. Gallager, and at the time also had a water heater and another commode.

At the time appellant sold the property to Mathews he (appellant) gave his name as “Mr. Lee,” and so signed his name on the register.

The State relying for a conviction of appellant upon the fact that he was in possession of 'recently stolen property, it is appellant’s position that his explanation made to Mathews of such possession was reasonable and probably true, and would entitle him to an acquittal unless the whole of the evidence shows such explanation to have been false. See Branch’s Ann.Tex. P.C., Sec. 2464, 41 Tex.Jur., Sec. 135, p. 218. We recognize the principle invoked by appellant, but taking the case as a whole we think the trial judge was justified in not accepting appellant’s explanation as true. The case having been tried by the judge his findings on the facts aré the same as if tried by a jury. We quote from Branch’s Ann.Tex.P.C. a paragraph of Sec. 2464: “Proof of possession of property recently stolen will sustain a conviction for theft if there are'circumstances in evidence which authorize the jury to disbelieve the explanation of such possession, and when such conviction is approved by the trial judge whose duty it is to set it aside if not satisfied from the evidence that defendant is guilty as charged.” See also 41 Tex.Jur., Sec. 139; Nichols v. State, 110 Tex.Cr.R. 432, 10 S.W.2d 109; Johnson v. State, 114 Tex.Cr.R. 591, 26 S.W.2d 231. In passing upon the probable truth of appellant’s explanation as to how he came into possession of the property, the trial court was perhaps perplexed as to why — if appellant’s explanation was true' — ■ he found it advisable to change his name in dealing with said property.

We find no tangible reason for disturbing the conviction.

The judgment is affirmed.

On Motion for Rehearing.

KRUEGER, Judge.

In his motion for a rehearing appellant seriously contends that we arrived at an erroneous conclusion as disclosed by the original opinion wherein it is stated that appellant changed his name to Lee. He contends that there is no evidente to show that his name was McCutcheon. In order to clear up any misunderstanding relative thereto, we quote from the testimony of Mr. Matthews, a witness called on behalf of the State, as- follows: “I am in the plumbing supply business * * * located at 1913 Congress. On or about the 8th of December I saw the gentleman on the left there, Mr. McCutcheon, at my place of business. * * * There was another man with Mr. McCutcheon in the car but I couldn’t say who it was; he did not come inside. * * * The first time Mr. Mc-Cutcheon come there he come there the first part of the week, on Monday or, Tuesday, the 11th or 12th. * * * Mr. McCutcheon brought in a water heater, a toilet and lavatory. There was a tank on the toilet. * * * Mr. McCutcheon signed the register with — I believe it was the name ‘Lee’. He identified himself as Mr. Lee.” There is no evidence that he was ever known by both names.

We deem this sufficient evidence upon which to reasonably base the conclusion that the appellant’s name was McCutcheon; that when he brought the stolen articles and sold them to the secondhand dealer he changed his name to Lee.

Believing that the case was properly disposed of on the original submission, the appellant’s motion for a rehearing is overruled.

PER CURIAM.

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


source: Caselaw Access Project

author: GRAVES, Judge. HAWKINS, Presiding Judge. BEAUCHAMP, Judge.

license: Public Domain

text:
    HOLDER v. STATE.
    No. 21014.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    On Rehearing June 26, 1940.
    Rehearing Denied Oct. 16, 1940.

      John J. Watts, of Crane, for appellant.
    Lloyd W. .Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellant received at the hands of a jury a verdict of two years in the penitentiary in punishment for ' the charged crime of theft of property over the value of fifty dollars.

This case began with a plea of not guilty, and after the testimony was all in it seems that appellant changed such plea to that,- of guilty, and endeavored to obtain a suspended sentence, leaving such to be the only matter to be determined by the jury.

Bill of exceptions No. 1 complains because of the, fact that the State was allowed to prove, over appellant’s objections, that one Leffel had lost a saddle by theft on the same night that the seven saddles were stolen, that were the subject of the herein indictment. Without going into a further discussion of this bill, we think an answer thereto lies in the fact that it was not shown who took Mr. Leffel’s saddle unless by inference, and thát inference came from appellant’s own testimony in that he stated upon his cross-examination that he had left eight saddles in Kansas and Oklahoma, whereas he was charged with the theft of only seven saddles. We see no error of importance reflected in this bill.

Bill of exceptions No. 2 complains because of the trial court’s failure to sustain a challenge for cause to a certain juror, whose voir dire examination was contended to show that he was prejudiced against a suspended sentence, and upon whom appellant was compelled to exercise a peremptory challenge. The bill does not show that appellant exercised all of his peremptory challenges and was forced to take an unsatisfactory juror by virtue of the court’s ruling as to the juror who was thus peremptorily challenged. In the condition in which this bill appears we see no error reflected.

Bill of exceptions No. 3 is concerned with the following remarks of the district attorney in his argument before the jury: “He seems to have been on mighty good terms with that man in Kansas. He must have been there before.”

From the record before us it is shown- that appellant took four of these stolen saddles and left them with a friend of twenty years’ standing in or near Arkansas City, Kansas, and asked this friend to keep them for him (appellant) until he came after them. We think the remarks were a fair comment on the testimony.

Bill of exceptions No. 4 shows the following occurrence:

Appellant’s attorney called the appellant to the witness stand with the following statement: “I want to put the defendant on the stand for the purpose only of showing he has never been convicted of a felony in this State or in any other state.” Whereupon the' appellant took the stand and testified relative to his application for a suspended sentence, and the district attorney then proceeded to question him relative to the matters set forth in the indictment, and eventually obtained an admission on the part of appellant that he had stolen these saddles from the person named in the indictment.

Mr. Branch, in his Penal Code,, p. 83, says: “When defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case, his failure to testify on a former trial or hearing, and the like. Huffman v. State, 28 Tex.App. 179, 12 S.W. 588; McFadden v. State, 28 Tex.App. [241], 245, 14 S.W. 128; Mendez v. State, 29 Tex.App. 608, 16 S.W. 766; Jackson v. State, 33 Tex.Cr.R. [281], 287, 26 S.W. 194 [47 Am.St.Rep. 30]; Hutchins v.. State, 33 Tex.Cr.R. [298], 299, 26 S.W. 399; Pyland v. State, 33 Tex.Cr.R. 382, 26 S.W. 621; May v. State, 33 Tex.Cr.R. 74, 24 S.W. 910; Hargrove v. State, 33 Tex.Cr.R. [431], 456, 26 S.W. 993; Thomas v. State, 33 Tex.Cr.R. [607], 615, 28 S.W. 534; Brown v. State, 38 Tex.Cr.R. [597], 598, 44 S.W. 176; Grooms v. State, 40 Tex.Cr.R. [319], 331, 50 S.W. 370; Alexander v. State, 40 Tex.Cr.R. [395], 404, 49 S.W. 229 [50 S.W. 716]; Monticue v. State, 40 Tex.Cr.R. [528], 531, 51 S.W. 236; Hamblin v. State, 41 Tex.Cr.R. [135], 142, 50 S.W. 1019; Mirando v. State [Tex.Cr.App.], 50 S.W. 714; Hare v. State, 56 Tex.Cr.R. 6, 118 S.W. 544; Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. [565], 566; Edwards v. State, 61 Tex.Cr.R. 307, 135 S.W. 540; McLain v. State, 62 Tex.Cr.R. 118, 136 S.W. 1057; Streight v. State, 62 Tex.Cr.R. 453, 138 S.W. [742], 751; Campbell v. State, 62 Tex.Cr.R. 561, 138 S.W. [607], 609; Burton v. State [Tex.Cr.App.], 148 S.W. 805; Serrato v. State [74 Tex.Cr.R. 413], 171 S.W. [1133], 1142; Brown v. State [77 Tex.Cr.R, 183], 177 S.W. 1161.”

By bill of exceptions No. 5 it is shown that a Mrs. Young and a Mrs. Hicks testified, upon the hearing of the motion for a new trial, that they saw a man by the name of Hill talk to some members of the jury before the verdict was rendered. This is the only fact which the bill of exceptions shows these witnesses testified to. In his motion for new trial appellant alleged that Hill was not a member of the jury, and that such conversation took place prior to the rendition of a verdict.

It has been held, in substance, by this court in the Toussaint case, Toussaint v. State, 92 Tex.Cr.R. 374, 244 S.W. 514, the Davis case, Davis v. State, 123 Tex.Cr.R. 616, 60 S.W.2d 783, the Avirett case, Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, and the Punchard case, Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495, that where it is shown that some unauthorized person has communicated with the jury during the trial of the case,- that it is incumbent on the State to show that no injury occurred to the defendant.

In Mauney v. State, 85 Tex.Cr.R. 184, 210 S.W. 959, 963, it is said: “We think the rule in cases of a violation of the provisions of article 748 [now Art. 671, prohibiting conversations or communications with the jury] ought to be that injury in such case is presumed unless the contrary is made to appear to the satisfaction of the court; the trial court primarily, and ultimately this court. Any presumption can be overcome by evidence, and in such case of presumptive injury, the burden ought to be on the state to satisfy the court that no injury has resulted from such violation of the statute.”

Also see Early v. State, 51 Tex.Cr.R. 382, 103 S.W. 868, 123 Am.St.Rep. 889.

According to the record the State made no effort of any kind, and introduced no witnesses to show the lack of injury to appellant by these admitted conversations of Mr. Hill with the jurors.

In consonance with these above holdings, this judgment is reversed and the cause remanded.

On Motion for Rehearing.

HAWKINS, Presiding Judge.

At a former day of the term the judgment was reversed, that action being predicated on bill of exception No. 5, which complained that the jury had communicated with some unauthorized person in violation of Art. 671, C.C.P., which, in so far as here applicable, reads as follows: “No person shall be permitted to be with a jury while they are 'deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court * * *. No person shall be permitted to converse with the juror about the case on trial.”

In a motion for rehearing the State advances the proposition that where an appellant claims that the provisions of the quoted statute áre violated he assumes the burden of establishing the truth of the claim, and when he has done so, and not until then, a presumption of injury arises with the burden then resting on the State to rebut such presumption. We entertain no doubt of the soundness of the proposition. In our original opinion occurs the following language: “It has been held, in substance, by this court in the Toussaint case, Toussaint v. State, 92 Tex.Cr.R. 374, 244 S.W. 514, the Davis case, Davis v. State, 123 Tex.Cr.R. 616, 60 S.W.2d 783, the Avirett case, Avirett v. State, 128 Tex.Cr.R. 647, 84 S.W.2d 482, and the Punchard case, Punchard v. State, 124 Tex.Cr.R. 101, 61 S.W.2d 495, that where it is shown that some unauthorized person has communicated with the jury during the trial of the case, that it is incumbent on the State to show that no injury occurred to the defendant.”

See, also, Lowe v. State, 88 Tex.Cr.R. 316, 226 S.W. 674; Goode v. State, 123 Tex.Cr.R. 293, 58 S.W.2d 1015; Newton v. State, 114 Tex.Cr.R. 537, 26 S.W.2d 233; Gandy v. State, Tex.Cr.App., 140 S.W.2d 182.

In its motion for rehearing the ' State further asserts that appellant never discharged the burden resting upon him to show that the jurors, or some of them, violated the terms of Art. 671, C.C.P., hence no presumption of injury arose, and it was not incumbent on the State to offer proof any kind. If the State is correct in the latter proposition we were in error in predicating a reversal upon a violation of the article in question.

It is shown by bill of exception No. 5 that appellant alleged in his motion for new trial that the jury communicated with one Hill, an “outside” person, and not a member of the jury, and that said communication -was “during the supper hour”. Such averments in the motion were only pleadings and proved nothing. 31 Tex. Jur. § 94, p. 297; Rollins v. State, 122 Tex.Cr.R. 119, 53 S.W.2d 786; Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114. When appellant undertook to support the averments in his motion it is shown by said bill of exception No. 5 that he proved only the following: “Mrs. Young testified that she saw a man by the name of Hill talk to some of the members of the jury before the jury rendered their final verdict in this case. Mrs. Lela Hicks corroborated all of the above testimony.”

So all we know from the evidence adduced in support of the motion is that someone by the name of Hill talked to some members of the jury before the verdict was returned. So far as we are advised by the evidence Hill may himself have been a member of the jury, or he may have been the officer in charge of the jury, or his conversation may have been by permission of the court and in his presence. The officer in charge of the jury is not an “unauthorized” person’ with whom conversation by the jurors is prohibited. See Gandy v. State, Tex.Cr.App., 140 S.W.2d 182. The statute expressly sanctions conversation by permission of and in the presence of the court, and conversations among jurors themselves is to be expected.

In ordering a reversal we inadvertently took cognizance of the unsupported aver-ments in the motion for new trial, thereby improperly supplementing the very meager and insufficient proof offered in support of the motion.

For the reasons given we conclude that we were in error in ordering a reversal of the judgment. The State’s motion for rehearing is granted, the judgment'of reversal is set aside, and the judgment of conviction is now affirmed.

On Defendant’s Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant has filed a very comprehensive motion for rehearing in this cause which has been thoroughly considered. Nevertheless, we adhere to the original view expressed as the law applicable to the facts of the case before us.

Article 753, C.C.P., sets out as one of the grounds for granting a new trial the conduct of a juror in conversing with an outside party “in regard to the case.” Appellant asserts that where it has been shown that the mandates of the statute have been violated by outside parties conversing with a member of the jury, the burden is then upon the state to show that no injury occurred. This court has so held and that, doctrine is here adhered to.

However, the appellant’s difficulty arises from the fact that he has not prop-. erly shown such to be the case. Appellant’s motion for rehearing, sworn to by himself, says that “one Hill” was seen conversing with a juror. He further says that Hill was not a member of the jury. It is not shown that they discussed the case. This allegation is not supported by an affidavit and, under a recent line of holdings by this court, it is merely a pleading in the case. Noble v. State, 98 Tex.Cr.R. 463, 266 S.W. 412, and cases there cited; Hughes v. State, 106 Tex.Cr.R. 550, 551, 293 S.W. 575; Purswell v. State, 107 Tex.Cr.R. 121, 294 S.W. 1107; Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83; McBee v. State, 119 Tex.Cr.R. 279, 44 S.W.2d 699; Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114, 115; Rollins v. State, 122 Tex.Cr.R. 119, 53 S.W.2d 786.

From the foregoing authorities it will be understood that this court has held that a motion for a new- trial which is required to be sworn to merely becomes the pleading in the case and is insufficient to cast a burden on the state to disprove the things therein alleged.

In the instant case the state controverted the motion by the affidavit of the district attorney, who also excepted to the allegations in Section nine, alleging misconduct of a juror, as being too indefinite and uncertain upon which to admit evidence. If the rules of pleading are to be respected in a motion for rehearing, this exception should have been sustained,

If appellant’s position should be tenable that the state would have the burden of showing that no harm resulted, it would be unreasonable to require the state to proceed on this allegation as it is worded. Neither is it sufficient to give notice of what appellant expected to prove so that the state may be in position to controvert it upon a hearing. The evidence which was introduced on the motion is referred to and properly discussed in the original opinion.

The motion for rehearing is overruled.


author: BEAUCHAMP, Judge. GRAVES, Judge.

text:
    HAYNES v. STATE.
    No. 20976.
    Court of Criminal Appeals of Texas.
    May 1, 1940.
    Rehearing Denied Oct. 16, 1940.

      George S. McCarthy and Clem Calhoun, both of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was cpnvicted in Potter County on a charge of receiving and concealing stolen property and assessed a penalty of two years in the state penitentiary, from which he appeals.

This is a companion case to that of David Ash v. State, 141 S.W.2d 341, this day decided by the court. Reference is here made to that case for a statement of the nature and, result of the case, together with the questions involved.

The facts show that appellant was with David Ash on three or four occasions; that he acted with him in attempting to dispose of the diamond rings which had been stolen. The evidence is in every respect the same until the time that his companion, David Ash, swallowed the rings, which was done in his presence. It therefore results that the recovery of the rings in the manner detailed is admissible against this appellant.

There is no evidence that the appellant stole the rings. The grand jury was unable from its investigation to determine who did, and could not charge the name of the party from whom he received them. The indictment properly alleged that it was from a party unknown to the grand jury. Appellant did not get on the witness-stand and testify in his own behalf and made no explanation of the possession of these rings. It is our conclusion, therefore, that the proper charge was laid and that the verdict was returned on proper evidence.

Appellant, by his brief filed in this case, presents that the court committed error in his charge to the jury, but there is no exception to the charge and no bill of exception presenting the matter for review by this court.

The further contention is made that the evidence shows that the witness, Sam Pelts, testified that this appellant received the rings from David Ash and exhibited them to Pelts in an effort to dispose of them; that they were returned by Pelts to David Ash, not to the appellant, and that by reason of this testimony the appellant did not receive the rings from a party unknown and in fact did not himself conceal them. We believe this contention is super-technical. The facts show conclusively that on three or four occasions the appellant acted with his companion, David Ash; that he represented that the rings belonged to his wife; that he was attempting to either borrow money on them or dispose of them for his own benefit. He joined in the conversations, he acted with David Ash arid consented by his action to the delivery of the rings to Ash, who placed them in his mouth and swallowed them. The facts are sufficient under the law.

Under the reasoning in the David Ash case, the judgment, of the trial court is affirmed.

On Motion for Rehearing.

GRAVES, Judge.

The burden of appellant’s motion is as follows: “In summary it is contended that the Court erred in affirming the lower court in this cause in that in order to sustain the conviction of receiving stolen property, it is necessary that the State prove beyond a reasonable doubt that the accused received the property in the county of prosecution, if that county of prosecution is in the county where the theft occurred or where the thief had carried same.”

Mr. Branch in his Penal Code, page 235, Sec. 450, says: “The merely jurisdictional question of venue .need not be proven beyond a reasonable doubt,” citing many cases.

Again he says in Sec. 451: “It is not required that venue should be established by direct testimony nor that it should be proved beyond a reasonable doubt. Venue may be proved by circumstantial evidence, as any other fact, and if the evidence be reasonably sufficient to satisfy the jury that the offense was committed in the county alleged, their finding on that issue will not be disturbed on appeal. Deggs v. State, 7 Tex.App. 359; Hoffman v. State, 12 Tex.App. 406; McGill v. State, 25 Tex.App. [499], 512, 8 S.W. 661; Bowman v. State, 38 Tex.Cr.R. 14 [40 S.W. 796], 41 S.W. 635; Murphree v. State, 55 Tex.Cr.R. [316], 318, 115 S.W. 1189; Pye v. State [71 Tex.Cr.R. 94], 154 S.W. 222; Reynolds v. State [71 Tex.Cr.R. 454], 160 S.W. 362; Belcher v. State [71 Tex.Cr.R. 646], 161 S.W. 459; Himmelfarb v. State [76 Tex.Cr.R. 173], 174 S.W. 586.”

We think the circumstantial testimony sufficient upon which the jury could base their verdict in which they said that these rings were stolen in Carson County • by some one unknown to them, as well as unknown to the grand jury, and were then brought into Potter County. That they were there received^by appellant and one Ash acting together. It is also conceded by appellant in his brief that there was sufficient testimony to show the acting together of these two parties in the possession of these stolen articles.

The above question of venue being the-, only .one presented to us, under the authorities we think the elements of venue-are shown sufficiently to meet the measure of the law.

The motion is overruled.


author: BEAUCHAMP, Judge.

text:
    MESSMER v. STATE.
    No. 21270.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    Jesse R. Orth, of Odessa, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The appeal is from a.conviction in Ector County on a charge of murder in which a penalty of three years was assessed.

The sheriff of Ector county, having in custody the appellant in this cause, has presented and filed his affidavit showing that the appellant escaped from jail where she was confined on the 8th day of April, 1940, and was out of his view and custody and wholly at large until the 5th day of June, 1940, when she was captured and returned to his custody and placed in jail where she is at this time confined. On this showing the state has filed a motion to dismiss the appeal.

Upon the showing made, the appeal is dismissed.


text:
    WARREN v. STATE.
    No. 21115.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1940.
    A. H. Gist, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted in the county court of Dallas County on a charge of aggravated assault on the person of Mrs. A. E. Thornton by, “willfully and with negligence”, operating a motor vehicle upon Highway No. 1-B. The jury assessed a penalty of 365 days in the county jail of Dallas County. The evidence properly admitted before the jury amply sustains the verdict.

A motion to quash the complaint and information was. overruled by the court and this action seems to be the chief ground upon which this court is asked to reverse the case.

The motion sets out that the complaint and information are ambiguous and uncertain in that they allege the defendant did, “unlawfully and with negligence”, collide with the person involved. The form of this complaint has been approved in Young v. State, 120 Tex.Cr.R. 39, 47 S.W.2d 320; Carlton v. State, 120 Tex.Cr.R. 12, 48 S.W.2d 273; Huff v. State, 123 Tex.Cr.R. 238, 58 S.W.2d 113, and Clifton v. State, 138 Tex.Cr.R. 258, 135 S.W.2d 115.

It is further argued in appellants brief that there is a variance between the allegation and the proof in that the proof shows that appellant’s car struck another car in which the injured party was riding, instead of striking the person. This contention will not be sustained, as it is permissible to show under the form of the allegation in this case that the defendant struck another car causing the injury to the party alleged. Schultz v. State, 137 Tex.Cr.R. 164, 128 S.W.2d 36; Guajardo v. State, Tex.Cr.App., 139 S.W.2d 85.

Further argument is made on bills of exception, complaining of the admissibility of testimony, which we consider thoroughly settled questions of law.

The judgment of the trial court is affirmed.


author: LESLIE, Chief Justice.

text:
    ALLIED UNDERWRITERS v. HARRELL et al.
    No. 2038.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 20, 1940.
    Rehearing Denied Oct. 18, 1940.
    Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.
    L, H. Flewellen, of Ranger, and Frank Sparks, of Eastland, for appellee.
   LESLIE, Chief Justice.

This was a suit on a fire insurance policy covering real and personal property. A trial before the court and jury resulted in a verdict in response to special issues and the court entered a judgment thereon in favor of the plaintiff. The defendant appeals, presenting two assignments of error which will presently be considered.

In the concluding part of its brief the appellant presents what it designates (1) “proposition No. 1 — separate from assignments” and (2) “proposition No. 2— separate from assignments.” If it be permissible to regard propositions as assignments, nevertheless we do not believe either of these has the essentials of an assignment of error. Obviously, these statements do not complain of any ruling or action by the trial court. They are not germane to any assignment of error presented, and the questions which they seek to raise are not to be found in the motion for new trial. Hence, there is no legal basis for these as assignments of error. Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, Rule 71a, as amended, 99 S.W.2d xxx.

Further, assuming such issues (as suggested by these propositions) were presented or raised by the pleadings and testimony, the court submitted no such issues and none were requested by the defendant.

The first and second assignments, in substance the same, will be considered together. In the main they are predicated on the jury’s affirmative answer to special issue No. 7 and complain that the court erred in failing and refusing to sustain defendant’s .motion for judgment in its favor in view of the jury’s answer to that issu'e. The issue reads: “Do you find from a preponderance of the evidence that the application of the mixture of the gasoline and lubricating oil on the floors in question by plaintiff * * * on the day before the fire * * * caused or contributed to cause the damage complained of?” The jury answered “Yes.” It is undisputed that the plaintiff in cleaning and renovating the house gave its floors an “application of the mixture of gasoline and lubricating oil”, in the proportion of two quarts of lubricating oil to one gallon of gasoline.

The contract of insurance contained many provisions stipulating as many facts or circumstances that might arise rendering the policy void and only the ones material to the issues in the appeal will be set out. In part the policy provided: “Subject to Art. 4890, R.S.192S, this entire policy, unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void * * * -if the hazard he increased by any means within the control or knowledge of the insured; * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises: benzine * * * gasoline * * * or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights and kept for sale according to law but in quantities not exceeding five barrels) provided it be drawn and lamps filled by day light or at a distance not less than ten feet from artificial light; or * * * etc.” (Italics ours).

The policy further provided: “Insofar as, and to the extent that, any of the warranties, conditions or provisions are legally-subject to and controlled by the Act of the 40th Legislature, Chapter 33, (Art. 4930, R.S.1925) no breach or violation thereof by the insured shall render this policy void, unless such breach or violation contributed to bring about the destruction of the property.”

The judgment of the trial court is correct, unless the jury’s finding in response to issue No. 7 compels a different conclusion. That portion of the verdict was treated as immaterial by the trial court, who ignored the same and entered judgment in favor of the plaintiff on the remaining portions of the verdict. The court did not submit any issue predicated upon that provision of the policy stipulating against the plaintiff’s right to increase the hazard by any means with-in her control or knowledge. No such issue was requested by the defendant, and the evidence does not conclusively establish that the hazard was increased by any means within the control or knowledge of the insured. The use of gasoline on the floor was not even interposed as a defense. The defense sought to be interposed was that the insured increased the hazard by the use of gasoline and lube oil. Hence, the appellant shows no error in the judgment by reason of the disposition of this phase of the case pertaining to an alleged increase in hazard.

As to the charge that the plaintiff at the time of the fire “kept, used or allowed” on the premises “gasoline or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard”, etc., it is at once 'apparent that the jury’s affirmative answer to special issue No. 7 does not, as a matter of law, entitle the defendant to a judgment. The mixture applied by the plaintiff in renovating the house was certainly not gasoline. If was something of which gasoline was merely an element, and how strong or how weak is not shown. If the mixture be regarded as petroleum, or one' of its products, there is no showing that the mixture had “greater inflammability than kerosene oil of the United States standard.” The burden of pleading and proving that the mixture was of such quality rested upon the defendant, and the burden was not discharged. In fact, no issue of that nature was submitted by the court or requested by the defendant. After due consideration we conclude that the fact, if any, established by the jury’s affirmative answer to special issue No. 7, was immaterial and properly disregarded by the trial court in entering his judgment. Certainly the evidence does not conclusively show that the material applied to the floor was of greater inflammability than such kerosene oil.

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


author: SMITH, Chief Justice.

text:
    TEXAS EMPLOYERS INS. ASS’N v. MOSER.
    No. 10942.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 25, 1940.
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellant.
    H. K. Stanfield, of Corpus Christi, and Charles J. Lieck, of San Antonio, for ap-pellee.
   SMITH, Chief Justice.

Appellee has filed his motion for leave to withdraw the original transcript from the files in order that certain allegedly incorrect bills of exception may be substituted with corrected bills; or, in the alternative, for writ of certiorari to bring up supplemental transcript embracing corrected bills to be considered in lieu of the original bills. Appellant is contesting the motion. The motion, and the reply, each lias attached to it a certificate of the trial judge reciting, in the first, that certain bills of exception in the filed transcript are incorrect and should be qualified as indicated in the certificate; and, in the second, that the qualifications first certified are themselves incorrect in named particulars and should be amended. The controversy is confused and confusing, and it is to be regretted that the learned trial judge was put, or got, into positions where he felt obliged, ,in order to be fair to the parties alike, to discredit by materially qualifying, in successive and inconsistent certificates, first, original bills of exception which the parties had purportedly agreed to and he had formally approved and ordered filed as a part of the record, and, second, by qualifying the first qualifications. ■

We overrule the motion for leave to withdraw the original transcript, but grant the motion for certiorari, in order that after a full hearing these controversies may be finally settled into final bills of exception, finally approved by the trial judge.

Motion for leave to withdraw transcript is overruled; motion granted for certiorari directing the clerk of the trial court to send up a supplemental transcript including any substitute bills of exception which the trial judge may approve and order filed as a part of the record in this cause; provided such supplemental transcript is tendered in this court on or. before October 10, 1940.


author: COMBS, Justice.

text:
    WALL v. LOWER COLORADO RIVER AUTHORITY et al.
    No. 3759.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 30, 1940.

      Wheeler & Wheeler, of Austin, and F. II. Hammond, of Burnet, for appellant.
    Powell, Rauhut & Gideon, of Austin, for appellees.
   COMBS, Justice.

On agreement of the parties this cause is dismissed. This order is subject to payment of costs of this appeal which are taxed against appellant.


author: PRICE, Chief Justice.

text:
    AMERICAN NAT. INS. CO. et al. v. WARNOCK.
    No. 3954.
    Court of Civil Appeals of Texas. El Paso.
    June 6, 1940.
    Rehearing Denied Sept. 19, 1940.
    Jones, Hardie, Grambling & Howell, of El Paso, Johnson & Crumpton, of Fort Stockton, and Frank S. Anderson, of Galveston, for appellants.
    Blaydes, Kelly & Winkler, of Fort Stockton (John J. Watts, of Crane, and: Joseph G. Bennis, of El Paso, on the brief), for appellee.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Pecos County in a suit where E. H. Warnock and Lurline Johnson, joined by her husband, were plaintiffs, and American National Insurance Company and C. W. Hirst, R. W. Hirst and Icel Hirst were defendants. The trial was to a jury, the case submitted on special issues. On the verdict returned judgment was entered in favor of plaintiff Warnock against the defendant Insurance Company and the Hirsts, adjudging that said named plaintiff recover the premises in controversy and cancelling, as against the defendants Plirst, a certain deed from their co-defendant Insurance Company purporting to convey to them the premises in controversy. Plaintiff Warnock was ordered to execute and deliver to defendant Insurance Company a promissory note in the sum of $22,900, dated February 5, 1935, bearing interest at the rate of seven per cent per annum, and payable in one hundred and twenty monthly installments, beginning March 5, 1935; the said notes to be secured by deed of trust on said premises, executed and delivered by Warnock; the general provisions being set forth in the judgment. The Insurance Company was ordered to execute a deed conveying the premises to Warnock. Judgment was entered that plaintiff Lurline Johnson, joined by her husband, take nothing. Defendants perfected an appeal as to plaintiff Warnock, and the case is here for review.

Plaintiffs’ pleading is rather detailed and voluminous, and the answer of defendant may likewise be so characterized. It is necessary in order to properly discuss the issues involved in the appeal to briefly summarize the pleadings.

Plaintiffs’ petition' charges the Insurance Company held an indebtedness of about $22,000 against the Fort Stockton Building & Loan Association secured by a deed of trust on the premises in controversy; that Warnock had a judgment against the same Building & Loan Association "in approximately the sum of $10,000; that this judgment was abstracted in Pecos County, and was a lien on the property secondary to the deed of trust before mentioned. In 1932 the Loan Association was in default on its payments on its obligations; that finally through a substitute trustee the said Insurance- Company, on or about the 8th day of February, 1934, foreclosed its deed of trust and Watson, an official of the Insurance Company, took a deed to the property for the benefit of the company. On the 5th day of August, 1935, the Insurance Company conveyed the property to the defendants Hirst, the consideration being $30,000; $7,000 cash and the balance on deferred payments.

Plaintiff alleged that prior to the sale there was an oral contract between War-nock and the Insurance Company that the said company should foreclose its lien, and if it purchased at the sale it would then convey the property to Warnock for the amount of its lien against the property, the amount to be paid by Warnock to be in monthly installments of .not to exceed $250 each, the rate of interest to be seven per cent instead of eight, as in the foreclosed incumbrance. The consideration moving to the Insurance Company was the dismissal of a suit as to it, which plaintiff Mrs. Lurline Johnson had filed against the defendant company and others; also that Warnock was not to bid at the foreclosure sale. Further, in making this contract, Warnock acted through his authorized agent, S. C. Johnson, and defendant acted through its authorized agent. It was averred that defendant Insurance Company, after it obtained the title to-the property, refused to execute the conveyance contracted for on demand of Warnock, said demand coupled with an offer of performance on his part; further, that on the da'te said defendant conveyed the property to the defendants Hirst, that said defendants had notice of the equitable rights of Warnock in the property; that by virtue of the facts alleged plaintiff had an equitable right to the property and the recovery of the property was sought, subject to the rights of the defendant company under the oral contract. The rental value of the property was sought to be offset against the purchase price provided for in said contract.

Defendant denied the contract pled by plaintiff, and further pled the statute of frauds, Vernon’s Ann.Civ.St. art. 3995, the two-year statute of limitation, and the three-year statute applicable to land. Further, as a defense, that plaintiff Warnock had theretofore filed and prosecuted to final judgment a suit in the District Court wherein damages were sought by him for the failure of the Insurance Company to ■convey to him the property involved; that the contract pled and relied upon in such former suit was the same contract pled and relied upon by plaintiff; that the final judgment was against plaintiff Warnock, and that same was a bar and an estoppel against the cause of action asserted by said plaintiff.

' In the instant case the issues submitting the basic right pled by plaintiff and the findings of the jury thereon were as follows:

“Special Issue No. 1:

“Do you find and believe from a preponderance of the evidence that W. O. Watson, in the presence of George Pren-•dergast, orally agreed with S. C. Johnson and R. D. Blaydes in the library of the Court House1 at Fort Stockton, Texas, on or about September 17th, 1934, to convey the Rooney Hotel property to the plaintiff, E. H. Warnock, on ten years time at a reduced interest rate of seven per cent and in the amount of the company’s loan on said property? Answer yes or' no.

“Answer: Yes.

“Special Issue No. 2:

“Do you find and believe from a preponderance of the evidence that such agreement, if you have found that there was^any such, was made upon the condition that the damage suit brought by S. C. Johnson and his wife against the defendant, American National Insurance Company, and then pending in this Court,, would be dismissed ? Answer yes or no.

“Answer: Yes.

“Special Issue No. 3:

“Do you find and believe from a preponderance of the evidence that S. C. Johnson, as the agent and representative of E. H. Warnock, agreed with Watson that E. H. Warnock would not become a bidder at the defendant American National Insurance Company’s sale on February 5, 1935? Answer yes or no.

“Answer: Yes.

“Special Issue No. 5:

“Do you find and believe from a preponderance of the evidence that George Prendergast, in the presence of W. O. Watson, orally agreed with S. C. Johnson and R. D. Blaydes in the library of the Court House at Fort Stockton, Texas, on or about September 17th, 1934, to convey the Rooney Hotel property to plaintiff E. H. Warnock on ten years time at a reduced interest rate at seven per cent and in the amount of the company’s loan on said property? Answer yes or no.

“Answer: Yes.”

If the judgment in the former suit operated as a bar or estoppel against the cause of action asserted here, an improper judgment was rendered, and instead of being in favor of plaintiff should have been in favor of the defendants. It is therefore deemed proper, first, to take up the assignments of appellant relative to this issue.

In the former case Lurline Johnson and her husband were not parties plaintiff, as they were in the instant case. In this case the contract pled is between War-nock and Lurline Johnson on one part and the Insurance Company on the other. However, the contract between Warnock and the Insurance Company was the only one submitted by the court, and was the basis of the judgment rendered. Judgment was that Lurline Johnson take nothing. Question of a variance between the pleading and the proof is not raised in the case. Under the pleading and proof Mrs. Johnson was perhaps neither a necessary nor a proper party to the' suit for the enforcement of the contract between plaintiff War-nock and the defendant Insurance Company. In our opinion, plaintiff Warnock cannot urge that the former judgment was not binding on him because not binding on Mrs. Lurline Johnson. In Freeman on Judgments it is said: “But the objection that a judgment is not binding on third persons is not available to the parties whose rights as to each other were fully litigated.” Freeman on Judgments, 5th ed., Vol. 1, Sec. 407, p. 891.

The Hirsts were not parties-to the former suit. All their rights in and to the property involved were derived from the defendant Insurance Company. All title and right held by the Insurance Company in and to the property was vested in them, subject, of course, to all equities of which they had notice in favor of Warnock. Before Warnock could recover from the Hirsts it was absolutely necessary to establish his right against the Insurance Company. The parties here and the parties in the former suit are identical insofar as the issue of res adjudicata is concerned.

The real question, then, is: Was there such an identity of the cause of action prosecuted in the former suit with the one here asserted as precludes its assertion?

In order to consider this question it is necessary to at least summarize the pleadings and verdict in the former suit. In the former suit plaintiff Warnock sought damages from the Insurance Company for its failure to comply with the identical contract relied on here. It was charged that it failed and refused to convey to him the land involved here, and had sold same to the Hirsts. The prayer of the petition was that plaintiff recover $25,000 damages, “and for such other and further relief in both law and equity, general and special, to which plaintiff is justly entitled.”

Among other defenses urged by defendant Insurance Company there was the statute of frauds. Trial was to a jury. The basic issues submitted by the court as to the substantive rights of plaintiff Warnock, with the findings of the jury thereon, are as follows:

“Special Issue No. 5:

“Do you find and believe from a preponderance of the evidence that W. O. Watson in the presence of Geo. Prender-gast orally agreed with S. C. Johnson and R. D. Blaydes in the library of the court house .on or about September 17th, 1934, to sell and convey the Rooney Hotel property to the plaintiff, E. H. Warnock on ten years time at a reduced interest rate of seven per cent and in the amount of the Company’s loan on the property? Answer Yes or No.

“Answer: Y es.

“Special Issue No. 6:

“Do you find and believe from a preponderance of 'the evidence that such agreement, if you have found there was any was made upon the condition that the damage suit brought by S. C. Johnson and his wife against the defendant, American National Insurance Company, and then pending in this court, would be dismissed? Answer yes or no.

“Answer: Yes.”

On this verdict, which consisted of other supporting issues, the court entered judgment for plaintiff Warnock against defendant Insurance Company in the sum of $7,-000. The Insurance Company appealed to this court. Here that judgment was affirmed. American National Ins. Co. v. Warnock, 107 S.W.2d 1042. Writ of error wa.s applied for, granted, and the Supreme Court reversed and rendered the judgment of this court and the trial court, and entered judgment in favor of the defendant there, the American National Insurance Company. American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161, 1165. In substance the Supreme Court held that the statutes of frauds precluded a recovery by plaintiff.

W,e think there is implicit in that holding the further finding that the contract in question was a contract for the sale of lands. There is in the record before us a copy of a supplemental motion for rehearing urged by Warnock in the Supreme Court. In this motion it is urged that the pleading .and proof were sufficient to sustain the theory of an express trust not subject to the statutes of frauds. It was argued on this theory the judgment of the trial court and the Court of Civil Appeals was sustainable. If not sustainable, the theory was raised, and the Supreme Court should reverse and remand the case for a new trial rather than reverse and render, to the end that plaintiff might have an opportunity to. replead and, if necessary, introduce new evidence. In the argument there it is urged that the record raised the question that the land was to be held in trust for the benefit of Warnock; that on account of the agreement Warnock was prevented from trying to secure anyone else to purchase the land so that he might be protected in his second lien, and prevented further from securing the property on his second lien, and making the payments due the Insurance Company. This motion was overruled.

The concluding paragraph of the opinion of the Supreme Court is as follows: “We have carefully examined this record, and are unable to find any fact which removes Warnock’s claim asserted in this suit from the operation of this statute [the statute of frauds].”

Plaintiff in the instant case pled the alleged contract of September, 1934, as follows: “* * * that they (meaning Insurance Company) would resell the hotel property to E. H. Warnock when they foreclosed and would reduce the interest rate from eight per cent to seven, and Rewrite the loan on a ten-year basis, which would reduce the monthly payments to approximately $250 per month. Mrs. Lurline Johnson agreed to this as she had a direct interest in the hotel agreement that existed between Warnock and the American National Insurance Company, and plaintiffs say that both of these agreements and the facts and circumstances surrounding them •created and resulted in a trust or confidence in lands in favor of E. H. Warnock against the defendant American National Insurance Company, and that the purchase of the lands and the hotel property by the American National Insurance Company at said foreclosure sale was for Warnock and in trust for these plaintiffs.”

In the former case this allegation appears as to the same contract: “* * * that thereafter, and in the month of September, 1934, in Pecos County, Texas, the said W. O. Watson still acting for and as the agent and assistant treasurer of the said Insurance Company, and the attorney of said Insurance Company, to-wit, George P. Prendergast, in consideration of a dismissal of pending litigation then pending in the 83rd District Court of Pecos County, Texas, of causes styled E. H. Warnock v. American National Insurance Co. et al., and Lurline Johnson, et al. v. American National Insurance Company, et al., and in consideration of concessions regarding said suit and dismissal as to said American National Insurance Company, wherein it was being sued therein for $10,000 damages, then and there confirmed by their acts and statements the said previous agreement heretofore referred to wherein said defendant Insurance Company would resell said hotel property to this plaintiff, if and when said Insurance Company became the owner thereof through foreclosure proceedings, and then and there agreed that said defendant Insurance Company would resell said hotel property to this plaintiff, if and when said Insurance Company became the owner under such foreclosure proceedings, and which foreclosure proceedings were then and there instituted and pending, and further agreed that in such event said defendant Insurance Company would resell same in and for a sum equal to the then outstanding principal obligation, * *

A perusal of portions of the two petitions will reveal that the facts alleged as to the contractual relationship of the parties were substantially identical. In the petition in the instant case it is averred that a trust or confidence was created in' the land, and this, of course, by virtue of the contract averred.

The gravamen of plaintiff’s complaint in the former action was that he was entitled to the land from the defendant, and had not obtained it on account of defendant’s refusal to convey, and that it ha.d conveyed it away. He sought compensation by the way of damages. Here a recovery of the land is sought — in short, specific performance. It can, however, be logically asserted that the basis of the duty to convey was the identical contract at issue in each case.

A cause of action consists of a right in the plaintiff, a duty in respect to that right incumbent on the defendant, a breach of that duty by defendant, and damage resulting from such breach. Baker v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 184 S.W. 257; Williams v. City of Dallas, Tex.Civ.App., 52 S.W.2d 373.

The character of the remedy is not an intrinsic element of a cause of action. Graves v. McCollum & Lewis, Tex.Civ.App., 193 S.W. 217; Texas Farm Mortgage Co. v. Starkey, Tex.Civ.App., 25 S.W.2d 229.

In fact here, we take it that, even though the facts alleged were .sufficient to constitute an express trust, there would be alternative remedies, specific performance, or damages. Exactly the same facts are brought forward to show a breach of the contract in each case.

The Supreme Court held that the identical contract sued on here was for the sale of the land, and we deem that holding binding on the trial court and on this court. It is true, as asserted by appellee, that where one contracts orally with a mortgagor for a valuable consideration to buy in land at a sale and hold the title for said mortgagor, an express trust is created, and Art. 3995 does .not apply. Lyon v. Texorado Oil & Gas Co., Tex.Civ.App., 91 S.W.2d 375, and authorities there cited.

We believe the case presented to the Supreme Court was distinguishable on the facts from the case above cited. The case here presented is likewise distinguishable, and is the same case as was before the Supreme Court.

A contract to purchase lands and sell to another is within the statutes - of frauds. American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161; Foster v. Ross, 33 Tex.Civ.App. 615, 77 S.W. 990 writ denied; Newson v. Minton, Tex.Civ.App., 250 S.W. 768; Robichaux v. Bordages, Tex.Civ.App., 48 S.W.2d 698; Wilt v. Kellogg, Tex.Civ.App., 99 S.W.2d 664; Wheeler v. Haralson, 128 Tex. 429, 99 S.W.2d 885; Robbins v. Winters, Tex.Civ.App., 203 S.W. 149; Davis v. Holloway, 317 Mo. 246, 295 S.W. 105.

There is no substantial difference in the facts involved in the two cases. The pleadings as to the vital and essential facts are the same; the evidence is practically the same; the finding on the evidence is the same; difference is only in the relief sought. Duty, as alleged in each case, was to convey the property to plaintiff Warnock. It was adjudicated that no such duty existed. In our opinion the pleadings in the former case were sufficient to present the question of a trust or agency.

The following cited cases are believed generally to support our holding: Mayfield Company v. Rushing, 133 Tex. 120, 127 S.W.2d 185, 124 A.L.R. 1210; Benavides v. Garcia, Tex.Civ.App., 283 S.W. 611; Id., Tex.Com.App., 290 S.W. 739; Hanrick v. Hanrick, 110 Tex. 59, 173 S.W. 211, 214 S.W. 321; Metropolitan Life Ins. Co. v. Pribble, Tex.Civ.App., 130 S.W.2d 332; Butler v. McGarraugh, Tex.Civ.App., 91 S.W.2d 1118; Sovereign Camp, W. O. W. v. Helm, Tex.Civ.App., 94 S.W.2d 521; Trigg v. Whittenburg, Tex.Civ.App., 129 S.W.2d 472.

We deem a discussion of the other assignments unnecessary.

It is ordered that the judgment of the trial court as between plaintiff Warnock and defendants be reversed and here rendered in favor of the defendants. The judgment as to plaintiff Mrs. Lurline Johnson is affirmed.


author: LOONEY, Justice.

text:
    ROBINSON v. STATE et al.
    No. 12889.
    Court of Civil Appeals of Texas. Dallas.
    June 29, 1940.
    As Corrected on Denial of Rehearing Oct. 5, 1940.

      Read, Lowrance & Bates, of Dallas, for appellant.
    L. L. McGuire and Lenore B. McGuire, pro se, both of Dallas, for appellees.
   LOONEY, Justice.

Appellant, H. Reid Robinson, instituted the present proceedings, denominated a motion, but, in our opinion, an independent action, to set aside a tax judgment rendered below in cause No. 29,976-A, styled The State of Texas v. H. Reid Robinson et al. On April 9, 1931, the State filed suit to recover delinquent taxes due the State and County of Dallas, amounting to $41.30, and to foreclose the tax lien upon the west 55 feet of Lot 8 in Block 2751/9 in the City of Dallas, owned by appellant.

On March 4, 1931, the attorney representing the State filed an affidavit for citation by publication, alleging that the residence of appellant was unknown to the affiant. The citation was duly issued and published/ and on April 12, 1932, the court appointed an attorney to represent appellant. The attorney ad litem filed an answer containing a general demurrer and general denial, and, on same day, the court tried the case and rendered judgment establishing, as due and unpaid, the taxes sued for, but failed to adjudge appellant personally liable for its payment; also decreed foreclosure of the tax lien on the real estate involved; and on April 27, 1932, a statement of the facts adduced at the hearing was duly prepared, signed by counsel, approved by the court, and filed as a part of the record.

On December 1, 1936, the sheriff of Dallas County sold the property under an order of sale issued on the judgment; L. L. McGuire purchasing same on his bid of $100. Subsequently, McGuire paid $105.55, the amount of taxes accruing subsequently, and it appears that, at the time of sale, there also existed against the property unpaid taxes due the City of Dallas, amounting to $145.06. Later, L. L. McGuire quit-claimed the property to his mother, Mrs. Lenore McGuire.

On January 26, 1939 (nearly seven years after the rendition of the tax judgment), appellant instituted the present proceedings against the State, L. L. McGuire and Mrs. Lenore McGuire, contending, for reasons hereinafter stated, that the judgment, order of sale, sheriff’s sale, the deed to L. L. McGuire, and his quit-claim deed to Mrs. Lenore McGuire, were void and clouds upon his title. However, appellant admitted his liability for the taxes and court costs properly chargeable, offered to pay same; praying that the tax judgment and all proceedings thereunder, and the documents just named, be canceled and removed as clouds on his title. The husband of Mrs. Lenore McGuire was duly cited, but failed to answer. The material defenses pleaded by the State and the McGuires, answering separately, were general denials and the statutes of limitation of two and four years.

For reasons which will be shown hereafter, we do not think the tax judgment was void upon the face of the record; hence, before appellant was entitled to have it set aside, he was required to exhibit a meritorious defense to the State’s action. But he made no such showing, nor does he contend here, that hé has a meritorious defense to the action; on the contrary, admits liability for the taxes; alleged his willingness to pay same and the accrued court costs; and, subject to the court’s orders, offered to place the necessary amount in the court’s registry; praying that, on final hearing, the tax judgment be set aside and that he be permitted to pay said taxes, costs, etc.

As appellant admits the justice of the State’s cause of action, we do not think he is in any position to ask the court to. indulge in the useless circumlocution of setting aside the judgment already rendered, in order to again render judgment, or else afford appellant an opportunity to pay the taxes sued for and accrued court costs without judgment. See 25 Tex.Jur., § 221, p. 633; Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 879.

In view of what has just been said, we think the State’s connection with the suit could end at this point, as we do not think the State has a justiciable interest in either of the other issues involved. However, as the State and the other appellees urged other and common defenses, the questions presented will be discussed and disposed of during the further progress of this opinion.

It is obvious that, in asking that the judgment and all subsequent proceedings had thereunder be canceled, appellant sought equitable relief, to which, in our opinion, the four-year statute of limitation (Art. 5529) was applicable. As heretofore shown, the judgment sought to be canceled was rendered on April 12, 1932; the present proceedings were begun on January 26, 1939, nearly seven years later. To avoid the bar of limitation, appellant contends that, he had no knowledge of the suit or of the judgment, until on December 13, 1939, when he ascertained that L. L. McGuire had placed a “For Sale” sign on the lot; but he does not excuse his failure to sooner ascertain the facts. It is disclosed that, for twelve years, 1927-1938, appellant failed to either render the property or pay taxes thereon. Cognizant of his repeated delinquencies, and charged with a knowledge of the controlling statutes, appellant must have realized the probability that public officials, charged with the duty, would endeavor, with the means at hand, to collect the delinquent taxes. In view of this situation, we think it obvious that, if appellant had-been reasonably diligent in the discharge of‘his duty as taxpayer, and regardful of his own interest, he could and would have acquired full knowledge of the existence of the judgment and of the proceedings had thereunder; therefore, we think that his cause of action was barred under the four-year statute. 25 Tex.Jur., § 227, pp. 643, 644; Griggs v. Montgomery, Tex.Civ.App., 22 S.W.2d 688, 694; Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 881.

However, we will discuss the other questions presented, one being that the judgment was void because the State’s petition was fatally defective, and insufficient to support the judgment, in that the delinquent taxes sued for were alleged to have accrued on impossible dates; that is, for the years 27, 28 and 29, the century not being identified.

The State’s petition adopted and made a part of its allegations, the delinquent tax notice issued by the jax collector of Dallas County, dated September 5, 1930. Under the heading “Years Sold or Delinquent”, there appears in the notice the numerals “27, 28 and 29”. The notice named appellant as owner, properly described the land in question, and, in detail, stated the amount of taxes due the State and County.

We think the petition sufficiently identified the years involved. It will be presumed that the notice issued by the collector on September 5, 1930, followed the due order of procedure prescribed by statute for the collection of taxes, and had reference only to recent preceding years. Besides, we think it a familiar colloquial expression to designate years as was done in the petition and in the tax notice. However, the particular years involved were rendered certain by evidence adduced at the trial, as shown by the statement of facts, and the judgment, that specifically described the years of delinquency as “1927, 1928 and 1929”.

It is also contended by appellant that the tax judgment is void because no proper statutory affidavit was made and filed as a basis for the citation by publication. This question was not raised in the court below, but, the process involved being a part of the record, we think the question properly presented, and should be considered. The record discloses that the affidavit for citation by publication was in the exact form prescribed by the statute and was signed and sworn to by Hubert Wills, Assistant District Attorney representing the State. The only possible criticism that could be made of the affidavit is that, in its body, Tom C. Clark, Assistant District Attorney, is named as the affiant,, whereas, it was actually signed and sworn to by Wills, another assistant district attorney. We think the court below was justified in assuming that, Clark’s name in the body of the affidavit was the result of a mistake, hence should be disregarded as-surplusage. In all other respects, the affidavit was regular and complied with the statute,'and, ⅛ our opinion, was a sufficient basis for the issuance of the citation by publication.

Another contention of appellant is that, as the court failed to adjudge him personally liable for payment of the taxes, the judgment, as rendered, was interlocutory and void. As before stated, the judgment simply fixed the amount of the taxes sued for, and foreclosed the lien given by law upon the real estate involved.

That a taxpayer is personally liable for taxes levied upon his real estate seems to be well settled (City of Henrietta v. Eustis, 87 Tex. 14, 26 S.W. 619), but we do not think it follows that a judgment, establishing the amount of delinquent taxes sued for, and decreeing foreclosure upon the real estate involved, is void, because it does not go further and adjudge the taxpayer personally liable for the payment of the taxes. We find no warrant for such doctrine either in the provisions of Art. 7326, or in the authorities cited by the appellant. Besides, we do not think that appellant can complain of the judgment Decause more favorable to him than it could have been.

Appellant also attacked the judgment on several grounds that raised issues of fact, requiring, for their support, the introduction of evidence aliunde the record, as follows: (1) That the affidavit for the issuance of citation, in stating that appellant’s residence was unknown, was untrue, and recklessly made, without exercising due diligence to ascertain the truth in regard to appellant’s residence; (2) that the citation was not published in a newspaper of general circulation, as required by statute; and (3) that there existed collusion between the attorney ad litem and the attorney representing the State, in that, the attorney ád litem consented to . an immediate trial of the case without making any effort to locate or consult with appellant, and without urging available defenses. The judgment being in favor of appellees, necessarily, the court resolved these issues of fact against the contention •of appellant and, in our opinion, properly so, under the evidence.

But aside from this view, we think the judgment secure against the collateral attack, because of its recitals, to the effect that a valid service by publication was had -on appellant, the record revealing nothing conclusively to the contrary. See Treadway v. Eastburn, 57 Tex. 209, followed in Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; also in Switzer v. Smith, Tex.Com.App., 300 S.W. 31, 68 A.L.R. 377; and in 25 Tex.Jur., § 330, pp. 857-862, with full •citation of authorities, and in the recent •case of Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871.

In Switzer v. Smith, Judge Speer, speaking for the court, used the following language in point; he said [300 S.W. 33, 68 A.L.R. 377]: “Since Treadway v. Eastburn, 57 Tex. 209, it has been the uniform holding of the courts in this state that, as .against a collateral attack, the recitation of ■due service in the judgment proper is conclusive upon such matter, and may not be ■contradicted by other facts, whether appearing in the record or aliunde. Such recitation imports absolute verity. Martin v. Burns, 80 Tex. 676, 16 S.W. 1072; Gibbs v. Scales, 54 Tex.Civ.App. 96, 118 S.W. 188 (writ refused); Chapman v. Kellogg (Tex.Com.App.) 252 S.W. 151; Borders v. Highsmith (Tex.Civ.App.) 252 S.W. 270; Mariposa Mining Co. v. Waters (Tex.Civ.App.) 279 S.W. 576; Gillette’s Estate v. State (Tex.Civ.App.) 286 S.W. 261; Barton v. Montex Corp. (Tex.Civ.App.) 295 S.W. 950.”

Appellant also questioned the validity of the sheriff’s sale on the following grounds: (1) Because of the inadequacy of the description of the property, contained in the •order of sale and in the published notice of ■sale; (2) that the notice of sale was not published in a newspaper' of general circulation as required by statute; and (3) that the land was sold for an inadequate ■consideration.

As is apparent, the two latter grounds raised issues of fact that, in our opinion, were decided correctly in favor* of appellees. The notice of sale was published in a daily paper of 26 years’ standing in the •City of Dallas, having a circulation of about 1,000 in the different walks of life. As to the alleged inadequacy of the price for which the land was sold by the sheriff to L. L. McGuire, the record discloses that the lot was worth approximately $800, was sold to McGuire for $100, but, at the time, was encumbered with liens for delinquent taxes accruing subsequent to the accrual of the taxes for which suit was brought, aggregating $250. We fail to find any evidence tending to show actual fraud, and, under the circumstances, do not think the price for which the land was sold, was so disproportionate as to create a presumption of fraud or indifference on the part of the officer making the sale.

In regard to the contention that the lot was inadequately described in the order of sale and published notice, we think the only criticism that can be made of the description is that it was incomplete, and not that it was incorrect. The pleading and judgment describe the lot correctly as “The W 55 feet of Lot 8” in Blk. 2751/9., etc., whilst the order of sale and published notice describe it as “part of Lot 8”, Block 2751/9, etc.

The statute, Art. 3808, does not require that the published notice of sale shall contain a full and complete description; on the, contrary, provides that it shall contain only a. “brief description of the property to be sold”. We think the description substantially complied with the requirement of the statute, and that the process, that is, the order of sale and published notice, contained sufficient data by which the lot could have been definitely .located and its full description rendered certain. Where, as in the instant case, the pleadings, the judgment and the sheriff’s deed, correctly and fully describe the lot upon which foreclosure was had, an incomplete description in the order of sale and published notice will not vitiate the sheriff’s sale and deed. See 18 Tex.Jur. § 163, pp. 730, 731; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Simmons v. Arnim, Tex.Civ.App., 172 S.W. 184; Hurley v. Barnard, 48 Tex. 83; Leal v. Moglia, Tex.Civ.App., 192 S.W. 1121. Many other authorities could be cited to the same effect.

We have duly considered all assignments and propositions urged by appellant for reversal, but, failing to find reversible error, the judgment of the court below is affirmed.

Affirmed.


text:
    TAVERA v. OVALLE et ux.
    No. 14055.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 25, 1940.
    A. A. Garza and Jay Sam Levey, both of San Antonio, for appellant.
    William Alter and Henry Castillo, both of San Antonio, -for appellees.
   SMITH, Chief Justice.

This matter is governed by the so-called Special Practice Act now embraced in amended Art. 2092, Vernon’s Annotated Civil Statutes, Acts 1939, 46th Leg. p. 205, and particularly by the provision of § 31 of the Act that “in appeals” thereunder “the statement of facts and bills of exception shall be filed within ninety (90) days after the judgment is rendered if there is no motion for new trial * * * ” as in this case.

As a matter of fact this statute does not mention Courts of Civil Appeals, or the transcript of the record, or make any provision or prescribe any time for filing statements of facts or transcripts in the Courts of Civil Appeals. But our Supreme Court, in giving practical application to the statute, and in aid of orderly procedure and the right of appeal, have approved a Court of Civil Appeals’ holding that under the quoted provision of § 31 of the Act, the appealing party is allowed ninety days after rendition of judgment in which to file his record in the Court of Civil Appeals. Hanks v. Texas Employers Ins. Ass’n, 133 Tex. 187, 128 S.W.2d 1.

In this case, however, the appellant did not file his record in this court within ninety days after rendition of judgment, but did, on the ninety-first day after judgment, tender the record to the clerk of this court, who declined to file it on the ground that it was tendered too late. Thereupon appellant filed his motion for leave to file the record, even though not tendered until the ninety-first day after judgment.

We are of the opinion that this court has no authority to order or permit the filing of a record tendered after the time prescribed by law has fully expired, at least in the absence of a motion for extension of that time filed before the expiration, and showing good cause.

Under the general statute on this subject it is provided that the record be filed in this court “within sixty (60) days from the final judgment * * *; provided, by motion filed before, at, of within a reasonable time; not exceeding fifteen (15) days, after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period, why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.” Art. 1839, R.S.1925, as amended Acts 1939, 46th Leg. p. 58, § 1, Vernon’s Ann.Civ.St. art. 1839.

It has been definitely held, however, that those provisions are inapplicable to appeals in cases tried under the provisions of Art. 2092, the Special Practice Act. Hanks v. Texas Employers Ins. Ass’n, supra. We are therefore relegated to the relevant provision of § 31, Art. 2092, for the governing procedure in this case. That provision is that the record “shall be filed within ninety (90) days after the judgment is rendered.” In the Hanks case our Supreme Court has held that that provision governs the time of filing records in Courts of Civil Appeals. Neither the language of the statute, nor the construction thereof by the Supreme Court, authorizes Courts of Civil Appeals to enlarge that time; those courts are given no discretion in the matter. Here the record was tendered for filing in this court, not within the prescribed ninety days, but on the ninety-first day, after judgment. So far as the authority of this court goes, the tender might as well have been on the one-hundredth, or one hundred and twentieth, or any other day, after judgment.

The motion for leave to file transcript must be denied.


author: FOLLEY, Justice.

text:
    GENERAL EXCHANGE INS. CORPORATION v. BOLLES.
    No. 5197.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 30, 1940.
    Clayton & Bralley, of Amarillo, for appellant.
    J. O. Fitzjarrald, of Memphis, for ap-pellee.
   FOLLEY, Justice.

This is a suit upon an automobile insurance policy commonly known as a comprehensive coverage policy providing for the payment of any direct loss or damage to the automobile subject to certain exclusions from the coverage. The appellee, Virgel Bolles, was the plaintiff below and the owner of the automobile which was almost completely destroyed by fire while the policy was in full force, The General Exchange Insurance Corporation was the insurer and the General Motors Acceptance Corporation the mortgagee. Both of these companies were defendants in the trial court.

The cause was tried before a jury.and judgment rendered upon its verdict for the appellee against the General Exchange Insurance Corporation in the sum of $325 provided, however, that of this amount $126.47 should be paid to the General Motors Acceptance Corporation in satisfaction of its debt and mortgage. From this judgment the General Exchange Insurance Corporation has appealed.

The appellant attacks the judgment chiefly on the ground that the appellee failed to discharge the burden placed upon him of showing that the loss did not come within any of the excepted causes set out in the policy. This assignment must be sustained.

The policy was in the Texas uniform standard form and contained the usual .exceptions and conditions under which the appellant would not be liable for loss, among these being loss or damage due to war, invasion, etc.; while the automobile was used as a public or livery conveyance or for carrying persons for a consideration; while rented under contract or leased; while being driven in a pre-arranged race or competitive speed test or by any person in violation of any state, federal or provincial law as to age applicable to such person or to his occupation, or by any person under the age of fourteen years; or while subject to any lien, mortgage or other encumbrance not specifically described in the policy.

The appellee did not in his pleadings negative any of the exceptions which under the terms of the policy specifically exempted the appellant from liability nor was any direct proof offered relative to the exceptions. The only testimony introduced as to the circumstances surrounding the fire was to the effect that the appellee started out of Memphis, Texas, in the automobile going west to his brother-in-law’s and when he had gotten about two miles out of town and while driving about forty or fifty miles per hour the engine backfired, something exploded and the automobile became engulfed in flames. This meager testimony in our opinion falls far short of eliminating all of the exclusions enumerated in the policy.

The recent decision of our Supreme Court in International Travelers Ass’n et al. v. Marshall, 131 Tex. 258, 114 S.W.2d 851, should have ■ alleviated the lamentations and set to rest the diversity of opinions of the judges of the inferior courts of this State relative to the burden upon the plaintiff seeking recovery upon a policy of this sort. Although neither the appellant nor the appellee has cited or referred to such decision we think it is controlling here. From page 852 of 114 S.W.2d of Justice Sharp’s opinion in that case we quote: “It has long been held that in a case of this kind the burden rests upon the plaintiff to allege and prove that the death of the insured was by accident, and did not come within the exceptions named in the policy. In order to sustain a judgment based on such policy,' plaintiff must negative, by allegation and proof, the exceptions which under the terms of the policy specifically exempt the company from liability. It appears from this record that plaintiff, having failed to make such allegations, by showing that the death of William Wright Marshall came within the general liability assumed by the insurer, and that it did not come within the excepted causes stated in the policy, did not meet the burden placed upon her.”

In response to appellant’s contention that this cause should be reversed and rendered in its behalf because the record reveals the appellee was guilty of fraud as a matter of law by making alleged false statements before and after the issuance of the policy, we deem it sufficient to state that in our opinion the material elements of fraud asserted by the appellant were not so conclusively shown as to establish, the issue as a matter of law.

The appellant also complains of the failure of the court to submit a specially requested issue as to whether the automobile was totally destroyed by fire. The testimony was uncontroverted that the automobile, though badly burned, was not completely destroyed. It was also uncon-troverted that after the fire the automobile still possessed some value and that it was-sold for $70. Issues were submitted as to. the value of the automobile immediately before and after the fire which were answered respectively $350 and $25. Under such circumstances we fail to see that any harm or injury could have resulted to the appellant by the court’s refusal to submit the requested issue.

In view of another trial before a jury under a similar record, it is suggested that the trial court in defining “market value” follow the approved definitions of this term as indicated in State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194, 979, or as indicated in Black’s Law Dictionary, 3d Ed., page 1162. See also Community Public Service Co. v. Gray, Tex.Civ.App., 107 S.W.2d 495 and 38 C.J. 1262, para. 18.

The other matters presented by the appellant will likely not occur on another trial and we pretermit a discussion of them.

The judgment is reversed and the cause remanded.


text:
    LOCKE v. LOCKE.
    No. 3704.
    Court of Civil Appeals of Texas. Beaumont.
    Aug. 3, 1940.
    Rehearing Denied Sept. 25, 1940.
    S. C. Lipscomb and A. D. Lipscomb, both of Beaumont, for appellant.
    Howth, Adams & Hart, of Beaumont, for appellee.
   COMBS, Justice.

Appellant and appellee were formerly husband and wife. They were permanently separated in 1930, but were not divorced until 1937. The divorce judgment decreed a one-half interest in the community property to Mrs. Locke, but did not partition it. Sometime after the divorce decree was entered, the real estate was partitioned by agreement. This suit was brought by Mrs. Locke, as plaintiff, ap-pellee here, in the nature of a suit for debt and accounting upon allegations that the appellant had earned, between the separation in 1930 and the divorce in 1937, the amount of $36,300 and had received certain other income. Also that he had accumulated .cash surrender values of certain life' insurance policies held by him in the aggregate amount of $3,672.66, as of the date of the divorce in 1937, it being alleged that the premiums on said policies had been paid out of the community funds. So far as. necessary to be stated here the court’s judgment in this case decreed to appellee, Mrs. Locke, $7,236.33, including therein three items of which the appellant makes complaint. These were: (1) One-half the cash surrender value of the insurance policies as of the date of the divorce ■decree; (2) $3,900 being one-half of the amount which the jury found was withdrawn by the appellant from “the community estate in excess of his living expenses” and sums expended for the community property; (3) attorney’s fee in the amount of $250.

As of the date of the divorce decree, the life insurance policies held by Mr. Locke had a cash surrender value of $3,672.66. The premiums on said policies had been paid with community funds. It is oür conclusion that the trial court properly gave judgment in favor of Mrs. Locke for an amount equal to one-half of such cash surrender value of the policies. Russell v. Russell, Tex.Civ.App., 79 S.W.2d 639, 640, and authorities cited. While, as pointed out in the Russell case, the wife had no right of control over the policies, and the court would have no authority to compel Mr. Locke to surrender the policies for collection of cash surrender values, or otherwise to control the contract between the insured and the insurer, nevertheless it cannot be questioned that the cash surrender value of the policies was an asset acquired or built up through payment of the premiums on the policies. A cash surrender value of life insurance policy such as here involved accumulates by reason of the payment of amounts in excess of .those required to provide the life insurance alone. In the present case the cash surrender value of the policies was acquired during marriage by purchase with community funds, and not by “gift devise ■or descent.” At the time of the divorce, the cash surrender value of the policies was property. Such property clearly did not come within the classification of the separate property of either spouse and therefore must be deemed to have been property of the community estate of appellant and appellee. Lee v. Lee, 112 Tex. 392, 247 S.W. 828. This being so, appellant should account to appellee for the value of her half interest in the cash surrender value of the policies.

The jury found that appellant between the date of the separation, November ' 1, 1930, and the date of the divorce in 1937, converted to his own use, in excess of his own living expenses and necessary expenditures in the preservation of the community estate, the sum of $3,900. The trial court entered judgment in favor of Mrs. Locke in that amount. This was error. Mr. Locke was not guilty of any fraud toward appellee, Mrs. Locke, in the handling of the community estate. The statute, Vernon’s Ann.Civ.St. Art. 4619, provides that the community property “may be disposed of by the husband only”. Such right of the husband to manage, control, and dispose of the community property is absolute so long as it is not exercised for the purpose of defrauding the wife. Jones v. Jones, Tex.Civ.App., 146 S.W. 265. And, barring any disposition or dissipation of the property made with intent to defraud the wife, the husband may sell or even give it away. Shaw v. Shaw, Tex.Civ.App., 28 S.W.2d 173. It was therefore essential that Mrs. Locke establish fraud toward her on the part of the appellant in his management of the community property as a predicate for her right to recover the $3,900 item.

We think the trial court also erred in entering" judgment against appellant for $250 attorney’s fee. As a matter of law, this item was not recoverable in this action. It is the law of this state that a wife may recover reasonable attorney’s fee from the husband in a suit for divorce wherein she is compelled by the wrongs of the husband to employ counsel to protect her rights. But this case is not that kind of 'a suit. The divorce case between appellant and appellee was disposed of nearly three years ago. And while the present suit does involve an accounting of community property acquired during the marriage relation, it is not a divorce case or even a suit between husband and wife. So far as the right to recover attorriey’s fee is concerned it is no different from any other • law suit between two individuals wherein there was no contract to pay attorney’s fee. We think this item is not recoverable in this case. Wm. Cameron & Co. v. Jones, 41 Tex.Civ.App., 4, 90 S.W. 1129; Tex.Jur. Vol. 11, p. 202; Houston Prod. Co. v. Taylor, Tex.Civ.App., 33 S.W.2d 202.

The judgment of the trial court will be reformed . by eliminating therefrom the items of $3,900 and $250 above mentioned and as so reformed the judgment of the trial court is affirmed.

Reformed and affirmed.