text:
    STATE ex rel. WALKER et al. v. CITY OF GLADEWATER.
    No. 5647.
    Court of Civil Appeals of Texas. Texarkana.
    April 11, 1940.
    Rehearing Denied April 18, 1940.

      Wynne & Wynne, Fred Erisman, Henry H. Harbour, Philip Brin, and Ralph Prince, all of Longview; for appellants.
    Hurst, Leak & Burke, of Longview, and Samuel C. Harris and B. M. Land, both of Gladewater, for appellee.
   WILLIAMS, Justice.

This is a quo warranto proceeding filed in March 1937 by the State of Texas, acting through the District Attorney of Gregg: County, upon the relation of Mrs. E. L. Walker, a feme sole, W. H. York, and Leland Fikes, against the City of Gladewater, a municipal corporation organized under the general laws of the State, herein referred to as the City. The City, purporting to act under the provisions of Articles 965 and 974, R.C.S. of 1925, extended a part of its city limits 800 feet in width, annexing approximately 365 acres. In the map -that follows, the solid line shows the-boundary of the extended area; the dotted line the former boundary of the City;, the x’s the residences of the petitioners in the annexed area; and the shaded portion-the lands of the relators.

This act of the City in including the lands of relators within the annexed area is challenged by plaintiff and -relators as being arbitrary, illegal and void. The information alleged the land of relators to be swampy, subject to overflow, and wholly unfit for residential or ordinary business purposes; without streets, electric, water or sewerage lines; not within ½ mile of any inhabited part of the city. They alleged that none of relators' land needs or can receive any protection or benefits from the city government; that same is fit only for oil production and is wholly unsuitable for city purposes. They alleged that the city did not intend to use the land for city purposes, but sought to annex it solely for the purpose of collecting taxes on it. The city was charged with instigating the movement and with preparing and causing the petition for annexation to be circulated and signed. Subject to a plea in bar later herein discussed, the city answered with general and special exceptions, and a general and special denial. It pleaded that the provisions of Article 974 had been complied with and joined issue on the allegations that the property of relators was unfit for city purposes or that same had been annexed only for taxation purposes.

This land of relators is situated in the Sabine River bottoms, subject to overflow, in some places 8 to 10 feet deep. It is marshy, boggy, and swampy, filled with sloughs, seeps, ditches, and salt water drains and slush pits incidental to various oil producing wells scattered over the area. The evidence clearly reflects that the-same is unfit for habitation. It is to be observed from the above map that not a person residing in the neighborhood of relators’ land signed the petition. The petitioners lived on high ground in built-up areas with water and other utility connections and adjacent to state highways. The field notes of the area to be incorporated were surveyed out and prepared by the city engineer, who verified the field notes before a city official. The petition contained these field notes. The same city official took the affidavit of three signers of the petition. On December 23, 1936, at a recess meeting of the City Commission the petition was presented, ordered filed," and the rules of the City requiring ordinances to be read at more than one meeting were suspended and the ordinance was passed annexing this area to the City. Five years prior to the present annexation, the City extended the city limits to include an area on high ground North and Northwest of relators’ land. During the five years the City has made no improvements on that area and in nowise utilized the same for city purposes. At the time of the annexation here involved one building was being remodeled but not a single building was under construction in the city. The city levied and collected’a tax of $1.75 per $100 valuation and also an occupation tax varying from $25 to $50 per well against each producing oil well within the city limits. Various producing oil wells were situated upon the land of relators within the area sought to be annexed.

In response to special issues submitted, the jury found that the city did not intend to use the land of relators strictly for town purposes; and that their land was not capable of being used for town purposes within a reasonable time. Upon request, the court also filed findings of fact, namely: (1) That the property owned by relators was annexed to the city purely for taxation purposes; (2) that same was unsuitable for city purposes; (3) that the city did not intend to use same for city property within a reasonable time. The city did not in the trial below, nor does it here challenge the sufficiency of the evidence to support each and all of the above findings. Article 974, here'applicable, reads: “When a majority of the inhabitants qualified to vote for members of the State legislature of any territory adjoining the limits of any city incorporated under, or accepting the provisions of, this title, to the extent of one-half mile in width, shall vote in favor of becoming a part of said city, any three of them may make affidavit to the fact to be filed before the mayor, who shall certify the same to the city council of said city. The said city council may, by ordinance, receive them as part of said city; from thenceforth the territory so received shall be a part of said city; and the inhabitants thereof shall be entitled to all the rights and privileges of other citizens, and bound by the acts and ordinances made in conformity thereto and passed in pursuance of this title.”

The area included in the extension did not exceed ½ mile in width. The evidence supports the court’s finding of fact No. 4, “that a petition signed by a majority of the resident and qualified electors living within the territory to be annexed, and verified by the affidavit of three of such electors that the same constituted a majority of the electors residing in said territory and had expressed its desire to be annexed to the City, and that such petition had been properly presented to the City and an ordinance declaring said property duly annexed to said City had been passed by said City Commission.” It was upon this finding No. 4 that the court concluded, as a matter of law, that under the authority of the State v. City of Waxahachie, 81 Tex. 626, 17 S.W. 348, 350, the State and relator were not entitled to recover and entered a judgment non obstante veredicto denying the relief sought. The judgment was so entered upon the theory as expressed in the motion to .enter judgment non obstante veredicto — that “the legislature having prescribed a certain limit to which the boundaries of a city may be extended, without expressing any qualification, the right to so extend them results, without regard to the use or character of the occupation of the annexed territory.”

The State v. City of Waxahachie, supra, which the city relies upon to support the judgment herein rendered, involved the construction of Article 974 under facts in some respects similar to .those here. A vital difference which controls the disposition of the present action is the unchallenged findings of the court and jury, amply supported by the qvidence, that the city annexed the lands of relators purely for taxation purposes (not for any other purpose) and the same was incapable of being used for town purposes within a reasonable time.

It is observed that Article 974 contains no express limitation upon the power of the city to annex, except that the area shall not exceed ½ mile. The Court in State ex rel. Taylor v. Eidson, 76 Tex. 302, 13 S.W. 263, 7 L.R.A. 733, and Ewing v. State, 81 Tex. 172, 16 S.W. 872, reviewed with other authorities in State ex rel. Mobray v. Masterson, Tex.Civ.App., 228 S.W. 623, construed Article 1134 and read into that article that no territory was to be included within the incorporation of a municipality except that-which is intended to be used for strictly town purposes. What purposes did the Legislature have in granting a city the power to extend its city limits other than to provide additional area for a growing city’s needs .and city uses? Manifestly the Legislature had no results in mind as here presented, •of subjecting to city taxation property unsuitable for town purposes and which would receive no city benefit. As stated in State ex rel. Wilke v. Stein, Tex.Com. App., 36 S.W.2d 698, 699, in the discussion of Article 1134, “Statutes must be reasonably construed, taking into consideration the subject-matter of the law, and the practicable experience of the members of the Legislature enacting it.” See also City of West University Place v. Ellis, Tex.Com.App., 134 S.W.2d 1038, and authorities therein discussed; Tod v. City of Houston, Tex.Com.App., 276 S.W. 419, 421.

To subject the properties of a people to the burden of a municipal government which will share none of its benefits is unjust, State v. Eidson, supra, and would result in the imposition of unnecessary burdens and the infliction of great injuries. State v. Stein, supra; Town of Latonia v. Hopkins, 47 S.W. 248; State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007. And as stated in State v. Masterson, supra [228 S.W. 631], “to permit the incorporation [of relators’ lands] in this case to stand, as was attempted, would be for us to sanction that which is clearly a legal fraud.” Such attempted act was arbitrary, unreasonable and violative of the inhibitions of both State and Federal Constitutions, Const.Tex. Art. 1, § 19; U.S.C.A.Const. Amend. 14, that “a person shall not be deprived of lajs * * * property without due process of law.” City of West University Place v. Ellis, supra; Chicago B. & Q. Rwy. Co. v. City of Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979.

The city offered in evidence under its plea in bar the original petition and judgment in cause No. 10667-C. which was filed by Mrs. E. L. Walker and W. H. York on December 21, 1936, in which they, as tax-paying citizens residing within the city limits as then constituted, sought a temporary restraining order to be continued as a temporary injunction. That petition alleged that the city was purporting to annex certain lands of theirs by virtue of some kind of petition being circulated at the city’s instigation, without affording them notice of the proceedings or an opportunity to protest or to protect their rights. Further allegations set out the nature of their land, and that the City was proceeding in fraud of their rights for the sole purpose of mulcting them in taxes. The judgment, dated December 23, 1936, recites the parties appeared, “and the Court after hearing the pleadings, evidence and argument, is of the opinion that the plains tiffs are not entitled to the relief prayed for hut that the same should be in all -things denied.” This ordinance was passed the same day this application for temporary injunction was made, the record not disclosing whether prior or subsequent thereto. Such proceedings in cause No. 10667-C did not operate as a bar to this quo warranto proceeding. Plaintiffs had a plain, adequate and speedy remedy at law, that of the present proceedings. Article 6253, R.C.S. of 1925; King’s-Estate v. School Trustees, Tex.Civ.App., 33 S.W.2d 783; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; 24 T.J. 88; 1 C.J.S., Abatement and Revival, page 67, § 41. The subject matter of the two suits are not the same. The first was an attempt to secure a temporary injunction to prevent the City from proceeding to act upon some kind of petition to annex certain territory. The second suit was a quo warranto, with the State as movant, brought after the limits were extended, to declare the act illegal and a usurpation of authority by a municipal corporation. 51 C.J. pp. 309, 323.

The judgment of the trial court is reversed and here rendered, decreeing as invalid and of no force and effect the acts of the City in including the lands of re-lators within the annexation ordinance of December 23, 1936.


source: Caselaw Access Project

author: SPEER, Justice.

license: Public Domain

text:
    CENTRAL MOTOR CO. v. ROBERSON.
    No. 14044.
    Court of Civil Appeals of Texas. Fort Worth.
    March 8, 1940.
    Rehearing Denied April 26, 1940.

      Winthrop Seley and John B. McNamara, both of Waco, for appellant.
    H. S. Lattimore, of Fort Worth, for ap-pellee.
   SPEER, Justice.

This appeal involves venue, the plea of privilege and controverting affidavit, as controlled by Article 1995, R.C.S., and certain exceptions thereunder.

Plaintiff R. B. Roberson sued defendant Central Motor Company, a corporation, in a district court of Tarrant County, Texas, for false imprisonment and libel and slander. The defendant has its .domicile arid place of business in McLennan County. Parties will carry the same designation here as in the trial court.

The defendant timely filed its plea of privilege to be sued, if at all, in McLennan County. Plaintiff controverted the plea, in the manner and within the time provided by Article 2007, R.C.S. No attack is made by either party upon the sufficiency of either the plea of privilege or the controverting affidavit.

The controverting plea of plaintiff specifically sets out the facts relied upon to bring venue of the case within Tarrant County, under exceptions 9, 23 and 29 of Article 1995, R.C.S. Exception No. 9 pertains to “Crime or Trespass.” It is* there provided that a suit based upon a crime, offense or trespass may be brought in the county where such crime, offense or trespass was committed. Exception 23 relates to corporations, and gives venue in any county in which the cause of action or any part thereof arose. Exception 29 has to do with libel 'and slander conferring jurisdiction in such cases in the county of plaintiff’s residence.

The hearing on the plea of privilege was to the court. The plea was overruled and defendant has appealed.

In all cases, plaintiff’s petition must state a cause of action against the defendant and venue arises when defendant is sued in some county other than that of his domicile and the privilege is claimed by proper plea. When the plea, in statutory form, is filed, it is prima facie proof of defendant’s right to have the cause transferred to the county of his domicile, unless and until the plaintiff files the controverting affidavit provided for in Article 2007, R.C.S. Upon the filing of the affidavit, a separate and distinct issue is raised from that of plaintiff’s right to recover on the merits of his alleged cause of action. The issues raised by such pleadings require a hearing or trial to be had. At that hearing only the venue issue is to be heard or determined. The facts to be established at that hearing are sometimes denominated “venue facts”. 43 Tex.Jur., sect. 109, p. 844; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Vitopil v. Gray, Tex.Civ.App., 111 S.W.2d 1202; General Motors Acceptance Corp. v. Lee, Tex. Civ. App., 120 S.W.2d 622; Farmers’ Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. In the last-cited case, the court laid stress upon the distinction to be drawn between the venue facts and those necessary to establish a right of recovery on the merits, using this language (125 Tex. 234, 81 S.W.2d at page 677): “Distinction should be noted at the outset between a trial upon a plea of privilege and a trial upon the merits of a case. The former is to determine whether the complaining defendant is suable on the transaction involved, where plaintiff filed the suit; the latter to determine- defendant’s liability on the transaction.”

The quantum and nature of proof necessary for plaintiff to make, in a hearing on the venue issues, depends largely upon the exception to the general venue statute relied upon; but in every case, it is safe to say that, to overcome the plea of defendant, plaintiff must allege and introduce proof showing his right to a trial in a county other than the residence of the defendant. World Co. v. Dow, 116 Tex. 146, 287 S.W. 241.

When the action out of which the venue question arises involves fraud, crime or trespass, the plaintiff must offer evidence upon the venue hearing, sufficient to establish at least a prima facie case in the action upon which he seeks a final recovery, even though it virtually amounts to trying the case twice. Compton v. Elliott, supra.

When more than one exception to the general venue statute (Art. 1995, R.C. S.) is relied upon to confer jurisdiction in the county where the suit is brought, establishment of either ground obviates the necessity of proof that others exist. Lakeside Irrigation Co. v. Markham Irrigation Co., 116 Tex. 65, 285 S.W. 593; De Shong Motor Freight Lines v. North Texas Coach. Co., Tex.Civ.App., 108 S.W.2d 766; Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473.

This brings us to a discussion of the two assignments of error presented by defendant, relied upon for a reversal of this case. They are, substantially: (1) Since the uncontroverted testimony shows that at the time plaintiff was arrested in Tarrant County, he was charged by complaint in a Justice Court in McLennan County, Texas, with the commission of a felony, and a warrant of arrest had been issued and delivered to a peace officer for execution, there was no evidence of false imprisonment offered and the court erred in overruling the plea of privilege; (2) the court erred in overruling the plea of privilege for the reason there was no testimony offered tending to show that M. Burton was acting as agent of defendant, either at the time he caused the complaint to be filed against plaintiff and warrant of arrest issued, or at the time of plaintiff’s arrest.

If the foregoing assignments were supported by the record, defendant’s contention would be correct; but we find testimony in the record which supports the judgment entered by the trial court. It is true that many of the material parts of the testimony offered by plaintiff were controverted by that offered by defendant. The transcription of the testimony indicates that to say plaintiff’s testimony was controverted by defendant is putting it rather mildly, for in some instances there are evidences of much emphasis in the denials made by defendant’s witnesses to matters testified to by those of plaintiff. Be that as it may, the trial court sat in lieu of a jury as a trier of the facts, giving such credit to the witnesses and the weight to their testimony as he thought proper. If there was testimony of a substantial nature, having probative force upon which to base the judgment rendered by the court, it is binding on us. We cannot substitute a < different interpretation of the evidence to that given by the trial court. 33 Tex. Jur., sect. 771, p. 1102; Corn v. First Texas Joint Stock Land Bank, Tex.Civ.App., 131 S.W.2d 752, writ refused.

One ground of venue in Tarrant County relied upon by plaintiff was exception 23 to Art. 1995, R.C.S., viz., that defendant was a corporation and that his cause of action or at least a part of it arose in Tarrant County. The judgment is silent as to which exception, for venue plead by plaintiff, was sustained by the court; but if either of those plead is established it will be presumed that the court based its judgment on that one and not upon one or more not established, and it becomes unnecessary to prove all. Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473, 478.

The record before us is conclusive that defendant is a corporation, having its principal place of business in McLennan County. It was shown by the testimony without dispute, that on about February 25th, 1939, plaintiff was arrested.and placed in the city jail in Fort Worth, Texas, by a Fort Worth officer; that the arrest was made upon the request of M. Burton, known as Red Burton, Chief of Detectives of the City of Waco. A letter dated February 9th, 1939, from Mr. Burton to the Fort Worth officer was the authority upon which the latter acted. The letter stated that plaintiff had obtained a described car “through fraud and a warrant has been issued for his arrest.” The letter does not indicate, nor is it anywhere shown, that any warrant of arrest was ever addressed to an officer of Tarrant County. After the arrest and incarceration of plaintiff, Burton went to Fort Worth and took plaintiff back to Waco. The libel phase of the case is based upon the quoted part of the letter’ shown above, but as we view this appeal, it will be unnecessary for us to comment further on that point. The foregoing statement by us is about as far as the uncon-tradicted testimony goes.

Other evidence shows that plaintiff’s counsel went to Waco, Texas, after the arrest of plaintiff (the date not shown) and talked to Chief Burton, and was told by Burton that Mr. Speer at defendant’s place of business had told Burton that plaintiff was in arrears on payments for a car, that they could not locate him and told Burton to “pick him up”. Counsel (Judge Latti-more) further testified that he then went to the court house and saw Mr. Casey, the constable, and the Justice of the Peace, they examined the docket and records of that court and found no entry or file of any kind against plaintiff; they did find a docket entry against “R. B. Robinson”, filed on a complaint sworn to by Homer Casey (the constable), on February 26th, 1939, in which “Robinson” was charged with embezzlement over $50. This complaint was shown to have been filed on February 27th, 1939. A certified copy of the complaint and the scabbard were introduced in evidence. Judge Lattimore further testified that Constable Casey told him that that was the complaint filed by him upon the request of Chief Burton.

There was a stipulation between the parties that at the time of the trial, the docket of the Justice of the Peace in Waco, Texas, showed .that a complaint had been filed by Constable Casey, on February 9th, 1939, against plaintiff, in which it was charged, “That heretofore, to-wit, on or about the 6th day of January, A. D. 1939, and before making and filing this complaint, in the county of McLennan and the State of Texas, R. B. Roberson did then and there unlawfully commit the offense of embezzlement over $50.00”, etc.; and that a warrant was issued thereon.

The stipulation mentioned above was limited to an agreement that the docket, at the time of trial, showed those entries and for no other purpose. It was the contention of plaintiff that at the time of the arrest no such case had been filed nor entries made. It will also be observed that the stipulation is silent as to what officer or county the warrant was addressed.

The action as instituted by plaintiff is, one to hold defendant corporation liable for the acts of Burton, as its agent. The evidence of agency, relied upon by plaintiff, consisted of statements claimed by his counsel to have been made to him by Chief Burton at the time counsel went to Waco, when he says Burton told him that a representative of defendant told him to “pick up” plaintiff, and Burton’s admission that he wrote the letter of February 9th, requesting plaintiff’s arrest. Counsel said that in his conversation with Burton, he asked-Burton if he could depend upon him to testify to what he (Burton) had told him and Burton said he could, because it was the truth.

Defendant’s second assignment of error is based upon the contention that there was no testimony tending to show that Burton was its agent, either at the time the letter of February 9th was written or when the arrest was made.

Agency may be established by circumstances. Daugherty v. Wiles, Tex.Com.App., 207 S.W. 900. This is true because the relationship between principal and agent, as a rule, is best known to the two. It cannot be established by the declarations of the agent, nor can it be' defeated solely by his denial. There are no windows through which a third party may look into the secret intentions of the alleged principal and agent and thereby discover the authority of the latter to act for the former. Their oral declárations cannot be heard above the noise made by their conduct. “Actions speak louder than words.”

Mr. Mitchell, president of defendant corporation, testified that Mr. Speer was an employee, and in the absence of witness and his son, Mr. Speer would be in charge of the business of defendant. Chief Burton testified that at the time he was called to defendant’s place of business, Mr. Speer told him of plaintiff’s delinquency; that witness was asked to assist in locating him. Burton denied, however, that Speer had told him to pick up or arrest plaintiff; that he (Burton) acted as a peace officer and not as the agent of defendant, when he wrote the letter to Fort Worth officers to arrest plaintiff. Mr. Speer did not testify at the trial. Slight proof made by plaintiff is sufficient to raise the presumption of agency, where full knowledge of the facts is possessed by defendant and is difficult of ascertainment by plaintiff. 3 C.J.S., Agency, § 315, p. 253. When the principal (Speer in this instance, acting for defendant) remains silent and does not testify, his silence when the issue of agency is involved, strengthens the probative force of the affirmative truth, and of itself is clothed with certain probative force. Farmers’ Guaranty State Bank v. Burrus Mill & Elevator Co., Tex.Civ.App., 207 S.W. 400; Pullman Palace Car Co. v. Nelson, 22 Tex.Civ.App. 223, 54 S.W. 624; Bailey v. Hicks, 16 Tex. 222.

As applicable to defendant’s first assignment, wherein it is contended that in view of the fact that a warrant had issued from the Justice Court at Waco for plaintiff’s arrest and that he was detained by virtue of that process, no evidence of false imprisonment was offered, we find evidence in the record which, if believed, would show that there was no warrant issued prior to plaintiff’s arrest. Chief Burton testified that on February 9th, 1939, the day on which he wrote to the Fort Worth officers to arrest plaintiff, he had telephoned Casey, the constable at Waco, to file a complaint against plaintiff and procure a warrant for his arrest; that later during the day, Casey had told him .that his request had been complied with and that he (Casey) had the warrant. But the testimony of Judge -Lattimore is'to the effect that when he went to Waco after the arrest to investigate the facts, he and Casey, the constable, went to the office of the Justice .of the Peace and investigated the records and found no case filed against plaintiff, either on February 9th, or uptín any previous date; that there was‘ a case filed against “Robinson” on February 27th, and that Casey said that was the case that he had filed in response to the request Burton had given him (on February 9th). Further testimony shows that without dispute, R. B. Robinson, the defendant in the case filed February 27th, is not the plaintiff in this case, but involves a separate and independent transaction with another party. Mr. Casey, the constable at Waco, who caused the case against Robinson to be filed on February 27th, and whom Chief Burton instructed to file a complaint against plaintiff, on February 9th, did not testify upon the trial of the instant case.

The effect of the judgment entered overruling the plea of privilege was to find, (a) that defendant is a corporation, (b) that Burton was the agent of defendant, and instructed the Fort Worth officers to arrest and imprison plaintiff, and (c) that at the time of the arrest and imprisonment no warrant had been issued commanding a Tarrant County officer to make the arrest. There is evidence in the record to support such findings. It was within the province of the court to give credence to the testimony offered by plaintiff and to disbelieve and discredit that to the contrary, offered by defendant. Whether or not, as a trier of facts, this court would have reached the same conclusion thereon as did the trial court, becomes of no consequence. Fidelity Casualty Co. v. McLaughlin, Tex.Sup., 135 S.W.2d 955, 957.

Under the decisions above cited and evidence related, the judgment must be upheld. Both assignments of error are overruled and the judgment affirmed.

       While it has no application to any phase of the instant case, we call attention to the fact that in Vitopil v. Gray, supra, second column, page 1204 of 111 S.W.2d, this writer inadvertently misstated the second question certified. We used the word “sustaining”, when it should have been “overruling”. The error is apparent by what is said immediately preceding the question.


author: BROWN, Justice.

text:
    LINDEN LUMBER CO. v. JOHNSTON.
    Nos. 13880, 13939.
    Court of Civil Appeals of Texas. Fort Worth.
    April 5, 1940.
    Newland, Cornett & Whitworth, of Linden, and Mayo W. Neyland, of Greenville, for appellant.
    Herbert Marshall, of Dallas, for appellee.
   BROWN, Justice.

This appellee has filed a motion before us in general statutory language, saying that he is a pauper and unable to pay the costs or any part thereof, or to give security therefor.

The motion is contested and our attention called to the sworn testimony of this litigant, on the trial of the'cause, in which he testified that he is agent for the “Sante Fe” Railroad at Farmersville, Texas, and has been such for 21 years, and that his salary is $248 per month.

We do not think the litigant is a pauper and are of opinion that he cannot take advantage of any statute enuring to the benefit of a pauper.

The' motion is overruled.


author: BAUGH, Justice.

text:
    WARD OIL CORPORATION v. OVERTON REFINING CO. et al.
    No. 9002.
    Court of Civil Appeals of Texas. Austin.
    April 10, 1940.
    Rehearing Denied May 1, 1940.

      L. L. James, of Tyler, for appellant.
    A. A. Garrett, of Tyler, and Wheeler & Wheeler, of Austin, for appellee Overton Refining Co.
    Gerald C. Mann, Atty. Gen., and Edgar W. Cale, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
   BAUGH, Justice.

This is a Rule 37 case, and a second appeal from the judgment of the trial court involving the same permit. The first appeal is reported in 131 S.W.2d'700, wherein we reversed and remanded the case on the ground that the evidence on the former trial negatived any confiscation of appel-lees’ property, the only ground upon which the permit involved was sought.

Irrespective of the proof made upon the first trial, and whether our former decision is res adjudicata of the issues here presented, a statement of the uncontroverted facts, under now settled holdings, is sufficient to conclusively dispose of the permit in question.

The application for the permit for a second well.on the tract in question showed it to contain .28 of an acre. A survey on the ground made by a «licensed surveyor from established corners and the field notes of surrounding tracts, showed it to contain only ¼5 of an acre. This tract was located in the fairway of the East Texas field where the underground conditions in the oil producing strata, well potentials, and daily allowables were substantially uniform. Based upon factual information as to this area taken from well logs and other ’ required reports, on file with the Railroad Commission, R. D. Parker, a qualified petroleum engineer, and for seven years oil and gas supervisor for the Railroad Commission, testified that the total estimated oil originally in place beneath this tract was 16,700 barrels for .28 of an acre, or 4,280 barrels for ½5 of an acre. The one well already on the tract had been producing since 1932, and up to April 1, 1938, had already extracted approximately 53,000 barrels of oil therefrom. It is not controverted that the tract in question, yvith one well thereon, was, at the time the permit involved was granted, drilled to a greater density than any of the surrounding tracts; and that it was then, and long had been, extracting more oil per acre- per day than any other tract in its vicinity.

It is now settled by numerous decisions that on the issue of confiscation the test is whether-the applicant for an additional well, as an exception to Rule 37, has been given a fair and equal opportunity with other producers on surrounding tracts within the drainage area to recover his fair share of the oil in place beneath his tract. If he has, no confiscation results. Edgar v. Stanolind Oil & Gas Co., Tex.Civ.App., 90 S.W.2d 656, writ refused.

On a tract as small as that here involved, its exact configuration or the correct delineation of its boundaries, is of little importance. From the above statement of the facts it conclusively appears' not only that the well in question was not needed to prevent confiscation of Overton Refining Company’s property; but that it would, unless several additional wells in the immediate area were drilled, result in confiscation by the Overton Refining Company of its neighbors’ property. And confiscation was the only ground presented to the Railroad Commission as a reason for such permit.

The case was tried to a jury. At the close of plaintiff’s evidence, each of the defendants filed motions for an instructed verdict. These motions were by the court overruled. . Thereupon the defendants declined to offer any evidence., We must presume, therefore, that they had nothing further to offer. Thereafter the court upon its own motion directed a verdict for the defendants and entered judgment accordingly.

We have not undertaken to discuss severally the contentions made by appellant; nor those,made in reply or by cross assignment by appellees; nor to cite or review the cases decided by this court and by the Supreme Court upon the issues presented: Suffice to say that the matters discussed are now well settled in adjudicated cases.

It follows from our determination upon the former appeal, and the facts shown in this record now before us, that the permit attacked was arbitrarily granted. It is therefore set aside and held for naught; and the cause is reversed and remanded to the trial court, with instructions to grant to appellant the injunctive.relief prayed for by it.

Reversed and remanded, with instructions.


author: DUNKLIN, Chief Justice.

text:
    CLARK v. LYNCH.
    No. 14062.
    Court of Civil Appeals of Texas. Fort Worth.
    March 29, 1940.
    Rehearing Denied April 26, 1940.
    Smoot & Smoot, of Wichita Falls, for appellant.
    W. T. Locke and Kelly Tipps, both of Wichita Falls, for appellee.
   DUNKLIN, Chief Justice.

R. H. Clark, defendant in the court below, has ' prosecuted this appeal from a judgment against him in favor of plaintiff, Emmett Lynch, in the sum of $175 for injuries to his automobile when it was struck by defendant’s truck on a public street in the City of Wichita Falls, Texas, while plaintiff’s wife was driving it and while the truck was being driven by Tommie Ewing, who plaintiff alleged was defendant’s servant.

Tommie Ewing was working for defendant under a written contract of employment, which, in specific terms, stipulated that he was engaged in soliciting and securing laundry work for his customers in the City of Wichita Falls, but was without facilities for doing laundry work; that defendant would receive and launder all laundry delivered to him by Ewing, which Ewing would procure by his own efforts and methods, free of any control on the part of defendant, as respects the manner and details of the work so done by Ewing; that Ewing would pay defendant certain scheduled charges for all laundry finished and delivered to him by defendant, less a discount of 20 per cent if Ewing furnished the vehicle for gathering and transporting the laundry, and less a discount of 5 per cent if defendant should furnish such vehicle, which would be used by Ewing for his own benefit and free of any control by defendant; that Ewing would settle for the laundry work so done and delivered to him by defendant on Saturday night of each week; with the further stipulation that the contract was one of employment of Ewing as an independent contractor, and not as defendant’s servant.

Based on that contract, defendant alleged that at the time of the accident, Tommie Ewing was not defendant’s servant, but was working as an independent contractor.

The record further shows that when the collision occurred, Tommie Ewing had* made a trip to the Scotland Addition in Wichita Falls to get some laundry and was taking it to defendant’s place of business, to be there laundered as provided in said contract of employment.

In answer to special issues, the jury found that Tommie Ewing was guilty of negligence in the particulars alleged in plaintiff’s petition, which was the proximate cause of the collision, and that plaintiff’s wife was not guilty of contributory negligence, as alleged by defendant; that Tommie Ewing was not an independent contractor, but was defendant’s servant; and that plaintiff’s automobile was damaged in the sum of $175, as the result of the collision.

Appellant presents the contention that the contract of employment set out above showed conclusively as a matter of law that Tommie Ewing was working as an independent contractor and not as defendant’s servant, and for that reason the court erred in overruling defendant’s motion for an instructed verdict in his favor, as to the whole case.

The following announcement by our Supreme Court, in Cunningham v. International Railroad Co., 51 Tex. 503, 32 Am. Rep. 632, has been uniformly followed by our Appellate Courts, in determining whether an employee is the servant of his employer or is an independent contractor:

“In the first relation, that of master and servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and htince his corresponding liability for an improper execution of the same. (Wood on Master and Servant, sec. 281.)

“ ‘He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details/ (Shear. & Red. on Neg., sec. 73.)

“In the second relation, that of employer and independent contractor, there is no such control and direction by the employer over the servant in the details of the work.

“ ‘The true test * * * by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.’ (Shear. & Red. on Neg., secs. 76-79; 1 Red. on Railways, 505; Pack v. Mayor of City of New York, [8 N.Y. 222], 4 Seld. 222.)”

Following are some of the many decisions that have applied that test: Southern Surety Co. v. Shoemake, Tex.Com. App., 24 S.W.2d 7; Shannon v. Western Indemnity Co., Tex.Com.App., 757 S.W. 522; Lone Star Gas Co. v. Kelly, Tex. Com.App., 46 S.W.2d 656; Security Union Ins. Co. v. McLeod, Tex.Com.App., 36 S.W.2d 449; Traders & General Ins. Co. v. Fletcher, Tex.Civ.App., 118 S.W.2d 347, writ of error dismissed; National Cash Register Co. v. Rider, Tex.Com.App., 24 S.W.2d 28; Dave Lehr v. Brown, 127 Tex. 236, 91 S.W.2d 693; Davis v. Gen. Accident Fire & Life Assur. Corp. Tex.Civ.App., 127 S.W.2d 526; Shahan v. Briggs & Co., Tex.Civ.App., 123 S.W.2d 686. -,

And in Lone Star Gas Co. v. Kelly, Tex.Com.App., 46 S.W.2d 656, 657, supra, this was said, in opinion of Justice Critz: “We think that, in a case where the evidence is conflicting as to the contract, evidence with reference to authority actually exercised by the inspector of the employer is admissible to aid the jury in determining what the contract really is, but in a case such as this, where the contract is conclusively established, the mere fact that the inspector may at times have exceeded his duties would not alter the legal situation. In other words, the relationship of master and servant depends, not on the exercise of control over the work, but the right to exercise such control. King v. Galloway (Tex.Com.App.) 284 S.W. 942.”

It follows, therefore, even if it be said that some testimony introduced as to the manner in which he performed the service for which he was employed tended to show that in fact Tommie Ewing was defendant’s servant — which we gravely .doubt — yet the same cannot be given effect and thereby contradict the terms of his written contract of employment.

Accordingly, the assignment of error now under consideration is sustained, the judgment of the trial court is reversed, and judgment is here rendered in favor of the appellant; without the necessity of a determination of the merits of other assignments of error. And in this connection, we will add that we have read decisions cited and relied on by appellee, viz., Spears Dairy v. Bohrer, Tex.Civ.App., 54 S.W.2d 872, and Maryland Casualty Co. v. Kent, Tex.Com.App., 3 S.W.2d 414, but conclude that they are distinguishable from the case at bar, in the facts involved, and are not in variance with the decisions noted above.

Reversed and rendered.


author: JACKSON, Chief Justice.

text:
    ERWIN v. WHITE.
    No. 5136.
    Court of Civil Appeals of Texas. Amarillo.
    March 25, 1940.
    Rehearing Denied April 22, 1940.
    H. H. Cooper and A. A. Lumpkin, both of Amarillo, for appellant.
    S. E. Fish, of Amarillo, and J. S. Stal-lings, of Claude, for appellee.
   JACKSON, Chief Justice.

This is the fourth appeal of this case. In an opinion reported in 54 S.W.2d 867, the judgment was reversed and the cause remanded because Mr. White urged as a defense an illegal contract. The opinion reversing the case on the second appeal for failing to exclude inadmissible testimony is found in 67 S.W.2d 1090 and shows that the illegal contract urged by Mr. White as a defense in the former appeal was eliminated. The opinion in the third appeal reversing the judgment and remanding the cause on account of a statement of the trial judge is reported in 97 S.W.2d 707.

We refer to these opinions for a statement of the pleadings and testimony and shall make no extended statement in this opinion.

It is admitted that the appellant and ap-pellee on or about July 1,1931 entered into a contract by the terms of which appellee agreed to purchase appellant’s wheat as it was harvested and delivered during the year 1931 and pursuant to such contract the appellant delivered 6388¾ bushels for which appellee agreed to pay 33⅜ per bushel for 1767.59 bushels under the Chicago December option at any time that appellant called for settlement prior to December 1, 1931; that he agreed to pay appellant 32⅞⅞ per bushel for 3534.33 bushels under the Chicago December option at any time if demand was made therefor prior to December 1, 1931 and to pay 31⅜ per bushel for 1086.83 bushels under the Chicago December option provided settlement was requested before December 1, 1931. It is conceded that appellant was to pay 1‡ per bushel, or $63.88, for handling the wheat and if it weighed less than 60 pounds per bushel there should be a dockage of 1⅜ per pound -per bushel for each pound less than 60 pounds a bushel weighed and that the appellee was entitled to a credit of $98.49 for dockage. It is admitted that appellant was advanced on the price of the wheat the sum of $1150 and on November 12, 1931 he demanded settlement at which time the Chicago December option was $0.61^ per bushel but appellee failed and refused to settle.

The appellant sufficiently pleaded these admitted facts and sought to recover thereon the sum of $549.52.

The appellee answered by general demurrer and general denial, admitted the agreement to purchase the wheat prior to July 18th but asserted that he did not promise to advance any money on the wheat except the expense of harvesting which was usual and customary.

He alleges that on July 18th, after the wheat was delivered, appellant desired an additional amount of money and it was agreed between them that appellee would advance, including what he had theretofore paid for expenses, the sum of 15$⅝ per bushel of the market value, which was 25‡ per bushel-on that day in Washburn, provided appellant would agree to protect the marginal deposit of 10$⅝ per bushel if wheat on the Chicago market December option declined as much as 10‡ per bushel and if he failed to do so the contract, it was understood, would be automatically cancelled and the wheat closed out; that on October 5, 1931 the Chicago December option declined to less than 45$S per bushel and the 10é marginal deposit was consumed; that appellant was notified thereof but refused to protect the contract and the wheat was closed out and all liability on the part of appellee ended.

The appellee also claims that by mistake he paid appellant $191.69 more than the price of appellant’s 6388¾ bushels of wheat at 15¶⅜ per bushel and by error failed to charge to appellee the dockage of $98.49.

The appellant in a supplemental petition pleaded that the alleged contract of sale of date July 18, 1931 was a gambling contract and therefore void, however, he pleaded no facts which if true would show that the contract as pleaded by appellee was a wagering contract.

Before the trial the appellant filed an application to change the venue of the case from Armstrong to an adjoining county for trial, urging .as reasons therefor the numerous trials theretofore had in Armstrong County, the disqualification of jurors by reason of such trials, the small number of qualified jurors in the county, many of whom were in a general way interested in the decision of the questions involved and had been present at one or more of thp former trials.

The appellee answered this application or motion to change the venue and denied under oath that the parties who made the affidavit to appellant’s motion had knowledge to truthfully state the facts tending to show the want of qualified jurors for service; denied that appellant could not obtain by reason thereof a fair and impartial trial in Armstrong County and further asserted that the affiants to the motion had incorrectly stated the facts.

The appellant excepted to the sufficiency of this sworn answer to his application for a change of venue, the exception was overruled, evidence on the motion heard and the court overruled the application. The testimony heard on the motion is not before us and in the absence thereof we can consider only the legal sufficiency of this answer and, in our opinion, it is in substantial compliance with article 2171 of the Revised Civil Statutes and not insufficient as a matter of law.

The case proceeded to trial and in response to special issues submitted by the court the jury found, in effect, that, under the terms of the contract between appellant and appellee made prior to July 18, 1931 the appellee did not agree to advance to appellant 15^ per bushel on the wheat delivered but on July 18, 1931 the appellant did agree in consideration of the advancement to him of 150 per bushel on the wheat that if the price on the Chicago market December option should decline as much as 100 per bushel that appellant’s wheat would be closed out unless he protected it by putting up additional money. ' The record shows without dispute that on October 5, 1931 the price of wheat Chicago December option declined to an amount below 450 per bushel; that by reason thereof the 100 per bushel margin on the wheat was consumed; that appellant was notified thereof but refused to protect the contract and the wheat was closed out.

The appellant challenges as error the action of the court in rendering judgment against him because he says the alleged contract claimed to have been made July 18, 1931 was a wagering or gambling contract contrary to public policy and therefore unenforceable and void. He pleaded no facts which disclose the illegality of the contract and considering the statement of Mr. - White’s pleadings as reported in the opinion in Tex.Civ.App., 54 S.W.2d 867 and the amended pleadings as shown in the opinions on the subsequent appeals and the holdings therein will be sufficient to show that the modified contract relied on in this case is not a gambling contract and that this assignment is untenable. Erwin v. White, Tex.Civ.App., 97 S.W.2d 707; White v. Erwin, Tex.Civ.App., 67 S.W.2d 1090; Erwin v. White, Tex.Civ.App., 54 S.W.2d 867; Morgan v. Rose, Tex.Civ.App., 62 S. W.2d 1022; Furrh v. Western Union Telegraph Co., 115 Tex. 125, 276 S.W. 645; H. Seay & Co. v. Moore, Tex.Com.App., 261 S.W. 1013; Smith v. Duncan, Tex.Com.App., 209 S.W. 140.

The appellant also urges as error the action of the court in permitting appel-lee to recover on the contract of July 1, 1931 the 10 per bushel for handling and the 10 per bushel for dockage on his cross-action thereon inasmuch as he had repudiated said contract.

The pleadings and the testimony show that appellee did not repudiate the agreement of July 1st but admitted it was made and alleged that it had been modified by the contract of July 18th when he agreed to and did advance 150 per bushel to appellant on the wheat and as a consideration therefor appellant agreed to protect the marginal price of 100 per bushel and if he failed so to do that the contract would be automatically cancelled and the wheat closed out. This modification did not affect ap-pellee’s right to recover the item for handling the wheat or the item for dockage. It is shown without controversy that appel-lee paid the appellant 150 a bushel for 7666⅜ bushels but received from him only 6388¾ bushels and as the payment was made ■ through mistake appellee was entitled to recover the excess paid through error.

The appellant assails as error the action of the court in refusing to submit at his request an issue which is as follows: “Did the plaintiff and defendant, if they made any agreement on July 18, 1931, intend by such agreement, that the gains and losses were to be settled according to the price of wheat under the Chicago December option, without any intent to make delivery of the wheat, upon which the ten cents margin deposit was made.”

It will be noted that this issue failed to place the burden of proof on either of the litigants. It is admitted by all parties that the wheat was actually delivered by appellant to appellee at Washburn, Texas. There is neither pleading nor proof in the record that would authorize the submission of this issue.

The appellant also urges as error the refusal of the court to submit at his request an issue reading as follows: “Do you find from the evidence, that the plaintiff and defendant, on July 18, 1931, made an agreement by the terms of which, it was agreed that the wheat which plaintiff sold and delivered to the defendant, under the Chicago December option Plan, was then worth in Washburn, Texas 24 cents per bushel, and that the defendant would advance to plaintiff IS cents per bushel on said wheat so sold and delivered, which would leave plaintiff an equity or margin of ten cents per bushel in said wheat, which equity or margin plaintiff agreed to protect at Washburn, Texas.”

The appellant and the appellee pleaded and the parties agreed that the wheat was sold “under the Chicago December option” at 33‡, 32<j¡ and 31⅜ per bushel and that ap-pellee would pay appellant these respective prices for certain portions thereof at any time the appellant would call for a settlement if before December 1, 1931. There is no testimony that contradicts the agreement as to these facts which the parties placed in the record. The issue did not place the burden of proof on either party and was unauthorized by the pleadings.

The judgment of the trial court is affirmed.


author: BOND, Chief Justice. YOUNG, Justice

text:
    HIGHLAND PARK INDEPENDENT SCHOOL DIST. et al. v. THOMAS et al.
    No. 13013.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1940.
    Rehearing Denied April 20, 1940.

      Bell, Goode, Heinen & Miller, James H. Como, Jr., Andrew Patton, Dist. Atty., and E. G. Moseley, Paul Peurifoy, and David Weinstein, Assts. Dist. Atty., and J. C. Muse, Jr., all of Dallas, for appellants.
    Mack L. Vickrey and Jarrell Garonzik, both of Dallas, for appellees.
   BOND, Chief Justice.

On February 3, 1939, a judgment was entered in a district court of Dallas County, Texas, in a delinquent tax suit, brought by State of Texas, County of Dallas, Town of Highland Park, and Highland Park Independent School District, against Mrs. Emma E. Thomas and her husband, Mr. M. H. Thomas, to establish first and su-peripr constitutional and statutory tax liens- upon certain specifically described .real estate belonging to Mrs. Thomas, and ■for foreclosure of the liens to satisfy taxes due thereon, in the .¡aggregate sum of .$30,-032.63 ; thus .commanding the seizure, levy, advertisement and sale of the property, as under execution, and the proceeds of sale be distributed ratably and proportionately to the above- táxing units (plaintiffs), on the basis of delinquent taxes due each. The suit and judgment followed closely the provisions of the statute relating to collection of delinquent taxes (Ch. 10, Art. 7319 et seq., Vernon’s Ann.Civ.Statutes). Incorporated in the judgment are findings that, the “adjudged value” of the property as of date of trial, was the sum of $150,000, and the owner of the property had the right of redemption, as provided by law. Other than a personal judgment in favor of Highland Park Independent School District, for the sum of $365.14, not involved here, the enforcement of the judgment was directed specifically against the property, and for the taxes due thereon; no personal judgment was sought against the defendants.

On July 2, 1939, Mrs. Thomas died, leaving a will, in which she directed that all her just debts be paid by her executrices as soon after her demise as practicable, and devised the property in suit to her three children, with privilege extended her husband to occupy “the homestead on Preston Road as such, if he so elected, provided that he pay the taxes thereon * * * The will made further provision for the appointment of her daughters, Mary Catherine Thomas, Inez Thomas Rubush and Mrs. R. B. Irion, as joint executrices of her estate, and expressly provided: “I hereby direct that my Executrices be not required to give bond, and that the Probate Court take no further jurisdiction of my Estate than to require the probate of this Will, and the filing of an inventory and list of claims”.

The will of Mrs. Thomas was duly probated October 27, 1939, and on November 18, 1939, the executrices qualified thereunder and proceeded to administer said estate independent of the probate court, .filed inventory and appraisement, listing the property here involved as the separate property of Mrs. Thomas. No question is raised in this appeal touching the validity of the will, the , probate thereof, or the qualifications of the executrices to act independent of the probate court; and, in obedience to the terms of the will, they are now acting as independent executrices of the estate of Mrs. Thomas.

On January 13, 1940, an order of sale was issued on the judgment of February 3, 1939, levy made on the real estate,' upon which the respective constitutional delinquent taxes ■ were established and liens fixed for the payment thereof perforce of the judgment, and in accordance with the appropriate tax statutes. It is to be noted at this point that the judgment in favor of the State of Texas and the other taxing units is not a personal judgment against either of the defendants, and the process issued thereon expressly excludes the idea of any deficiency against the estate passing to the devisees under the will. It simply fixes the amount of taxes due and subjects the specific property to the payment thereof.'

On February 3, 1940, the executrices of the will of Mrs. Thomas, on hearing before the court.that entered the judgment foreclosing the liens, obtained an order vacating, and staying the foreclosure upon the property levied upon, and directing the sheriff of Dallas County to return the order of sale without execution. The basis of the order, incorporated in the court’s finding, is, “ * * * that the property described in the order of sale, * * * belongs to the estate of the said Mrs. Emma E. Thomas, deceased, and that no execution or order of sale may legally issue under said judgment as against said property until such judgment has been revived according to law.” From this order, the appeal is directed.

Bearing in mind that the tax proceeding is directed solely against the specific property, and has for its object the disposition of that property alone, without reference to any other claim or debt against the deceased; and that, the execution and order of sale follow the judgment, operating directly upon the property, localizing its effect upon the real estate sought to be sold in. satisfaction of the established liens: Thus, the ultimate issue in this appeal is, May an execution or order of sale issue on the judgment, and the property be sold, without resorting to the courts against the executrices? Generally speaking, the proceeding is one in rem, as distinguished from an action to determine personal rights and obligations — an action in per-sonam.

The constitutional liens of the State of Texas and other taxing units are, in no sense, a “debt” or “claim” against the estate of Mrs. Emma E. Thomas, deceased, nor a “judgment for money”, as contemplated by Art. 3778, providing: “If a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration”. The judgment and Hens here involved relate to specific property to be subjected to the satisfaction of the taxes assessed against it, measured, of course, by money only as a standard to determine the superior equity of the taxing units, as against the legal title of the owners, who, by the terms of the will, are the three children of the testatrix, whose title is subject only to the homestead claim of the surviving husband, M. H. Thomas, and the taxes due thereon. Obviously, the devisees under the ‘will are the legal owners of the property in suit, which is exempt by law to them from payment of ordinary debts of the testator (Art. 3314, R.S.). It cannot be gainsaid that the constitutional tax liens are superior to the homestead exemption of the husband and the title of the children; thus, the executrices have no interest to subserve for creditors of the estate or the owners of the property. By the terms of the will, the estate is relieved of regular administration under supervision and control of the probate court.

A judgment for taxes or equitable liens on specific property, as disclosed by the record, is not a money judgment, although it may be measured in terms of money. Art. 3779, R.S., provides: “In anv case of judgment other than a money judgment, where the sole defendant, or one or more of several joint defendants, shall die after judgment, upon an affidavit of such death being filed with the clerk, together with the certificate of the appointment of a representative of such decedent under the hand and seal of the clerk of' the court wherein such appointment was made, the proper process on such judgment shall issue against such representative.” In the case at bar, the independent executrices are not required to approve the claims of the taxing units and have no power to sell the property to discharge the taxes due thereon; and, the probate court is (by the express terms of the will) divested of primary jurisdiction to administer the estate. Consequently, in the status of the estate and its administration, no basis exists for classification of claims or priority of payments. The tax liens established by the judgment of the district court being prior and paramount, ahead of the rights of the devisees and the constitutional homestead exemption, and the property not being subject to any other debts or claims against the estate, the taxing units may proceed against the representatives of the estate.

In the case of Taylor v. Williams, 101 Tex. 388, 108 S.W. 815, 817, the Supreme Court discusses and distinguishes the difference between administration under the probate court and independent administration, as follows: “As applied to administrations under the control of the probate courts, the policy of the probate law reflected in Robertson’s Adm’x v. Paul [16 Tex. 472], produces many consequences similar to that adjudged in that decision. No suit to establish a moneyed demand against such an estate is allowed, except as a consequence of the refusal of the administrator or of the probate court to allow or approve it, and then only to establish it and not to enforce its payment. Judgments for money against decedents or their administrators cannot be enforced by executions, but must be certified to the probate courts. Property, in the hands of administrators, on which liens exist to secure debts, whether such liens are created with or without powers of sale, cannot be sold under process from other courts, but must be subjected through proceedings in the courts controlling the administrations. The allowances to the widow and children must be made, and their payment provided for by those courts. All claims must be passed upon, classified, and paid under their orders. None of these things are true of administrations by independent executors. Such trustees make allowances, pay claims, and settle up estates without any control from the probate court. They are liable to suits to recover debts or allowances, and to enforce liens or other rights, existing against the estates in any of the courts of civil jurisdiction, and the judgments of such courts are enforced against property of the estate in their hands, by the usual processes. It is true, as held in Roy v. Whitaker, 92 Tex. 346, 48 S.W. 892, 49 S.W. 367, that the management and settlement of an estate by an independent executor is an administration ; but this proves little to the present purpose. The question is, is it that kind of an administration which, by force of the probate law, extinguishes or supersedes the power of sale of a trustee appointed by the testator? The contrast between such administrations and the regular ones satisfies us that the reasons upon which the rule under discussion was founded do not apply to them. That rule, broadly stated, is that all claims for money, including those secured by liens, must be probated and enforced through the probate court, and that the existence of a power of sale does not alter the case. The very statement of it shows that it does not apply to independent administrations. No creditor can go into the probate court to enforce his claim against an executor so long as his independent control is allowed to continue, whereas all creditors are required to go into that court to enforce claims against regular administrators. In the case of independent administrations the statutes have not required any course of procedure through which relief may be had, while in the other case the mode of proceeding is carefully and exclusively prescribed. The conclusion is that the creditor is left to pursue the general rules of law by which remedies are given, and one of those remedies, in cases like this, is the exercise of the power of sale. We can find no reason for holding that such a power cannot be exercised, seeing that it is not extinguished by death, nor forbidden by any provision of the probate law, like those controlling regular administrations.”

Such distinction, so pronounced in Taylor v. Williams, supra, is expressly reaffirmed by the Commission of Appeals (approved by the Supreme Court) in Fischer v. Britton, 125 Tex. 505, 83 S.W.2d 305, 306, as follows: “The law is settled that a trustee under a deed of trust can exercise the power of sale after the death of the grantor when the grantor’s estate is being handled under an independent executor as provided and directed in the will.” And, in the case of Fischer v. Britton, supra, the Commission of Appeals clearly indicates that the independent executor stands in the shoes of the testator; it says: “Where the powers conferred in the will upon an independent executor are general, as here, he is to manage the estate and pay the debts as though both the estate and debts were his own”. See, also, Freece v. Truskett, 130 Tex. 90, 106 S.W.2d 675.

Art. 3449, R.S., provides: “The administration of an estate under a will shall in all respects be governed by the provisions of the law respecting the administration of intestates’ estates, except where it is otherwise provided by law or by the provisions and directions of the will.”; and Art. 3436 provides: “Any person capable of making a will may so provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement and lists of claims of his estate.” In view of these statutes and the above holdings of our Supreme Court, as against an independent executor, the judgment and order of sale to enforce constitutional tax liens against specific real estate, as here, is not extinguished on the death of the defendant, but is enforceable against the representatives of the deceased, acting under the powers and limitations of the will of the deceased. To hold otherwise, would be to say. that a judgment of a court of competent jurisdiction, and the processes thereunder in tax matters, to enforce constitutional liens on specific property, and the express direction of the deceased in a will, do not reach the dignity of private contracts, deeds of trust, as involved in the above cases, enforceable independent of the probate statutes. Mrs. Thomas had the legal right to direct by will the mode and manner of management of her estate, and the payment of taxes due by her on the specific piece of property involved here. She directed such management and payment, independent of the courts. Thus, we are of the opinion that the judgment is enforceable against the executrices, and that the State of Texas and other taxing units are entitled to the processes of the court to enforce the judgment against the property; accordingly, the judgment of the court, effectively enjoining the further issuance of an order of sale and levy, until such judgment had been revived against the executrices, is set aside, and further process to enforce the judgment may issue. In accordance with our conclusions above expressed, the cause is reversed and here rendered in favor of appellants, dissolving and setting aside the restraining order of the trial court.

Reversed and rendered.

YOUNG, Justice

(dissenting).

My dissent follows the language of Art; .3778, that no valid sale can be made of the lands in the possession of these independent executrices on a judgment obtained during decedent’s lifetime, except pursuant to the laws regulating administration of estates.

This tax judgment was for $30,032.63 rendered February 3, 1939, following suit against Mrs. Emma E. Thomas and husband M. H. Thomas. The taxing authorities (plaintiff and interveners) established the amount defendants were indebted to each body for taxes, and fixed the same as a first and superior constitutional and statutory lien against described realty; delinquent amounts due each for certain years being: State of Texas and County of Dallas; $16,114.51; Town of Highland Park, $6,347.43; Highland Park Independent School District recovering personal judgment of and from defendants, jointly and severally, for personal tax arrears, $365.14, and similar judgment against Mrs. Emma E. Thomas, school taxes, penalties and interest against the realty, for $7,570.-69. The recitals of foreclosure, however, under the provisions of Art. 7345b directed only a sale of the property in satisfaction of the sum total of taxes so established, with statutory right of redemption, the valúe of such security at the time being adjudged at $150,000. Mrs. Thomas died testate July 22, 1939, her will later probated, and three named daughters, on November 18, 1939, duly qualified as independent executrices of said estate. On November 28, 1939, plaintiffs, obviously proceeding under the terms of Art. 3779, R.S., filed affidavit of death as to Mrs. Emma E. Thomas (without naming the representatives of her estate), and thereafter, January 13, 1940, caused issuance of a writ with purported levy by the sheriff on the real estate in question, for sale the first Tuesday in February following. No steps other than just mentioned were taken to connect the executrices of the estate with such sale under the original foreclosure judgment, which latter instrument recited the property in suit to have been separately owned by Mrs. Emma E. Thomas.

Upon hearing of a motion by the executrices to quash the January order of sale and levy thereunder, the same was sustained and the writ ordered returned into court without further execution; the court being of the opinion, “that the original judgment in this cause is a money judgment against the said Mrs. Emma E. Thomas, who has died subsequent to the rendition of said judgment, that the property described in the order of sale, such being the only writ and such.property being the only property involved in this proceeding in anywise, belongs to the estate of the said Mrs. Emma E. Thomas, deceased, and that no execution or order of sale may legally issue under said judgment as against said property until such judgment has been revived according to law.”

In a regular administration, all claims for money must be allowed by the administrator and approved by the Judge; but, even when so approved, there is no provision in the probate laws requiring a claim, secured or unsecured, to be paid until after twelve months; or authorizing a forced sale of the security within such time. Similar protection is afforded property administered by an independent executor (authorized by Art. 3436). The succeeding Article (3437) requires: “Any person having a debt or claim against the estate may enforce the payment of the same by suit against the executor; and, when judgment is recovered against the executor, the execution shall run against the estate of the testator in the hands of the executor that may be subject to such debt. The executor shall not be required to plead to any suit brought against him for money until after one year from the date of the probate of such will.”

I must dissent from the majority in their reversal and rendition of the trial court’s above action, as, in my judgment, the undisputed facts herein make applicable the terms of Arts. 3778 and 3437 (instead of 3779). Therefore, appellees’ counter proposition should have been sustained, viz.: “It appearing that the judgment in this cause was a money judgment as against Mrs. Emma E. Thomas, the owner of the property upon which the lien was foreclosed and which was ordered sold for the satisfaction of such judgment, and that she has died since the rendition of such judgment, no execution or order of sale may issue under said judgment as against the property of her estate. Hence the court properly quashed the writ.”

My Associates have held, in effect, (a) That a judgment rendered in favor of taxing units against a person during her lifetime which, so far as one of such units is concerned, is an ordinary personal judgment for the amount of the real property taxes enforceable by execution; and which, so far as all are concerned, is a judgment establishing the defendant’s indebtedness for the amount of real property taxes due, foreclosing their lien on such real estate for such amounts, and ordering a sale in satisfaction thereof, is not a money judgment within the contemplation of Articles 3778 and 3779. (b) That such a judgment, after the death of the defendant and administration on her estate, is in no sense a debt or claim against the estate of such decedent within the contemplation of our laws regulating the administration of a decedent’s estate, (c) That such a judgment, after the death of the defendant and administration on her estate, may be enforced by execution thereunder against the property in the hands of the executrices of the estate, without a revival as against them, where such estate is being administered independent of the probate court, (d) That the record discloses the property to have been the homestead of Mrs. Thomas at the time of her death and that, though it was encumbered with a constitutional lien securing the payment of taxes due thereof:, it was not subject to the control of or administration by her executrices.

The nature of this appeal is such that it is doubtful whether our Supreme Court will entertain jurisdiction by way of error. A brief but categorical answer to the above conclusions of the majority is deemed sufficient. In consequence, generous use has been made of appellees’ propositions, argument, and authorities.

(1) The judgment involved is a money judgment within the contemplation of Arts. 3778 and 3779; Vol. 2 Bouv.Law Dict., Rawle’s Third Revision, page 2240 (Baldwin’s Ed., page 815) ; Words & Phrases, Title “Money Judgment”; Lippincott v. Taylor, Tex.Civ.App., 135 S.W. 1070, writ refused; Cole v. Lewis, Tex.Civ.App., 159 S.W. 180.

(2) The judgment is a debt or claim against the estate of Mrs. Thomas within the meaning of our laws governing administration of estates (both ordinary and independent). 14 Tex.Jur., Decedents’ Estates, pp 128, 131; Allen v. Reilly, 62 Tex. Civ.App. 624, 131 S.W. 1152; Whitmire v. May, 96 Tex. 317, 72 S.W. 375; White Co. v. Stout, Tex.Civ.App., 102 S.W.2d 1065; Jenkins v. First Nat. Bank of Coleman, Tex.Civ.App., 101 S.W.2d 845; Alamo Nat. Co. v. Key, Tex.Civ.App., 114 S.W.2d 931.

(3) No execution on the judgment may legally issue against the property in the hands of the executrices without a revival against them, even though they are acting independent of the court. Cook v. Sparks, 47 Tex. 28; Bynum v. Govan, 9 Tex.Civ.App. 559, 29 S.W. 1119; Govan v. Bynum, 17 Tex.Civ.App. 180, 43 S.W. 319; City Central Bank & Trust Co. v. Jackson, Tex.Civ.App., 45 S.W.2d 433. The case of Taylor v. Williams, supra, is relied upon by the majority as controlling; but I consider the rule there announced to be in no sense applicable here. That decision dealt only with a creditor’s right to extra judicial remedy (sale by trustee under deed of trust, without resort to court or its processes).

(4) This homestead estate is subject to the control of and administration by the executrices, since it is encumbered with a constitutional debt or lien. Federal Land Bank v. Tarter, Tex.Civ.App., 86 S.W.2d 523; Connor Bros. v. Williams, 130 Tex. 572, 112 S.W.2d 709; Britton v. Wilson, Tex.Civ.App., 101 S.W.2d 889; Hinton v. Uvalde Paving Co., Tex.Civ.App., 118 S.W.2d 317, writ refused; Lovejoy v. Cockrell, Tex.Com.App., 63 S.W.2d 1009.

(5) But even assuming there could be no administration on the property by reason of its being homestead, Fleming v. Ball, 25 Tex.Civ.App. 209, 60 S.W. 985, writ refused, is to the effect that a sale of real estate under a foreclosure judgment against a decedent was void, without a revival thereof as against his heirs, though no administration had ever been opened, and the time for such had expired.

The above briefly presents my views for which this -cause should be affirmed.


author: WALTHALL, Justice. •

text:
    HOOKS v. HOOKS.
    No. 3925.
    Court of Civil Appeals of Texas. El Paso.
    March 21, 1940.
    Sidney P. Chandler, of Corpus Christi, for plaintiff in error.
    LeGrand J. Woods, of Corpus Christi, for defendant in error.
   WALTHALL, Justice. •

Plaintiff in error brought this suit against defendant in error for divorce, for the custody of their two children, for support and maintenance of the children, to have the homestead set apart for use of plaintiff in error and the children, for attorney’s fees, and general relief.

The grounds alleged for divorce are general' acts of cruelty toward her, and tnat defendant in error threatened her with a pistol. Defendant in error filed an answer and a cross action. The case was tried without a jury, the court by decree dissolved the bonds of matrimony existing between - plaintiff in error, and defendant in error, adjudged that plaintiff in error recover of defendant in error an attorney’s fee, stating the amount, adjudged that plaintiff in error have, until the further order of the court, the care and custody of the two minor children; that plaintiff in error have possession of and occupy the homestead until the further order of the court, together with all rents and revenues received from the home, which the evidence shows' she rented at $40 per month; ordered that plaintiff in error keep the home reasonably insured and pay the insurance, taxes and upkeep of the home; ordered and decreed that defendant in error pay to the clerk of the court, at the times stated, the sum of $15 each month for the support of the two children, one boy two years old, and one boy six years old, the payments to continue until the boys shall have reached the age of sixteen years, or until the further order of the court; and made order as to reports to be made by plaintiff in error of the use made of such money.

As we understand from the record and from the briefs of plaintiff in error and defendant in error, no complaint is made of the decree granting the divorce or of any of the above awards made by the court. We will not therefore discuss the judgment of the court in granting the decree for divorce or making the above awards, nor in the judgment that defendant in error take nothing by his cross action.

Plaintiff in error submits that the sum of $15 per month awarded for the support of the two minor children is not a sufficient amount for that purpose; that under the facts shown as to the amount of money earned by defendant "in error per month the sum of $50 per month for the support of the children should have been awarded, and that it was error not to award $50 per month.

The case was tried by the court without the aid of a jury. The court made no finding of fact, and in considering the issues presented here we recognize that in doing so we are acting in the. capacity of a reviewing court, and that we may revise the acts of discretion of the trial court in a divorce proceeding in the event only where the record shows a clear abuse of discretion.

While it is the legal as well as the moral duty of both parents to support their offspring, such duty rests principally upon the father. He is not absolved nor discharged from such duty though he may be divorced from the mother, nor though such mother may have exclusive custody and control of the child. Hartman v. Chumley, Tex. Civ.App., 266 S.W. 444, 446; Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A. L.R. 564.

The amount which the father may be required to provide in support of the child or children is measured by his financial and social status and not by the situation of the divorced wife in whose custody the children are placed. Gully v. Gully, supra; Butler v. Butler, Tex.Civ.App., 265 S.W. 415.

The record shows that the defendant in error was a peddler or salesman; khat he sold from his truck practically nothing but tobacco and cigarettes.

The court, in the division of the community property (.and there was no other), gave to defendant in error a 1936 model Dodge panel truck valued at $350, and whatever merchandise, if any, was in the truck. The household furniture was given to plaintiff in error and the right to occupy the home. It appeared the wife had the home rented and was realizing therefrom about the sum of $40 per month. There was some controversy in the evidence as to what was in the truck and its value. The evidence was such that the court would be reasonably justified in finding, under the circumstances shown, that there was no merchandise in the truck at that time. The evidence was such that the court would have been justified in finding that defendant in error had no established, going or fixed business; the evidence shows the defendant in error sold his goods from his truck on' a three per cent commission.

The evidence sufficiently shotvs, we think, that at the time of the divorce defendant in error owed several hundred dollars, of the community debts, and that the monthly net earnings from his business would average from $57 to $86.08.

Under the evidence this court would not be justified in increasing the monthly amount fixed by the trial court; especially is this true in view of the fact that this is a matter resting within the future control of the trial court. Hays v. Hays, Tex.Civ.App., 123 S.W.2d 968.

We have reviewed the assignments not discussed, and they are each overruled. 1

Finding no reversible error the case is affirmed.


author: MURRAY, Justice.

text:
    DUBOSE et al. v. AINSWORTH, Mayor.
    No. 10656.
    Court of Civil Appeals of Texas. San Antonio.
    March 6, 1940.
    Rehearing Denied May 1, 1940.
    Miller & Miller, of Gonzales, for appellants.
    Willis W. Ellison'and Denver E. Perkins, both of Gonzales, for appellee.
   MURRAY, Justice.

This is an election contest involving an election held within the City of Gonzales, Texas, a municipal corporation, on. the 30th day of September, A. D. 1938, for the purpose of determining whether or not the City should be authorized to issue revenue bonds in the amount of $125,000, to provide funds to build and purchase a city lighting and power system.

The election returns reflected that 302 votes had been cast in favor of the proposition and 274 votes against it, and an order was entered declaring that the proposition submitted had carried.

The contestants, C. E. DuBose and M. S. Spooner, as electors and property taxpaying citizens of said City, instituted this contest, naming: as contestee S. M. Ains-worth, as Mayor of the City of Gonzales.

The trial court, after striking out some illegal votes on both sides, declared the result to be 276 votes for and 263 votes against the proposition submitted, and also declared the bonds carried.

Contestants have prosecuted this appeal.

Appellants’ first two propositions present the contention that the following named persons, who voted at such election, to-wit: John Sedlacek, W. M. Sedlacek, John A. Romberg, J. S. Cleveland, Zilmon Hinton, Geo. H. Kerr, Mike Ara, Wash Talley, Charles Ferrell, Mrs. Sarah Beall, Carey Fleda Hoskins, Raguet Hoskins, John L. Piwetz, J. H. Veach, Mrs. J. H. Veach, Mrs. John Sedlacek, Elizabeth Sedlacek and Mabel Gardien, were not qualified electors who own taxable property in the City of Gonzales, and who had duly rendered the same for taxation as is required by Section 3a of Article 6, of the Constitution of the State of Texas, Vernon’s Ann. St., in that they had not rendered their property prior to April 1, 1938,-and had not rendered same until after the board of equalization had adjourned.

Article 1043, R.C.S.1925, reads as follows: “Each person, partnership and corporation owning property within the limits of the corporation shall, between January first and April first of each year, hand to the city assessor and collector a full and complete sworn inventory of the property possessed or controlled by him, her or them, within said limits on the first day of January of the current year. If the fiscal year of a municipal corporation runs otherwise than the calendar year, such corporation may by ordinance require said inventory to be made as of the first day of such fiscal year, in which case the inventory shall be handed to the city assessor and collector within the first three months of the fiscal year. (As amended Acts 1934, 43rd Leg., 3rd C.S., p. 50, ch. 27, § 1.)” Pocket Part Vol. 2, Vernon’s Annotated Statutes, art. 1043.

The City of Gonzales has a City ordinance making it a penal offense to not render property as required by Article 1043, supra.

The question here presented is whether or not the requirement of Article Í043, supra, that property must be rendered during the first three months of the fiscal year of the city, is directory or mandatory.

The Court of Civil Appeals for the First Supreme Judicial District, in Gus A. Markowsky et al., v. J. T. Newman et al., 138 S.W.2d 896, certified this question to the Supreme Court, and in an opinion by the Commission of Appeals, Sec. B., 136 S.W. 2d 808, 814, delivered on February 21, 1940 (and not yet [reported in State Reports]), secured the following answer, to-wit: “With reference to the third question, ‘Is R.S. Article 1043 mandatory, or merely directory?’ we answer in accordance with our conclusions above expressed that the Article 1043, with reference to time of rendition of property is directory. It must be understood that our answer to the third question is limited to the time element of the statute, because the facts of this certificate have only placed that question before us.”

Upon this authority appellants’ first two propositions will be overruled.

By their third proposition appellants contend that the above named persons did not render their property in good faith, but only rendered property of small value for the purpose of qualifying themselves to vote in this election. The amount of property rendered, or the motive prompting the voter to render his property is immaterial in determining whether the requirements of Section 3a, Article 6, of the Constitution has been complied with by a property owner. This proposition is overruled.

By their fourth proposition appellants challenge some twenty-three votes because such voters did not in person, or by agent render their property, but such property was merely placed upon the assessment rolls in their names by the assessor.

We overrule this proposition upon the authority of Texas Public Utilities Corporation v. Holland, Tex.Civ.App., 123 S.W.2d 1028, and Campbell, Mayor, v. Wright, Tex.Civ.App., 95 S.W.2d 149.

By their fifth proposition appellants contend that the City ordinance of the City of Gonzales, making it a penal offense to fail or refuse to make such rendition as is provided for in Art. 1043, supra, is sufficient to make Art. 1043 a mandatory provision rather than a directory provision of the statutes. We overrule this contention as being without merit.

By propositions 6, 7, 8, 9 and 10, only six votes are challenged and should all of these be sustained they would not be sufficient to change the result of the election, which, according to the judgment of the trial court, was carried by thirteen votes. These propositions are therefore rendered immaterial.

The judgment is affirmed.