author: KRUEGER, Judge. HAWKINS, Presiding Judge.

text:
    HART v. STATE.
    No. 20977.
    Court of Criminal Appeals of Texas.
    April 24, 1940.
    Rehearing Denied June 28, 1940.

      L. V. Abernathy, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of a cow. The punishment assessed is confinement in the state penitentiary for a term of two years.

The State’s testimony, briefly stated, shows that in the early part of the year 1938,'J. M. Dillingham owned a cream colored Jersey cow bearing an “H” brand on the left thigh. About the first day of April of said year, he had the cow placed in the pasture of the Rio Bravo Oil Company, where she remained for a while, but in the course of a few months she, in some manner, got into what is known as the Texas pasture. Fred Cox, who lived on or near the Texas pasture, saw the cow and recognized her as a stray. He informed appellant of a stray cow being in there. Appellant came out, inspected the cow and told Cox that about two years ago he had lost two or three cows which were branded “H” on the left hip and this cow, the one in question, was one of those he had lost. Appellant sold the cow to Cox. who later sold her to Mr. Miller of Electra. When appellant sold the cow to Cox, he gave Cox á bill of sale and Cox paid for the cow by giving a check payable to the appellant. Both instruments were introduced in evidence.

Appellant did not testify or offer any testimony raising an affirmative defense. He filed a plea for the suspension of sentence in case of a conviction and proved a good reputation as a law-abiding citizen by a number of witnesses.

By Bill of Exception No. 1 appellant complains of the manner of selecting a jury. The bill shows that 65 men were drawn for jury service for the different courts, seven of whom resided at Electra. That out of the 65 men, 36 were summoned as prospective jurors in this case but none of them were from Electra. That five of the said 36 were disqualified, leaving only 31 prospective jurors. Thereupon, appellant moved to quash the jury panel on the ground that he was deprived of his constitutional right to have a jury of fair men equally distributed throughout the county; that he be tendered a full panel as provided by the Constitution and laws of Texas before beginning the selection of a jury. This the court declined. We think that a mere reference to Sec. 10 of Art. 2116b and Articles 2140 and 2150 of Vernon’s Ann.Civ.St. is a sufficient answer to appellant’s contention.

Bill No. 2 complains because the District Attorney inquired of the witness, Dillingham, when the cattle were placed on the Rio Bravo Lease, whether the farm boss was responsible for them, to which the witness replied, “No, sir, I don’t think so.” Appellant’s objection thereto was that it was hearsay, immaterial, irrelevant and prejudicial. We are unable to perceive how the answer prejudicially affected any of the appellant’s legal rights in view of the answer by the witness.

Bill No. 3 is without merit. The bill of sale transferring the title to the cow to Cox was 'admissible in evidence as a circumstance showing the sale of the cow by appellant to Cox.

Bill No. 4 complains of the introduction in evidence of the check which Cox gave to the appellant in payment for the cow. This was also admissible for the same reason stated in our disposition of Bill No. 3.

Bill No. 5 reflects the following occurrence : After Pat Simmons, a bank official, had given testimony as an expert on handwriting, the witness Parish was called and testified as follows: “The last time we had a handwriting expert from the State Department of Safety here I was talking to him and he told me that the department was going to discontinue the handwriting expert.”

Appellant objected to said testimony on the ground that it was hearsay, irrelevant, immaterial and highly prejudicial. The objection was overruled and appellant excepted. Th'e court qualified the bill and in his qualification stated that the witness Parish, who had preceded the witness Simmons, upon being cross-examined by Mr. Abernathy, appellant’s attorney, was asked the following question: “Well, you know, as a matter of fact, they do; they have men down there on straight time who are experts in handwriting, ballistics and other technical subjects?” To which the witness replied: “Yes, sir. I have heard that and I heard this cut was going to take away the handwriting department. I don’t know whether it has or not, but I was informed of that.”

It is apparent from the court's qualification of the bill, to which no exception was taken, that appellant was rather persistent in ascertaining why the State did not get a handwriting expert from the .Department of Public Safety. He first entered upon an inquiry of the subject and elicited in substance and effect the same testimony as that to which he objected and of which he now here complains. This court has repeatedly held when testimony is introduced without oh-jection, which is in effect similar to that objected to, no reversible error is shown. See Sparkman v. State, 128 Tex.Cr.R. 627, 82 S.W.2d 972, and authorities there cited.

Bill of Exception No. 6 shows that after the witness Allen had testified to appellant’s good reputation as a law-abiding citizen in support of his plea for a suspension of sentence, he was asked on cross-examination if he had not heard that he, appellant, went out in a supply house out in K.M.A. and saw some people shooting dice and told them that if they didn’t pay him $2 a piece to apply on a radio that he was buying he was going to run them in and fine them for gambling. To which the witness replied, “Yes, sir, I have heard that.” Whereupon appellant in due time objected. While specific acts of misconduct are not admissible to prove the general reputation of the accused on trial, however, where he has filed a plea for a suspension of sentence and introduced witnesses who testified to his general good reputation as a law-abiding citizen, the State may, on cross-examination of said witnesses, inquire of them if they had not heard of specific acts of misconduct on the part of the accused for the purpose of testing the sincerity of their testimony and the weight to be given thereto. See East v. State, 107 Tex.Cr.R. 460, 296 S.W. 883; Turner v. State, 109 Tex.Cr.R. 301, 4 S.W.2d 58; Jones v. State, 110 Tex.Cr.R. 190, 8 S.W.2d 169.

Bill of Exception No. 7 shows that appellant offered Mrs. Hart, his wife, as a witness and offered to prove by her that he, the accused, during all of their married life had been kind and affectionate, etc. We fail to see how this testimony was relevant on the issue of theft or his plea for a suspension of sentence.

By Bill of Exception No. 8 appellant complains of the court’s action in declining to submit his special requested instruction on the law of accomplice. The bill reflects that appellant requested the court to submit to the jury the question of whether Fred Cox, the person who purchased the cow in question from appellant, was an accomplice. If there had been any evidence from which the jury might have reached the conclusion that Cox was an accomplice, then his contention would have been well founded, but we fail to find any evidence in the record which authorized or required such an instruction.

We have carefully considered all matters complained of in Bills of Exception Nos. 9, 10 and 11 and have reached the conclusion that not any of them reflect reversible error. A separate and extended discussion thereof would only lengthen this-opinion and serve no useful purpose.

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

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Presiding Judge.

In his motion for rehearing appellant insists that the evidence exhibits a variance in that it is alleged in the indictment that the stolen animal was taken from the possession of its owner Dillingham, whereas it is claimed that the evidence shows it was taken from Fred Cox. Appellant cites us to Tinney v. State, 24 Tex.App. 112, 5 S.W. 831, and Williams v. State, Tex.Cr.App., 51 S.W. 904, as supporting his contention, We think the facts are such that the cases mentioned are not controlling. Dillingham had placed his cow in a pasture controlled by the Rio Bravo Oil Company. She had gotten out of that pasture and into another one where Cox was employed as an oil field worker. He recognized the cow as an estray and made inquiry of appellant as to whether he knew the owner, describing the cow to appellant, who told Cox he thought the cow belonged to him (appellant) and that he would come look at her. Cox placed the cow in his lot in order that appellant might see her. When appellant saw the cow he claimed her as belonging to him and sold her to Cox. The latter made no claim to the cow until after the purchase from appellant. Prior to that time Cox was exercising no such control or management of the animal as would constitute him the special owner. On the other hand, he recognized her as an estray belonging to some party unknown to him. Under the facts we are of opinion Dillingham was in constructive possession of the animal, and that the sale to Cox by appellant was a taking from Dillingham’s possession.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: CHRISTIAN, Judge. KRUEGER, Judge.

license: Public Domain

text:
    ROBINSON v. STATE.
    No. 20931.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 26, 1940.
    Bert G. Ashby, of Dallas, for appellant.
    Lloyd W- Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

. The offense is murder; the punishment, confinement in the penitentiary for ten years.

It was alleged in the indictment, in substance, that appellant, with malice aforethought, killed Bertha Ross by shooting her with a’ gun.'

The homicide occurred during the afternoon of June 20, 1937. Witnesses for the state testified that appellant shot deceased with a shotgun; that at the time appellant shot deceased deceased was making no demonstration of any character; that deceased was standing across the street about ten feet from appellant when appellant shot her.

According to appellant’s testimony, she and deceased had had a quarrel over some whisky several hours prior to the homicide. At that time deceased cursed her. Deceased’s companion, Bud Young, threw her (appellant) on the bed and beat her. She reached under her pillow and grabbed her pistol, but Bud Young took the pistol away from her, and he and deceased left the scene of the difficulty. Appellant testified further that several hours later she was on the porch of her home when she oh-, served deceased walking across the street; that deceased said as she approached, “I am going to kill that G- d- s-of a b-that as deceased approached she (appellant) entered the house and hooked the screen door ; that she told deceased not to come any closer, but deceased continued to advance; that as deceased came through the gate, saying that she was going to kill her, she (appellant) opened the screen door and shot deceased. Appellant testified that it was her purpose, in shooting at deceased, to scare her.

Witnesses for the state testified that deceased was not armed at the time she was shot.

Appellant leveled no exceptions at the charge of the court.

The record embraces three bills of exception which appear to have been filed November 22, 1939. The motion for new trial was overruled September 25, 1939, and on the same date appellant gave notice of appeal, and was duly sentenced. No order was entered at the time the motion for new trial was overruled granting an extension of time to file bills of exception. The term at which appellant was convicted continued for more than eight weeks. Under such circumstances, the bills of exception are required to be filed within thirty days after “final judgment” 'unless the time be extended by the order of the court. Subdivision 5,. Article 760, Vernon’s C.C.P.; Ibeck v. State, 112 Tex.Cr.R. 287, 16 S.W.2d 232. This provision of the statute, without an order of court, carried the time forward thirty days from the date of sentence —that is, thirty days from September 25, 1939 — and expired October 25, 1939. On the date last mentioned appellant was granted fifteen days from such date in which to prepare.,and file her bills of exception. This extension order carried the time to November 9, 1939, and if filed on that date appellant's bills would be entitled to consideration. On November 10th, the next day after the extension expired, the court undertook to grant a further extension. At the time this order was made the court was without power to grant further extension, in view of the fact that such order was made after the expiration of the prior extension. Ibeck v. State, supra, and authorities cited.

It follows from what we have said the bills of exception were filed too late, and therefore cannot be considered.

We deem the evidence sufficient to support the judgment of conviction.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing

KRUEGER, Judge.

Appellant has filed a motion for rehearing supported by the affidavit of her attorney to the effect that she applied to the trial court on the 9th day of November, 1939, for an extension of time within which to file the bills of exception and statement of facts. While the statement of facts, as the same appears in the record here, fails to show that it was filed with the clerk of the trial court, still it was forwarded to this court by the District Clerk and was filed by the clerk of this court on the 26th day of December, which was 92 days after the order of the court overruling the motion for a new trial. The- clerk made an affidavit stating that if the statement had not been filed with him, he would not have forwarded it to this court., If the statement of facts was really handed to the clerk for filing, it was in contemplation of the law filed, and it must have been filed prior to the 24th day of December, because the 25th was Christmas Day. It was filed in this court on the 26th day of December, which was the day after Christmas. Consequently, it must be assumed that the statement of facts was filed within the 90-day period. However, the bills of exception present an entirely different question. Appellant was granted fifteen days from the 25th day of October, within which to file the bills of exception. This time expired on the 9th day of November, and the order of the court showing further extension is dated the 10th day of November, as shown by the record, which is one day too late. Of course, appellant seeks to controvert the record by an ex parte affidavit stating that in truth and in fact the order of extension was granted by the court on the 9th day of November. This dehors the record. If he had an affidavit from the court stating that through mistake or inadvertence an error was made in the date as to when the extension was actually made, .then a, different question might be presented, but under the* conditions in which the record is before us, we cannot consider the bills. Even if we should consider the bills, they are all qualified by the court and as qualified they fail to present reversible error. See 4 Tex.Jur., p. 469, § 327; Mathason v. State, 89 Tex.Cr.R. 136, 229 S.W. 548.

The motion for rehearing is overruled.

PER CURIAM

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


author: KRUEGER, Judge.

text:
    BALLEW v. STATE.
    No. 20962.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 28, 1940.
    Jas. C. Mahan, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The testimony adduced by the State,briefly stated, shows that in the early part of the night the officers overtook appellant in his car going in the direction of the negro section of the town of Memphis. They stopped him, searched his car for whisky and found two pints which they placed in the officers’ automobile. Appellant reached in the car, took the whisky and threw it in the weeds. One of the officers knocked appellant down. Appellant arose from the ground and while the officers were engaged in looking for the whisky he made his escape, leaving his automobile in possession of the officers. The officers took the automobile to the jail yard and parked it. They then proceeded to appellant’s home, which was located in a garage apartment, for the purpose of searching it. While some of the officers were on the small platform at the head of the stairway asking to be admitted, they heard glass breaking. Not receiving any response to their request, they decided to break a window pane, unlock the window and enter the building. While the officers were thus engaged, some one fired upon them from behind a utility pole standing sixty or seventy feet away, and one of the officers returned the fire and saw a man run away from behind the pole whom he recognized as the -appellant. One of the officers was struck by a bullet in the arm and another one was struck by a bullet in the leg.

Appellant testified that he was in his -home breaking whisky bottles and running the contents into the bath-room drain at the time the officers were attempting to-gain entrance to his home and the shooting took place. That after the shooting he left his home by going through the east window and descending to the ground. In this he was corroborated by his wife.

Appellant also proved by a negro, who occupied a room in the lower part of the garage, that after the. shooting he asked one of the officers if he knew who did the shooting, to which the officer replied that he did not. •

Bill of Exception No. 1 reflects the following occurrence: While Edd Mc-Creary was being cross-examined by appellant’s counsel, he was asked if he knew a negro by the name of Fenner and if Fenner did not owe a fine for bootlegging? If they, the officers, had not made arrangements with Fenner that if he, Fenner, would entice the appellant over to his place so that they might arrest appellant they' would relieve him from the payment of the fine. And if, pursuant to said agreement, Fenner had not informed them, the officers, ' that appellant would be there that night with some whisky? To all of which the State objected and the objection was sustained. The bill further shows that if the witness had been permitted to answer said questions, he would have answered them in the- affirmative. The bill is qualified by the court, who states in his qualification that the defense attorney asked whether the witness had agreed with the negro Fenner “if he would help you catch Raymond Ballew you would turn him, Fenner, loose”. To which the witness answered: “Not with me, he didn’t have.” To this qualification no exception was taken; hence appellant is bound thereby. The bill as thus qualified fails to reflect reversible error.

Bill No. 2 reflects the following occurrence: After appellant had testified that he was in his home at the time of the shooting and did not do the shooting, he undertook to further testify that after the shooting he had a conversation with Dr. E. H. Boaz of Memphis, Texas, who admitted that he, Boaz, did the shooting but declined to come into court and testify to said fact because he did not want to get into trouble. The State obj ected thereto, the court sustained the objection and refused to let said testimony go to the jury. The court qualified this bill and in his qualification states: “There is no testimony in the record or offered that Boaz was at the scene of the shooting or even in town, outside of the alleged admission of Bóaz to the defendant. Moreover, Boaz was under process- and available as a witness,” etc.

It seems to be the rule in this State that when the State relies'upon circumstantial evidence alone to establish the guilt of the accused', the declarations of a third party admitting that he committed the offense are a proper matter of proof. See Stone v. State, 98 Tex.Cr.R. 364, 265 S.W. 900. But the record in this case, in our opinion, does not bring the proffered testimony within the rule announced. In the case at bar, the State did not seek to establish the appéllant’s guilt by circumstances but by eye-witnesses. See Hodge v. State, Tex.Cr.App., 64 S.W. 242; Burkhalter v. State, 93 Tex.Cr.R. 504, 247 S.W. 539, 124 Tex.Cr.R. 52, 546; Proctor v. State, 114 Tex.Cr.R. 383, 25 S.W.2d 350; Stinson v. State, 60 S.W.2d 773.

Appellant addressed a number of objections to the court’s charge and particularly to Paragraph 9 thereof on the ground that said charge is ambiguous, confusing and- calculated to mislead the jury in that it required the jury to find, beyond a reasonable doubt, that the assault, if any, was made without malice, thereby placing a greater burden on the defendant than the law requires, etc. Looking to Paragraph - 9 of said charge, we find that after the court had instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that on or about the 10th day of November, 1937, the defendant, in Hall County, Texas, did make an assault upon C. B. Hume with the specific intent to kill the said Hume at the time and place alleged in the indictment, .and if they further find from the evidence that the defendant was actuated and prompted in so doing, if he did, by his malice aforethought, etc. The court, however, in connection therewith, in the same paragraph, instructed the jury as follows: “If you further find and believe from the evidence beyond a reasonable doubt that the defendant did at the time and place as alleged in the indictment make an assault on the said C. B. Plume with the specific intent then and there to kill the said C. B. Hume and that such ■an assault, if any, was made without malice as that term has been defined in this charge, then you will find the defendant guilty of an assault- with intent to murder without malice and assess his punishment at confinement in the penitentiary for not less than one year nor more than three years, but if you should fail to so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you cannot convict the defendant of an assault to commit murder without malice, but you may then consider in your judgment whether the defendant is guilty or not of the offense of aggravated assault under the law as herein given.”

Appellant contends that the instruction required the jury to find and believe from the evidence beyond a reasonable doubt, not only that he made an assault with the specific intent to kill, but also that he did it without malice. It occurs to us that this charge is erroneous, because if the jury believed from the evidence beyond a reasonable doubt that appellant made an assault upon C. B. Hume with the specific intent to kill him, but entertained a doubt as to whether it was without malice, then what were they to do? They were then driven back to the instruction on the law of an assault with intent to murder with malice, because having found that he made the assault with the specific intent to kill, they could not convict him of an aggravated assault and battery even though they failed to find beyond a reasonable doubt that he made the assault without malice. Therefore, the jury had to go look elsewhere for a guide to lead them out of the maze of legal entanglement, and the only recourse they had was to go back to the charge on the law of an assault to murder with malice, and this they may have done inasmuch as the conviction was- for an assault to murder with malice.

After a careful inspection of Paragraph 13, we reached the conclusion that it should be simplified by omitting, “as you may find from the evidence”. A plain simple instruction as to the law applicable to the case without being coupled with too much verbiage will avoid confusion and relieve the courts of much trouble.

From what we have said it follows that the judgment of the trial court should be reversed and the cause remanded, and it is so ordered..

PER CURIAM.

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


text:
    BALLEW v. STATE.
    No. 20961.
    Court of Criminal Appeals of Texas.
    May 8, 1940.
    Rehearing Denied June 28, 1940.
    James C. Mahan, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for an assault with intent to murder without malice. The punishment assessed is confinement in the State penitentiary for a term of two years.

This is a companion case to that of Raymond Ballew v. State of Texas, 141 S.W.2d 654, this day decided. The facts in the present instance are identical with those in that case, and the same questions are presented here as therein. However, the jury, in cause No. 20,962, found appellant guilty of an assault to murder with malice while in the instant case they found him guilty of an assault to murder without malice.

In this case as in that case appellant complains of paragraph 9 of the court’s charge which is alike in verbiage in both cases. However, since the jury found him guilty in this case of an assault to murder without malice, the same ground for a complaint does not exist as in the other case wherein he was convicted of said offense with malice. His contention seems to be that notwithstanding the jury found him guilty in this case of an assault to murder without malice, the charge, nevertheless, reflects reversible error in that it does not apply the law of reasonable doubt between the instruction on the law of murder without malice and that of aggravated assault. For the purpose of demonstrating the incorrectness of appellant’s contention, we quote the pertinent parts thereof: “But if you should fail to so find beyond a reasonable doubt, (meaning appellant’s guilt of murder without malice) you cannot convict the defendant of an assault to commit murder without malice, but you may then consider * * * whether the defendant is guilty or not of the offense of aggravated assault under the law as herein given you.”

We are of the opinion that the foregoing instruction means that unless the jury believed from the evidence, beyond a reasonable doubt that appellant was guilty of an assault with intent to murder without malice, then to consider whether or not he, was guilty of an aggravated assault, followed by an instruction on the law thereof. This gave the jury an adequate guide by which to determine from the evidence of which offense, if any, appellant was guilty.

We do not deem it necessary to here discuss the other questions presented inasmuch as we have discussed them in the other case to which reference has been made.

While the court’s instruction relative to alibi is more verbose than necessary, still we do not see how the jury could have been misled thereby. The court’s charge, when stripped of unnecessary verbiage, in effect told the jury that if they believed from the evidence that at the time and place of the alleged assault the defendant was inside of the house in which he resided or elsewhere and not in the alley behind the utility pole and therefore was not and could not have been the person who made said assault, or if they had a reasonable doubt thereof, to acquit him. This, it appears to us, was sufficient to direct the jury what to do in case they believed from thé evidence that at the time of the alleged assault appellant was not behind the utility pole, but in his home or elsewhere, or if they had a reasonable doubt thereof, to acquit him.

Having reached the conclusion that no error of a reversible nature is reflected by the record, the judgment of the trial court is affirmed.

PER CURIAM.

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


author: STOKES, Justice.

text:
    TAYLOR v. SULOCH OIL CO. et al.
    No. 5143.
    Court of Civil Appeals of Texas. Amarillo.
    April 8, 1940.
    Rehearing Denied May 27, 1940.
    Further Rehearing Denied June 24, 1940.

      Tom L. Beauchamp, Jr., and Wheeler & Wheeler, all of Austin, for plaintiff in error.
    W. S. Birge, of Amarillo, for defendants in error J. L. Sullivan, G. E. Sullivan, Betty K. Sullivan Garnett, and Bevery C. Garnett.
    Underwood, Johnson, Dooley & Wilson, of Amarillo, for defendant in error Suloch Oil Co.
   STOKES, Justice.

This is a garnishment proceeding instituted by plaintiff in error against defendant in error, Suloch Oil Company, a corporation, in which plaintiff in error seeks to subject certain capital stock of the corporation which he alleges belongs to J. L. Sullivan to the payment of a judgment theretofore procured by him against Sullivan in the district court ' of Tarrant County. The garnishment proceeding was instituted in a district court of Tarrant County but afterwards transferred to the district court of the 108th judicial district of Potter County where it was tried on the 14th of November, 1938. A jury was empaneled to try the case but at the close of the testimony the parties agreed that the jury might be discharged and the issues decided by the trial judge who, on the 5th of January, 1939, rendered judgment in favor of the garnishee, denying plaintiff in error any relief. Plaintiff in error duly excepted to the judgment, gave notice of appeal, and has brought the case to this court by means of a writ of error.

The record reveals that the Suloch Oil Company was organized as a Texas corporation in April, 1930, with a capital stock of $10,000, divided into one thousand shares of $10 each. At the time of the organization the capital stock was subscribed by W. S. Birge, J. L. Sullivan and G. E. Sullivan, the latter being the wife of J. L. Sullivan, but during the year 1930 the ' original stock was surrendered and the capital stock reissued, Mrs. Sullivan taking 490 shares, J. L. Sullivan 10 shares, and Chuck Ochil-tree taking 500 shares. On October 28, 1933, Sullivan and his wife gave to their daughter, Betty K. Sullivan, the 10 shares held by J. L. Sullivan and a new certificate was issued to the daughter, although it was not delivered to her but held by the company pending the return and cancellation of the former certificate. Plaintiff in error contends that the capital stock held by Mrs. Sullivan was community property, therefore, subject to the writ of garnishment, and that the 10 shares held by the daughter was also subject to the writ because, he alleges, that at the time it was given to her, J. L. Sullivan was insolvent and did not have property remaining in his hands sufficient to pay his outstanding obligations. He alleges that the gift was, therefore, void and that the entire 500 shares of the capital stock held by the Sullivans being subject' to the writ of garnishment, the court erred in rendering judgment against him thereon.

The controlling issue in the case is presented by the first proposition of law asserted by plaintiff in error to the effect that the uncontradicted evidence shows that Mrs. Sullivan acquired the capital stock during the coverture of herself and J. L. Sullivan, and the presumption arises that it was community property and subject to the writ of garnishment. He contends in this connection that there was no evidence in the case of sufficient probative force to rebut this presumption.

The testimony shows that, prior to her marriage, Mrs. Sullivan lived at Vancouver, British Columbia, where she and J. L. Sullivan were married in the year 1907. At the time of her marriage she was possessed of a little less than $10,000 in money and also owned some cattle and horses. At the time of her marriage her father gave her $5,000 in money and in 1912 her father died and from his estate she procured $5,000 more. There is no question raised as to this property belonging to Mrs. Sullivan in her separate right at that time. After their marriage J. L. Sullivan and his wife removed to Texas where they engaged in the oil business on a rather extensive scale, organizing some twelve or fifteen different corporations, among them being the garnishee in this case. The statement of facts is voluminous and contains a large amount of testimony concerning the organization of these corporations and the ownership of the capital stock in each of them but, as the writ of garnishment sought to reach only the capital stock owned by the Sulli-vans in the Suloch Oil Company, we arc not concerned with any of the investments and operations other than those pertaining to the garnishee company. J. L. Sullivan testified, and his testimony is undisputed, that Mrs. Sullivan paid for all of the capital stock in the garnisheed company which was issued to the Sullivans by assigning to the company an oil and gas lease known as the Bost lease. He said that early in the year 1930 Mrs. Sullivan had on deposit in the East End Branch Bank of the Royal Bank of Canada at Vancouver, British Columbia, approximately $75,000; that the Bost lease was purchased and paid for by her out of the $75,000 which she had in the Vancouver bank. He said that she personally issued a draft upon the account and with the proceeds of the draft she paid for the Bost lease. As to the source from which Mrs. Sullivan accumulated the money in this deposit, he said that it consisted of money which she had when she married and money given her by her father at the time they were married, and money which she procured from her father’s estate after his death and from the sale of horses and cattle and “trading around and income she added.” The testimony does not reveal how much money she received for the horses and cattle but it is undisputed that the money was in the bank in Canada to her credit and all of it that is specifically accounted for came from a source which unquestionably made it her separate property.

Art. 4622, R.C.S.1925, provides that “Funds on deposit in any bank or banking institution, whether in the name of the husband or wife, shall be presumed to be the separate property of the party in' whose name they stand, regardless of who made the deposit, and unless said bank or banking institution is notified to the contrary, it shall be governed accordingly in honoring checks and orders against such account.”

It is held 'by our courts that this statute was enacted primarily for the guidance of banks in receiving and disbursing deposits but that the presumption • obtains and applies generally to creditors and not merely to controversies between husbands, wives and banks. Emerson-Brantingham Implement Co. v. Brothers, Tex.Civ.App., 194 S.W. 608; Graham Nat. Bank v. First Nat. Bank, Tex.Civ.App., 48 S.W.2d 358; Lloyd v. Lloyd, Tex.Civ.App., 107 S.W.2d 1047; First Nat. Bank v. Wagner Supply Co., Tex.Civ.App., 9 S.W.2d 474; Guaranty State Bank v. Shirey, Tex.Civ.App., 258 S.W. 1109; Tatum State Bank v. Gibson, Tex.Civ.App., 24 S.W.2d 506; Commercial State Bank v. Van Dorn, Tex.Civ.App., 25 S.W.2d 192. These authorities hold, however, that the presumption declared by the statute is not conclusive, but is a rebuttable one. It was not intended to supplant nor to destroy the statutory provision of our law created by Art. 4619, R.C.S.1925, Vernon’s Ann.Civ.St. art. 4619, which provides that all property acquired by either the husband or wife during marriage shall be deemed the common property of the husband and wife. It is a well established rule in this state that where the husband or wife permits his or her separate property to become so commingled with community property that it cannot be identified, the separate property so commingled becomes community property and is subject to the debts of the community. Mitchell v. Mitchell, 80 Tex. 101, 15 S.W. 705; Evans v. Purinton, 12 Tex.Civ.App. 158, 34 S.W. 350; Hamilton-Brown Shoe Co. v. Lastinger, Tex.Civ.App., 26 S.W. 924; Ralls v. Ralls et al., Tex.Civ.App., 256 S.W. 688.

Mr. Sullivan testified that the fund increased from approximately $20,-000 to $75,000 after he and Mrs. Sullivan were married. According to his testimony, some of this increase must have been the result of Mrs. Sullivan’s trading and income which she added after her marriage. At that time she owned some horses and cattle but she sold these and the conclusion is inescapable that her “trading around and incopie she added” was by the- use, investment, sale and reinvestment of the $20,000 which she had in the Vancouvei bank and the proceeds of the sale of her horses a-nd cattle. By trading and adding income she accumulated approximately $55,000 during the years following her marriage. This money was acquired by her during her marriage with J. L. Sullivan and by the positive declaration of the statute, Art. 4619, R.C.S., 1925, was community property. It was commingled with her separate funds in the Vancouver bank and no effort was made 'by defendants in error to identify it or in any way segregate it from the community accumulation. The presumption created by Art. 4622, R.C.S., was thereby overcome by plaintiff in error and thef burden then shifted to defendants in error either to show that the entire increase in the deposit at Vancouver was composed of such funds as are exempt from execution against the husband, or to segregate that portion of it which belonged to Mrs. Sullivan in her own right and show that the segregated fund paid for the Bost lease, the assignment of which to the Suloch Oil Company was the consideration for the capital stock impounded under the garnishment. This they did not do and, in our opinion, the court below was in error in rendering judgment in their favor.

There are a number of other assignments of error and propositions of law presented by ffiaintiffs in error, but the case as made by the record now before us must stand or fall upon the principles we have discussed and we do not deem it necessary, therefore, to discuss the remaining assignments of error.

The judgment of the court below will be reversed and the cause remanded.

On Motion for Rehearing.

All parties to this appeal have filed motions for rehearing, defendants in error contending that we erred in not affirming the judgment of the lower court and plaintiff in error contending- that we erred in not rendering judgment in his favor.

The principal contention of defendants in error is that they were entitled to judgment as entered by the trial court and that its judgment should be affirmed because the evidence showed that J. L. Sullivan made a gift to his wife, G. E. Sullivan, of his interest in whatever portion of the fund that was on deposit in the Vancouver bank to her credit which constituted community property. The substance of J. L. Sullivan’s testimony in respect to this phase of the matter was that, in 1907, when he and Mrs. Sullivan were married, they made an agreement to the effect that he would not claim any right or title or interest in her separate estate and that any property that should stand in the name of Mrs. Sullivan would be her separate property and estate. He said the agreement had continued unbrokenly since it was made. This is nothing more than an agreement made, in advance, between a husband and his wife to change the status of community property yet to be acquired. The law is well settled in this state that such an agreement is without force and is null and void. The Supreme Court, speaking through Justice Critz, in the case of Brokaw v. Collett, Tex.Com.App., 1 S.W.2d 1090, 1091, announced the rule with much force and clarity in the following language: “It does not lie in the power of the husband and wife by contract between themselves, made in advance, to set aside the Constitution of this state, as applied to the wife’s separate property rights.” See, also, Frame v. Frame, 120 Tex. 61, 36 S.W.2d 152, 73 A.L.R. 1512.

The motion of defendants in error will be overruled.

We remanded the case to the trial court for another trial upon the theory that it probably had not been fully developed. We were inclined to the thought that the defendants in error were entitled to further opportunity to trace the fund which went into the purchase of the Bost lease, the assignment of wjiich to the Suloch Oil Company paid for the capital stock owned by the Sullivans; segregate, if possible, the separate and community elements of it and show, if they could, that Mrs. Sullivan’s separate portion constituted the investment involved. Further consideration of that phase of the matter has convinced us, however, that our conclusion in this respect was not correct. In the first place, defendants in error were not deprived of the right nor the opportunity, to make such tracing by any adverse ruling of the trial court. Secondly, J. L. Sullivan testified that such tracing could not be made. In connection with his testimony concerning the money Mrs. Sullivan had when they married and that which she thereafter procured from her father’s estate, he said: “I am not trying to trace for you any particular money that went any place, because, when you lease water that comes from different springs, I don’t know which particular water comes from which particular spring.”

In answer to questions of counsel, he further said that such a tracing could not be done any more in Mrs. Sullivan’s case than it could in water that comes from different springs.

In view of this and other testimony in the record, .we are forced to the conclusion that the case was fully developed upon the trial and that another trial would serve no useful purpose.

We are not convinced, however, that plaintiff in error is, under the record, entitled to a judgment for the ten shares of the capital stock that were given by the Sullivans to their daughter, Betty K. Sullivan, now Betty K. Sullivan Garnett. The motion of plaintiff in error will be granted and judgment here rendered in his favor in so far as the 490 shares of capital stock standing in the name of Mrs. Sullivan are concerned; but the judgment of the court below will be affirmed in so far as the ten shares held by Betty K. Sullivan Garnett are concerned.

Affirmed in part and in part reversed and rendered.


author: NORVELL, Justice.

text:
    FRY v. HARKEY et al.
    No. 10643.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1940.
    Rehearing Denied June 26, 1940.

      C.'W. Trueheart and B. A. Greathouse, both of San Antonio, and R. S. Crawford and Grover C. Jackson, both of Crystal City, for appellant.
    Carl Runge and J. V. Wheat, both of Houston, for appellees.
   NORVELL, Justice.

This is a suit to remove cloud from, title of approximately 303 acres of land in Zava-la County, Texas, owned by appellant, plaintiff below; the purported cloud being evidenced by a letter addressed to appellee, Federal Land Bank of Houston, purporting to grant an easement for irrigation purposes in favor of a certain 215-acre tract belonging to appellee, H. L. Harkey.

Trial was to a jury, but at the conclusion of the testimony both sides moved for an instructed verdict and agreed “that the court should withdraw the case from the jury and determine all issues in .the case.” The fact that both sides move for an instructed verdict does not amount to a waiver of a jury. Alexander Co. v. First National Bank of Lagrange, Tex.Civ.App., 119 S.W.2d 718. Here, however, the judgment quoted from above shows that a jury determination of fact issues was expressly waived, and therefore the case must be considered as if no jury had been impaneled. Judgment was against appellant and in favor of appellees upon their cross-action setting up the validity of the disputed easement. No findings of fact or conclusions of law were filed, and it is therefore our duty to uphold the judgment of the trial court, provided the implied findings which the judgment carries with it are supported by the evidence. Moody-Seagraves Ranch v. Brown, Tex.Civ.App., 69 S.W.2d 840.

Briefly stated, the facts giving rise to this controversy are as follows:

During the year 1933 appellee Harkey owned two tracts of land in Zavala County, Texas, one containing 215 acres, and the other, approximately 303 acres. Harkey desired a loan from the Federal Land Bank of Houston upon the 215-acre tract. As a precedent for the making of the loan, the bank required that he secure an easement to use water for irrigation purposes from a well situated upon the 303-acre tract. The latter tract was mortgaged to Rosa, Mathil-da and Eda Wolf. Harkey promised the Wolf sisters that he would do and perform certain things if they would join with him in the execution of the required easement. Harkey and the Wolfs executed the following letter, which was delivered to the Land Bank:

“San Antonio, Texas, August 11, 1933.
“In re: Application No. 120,030, H. L. Harkey.
“The Federal Land Bank of Houston,
“Houston, Texas.
“Gentlemen:
“We, the undersigned owners and holders of liens on lands belonging to H. L. Harkey in Zavala County, Texas, upon which a well used for irrigation purposes is situated, do hereby agree that in the event of a loan being made by said Federal Land Bank of Houston to said H. L. Harkey upon certain 215 acres of land, other than the land upon which the undersigned lien-holders have a lien, we will in writing agree and consent that water from said well, which is located upon the land covered by liens held by the undersigned lien holders, may be used for the purpose of irrigating the lands so to he mortgaged to said Federal Land Bank of Houston, with the understanding, however, that water from said well shall continue to be used to irrigate the lands upon which the undersigned lien holders have a lien.
“Respectfully yours,
“H. L. Harkey,
“Owner.
“Rosa Wolf
“Mathilde Wolf
“Eda Wolf,
“Lienholders.”

The Land Bank knew nothing of the promises made by Harkey to the Wolf sisters in order to secure their execution of the above letter, and advanced its money upon the security offered by Harkey after receiving the letter. Harkey wholly failed to carry out his promises and agreements with the Wolf sisters, and defaulted on his mortgage to them, with the result that the 303-acre tract was foreclosed and acquired: by Bert C. Fry, the appellant here, during the year 1938.

From the record, it also appears that-after the bank received the letter and made-the loan an attempt was made to secure the-Wolf sisters’ execution of a formal written instrument setting out the terms and: conditions of the easement mentioned in. the letter. These attempts failed, and in 1936 Harkey acknowledged the letter be-fore a notary public and the same was recorded in the deed records of Zavala County, giving rise to the alleged cloud upon; title, which appellant sought to remove.

Appellant’s primary contention is-, that as Harkey failed to carry out the-promises and agreements made by him to. induce the Wolf sisters to sign the letter,, the consideration for the easement failed,, and was consequently unenforcible. The-appellant takes the position that the letter-was part of an agreement between the-Wolf sisters on one hand and Harkey on; the other, and that the Land Bank as a.t third party beneficiary can not claim the.benefit of the agreement, because the con-. sideration therefor has wholly failed.

This contention must be overruled. The-letter upon its face purports to he a joint, offer made by Harkey, as the owner of the-two tracts involved, and the Wolf sisters, as lien holders of one tract, to. the Land; Bank, offering- to give an easement if the bank would make a loan upon the 215-acre tract. This offer was accepted by the bank and the loan made. The agreement between the Wolfs and Harkey on one hand and the bank on the other was supported by a valid consideration; the advance of the bank’s money upon the security offered, which was a detriment to the bank. Agreements between the Wolf sisters and Harkey, secret in the sense that they were unknown to the Land Bank, do not affect the bank’s rights. James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743; Johnson v. Weed, Tex.Civ.App., 52 S.W.2d 917; Mayfield v. Eubank, Tex.Civ.App., 278 S.W. 243.

Appellant also contends that the letter in question should be construed as an offer to negotiate concerning an easement rather than as an unqualified offer to grant an easement. In support of this contention, appellant relies upon the following wording appearing in the letter, “we will in writing agree and consent that water from said well * * * may be used for the purpose of irrigating the lands so to be mortgaged to said Federal Land Bank of Houston.”

The letter, a written instrument, must be construed as a whole in order to determine the intention of the parties. We construe the letter to be an unqualified offer which was accepted by the bank. It was not an offer to negotiate. The letter does not support a construction that no easement or contract should arise unless and until a future written agreement should be entered into between the parties. The mere fact that it may have been contemplated by the parties that a more formal agreement would be entered into between the parties does not prevent the agreement evidenced by the letter from being binding and effective. International Harvester Co. v. Campbell, 43 Tex.Civ.App. 421, 96 S.W. 93, 99; 12 Am.Jur. 522, § 25.

At most, the record here raised an issue of fact as to the intention of the parties which was determined adversely to appellant by the trial court, under the agreement contained in the judgment that the “court could withdraw the case from the jury and determine all issues in the case.” Rosebud Oil & Cotton Co. v. Merchants’ & Planters’ Oil Co., Tex.Civ.App., 248 S.W. 116.

Appellant also contends that the agreement evidenced by the letter is unenforcible because of Art. 1288 and subdivision 4 of Art. 3995, Vernon’s Tex.Civ.Stats.

The briefs filed herein contain rather lengthy discussions of the statutes of fraud and conveyances, but from our view of this case it is not necessary to discuss the various contentions set forth. We have held that the contract is one between Harkey and the Wolf sisters, as promissors, on one hand and the Land Bank, as promisee, upon the other, and that the rights of the Land Bank are not affected by Harkey’s failure to perform his agreements with the Wolf sisters. We also hold that the evidence is sufficient to support an implied finding that the Land Bank relied upon the letter in rri’aking the loan; that the bank intended to loan its money upon land which could be irrigated. The evidence also shows that water from the well on the 303-acre tract had been used to irrigate the 215-acre tract from the year 1927 up to the time of the trial. Under these holdings and fact circumstances, the statute of frauds does not prevent the use of extrinsic evidence to identify the lands and well mentioned in the letter. There is no doubt as to the location of the lands and well concerning which the parties intended to contract. The connecting ditches and conduits for irrigating the 215-acre tract were built and in place when the letter was written. The bank accepted the proposal made in the letter by making the loan. The contract thereupon from the bank’s standpoint became an executed contract. The bank’s performance and the use of the well for a period of over five years after the writing of the letter, for irrigating the 215-acre tract, upon which the bank has a mortgage, takes the case out of the statute of frauds. A refusal to enforce the easement would be unjust and inequitable. American National Ins. Co. v. Warnock, 131 Tex. 457, 114 S.W.2d 1161; Texas Co. v. Burkett, 117 Tex. 16, 296 S.W. 273, 54 A.L.R. 1397; Callahan v. Walsh, Tex.Civ.App., 49 S.W.2d 945; Handal v. Cobo & Dosal, Tex.Civ.App., 225 S.W. 67.

Appellant also contends that the Land Bank’s cross-action is barred by limitation, Art. 5531, Vernon’s Tex.Civ. Stats. This contention is based upon the position that the letter properly construed is no more than an agreement to make an agreement in writing. We do not agree with appellant’s construction of the letter, for the reasons above set out. We have held that the letter and its acceptance by the bank in making the loan, constituted an executed contract giving rise to an easement. Limitation upon a suit to protect or enforce the easement does not start to run until the contract giving rise to the easement is breached or repudiated, or the exercise of the easement right is challenged or prevented. 28 Tex.Jur. 168.

We are of the opinion that the trial court, by judgment, properly fixed and determined the extent and legal rights incident to the easement involved except in the particular hereinafter noticed. The judgment "’'provides that the water rights established in favor of the Land Bank, its successors and assigns, should be subject to the prior right of appellant, his heirs and assigns to use said water for irrigating the 303-acre tract.

The Land Bank, by cross-assignment, contends that the letter contemplates a joint use of the water well. The letter contains a proviso that the easement is given “with the understanding, however, that water from said well shall continue to be used to irrigate the lands upon which the undersigned lien holders have a lien.” Under this provision, if water from the well for any particular period should be insufficient for the irrigation of both tracts, the available water would'be used to irrigate the 303-acre tract. The trial court’s construction of the agreement was therefore correct.

Appellant’s fourteenth assignment of error reads as follows: “The . trial court erred in rendering judgment upon the Bank’s cross-action, declaring the right to use the water for domestic purposes upon the 215 acre tract, as well as for irrigation purposes; because such judgment is unsustained by. either pleading or proof.”

This assignment is sustained for the reasons therein set forth.

The judgment of the trial court will be reformed by eliminating therefrom the adjudication of the right in favor of the Land Bank to use water for domestic purposes upon, the 215 acre tract. The judgment as reformed will be affirmed and costs of appeal taxed against appellees.

On Motion for Rehearing.

In the original opinion rendered herein, we construed the recitations contained in the judgment of the trial court as constituting a waiver of a jury determination of such fact issues as might be in the case. We held that the case should be considered as a trial to the court without a jury.

The appellant upon rehearing contends that our construction of the judgment is incorrect and that the basis thereof was an instructed verdict to the jury. The trial court did go through the form of instructing a verdict for the appellee, but thé recitation that the parties agreed “that the court should withdraw the case from the jury and determine all issues in the case” clearly shows a waiver of the determination of the fact issues, if any, by the jury, and the examination of the record prior to the rendition of the original opinion was made upon the basis that a jury had been waived.

Appellee has now moved for leave to file a supplemental transcript containing a “corrected judgment” entered nunc pro tunc by the trial court on May 30, 1940. In the corrected judgment the recitation “that the court should withdraw the case from the jury and determine all issues in the case” is eliminated and the following recitations appear: * * but at the conclusion of the evidence on January 5, 1939, the plaintiff moved for an instructed verdict and the defendants each moved the Court for an instructed verdict, and the Court stated from the bench that if any party wished any issue of fact submitted to the jury, he would consider submission of such issue because he didn’t want either side to afterwards complain that there were issues of fact which should have been submitted to the jury, and it was agreed between all the parties that there were no issues which should be properly submitted to the jury and that the judgment should be determined by the Court on questions of law on the undisputed facts; and the Court having heard the pleadings, evidence and argument of counsel, is of the opinion and finds that the law on the undisputed facts is with the defendants and against the plaintiff on plaintiff’s suit, and that plaintiff should take nothing by his said suit.”

The matters contained in the supplemental transcript do not relate to the jurisdiction of this Court, and although we have some doubt as to our authority to consider the same, under Rule 22 for Courts of Civil Appeals, 142 S.W. xii, we have decided to permit its filing in order to obviate, if possible, any dispute between the parties as to what actually occurred in the trial court.

The “corrected judgment,” shown in the supplemental transcript, presents some difficulties of interpretation. The evidentiary facts in this case are undisputed, but a fact or jury issue may arise from undisputed facts. Commercial Standard Ins. Co. v. Davis, Tex.Sup., 137 S.W.2d 1. We are of the opinion that when parties agree that a court shall render judgment upon admittedly undisputed facts, they, in effect, agree that the court shall determine all fact issues arising from those undisputed facts: The legal effect of the corrected judgment in this particular and under the facts of this case is no different from that of the original judgment.

In deference to appellees’ earnest contentions relating to the proper construction of the corrected judgment, as well as the original judgment, we have again examined the statement of facts bearing in mind the rule that in cases where an instructed verdict is given, all issuable facts are to be resolved against the appellee rather than in support of the judgment (Brand v. Fernandez, Tex.Civ.App., 91 S.W.2d 932), and have come to the conclusion that if we be mistaken in our construction of the original or corrected draft of the judgment involved, the facts as shown by the record present a case in which the giving of a peremptory instruction was correct. We are of the opinion that the construction given the letter in question in our original disposition of the case is supported by the letter itself, which discloses the intention of the parties as a matter of law. We are further of the opinion that under the circumstances of this case it conclusively appears that the appellee did rely upon the letter and the purported grant of the easement therein. The grant of the easement was a prerequisite for the loan which was actually made after the letter had been received by the bank.

All other matters raised in appellant’s motion for rehearing are sufficiently discussed in our original opinion. Appellant’s motion for leave to file the supplemental transcript is granted.

The motion for rehearing is overruled.


author: CODY, Justice.

text:
    LANG et al. v. SHELL PETROLEUM CORPORATION et al.
    No. 10927.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 21, 1939.
    As Modified on Denial of Rehearing May 30, 1940.

      Levert J. Able, Fouts, Ameraran & Moore, and Sidney Benbow, all of Houston, for appellants.
    Gerald C. Mann, Atty. Gen., State of Texas, and R. E. Keplce, Asst. Atty. Gen., State of Texas, for appellees Texas Prison Board, Board for Lease of Texas Prison Lands, and others.
    Carlos B. Masterson, of Angleton, A. E. Groff, of Houston, and Thompson, Mitchell, Thompson & Young, Truman Post Young, Thomas L. Croft, and Calvin A. Brown, all of St. Louis, Mo., for appellee Shell Petroleum Corporation (now Shell Oil Co., Inc.).
   CODY, Justice.

One John Lang, a wealthy white man, conveyed in 1884 the land here involved to Anthony Thomas for a purchase price which was secured by a vendor’s lien. On October 20, 1893, Lang again' deeded the same land to Thomas for $1,700, which was evidenced by ten promissory notes for $170 each, due, respectively, in 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 years; and these notes were secured by a vendor’s lien retained in the deed, and additionally secured by a deed of trust.

Lang died in December of 1899, and by his will he nominated John Juliff as independent executor and left one-half of his residuary estate to his daughter, Julia Lang, and the other half thereof to her six or seven children. Julia was a negress, and the father of her children was one D. C. Cleveland, a white man.

A will contest was instituted by the heirs of John Lang, and carried through the district court, but the result of the contest was that the will was duly probated. John Juliff qualified as independent executor on March 9, 1900, and in the August Term, 1900, an inventory was filed, and among the assets listed, running into many thousands of -dollars, were listed five of the vendor’s lien notes given by Thomas as part of the consideration for the aforesaid deed.

During the August Term, 1900, Julia Lang applied for appointment as guardian of the estate of her minor children, — D. C. Cleveland, Jr., Florence Cleveland, J. T. Cleveland, Emil Cleveland, Lottie Cleveland, and John Lang, stating in her application that the half interest which the minors would receive under the will of Lang would consist of real and personal property of the estimated value of $50,000. She was appointed and qualified as guardian in early September, 1900. Thereafter, in October, 1901, Julia, as guardian of the estate of her children, filed an inventory, appraisement and list of claims. The vendor’s lien notes aforesaid were not then listed. But in her petition then filed, she stated that, all the property owned by said minors was willed to them by Lang, their grandfather. She further stated that a will contest had been filed, making it necessary to employ counsel to protect the interest of herself and children, and, having no other means by which to employ counsel, she made a .contract with Branch T. Masterson, Capt. J. C. Hutcheson, and Eugene J. Wilson, attorneys (hereafter referred to as Masterson et al.), to secure the probate of the will, agreeing to give them a contingent one-third of the residuary estate, if they should procure the probate of the will. Further, she stated, the lawyers so employed were successful, and the contract of employment was “with the knowledge, consent and approval of John Juliff the proponent for the probate of said will and the executor named and appointed therein.” She further stated that she and said attorneys had agreed upon and made a partition of the residuary estate, and that in said partition the following property was awarded to said, attorneys. Among the assets turned over to the lawyers were listed the full interest in the five vendor’s lien notes. Her petition concludes: “ * * * that your petitioner, believing that said children should bear one-half of said compensation paid to said attorneys, and believing that your petitioner would have and own an undivided one-half of all said property allotted and awarded to petitioner and her said children in said partition with said Wilson, Hutcheson and Masterson, has only inventoried and listed an undivided one-half of said property as the property of said children. Petitioner says that by reason of the premises petitioner is entitled to one-half of said property so allotted and awarded to her and her said children in said partition and that said children jointly are entitled to the other one-half of said property.”

On October 22, 1901, the county court, in response to the prayer of Julia’s petition, approved the inventory and list of claims filed in the estate of the minors, approved the contract of Julia with the attorneys aforesaid, and the partition made with them.

On May 9, 1903, "Miomas conveyed the land here involved, and which had been theretofore conveyed to him by Lang, to-Branch T. Masterson in satisfaction of the five vendor’s lien notes, hereinabove referred to. Sometime prior to such date, Masterson had acquired from Capt. Hutch-eson and Wilson their interest in said notes. Said notes were found among the effects of Branch T. Masterson after his death in 1920, endorsed in blank by the independent executor. On December 31, 1917, Mr. Masterson conveyed the said land (with others) to the Prison Commission of Texas. The Board for Lease of Texas Prison Lands, on November 14, 1934, gave an oil and gas lease on said 400-acre tract, along with other land, to one Ryan for a bonus of $17,156.60, and Ryan assigned the lease to the Shell Petroleum Corporation on November 20, 1934, and that Company is producing oil therefrom.

This action is brought by the five surviving children of Julia Lang, i. e. the Cleve-lands, to recover in trespass to try title one-half of the 400 acres, and for the oil taken therefrom, etc.

D. C. Cleveland, one of the five surviving children, was the only one to give oral testimony at the trial. He testified that he knew Masterson, Capt. Hutcheson, and Mr. Wilson, and knew that they were the lawyers who procured the probate of his grandfather’s will, and that they had been paid for their services out of part of the property left by Lang.

The case was tried without a jury, and judgment rendered against the Clevelands.

The Cleveland devisees claim that they became vested with the title to an undivided half interest in the five vendor’s lien notes. They claim it was beyond the power of the independent executor to transfer the notes to the attorneys who procured the probate of the will, for their services, and contend that the evidence is not sufficient to establish that said executor ever attempted to do so; but that, to the contrary, the proof is that the guardian of the estates of the minors attempted this, and it was beyond her power, and was likewise beyond the power of the probate court, and the court could give no validity to the contract of employment of said attorneys in so far as it contemplated the transferred property of the minors, or in so far as it sought to approve a partition which set aside said' notes to said attorneys as their property, and that as against said minors all such action was absolutely void, and left the ownership of an undivided half of the notes in said minors. It is their further contention that, when Thomas conveyed the 400-acre tract to Mr. Masterson in satisfaction of said vendor’s lien notes, that he thereupon took title to but one-half of said land in his own right, and took the remaining half as constructive trustee for the Clevelands. And, upon the same reasoning, based upon the same showing made by the probate records in regard to the five vendor’s lien notes in both the Lang estate and the estates of the Cleveland minors, it is their further contention that the Prison Commission of the State of Texas took with full notice of their rights, and likewise took- as their constructive trustee under the deed to it from Branch T. Masterson, dated December 31, 1917.

If it be conceded that Masterson acquired no title to an undivided half interest in the five vendor’s lien notes (and we do not pass on that point), there can be no doubt that he at least appropriated and converted them. Such conversion would, by operation of law, have constituted him a trustee. The trust, however, would not be an express trust; it would not be a trust created by a contract whereby Masterson would assume the position and relation of trustee, but the law would impose on him the obligations of trustee. When Masterson recognized the notes as being within his possession and control, and we know he did this not later than when he accepted the deed conveying to him the 400-acre tract in satisfaction of said notes, he became subject eo instanter to the right of the Clevelands to demand said notes, or their interest therein. And except for this disability of minority, the statute of limitation would have begun running against them prior to the date he accepted said deed. It is obvious that if Masterson was chargeable as a trustee, the trust was merely a constructive trust, and a constructive trust is within the statute of limitations. As said in 65 C.J. 534: “As between the trustee and beneficiary of a constructive trust, the statute of limitations begins to run against the enforcement thereof from the date of its inception, unless there has been a fraudulent concealment of the cause of action. No disclaimer or disavowal of the trust by the trustee is necessary.” In Wingate v. Wingate, 11 Tex. 430, 433, Judge Lipscomb said: “But it does not follow, that every kind of trust forms an exception to the operation of the statute of limitations; if so, half the business transactions of men would be removed from its influence. And the doctrine has been settled, by a train of decisions, from the case of Lockey v. Lockey, Prec. in Ch. 518, decided by Lord Macclesfield, down to the present time, that, to remove a trust from the operation of the statute, it must be such a trust, technically, as is created by the mutual confidence of the parties, such as equity alone can take cognizance of and afford redress. If it is a trust that Common Law Courts could give relief, the statute will run, although the party may have sought his remedy by a suit in chancery. In such cases, the fact of the suit being brought in the Court of Chancery, will not defeat the statute; it can be avoided only by a technical trust, of which the Courts of Common Law could afford- no relief. When it is laid down that so long as a trust is continuing and subsisting, the statute does not commence to run between the cestui que trust or his assigns and their trustee, the doctrine applies to such cases only as are strictly and technically trusts, created and sustained by the principles of equitable jurisprudence, exclusive of, and in contradistinction to, trusts of Common Law cognizance; and even in such cases the statute would commence to run from the time the trustee disavowed the trust, or did any act conclusively showing that he did not hold as trustee.”

Again in Tinnen v. Mebane, 10 Tex. 246, 252, 60 Am.Dec. 205: “All implied and constructive trusts, all which are cognizable at law, are subject to the bar of limitation; and equity applies the same limitation to equitable demands, that is applied, in analogous cases,'at law. It is only where the trust is the mere creature of equity — exclusively cognizable zvithin that jurisdiction, and is a subsisting, continued and acknowledged trust, that the statute has no operation.” (Emphasis ours.)

Again, our Supreme Court held in Kennedy v. Baker, 59 Tex. 150, 157: “In cases of implied or constructive trust, where it is sought for the purpose of maintaining the remedy to force upon the defendant the character of trustee, such courts will apply the same limitation as provided for actions at law” (citing authorities). In the last mentioned case, the court quoted with approval the following language of a situation where one obtained money from an executor without lawful authority, “The law, to be sure, would turn him into a trustee; but he did not become such by contract, but was such by implication of law, because of his wrongful possession of money which did not belong to him; nevertheless, he held it in his own right, and for his own benefit, adversely to the complainants.” Again, in the same opinion of our Supreme Court, 59 Tex. at page 159, “In Wilmerding v. Russ, 33 Conn. [67] 80, the court said: ‘A court”of equity would undoubtedly declare the sale to be one which was invalid, as against the policy of the law and constructively fraudulent; but in cases of constructive fraud, the statute of limitation applies. The decisions to this effect are conclusive.’ ” (Citing authorities.) See also Carlisle v. Hart, 27 Tex. 350.

Now limitation did not start running at the time Masterson converted appellants’ interest iii the notes (if he did convert same, and which we assume only for argument’s sake), because of the disability of minority under which the Cleve-lands were at that time. The fact, however, that Masterson subsequently in effect invested half the proceeds of the notes in the land in question, does not mean that the Clevelands thereby became vested with the land so that they could be divested of the title only by adverse possession. The authorities already cited show this is not true. The right which the Clevelands acquired to follow the proceeds of the notes into the 400-acre tract was not a present vested property right, nor one vested in possession, but lay in the remedy or action which a court of equity would give to trace the proceeds of the conversion. For the same wrongful conversion, courts of law gave other remedies. The equity which the Clevelands had was a mere equity which could ripen into an equitable title only after suit had thereon, and its assertion in a court of equity could be resisted if long delayed by the plea of laches. As stated in 21 C.J. 215, “In determining whether plaintiff is barred by laches, it is important to consider the nature of the right asserted, and the character of the relief sought, and, as has been said, the nature of the proceedings resorted to. In reference to the nature of the -right asserted and the relief sought, there is a well recognized and fundamental distinction between two classes of cases into one or the other of which all cases fall. The first class includes those cases where protection is sought against a violation of a present vested property right or what has been termed an executed interest. The second class includes those cases in which plaintiff’s right is not vested in possession but lies in action, and it is necessary to obtain the peculiar relief afforded by courts of equity in order to invest plaintiff with the right claimed. This kind of right or interest has been termed ‘executory’. In the case of executory interests, the doctrine of laches applies fully. * * * ” Among the illustrations of “executed” and “ex-ecutory” interests, cited in a note to the text just quoted, is this: “(2) Cases involving specific performance of contracts * * *, and suits to establish and enforce an implied or resulting trust * * * are illustrations of executory interests.” To the same effect are the cases of Montgomery v. Noyes, 73 Tex. 203, 11 S.W. 138, and Mayes v. Manning, 73 Tex. 43, 11 S.W. 136, 137.

In Mayes v. Manning, supra, the facts were that the father of the plaintiff purchased the land sued for with money advanced by his wife, plaintiff’s mother, taking the deed in -his own name. Plaintiff’s mother died, and his father re-married again in 1854, and resided thereafter on the land until his death in 1886. Plaintiff knew how the land was purchased as early as 1874. The father admitted his son’s title to half the land, but denied his right to the other half. The court held: “We think, too, that, plaintiffs having alleged title and established it by proof of a resulting trust, defendants were properly entitled to the application of the doctrine of stale demand, under their plea of not guilty.” And, again, “The plaintiff’s case, whatever form it takes, is substantially the assertion of a resulting trust. Whether such a trust exists in his favor or not depends upon whether, in point of 'fact, it was his mother’s money that paid for the land.” It is quite apparent that the court considered that the plaintiff had no title or “present vested property right or what has been termed an executed interest,” — to apply the language hereinabove quoted from Corpus Juris — but considered that “plaintiff’s right is not vested in possession but lies in action, and it is necessary to obtain the peculiar relief afforded by courts of equity in order to invest plaintiff with the right claimed”, to further apply the language hereinabove quoted from Corpus Juris. We say this is quite apparent, because the Supreme Court held that stale demand cut off plaintiff’s right, and laches is “inexcusable delay in asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiesence in them; such neglect to assert a right, as taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity; such delay in enforcing one’s rights as works disadvantage to another’s.” 21 C.J. 210, 211. Had the Supreme Court considered that the plaintiff owned a vested equitable property right in the land, it would not have held that plaintiff was cut off by laches from recovering his property. Courts of equity never bar plaintiffs from asserting present vested 'property rights, whether equitable or legal, except where an action therefor is barred by the statute of limitation. 21 C.J. 215.

In the recent case of Bordages v. Stanolind Oil & Gas Company, 129 S.W.2d 786, we stated it was our opinion that the Supreme Court had repudiated the Mayes and the Montgomery cases. The Supreme Court, by dismissing the writ, approved the judgment as correct, but did not approve our opinion. In expressing the belief that the Supreme Court had repudiated the principle it had recognized universally down to and including the Mayes and Montgomery cases, we followed Loomis v. Cobb, Tex.Civ.App., 159 S.W. 305, 309. Though the Supreme Court refused an application for a writ of error in this latter case, this was in 1913, and did not at that time have the effect of approving the opinion in the case. The Loomis case was in fact correctly decided. The plaintiff possessed an equitable title to the property sued for, and not a mere equity, i. e., remedy, whereby he might, if he brought suit, acquire a title. The facts in the Loomis case were that certain land was deeded to one Gutierres, who was at the time married to one Dolores. While he owned the land, and before he sold it, his wife, Dolores, died intestate. She left children surviving her, the issue of a former marriage. These children conveyed their title to Cobb. Gu-tierres held the legal title, but as to an undivided half interest in the property, he owned it as an actual trustee for his wife, and for her heirs after her death; and his wife, Dolores, was vested with a present property right in the property, and her children succeeded thereto, after her death. Being vested with an estate in land, and not a mere equity, they could be divested only by adverse possession, or by the intervention of the rights of an innocent .purchaser for value. It is quite clear that the opinion in the case of Loomis v. Cobb, supra, recognizes no distinction between the status of a true trustee, such as where a husband is the grantee in a deed with his wife, a true cestui que trust, and the status of a trustee in a resulting trust, which is implied for the sake of the remedy.

Yet the distinction just referred to is stated by Corpus Juris, in the quotation above, to be well recognized and fundamental. And the distinction is recognized in many Texas cases. We will quote from another, Hunter v. Hubbard, 26 Tex. 537, 546, 547, 548: “All trusts are said to be of two general classes: First, express trusts, created by the direct and immediate contract of the parties, such as mortgages and deeds of trust, conveyances to bailees, factors, agents, &c., or from official appointments to which this relationship is attached by law — as executors, administrators, guardians * * * in short, all who fill fiduciary situations, created either by act of the parties or by the appointment of the law. Secondly, implied trusts; when a party has not gotten possession of the property by any recognition of the trust relation, or a covenant to hold in that character, but claims to have acquired and held it in his own right, or for altogether different and distinct purposes from that for which the trust was created, and when he is by construction of law, for fraud or from notice of the pre-existing trust, converted into a trustee. * * * Where the trust, however, it is said, is merely implied or constructive, there has been some disagreement among the cases, but the better opinion appears to be that, as in general the facts out of which such trust arises, from their very nature presuppose an adverse claim of right, on the part of the trustee, by implication from the beginning, the statute will commence to run against the cestui que trust, from the period at which he could have vindicated his right, by an action or otherwise. * * * And the Supreme Court of the United States say: ‘Though time does not bar a direct trust, as between trustee and cestui que trust, till it is disavowed, yet, where a constructive trust is made out in equity, time protects the trustee, though his conduct was originally fraudulent, and his purchase would have been repudiated for fraud.’ ”

We are unable to agree that the Supreme Court has abolished this (quoting from Corpus Juris, supra) “well recognized and fundamental distinction between two classes of cases into one or the other of which all cases fall.” We have seen that Loomis v. Cobb, supra, cannot be accepted as authority to that effect.

The case of Carl v. Settegast, Tex.Com.App., 237 S.W. 238, presents an instance of true trust, and the interest of the cestui could be divested only by adverse possession. The case of Hand v. Errington, Tex.Com.App., 242 S.W. 722, is also relied on by appellants. The opinion in the case does indicate the view that a constructive trust vests a property right in possession in the “cestui”, and not a mere equity, against practically the universal current of decisions, including our own Supreme Court. The Supreme Court merely approved the judgment in the case. It did not adopt the opinion.

The case of McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315, opinion by Judge Williams before he was advanced to the Supreme Court, presents the most masterly and comprehensive discussion of the rule herein involved of any that we have been able to find.

Under the facts in this case Masterson acquired the notes, claiming to own them. This claim was recognized by the maker. In satisfaction of the notes he deeded to Masterson the land for which they were a part of the purchase price. If the contention of appellants be sound, had he deeded to Masterson any other land in satisfaction of the notes, Masterson would have taken title thereto in trust for appellants, and their interest would have been a vested property right in such other land, instead of an equity to impress a trust thereon — and if this is law, land titles are very insecure in Texas.

How can it be contended that an equity, which entitles a plaintiff to recover from one who is charged as an implied trustee (the trust being implied of course for the sake of the remedy), is of a different status from that of an equity which entitles a plaintiff to specific performance of a contract? Both are mere remedies which can be had in a court of equity, and neither are vested rights in property. No one would contend that a right to specific performance would confer a vested right before action ripened it into judgment.

The judgment of the court below ought to be affirmed and it is so ordered.

Affirmed.


author: PRICE, Chief Justice.

text:
    SOUTHERN UNDERWRITERS et al. v. DYCHE, District Clerk, et al.
    No. 4023.
    Court of Civil Appeals of Texas. El Paso.
    May 9, 1940.
    Rehearing Denied May 30, 1940.
    Simpson, Dorenfield & Fullingim and E. A. Simpson, all of Amarillo and Claude Williams, Henry D. Akin, and Will R. Saunders, all of Dallas, for relators.
    Joe E. Kelly, of Fort Stockton, and Hoy-et A. Armstrong, Haskell H. Cooper, and Kennemer & Armstrong, all of Dallas, for respondents.
   PRICE, Chief Justice.

, This is an original proceeding in mandamus by the Southern Underwriters and United Employers Casualty Company, hereinafter called relators, against J. H. Dyche, personally and in his capacity as District Clerk of Pecos County, and against Nor-fleet Hill, personally and in his official capacity as Sheriff of Harris County, and J. W. Franks, Haskell H. Cooper and Hoyet Armstrong, hereinafter called respondents. Relators seek a writ of mandamus ordering respondent Dyche, as District Clerk, to approve a certain supersedeas bond in the sum of $15,000 payable to respondents Franks, Cooper and Armstrong. The bond is signed by relators, as principals, and Lloyds Casualty Insurer. This bond was rejected by respondent District Clerk, not on the ground of lack of proper condition, but on account of doubt as to the sufficiency of the surety.

The judgment sought to be superseded was rendered in cause No. 841, in one of the District Courts exercising jurisdiction in Pecos County. Respondent Franks recovered a judgment therein against re-lators in the sum of $6,875.10, the judgment bearing interest at the rate of six per cent per annum. It was provided in the judgment that $2,291.70 should be paid jointly to respondents Cooper and Armstrong, as compensation for representing Franks as attorneys.

In compliance with law, within six months from the date of the entry of the final judgment, relators perfected an appeal therefrom by writ of error. In the perfection of this appeal a cost bond was filed. On March 4, 1940, while said cause was pending in this Court, on request of respondents Franks, Cooper and Armstrong, a writ of execution was issued on said judgment to the sheriff or any constable of Harris County, Texas, and also on the same day a writ of garnishment issued on the judgment addressed to the sheriff or any constable of Plarris County commanding him to serve same on the City National Bank of Houston. These writs were by respondents Franks, Cooper and Armstrong duly placed in the hands of respondent Hill, as sheriff, for execution. Before either of these writs was levied relators' tendered the supersedeas bond above described. Respondent Dyche refused to approve same and to issue writ of supersedeas. Relators then caused the excess of said bond over and above the amount of the judgment to be reinsured by Lawyers Lloyds of Texas, • a casualty insurance company organized and existing under the laws of Texas, and having a permit from the Board of Insurance Commissioners of the State of Texas to do business therein. Relators aver that respondent Dyche still arbitrarily and capriciously refuses to approve the bond.

Upon the filing of relators’ petition herein for mandamus this Court took steps to preserve the status quo and issued an order to respondents to show cause why writ of mandamus be not issued as prayed.

Respondents Dyche, Franks, Armstrong and Cooper in due time filed answer to the petition of relators.

The reason given by respondent Dyche for refusing to approve the bond as tendered was substantially .as follows: That when the said bond was tendered he wired the Chairman of the Insurance Commission as follows: “Do you deem Lloyds Casualty Insurer, Houston, Texas, sufficient as surety on a Fifteen Thousand Dollar appeal bond. Answer Western Union collect.” Immediately thereafter he received a reply as follows: “Lloyds Casualty Insurer is licensed and in good standing with this Department but its assets not sufficient to permit writing of bond in amount of Fifteen Thousand Dollars.” Immediately respondent Dyche wired Will R. Saunders, Esq., one of the attorneys for relators, as follows: “State Board of Commissioners advises Lloyds Casualty Insurer do not have assets sufficient to permit writing of Fifteen Thousand Dollar bond. Therefore I cannot approve supersedeas bond in case J. W. Franks v. Southern Underwriters.” That thereafter, on or .about March 19, 1940, relators tendered supersedeas bond to Dyche with Casualty Insurer as surety on said $15,000 bond, and with Lawyers Lloyds of Texas as reinsurer for the amount of said bond in excess of $7,000. This bond respondent JDyche refused to approve, advising Mr. Saunders of his refusal in the following telegram: “Cannot accept and approve supersedeas bond case Franks v. Southern Underwriters with additional limited liability by Lawyers Lloyds of Texas. Will approve same if bond sureties jointly and severally liable for full amount.”

It is contended by relators that under Arts. 4969 et seq., R.S.1925, the bond tendered was executed by a surety licensed by the Board of Commissioners and that the respondent Clerk had no right to question the sufficiency of the sureties. On the part of respondents it is contended that the articles cited above have no application to a surety doing business under the Lloyds plan. They likewise contend that, even in case of an insurance company coming clearly under the provisions of the státutes above cited, the clerk, in the matter of a super-sedeas bond, is, under the law, bound to exercise, his discretion in the matter of the approval or rejection of same.

Relators rely largely on the case of Universal Transportation & Distributing Co. v. Cantu et al., Tex.Civ.App., 75 S.W.2d 697. In that case it was held that the appellant was entitled to mandamus to compel Clerk of District Court to file supersedeas bond signed by corporate surety. The Clerk refused to accept the bond for two reasons, only one of which has any bearing here, that is, that it was not a good bond. We presume by “not a good bond” was meant that the surety was not of sufficient financial responsibility. On what information the Clerk acted, if any, does not appear. From the opinion it is inferred that the only evidence of solvency was the fact of the license by the Board of Commissioners.

There, there was no question but that Articles 4969 et seq. applied. We deem it unnecessary in the disposition of this case to decide whether Articles 4969 et seq. apply to associations doing an insurance business under the Lloyds plan. Article 5020, R.S.1925, Vernon’s Ann.Civ.St. art. 5020, as to Lloyds insurance, provides: “No attorney for underwriters at a Lloyd’s shall assume any one insurance risk exceeding one-tenth of the amount of the net assets of the underwriters as defined in this chapter and the additional liability assumed by the individual underwriters in the articles of agreement and in the policies or contracts of insurance, unless such excess shall be promptly reinsured.”

Now the information upon which the Clerk acted in refusing to accept this bond was from the Chairman of the Board of Insurance Commissioners, who had every facility to know the financial status of the bondsman tendered. This bondsman was as incompetent to write a bond in excess of one-tenth of the amount of its net assets as it would have been had it been without a license. If the state of facts existed which the Clerk had every reason to believe did exist, he not only should have refused the approval of the bond, but should he have approved same would have violated the law. Relators nowhere in their application show that the $15,000 did not,exceed one-tenth of the net assets of the surety tendered.

It is unnecessary to consider what was the effect of the reinsurance of $7,000 of the bond above the amount of the judgment. It is not contended that the Lawyers Lloyds is a surety on the supersedeas bond. It is not shown that the supersedeas bond we are asked to compel the Clerk to approve is secured by a surety solvent within the meaning of the law to the extent of $15,000, the amount thereof. The power of the surety tendered is limited by the law conferring the power to make insurance and surety contracts.

Even though Articles 4969 et seq. may have limited the discretion and duty enjoined upon the clerk by Article 2270, we are unwilling to hold that it makes it the duty of that official to approve a bond he has good reason to believe that the surety tendered is forbidden by law to execute. It is a supersedeas bond sufficient in and of itself that is required to stay the execution of the judgment.

Application denied.


author: WALKER, Chief Justice.

text:
    ARMSTRONG v. DALLAS RAILWAY & TERMINAL CO.
    No. 3693.
    Court of Civil Appeals of Texas. Beaumont.
    June 6, 1940.
    S. L. Lewis, of Dallas, for plaintiff in error.
    Burford, Ryburn, Hincks & Charlton and W. M. Taylor, Jr., all of Dallas, for defendant in error.
   WALKER, Chief Justice.

Plaintiff in error’s action was against defendant in error for damages for personal injuries, as a passenger on one of its street cars. Judgment was for defendant in error on the verdict of the jury finding that it was guilty of negligence in one of the respects charged by plaintiff in error— and only one — but that such negligence was. not a proximate cause of her injuries; and also finding that plaintiff in error was. guilty of negligence in one respect charged against her by defendant in error — and only one — but that her negligence was not a proximate cause of her injuries. It also found that plaintiff in error’s injuries, were not the result of “an unavoidable accident.” Plaintiff in error duly prosecuted her appeal to the Dallas Court of Civil Appeals; the cause is on our docket by order of transfer by the Supreme Court. The record is before us without a statement of facts on plaintiff in error’s assignment of “conflict” between the findings on the issues of proximate cause and unavoidable accident.

The first point presented is defendant in error’s motion to dismiss the appeal on the ground that it was not filed and prosecuted according to law. The facts on this proposition are as follows: Final judgment in the court below was rendered on the 25th day of March, 1939; plaintiff in error filed her petition for writ of error on the 12th day of September, 1939. Defendant in error concedes that the petition was filed within the six month period provided by Article 2255, R.C.S.1925, reading: “Writ of error, in cases where the same is allowed, may be sued out at any time within six months after the final judgment is rendered.”

Plaintiff in error attempted to perfect her writ of error by filing her affidavit of inability to pay costs, in lieu of a writ of error bond, on the 29th day of December, 1939, more than nine months after the rendition of the final judgment. The affidavit should have been filed “at the time” the petition for the writ of error bond was filed, under the provisions of Article 2258, R.C.S.1925, reading: “Plaintiff at the time of filing such petition shall file with the clerk a writ of error bond, or affidavit in lieu thereof, as provided by law.”

There are expressions in Chopelas v. North River Ins. Co., Tex.Civ.App., 105 S.W.2d 693, with which we are in agreement, at least to the extent that the bond on appeals must be filed within the six months, to the effect that the failure to file the “bond, or affidavit in .lieu thereof” in the time provided by Article 2258 is jurisdictional. On this conclusion the appeal should be dismissed.

Appeal dismissed.