author: GRISSOM, Justice.

text:
    CITY OF RANGER et al. v. WIER.
    No. 2093.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1941.
    Rehearing Denied Eeb. 21, 1941.
    Earl Wyatt, of Amarillo, for appellants.
    Beverly S. Dudley, of Ranger, for appel-lee.
   GRISSOM, Justice.

On August 20, 1931, the City of Ranger instituted this suit against A. K. Wier on a paving certificate which was delivered to W. E. Burke, contractor. It was alleged that defendant had made default in the payment of an installment of the certificate due June 19, 1929, and that V. W. Mills, then the owner and holder of the certificate, had declared the same due. Foreclosure of a lien and personal judgment against defendant was sought. Thereafter Mills died, and the Land Title Bank & Trust Company, trustee, intervened.

The Bank and Trust Company alleged, among other things, that on December 10, 1927, the City of Ranger passed an ordinance levying a special assessment against a- described lot and the defendant, A. K. Wier “the true owner thereof.” That said city issued certificate of special assessment No. 117, payable to W. E. Burke, contractor, or his assigns, in five equal installments. That said certificate provided “if default shall be made in the payment of any installment of principal or interest when due, then at the option of said W. E. Burke, or other holder of said certifícate, the same shall at once mature without notice * That Burke sold- said certificate to V. W. Mills, and that intervener was the legal owner and holder thereof.

It further alleged that the proceedings theretofore had in cause No. 13,749 were void as to said intervener because W. E. Burke, prior to the institution of said suit, transferred and 'assigned the coupons now sued on to Mills. It alleged that defendant was estopped from denying liability, under said certificate because any right he might have had to question such assessment and liability was barred. It prayed for a foreclosure of its lien and personal judgment against defendant.

Defendant answered, among other things, that Dr. Wier never owned the lot described in plaintiff’s petition, or had any beneficial interest therein; that on August 3 1926, Mrs. J. A. Neal, wife of Haden Neal, obtained a judgment against L. McNeill, foreclosing a vendor’s lien on said lot. That, in an effort to help McNeill, Dr. Wier permitted the title to said property to be placed in his name for McNeill’s benefit, and defendant obtained a loan from the Ranger Building & Loan Association on said property and discharged the debt to Mrs. Neal. That defendant never held the title to said property, except as a trustee for the benefit of McNeill and that, prior to the attempted passage of the ordinance, making of the assessment, and the issuance of the certificate sued on, defendant informed the City of Ranger, the members of its commission and W. E. Burke, the contractor, to whom the certificate was issued, of said facts; that he was not the true owner of said lot, and that he neither had nor claimed any beneficial interest therein, and that said city, and the members of its commission, and Burke at said times knew the defendant was not the true owner of said lot, and had no interest therein and were informed of Dr. Wier’s claim, that he was not liable therefor, and that McNeill was the owner and resided on the premises.

The defendant further alleged that on June 29, 1929, in cause No. 13,749, in a suit brought by “plaintiff” against this defendant the lien alleged in plaintiff’s petition was duly foreclosed against the property in question and judgment was rendered discharging defendant from any personal liability; that said judgment was a final judgment. That said judgment constituted an adjudication of defendant’s nonliability asserted in this suit. Defendant also pleaded the two years statute of limitation. Judgment was rendered for defendant and plaintiff and intervener have appealed.

The court filed findings of fact and conclusions of law, in part, substantially as follows: That Dr. Wier, never owned the lot in question. That at the time of the assessment, etc., it was owned by L. McNeill and wife. That the title to said property was held by Dr. Wier solely as an accommodation and in trust for the McNeills. That Dr. Wier never received any consideration therefrom and has never acquired, claimed or asserted any personal interest in said property. That prior to the passage of the ordinance, levying of the assessment and issuance of the certificate, Dr. Wier informed the City of Ranger, its city commissioners and Burke, the contractor, of the true condition of the ownership of said property, and that they then had full knowledge thereof. That the certificate was payable to W. E. Burke, contractor, or his assigns; that the five installments thereof were evidenced by five coupons attached to said certificate; that said coupons state that “W. E. Burke, contractor, or bearer”, is entitled to receive from the owner on surrender of such coupon the amount therein named; that the ordinance and certificate of assessment provided that upon default in payment of any installment of principal or interest when due, at the option of said Burke or other legal holder, said certificate should at once mature without notice. That on June'20, 1928, Burke transferred and assigned %ths of said certificate and the coupons attached thereto to Real Estate Land Title Company (formerly the name of intervener) as assignee of V. W. Mills. That default was made in the installment of said certificate, which matured thirty days after the date thereof, and that Burke, the then holder and owner of “at least ⅛ of said certificate and coupons attached”, declared the entire certificate due and payable, and in December, 1928, the City of Ranger instituted suit “for the benefit of the holder or holders of said certificate”, seeking a personal judgment against the defendant Wier for the entire amount of such certificate with interest and attorney’s fees and for foreclosure of said lien. That Burke intervened in said suit; that in said suit the defendant Wier asserted, among other defenses, that he was not the true owner of the property in question and denied personal liability on said certificate or coupons; that said certificate sued on was the identical certificate upon which this suit is based; that in June, 1929, judgment was rendered foreclosing a lien on said property and denying- personal judgment against the defendant.

The court’s conclusions of law, among others, were that Dr. Wier was not the true owner of' the land in question in contemplation of the statutes which authorized the fixing of paving liens and the creation of personal liability for street improvements; that the judgment in cause No. 13,749 styled “The City of Ranger v. A. K. Wier” rendered on June 29, 1929, was res adjudicata of the matters involved herein and a bar to the prosecution of this suit.

Alternatively, the court found that the original certificate and coupons attached thereto became due and payable December 18, 1928, the date said original suit, cause No. 13,749, was filed, or in any event, on June 29, 1929, the date of said judgment, and, since more than two years had elapsed the defendant’s plea of two years’ limitation was sustained and plaintiff’s and inter-vener’s cause of action held barred.

The evidence was sufficient to sustain the court’s finding that Dr. Wier at the times in. question held the title to the lot in controversy solely in trust for the benefit of McNeill; that prior to the assessment and issuance of the certificate' Dr. Wier personally, and through his attorney, notified the City of Ranger, its commissioners and the contractor, Burke, of said facts and. that he had no beneficial interest in said property and claimed none; that at said times the McNeills were in possession of and occupied said premises as their home. We hold that since Dr. Wier was not the owner of the property at the time of the assessment, but McNeill was the owner and in possession, and the city and contractor were fully advised as to the facts, said city had no power to make him liable for the cost of said paving. Not being the owner of the property, and the fact that Mc-Neill, and not Dr. Wier, was the true owner thereof at the time of the assessment, being known to the city and to the contractor, Dr. Wier was not required to file suit to set aside the assessment. The intervener was in no better position in its attempt to enforce the asserted liability of Dr. Wier than the city or contractor would have been had the contractor retained ownership of the certificate.

In Campbell v. Chaney, 125 Tex. 201, 205, 82 S.W.2d 638, 640, Judge German said: “* * * as Chaney then [at the time of the assessment] had no interest in same, it is obvious that the purported assessment against' him was a nullity * *

In Spears et ux v. City of San Antonio, 110 Tex. 618, 625, 223 S.W. 166, 169, Justice Greenwood, speaking of the decision in Storrie v. Cortes, 90 Tex. 283, 295, 38 S.W. 154, 35 L.R.A. 666, said: “The decision was, of course, correct in denying a personal judgment against the wife, as to whom no liability was sought to be enforced save by the terms of the statute, when she zvas zvith-out the operation of the statute, by reason of not being an owner of the property.” (Italics ours.)

In Jones v. El Paso Bitulithic Co., Tex.Civ.App., 246 S.W. 749, 751, the court said: “So far as Mr. Jones is concerned, the evidence shows that he was not the owner, and he was in no wise personally liable.”

,The opinion of Justice Critz in Realty Trust Co. v. Craddock, 131 Tex. 88, 112 S.W.2d 440, 441, clearly recognizes the defense here asserted by Dr. Wier; that is, that not being the owner of the property at the time of the assessment, and that fact being known to the city and contractor, to whom the certificate was issued, he is not liable for payment of the paving certificate. There the property stood in the name of L. L. Craddock. The property was owned by Craddock and his adopted daughter. The records gave no notice of the death of Craddock’s wife, or of any right or title either she or said adopted daughter had in said property. There was no record of the adoption in said county. At the time the certificates were issued and at the time of all proceedings pertaining thereto the property stood on the deed records in the name of Craddock alone. There was no actual notice of the daughter’s interest. Justice Critz said: “No person representing the city, or in any way connected with these certificates, had any notice regarding the title to these properties, other than as shown by the deed records at any time while these above proceedings were transpiring.” He further stated “ * * * when a city is proceeding under the above statutes in paving matters, it has a right to treat the holder of the record legal title, if living, as the sole and.unconditional owner, unless such city has notice of some outstanding legal or equitable claim antagonistic to the registration records of the county. * * * the statutes, infer that the city should proceed in good faith and without notice, in the same manner that it would have to proceed were it becoming a purchaser instead of acting to fix a paving liability or lien.”

In distinguishing the holding in that case from that in the City of Mexia v. Montgomery, Tex.Civ.App., 7 S.W.2d 594, 595, Justice Critz said the facts were materially different. Speaking of the Mexia case, he said: “ * * * there was evidence tending to show that the city was fully advised of the actual facts concerning the real ownership of the title. The City of Mexia Case does not support L. L. Craddock’s contention here, but, by very clear inference, is authority to the contrary. This is because the opinion takes the trouble to comment on the fact that the city had full notice of the ownership of the lots in question.”

In conclusion he said: “We simply here hold that where a city proceeds in paving matters under the statutes here involved against the living record owner, zvithout notice of any outstanding antagonistic claim of title, the owner of the record legal title is the owner of the property within the meaning of such statutes.” (Italics ours.)

With reference to the opinion of the Court of Civil Appeals in the Craddock case, he said the fact that Craddock had occupied the premises at some period “prior to the event of these paving proceedings” did not, “as a matter of law”, charge the city in paving matters with notice of his claim. The Craddock case is relied upon by plaintiff and intervener (appellants). We think when due consideration is given to the facts as found by the trial court, which we find to be supported by the evidence, the opinion in the Craddock case sustains the defendant’s contention and the holding of the trial court. In the instant case the city had no right to tr.eat the holder of the record legal title as the owner because it had full and timely notice of facts antagonistic to the registration records sh.owing Dr. Wier was not the owner. The city could not proceed in good faith to attempt to fasten liability upon one whom it knew was not the owner. The city was fully advised of the actual facts concerning the real ownership of the land. Also, see City of Mexia v. Montgomery, Tex.Civ.App., 7 S.W.2d 594 writ refused; Uvalde Const. Co. v. Joiner, 132 Tex. 593, 598, 126 S.W.2d 22; Power v. City of Breckenridge, Tex.Civ.App., 290 S.W. 872, 874; Phelps v. Thurber Brick Co., Tex.Civ.App., 62 S.W.2d 596, 597; Johnson v. Lindsay, Tex.Civ.App., 30 S.W.2d 655, 660; Myrick v. Central Tex. Securities Corp., Tex.Civ.App., 122 S.W.2d 687, 688; Herbert C. Heller & Co. v. International Committee, etc., Tex. Civ.App., 50 S.W.2d 495.

In Real Estate-Land Title & Trust Co. v. Dikiy, Tex.Civ.App., 92 S.W.2d 318, 320, writ refused, Chief Justice McClendon said: “Paving certificates are not negotiable, and are subject, in the hands of an assignee, to all defenses and infirmities available to the obligor against the original obligee.” The same holding was made in Berwind v. Galveston & H. Inv. Co., 20 Tex.Civ.App. 426, 50 S.W. 413, writ refused.

From the foregoing conclusions it is evident the judgment should be sustained, regardless of whether any or all of the court’s findings and conclusions, other than those to the effect that Dr. Wier was not the owner and that the city and contractor were so advised, be sustained. We think reversible error is not shown.

The judgment is affirmed.


source: Caselaw Access Project

author: LESLIE, Chief Justice.

license: Public Domain

text:
    TILLISON v. GRIFFIN.
    No. 2116.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 28, 1941.
    Blanton & Blanton, of Albany, for appellant.
    J. Dell Barber, of Colorado City, for ap-pellee.
   LESLIE, Chief Justice.

This is an appeal from the judgment of the District Court based on the jury’s answers to special issues that plaintiff, Tilli-son, take nothing by reason of his suit against the defendant, O. I. Griffin, for damages arising from injuries to the plaintiff’s minor daughter, that caused her death, which plaintiff alleged was the proximate result of the negligence of the defendant. The suit was predicated on the theory of attractive , nuisance maintained by the defendant. Plaintiff appeals and the parties will be referred to as in the trial court.

By the first six propositions, and from different angles, the plaintiff challenges the correctness of the trial court’s ruling in refusing to take as affirmatively confessed certain ex parte interrogatories which had been propounded by the plaintiff to the defendant who refused to answer the same .under the circumstances herein considered.

All the questions here arising were duly presented to' the trial court in a motion for a new trial and by that court considered and overruled.

The facts relating to the questions raised by these six propositions are .in substance as follows: August 16, 1939, the plaintiff filed this suit. At the same time the District Clerk was caused to issue a commission directed to proper officers for the taking of the defendant’s answers to a list of interrogatories then attached to the commission. At plaintiff’s instance the commission and attached interrogatories were forwarded to D. B. Smith, a Notary Public, at Loraine, Texas, where the defendant Griffin also resided. Neither the original interrogatories nor a copy of the same were left “filed in the cause” and in the custody of the District Clerk. August 18, 1939, the Notary Public, to whom the commission and attached interrogatories had been delivered, issued a summons to the defendant Griffin to appear and answer the interrogatories, and by this first summons Griffin was commanded to appear at the Notary’s office on August 18 at 2 p. m. to give his answers.

In response to this first summons, Griffin appeared in person and requested of the Notary Public that he and his attorney be permitted to see the questions, and, further, that his attorney be permitted to be -present while the depositions were being taken. The Notary Public certifies that he refused such requests, but that he did postpone the date for taking the depositions ‘until August 23, 1939, at 10 o’clock a. m. at his office. He further certifies that on the morning of August 22, 1939, at about 10 o’clock a. m., at the request of the plaintiff’s attorney he (the Notary) “personally delivered to Mr. O. I. Griffin * * * the original of the attached summons” (the copy, having been used for the first summons) ; that “at 2 p. m. on said date, O. I. Griffin and his attorney appeared before [him] and stated he was ready to answer said questions, but before he did so he would like to go over them with his attorney.” What followed is stated in the Notary’s certificate in this language:

“I refused to allow O. I. Griffin, or his attorney, to inspect said interrogatories, whereupon Mr. O. I. Griffin refused to answer said interrogatories and in accordance with the law I herewith certify his refusal to the District Court of Mitchell County, Texas, from which was issued the commission authorizing and directing me to take such deposition.
“Given under my hand and seal this 22nd day of August, 1939, at Loraine, Texas.”

The contents of the summons issued August 22, 1939, were the same as that issued August 18, with the exception that the last summons referred to the fact that the first one had been issued for his appearance on August 18. The last summons was in part as follows, omitting formal parts:

.“You were duly summoned before me on August 18, 1939 at 2 p, m. but you refused.
“You are warned that under the law: Neither you, your attorney, nor anyone else, is permitted to see the questions until I propound them to you. Your attorney is not allowed to be present. If you refuse to answer or evade the questions they will be taken as confessed against you. This is a party deposition taken under Art. 3769, R.S. and you are not entitled to have copies of the interrogatories served upon you.
“Unless you appear before me at the time designated above and answer the interrogatories I shall be forced to certify that you refused to answer the questions and return the commission and my certificate to the District Court of Mitchell County, Texas,, and under the law the questions will be taken as confessed against you.”

The unanswered -interrogatories were duly deposited in the mail and conveyed to the District Clerk’s office at Colorado, Texas, and they were there opened 'on the 31st day of October, 1939, at the request of Thomas L. Blanton, attorney for plaintiff. February 21, 1940, the defendant Griffin made a motion resisting the plaintiff’s efforts to have the interrogatories accepted as confessed. This contest or motion was predicated upon different grounds, among them that the plaintiff did not file the original interrogatories with the District Clerk of the Court out of which the commission issued; that he did not file with said clerk a copy of such interrogatories; that at the time of procuring the issuance of the commission the plaintiff in effect caused the list of questions to be attached to the commission and forwarded to the Notary Public who refused to permit either the defendant or his attorney to see and inspect the questions ; that although the defendant did appear on August 18 and sought to see the questions with the view of answering them, the asking of the questions was postponed until August 23. That notwithstanding said postponement he was again by summons issued August 22 at the instance of plaintiff'» counsel warned to appear on that day at 2 p. m. to answer the questions. That the defendant and his attorney went to the office of the District Clerk and there sought to see the interrogatories, or a copy thereof; that they were unable to see them, since none had been “filed in the cause” for the defendant’s benefit. That prior to the time the Notary made his return of the depositions to the District Clerk, neither the defendant nor his attorney had been permitted to see the interrogatories, or a copy thereof.

It will be noted that the defendant by the verified written pleadings resisted the introduction of the interrogatories as confessed on various grounds. Also, through the progress of the trial the plaintiff’s efforts to have said interrogatories accepted as affirmatively confessed were resisted and objected to by the defendant on the grounds in substance stated above. The defendant testified on the trial and was subjected to direct and cross examination.

The court heard the motion and objections resisting the introduction of the interrogatories as affirmatively confessed and. sustained the same. We are of the opinion that the trial court was correct in the ruling. Obviously, the original interrogatories were attached to the commission and placed in the hands of the Notary Public. No copy of them was left in the custody of the District Clerk for inspection by the defendant or his attorney, and under the restrictions enforced by the Notary, neither the defendant nor his attorney was given any opportunity to see the questions before the defendant was required to answer them. Under such facts and circumstances it must be held that the interrogatories were not “filed in the cause” as required by Art. 3769, R.S.192S, as amended. The point was so decided in Mulligan v. Omar Gasoline Co., Tex.Com.App., 49 S.W.2d 706, 707, wherein it was held:

“The ruling of the Court of Civil Appeals to the effect that the trial court erred in refusing to take as confessed certain interrogatories which had been propounded by the Omar Company to Mulligan is erroneous. The facts relating to this matter are substantially as follows: Prior to the commencement of the trial in the court below, counsel for the Omar Company prepared a number of interrogatories to be propounded to Mulligan. Counsel went to the District Clerk’s office, and procured the issuance of a commission to take the depositions of Mulligan in answer to said interrogatories. He had the clerk to attach the commission to the paper containing the interrogatories. He then took the commission, with said paper attached, and placed it in the hands of a notary, for the purpose of having the notary take the depositions of Mulligan. The latter was notified by the notary to appear and answer said interrogatories. Mulligan requested that the notary allow him and his attorney to make a preliminary examination of said interrogatories, or, in the alternative, that a copy of the interrogatories be deposited with the district clerk so that same would be available to Mulligan and his attorney, or that his attorney be allowed to be present while the depositions were being taken. The notary refused these requests. Mulligan thereupon refused to answer said interrogatories, and the notary made regular return thereof, together with the commission, and his certificate showing Mulligan’s refusal to answer. We think that, under these circumstances, Mulligan’s refusal to answer said interrogatories was justified, and that the interrogatories ought not be taken as confessed. The interrogatories upon which a party to a suit may examine the opposing party, as a witness, is, by the express terms of the statute, required to be ‘filed in the cause.’ R.S. art. 3769, subd. 1. In view of the fact that Mulligan was refused access to the paper containing the interrogatories in question, for the purpose of examining its contents, we are of the opinion that said paper should not be treated as having been ‘filed in the cause,’ as contemplated by the statutes.”

The facts in Reilly v. Buster, et ux, 125 Tex. 323, 82 S.W.2d 931, 933, are in substance the same as those involved in the instant case. It was there held on a like question that: “Under the common law, a party-opponent was not compellable to be a witness at the demand of the other party. It required statutory authority to enable one party to obtain the testimony of the other even at the trial. To meet this situation by Act of February S, 1858, the Legislature made provision by which one party could examine the other party as a witness upon the trial of the case, and also by which one party could take the ex parte depositions of the other. This act is now in substance articles 3711 and 3769 of the Revised Statutes of 1925. Under the law ás it has been since 1858, the ex parte depositions of a party to a suit could' be taken without notice and without service of a copy of the interrogatories, but it was necessary to file the interrogatories in the cause before commission could issue; and it was necessary that the depositions be taken in pursuance of a commission. It is obvious that the requirement that the interrogatories be filed in the cause is a valuable one as far as the opposing party is concerned. Mulligan v. Omar Gasoline Co. ([Tex.] Com. [App.]) 49 S.W.(2d) 706; Farmers’ & Merchants’ Bank of Abilene v. Ivey (Tex.Civ.App.) 182 S.W. 706. The filing of the interroga-, tories took the place of notice.”

It is disclosed by this record and is easily inferable therefrom, especially the certificate of the Notary attached to the returned interrogatories, that the conduct of the defendant in refusing to answer the questions was neither willful, nor done in a spirit of contempt for any due process of law pertaining to ex parte depositions. The plaintiff makes no showing to the contrary and these propositions are overruled.

The plaintiff makes the further point that if there be error in the manner ,of filing said interrogatories, still the defendant’s motion resisting the introduction of the interrogatories as confessed should have been overruled as coming too late, since the defendant’s refusal to answer the same had been certified to and filed at least one term of court preceding the one at which the trial was held, etc. The proposition appears to be based upon Art. 3765, R.S.1925, reading as follows: “When a deposition shall have been filed in a court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences. Such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter.”

We do not believe this statute has any application to the present situation dealing with ex parte interrogatories. The “deposition” referred to in the statute consists of both interrogatories and answers, while in the instant case nothing is involved but unanswered ex parte interrogatories. We think it was permissible for the defendant to resist the introduction of the interrogatories as confessed by the written pleadings herein referred to, as well as the objections made on each occasion when the plaintiff sought to have them accepted as testimony. Connell v. Nickey, Tex.Civ.App., 167 S.W. 313, writ refused.

The plaintiff presents other propositions attacking the sufficiency of the evidence to support the verdict of the jury. A careful examination of the testimony convinces us that the verdict is supported by the testimony and this court has no authority to set aside such verdict of the jury. These assignments being without merit, they are overruled.

For the reasons assigned, the judgment of the trial court is affirmed.


author: LOONEY, Justice.

text:
    WELCH v. STATE.
    No. 12995.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 22, 1941.
    Rehearing Denied March 15, 1941.

      Byron Sachs and McCombs & Andress, all of Dallas, for appellant.
    Gerald C. Mann, Atty.Gen., and Wm. J. Fanning, W. P. Watts, and Geo. W. Barcus, Assts. Atty. Gen., for appellee.
   LOONEY, Justice.

T. J. Welch, for himself and on behalf of his wife, parents of Dorothy Welch, a minor, seventeen years of age, by permission of the 46th Legislature, brought this action for damages against the State of Texas and Dr. William Thomas, Superintendent of the Terrell State Hospital, established and maintained by the State for the care and treatment of insane persons, alleging in substance that the death of Dorothy occurred in a collision between an automobile owned and operated by Gus Darst and an automobile in which Dorothy and others were traveling, on a public highway in Dallas County, Texas; that Darst was an employee of the State Hospital, of which the defendant Thomas was superintendent — who, knowing that Darst was reckless, likely to become intoxicated and drive the automobile upon the highways recklessly, directed him to take several inmates of the Hospital in his (Darst’s) car to the City of Dallas to witness a ball game; that Darst became intoxicated and, while returning from Dallas to Terrell at night, drove his car without headlights, at a reckless speed, and, as the result of other acts of negligence, collided with the car in which Dorothy was riding, killing her almost instantly. Plaintiff’s petition is replete with charges of negligence against Superintendent Thomas in employing Darst, in retaining him in the service of the State, knowing that he was a reckless driver, and in directing him to take the inmates of the institution to the ball game at Dallas.

The defendants answered separately; Thomas asserted his privilege to be sued in the county of his residence, and accordingly, venue of the case, as to him, was transferred to a proper court of Kaufman County; and as to the State, the court having sustained its general demurrer, and plaintiff declining to amend, the suit was dismissed, from which he appealed.

Plaintiff contends that, by virtue of the death statute, as amended in 1921, the State assumed liability for wrongful deaths occasioned by the negligence of its representatives, agents, or employees, therefqre, plaintiff is entitled to recover of and from the State damages for the wrongful death of his minor daughter.

By repeated decisions of our appellate courts, the rule is well established that the State is not liable in damages for the negligence or misfeasance of its officials, agents or employees, unless such liability is voluntarily assumed by an act of the Legislature; that the doctrine of re-spondeat superior has no application whatever to the State, its exemption being based upon its sovereign character. See Brooks v. State, Tex.Civ.App., 68 S.W.2d 534, 535, writ refused; State v. McKinney, Tex.Civ.App., 76 S.W.2d 556; Martin v. State, Tex.Civ.App., 88 S.W.2d 131, writ refused. That this doctrine is prevalent the country over is shown by the following authorities: 59 C.J. § 337, p. 194; Carpenter v. Atlanta & C. A. L. Railway Co., 184 N.C. 400, 114 S.E. 693; Downs v. Lazzelle, 102 W.Va. 663, 136 S.E. 195; Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R,A.,N.S., 251, Ann.Cas.10913E, 1033; Shear v. State, 117 Neb. 865, 223 N.W. 130; Hart v. United States, 95 U.S. 316, 24 L.Ed. 479.

Maintenance by the State of hospitals and asylums for the care and treatment of the insane, being specifically provided for in the Constitution, is the performance of a governmental duty. Section 54 of Article 16 of the Constitution provides that: “It shall be the duty of the Legislature to provide for the custody and maintenance of indigent lunatics, at the expense of the State, under such regulations and restrictions as the Legislature may prescribe”; and by Sec. 48 of Art. 3, authority is given the Legislature to levy taxes and raise sufficient revenue for the care and maintenance of the insane. So, unless by the Act of 1921, the State assumed liability for wrongful deaths, occasioned by the negligence of its agents or representatives, plaintiff failed to allege a cause of action, and the court below did not err in sustaining the State’s demurrer and dismissing the cause. The Act under consideration, as amended, is now Art. 4671, R.C.S., and, in so far as is pertinent, reads, as follows: “1. When an injury causing the death of any person is caused by the wrongful act, neglect,, carelessness, unskil-fulness, or default of another person, * * corporation, * * '* his, its or their agents or servants, such persons, * * * corporation, * * * shall be liable in damages for the injuries causing such death. The term ‘corporation,’ as used in this article, shall include all municipal corporations, as well as all private and public and quasi public corporations, except counties and common and independent school districts.”

Since the statute was amended, making municipal corporations liable in damages' for wrongful deaths, several death cases have been brought against the State, but, in each, the State was held not liable, under the common-law doctrine that recoveries could not be had for the death of any one. Although in these cases the statute in question was not brought under discussion, yet, in holding the State not liable, necessarily the phrase “municipal corporations,” used in the Act, was held not to include the State. See State v. Brannan, Tex.Civ.App., 111 S.W.2d 347, writ refused, and Matkins v. State, Tex.Civ.App., 123 S.W.2d 953, application for writ dismissed.

However, counsel for plaintiff forcefully' and ably contend that, as it was not excepted from the provisions of the Act, as were counties and school districts, the State waived its common-law immunity and assumed liability for wrongful deaths caused by the negligence of its representatives, agents, etc.; reduced 'to its simplest statement, plaintiff’s contention is, that being a municipal corporation and not excepted from the provisions of the statute, the State is within the letter, intent and purpose of the statute.

Although, the word “municipality” has been used by courts and text-writers as sufficiently broad in meaning to include a sovereign state, yet, in its general acceptation, the word is not given such meaning (see 43 C.J., p. 72, § 10). As generally understood, the phrase “municipal corpora-’ tion” refers to an organized body, consisting of the inhabitants of a designated area — subdivision of the State, created by the Legislature, that is, a legal entity possessing certain delegated powers (see 19 R.C.L., p. 688, § 2), and is defined in 30 T.J., p. 12, § 2, as follows: “A municipal corporation, in the strict and proper sense of the term, is the body politic and corporate constituted by the incorporation of the inhabitants of a definite locality for the purposes of local government — the organization of a certain geographical district under authority of law.”. In Trevino v. City of San Antonio, Tex.Civ.App., 269 S.W. 1067, 1069, writ refused, the San Antonio Court, quoting from Dillon on Municipal Corporations, vol. 1, Sth Ed., § 31, p. 58, said: “A municipal corporation, in its strict and proper sense, is the body politic and corporate constituted by the incorporation of the inhabitants of a city or town for the purposes of local government thereof. Municipal corporations, as they exist in this country, are bodies politic and corporate of the general character above described, established by law partly as an agency of the state to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district which is incorporated.” Although the Legislature is authorized to waive the State’s immunity from such liability, its intention to do so should appear by clear and unambiguous language. We' do not think the Act in question manifests such an intention, or contains any language disclosing a purpose on the part of the Legislature to create against the State a new and heretofore unrecognized liability. As stated in 59 C.J.,^ pp. 195, 196, § 339: “The State, not being a municipal corporation, is unaffected by statutory provisions rendering such corporations liable, and a statute authorizing suits or claims against a state does not render the state liable in tort for the negligence or misconduct of officers or agents of the state unless the state has, by statute, expressly agreed to be liable on such claims * * As before stated, the phrase “municipal corporation,” used in certain connections has been construed to include the sovereign state, yet such is unusual and out of the ordinary, the general rule being that, in its ordinary and usual acceptation, the phrase “municipal corporation” refers to a body politic and corporate, created by the Legislature for purposes of local government and, in that sense, we think the phrase was used in the Act in question.

We think the Constitution clearly indicates the meaning that should be given the phrase “municipal corporation” when employed in legislation. Sec. 52 of Art. 3 provides that: “The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to lend its credit or to grant public money or thing of vatue (value) in aid of, or to, any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company” etc., and Art. 11 expressly devoted to the subject “municipal corporations,” mentioning cities, towns and other fnunicipal corporations, provides in Sec. 3, among other things, that, “No county, city, or other municipal corporation shall hereafter become a subscriber to the capital of any private corporation * * ”, etc.

While in a latitudinous sense, the State may be found within the letter of the phrase “municipal corporation,” yet, as. generally used in law literature and in legislation, we do not think such is true; especially, in view of the clearly indicated constitutional meaning of the phrase, we do not think it is true with reference to legislation- in' this State. A pertinent rule of statutory construction is found in 59 C.J., p. 964, § 573, as follows: “In pursuance of the general object of giving effect to the intention of the legislature, the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute although it is not within the letter thereof, while that which is within the letter, although not within the spirit, is not within the statute. Effect will be given the real intention even though contrary to the letter of the law.”

Therefore, we do not think the trial court erred in sustaining the general demurrer and in dismissing plaintiff’s cause; hence, affirm the judgment.


text:
    KERR v. CLARK.
    No. 12942.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 22, 1941.
    Z. E. Coombes, of Dallas, for appellant.
    Gerald L. Johnson, of Dallas, for ap-pellee.
   LOONEY, Justice.

H. T. (Hay Theodore) Clark brought this action against C. P. Kerr to quiet and remove a cloud from the title to certain real estate in the City of Dallas. The facts, undisputed, substantially, are these — on October 2, "1936, W. F. Sheppard recovered a money judgment in the County Court at Law No. 2, Dallas County, against C. J. Clark, et als. — including H. T. (Henry Thomas) Clark. Under an execution issued on the judgment, a constable levied" upon the real estate involved, belonging to H. T. (Hay Theodore) Clark, advertised and sold the same on the first Tuesday in December, 1937, as the property of H. T. (Henry Thomas) Clark, the defendant, C. P. Kerr, being the purchaser, to whom the constable executed a deed of conveyance which the defendant had recorded in the deed records of Dallas County, after which, and by virtue of said deed, claiming to be the owner of the properties, demanded of plaintiff possession, which was refused, and after ineffectual efforts to-obtain from Kerr a quitclaim or release of the lands from the cloud cast upon the title, plaintiff instituted this suit to quiet title and remove the cloud. At the time of the levy and sale of the properties, plaintiff was in actual possession, through tenants who occupied and paid rents for same. After the development of these facts, the court submitted several issues,, which, in our opinion, were unnecessary as the facts were undisputed; however, the-court very properly rendered judgment for plaintiff, canceling the constable’s deed, quieting plaintiff’s title and removing the-cloud therefrom, from which the defendant appealed.

The brief filed on behalf of the defendant contains a statement of the nature and result of the suit, eight assignments "of error and two propositions, praying that the judgment below be reversed and that judgment be rendered in favor of the defendant. The cumulative effect of the two propositions is that the court erred in admitting in evidence a certified copy of the constable’s deed, the ground of objection being that the evidence was not authorized by the pleading. No statement from the record, bearing upon these propositions, is given, and no authorities are cited.

Obviously, the question sought to be raised is one of variance which, in our opinion, is not well taken. Paragraph 3 of the petition correctly described the constable’s deed and the volume and page where it was recorded, but in a subsequent paragraph, the petition erroneously stated that the deed was recorded in a different volume. It is obvious, we think, that the constable’s deed, spread upon the deed records of Dallas County, and the claim of title asserted thereunder, constitute a cloud upon plaintiff’s title, and this without regard to the particular volume in which the deed was recorded. We do not think there existed a variance, but even so, it was wholly immaterial.

Plaintiff, being in actual possession of the lands at the time of the levy and sale, the defendant was charged with notice of all facts a proper inquiry would have disclosed. A proper inquiry would have disclosed that, Hay Theodore Clark owned the property levied upon and that he was not the H. T. Clark against whom judgment was rendered and the execution issued (31 T.J., Sec. 6, p. 366). It is axiomatic that the purchaser, at an execution sale, acquires only such title as exists in the defendant in execution. It follows, therefore, that the defendant acquired no title whatever to the properties involved. We have given due consideration to all assignments and propositions, but the same being wholly without merit, are overruled and the judgment of the court below is affirmed.

Affirmed.


text:
    HALL v. PRICE.
    No. 2090.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 31, 1941.
    Hall & Hall, of Temple, for appellant.
    Carl Rountree, of Lamesa, for appellee.
   LESLIE, Chief Justice.

Thos. C. Hall instituted this suit against Noble H. Price to recover rents and light bills. At the conclusion of the testimony the trial court sustained the defendant’s general demurrer on the theory that plaintiff’s first amended original petition stated a cause of action cognizable in the County Court only. The suit was dismissed and the plaintiff appeals.

In said petition plaintiff alleged that he rented certain offices to the defendant for twelve months, beginning October 1, 1938, and ending September 30, 1939. That for the first six months he was to be paid a monthly rental of $85, and for the last six pionths a monthly rental of $100. That the defendant occupied the offices until May 1, 1939 (7 months) at which time he abandoned the lease. That thereafter the plaintiff endeavored to re-lease the offices but was unable to do so, except for the month of September, for which he received $75 which he alleged he credited on the total damages he would otherwise have claimed. That is, after crediting the total damages with the $75 (September rent) the defendant was in default for unpaid rent the specific amount of $425.

The plaintiff, alleged that he was also forced to pay certain utility bills for the defendant, and that the defendant had refused to reimburse him for the same. As to these utility or light bills the plaintiff alleged that the defendant failed to pay “his electric light bills which were paid by the plaintiff in the amounts as follows: October, 1938, $2.55; November, 1938-$3.80; December, 1938-$7.45; January, 1939, $7.-50; February, 1939, $6.40; March, 1939-$6.20; April, 1939-$4.70; May, 1939-$5.50; and for such payment and inconveniences this plaintiff is damaged in the sum of $100.”

The aggregate amount of these monthly light bills is $44.10. It is the defendant’s theory that after deducting the $75 from the $500 and adding to the remainder the $44.10 light bills, the plaintiff’s suit becomes one for nothing more nor less than $469.10. The plaintiff’s contentions seem to be that the “general designation” of $500 for rents and $100 for utility bills fixes the jurisdictional amount of this lawsuit at $600, thereby making it cognizable in the district court. It will be observed that after alleging the particular terms of the contract and the specific amounts due plaintiff by reason of the defendant’s defaults, the plaintiff also claimed damages in general terms, namely, “$500 for rents” and “$100” for light bills.

According to the affirmative and specific allegations of plaintiff’s petition his damages for default in the payment of the rent amounted to $425, and the specific amounts dpe him for the defaults in payment for monthly light bills amounted to $44.10. His pleading shows no greater amounts could be recovered by him. As to the district court, the lack of jurisdictional amount was apparent from the face of plaintiff’s trial pleading. Such allegations make the case cognizable in the county court only.

As held in Martin v. Goodman, Tex.Civ.App., 187 S.W. 689, 690, “ * * * whenever it appears from specific allegations of pleading that the amount recoverable is below the jurisdiction invoked, general allegations of a greater sum not supported by the very nature of the case made is unavailing to confer jurisdiction, ‘as where to a declaration upon a promissory note the plaintiff adds the general ad dam-num clause.’ Foster v. Roseberry, 98 Tex. 138, 81 S.W. 521; Carswell & Co. v. Habberzettle, etc., 99 Tex. 1, 86 S.W. 738, 122 Am.St.Rep. 597.”

Upon a similar state of facts our Supreme Court in C. B. Carswell & Co. v. Habberzettle, 99 Tex. 1, 86 S.W. 738, 740, 122 Am.St.Rep. 597, held as follows: “It is now the settled law in this court that, although the amount claimed in the petition may be sufficient to give" the court jurisdiction of the case, yet, if the facts alleged be such as to show no cause of action as to such part of the whole sum sued for as to reduce it below the amount for which the court has jurisdiction, the suit should be dismissed. Western Union Tel. Co. v. Arnold [97 Tex. 365], 79 S.W. 8.”

The rule thus stated in the Carswell case was referred to in Askey v. Oliver Chilled Plow Works, Tex.Civ.App., 57 S.W.2d 210, 214, in this language: “The rule so announced has been applied in numerous other decisions, such as Richards Medicine Co. v. Graves (Tex.Civ.App.) 273 S.W. 702, and decisions there cited, to which might be added other decisions such as Haddock v. Taylor, 74 Tex. 216, 11 S.W. 1093; and according to that rule the trial court did not err in sustaining the general demurrer to plaintiff’s amended petition and dismissing plaintiff’s suit * *

After the plaintiff specified the particular amounts due him by reason of the defendant’s defaults in paying monthly rent, it availed him nothing to add “the general ad damnum clause” calling for $500 damages, and the same is true after itemizing the light bills. The specific items sued for being less than $500 the trial court had no other alternative than to dismiss the case. Western Union Tel. Co. v. Arnold, 97 Tex. 365, 79 S.W. 8; A. B. Richards Medicine Co. v. Graves, Tex.Civ.App., 273 S.W. 702; C. B. Carswell Co. v. Habberzettle, 99 Tex. 1, 86 S.W. 738, 740, 122 Am.St.Rep. 597; Texas & P. R. Co. v. Woodard, Tex.Civ.App., 53 S.W.2d 82, 84.

For support of his contentions the appellant cites the opinion of the Supreme Court in Foster v. Roseberry, 98 Tex. 138, 81 S.W. 521, 522, and he states with reference to that case that it- is more nearly like the instant one than any that has come to his attention. As we interpret that opinion it is substantial support for the ruling made by this court.

In the Foster case the plaintiff alleged that the defendant had damaged him (1) by “appropriating” plaintiff’s interest in the “cane or sorghum” “to wit, 20 per cent, thereof, which said interest is of the reasonable market value of $25.” (2) That the defendant had taken possession of said crops of “cabbage, onions” etc. of the value of $350 “of which * * * plaintiff is entitled under the aforesaid contract to 20 per cent.” ($70), (3) That the “poultry appropriated by the said defendant is of the value of $25, of which plaintiff is entitled to 50 per cent.” ($12.50) (4) Plaintiff then alleged other specific items of damage, namely, that the defendant had taken possession of “all of the work horses, milk cows, harness, farming implements, tools, chickens, and outhouses and barns hereinbefore described, and appropriated the same to his own use, and refuses to surrender the same, or any part thereof, to this plaintiff.”

The plaintiff then proceeded to summarize the damages as follows: “This plaintiff alleges that by reason of the acts of the defendant herein set out plaintiff has been damaged in the sum of $1,000”, etc., for which he prays.

The Supreme Court, in answer to certified questions, held that “The petition did not show on its face that the district court had not jurisdiction”, and as to the general statement summarizing damages in the sum of $1,000 the court said “It cannot be disregarded, as such general allegations sometimes are, when it appears from the nature of the case stated that no such damage could have been sustained•, as where to a declaration on a promissory note the plaintiff adds the general ad damnum clause.” (Italics ours.)

It is quite clear from the allegations in the Foster case that in addition to the $25 damages sought for converted “cane or sorghum”, and $70 for “cabbage, onions,” etc. and $12.50 for poultry that the additional damages ($892.50) making up the $1,000 was included for the various other elements of damage specifically alleged in subdivision (4) ' above. This $892.50 amount was quite as specifically claimed as the other items mentioned. The pleadings are not susceptible of any other reasonable construction. Hence, the $1,000 prayed for in that case was not to be interpreted merely as a general “ad damnum” prayer, and the Supreme Court interpreting the pleadings and the alleged damages used the appropriate language above set out. Attention is especially directed to the portion thereof which we have italicized.

We interpret the opinion just discussed as one applying the rule we employ in the disposition of this appeal. ' The plaintiff, by his own allegations, limited his right of recovery to the maximum of $469.10. That fixed his “possibility of recovery” and the County Court alone had jurisdiction of his case.

In disposing of the questions raised, we have been controlled by the specific allegations in the plaintiff’s first amended original petition, which completely superseded the pleading intended to be amended. L. Grief & Bro. v. Texas Cent. R. Co., Tex.Civ.App., 163 S.W. 345; Jones v. Jones, Tex.Civ.App., 21 S.W.2d 559; Home Inv. Co. v. Strange, Tex.Civ.App., 152 S.W. 510; Clapp v. Engledow, 82 Tex. 290, 18 S.W. 146; District and County Court Rules 14, 13, 12, 142 S.W. xviii; 33 Tex. Jur. p. 513, § 83.

For the reasons assigned, the judgment of the trial court is affirmed.


text:
    BRAZOS RIVER GAS CO. v. BRAZOS RIVER CONSERVATION & RECLAMATION DIST. et al.
    No. 2145.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 24, 1941.
    Rehearing Denied Feb. 21, 1941.

      W. H. Penix, J. R. Creighton, and Ritchie & Ritchie, all of Mineral Wells, for appellant.
    T. T. Bouldin, of Mineral Wells, John D. McCall and Millard Parkhurst, both of Dallas, and Samuels, Foster, Brown & McGee, of Fort Worth, for appellees.
   LESLIE, Chief Justice.

This appeal by the gas company purports to be from an order of the District Court dissolving a temporary injunction, etc. The nature of the suit and the true rulings appealed from will be set out definitely as the opinion proceeds.

. March 6, 1940, E. P. Costello and others, among them the appellant Brazos River Gas Company, sought and obtained a temporary injunction in the District Court to restrain the Brazos River Conservation & Reclamation District, herein called the “District”, from closing the vent in its dam (Possum Kingdom) across the Brazos River. The relief was sought upon the allegations that when said vents were closed the water of the stream would submerge the adjacent lands, properties of petitioners. The court, in granting the injunction, required petitioners to execute a $2,500 bond.

The instant litigation grows out of the following facts:

On June 5, 1940, the gas company et al. filed a reply to the District’s motion (May 27, 1940) to dissolve the temporary injunction granted the gas company and others March 6, 1940, on their application and petition of that date. Dissolution of that injunction was denied by the trial court June 14, 1940, and an appeal from that judgment was prosecuted to this court (Brazos River Conservation, etc., Dist. v. Costello, 142 S.W.2d 414), and from the decision of this court to the Supreme Court. 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220. After return of the mandate from the Supreme Court, the gas company filed October 29, 1940, a plea in abatement to the District’s cross-action for condemnation filed May 25, 1940. October 30, 1940, the gas company and others filed their first amended original petition.

On hearing the trial court (in the instant case) dissolved the injunction granted March 6, 1940. Before doing so, it found that the Conservation District had placed in the registry of the court the $128,000 theretofore found by the court to be sufficient security for the gas company under and by virtue of the requirements of Art. 3269, R.S.1925, as amended, Vernon’s Ann. Civ. St. art. 3269.

The gas company et al. urged the’ court to take notice and hear evidence first on its plea in abatement and also act on its first amended original petition. The action' of the court on the questions thus raised and urged is best reflected by the following excerpt from the court’s judgment dissolving the temporary injunction of March 6: “ * * * And before skid motion [to dissolve] was heard, considered and passed upon by the court, Respondents [Gas Company et al.] in cross-action * * * requested the court to consider, hear evidence and act upon the First Amended Original Petition * * * for continuation of the original injunction until the court should hear and determine the matters and questions raised and set out in pleas in abatement to said cross-actions * * *; and said Respondents also requested the court to hear evidence upon, consider and pass upon such pleas in abatement prior to his acting upon the District’s motion to dissolve, all of which requests were in all things refused and denied by the court; * * *. The remaining respondents and original plaintiffs, to-wit, E. P. Costello * * * Brazos River Gas Company * * * [and others] then and there in open court excepted, to the action of the court in refusing to consider and hear evidence and pass upon their amended original petition and pleas in abatement.” (Italics ours.)

The court then proceeded to dissolve the injunction.

We interpret appellant’s assignments of error as primarily challenging the action of the trial court in dissolving the injunction. After a careful consideration of these contentions we conclude that there is no merit in them, under the present state of the authorities. We are of the opinion that the Supreme Court in Brazos River C. & R. Dist. v. Costello et al., 135 Tex. 307, 143 S. W.2d 577, 580, 130 A.L.R. 1220, considered and passed upon all the essential and controlling issues relating to the injunction. The concluding paragraphs of that opinion read as follows:

“In this instance the District has tendered into the registry of the court, or stands ready to deposit in cash, the specific sums allowed all parties, and will comply with any orders that the court may make relating to such condemnation proceedings. This is all the land owners can demand under the law.
“It being undisputed that the District is ready, able, and willing to comply with every requirement of the law, and will pay in cash into the registry of the court the various sums determined and allowed in the orders of the trial court, and will meet any other requirements that the court may deem proper to protect 'the land owners, it logically follows that the injunction granted by the trial court should be dissolved.
“The judgments of the trial court and the Court of Civil Appeals are reversed, and it is ordered that this cause be remanded to the trial court for further proceedings in accordance with this opinion; and the trial court is instructed that when said District has deposited in cash the sum allowed the land owners by said court, and has met all requirements of the law and has complied with all orders that said court may deem proper to protect said money and the rights of the land owners, the said writ of injunction issued by the trial court shall be dissolved, and said District shall be allowed to close the vents in said dam and take possession of said property, pending the final hearing of the condemnation proceedings on the merits of the case.”

Obviously, that court has definitely held that the provisions of Art. 3269, R.S.1925, as amended, are available to the “District” and that it can take possession of the property of the gas company for the public use, in advance of a final trial, by giving adequate security for, the-protection of the owner. As stated, the court finds such security had been deposited.

When that opinion of the Supreme Court and the mandate based thereon reached the District Court of Palo Pinto County, that court could do nothing other than require the amount of money theretofore fixed as security for the anterior possession of the property to be paid into the registry of the court and then dissolve the injunction, thereby permitting the Conservation District to take possession of the property of the gas company in accordance with the law as interpreted by the Supreme Court.

The main questions sought to be presented by this appeal have been heretofore carefully considered by this court and put at rest by said opinion of the Supreme Court.

In appellant’s assignments much stress is laid upon the refusal of the trial court to “hear evidence and determine the matters and questions raised and set out in pleas in abatement to said cross-action.” Whatever the action of the trial court relating to such pleas, there is no merit in these contentions at this stage of the litigation. If the pleas in abatement be Regarded as sufficient in substance, timely presented, and as having been overruled by the trial court October 30, 1940, no appeal would lie directly to this court. It would be only an interlocutory order. “Except where the right is specifically granted by statute, an interlocutory order or judgment will not support an appeal.” Dutton v. Collins, Tex.Civ.App., 75 S.W.2d 327, 328; 3 Tex.Jur. p. 126, sec. 61.

The trial court’s action in either disregarding the plea in abatement, or overruling the same, should be sustained for another reason. Since it was filed for the first time October 29, 1940, the same came too late, — after the gas company and others had answered, June 5, 1940, to the merits of the case (the District’s cross-action and motion to dissolve, May 27, 1940). Any careful consideration of the contents of the “reply” or answer (June 5, 1940) of the gas company et al. to the Conservation District’s motion (May 27, 1940) to dissolve the temporary injunction leads to but one conclusion, namely, that the gas company and others pleaded to the substantial merits of the case in which the gas company’s property was definitely described in the pleadings and sought to be condemned in the District Court under the provisions of Art. 3269, as amended.' That cause is now pending-in that court awaiting trial on its merits.

The appellant’s assignments of error are overruled and for, the reasons stated the judgment of the trial court'is affirmed.


author: CODY, Justice.

text:
    STERLING v. TEXAS & N. O. R. CO.
    No. 11120.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 20, 1941.
    Rehearing Denied March 13, 1941.
    W. Gordon Vaughan, of Houston, for appellant.
    Baker, Botts, Andrews & Wharton, of Houston (J. C. Hutcheson, III, of Houston, of counsel), for appellee.
   CODY, Justice.

This action was brought by Odessa Sterling as the widow of Joe Sterling to recover damages resulting from his death which was caused by being run over by a train on appellee’s track within the City of Houston, at'about 4 o’clock in the morning of July 26, 1936. At the conclusion of plaintiff’s proof the Court, upon defendant’s motion, instructed the verdict in defendant’s favor, and the plaintiff has become appellant in this Court.

There were no. eyewitnesses to the accident. At the point where it occurred, appellee’s track runs east and west. Appellant and her deceased husband lived south of and near this track. At or about 4 o’clock in the morning of the day on which the accident occurred, the deceased left the home of a sick friend with whom he had been sitting up which friend’s home was situated some block and a half distant from where the accident occurred, and on the north side of the track. Shortly after 4 o’clock A. M. the deceased was found on appellee’s track near where a pathway crosses over it which had been customarily used by the public for 20 years. He was conscious when found, and asked that his mother and wife be notified of his injuries, and told where they might be found. He stated that he had been run over by a train and that he knew he was going to die. He died shortly thereafter, and without male-’ ing any further statement. In view of the instructed verdict appellant is entitled to have the benefit of the most favorable construction that the evidence will bear. With this rule in mind, it becomes unnecessary to state at length the evidence which appellant relied upon. We will infer from the evidence that the train which ran over the deceased was being operated at a greater rate of speed within the limits of a city than the maximum allowed by law; and that it was being operated without the bell being rung or the whistle being blown for the streets which it crossed as it moved along appellee’s track; also, that neither the engineer nor fireman saw the deceased, and that no warning signals were given for the benefit of deceased; also, that the accident occurred within ten minutes from the time the deceased departed from his friend’s home.

Appellant does not contend, at least not eo nomine, that the doctrine of res ipsa loquitur applies in this case. That being true, no causal connection between the negligent operation’ of appellee’s train and the injuries to the deceased can be supplied by presumption or inference. “In cases of this character, the burden of proof is upon the plaintiff, not only to establish the negligence as pleaded, but also the burden is upon the plaintiff to establish causal connection between that negligence and the injury or death. Causal connection can no more be presumed than the negligence itself.” Houston, E. & W. T. Ry. Co. v. McHowell, Tex.Civ.App., 278 S.W. 258, 261. The case just cited was decided upon the authority of such cases as Texas & N. O. R. Co. v. Crowder, 63 Tex. 502, in which the rule here applicable was recognized in this language: “ While, however, the plaintiff is to show that he was in the exercise of due care, and that no negligence of his contributed to the injury, this may be shown by proving facts and circumstances from which it may fairly be inferred, and if all the circumstances under which an accident took place are put in evidence, and upon an examination of them nothing is found in the conduct of the plaintiff to which negligence can fairly be imputed, the mere absence of fault may justify the jury in finding due care on his part. Mayo v. Boston & Maine Railroad, 104 Mass. 137. But, if there is only a partial disclosure of the facts, and no evidence is offered showing the conduct, of the party injured in regard to matters specially requiring care on his part, the data for such an inference is not sufficient. It can only be warranted when circumstances are shown which fairly indicate care or exclude the idea of negligence on his part. Crafts v. Boston, 109 Mass. 519.’

“That this action is prosecuted by a relation of the deceased does not change the rule. Murphy v. [Chicago, R. I. &.P.] R. R. Co., 45 Iowa 661; Patterson v. [Burlington & M.] R. R. Co., 38 Iowa 279; Corcoran v. [Boston & A.] R. R. Co., 133 Mass. 507.”

The Court then went on-to state: “As this case is presented, to assume that there is sufficient evidence to establish that the injury was caused by the negligence of the appellant, we would have to rely solely upon the fact that the part of the track where the deceased was found may not have been in good order, when, if this be admitted, it is but a fact which' may not in the slightest degree have caused the injury. That may have resulted solely.from some negligent act of the deceased. What he was doing or attempting to do does not appear. Whether he went on the track in the discharge of his duties without knowledge of the defective condition of the track, or attempted to perform some' act not prudent while the train was in motion, or fell from the train through want of due care, the evidence does not show.” The rule in the Crowder case has been consistently followed. Texas & P. Ry. Co. v. Shoemaker, 98 Tex. 451, 84 S.W. 1049; Campos v. St. Louis, B. & M. R. Co., Tex.Civ.App., 43 S.W.2d 487; Kelley v. Burlington-Rock Island R. Co., Tex.Civ.App., 100 S.W.2d 164; Chandler v. Texas & N. O. R. Co., Tex.Civ.App., 103 S.W.2d 811; Webester v. Henwood, Trustee, Tex.Civ.App., 134 S.W.2d 333, 334. In the last-cited case, Judge Alexander applied the rule in this language: “For the sake of the discussion, it may be assumed that the evidence was sufficient to have justified an inference that Webester was struck by defendant’s switch engine, and that the employees in charge thereof were negligent in failing to sound the whistle or ring the bell, but we are left wholly in the dark as to how the accident occurred. There was no evidence whatever that such negligence, if any, on the part of the defendant was the proximate cause of the accident. The burden was on the plaintiff to not only prove the negligence of the defendant, but that such negligence was the proximate cause of the injury, for there is no presumption that the negligence proven was the proximate cause of the injury.”

The negligent operation of the train might indeed have been the proximate cause of the injuries, but there is no proof that this is so, and “there is no presumption that the negligence proven was the proximate cause of the injury.” Webester case, supra.

There being no error, the judgment will be affirmed. It is so ordered.

Affirmed.


author: NORVELL, Justice.

text:
    EDWARDS et al. v. McCORKLE.
    No. 10915.
    Court of Civil Appeals of Texas. San Antonio.
    March 5, 1941.
    Bryan, Stone, Wade & Agerton and Brandon Stone, all of Fort Worth, for appellant.
    Chas. O. Betts, of Austin, and Cecil D. Redford, of San Antonio, for appellee.
   NORVELL, Justice.

Lawton F. Edwards and Mrs. P. H. Edwards appeal from a money judgment rendered against them in favor of Sam McCorkle, receiver for Robert A. Hicks, attorney in fact for the Underwriters at Lloyds America. Appellants formerly operated a local insurance agency in Fort Worth, Texas, and represented Robert A. Hicks, attorney in fact, who was writing insurance under the Lloyds plan for the Underwriters at Lloyds America. On February 8, 1939, appellants made a settlement of their various accounts with the attorney in fact, and, as a part of this settlement, executed a $1,500 note upon which appellee brought suit. Appellants pleaded that as a part of said settlement agreement the attorney in fact agreed to pay off and discharge certain claims of Paul Darr and Auburn Piper under policies of Lloyds America issued to the S. Burk Burnett estate, protecting said assured against liability asserted against it by its ranch employees. It seems that these policies were in many respects similar to policies issued under the Workmen’s Compensation Act. Vernon’s Ann.Civ.St. art. 8306 et seq. Appellants further pleaded that the attorney-in fact had failed to pay such claims, and for that reason the consideration for the note had failed. Appellee denied the existence of the agreement alleged.

The jury found that the disputed agreement was made at the time the note sued upon was executed; that said agreement induced appellants to sign the note and was part of the consideration therefor. The jury further found that appellants had paid the Darr and Piper claims, and expended the sum of $450 for that purpose. The trial court entered judgment for the principal amount of the note less $450, or for the principal sum of $1,050, plus interest and attorney’s fees, as stipulated in the note, and calculated upon said principal sum of $1,050.

There was no error in the trial court’s refusal to submit a requested issue to the jury upon the theory that the failure of the attorney in fact to pay the Darr and Piper claims amounted to a total failure of consideration of the noté sued upon. The evidence in the record does not support the theory advanced.

Appellants also contend that they are entitled to a credit of some $725 on the note, rather than the allowed credit of $450. This contention can not be sustained. It seems that the S. Burk Burnett estate was a valued customer of appellants and for that reason they paid off the Darr and Piper claims, and secured releases from said claimants in favor of the estate. In so doing appellants expended the sum of $450. The basis of the contention for the $725 credit is that Darr and Piper had asserted they were entitled to this amount on their claims. The evidence shows that the agreement of the attorney in fact, if made at all, was one to pay the Darr and Piper claims, and not to pay any particular amount. The difference between $725 and $450 seems to be accounted for by certain medical expenses incurred by Darr and Piper as a result of injuries sustained by them. There is no evidence that the amount claimed for such services was reasonable, nor that Lloyds America were legally liable for the payment of said medical expenses under the policies issued to S. Burk Burnett estate. The only definite indication of the amount legally due upon the Darr and Piper claims was the amount actually paid by appellants for a release thereof. Upon the record here appellants are in no position to contend that said claims were just and legal for an amount in excess of $450. As appellee here does not complain of the trial court’s action in allowing a $450 credit upon the note involved, he, in effect, recognizes such sum as being the amount of the claims legally payable, and as appellee in this Court makes no objection to the allowance of said amount as a credit upon his note, under the theory that the consideration therefor had partially failed, the judgment of the trial court should be affirmed. It is so ordered.


author: LOONEY, Justice. PER CURIAM.

text:
    LOPER et al. v. HOSIER.
    No. 13134.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 4, 1941.
    On Motion for Rehearing Feb. 15,1941.
    Further Rehearing Denied March 15, 1941.

      D. A. Frank and D. A. Frank, Jr., both of Dallas, for appellants.
    Jack C. Burroughs, of Dallas, for appel-lee.
   LOONEY, Justice.

Appellants duly perfected an 'appeal from the judgment rendered against them in the court below, and filed a transcript and statement of the facts in this court on October 19, 1940, which was more than ninety days fro,m the date the order overruling appellants’ motion for a new trial was pronounced, but less than ninety days from the date the order was entered upon the . minutes of court.

On October 19, appellee filed a motion to affirm on certificate, based on the contention that, the transcript and statement of facts were .not filed in this court within ninety days from July 12, 1940, the date the court announced the order overruling appellants’ motion for a new trial; and on October 21, filed a supplemental motion, praying that the record filed in this court by the appellants be dismissed, and that the case be affirmed on certificate, as prayed in the original motion.

At a former day, the court sustained ap-pellee’s motion, dismissed from the docket the record filed herein by appellants, and affirmed the judgment below on certificate.

The case is pending on appellants’ motion for rehearing. The contention is made that, having filed the record in this court within ninety days from the entry upon the minutes of the order overruling their motion for a new trial, they complied with the law; hence the court erred in striking from the docket the record filed by them, and in affirming the judgment on certificate.

Thus, it appears that,, the only question presented for decision is, whether the time (ninety days) for filing the record in this court is to be reckoned from the date of the pronouncement of the order overruling appellants’ motion for a new trial, or from the date of the actual entry upon the minutes of the order overruling the motion.

The right of appeal in civil cases is given by statute (Art. 2249, Vernon’s Ann.Civ.St.) from “every final judgment” of the district and county courts. This is a general statute, controlling in all appeals, except from interlocutory orders^ allowed by other provisions of the statute. The statute provides that notice of appeals shall be given in open court within two days “after final judgment,” or “after judgment overruling a motion for a new trial” (Art. 2253); and Art. 1839 requires the transcript and statement of facts to he filed in the Court of Civil Appeals within sixty days from the “final judgment or order, overruling motion for new trial * * * Under Articles 2092, subd. 31, and 2093a, subd. 4, of the Special Practice Act, applicable to the district courts of Dallas County, appeals are required to be perfected, within the time mentioned, after judgment or order appealed from is rendered, or after a motion for new trial is overruled; and the ninety days within which the record shall be filed in the Court of Civil Appeals is also reckoned from the date of the same events. See Hanks v. Texas Employers Ins. Ass’n, 133 Tex. 187, 128 S.W.2d 1.

We think it obvious from these provisions of the statute that the time prescribed for perfecting appeals from the district court and for filing the transcript and statement of facts in the Court of Civil Appeals is to be reckoned from the identical event, that is, the rendition of a final judgment. So, this leads to the inquiry, when is a judgment final and appealable, within the meaning of the statute? Is it when the judgment is pronounced by the judge in open court, and/or a memorandum thereof made upon the docket, or is it when the final entry is made upon the minutes as a part of the record of the court?

There is a distinction between the mere pronouncement or rendition of a judgment or order, and the entry of same upon the minutes of the court. To be ap-pealable, the judgment or order must be entered upon the minutes. This doctrine is stated in 3 Tex.Jur., sec. 51, pp. 103, 104,' as follows: “To be appealable a judgment or order must not only be pronounced by the court — that is rendered — but it must be entered upon the minutes, there being a distinction between the mere rendition and entry as a part of the record. Accordingly it has been decided that in so far as the right of appeal is .concerned it is immaterial that a judgment was rendered outside the county if regularly entered upon the minutes of the court in the proper county. As a rule a mere docket entry is not sufficient to constitute a judgment or decree of the court. So it has been held that a brief notation on the docket to the effect that a motion is overruled will not be considered as an order or judgment of the court. And with regard to a motion it has been decided that the word ‘granted,’ written upon the face of the motion and signed by the judge, without any further entry of the decision, is not a judgment from which an appeal will lie.”

This is also the doctrine the country over, as appears from the following; in 33 C.J. p. 1055, it is stated that: “An order merely directing or authorizing the entry of judgment in. the case does not constitute a judgment; to have this effect it must be so worded as to express the final sentence of the court on the matters contained in the record and to end the case at once, without contemplating any further judicial action.” And in 15 R.C.L. sec. 4, pp. 570, 571, the doctrine is announced that, “A judgment should be complete and certain in itself, and must appear to be the act and adjudication of the court, and not a mere memorandum of the action of the court. An entry in writing on the minutes of the proceedings of the court from which the record is made up does not in itself constitute the judgment, and the judge’s minutes are not records from which to ascertain the judgment of the court, where they consist of memoranda which, the judge makes upon his own docket, and which the law does not require him to make, but which are merely kept by him for his own convenience, and to enable him to see that the clerk accurately makes up the record. A judge’s calendar on which are entered the judge’s conclusions for the guidance of the clerk does not constitute a judgment. An order for judgment is not a judgment, nor does the entry of such order partake of the nature and qualities of a judgment. Thus while an order of court dismissing an action for jurisdictional reasons will • authorize the clerk of the court to enter judgment, such an order does not itself constitute a judgment, nor is it a final determination of any question. * * * In accordance with this principle it has been held that the words, ‘at this day the court ordered this cause dismissed, at plaintiff’s costs, taxed at three dollars and forty cents,’ do not constitute a final judgment, but amount merely to an order directing the entry of a judgment of dismissal.”

But we are not without a controlling statute, as Art. 1899 provides that all judgments pronounced shall be entered in the minutes of court by the district clerk “under direction of the judge.” This statute reads: “Such clerks shall keep a fair record of all the acts done, and proceedings had, in their respective courts; enter all judgments of the court, tinder direction of the judge [italics ours], and keep a record of all executions issued and the returns thereon, in record books to be kept for the purpose.” In several cases our courts have held that, judgments pronounced in open court, and later reduced to writing and signed by the judge, are final within the meaning of this statute. See Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717; Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445. So we think the conclusion inescapable that/ the mere pronouncement of a judgment, or a docket entry to that effect is wholly lacking in finality and is not appealable until either entered in the minutes of court, under direction of the judge, as provided in Art. 1899, or is written out in extenso and signed by the judge, which, as just shown, the courts hold, imports finality, and is equivalent to its entry upon the minutes “under direction of the judge.”

We think it obvious that the fact giving finality to a pronounced judgment is its entry in the minutes under the direction of the judge, as required by statute, or when it is written out in extenso and signed by the judge, which, as held in the cases cited, is tantamount to the same thing, for in either event, the judgment in its full and final form receives judicial sanction, and, until that is had, the pronouncement and/ or docket entries are but interlocutory in nature, subject to change, and not appeal-able.

However, in view of the decisions, we do not think the question is an open one in this state. This court, following the doctrine announced in many preceding cases, decided the question in Gilmore v. Ladell, 34 S.W.2d 919, as will appear from the following excerpt; we said: “Appellants’ motion for a new trial was overruled in the court below on July 23, 1930, the order was not entered on the minutes until' September 11, 1930, but on August 21, 1930, appellants attempted to perfect an appeal in forma pauperis. This attempt, however, was abortive, because the case was not ripe for appeal until the order overruling the motion was in fact entered upon the minutes. Speaking of a situation presented in Texas, etc., Co. v. Texas T. & L. Co., 50 Tex.Civ.App. 182, 110 S.W. 140, 142, such as we have here, Judge Pleasants said: ‘The appeal was not perfected within the prescribed time from the original rendition of the judgment. Appellant .could not have sustained an appeal from a judgment which the record did not show to have been entered, and therefore was not required to perfect its appeal until the judgment was entered. So long as the judgment remained unentered there was no necessity of an appeal, and it seems to be settled that in such case the right of appeal dates from the entry of the judgment.’ ” (Citation of many authorities.)

The Supreme Court, having refused application for a writ in this case, necessarily approved the doctrine announced. We also announced the same doctrine in Hamilton Motor Co. v. Muckleroy, 46 S.W.2d 451, and in Brinkley v. State, 49 S.W.2d 516. The Beaumont court made a similar holding in Commercial State Bank v. Blackwell, 61 S.W.2d 563; the San Antonio Court, in Reed v. Arnold, 103 S.W.2d 1100; and the Fort Worth court, in Merrick v. Street, 84 S.W.2d 518.

In the Gilmore-Ladell case, supra, we cited and quoted from cases involving appeals from nunc pro tunc judgments entered at a later term of court; the holdings being that, until the nunc pro tunc entry, the judgment was not final or ripe for an appeal. Obviously, this would be just as true of a belated entry of judgment at the same term of court, as to a nunc pro tunc entry at a subsequent term, for in neither case would the mere pronouncement of judgment justify an appeal, because not endued with finality, which is imparted only when the full and final draft of the judgment receives judicial approval. As before shown, where the judgment is entered upon the minutes by the clerk, the presumption obtains that, it was under the direction of and met the approval of the judge; also where, as has been held in the cases cited, the judgment as pronounced is reduced to writing and signed by the judge, it also receives judicial approval; the requisite fact in either event being that, the judgment, in its full and final form, receive judicial sanction which gives to it finality. Failing to find a single authority to the contrary, we conclude on principle, and in harmony with tlie unbroken line of authorities, that, appellants filed the transcript and statement of facts in this court within ninety days after the order overruling their motion for a new trial became a final judgment.

The only cases called to our attention, possessing a semblance of analogy to the case at bar, are Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445, and Cleburne Nat. Bank v. Bowers, 130.Tex. 637, 112 S.W.2d 717, heretofore commented upon; but, as shown, the judgment appealed from in each of these cases was reduced to writing and signed by the judge before the clerk performed the ministerial act of spreading same upon the minutes; hence, the court held in each case that the judgment became final and appeal-able when it was reduced to writing and signed by the judge, thus directing the clerk to enter same upon the minutes, as provided in Art. 1899, R.C.S.

We have written somewhat at length on the subject, owing to the seeming confusion that has arisen from certain language used by the Court of Civil Appeals in United States Cold Storage Co. v. Richards, 99 S.W.2d 697; by the Commission of Appeals, in the same case, 131 Tex. 148, 112 S.W.2d 445; also in Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717. As just shown, the judgment appealed from in each of these cases was reduced to writing and signed by the judge, before being entered in the minutes. So it appears that neither of the cases presented the identical question involved in Gilmore v. Ladell, supra, where the judgment was not reduced to writing and signed by the judge, and the premature attempt at appeal was from the judgment, prior to its entry upon the minutes. Notwithstanding the Supreme Court refused a writ of error in Gilmore v. Ladell, supra, the Court of Civil Appeals, obviously assuming that the same question was presented in United States Cold Storage Co. v. Richards, 99 S.W.2d 697, 698, said: “ * * * we decline to follow the opinion which deals with the issue of want of jurisdiction because the appeal bond was filed before the clerk actually copied the order overruling the motion for a new trial in the minutes. We do not believe that such pronouncement in the Gilmore Case, supra, is the law, and we so hold.” We respectfully submit that the Court of Civil Appeals was mistaken in assuming that, in the Gilmore-Ladell case, the trial court signed an order for judgment, because such is not reflected by the record, therefore, the cases do not present the identical question. But in discussing the case, under the style of Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445, 446, the Commission of Appeals, while approving the doctrine announced by this court in Gilmore v. La-dell, supra, seemingly implied that a different rule obtains, where an appeal is prosecuted from a nunc pro tunc judgment entered at a subsequent term, from the rule applicable where an appeal is from a belated entry at- the term the judgment is pronounced. We do not think there exists any reason for a different rule, as the only difference is merely one of nomenclature; the entry of a judgment at a subsequent term is denominated “nunc pro tunc” to distinguish it from an entry dujing the ferm at which the judgment is pronounced, but the reason why neither is appealable until entered upon the minutes, or reduced to writing and signed by the judge, obviously is because the statute (Art. 1899) provides that, the clerk shall enter judgments “under direction of the judge.”

In Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717, the Commission of Appeals, answering a certified question from the Court of Civil Appeals, held that the latter court did not err in holding that the judgment appealed from became final and appealable when reduced to writing and signed by the judge, although not spread upon the minutes until later. We are in absolute accord with that doctrine. But, in its certificate to the Supreme Court, the Court of Civil Appeals said: “It appears that our opinion is in conflict with the holding of- the San Antonio Court of Civil Appeals, in the case of Earnest v. Couch, 66 S.W.2d 483 * * *,” and in disposing of the case, the Commission of Appeals, at the conclusion of a discussion, said: “This conclusion appears to be in conflict with the case of Earnest v. Couch, Tex.Civ.App., 66 S.W.2d 483, and that decision is hereby disapproved.”

We respectfully submit that, on close examination, no conflict such as was mentioned will be found to exist. The appeal attempted in Earnest v. Couch, supra, as in Gilmore v. Ladell, supra, was from a judgment that had not attained the status of finality, because not entered upon the minutes of court until after the abortive attempt at an appeal- was made, and in neither had the judgment been reduced to writing and signed by the judge, prior to being entered upon the minutes, as was done in Cleburne Nat. Bank v. Bowers, supra. From all this, we think confusion has arisen as to the correct rule that should guide the practitioner in perfecting appeals and in filing records in Courts of Civil Appeals, and this confusion, in our opinion, was not removed by the language of the Commission in Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717, 718, stating: “This opinion is not to be construed as constituting any authority upon the question of when the right of appeal begins in cases where a motion for new trial is filed under Art. 2253, nor as affecting the question of when the time for filing transcript in the appellate court begins to run.”

To summarize, we are of opinion and so hold (1) that, as provided in Art. 2249, appeals are allowed only from final judgments, except from certain interlocutory orders expressly provided for; (2) that a judgment becomes final and appealable only when entered upon the minutes of court, or when reduced to writing and signed by the judge, tantamount to the same thing, as provided by Art. 1899, R.C.S.; and (3) that, the date from which to reckon the time within which any appeal may be perfected and/or the record filed in the Court of Civil Appeals is precisely the same, that is, the date on which the judgment becomes final.

For the .reasons heretofore stated, appellants’ motion for rehearing is granted and the former order of this court, striking appellants’ record and affirming the judgment below on certificate, is set aside, and appellee’s motions to strike and to affirm on certificate are overruled.

On Motion for Rehearing.

PER CURIAM.

On motion for rehearing filed by appellee, our conclusion of law is not challenged that “a judgment becomes final and appealable only when entered upon the minutes of court, or when reduced to writing and signed by the judge, tantamount to the same thing, as provided by article 1899, R.C.S.”; so, for the purpose here, we will adhere to our opinion reflecting our views on the law applicable to such cases. However, we reach a finding that the order of the trial court, overruling appellants’ (defendants) motion for new trial, was reduced to writing and signed by the trial judge on the 12th day of July, 1940, and that the transcript and statement of facts were filed in this court on October 19, 1940, the ninety-ninth day after the judgment had become final.

The order of the trial court overruling appellants’ motion for new trial, from which the filing of transcript and statement of facts in this cause must be reckoned, pertinent here, reads: “This the 12th day of July, 1940, came on to be heard the motion of defendant for new trial * * * it is, hereby overruled, * * * defendant then and there in open court excepted, * * * gave notice of appeal * * * ”, signed by the trial judge. The trial court’s docket sheet evidences the order having been signed on July 12, 1940, reciting: “July 12, 1940 — ent. order overruling defendant’s motion for new trial, J. 539.”; also, the “cost bill” corroborates the entry, as follows: “July 12, 1940 — E/O” (meaning, “enter order”) “overruling defendant’s motion for N. Trial” (meaning, “new trial”). Under article 1822, R.S., courts may make inquiry into jurisdiction and hear extrinsic evidence to show that a record does not speak the truth, where it shows jurisdictional facts. Accordingly, attached to appellee’s motion for rehearing and to appellants’ answer to the motion, are affidavits of the respective attorneys, pro and con, on the issue. Also, there is attached an affidavit of the trial judge to the effect that the order as entered speaks for itself. Thus, we are driven to the conclusion that the jurisdictional fact in issue is determinable from the record on file, and that the motion for new trial was reduced to writing and signed by the trial judge on the date shown therein, July 12, 1940, tantamount to the entry upon the minutes of the court, and the final judgment within the statute authorizing appeals, from which is reckoned the time for filing of the record in the Court of Appeals. Richards v. United States Cold Storage Co., 131 Tex. 148, 112 S.W.2d 445; Cleburne Nat. Bank v. Bowers, 130 Tex. 637, 112 S.W.2d 717.

Therefore, for the reasons above stated and the law applicable to such case, as pronounced in our original opinion, appellee’s motion for rehearing is granted, the order of this court, dated January 4, 1941, sustaining appellants’ motion for rehearing, is set aside, and the order dated November 9, 1940, sustaining appellee’s motion to strike appellants’ attempted appeal and affirming the judgment of the court below on certificate, is reaffirmed.