author: CRITZ, Justice.

text:
    LOEWENSTEIN et al. v. WATTS et al.
    No. 7491.
    Supreme Court of Texas.
    Feb. 28, 1940.

      Joseph G. Bennis and Ernest Guinn, both of El Paso, for plaintiff in. error.
    Armstrong & Jaffe and Kemp, Nagle & Smith, all of El Paso, for defendants in error.
   CRITZ, Justice.

This is an appeal in a proceeding which originated in the probate court of El Paso County, Texas. We adopt the statement of the case as contained in the opinion of the court of civil appeals. 119 S.W.2d 176. In order, however, that this opinion may be reasonably complete within itself, we make the following abridged statement:

James J. O’Brien died in El Paso County, Texas, on February 3, 1926. Corinne O’Brien, wife of James J. O’Brien, followed him in death five days later. Mr. and Mrs. O’Brien were survived by two infant daughters.-

Mr. O’Brien left a will, in which he bequeathed the legal title to all of his property, which consisted largely of realty, for a period of 21 years to J. J. Watts and O. R. Armstrong. Such will gave these trustees power to control, manage, handle, sell, encumber, transfer, assign, and convey the whole or any part of the estate bequeathed in trust. Also, such will gave such trustees power to reinvest, handle, control, make exchanges and compromises, as to such trustees might seem to the best interests of the estate and its beneficiaries. The two infant daughters above mentioned are named in the will as beneficiaries of the trust estate just mentioned. The State National Bank is named in the will as successor to Watts and/or Armstrong. Watts and Armstrong are named executors, and State National Bank is named successor to either or both of them. The will provides that no bond shall be required either of the executors or trustees. Also, it is provided that no action shall be had in the administration of the estate in the county court, except to probate the will and return an inventory.

Mrs. O’Brien also left a will, which, in. so far as this appeal is concerned, contains the same provisions as Mr. O’Brien’s will.

On February 10, 1926, Watts and Armstrong filed applications to probate the wills of Mr. and Mrs. O’Brien. Both wills were duly probated, and Watts and Armstrong duly qualified as independent executors, and commenced administering the two estates as such.

After the probate of the two O’Brien wills, and after the qualification of the independent executors above named, Mrs. Estella Loewenstein, purporting to act as temporary guardian of the persons and estates of the two infant daughters above mentioned, and as next friend for such daughters, filed applications to set aside the orders probating the O’Brien wills. On April 7, 1926, the probate court entered orders setting aside the original orders probating such wills. Of course, setting aside such probate orders operated to set aside the appointment of Watts and Armstrong as independent executors.

On April IS, 1926, Watts and Armstrong and State National Bank of El Paso made application to the probate court,for letters testamentary, and for certain other orders, not necessary to mention.

On May 4, 1926, the probate court entered orders reprobating the above wills, and appointing Watts and State National Bank as administrators with the wills annexed, and requiring a bond of $45,000 in each estate. Watts and the Bank qualified as executors with the wills annexed, as required by the above orders. Armstrong had theretofore waived his rights under these wills. State National Bank also qualified as guardian of the estates of the two O’Brien children, and such Bank has acted as such guardian at all times here involved.

On August 19, 1935, Mrs. Estella Loe-wenstein, as guardian of the persons and as next friend of the infant daughters above mentioned, joined pro forma by her husband, Joseph Loewenstein, filed in the probate court an application to remove Watts and State National Bank as administrators of these estates, and for an accounting. Watts and the Bank filed answers. Also, they filed application in the probate court to resign as executors with the wills annexed of these estates. With such application to resign, they filed final account. Mrs. Loewenstein, acting as guardian and as next friend of said minors, filed contest to such final account. The ‘final account was heard and considered by the probate court, and judgment rendered. The case was appealed to the district court, where final judgment was again rendered. All parties appealed to the Court of Civil Appeals. On final hearing in the Court of Civil Appeals, the judgment of the district court was reformed, and as reformed was affirmed. Mrs. Loewenstein, in the capacities above indicated, has prosecuted writ of error to the Supreme Court.

It appears from the record that J. J. O’Brien died in El Paso County, Texas, on February 3, 1926, and his wife, Corinnc Duran O’Brien, followed him in death at the same place only five days later. Both O’Briens died testate. Both wills were duly probated in the County Court of El Paso County, Texas. State National Bank of El Paso and J. J. Watts were appointed joint administrators of the two O’Brien estates with the wills annexed. The two estates were duly consolidated by order of the probate court, and since such order of consolidation the two estates have been administered as one. The final account of the joint administrators is here involved. It is an accounting as for the consolidated estates.

It appears that at the time of his death, J. J. O’Brien owed a balance on five promissory notes, originally aggregating the principal sum of $15,000. These notes constituted a community debt, and J. J. O’Brien’s will stipulated that his debts should be paid. These notes bore 8 per cent, interest, payable annually. They contained the usual past due .interest, default maturity, and 10 per cent, attorney fee clauses. They were secured by vendor’s lien on a tract of land in El Paso County, Texas. The land is a part of this estate. As we understand the record, the sum due on these notes has been duly approved and allowed as a claim of one Cog-gin, the payee therein.

On June 14, 1930, the last three of the Coggin notes supra, aggregating $9,000, were due and unpaid. In this connection, the record shows that this estate, on the date just mentioned, owed Coggin $9,000; that such debt was a valid, secured claim against this estate; that, under the terms of Coggin’s notes and contract incident thereto, Coggin had the right to demand sale of the land securing such notes; that Coggin was pressing for payment; that Coggin was in position to add the 10 per cent, attorney’s fee to his claim; that the estate was without funds to pay the Coggin claim; that the administrators had been unable to refinance the Coggin notes, and that a pressing emergency existed for the administrators to do any lawful act, or acts, with reference to such claim, that would save this estate from a substantial loss. With conditions as above detailed, on January 14, 1930, these administrators made application to the probate court for permission to borrow from the State National Bank, one of the administrators, the sum of $9,000, to take up the balance due oh the Coggin notes. On August 8, 1930, the probate court heard such application, and entered an order authorizing Watts and the Bank, as administrators, to borrow the sum of $9,000 from the Bank, the money thus acquired to be used to take up the Coggin indebtedness. In such order the court directed that the note of the estate, in the sum of $9,000, be executed and delivered to the Bank, and that such note be renewed from time to time until such indebtedness could be refinanced in other hands. The order authorized the note to bear 8 per cent, interest. This was the same interest the Coggin notes bore. The order under consideration also, authorized the administrators to cause the lien securing the Coggin notes to be transferred to the Bank, to be held by it, along with the original notes, as collateral security for the payment of the $9,000 note executed to the Bank. The order finally provided: “It is further ordered, adjudged and decreed by the Court that the administrators and trustees proceed to renew and extend the time of payment and refinance the notes evidencing said indebtedness, being part of the purchase money of the property described in deed from J. A. Cog-gin to James J. O’Brien of date March 17, 1925, upon such terms and conditions that may be to the best advantage of said estates and upon finding some one willing to lend said money to said estates, the Administrators and Trustees are hereby required to file a report showing the name of such person and the terms of said refinancing and renewal and to cause same to be confirmed by the Court.”

In compliance with the order above described, Watts and the Bank, acting as administrators of this estate, and also acting under the orders of the probate court, executed the estate’s note to the Bank for $9,000. The Bank took up the Coggin notes. Coggin, as a part of the transaction, transferred his notes to the Bank, and the note and contract of the estate to the Bank provided, in effect, that the Bank held the Coggin notes, and lien securing same, to secure the estate’s note to it. It appears that the estate’s note to the Bank has been renewed from time to time in conformity with duly entered probate orders. The interest on the Bank’s note was later reduced to 7 per cent.

It appears that the administrators have never been able to refinance the indebtedness above described, and in their final account charge this estate with the estate’s note to the Bank with interest. The district court allowed credit for the principal of the Bank’s claim, but denied it any interest. The Court of Civil Appeals allowed the Bank to take credit for both principal and interest.

Plaintiff in error contends that the Bank cannot be allowed to take credit for any sum, principal or interest, with regard to the Coggin note and transactions incident thereto, because such transactions involve a violation by the Bank of Article 3544, R. C.S.1925. Such statute reads as follows: “No executor or administrator shall purchase for his own use, either directly or indirectly, any claim against the estate he represents; and, should he do so, any person interested in the estate may upon written complaint, cause him to be cited to appear before the court; and upon proof of such complaint, the court shall enter an order upon the minutes canceling the claim so purchased; and such executor or administrator shall not be allowed to receive from the estate any portion of such claim.”

In our opinion, when we disregard form, and look to substance, the Bank, in this instance, purchased a claim against the estate it represented as administrator. It is true, in one sense, that the estate borrowed money from the Bank to pay a claim against it. However, in lending such money, and as a part of that transaction, the Bank took over the original claim and lien securing same, with the intent of keeping same alive. It, therefore, may be said to have purchased a claim against the estate it represented. If such purchase was made in violation of the above statute, the Bank is without right or remedy in regard to the Coggin transaction, and must, under the plain provisions of the above-quoted statute, suffer the total loss of the principal sum paid to Coggin, together with all interest thereon.

We now come to construe the above-quoted statute and to determine whether or not it was violated in the transaction regarding the Coggin notes.

In our opinion, the purpose and intent of Article 3544, supra, is to require of executors and administrators absolute loyalty and undivided allegiance. The statute is highly penal. In this regard, the executor or administrator who purchases a claim in violation thereof suffers the total loss of such claim. Undoubtedly the statute was enacted to protect and benefit estates—not to injure or damage them. If such statute is susceptible of construction, it should be so construed as to accomplish its purposes. When we read it as a whole, this statute does not absolutely prohibit any purchase by an executor or administrator of any claim against the estate he represents. On the other hand, it contains a very significant clause or phrase of qualification—“for his own use.” By the express terms of the statute, the purchase must n'ot be made by an executor or administrator “for his own use.” We think as used the phrase just quoted means for his own profit or benefit. To give the statute the construction that it prohibits all purchases of claims by executors or administrators, would be to disregard the phrase, “for his own use.” This we would not be justified in doing, as it would injure estates in time of distress by preventing executors and administrators from advancing financial aid for the purpose of benefiting them.

In the case at bar, we think this record justifies the conclusion that, in the transactions incident to the Coggin notes, this Bank acted for the benefit of this estate, and not for the purpose of acquiring a profit or benefit to itself. We-therefore hold that such Bank in such transaction 'did not purchase a claim against this estate “for his own use,” within the meaning of Art. 3544, supra-, and, therefore, in such transactions did not violate such statute.

Plaintiff in error contends that the Bank should not be allowed any credit on the note of the estate to it, above described, because the probate court was without jurisdiction to make the orders pertaining thereto—that is, pertaining to the various transactions incident to the taking up of the Coggin notes and taking the estate’s note with the Coggin notes attached as collateral security therefor. In this connection, it seems to be contended that at the time such transactions transpired, the probate court had no power to authorize an administrator to borrow money to pay claims due by estates, or to extend such claims. We note that the matters here involved transpired prior to the effective date of Article 3432a, Vernon’s Civil Statutes 1936, Acts 1931, 42nd Legislature, page 482, chapter 352, section 1. Such statute provides that an executor or administrator of an estate of any person may, upon application and order, authorizing the same, renew or' extend any obligation owing by or owing to such estate. We think that in borrowing the-$9,000 from the Bank no new debt was created. In legal effect an old debt was extended or renewed. There was a change in the person of the creditor, because the Bank took over the Coggin claim evidenced by the O’Brien notes. When the transaction with the bank is taken as a whole, it is merely shown that an old obligation owed by this estate was taken over by the Bank, and was renewed and extended. We think the probate court had power to authorize such renewal of extension by the administrators pursuant to court orders even prior to the enactment of Article 3432a, supra. Martin v. Dial, Tex.Com.App., 57 S.W.2d 75, 85, 89 A.L.R. 571. We quote the following from the opinion just cited:- “If the estate of J. C. Dial had been subject to the control of the probate court, that court would have possessed the power, upon proper showing by the executrix that a renewal of existing" indebtedness was necessary to preserve the partnership’s property in which the estate was interested, to have authorized her to join the surviving partner in the execution of such renewal. If she had done so under such authorization, there could be no doubt that the partnership assets would have been bound for the payment of such indebtedness. Since this is true, the joinder of Gertrude Dial as independent executrix in the renewal of such indebtedness would likewise bind the partnership assets, as she could do without order of the probate court any act which she could1 have done as an ordinary executrix under such an order.”

We here call attention to the fact that in his will J. J. O’Brien expressly provided for the payment of his debts. • We also call attention to the fact that the case just cited involved transactions occurring prior to the effective date of Article 3432a, supra.

Finally, we think that, even should we ignore and treat as void the $9,000 note executed by - this estate to the Bank, still the Bank, having taken over the Coggin notes, and not having violated any law in so doing, could take credit for them.

As we interpret the opinion on rehearing of the Court of-Civil Appeals, it holds that Watts and the Bank, in acting as administrators with the wills annexed, in this instance derived their powers from the general law, and not from the wills. We further interpret such opinion to hold that Watts and the Bank surrendered their authority as trustees and independent executors under the wills, when they accepted appointment as administrators with the wills annexed and qualified under such appointment.

Watts and the Bank earnestly insist that the above holding is erroneous. In this connection, they contend that since these wills vested them with legal title to real estate, only the district court has jurisdiction to divest such legal title, either with or without their consent. In this appeal only the final account of Watts and the Bank is involved. We think the judgment of the Court of Civil Appeals should be affirmed, regardless of the question here raised. We therefore express no opinion thereon.

We have carefully considered all assignments contained in the application for writ of error, and, in our opinion, the application presents no reversible error.

The judgment of the Court of Civil Appeals is affirmed.


source: Caselaw Access Project

author: SMEDLEY, Commissioner.

license: Public Domain

text:
    MYERS et al. v. CRENSHAW et al.
    No. 1808—7448.
    Commission of Appeals of Texas. Section B.
    March 6, 1940.

      Smith & West, of Henderson, and Paul E. Daugherty, of Houston, for plaintiffs in error.
    Mayfield, Grisham & Grisham and J. A. Lantz, all of Tyler, Bradley & Bradley, of Groesbeck, Lasseter, Simpson, Spruiell & Lowry, A. A. Garrett and F. W. Fischer, all of Tyler, Paul A. McDermott, of Fort. Worth, Brachfield & Wolfe, of Flenderson, Weeks, Hankerson & Potter and Charles F. Potter, all of Tyler, Charles L. Black, of Austin,' Clifford L. Stone and Stone & Wells, all of Henderson, Davis, Jester & George, of Corsicana, E. E. Fischer, of Houston, and E. W. Merritt, of McKinney, for defendants in error.
   SMEDLEY, Commissioner.

The suit was filed by plaintiffs in error against many defendants to recover title and possession of an undivided one-fourth interest in the oil, gas and other minerals in a tract of land in Rusk County containing 25 acres, and for damages on account of oil produced and taken. In the trial court and in the Court of Civil Appeals the case was complicated by conflicting claims of many parties, but as presented here the case calls for the decision of one question of procedure and of two or three related or incidental questions. In district court, after trial with a jury, judgment was rendered that plaintiffs in error take nothing by their suit. The Court of Civil Appeals reversed that part of the trial court’s judgment which denied recovery to plaintiffs in error and rendered judgment in their favor for an undivided one-fourth interest in the oil, gas and other minerals in the land, but made such judgment subject to the terms and provisions of an oil and gas lease which had been executed by Rufus Jones and wife to Roy H. Laird, and an-firmed the trial court’s judgment awarding leasehold estates under said lease to several of the defendants, who are defendants in error here. 116 S.W.2d 1125.

The writ was granted to plaintiffs in error Myers et al., who were plaintiffs in the trial court, and who seek reversal of that part of the judgment of the Court of Civil Appeals which made their recovery of the one-fourth interest in the minerals subject to the oil and gas lease. Plaintiffs in error contend that the oil and gas lease, in so far as it affected their interests, terminated on September 11, 1933, for nonpayment of rentals, while the defendants in error, who have title under the lease, maintain that the lease did not terminate. A brief statement of some of the facts and of some of the proceedings in the trial court is essential to the consideration of the question of procedure upon which the case, as here presented, turns.

The twenty-five acre tract of land was conveyed on March 17, 1920, to Rufus Jones, at a time when .he was married to his first wife, Arah Jones, the deed reciting a consideration. of $625, of which $150 was paid in cash and the balance was evidenced by notes secured by vendor’s lien expressly retained in the deed. Rufus Jones was divorced from his first wife, Arah, and thereafter, on September 11, 1930, leased the land for oil and gas to Roy H. Laird for a primary term of ten years. This lease contained the usual clause that, if drilling operations were not commenced within a year, the lease should terminate, unless the lessee should pay a stipulated rental, with provision for deferring annually thereafter the commencement of drilling operations by like payments of rentals during the primary term. The lease contained the following clause: “Should the right or interest of lessee be disputed by lessor, or any other person, the time covered by the pendency of said dispute shall not be counted against lessee either as affecting the term of the lease or the time for payment of rentals or royalties, or for any other purpose, and lessee may suspend all payments until there is a final, adjudication or other determination of such dispute”.

Rufus Jones and his second wife, on December 18, 1930, conveyed to B. F. Carroll an undivided one-half of the oil, gas and other minerals in the land, subject to the lease. Thereafter, on February 10, 1931, Rufus Jones and wife executed and delivered a deed conveying to Paul Daugherty'an undivided one-fourth interest in the oil, gas and other minerals in the land, subject to the lease. Plaintiffs in error through mesne conveyances are the owners of the title acquired by Daugherty under that deed.

When the time came for the payment of rental due under the terms of the lease on September 11, 1933, Warner-Quinlan Company of Texas was the owner, through assignments, of the leasehold estate. It failed to pay the rental when due, but did make payment a few days thereafter, three-fourths of the amount being paid to and accepted by Rufus Jones and one-fourth being paid to and accepted by Sun Oil Company, which had title under conveyance from B. F. Carroll. No part of the rental was paid to Paul Daugherty or to anyone claiming under him.

Defendants in error, who deraign title to the leasehold interests claimed by them through and under assignments from Roy H. Laird, had on the trial two defenses against plaintiffs in error’s suit. The first was that plaintiffs in error never acquired any interest in the minerals, because the tract of land was the community property of Rufus Jones and his first wife, Arah, and Rufus Jones by his conveyance of a one-half interest in the minerals to B. F. Carroll had exhausted all of his title or interest in the minerals before he made the deed to Daugherty under which plaintiffs in error claim. The second defense was that, even if Daugherty did acquire title to a one-fourth interest in the minerals, the title so acquired was subject to the oil and gas lease, which did not terminate, despite the tardy payment of the delay rental in 1933, because the title was in dispute when the time for the payment of that rental arrived.

Special issues bearing upon these defenses were, among other issues, submitted by the trial court to the jury. In answer to issues Nos. 11 and 12, which relate to the first of the two defenses, the jury found that after the rendition of the divorce decree Arah Jones stated to Rufus Jones that she was not interested in the twenty-five acre tract of land and that she would not pay anything on the then unpaid vendor’s lien notes given as part 'of the purchase price of the land, and that when Rufus Jones paid off the vendor’s lien notes he was relying on the said statements made by Arah Jones. The ninth special issue had reference to the second defense presented by defendants in error. It was: “Do you find from a preponderance of the evidence in this case that there was a dispute concerning the title to the land in controversy in this lawsuit on September 11, 1933?” It was answered “No”.

The judgment of the trial court that plaintiffs in error take nothing contains the recital that the court is of the opinion and finds that the evidence failed to show that the land or any interest therein was the separate property of Rufus Jones. The Court of Civil Appeals, however, reversed the trial court’s judgment and rendered judgment in favor of plaintiffs in error for the undivided one-fourth interest, subject to the lease, gave effect to the jury’s findings in answer to special 'issues Nos. 11 and 12, and held that by reason of the facts so found and other facts, which were undisputed, Arah Jones abandoned her title and was estopped to assert it. To that conclusion of the Court of Civil Appeals no error has been assigned.

There remains for consideration in this court only the second of the two defenses made by defendants in error in the trial court. With respect to it the Court of Civil Appeals held that the lease did not terminate for failure to pay the rental due .on September 11, 1933, because it was shown on the trial by undisputed evidence, which presented a question of law, that .there were at that time disputes of serious character as to the lessee’s title, such disputes being in part the basis of the present suit. Plaintiffs in error do not attack by any assignment of error in their application for writ of error the conclusion of the Court of Civil Appeals that the undisputed evidence shows that there were disputes as to the title on September 11, 1933, and nowhere in their application or in briefs filed in this court do they set out, or refer' to, any evidence contradictory of that discussed in the opinion of the Court ' of'' Civil Appeals as conclusively showing that there were such disputes concerning the title at that time. ' They rely upon the jury’s answer to issue No. 9 and contend that, on account of that find • ing and because of failure of defendants ⅛ error to file a motion, or a proper motion, under Article 2211 of the Revised Civil Statutes of 1925 (as amended by Chapter 77, Acts Regular Session, 42nd Legislature, 1931, Vernon’s Ann.Civ.St. art. 2211), asking the court to disregard the jury’s answer to issue No. 9 as having no support in the evidence, it was the duty of the trial court and .of the Court of Civil Appeals to render .judgment for plaintiffs in error for an undivided one-fourth interest in the oil, gas and other minerals in the land, free and clear of the oil and gas lease.

, Article 2211 was amended in 1931 by the insertion of the following: “Provided, that upon motion and reasonable notice the Court may render judgment non ob-stante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence”. This amendment was carefully construed and discussed in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970. In that case Mrs. Hines sued Parks for damages for breach of contract. The jury found in answer to one of several special issues that the consideration for the contract had failed. The only, motion filed by plaintiff was one in which she asked the court to render judgment in her favor in accordance with the terms and form or substance of a form of judgment attached to her motion. That form, in addition to the usual recitals, set out verbatim all of the special issues and answers, including the issue as to failure of consideration and the answer thereto, and concluded with an award to the plaintiff of the amount of damages fixed by the jury. There was nothing in the motion indicating that any issue should be disregarded because of •having no support in the evidence. The trial court, nevertheless, entered judgment for the plaintiff in accordance with the form attached to her motion. It was held that “the court was without authority to enter any judgment other than to declare a mistrial, or in conformity with the answer to special issue in favor of defendant.” [128 Tex. 289, 96 S.W.2d 971.]

Two reasons were given for the decision : that the motion filed by the plaintiff did not meet the requirements of the amendment to Article 2211 and that there was nothing in the, record to show that the required “reasonable notice” was given. The court did not, in the Hines-Parks case, give a form for a motion to disregard a special issue because having no support in the evidence, and it did not prescribe, as plaintiffs in error contend, “minimum requisites” of such motion. It was held .that the motion should he in writing, and as to the contents or substance of the motion, Judge German, who wrote the opinion, stated: “Such a motion, regardless of its form, would he sufficient if it designated the finding or findings which the court is called upon to disregard, the reason why same should be disregarded, and contained a request that judgment be entered upon the remaining findings after the specified findings had been set aside or disregarded”.

After careful consideration of the motions filed in the trial court by defendants in error, it is our opinion that there is in them sufficient compliance with Article 2211 as amended.

All of the defendants in the trial court joined in a motion, filed before the charge was given to the jury, in which they moved the court to instruct the jury to find for the defendants “as to all of the leasehold interest which is the ⅞ working interest in controversy in this case”. In the first paragraph of the defendants’ written objections to the court’s charge they objected “to any charge given to the jury for the reason that the court should give an instructed verdict as requested and contained in the motions heretofore filed by defendants in this case”.

On the 4th day of December, after the verdict was returned, all of the defendants filed a motion in which they moved the court to enter judgment in their favor non obstante veredicto, for the reason that “the findings of the jury are contrary to the law and the evidence, in that there was no evidence upon which to base the answers given by the jury to any of the issues save and except special issue No. 10”. There were in all sixteen issues submitted to the jury.

R. E. Moore, defendant in the trial court and defendant in error here, and who held a leasehold interest or estate through assignments under the Laird lease, filed, with other defendants before judgment was rendered, a motion in which he asked that the court render judgment that plaintiffs take nothing against defendants, notwithstanding the verdict of the jury, for a number of reasons, one of which was thus stated in the motion: “These defendants further say that they are entitled to judgment as against the plaintiffs as to the oil and gas leasehold estate, for the reason that the oil and gas lease originally executed by Rufus Jones to Roy Laird and now owned by defendants, contains the provisions that should the title of Rufus Jones to the entire 25 acre tract be in dispute or questioned that there would be no obligation on the part of the lessee to pay rentals to any person, not even to Rufus Jones, during the time such dispute or controversy over the title existed and said lease providing that the lessee would not be obligated to pay rentals under the terms thereof unless and until such dispute or controversy was finally settled and adjudicated. In this connection these defendants say that the uncontradicted evidence in this case shows that Arah Crenshaw was asserting a claim to an interest in the 25 acre tract of land as early as the latter part of 1931, as shown by power of attorney executed by the said Arah Crenshaw to W. H. Grier, filed- for record during the latter part of 1931, and that Opal Gene Givens was asserting a claim to an interest in the 25 acre tract of land as shown by powers of attorney and instruments of conveyance affecting said land executed by the said Opal Gene Givens to J. H. Merritt in the early part of 1933, as well as an oil and gas lease of record executed by the said Opal Gene Givens to B. G. Beckham; that the Kennedy heirs were claiming an undivided interest in said 25 acre tract of land as shown by power of attorney and instrument of conveyance executed to G. W. Morgan and filed for record during the early part of 1933, and all of said claims to an interest in said land being here and how involved in this lawsuit.” (Our italics.)

Other paragraphs of the motion filed by Moore made reference to other special issues and the answers thereto and asserted that the answers were contrary to the uncontroverted evidence, setting it out.

Plaintiffs in error insist that the two motions filed by defendants in error were insufficient to authorize the trial court to disregard issue No. 9 and the answer thereto and to render judgment in favor of the defendants who have interests under the lease. They take the position that the motions are motions for judgment notwithstanding the entire verdict and that they do not invoke the authority of the court, in rendering its judgment, to disregard issue No. 9 and the answer to that issue as a jury finding without support in the evidence.

This contention is based upon the form of the motions rather than upon their substance. It is true that the language of the two motions at their beginnings and ends apparently designates them as a motion for judgment non obstante veredicto and a motion for judgment notwithstanding the verdict. It is also doubtless true that, exactly speaking and following the literal language of amended Article 2211, a motion non obstante veredicto means a motion for judgment notwithstanding the entire verdict. However, a motion under the second proviso of the amended article, to disregard one or more of the special issue jury findings, is of character like to that of a motion for judgment notwithstanding the entire verdict. It is a motion for judgment notwithstanding a part of the verdict and is often referred to as a motion for a judgment non obstante veredicto. See for example Traders & General Insurance Company v. Milliken, Tex.Civ.App., 110 S.W.2d 108.

Looking to the substance of the two motions, the first of them, that in which all, of the defendants joined, is subject to objection as being too general and not setting out with particularity wherein or how the several issues referred to are not supported by evidence, but it does state that there is no evidence upon which to base the answers given by the jury to any of the issues except issue No. 10, and in substance and meaning it asks the court for that reason to disregard all or any of the special issues, except, issue No. 10, and to render such judgment as should be rendered when the said issues or any of them are disregarded, in other words, in rendering its judgment to disregard the issue or issues that are without support in the evidence. The motion does not point out issue No. 9 'by number but it designates all of the issues, except issue No. 10, and presents the contention that all of the sixteen findings of the jury, except that made in answer to issue No. 10, should be disregarded.

It is unnecessary to determine wliether the first of the two motions is sufficient of itself for compliance with amended Article 2211. It may be read in connection with, and may be aided by, the second of the two motions, that filed by defendant Moore. He and the other defendants holding assignments under the lease had and were making common defense against plaintiffs who claimed that the lease had terminated. Both motions, after the notice to plaintiffs, were presented to the court at the same time and the court in sustaining the quoted paragraph of Moore’s motion would disregard the finding made in answer to issue No. 9 and render judgment for plaintiffs for a one-fourth interest in the minerals but subject to the terms of the lease.

The paragraph of Moore’s motion above quoted does not describe issue No. 9 by number but the subject matter of the paragraph clearly designates that issue and unmistakably has reference to it and to no other issue. It sets out the clause of the lease with respect to disputes as to title, asserts that the uncontradicted evidence shows the pendency of three disputes concerning the title at the particular time, gives the nature of the disputes and. the manner in which the claims have been asserted and alleges that the defendants are entitled to judgment against the plaintiff “as to the oil and gas leasehold estate.” This paragraph of Moore’s motion, therefore, designates issue No. 9 and the answer thereto as a finding which should be disregarded, gives the reason why it should be disregarded, which is that it is contrary to the undisputed evidence, and requests that judgment be rendered against the plaintiffs as to the leasehold estate, which of course means-a judgment disregarding that finding.

Greater care in practice would have directed defendants in error to file two motions (or one motion containing distinctly separated grounds and prayers), the first in furtherance of their first defense, that plaintiffs. had never acquired any interest in the minerals, and the second in furtherance of their second defense, that the disputes as to title saved the lease from termination. One motion would have been for judgment notwithstanding the entire verdict, as authorized by the first proviso of the statute, and the other motion would have been for the entry of judgment after disregarding special issue No. 9, as authorized by the second proviso. But-we are unwilling to disregard the substance of the motions on account of imperfection in form. The trial judge who read the two motions could not fail to understand that defendants in error were asking that the finding in answer to special issue No. 9 be disregarded because not supported by evidence.

Plaintiffs in error advance three other reasons in support of their contention that defendants in error may not on appeal be heard to complain of the jury’s answer to special issue No. 9 as having no support in the evidence: (1) because defendants in error requested the trial coyrt to submit a special issue substantially the same in form and substance as issue No. 9; (2) because some of the defendants in error made a motion for judgment based on the verdict; and (3) because defendants in error failed to file in the Court of Civil Appeals an assignment of error attacking special issue No. 9 as not supported by evidence.

The first of these three positions would be well taken but for the amendment in 1931 of Article 2190 of the Revised Civil Statutes of 1925 (Acts Regular Session, 42nd Legislature, Chapter 78, Vernon’s Ann. Civ. St. art. 2190). Prior to its amendment that article provided that “a claim that the testimony was insufficient to warrant the submission of an issue may be complained of for the first time after verdict”. By the decisions the right to make such complaint after verdict was denied to a party who had requested the submission of the issue. Haynes v. Taylor, Tex.Com.App., 35 S.W.2d 104. The amendment made in 1931 changed the last sentence of Article 2190 to read: “A claim that the evidence was insufficient to warrant the submission of any issue may be complained of for the'first time after verdict, regardless of whether the submission: of such issue was requested by the complaining party”. Thereby the right to complain after verdict that the evidence was insufficient to warrant the submission of an issue was extended to a party who had requested the submission of the issue.

The amendment of Article 2211 hereinbefore discussed and the amendment of Article 2190 were made at the same session of the legislature and were approved by the governor on the same day, being parts of legislation, as stated in the emergency clauses of the two acts, to simplify court procedure. They should be read together. When so read they authorize the trial court, on motion of a party who has requested the submission of a special issue, to disregard the jury’s finding in answer to the issue when the finding “has no support in the evidence”. The phrase last quoted is used in the amendment of Article 2211, while1 the phrase used in the amendment of Article 2190 is “a claim that the evidence was insufficient to warrant the submission of any issue”. The two phrases have reference to the determination by the court after verdict of a question of law, that is, the absence of evidence to raise an issue' or to support a finding. The court is authorized after verdict, on proper motion,to disregard a finding that has no support in the evidence and the party is permitted-to make complaint after verdict that the evidence was insufficient to warrant the submission of the issue, which of course is but another way of saying that there was ño evidence to raise the issue. It is apparent that the word “insufficient” in- the amendment of Article 2190 is not used in the factual sense of insufficiency to support' a finding which the jury has made. Defendants in error,' in their motions which" have been discussed, complained after verdict that there was no evidence to support' the jury’s' answer to issue No. 9, which necessarily is the equivalent of Complaining that the evidence was insufficient to warrant the submission of the issue to- the' jury. The procedure followed was authorized by the statuté.

The record shows that some of the defendants, after the verdict was returned, filed informal motions praying the court to enter judgment in their favor. When these motions were filed there was on file the motion for judgment notwithstanding the verdict filed by all of the defendants on December 4, 1935, and which has been above discussed. The trial court’s judgment contains a recital overruling all motions for judgment on the verdict filed by plaintiffs, intervenors and defendants “in so far as the judgment herein rendered may be in conflict, if at all, with the findings of the jury”. The judgment then recites the hearing, after notice, and the consideration by the court of, the motions of the defendants that plaintiffs take nothing, and the finding of the court that the evidence failed to show that the land in controversy was the separate property of Rufus Jones. These recitals are followed by the court’s order on said motions in the following language: “And if the findings or any one or more of the findings of the jury are contrary to such finding by the court, to such extent the finding or findings of the jury is set aside and judgment herein rendered notwithstanding such finding”. It was thereupon ordered, adjudged and decreed that the plaintiffs take nothing. Such being the record, we do not believe that the defendants in error who filed the informal motions for judgment after the verdict may be said to have waived or abandoned their motions in which they asked the court to disregard certain findings of the jury and to enter judgment in their favor or that they should be estopped from asserting on appeal that the finding made in answer to special issue No. 9 was not supported by the evidence. The case is not one like those cited by plaintiffs in error in which the parties" filed motions for judgment on the verdict without making any attack upon the findings of the jury. Here the defendants in error. by their motion for instructed verdict, by their objection to the court’s charge, and by their 'motions asking the court to disregard the jury’s answers to _ certain issues, including issue No. 9, and the presentation of those motions to the trial court, were continuing to insist upon. their contention that, according to the undisputed evidence showing the existence of disputes as to title, the lease had not terminated.

As is shown by the foregoing statement with respect to the trial court’s judgment and the quotations from it, the trial court made 'no express ruling either granting or overruling defendants in error’s motions in so far as they asked the court to disregard the jury’s answer to issue' No. 9. The judgment rendered was that the plaintiffs take nothing, based upon the trial court’s finding that the evidence failed to show that the land was the separate property of Rufus Jones. The question whether a recovery of title by the plaintiffs should be subject to or free from the lease was never reached and never decided by the trial court, because it held that the plaintiffs were entitled to recover nothing at all. It cannot be said that the trial court’s judgment is to any extent or in any particular inconsistent with a conclusion that there was no evidence to support the answer to issue No. 9, or that any implication can arise from the judgment that the court would have found, if it had passed on that question, that there was evidence to support that special issue finding. It seems apparent, therefore, that there was no occasion for defendants in error to file a cross assignment of error relating to issue No. 9. What error against them did the trial court make? Its judgment was more favorable to them than if it had sustained their motion only to the extent of disregarding special issue finding No. 9.

If, however, a cross assignment of error was necessary, we believe that the point was presented to the Court of Civil Appeals, with enough- formality to justify that court in considering it, by the sixth cross assignment of error and the first counter proposition contained in the briefs of defendants in error Beren and Wiley filed in that court. The cross assignment of error and proposition submitted to the Court of Civil Appeals for decision the contention consistently made by defendants in error, and sustained by that court, that,as shown by the undisputed evidence, there existed disputes as to the title, by reason of which the lease did not terminate for nonpayment of rental.

The’judgment of the Court of Civil Appeals is affirmed.:

Opinion adopted by the Supreme Court.


author: HARVEY, Commissioner.

text:
    BARRON G. COLLIER, Inc., v. CONNELLEY et al.
    No. 2296—7458.
    Commission of Appeals of Texas, Section A.
    Feb. 28, 1940.

      J. R. Ogle and Smoot & Smoot, all of Wichita Falls, for plaintiff in error.
    Walter Nelson, of Wichita Falls, for defendants in error.
   HARVEY, Commissioner.

In the year 1930, and succeeding years, Barron G. Collier, Inc., of Texas, a Texas corporation, owned all display advertising rights in-, connection with the street cars and passenger busses operated in Wichita Falls, Texas, by the Wichita Falls Traction Company. On April 29, 1930, said corporation, which we shall, for convenience, call “Collier,” entered into a written contract with Milo Connelley who was conducting a bakery in Wichita Falls under the name “Cream Bakery Company.” Connelley was the principal owngr and manager of said bakery business. By the terms of said contract Collier was to furnish Connelley, for the term of five years, advertising space in street cars and busses operated by said Traction Company. Connelley was to furnish the advertising cards to occupy said advertising space, and Collier was to keep them properly displayed there. In the contract was specified the amount which Con-nelley was to pay monthly for said advertising service. The operations under this contract proceeded, and on June 11,- 1931, the contracting parties found it suitable to rearrange the rate and amount of monthly installments which Connelley was to pay for said service. On the last mentioned date they entered into a second contract, in lieu of the first one, whereby the term of advertising service was made five years from July 1, 1931, and the rate and amount of monthly payments by Connelley were readjusted accordingly. In this contract the advertising service which Collier was bound to furnish was, as specified in the contract, “for full advertising service in the Wichita Falls Traction Company cars and busses.” .The performance of this advertising service proceeded and in June, 1933, Connelley was in arrears with his monthly payments and an agent of Collier agreed with Connelley to rearrange the rate and amount of monthly payments in respect to Said advertising service. In pursuance of this agreement, said agent of Collier prepared a third contract for Con-nelley to sign. As prepared by said agent, the new instrument provided that the advertising service which Collier was to furnish was “Double full advertising service in street cars of and/or busses Wichita Falls Traction Company.” The proper rearrangement in respect to rate and amount of monthly payments was provided in the new instrument, in accordance with the new agreement of the parties. Except in the respects above mentioned the provisions of the new instrument which the agent prepared were the same as those contained in the second contract of June 11, 1931. On June 7, 1933, the agent presented this new instrument to be signed,” telling Con-nelley that it was in all respects the same as the second contract except in so far as the matter of rate and monthly payments was concerned. Connelley, in reliance on this representation of said agent, signed the instrument without reading it. On July 5, 1933, the traction company ceased to operate street cars and same were replaced by busses, and since that time, of course, Collier has not attended to carrying advertising matter in street cars. This suit was brought by Collier in the year 1936, to recover the unpaid balance of the amount which \yas due at the time the third contract was executed, and for advertising service after the third contract was executed. Connelley admits that he owes a comparatively small balance for service performed before the third contract was executed, but denies all liability in respect to the third contract and seeks cancellation of said third contract on the ground of fraud. In the trial court the case was tried before a jury on special issues, and in answer to said special issues, the jury found, in effect, that Connelley signed the third contract without reading it, because of the false representation of the. agent of its contents, and therefore Connelley did not know when he signed it that the term “and/or” appeared therein between the words “street cars” and the word “busses.” Upon these fact findings of the jury the trial court rendered judgment in effect canceling the third contract and denying any recovery thereon, but awarding Collier a recovery of the amount of the unpaid balance which Connelley admitted that he owed at the time the third contract was executed. From this judgment Collier appealed and the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. In so doing the Court of Civil Appeals held in effect that the trial court properly canceled the third contract • because of the term “and/or” which had been introduced therein in consequence of the fraud of Collier’s agent, and further held in effect that the terms of the second contract alone governed the rights of the parties. 116 S.W.2d 849. Both parties have been granted the writ of error.

We think that the Court of Civil Appeals erred in holding in effect that the false representation made by Collier’s agent affords Connelley the right to have the third contract canceled. The controversy relates to the term “and/or” which appears in the first paragraph of said contract, which paragraph, so far as material, reads as follows:

“The undersigned, hereinafter called the Advertiser, hereby contracts with Barron G. Collier, Inc., of Texas, a Texas Corporation, hereinafter called the advertising company, for double full service of advertising in the street cars of and/or busses Wichita Falls Traction Co.” Connelley complains of the presence of the word “or” in the above sentence, for the reason that the agent of Collier falsely represented to him that, except as to the matter of rate and monthly payments, the terms of the third contract were the same as those of the second contract in which the term “street cars and busses” was used. As regards street cars this word “or” contained in the sentence mentioned purports nothing more than an option on the part of Collier to dispense with performing any advertising service so far as those vehicles were concerned. This option, however, was never exercised. On the contrary Collier furnished service in connection with street cars up to July 5, 1933, when the traction company ceased to operate street cars. In the third contract, as well as in the second contract, the following provisions, among others not presently material, appear:
“The advertiser agrees, at his or its own expense, to furnish cards for said advertising and to deliver the same to the advertising company. * * * Display of advertising cards in all of the cars in operation by the above named railway company or companies (or in the group of cars as above described) shall constitute ‘full service' * * *. This contract shall not be construed to cover cars in which advertising is not permitted by the railway company.” These provisions make it plain that the contracting parties contemplated that cessation of operation of street cars would remove those vehicles from the advertising project but would not terminate the contract. Inasmuch as Collier furnished advertising service in relation to street cars so long as they remained in operation, it is readily seen that the presence of the word “or” in the clause in question has resulted in no injury to Connelley. It is the settled rule that a court of equity will not cancel a contract for fraud unless the complaining party has suffered injury as a result of the fraud. Russell v. Industrial Transportation Co., 113 Tex. 441, 251 S.W. 1034, 51 A.L.R. 1. It follows therefore that the third contract is valid and the trial court erred in rendering judgment in effect canceling same.

For the reasons hereinabove shown, the judgment of the Court of Civil Appeals reversing the trial court’s judgment and remanding the cause, is affirmed.

Opinion adopted by the Supreme Court.


author: GERMAN, Commissioner.

text:
    EL PASO ELECTRIC CO. v. BARKER.
    No. 2289—7439.
    Commission of Appeals of Texas, Section A.
    March 6, 1940.
    Brown & Brooke, of El Paso, for plaintiff in error.
    Wilchar & Wilchar, of El Paso, for defendant in error.
   GERMAN, Commissioner.

This suit was instituted by the defendant in error, Clara Barker, against the El Paso Electric Company, to recover damages for personal injuries received by her while riding as a passenger in one of the motor buses operated by the company in transporting passengers in the City of El Paso. The case was tried before a jury on special issues, resulting in a judgment for Mrs. Barker for damages in the sum of $5,000. The company appealed and the Court of Civil Appeals affirmed the trial court’s judgment. 116 S.W.2d 433. The company has been granted the writ of error. The parties will be designated as in the trial court.

It appears in testimony that plaintiff got aboard the bus in question and sat down on a seat provided for passengers. This seat was in the front end of the bus, on the right hand side of the aisle. She occupied the portion of the seat next to the aisle. Another passenger was occupying the other portion. The seat had no side arm at the end next to the aisle. As the bus was turning a corner to the right at a street intersection, plaintiff, who was a woman of short stature, slipped off the seat into the aisle and was injured.

Two grounds of negligence were submitted to the jury:

1. That in making a turn at the corner of certain streets in the City of El Paso the bus was driven at a fast, negligent and excessive rate of speed. In answer to special issue No. 2 the jury found that the bus was not being driven at an excessive rate of speed under the circumstances. This ground therefore has gone out of the case.

2. The other ground which was submitted to the jury was set out in plaintiff’s petition in this language: “That defendant was negligent in failing to provide its passengers with safe seats in which to ride, and especially a passenger of plaintiff's size, she being a woman of small stature, in that there was no guard rail in front, and in that the defendant did not have an arm on the outside of said seat that would prevent a passenger of plaintiff’s size from being thrown in the aisle of said bus, in the event of its swerving suddenly to the right without warning, as was done by the defendant.”

In connection with this ground of negligence the court submitted the following issues :

“Do you find from a preponderance of the evidence that the seat in defendant’s bus occupied by plaintiff, was without a side arm on the outside of said seat, to prevent a passenger being thrown therefrom ?” To this the jury answered “Yes.”
“Do you find from a preponderance of the evidence that it was negligence on the part of the defendant to fail to have provided the said seat with a side arm on the outside of same?” To this issue the jury answered “Yes.”

They further answered that this negligence . was the proximate cause of plaintiff’s injury.

The effect to be given these findings is to some extent determined by the finding to special issue No. 1 as follows:

“Do you find from a preponderance of the evidence that plaintiff was thrown from her seat in defendant’s motor bus, by force incident to a turn -to the right, occurring at the corner of Copia and Pera Streets?” To this the jury answered “Yes.”

As the jury has found that the turning the corner was the cause of plaintiff’s fall to the floor of the bus, and has in effect found that the bus was not turned in a negligent manner, the real question presented is whether or not plaintiff made any proof to sustain her allegation that it was negligent not to have an arm upon the seat. As we view the evidence, there was no proof to show that defendant owed plaintiff the duty of providing for her a seat with an arm. We are further of the opinion that the mere happening of the accident is not proof that defendant owed this duty.

Plaintiff having alleged that there was negligence in failing to have an arm on the seat, it was incumbent upon her to produce evidence to show prima facie that defendant owed the duty of constructing seats with arms. There was no proof whatever upon this point. The only circumstance that existed tending to show such duty is the fact that if there had been an arm upon the seat plaintiff would not have slipped off same. This proves nothing as regards the duty of placing an arm upon the seat. The case falls squarely within the rule stated by Shearman and Redfield, quoted with approval by Thompson on Negligence, volume 3, p. 220. Speaking of- the character of proof essential in such a situation, it is said, “There must be prima facie proof that the'proximate cause of such injury was a want of something which, as a general rule, the carrier was bound to supply or the presence of something which, as a general rule, the carrier was bound to keep out of the way.” (Emphasis partly by author.) If it should be conceded that jurors have a right to conclude that it was negligence not to have an arm upon the seat, merely because the presence of an arm might have prevented a fall from the seat, the conclusion would necessarily follow that another jury might conclude that some other injury would not have occurred but for the presence of the arm upon the seat; so that it could be said with the same certainty, based upon the same circumstance, that it was negligence to have the arm upon the seat. We have therefore concluded that there was a lack of proof showing that the absence of an arm constituted “something improper or unsafe in defendant’s appliances of transportation.” See Section 2757, Thompson on Negligence.

Defendant strongly contends that as it was conclusively shown that its bus, as regards a side arm on the seat, was constructed as buses are usually and ordinarily constructed, this established as a matter of law there was no negligence on its part. As the only evidence in regard to the construction of buses was by one of the officials of the company, for this reason, if no other, it cannot be said to have conclusively established lack of negligence.

There was undoubtedly misconduct upon the part of the jury which amounted to reversible error, but as such will probably not happen in the event of another trial, it is unnecessary to discuss same.

The judgments of the Court of Civil Appeals and of the trial court are reversed and the cause is remanded.

Opinion adopted by the Supreme Court.


text:
    HARRIS REALTY CO. v. AUSTIN.
    No. 2302—7473.
    Commission of Appeals of Texas, Section A.
    March 6, 1940.
    George W. Graham, of Houston, for plaintiff in error.
    L. A. Kucera, of Houston, for defendant in error.
   HARVEY, Commissioner.

This is an action of trespass to try title instituted by the plaintiff in error, Harris Realty Company, a corporation, against the. defendant in error, D-. H. Austin, to recover a certain vacant lot in the City of West University Place in Harris- County. In his answer to the suit, Austin pleaded not guilty and also set up a cross action for the recovery of the lot. The case was,-tried before the court without a jury. The trial resulted in judgment in favor of Austin. The Realty Company appealed and the Court of Civil Appeals affirmed the judgment of the trial court. 118 S.W.2d 491. The Realty Company has been granted the writ of error. The facts are undisputed. -They are substantially as follows:

The parties claim title to the lot from a common source, Albert J. Schuetze, being the common source. Schuetze acquired the lot in January, 1926. ' On December 20, 1928, one Dr. Earl W. Thoma recovered in the county court at law of Harris County a money judgment against Schuetze. Execution was issued under this judgment on January 24, 1929, and was returned nulla bona by the .sheriff. On March 4, 1929, an abstract of said judgment was duly recorded in the of-, fice of the County Clerk of Harris County as provided by law, thus fixing a judgment lien on the lot. On April-26, 1934, an alias execution was issued under said judgment and.said writ was, on the same day, levied on the lot by the sheriff, and that officer duly proceeded to advertise the sale of said lot. The sale was duly made on June 5, 1934. D. H. Austin became the purchaser of the lot at the sale, and the sheriff duly executed to him a deed to the lot. This deed was duly recorded June 11, 1934. In the meantime, Fain-Townsend Company; a corporation, filed suit in the District Court of Harris County against Schuetze. This suit, which we shall call the paving lien suit, was filed on May 5, 1934. In the suit, Fain-Townsend Company; the plaintiff therein, sought recovery on an alleged paving certificate and for the foreclosure of an alleged paving lien on the lot. In respect to said suit, there was duly filed in the office of the County Clerk of Harris County, on May 9, 1934, a lis pendens notice in accordance with Article 6640 of the Revised Statutes. On June 14, 1935, judgment was rendered in said suit in favor of Fain-Townsend Company for the amount of the paving certificate and foreclosing the alleged paving lien on the lot. Among other recitals contained in said judgment are these: (1) “That under date of May 17,' 1929, the City Commission of said city-passed an ordinance by the terms of which said sum of money was assessed against said property and said owner, and by which a statutory lien was fixed upon said property to secure the payment of said assessment, and by which 'said lien was made superior to all other liens, except for ad valorem taxesand (2) “That plaintiff is the legal owner and holder of said paving obligation.” Order of sale was duly issued as directed in said judgment, and, on December 3, 1935, the lot was sold under the order of sale. The City Realty Company, a corporation, was the purchaser at the sale, and' the sheriff duly executed to said company a deed to the lot. On October 10, 1936; the City Realty Company executed to the Harris Realty Company a deed to the lot. The foregoing is the substance of all the evidence introduced at the trial.

It is contended by counsel for Harris Realty Company that because the lis pendens notice of the paving lien suit was duly on file at the time Austin purchased the lot at the sheriff’s sale on June 5, 1934, the judgment which was subsequently rendered in the paving lien suit concluded him. This contention is untenable. With reference to lis pendens notices prescribed in the same chapter of the revised statutes, Article 6643, Vernon’s Ann.Civ.St. Art. 6643, provides that the filing of such lis pendens notices “shall be notice to all the world of their contents and that the suit or suits mentioned therein are pending, and such notices shall operate as soon as filed with the county clerk for record, as provided in this Chapter whether service has been had on the parties to said suit or not.” It is seen from this statute that the filing of the lis pen-dens notice operates merely as notice to everybody of the pendency of the suit. It does not have effect to expand in the slightest degree the general rule, pertaining to the doctrine of res adjudicata, which is to the effect that the judgment in! the suit concludes nobody but the parties to the suit and those whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the suit,-and'which accrued subsequent to the commencement of the suit. See Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044. The rights of a lienholder, whose lien arose prior to the commencement of such suit, are not affected by the adjudications made in the suit unless he be made a party to the suit. This holds true regardless of the fact that such lienholder has notice of the penden-cy of the suit. McDonald v. Miller, 90 Tex. 309, 39 S.W. 89. In the present instance, the paving lien suit was commenced on May 5, 1934. At that time, Dr. Thoma held a valid and subsisting judgment lien on the lot, which had been duly fixed as against Schuetze, the defendant in the paving lien suit, on March 4, 1929. That lien was in process of foreclosure under the alias execution which had been levied on the lot on April 26, 1934. The commencement and pendency of the paving lien suit did not affect in anyway the right of Dr. Thoma to proceed to foreclosure of his judgment lien by means of sale under the alias execution. Austin becoming the purchaser at such sale, acquired, under the sheriff’s deed, the title to the lot as of date March 4, 1929, when the judgment lien was fixed on the lot. Austin took title to the lot, of course, subject to any outstanding superior lien of which he had notice. His title, however, was not divested by the judgment which was after-wards rendered in the paving lien suit, for the reason that neither he nor Dr. Thoma was a party to that suit. Baker v. West, 120 Tex. 113, 36 S.W.2d 695; 26 Tex.Jur. p. 243.

Specifically, our conclusion is that, as against Austin, who holds the title to the lot, under the sheriff’s deed of June 5, 1934, the recitals and decretals of the paving lien judgment do not, of themselves, have effect to show that the plaintiff in the paving lien suit held any sort of lien on the lot, let alone a lien which was superior to the judgment lien held by Dr. Thoma. Nor as against Austin, do such recitals and decretals, of themselves, have effect to show that the purchaser at the foreclosure sale under that judgment acquired title to the lot which is superior to that held by Austin.

The judgment of the trial court and that of the Court of Civil Appeals both are affirmed.

Opinion adopted by the Supreme Court.


author: CHRISTIAN, Judge.

text:
    BREWER v. STATE.
    No. 20863.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    J.. A. Rhodes, of Navasota, for appellant.
    ■ Lloyd W. Davidson, State’s Atty., of-Austin, for the State.
   CHRISTIAN, Judge.

■ Conviction for a misdemeanor; punishment being assessed at a fine of $50.

The trial court adjourned August 26, 1939. Under Article 760, subd. 5, C.C.P., the time allowed by law for filing the statement of facts in a misdemeanor case, in the absence of an extension of time by order of the court, is thirty days after the day of adjournment of court. Cadrin v. State, 129 Tex.Cr.R. 525, 89 S.W.2d 1001, and authorities cited. On the 11th of November, 1939, appellant filed a statement of facts in the trial court. The court entered no order granting appellant an extension of time. The statement of facts,having been filed more than thirty days after the date of the adjournment of court,' can not be considered.

No bills of exception are brought forward.

The judgment is affirmed.

PER CURIAM.

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


author: GRAVES, Judge.

text:
    SINGLETON et al. v. STATE.
    No. 20872.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.

      Tom L. Robinson, of Gatesville, and F. H. Hammond, of Burnet, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Appellants were both tried before the district judge on a plea of guilty to the theft of sheep, and sentenced to serve a term of three years each in the penitentiary.

It appears from the record that there was no attorney present at the trial representing the appellants, and none was appointed by the court to advise with them. There was a motion for a new trial filed alleging, among other things, that appellants each made a confession relative to the main facts in the matter herein charged, and that they were induced to make such confession, and to enter a plea of guilty in this cause because of a promise made to them by the sheriff that they would be each given a suspended sentence on their plea of guilty. This matter was gone into fully upon the hearing of the motion for a new trial, and was by the court not sustained. We are of the opinion that the court was correct in his holding, and such a contention -was not sustained by the evidence.

However there is a more serious matter presented herein not only by the motion for a new trial but also in a bill of exceptions. It is gathered from the record that appellants desired to file an application for a suspended sentence, and that they were advised by some of the officers of the court that they could not make an application for a suspended sentence because of the fact that they were charged in two indictments with the theft of sheep, and it would not avail them should they receive a suspended sentence in one case, and then upon a'subsequent conviction in the second case such suspended sentence would be revoked. The trial court qualifies such bill as follows : “The court undertook to explain fully to the defendants and each of them their rights (1) with respect to having two days *n which to prepare for trial (2) a suspended sentence application and the appointment of an attorney in connection therewith; and (3) a jury trial, waiver of the same and the appointment of an attorney in connection therewith. Thereafter the court understood that each defendant was waiving all such rights in pursuance of an agreement with the district attorney that each was to get a sentence of two years in each of the two cases, same to run concurrently. The court considered that all such rights could be thus waived under the provisions of Art. 11, C. C.P., as amended by Acts 1931, 42nd Leg., p. 65, Ch. 43, Sec. 2 [Vernon’s Ann.C.C. P. art. 11].”

We are at a loss to understand what was meant by the trial court in his above qualification wherein he states: “that each was to get a sentence of two years in each of the two cases,” on account of the fact that each received a sentence of three years in each of the cases. However we are of the opinion that the trial judge erred in not appointing an attorney to represent the appellants in the matter of waiving a jury and entering their plea of guilty before the court. Art. 10a, C.CP., Vernon’s Ann.Texas Statutes, provides as follows :

“The defendant in a Criminal prosecution for any offense classified .as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must b,e made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approval by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.
“Provided, that before a defendant who. has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.”

■ It is true that Art. 11 of the same Code provides that the defendant can waive any right secured him by law in a criminal case save the right of trial by jury in a felony case upon a plea of not guilty, which latter legislative enactment was a part of the same bill as Art. 10a, and passed at the same time. See Acts 42d Legislature, Regular Session, page 65.

However it is to be noted that the waiver of a trial by jury can only be made after an attorney has been appointed to represent a defendant who is without counsel.

We recently held in the case of Hernandez v. State, 133 S.W.2d 584, delivered November 22, 1939, not yet reported [in State Reports], that “This provision of the statute seems to be mandatory, and before a person charged with a felony can waive this valuable right of a trial by jury, provided he has no attorney representing him, we hold it is the duty of the trial court to appoint one for him.”

We again hold that, under a felony charge, one cannot waive the right of a trial by jury, in a plea of guilty, if he has no attorney, unless the court has theretofore appointed an attorney to represent him. That such appointment is a prerequisite to his entering into such waiver.

We think that if the appellants so desire, if they have no attorney representing them, or either of them, then' the trial court should appoint one for the purpose of preparing and filing an application for a suspended sentence, the submission of such an application to be governed by the trial court under the rules of law.

For the failure to appoint an attorney to advise with the appellants relative to their waiver of a jury, this judgment is reversed and the cause remanded.


text:
    SINGLETON et al. v. STATE.
    No. 20873.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Tom L. Robinson, of Gatesville, and F. H. Hammond, of Burnet, for appellants.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

This cause is practically identical with our No. 20872, 137 S.W.2d 21, the same appellants, the same class of felony, and the same facts, except one case is for the theft of two sheep, and one for the theft of. three sheep from the same person, the dates of the offenses being only one day apart.

The same facts, procedure, and practically identical bills, with the same trial court’s qualifications.

We are of the opinion that the same rules of law govern this cause as were announced in the above numbered companion case, and on the reasoning and authorities cited in No. 20872 this judgment is reversed and the cause remanded.


author: KRUEGER, Judge.

text:
    PARKER v. STATE.
    No. 20793.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1940.

      J. Chacon, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the,State.
   KRUEGER, Judge.

The offense is murder; the punishment assessed is confinement in the state penitentiary for life.

The state’s testimony shows that on the night of November 14, 1937, appellant (a negro) met a girl friend at a beer tavern and restaurant in Hondo, Texas. They ate some sandwiches and later drank some beer. Martin Perez, a Mexican, had incurred appellant’s ill-will, either by making advances to appellant’s girl or because Perez (who was station agent for a railroad at Ho'ndo) had refused to allow appellant to get his girl’s, trunks from the station without paying the freight thereon. He started after Perez with a knife in the tavern and chased him around a nightwatchman. The nightwatchman, in his attempt to stop appellant from assaulting Perez, hit him twice with a flashlight, knocking him down. The owner of the tavern also attempted to stop appellant, but was unsuccessful. During the affray, Roy Embrey, who was attempting to aid the nightwatchman to arise from the' floor, was stabbed in the chest by appellant with a knife. From these wounds, Embrey died. Appellant fled into Mexico, but was extradited and upon his return made a voluntary statement to the effect that he had stabbed Embrey on the night in question. On his. trial he denied the killing and stated that he was excited at the time of making the-statement. In support of his defense, he produced witnesses who were present at the scene of the killing who stated that none of them saw him stab the deceased, and that appellant had no knife at the time. The girl testified that Perez insulted her during appellant’s absence, by falling against her breast, by following her around, and by some remarks he made. This Perez denied. That appellant, when told of these things, got up and told Perez to leave, her alone. Perez ran around the nightwatchman, who hit appellant with the flashlight. In his rage appellant knocked the watchman down, perhaps stomped him, and left. This raised an issue of fact which the jury decided adversely to appellant’s contention.

Appellant first complains that the court erred in overruling his motion to quash the indictment, based on race discrimination. It is his contention that the jury commissioners discriminated against the negro race, of which he was a member, and that they intentionally declined to-select any negroes as members of the grand jury. We are unable to agree with him. The proof offered in support of the motion showed that there were but very few ne-groes in the county, and that there were only a very few of these who possessed the necessary qualifications. The grand jury commissioners testified that they did not intentionally decline to select any negroes-for grand jury service. One of them testified there was only one negro family in his. section of the country, and they were not shown to be qualified. While the proof does show that no negroes had been selected for many years past in that county, it fails to show that there were any resident negroes in the county at these times who-possessed the necessary qualifications. The-most that can be said for the evidence offered in support of the motion was that it. raised an issue; this the trial judge decided against appellant’s contention. We do not think that from the evidence it can be said that he abused his discretion in the matter. The proof offered in support of his motion even fails to show what percent of the population of the county were negroes who-possessed the necessary legal qualifications, as grand or petit jurors'. See Ryan v. State, 136 Tex.Cr.R. 140, 123 S.W.2d 659; Lugo v. State, 136 Tex.Cr.R. 226, 124 S.W.2d 344; Smith v. State, Tex.Cr.App., 136 S.W.2d 842, recently decided and not yet reported [in state report].

The motion for continuance and the testimony heard in support thereof fails to :show that appellant used that degree of diligence which the law requires to secure the testimony of absent witnesses. No written process whatsoever seems to have been requested by appellant. Under these circumstances, the court did not abuse his discretion in this respect.

Appellant requested the court to charge the jury to consider the acts as well as the words spoken by the deceased in determining the right of appellant to act in his self-defense. Such a charge, or one in similar language has often been held neces•sary upon proper request, based on the language of Art. 1222, P.C., and the repeated decisions of this Court if the evidence raised the issue. It is noted, however, that the Court did charge as follows : “ * * ⅜ That at the time of such stabbing, it reasonably appeared to the defendant, as viewed from his standpoint * * * that the deceased * * * either alone or acting together with other * * * persons, had. made, was making, or was about to make an attack on him, the said John Parker, which, from the manner and character of same,' THE WORDS SPOKEN, if any, and the relative positions of the parties * * * at the time, caused the defendant to then have a reasonable expectation of fear of' death or serious bodily injury at the hands of the deceased * * * or others, * * * and. that acting under such reasonable expectation, * * * he stabbed and killed Roy Embrey, or if you have a reasonable doubt of such facts, then you will acquit the' defendant. * * * ”

It is apparent from the foregoing instruction that the court instructed the jury that if it reasonably appeared to the defendant, as viewed from his standpoint, that the deceased either alone or acting together with other persons, had made, was making, or was about to make an attack on him, which from the manner and character of the same, the words spoken, if any, and the relative positions of the parties, etc. This instruction, we think, was sufficient under the facts of this case. While testimony raising the issue is injected into the case by the defendant, who stated that Embrey called him some vile names and along with another person present at the time threatened to get rid of him, we are still unable to agree with his contention.

In some cases under some circumstances this court has held that the omission by the court to charge both words and acts was not error such as would require a reversal. See Stroud v. State, 120 Tex.Cr.R. 466, 46 S.W.2d 689; Rhodes v. State, 110 Tex.Cr.R. 353; 7 S.W.2d 569. While the charge in question is not as explicit as it might have been, we think it sufficiently informed the jury to consider words as well as acts and did not limit their consideration to acts alone. Under the above cases and Art. 666, Code Cr.Proc., upon which they are partly based, we would not be justified in reversing on that ground alone.

All other matters complained of by appellant have been considered by us and are deemed to be without merit.

The judgment is affirmed.

PER CURIAM.

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


text:
    HODGES v. STATE.
    No. 20847.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    M. E. Lawrence, of Eastland, and Owen & Bohannon, of Brownwood, for appellant

      Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   GRAVES, Judge.

The appellant was convicted of a violation of the liquor laws in a dry area, and was by the jury’s verdict fined the sum of $750.

The verdict reads:

“Guilty
$750.00 Fine
Signed A. Caffey
Foreman' of the Jury.”

This is practically the same verdict as was condemned in the case of Moneyhun v. State, Tex.Cr.App., 136 S.W.2d 219, not yet reported in state reports, and Herd v. State, Tex.Cr.App., 136 S.W.2d 220, not yet reported in state reports. Under the authority of those cases and their reasoning we hold this verdict insufficient.

The judgment is reversed and the cause remanded.


author: BEAUCFIAMP, Judge.

text:
    DOYLE v. STATE.
    No. 20831.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Tom L. Robinson, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCFIAMP, Judge.

Appellant was convicted in the County Court of Lampasas County for selling whisky in a dry area, and his punishment was assessed at a fine of $1,000.

For the purpose of enhancing the penalty,, it is alleged in the complaint and information that appellant had been convicted in the County Court of Lampasas County,, on November 9, 1938, for the unlawful possession of whisky and gin in a dry area for the purpose of sale, and that on-December 22, 1938, in the same court, he-was again convicted for the unlawful possession of whisky in a dry area; that the judgment of conviction in each instance had become final.

The record in this case fails to show that the alleged sale took place in a dry area, no proof being offered on the subject-

Furthermore, there is no evidence, that appellant was convicted of a like offense prior to the one for which he was-tried. He admitted that he had pleaded guilty on November 9, 1938, and paid a fine of $.100; also that he had pleaded guilty on December 22, 1938, and paid a fine of $200, but the proof is silent as to the nature of the offenses to which he had pleaded guilty. It is incumbent upon the State to allege and prove the convictions prior to the commission of the offense for which the accused is being tried in order to apply the enhanced penalty. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219, and cases there cited.

This case also fails because the admissions do not show that the offenses were of a like nature.

For the reasons pointed out, the cause is reversed and remanded.


text:
    GRUBBS v. STATE.
    No. 20881.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Leon Lusk, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

Appellant was convicted of the offense of sodomy and his punishment was assessed at confinement in the state penitentiary for a term of ten years.

The only contention which appellant makes is that the trial court committed reversible error in overruling his motion for a new trial based on newly discovered evidence. It is alleged in the motion that since his trial, his relatives had employed an attorney to prepare and present a motion for a new trial and to represent him. It is made to appear that upon the trial he was not represented by counsel. The motion alleges that since the trial it has been discovered by said attorney that the defendant has been of unsound mind from infancy. To this motion is attached the affidavits of a number of witnesses in which they depose and assert that they have known him for fifteen years; that they have had occasion to talk to him, see and observe him, and have heard him talk to many other people. That from his acts and their conversations with him and observation of him, they reached the conclusion that he was feeble-minded and at all times did not understand the import and consequences of his acts, or know the right from the wrong. None of these persons have stated facts upon which their conclusion was based. This is necessary where a nonexpert witness desires to express the opinion that the defendant is insane. See Burton v. State, 33 Tex.Cr.R. 138, 141, 25 S.W. 782; Shields v. State, 104 Tex.Cr.R. 253, 283 S.W. 844; Williams v. State, 37 Tex.Cr.R. 348, 39 S.W. 687. Appellant also appended an affidavit of his father, who stated that when he, the defendant, was a mere child, he was very sick, which seemed to have affected his' mind; that he went to school but did not get beyond the third grade. That from his associations and conversations with the defendant, he had reached the conclusion that the defendant did not know the right from the wrong.

The record is before us without a statement of the facts, in the absence of which we cannot properly appraise appellant’s contention. The issue of insanity may have been raised by appellant upon his trial; in such event, the newly discovered evidence would be but cumulative. Or it might have been that appellant took the witness stand and testified. If so, the court saw him, heard him, and observed his manner and conduct, and might have been convinced that he had sufficient mental capacity to know the right from the wrong. It is quite obvious that in the manner in which this record comes to us, we would not be justified in reversing this case.

We have carefully examined the cases of Warren v. State, 114 Tex.Cr.R. 207, 24 S.W.2d 1090; George v. State, 114 Tex.Cr.R. 458, 26 S.W.2d 249, as classified by Judge Hawkins in Williams v. State, 125 Tex.Cr.R. 31, 66 S.W.2d 306, 309, but do not believe that we would be justified in extending that rule to cases where the facts proved upon the trial were not brought up and made a part of the record.

It follows that the judgment of the trial court must be affirmed, and it is so ordered.

PER CURIAM.

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


author: BEAUCHAMP, Judge.

text:
    WILLIAMS v. STATE.
    No. 20866.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    J. C. Darroch and E. M. Davis, both of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ■■

   BEAUCHAMP, Judge.

Appellant was convicted in the County Court of Brown County for the sale of whisky in a dry area and his punishment was assessed at a fine of $500.

The complaint and information appear regular. The record is before this court without statement of facts or bills of exception. In the absence of the evidence adduced upon the trial, this court is unable to appraise the matters presented in the motion for new trial.

No error having been discovered upon the record before us, the judgment is affirmed.


author: ' GRAVES, Judge.

text:
    PEARSON v. STATE.
    No. 20865.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    John D. Dashiell, of Jacksonville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' GRAVES, Judge.

Appellant was convicted by the jury for possessing intoxicating liquor in a dry area for the purpose of sale, and sentenced to serve ninety days in the county jail.

We are met at the threshhold of the consideration of this case with the proposition relative to the proof of the dry status of Cherokee Cottnty. The whole proof offered for the purpose of showing the dry status of such county is as follows :

“My name is Melvin Sessions. The official position that I hold at this time is County Clerk of Cherokee County, Texas. As County Clerk I am custodian of the records and minutes of Commissioners’ Court. I have in my hand Volume D, on pages 516, I have what is styled an Order Calling a Prohibition Election. I have here, on page 520, an Order Canvassing and Declaring the Results of the Election. I have in my hand now, Volume D of the Commissioners Courts’ Records of Cherokee County, and opened at p. 523, wherein is recorded the Certificate of Publication.
“I have not found any order canvassing the return showing that prohibition has been repealed in this County, I have examined the records carefully.
“Court admits the above Volume and pages of record.”

In our judgment these orders referred to by the county clerk should have been incorporated in this record in order that such a status could be determined by this court. We do not wish to be understood, however, to hold that same would have been necessary in the event of an agreement on the part of appellant that such area was dry. However we find no such agreement in the record.

It is also noted that the trial court did not instruct the jury that Cherokee County was a dry area, but instead he submitted the question to them in the following phrase: “* * * and if you believe such possession for. the purpose of sale was in a dry area of Texas, as such has been hereinbefore defined to you,” etc.

There are some other matters presented in the record that will doubtless not again occur in the event of another trial hereof.

For the reasons herein stated this judgment is reversed and the cause remanded.


text:
    PARKER et al. v. STATE.
    No. 20880.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Snell & Snell, of Houston, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; the punishment, confinement in the penitentiary for seven years.

The record is before us .without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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