author: DUNKLIN, J.

text:
    WILKINSON et al. v. LYON et al.
    (No. 9054.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 19, 1918.
    On Rehearing, Dec. 21, 1918.)
    1. Statutes @==>107(8), 122(1) — Title — Schools.
    Acts 34th Leg. c. 36, relating to public free schools of state, Jvelé not violative of Const, art. 3, § 35, when liberally construed, as relating to subject not expressed in title, or as embracing two subjects in the same act, sections 3 and 4a (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2749b, 2749d) being germane to general purpose of act.
    2. Schools and School Districts @=>39. — Consolidation or Districts — Injunction.
    Under Acts 34th Leg.- c. 36, § 4a (Vernon’s Ann. Civ. St. Supp. 1918, art. 2749d), giving courts general supervisory control over creating and changing school districts, district court helé to have jurisdiction to hear and determine issues presented in petition of plaintiffs suing to enjoin consolidation of school districts for high school advantages, notwithstanding section 10 (article 2749h) providing for appeals.
    3. Schools and School Districts @=>39 — Consolidation of Districts — Injunction.
    Petition to enjoin consolidation of school districts for purpose of high school advantages helé to allege facts as to inaccessibility of proposed high school building to plaintiffs’ children, and as to assessment of thein property to pay bonds, justifying relief sought.
    4. Injunction @==>122 — Verification of Petition — Statute.
    In injunction suit by several plaintiffs, verification of petition on information and belief by one of them was not compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, requiring verification of petition for injunction by affidavit.
    5. Injunction @=>122 — Verification of Petition — Waiver.
    Verification of petition for injunction on information and belief, defective under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, helé waived by defendant appellants, who addressed no special exception to petition, but relied solely on general demurrer and lack of jurisdiction, complaining of improper verification only in Court of Civil Appeals.
    Appeal from District Court, Young County ; Wm. N. Bonner, Judge.
    Suit by Earl Wilkinson and others against D. K. Lyon and others. From an order denying prayer for temporary injunction, plaintiffs appeal.
    Reversed and remanded.
    Marshall & King, of Graham, for appellants.
    Kay & Akin, of Wichita Falls, for appellees.
   DUNKLIN, J.

Earl Wilkinson, Roy. Wilkinson, and J. J. Hayman, resident citizens of Young county, instituted this suit in the district court of that county against the county school trustees, county judge, and other members of the commissioners’ court, and the tax assessor and the tax collector of the county, to restrain the school trustees from taking any further steps to put into effect an order made by them, sitting as the county school board, on April 2, 1918, consolidating for the purpose of high school advantages two school districts in said county known as “Proffitt Common School District No. 46,” and “Tankersley Common School District No. 14,” into one district to be known as “Proffitt Consolidated School District No. 46” ; to restrain the commissioners’ court of the county from canvassing the returns and declaring the result of the election held for such consolidation ; and to restrain the ■ assessor and tax collector, respectively, from assessing and collecting taxes necessary to discharge the bonded indebtedness which will be fixed upon property situated within said consolidated district in order to accomplish the purposes of said consolidation.

The prayer for the issuance of a temporary writ of injunction was refused by the district judge in vacation, and from that order plaintiffs have appealed.

The record contains the conclusions reached by the trial judge upon the hearing for a temporary writ, at which both plaintiffs and defendants appeared. A general demurrer and a special exception to the jurisdiction of the court urged by the defendants to the petition were sustained, and for that reason alone the prayer for a temporary writ was refused.

By section 2, c. 36, Acts 34th Leg. enacted in 1915 (Vernon’s Ann. Civ. St. Supp. 1918, art. 2749a), it is provided that:

“The general management and control of the public free schools in each county of the state shall be vested in five county school trustees elected from the county.”

Section 3 of the act (article 2749b) contains the following provisions:

“It shall be the duty of the county school trustees to classify the schools of the county in accordance with such regulations as may be prescribed by the state superintendent of public instruction into elementary schools and high schools for the purpose of promoting the efficiency of the elementary schools and of establishing and promoting high schools at convenient and suitable places. In classifying the schools and in establishing high schools the county school trustees shall confer and advise with the county superintendent of public instruction and the school trustees of each district at interest, and shall give due regard to schools already located, to the distribution of population, and to the advancement in their studies. The county trustees shall not so classify any school as to deprive any child of scholastic age of its right to receive instruction in the grades to which it belongs in the public school of the district in which it resides, unless arrangements are made by the county school trustees for the said child to attend a school of proper classification free of charge in another district which is within reasonable walking distance of the home- of said child; that is, a school of proper classification which is not more than three miles from the home of said child; the distance to be computed according to the route or road commonly traveled in going from the home of said child to the school building, or unless the county school trustees shall arrange for the free transportation daily of said child to and from the school of proper classification, in which case the expense of such transportation shall be paid for by the district trustees out of the funds of the district in which the child actually resides; and it is hereby made the duty of the county superintendent of public instruction and of the county school trustees to see that every child of scholastic age is properly provided for as herein required, and the state superintendent of public instruction is hereby directed and required to transmit definite and specific instructions to the county superintendent of public instruction, the county school trustees and the district school trustees with respect to the proper observance and administration of this law, to the end that no child shall be deprived of its right to attend school.”

Section 4 (article 2749c) of the act is, in part, asi follows:

“The county school trustees are authorized to exercise the authority heretofore vested in the county commissioners’ court with respect to subdividing the county into school districts, and to making changes in school district lines. * ⅜ * county school trustees shall have authority to consolidate two or more common school districts into a larger common school district where a majority of the qualified electors of each common school district at interest shall petition the county school trustees for consolidation in order that a hiah school may be established for the children of high school advancement in the common school districts so consolidated.”

Section 4a (article 27493) is as follows:

“The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts.”

Section 10 (article 2749h) of the act reads:

“All appeals from the decisions of the county superintendent of public instruction shall lie to the county school trustees and from the said county trustees to the state superintendent of public instruction, and thence to the state board of education.”

As shown, by conclusions of law appearing in the record and briefly stated here, the trial judge held:

First. The district court was without jurisdiction to hear and determine the controversy until plaintiffs have unsuccessfully! exhausted their right of appeal from the order of the board of county school trustees to the state superintendent of public instruction and thence to the state board of education as provided by section 10 of the act.
Second. It was not the intention of the Legislature, in passing the act referred to, to confer jurisdiction on the district court te determine such controversies when that court did not have such jurisdiction prior thereto.
Third. Section 4a of the act is insufficient to confer such jurisdiction upon the district courts, in that it fails to specify the kind or character of supervisory control such courts can exercise over the action of the county school trustees; does not provide for trial by jury; does not amend the injunction statutes ; and for other reasons apparent upon the face of the section quoted.
Fourth. At all events section 4a of the act is violative of section 35, art. 3, of our state Constitution and hence null and void because it relates to a subject not expressed in the title to the act and because two subjects, viz. tire jurisdiction of district courts and general school laws, issuance of school bonds and election of officers to enforce public school laws, are embraced in the same act.

The title to the act is very long, and we will not attempt to quote it in full. It contains a specific reference to nearly every provision of the act save and except section 4a, but in the beginning it recites that it is “An act to amend chapter 26, Acts of Regular Session of the Thirty-Second Legislature, being an act entitled ‘An act to provide for the establishment, organization and control of public high schools in the common school districts of Texas.’ ” This language, read in the light of the rest of the title, indicates the general purpose of the act, and it cannot be denied that the provisions of section 4a, giving supervisory control over the action of the county board of school trustees in creating, changing, and modifying school districts to the end that they comply with the requirements of section 3 of the act in that respect, are germane thereto, and calculated to carry the declared object into effect. It is a well-settled rule of decisions that the section of the Constitution now under discussion should receive a liberal construction. See cases cited in Harris’ Constitution of Texas, p. 254 et seq.

In Snyder v. Compton, 87 Tex. 377, 28 S. W. 1062, our Supreme Court, in upholding the constitutionality of a provision in an act which was not specifically mentioned in the title to the act, said:

“Here, although the subsidiary provision is not express, it is legitimately connected with the main subject, and tends to effect and enforce the main object of the law. ‘Any provision calculated to carry the declared object into effect is unobjectionable, although not specifically indicated in its title.’ 1 Dill. Mun. Corp. 28, quoted with approval in Johnson v. Martin, 75 Tex. 33 [12 S. W. 321].”

Numerous other decisions to the same effect might be cited, such as Davey v. Galveston County, 45 Tex. 291; Doeppenschmidt v. Railway, 100 Tex. 532, 101 S. W. 1080; Tex. & Pac. Ry. v. Stoker, 102 Tex. 61, 113 S. W. 3.

It is also well settled that an act of the Legislature is unobjectionable on the ground that it contains more than one subject, if those subjects are germane or subsidiary to the main subject; that the requirement of the constitutional provision is addressed to the subject, and not to the details of the act, to accomplish the main object of the 'act, and such details may be multifarious. Joliff v. State, 53 Tex. Cr. R. 63, 109 S. W. 176; Singleton v. State, 53 Tex. Cr. R. 626, 111 S. W. 736, and authorities there cited.

Eor the reasons advanced in Clark v. Hallam, 187 S. W. 964, which were approved in Price v. County Trustees et al., 192 S. W. 1144, we conclude further that by virtue of section 4a of the act the district court had jurisdiction to hear and determine the issues presented in plaintiffs’ petition, notwithstanding the provisions of section 10 quoted above.

Plaintiffs’ petition contained allegations to the effect that at the time the two petitions for consolidation were circulated for signatures there were 17 qualified electors residing in the Tankersley school district No. 14, and that only 6 of these electors signed the petition for the consolidation of the two districts which was later ordered by the board of county school trustees; that 9 of such qualified electors residing in said district who did not sign said petition were opposed to the proposed consolidation, and that for that reason among others, the order of consolidation was in violation of the requirements of the act.

Plaintiffs further alleged that their children were of scholastic ages, and legally entitled to attend the common schools of the state; that the proposed consolidated district is about 4 miles north and south by 10 miles east and west; that the school building which will be erected in that district will be located near the east boundary of the district, about 5 miles distant from the residences of plaintiffs and other patrons in the district, and that no means of transportation of the children of such patrons to and from the school has been provided, as required by the act, and that under such circumstances said children will be deprived of their legal right to attend such proposed school.

It was further alleged in plaintiffs’ petition that, after said order of consolidation of the two districts was made, an election was held in the district for the purpose of voting bonds in the aggregate sum of $1,250, to be used in payment of a proposed school building to be erected in the consolidated district, which said election carried in favor of the issuance of. said bonds, and at the same election it was further determined that a special school tax to pay said bonds, not exceeding 50 cents on the $100, shall be assessed on all the taxable property in the consolidated district, including property owned by plaintiffs, which bonds are to run for a period of 20 years and are to draw interest; that the commissioners’ court is threatening to canvass the returns of said election and issue said bonds, and after their issuance the tax collector of the county will assess plaintiffs’ property for taxes to pay said bonds, and, when so assessed, the taxes will be collected by the county tax collector.

’Without reference to further allegations in the petition, we think those referred to above presented a valid showing for the relief sought, and that the conclusion by the trial judge to the contrary was erroneous.

Article 4649, Vernon’s Sayles’ Texas Civil Statutes, is as follows:

“No writ of injunction shall be granted, unless the applicant therefor shall present his petition to the judge, verified by his affidavit taken before some officer authorized to administer oaths, and containing a plain and intelligible statement of the grounds for such relief.”

In the present suit plaintiffs’ petition was verified by one of the plaintiffs, but the verification was wholly on information and belief, and was therefore not in compliance with the statute; and appellees now insist that for that reason the order of the district judge, refusing the temporary writ of injunction, should be affirmed. The following authorities support the proposition that the verification was insufficient: Graves v. O’Neil, 189 S. W. 781; Pullen v. Baker, 41 Tex. 419; Clarey v. Hurst, 136 S. W. 840; Gray v. Woodring Lumber Co., 197 S. W. 231.

However, the record shows that plaintiffs and defendants all appeared at the hearing of the application for the temporary writ which was- solely upon the pleadings, and that defendants addressed no special exception presenting the question of the insufficiency of the verification, but relied solely upon a general demurrer to the petition and a special exception embodying the proposition that the district court was without jurisdiction to try the case, in the absence of any allegations in the' petition that plaintiffs had exhausted their right of appeal prescribed by section 10 of the act; and the conclusions filed by the trial judge clearly show that his denial of the writ was based solely upon those demurrers, and not by reason of the insufficiency of the verification.

This is not a case of an entire absence of a verification of the petition, but of an insufficient verification, and we do not think the question now under discussion is one of jurisdiction of the court to hear and determine the merits of the petition for a temporary writ. The requirement that the petition in such cases shall be verified is one for the benefit of -the defendánts, and we see no reason why they cannot waive their right to such a benefit. If it was within their power to waive such a defect in the verification, it seems clear to us that such waiver was accomplished by their failure to present the objection until they filed their briefs in this court in reply to briefs of appellants. If the writ had been granted on an ex parte hearing of the petition, then no question of waiver would have arisen, and defendants would have had the right to invoke the insufficiency of the verification in this court on appeal.

By article 1906, Vernon’s Sayles’ Texas Civil Statutes, it is specifically -provided that an answer setting up certain defenses, unless the truth of the pleadings appear of record, shall be verified by affidavit. But, notwithstanding the direct and specific provisions of that statute, it is well settled by the decisions of this state that plaintiffs, by failure to object before trial to a lack of verification of such a plea, waive the right to invoke the benefit of the statutory requirement. See Ashcroft v. Stephens, 16 Tex. Civ. App. 341, 40 S. W. 1036; G., C. & S. F. Ry. v. Jackson & Edwards, 86 S. W. 47; Adcock v. Creighton, 27 Tex. Civ. App. 243, 65 S. W. 42. And in Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227, it was held that the sufficiency of an affidavit to a plea cannot be questioned for the first time on appeal. To the samé effect is W. U. Tel. Co. v. Smith, 130 S. W. 622.

On the same principle we think appellees are in no position to urge the defective verification of plaintiffs’ petition in this court for the first time.

For the reasons indicated, the order denying the petition for a temporary writ of injunction is reversed, and the application for such writ is remanded for further proceedings not inconsistent with this opinion.

Beversed and remanded.

On Behearing.

Appellees earnestly insist that we erred in concluding that the defective verification of the petition was not jurisdictional, and that the right of appellees to complain of it in this court for the first time was waived by their failure to urge the objection in the trial court. They insist that we are in direct conflict with several decisionsr notably White v. Ferris, 186 S. W. 367; Graves v. O’Neil, 189 S. W. 781; Moss v. Whitson, 130 S. W. 1034.

We do not believe our conclusions on original hearing to be necessarily in conflict with those decisions or the others cited. In each of the two decisions first'noted the defendant filed answer to plaintiffs’, petition for injunction, which answer contained a special exception to the verification of the petition as being insufficient, and it seems that the trial court in- each of those cases, in acting upon the application for an injunction, considered both the petition and answer. Under such circumstances, it cannot be said that the objection to the verification was made for the first time in the Court of Civil Appeals. In the case of Moss v. Whitson, supra, we think it reasonably appears from the opinion that the hearing of the application for injunction was had at the time the petition was filed, and before any answer was filed thereto by the defendant, and that the hearing was ex parte. Under such circumstances, it cannot be said that the defendant waived any objection to the verification, since he .was -not given an) opportunity to urge the same. Furthermore, in that case the trial judge refused the writ for lack of merit in the petition, and his action in so doing was affirmed by the Court of Civil Appeals. That conclusion rendered unnecessary the further conclusion that the judgment should be affirmed for lack of sufficient verification, which, however, was in accord with what we have already said upon the original hearing, if it be true that the hearing was ex parte and the defendant given no opportunity to object to the verification.

In 3 Corpus Juris, pp. 776, 777, after stating the rule that an objection that a pleading is not signed or subscribed by the party or an attorney as required by statute or rule of practice cannot be made for the first time on appeal, the following is said:

“The same rule applies to the objection that a pleading was not verified, or that the verification was defective or insufficient. Therefore objection cannot be raised for the first time on appeal for want of or defect in the verification of a bill, petition, or complaint, unless, .under a statute, proper verification is essential to jurisdiction.”

Both by our statutes and Constitution the judges of the district courts are vested with general. power to issue writs of injunction. Vernon’s Sayles’ Tex. Civ. St. art. 1713; Const, art. 5, § 8.

The statutory requirement that a petition for a writ of injunction shall be verified before the writ is issued is in no sense a limitation of the jurisdiction conferred by the Constitution and statutes upon the district court and the judges thereof, but merely relates to procedure, and was enacted for the protection of the defendant against whom the suit is instituted, and we perceive no valid reason why he canhot waive such a benefit.

The motion for rehearing is overruled.
      <§£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J. HARPER, O. J.

license: Public Domain

text:
    MILLER v. GUARANTY TRUST & BANKING CO. et al.
    (No. 879.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 12, 1918.
    Rehearing Denied Jan. 9, 1919.)
    1. Subrogation @=>31(4) — Assignment-Substitution op Parties.
    Payment of debt through payment of judgment in mechanic’s lien suit and procuring assignment of judgment held to create privity of contract between assignor, assignee, and debtor, and a substitution of the assignee in the place of the assignor in its relation to the debt.
    2. Subrogation <§==>31(4) — Parties Entitled —“V OLUNTEER. ’ ’
    Bank which paid, judgment in mechanic’s lien suit and took assignment of all rights of assignor held not a “volunteer” in payment of the debt.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Volunteer.]
    3. Subrogation @=>1 — Nature op Right.
    Right of subrogation does not necessarily depend upon privity of contract between the one paying the debt and the creditor or debtor, but arises from the nature of the transaction.
    4. Subrogation @=>31(4) — Assignee op Judgment — Rights.
    Bank which paid judgment in mechanic’s lien suit and took assignment under an arrangement with one of judgment debtors that debt should be carried forward under a new arrangement held subrogated to rights of assignor, so that, where judgment was set aside because of lack of service upon one defendant, the original debt and dien would be recognized as a subsisting charge upon the property.
    5. Subrogation @=>31(4) — Benefit op Lien.
    Purchaser of notes at receiver’s sale, part of consideration for notes being amount of debt represented by judgment in mechanic’s lien suit, which judgment was set aside, held entitled by reason of doctrine of subrogation to valid lien on premises to secure payment of amount paid for notes with interest.
    6. Mechanics’ Liens @=>204 — Assignment— As Incident to the Debt.
    An assignment of builders’ lien without an assignment of the debt would be without meaning or use, and the lien follows the debt.
    7. Interest @=>36(1) — Claim for Reimbursement-Payment op Notes.
    Intervener’s suit being on an implied contract for reimbursement for what he had paid, the interest to be recovered is the legal rate and not the rate stated in the notes sued on.
    8. Limitation op Actions @=>95(1) — Ignorance op Cause op Action.
    Assignee of judgment being subrogated to the original debt in case the judgment, which was based on a record showing proper service, were invalid, the statute of limitations^ would not run against him, as to the original debt, until he had knowledge of invalidity of the judgment because a judgment debtor had not been served with citation.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by the Guaranty Trust & Banking Company and others against Adelle Miller and others. From the judgment rendered, defendant named, by her guardian ad litem and next friend, W. H. Anderson, appeals.
    Judgment reformed, and as reformed affirmed.
    M. W. Stanton, of El Paso, for appellant J. E. Quaid, C. L. Vowell, Jos. U. Sweeney, W. M. Coldwell, and Turney & Burges, all of El Paso, for appellees.
   WALTHALL, J.

In view of the voluminous record presented, we will at the outset make a statement of the facts, none of which are disputed, and, as well as we can, in the order in which the record shows them to have occurred:

From the record, it is 'made to appear that on February 12, 1904, Mark Miller and wife, Adelle Miller, owned, as a part of their community estate, lots 1 and 2 in block 2 in Mun-dy Heights addition to the city of El Paso; the lots then being unimproved. On said day, Mark Miller and Adelle Miller entered into a written contract with OS. F. Brown, a contractor and builder, for the erection by said Brown, at his own expense, of a cottage on said lots; the said contract being duly acknowledged by the parties, filed for record, and duly recorded on February 16, 1904. The contract duly recited that Brown should have an express mechanic’s, builder’s, and contractor’s lien on the said lots and improvements to secure the contract price of $2,500 for erecting said building, $500 of said amount paid in cash and $2,000 of said amount to be paid to said Brown in four installments of $500 each and evidenced by four promissory notes, each in the sum of $500 and due and payable respectively in one, two, three, and four years after said date, and providing that on failure to pay any one of said notes at maturity, at the option of the holder, all the notes should become due and payable. Brown erected said cottage according to contract, and the said four notes were executed by Miller and wife and delivered to Brown.

Thereafter, Brown indorsed the said four notes in blank and delivered them to Burton-Lingo Company, a building material company, which had theretofore furnished the material and advanced the money to Brown to erect said building. Credits for amounts paid by Miller are indorsed on the back of each note. The unpaid balance of said Brown notes not being paid at maturity, Burton-Lingo Company brought suit thereon in the district court of El Paso county, on the 2d day of February, 1908, against Mark Miller and Adelle Miller to recover the amount due and to foreclose the said mechanic’s, builder’s and contractor’s lien. The file number of that suit is 7388. Two citations- were issued in, said cause, one each to Mark Miller and Adelle Miller. The citation to Mark Miller was duly served. The return on the citation to Adelle Miller showing service and an attorney appearing and answering for her on the trial, the trial court rendered judgment therein.

On special issues submitted by the court in the ease at bar, the jury found: That Adelle Miller was not duly served with citation in the case of Burton-Lingo Company v. Mark Miller and Adelle Miller in cause No. 7388; that she did not file an answer in the case through an attorney authorized to represent her, nor did she appear at the trial in person or by attorney; that she had no notice of the pendency of the suit; that at and prior to the execution and delivery of the Brown contract the property in controversy was the homestead of Mark Miller and his wife, Adelle Miller; that the officers and attorneys of the Guaranty Trust & Banking Company had no notice that, at the trial of the case of Burton-Lingo Company v. Mark Miller and wife, Adelle Miller did not appear in person and was not present in person or represented by an attorney authorized to do so; the Guaranty Trust & Banking Company, acting by and through its authorized agents, agreed, in substance, with Mark Miller that judgment should be entered in the case of Burton-Lingo Company v. Mark Miller and Adelle Miller; that the Guaranty Trust & Banking Company should acquire said judgment from the Burton-Lingo Company, have an order of sale issued thereon, should through an agent buy the property at the sale, should cause the said property to be deeded by its agent to Mark Miller for a consideration in excess of the amount of the mechanic’s lien notes on which said judgment was obtained, said consideration to be evidenced by Mark Miller’s promissory notes, secured by a lien on the property in controversy. There being, apparently, a conflict in the next two findings, we quote them:

“Question No. 8. Do you find from a preponderance of the evidence that said agreement was carried out?” To which the jury answered: “No.”
“Question No. 9. Do you find from a preponderance of the evidence that said agreement was made -and carried out without the consent and acquiescence of Mrs. Adelle Miller?” To which the jury answered; “Yes.”

The Burton-Lingo Company suit against Miller and wife, No. 7388, resulted in a judgment in said cause on the 5th day of March, 1910, in favor of Burton-Lbiigo Company against Mark Miller and Adelle Miller for the unpaid balance of the Miller-Brown notes in the sum of $2,350, with interest, costs, and foreclosure of the mechanic’s, contractor’s, and builder’s lien; no personal judgment being rendered against Mrs. Miller. An order of sale of said property under said judgment in cause No. 7388, with bill of costs annexed, of date April 18, 191<⅜ was duly issued, levy made, sale published, property sold to Sam D. Ware, and sheriff’s deed to Ware executed, and return of sale made.

Burton-Lingo Company, on March 5, 1910, in consideration of the said sum of $2,350, paid by the Guaranty Trust & Banking Company to Burton-Lingo Company, duly transferred and assigned to the Guaranty Trust & Banking Company the said judgment it had theretofore obtained against Mark Miller and wife in cause No. 7388, and at the same time, and by the said instrument, also transferred to the Guaranty Trust & Banking Company all of the rights and interest it had in said judgment, or in or to the said real estate described (being that in controversy) by reason of said judgment, or by reason of the lien contract and notes upon which said judgment was rendered, and further gave to the said Guaranty Trust & Banking Company full power and authority to demand and receive the amount of said judgment to its own use, and to execute proper discharges and releases, and to sue out execution or order of sale and all other process necessary to the enforcement of the said judgment. By an arrangement between Mark Miller and the Guaranty Trust .& Banking Company, in consideration of the amount of the Burton-Lingo Company judgment paid by Guaranty Trust & Banking Company, the accrued interest thereon, and additional sums of money paid to Mark Miller by the Guaranty Trust & Banking Company, and certain notes of Mark Miller held by the bank canceled and returned to Miller, amounting in the aggregate to $5,-627.25, this sum evidenced by four promissory notes, signed by Mark Miller and payable to Sam D. Ware, representing the said bank, and expressing and retaining a vendor’s lien on the property, Sam D. Ware and wife conveyed the property in question to Mark Miller. Mark Miller also executed to Sam D. Ware certain interest notes, a deed of trust on said property to W. B. Ware, as trustee, to secure the said notes. All of said notes were indorsed without recourse by Sam D. Ware, and by him assigned to the Guaranty Trust & Banking Company, together with the said deed of trust and the said vendor’s lien, and all rights, equities, and interest then had by them by reason thereof.

The said Miller-Ware notes not having been paid at maturity, the Guaranty Trust & Banking Company, on the 11th day of December, 1911, brought this suit against Mark Miller and Adelle Miller and S. D. Ware and wife and W. B. Ware, trustee. The first count in the petition is the ordinary action of trespass to try title to recover the premises in controversy; the second count set up the ownership of the Miller-Ware notes and asked for judgment against Mark Miller on said notes and the foreclosure of the vendor’s lien expressed in the notes and the said deed of trust lien. Adelle Miller having become insane, W. H. Anderson was appointed her 'guardian ad litem. Numerous pleadings and amendments thereto were filed by all the parties litigant up to the rendition of the judgment on the 11th day of September, 1917. As we conceive it, the material issues finally joined on the trial, after numerous amendments and trial amendments, are substantially the following:

The issue made by the Guaranty Trust & Banking Company is: That by the execution and delivery by Mark Miller and Adelle Miller to Brown of the mechanic’s, builder’s, and contractor’s lien and notes, and the erection of said building by Brown, and the assignment by Brown of said notes and the mechanic’s, builder’s, and contractor’s lien to Burton-Dingo Company, the judgment obtained by said Burton-Dingo Company and the transfer and assignment to plaintiff bank, by Burton-Dingo Company, of all of its rights and interests in its said judgment against Miller and wife on said notes and the foreclosure of said lien, and the lien contract on which said judgment was rendered, and likewise, by the transfer and assignment to it of the Miller-Ware notes and trust deed lien by S. D. Ware, as hereinabove set out, it is the legal owner and holder by purchase and sub-rogation of the said Miller-Ware notes and liens, and it asked judgment establishing same and foreclosing its said liens on said lots.

The Guaranty Trust & Banking Company having become insolvent, John H. Harper was appointed receiver, in cause No. 10079, Forty-Eirst district court, El Paso county. The receiver adopted the pleadings of the banking company as to its ownership of said notes and liens; that, acting under the orders of the court, he took possession of and offered for sale the said Miller-Ware notes and mortgage lien and thereafter, on the 4th day of May, 1915, made sale of same to Winchester Cooley, and that said sale was in all tilings approved by the court, and pleaded that, if mistaken that said sale conveyed to Cooley the title to the notes and lien and causes of action, then the receiver was the owner thereof. Intervener, Cooley, adopted the allegations of receiver, Harper; pleaded the facts heretofore stated as pleaded by the Guaranty Trust & Banking Company and the receiver; and alleged that by reason thereof he is now the owner and holder of said four Miller-Ware notes, the said liens and causes of action, and that by reason of his purchase of said Miller-Ware notes he became subro-gated to the right and title to said notes, lien, judgment, etc. Guardian ad litem, Anderson, after various pleas and exceptions, which we need not state here, pleaded the statute of limitation of two and four years as to all causes of action; general denial; that the said property was at all times and is the homestead of herself and husband; states the filing of suit by Burton-Dingo Company and the issuance of citation, the service of citation upon Mark- Miller; that, while the return upon the citation states service upon her, service of citation was not had upon her in cause 7388; that, while an attorney had appeared aná answered for her in said cause, she denied that she had at any time authorized an attorney to appear and ¿nswer for her; pleaded the agreement or arrangement entered into between the Guaranty Trust & Banking Company and her husband, Mark Miller, as set forth herein-above, and in which judgment was entered in favor of said Burton-Dingo Company, a foreclosure sale under said judgment, of the mechanic’s, builder’s, and contractor’s lien had, and purchase made by Ware and resale of said property to Mark Miller for the consideration stated, was false and fraudulent, and said judgment was rendered and proceeding had thereunder without her knowledge and consent. We need not state the issues tendered as to parties other than as above. As to Adelle Miller, the only party appealing, the trial court set aside the judgment entered in cause No. 7388 in favor of Burton-Lingo Company against Mark Miller and Adelle Miller on the Miller-Brown notes and foreclosing the mechanic’s, builder’s, and contractor’s lien on the said lots; but the Miller-Brown notes never having been paid and the said lien discharged, and the Miller-Brown notes being a part of the consideration for the Miller-Ware notes purchased by Cooley at the receiver’s sale, the trial court found that Winchester Cooley, inter-vener, has a valid mechanic’s, builder’s, and contractor’s lien on the property described by reason of the contract of February 12, 1904, entered into between Mark Miller and Adelle Miller and Brown, and ordered the foreclosure of said lien to satisfy the Miller-Brown notes, amounting to the sum of $4,010. From that judgment, Adelle Miller, through her guardian ad litem, and next friend, Anderson, takes this appeal.

Opinion.

Appellant, Adelle Miller, through her guardian ad litem and next friend, Anderson, presents 36 assignments of error and many propositions thereunder as grounds for reversal and rendition of judgment in her favor. We will not undertake to discuss each of the assignments and propositions in detail, but will consider what we conceive to be the material and controlling issues presented by the record. It is unquestionably true that the premises in controversy were the homestead of Mark Miller and his wife, Adelle Miller, on the 12th day of February, 1904, and that on that date they each entered into- and executed the four negotiable promissory notes to II. F. Brown aggregating the sum of $2,000 as the unpaid part of the consideration for the erection by Brown on said premises of the cottage, and at the same time executed in writing in due form and delivered to Brown a mechanic’s, builder’s, and contractor’s lien on said premises to secure the payment of said four notes and the interest agreed therein to be paid. No question is made by brief or argument, but that Brown fully performed his part of the contract in erecting said cottage and duly indorsed, transferred, and assigned, for a valuable consideration, the said four notes (which we will designate as the Miller-Brown notes) and the said lien contract, to the Burton-Lingo Company, and that said company, by direct purchase and payment of the consideration expressed, became the owner of said notes and lien contract. It is not claimed that Mark Miller and Adelle Miller, or either of them, at any time made payment of the said notes, or in any wise discharged said lien contract other than by such credits and partial payments as are indorsed on some one or more of said notes. The notes by their terms became due, and a suit was duly filed thereon by Burton-Lingo Company against Mark Miller and Adelle Miller,' praying judgment against them and the foreclosure of the mechanic’s lien, and citations were duly issued to Mark Miller and Adelle Miller and service had on Mark Miller, but no service was had on Adelle Miller, though the sheriff’s return showed service, and an attorney filed answer for her and appeared and represented her on the trial at the instance of Mark Miller, but without authority from her to do either. The record shows that, at that stage of the proceeding, Mark Miller had knowledge of the fact that his wife had not been served with citation, had not employed an attorney to represent her on the trial, and that he was the only person having such knowledge. The record further shows that, not only no person other than Mark Miller had knowledge of the want of service on his wife and want of authority from the wife to file answer and appear for her at the trial, but the record shows that such knowledge was not made known or imparted to any person prior to the time of the filing of the answer for Adelle Miller in the case at bar. Judgment was entered in favor of Burton-Lingo Company against Mark Miller and Adelle Miller on said notes, and foreclosing said mechanic’s lien.

Before and in anticipation of the foreclosure sale of the property in controversy, Mark Miller and thfe Guaranty Trust & Banking Company entered into the arrangements hereinabove stated, by which it was agreed and carried out that the Guaranty Trust & Banking Company should purchase of Burton-Lingo Company the said judgment, and that said foreclosure sale should be made. Ware became the purchaser, a resale of said property for the consideration stated «including the amount of the Miller-Brown notes in the Miller-Ware notes, and a transfer and assignment by Ware of the Miller-Ware vendor lien notes to the Guaranty Trust & Banking Company. This arrangement was carried out, but without the ‘ knowledge or consent of Adelle Miller, and without her in any way being made a party to the transaction.

This suit filed by the Guaranty Trust & Banking Company, and by the receiver, and by the intervener, appellee here, is based on the Miller-Ware notes and the rights growing out of the Burton-Lingo Company judgment and assignment thereof to the Guaranty Trust & Banking Company, and th!e right of subro-gation by reason of having paid the Miller-Brown notes and the debt evidenced thereby. The trial court evidently treated the answer of Adelle Miller as being in the nature of a bill of review of the ease of Burton-Lingo Co. v. Mark Miller and Adelle Miller, No. 7388, and as being a direct attack on tbe judgment rendered therein, and set that judgment aside on the findings of the jury stated herein; but it not appearing either by pleading or proof that the debt evidenced by the Miller-Brown notes 'and the mechanic’s, builder’s, and contractor’s lien on thie premises in controversy had ever been paid off or discharged by Miller and wife, but was carried into and formed a part of the consideration of the Miller-Ware notes to the extent and sum of $4,010, and having found that, by reason thereof, intervener Cooley, being the purchaser of said notes at the receiver’s sale, has a valid contractor’s and builder’s lien on said premises to the full amount of said notes, the court, while setting aside thie judgment in the case of Burton-Lingo Co. v. Mark Miller and Adelle Miller, rendered judgment against Mark Miller for said $4,010 and foreclosed said contractor’s and builder’s lien in favor of intervener Cooley as to each of the Millers for the full amount of the unpaid balance of the Miller-Brown notes as expressed and represented in the Miller-Ware notes. Appellant, Adelle Miller, through her guardian ad litem, by several assignments, attacks the said judgment foreclosing the mechanic’s and builder’s lien as to her, but all tending to the one question: Did intervener, Cooley, by his purchase at the receiver’s sale of the Miller-Ware notes, acquire the legal or equitable title or rights of Burton-Lingo Company to the Miller-Brown notes, or the claim or debt of which the notes were but the evidence, and the right to foreclose the mechanic’s lien as to the full amount of the unpaid Miller-Brown notes. There was no direct assignment and delivery of the Miller-Brown notes, except that of Brown to Burton-Lingo Company. Burton-Lingo Company assigned to the Guaranty Trust & Banking Company the judgment it had obtained in the Miller-Brown notes, and all its rights obtained by reason of that judgment, as the consideration for thie payment by the Guaranty Trust & Banking Company to it of the judgment against the Millers; but the record does not show an assignment or delivery by Burton-Lingo Company to the Guaranty Trust & Banking Company of the Miller-Brown notes, nor an assignment of the building contract lien. Whatever rights, title, or interest in or to the mechanic’s and builder’s lien the Guaranty Trust & Banking Company received by the assignment to it of the judgment, it was through! subrogation and by reason of the fact that, in paying the judgment, it paid the debt Mark Miller and Adelle Miller owed to Burton-Lingo Company, as the assignee of Brown, for the erection of the building.

In the payment of the debt through the payment of the judgment and the assignment of the judgment, there was privity of contract between the Guaranty Trust & Banking Company and Burton-Lingo Company and with Mark Miller, i. e., by contract there was a substitution of the Guaranty Trust & Banking Company in th’e place of Burton-Lingo Company in its relation to the debt. But there are numerous decisions which recognize the doctrine that, if a third party pay a debt in pursuance of an agreement between him and the debtor that upon his so doing he shall be subrogated to the creditor’s rights, the agreement will be given effect, and such third party will stand in the place of the creditor as to all persons interested in the property or the security. Fievel v. Zuber, 67 Tex. 275, 3 S. W. 273, and cases there cited. We think such condition is shown in the case at bar as to the Guaranty Trust & Banking Company. But more than such bare agreement, it took an assignment of all of the rights Burton-Lingo Company had in the matter of the Miller-Brown contract. Under the facts shown by th!e record, the Guaranty Trust & Banking Company is in no sense a volunteer in the payment of the debt. The right of subrogation, although allowed in a proper case where there is a privity of contract, does not necessarily depend upon a privity of contract between the one paying the debt and the creditor or debtor. It arises from the nature of the transaction. Murphy v. Smith, 50 S. W. 1040.

In Fears v. Albea, 69 Tex. 437, 6 S. W. 286, 5 Am. St Rep. 78, after referring with approval to the Fieval v. Zuber Case, supra, the Supreme Court of this state said:

“It is said upon high authority that when a mortgage is paid by one who is under no obligations to pay it, although he does not take a formal assignment, he is subrogated to the rights of the mortgagee in the mortgaged property, and holds the title so acquired against subsequent incumbrancers, although he had also acquired the equity of redemption. In such ease, no proof of intention on his part to keep the1 mortgage alive is necessary to give him the benefit of it. Even if a person advancing money to pay a mortgage, under an agreement with the owner of the equity of redemption that it should be assigned to him as security for the money advanced, takes a discharge of the mortgage, he is entitled to be subrogated to the rights of the mortgagee and have the discharge vacated.”

It seems to us that the undisputed facts in the case show that the Guaranty Trust & Banking Company, by paying off and discharging the debt Mark Miller and Adelle Miller then owed Burton-Lingo Company, and taking an assignment of it under the said agreement and arrangement with Mark Miller that the debt itself should be carried forward under the new arrangement and was so carried, though in a changed form of indebtedness, but the same debt and on the same property, the Guaranty Trust & Banking Company would be subrogated to the rights of Burton-Lingo Company as to the original debt, and the judgment of Burton-Lingo Company having been,set aside at the instance of Mark Miller and Adelle Miller, the Guaranty Trust & Banking Company would he before the court in that cause No. 73S8, had the pleadings filed in this cause been filed in that case, as the purchaser or assignee pendente lite of the debt upon which the suit was brought. In Boone & Scarborough v. Miller, 86 Tes. 74, 23 S. W. 574, where a trustee’s sale was void because not made at the courthouse door as provided in the deed of trust, the Supreme Court said:

“The parties after the sale stood as they did before the ineffectual attempt at sale took place.” Jones on Mortgages, § 1902.

Has the original debt to Brown or to Brown’s assignee, Burton-Lingo Company, the legal owner and holder of the notes, been discharged? It is evident that it has not been paid by either of the Millers, or by the property upon which, by their express agreement, it was charged, and which was to be the primary source from which payment was to come. It is not claimed that the foreclosure sale of th!e property under the Burton-Lingo Company judgment had the effect to either release the property from the lien or to pay the debt. The foreclosure sale having been set aside, the Miller debt for the erection of the building having been paid by the Guaranty Trust & Banking Company, it is subrogated to the rights of Burton-Lingo' Company in the notes and mechanic’s lien. Under such circumstances, the lien on the property not being extinguished, equity required, if necessary, that justice might be done all parties, that the original debt and the builder’s lien, should be recognized as a subsisting charge upon the lots. Monroe v. Buchanan, 27 Tex. 243. In that case, the Supreme Court said:

“It is a matter of no importance whether the note was in actual existence or not, or whether it was still susceptible of assignment as negotiable paper. The facts show that the debt evidenced by it was unpaid.”

For reasons stated, we think the Guaranty Trust & Banking Company was subrogated to all of the rights that Burton-Lingo Company had at the time and since the rendition of the judgment' against Mark Miller and Adelle Miller to the full amount of said debt,

Was the intervener, Winchester Cooley, by reason of his purchase of the Miller-Ware notes at the receiver’s sale, and the payment by him of $50 therefor, subrogated to all of the rights of the Guaranty Trust & Banking Company? It is claimed that he was not, his claim being remote and there being no direct assignment to him of the Miller-Brown notes or the builder’s lien. Certainly, an assignment of the builder’s lien without an assignment of the debt would be without meaning or use. The lien follows the debt; the reason being that the principal thing, the debt, always draws to it that which is incidental or accessory, so that the principal thing, the debt, cannot take one direction, and that which is incident to it another direction. Perkins v. Sterne, 23 Tex. 563, 76 Am. Dec. 72. Had the Miller-Brown notes been assigned and delivered to the in-tervener, he would, in that instance, be the legal owner and holder of the note and lien, and the equitable doctrine of subrogation would have no application. There would be no substitution of another person in the place of the creditor to whose right he succeeds in relation to the debt. In the instance of the one owning and holding the note, the action would be on the express contract, the notes; but, where one succeeds the owner in his relation to the debt by the payment of it, he thereby becomes substituted, in place of the owner and holder, whether there is an, assignment to him or not, and his right is by subrogation,' upon the implied promise, his action an equitable one, and independent of any actual contractual relation. As said by the Supreme Court in (Monroe v. Buchanan, supra, it is a matter of no importance whether the note was in actual existence or not, or whether it was still susceptible of assignment as a negotiable paper. His right arises by reason of the existence of the debt and his payment of it in whole or in part. The facts in this case, as in that, show that the debt evidenced by the notes, the full consideration of the Miller-Brown notes constituting the principal part of the Miller-Ware notes, was unpaid, and that the receiver, for the consideration stated, passed it to Cooley, as far as he could do so. We have carefully read the several authorities referred to by appellant, and do not think we are in conflict with any of them. We need not review them. Appellant insists that subrogation can arise only in favor of one who has actually paid a debt and for the amount only actually paid. The full amount of the Miller-Brown debt was written in and formed the principal part of the Miller-Ware notes. Intervener, at the receiver’s sale, bought said notes, paying therefor the sum of $50. The principle of subrogation has often been stated to be that it gives indemnity, and no more; that is, it is an equitable assignment of the debt paid, and the one paying is entitled to be reimbursed for what he has paid, and to that extent only, in discharging the indebtedness. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 191, 639, 28 L. R. A. 528. In Cleveland v. Carr, 40 S. W. at page 410, the Court of Civil Appeals, through Judge Williams, said that, according to the reasoning in Faires v. Cock-erell, the payment extinguished the debt, but left the party paying a right of action upon an implied promise to recover the amount paid with legal interest. That right passed by subrogation, but only as a means of enforcing his right, which was to recover the amount paid, with legal interest. To the same effect is Burns v. Ledbetter, 56 Tex. 282, and Close v. Fields, 2 Tex. 232.

It is insisted by appellant that, if the intervener recovers at all, the rate of interest on the amount recovered should be the legal rate of 6 per cent, and not 8 per cent, as allowed by the court. Under the decisions already recited, we think the contention must be sustained.. The intervener’s suit is not on the notes, but on the implied contract for reimbursement for what he has paid on the debt, and the interest to be recovered is the legal rate and not the rate stated in the note. Intervener’s right of subrogation was first asserted more than two years after the purchase by him of the Bliller-Ware notes and the payment to the receiver of the purchase price thereof. It is claimed by Adelle Bliller that the intervener’s cause of action is barred by the statutes of limitation of two years.

We have found that Blark 'Bliller was the only person who knew that Adelle Bliller was not served with citation in the Burton-Lingo Company suit, and that she was not in that suit represented by an attorney authorized to do so, and that these facts were not made known by Mark Bliller to any person until about the time Adelle Bliller filed her answer in this suit. In our judgment there is no semblance of a fraud on the part of the Guaranty Trust & Banking Company shown in the agreement between it and Blark Miller in the absence of any knowledge of such facts on its part, and, while the grounds on which the court set aside the Burton-Lingo Company judgment are not stated, we apprehend that it was for want of service and appearance, in that case on her part.

To put the statute of limitations in motion, it must appear that the Guaranty Trust & Banking Company had knowledge of the fact that Adelle Bliller had not been served with citation, and that she did not appear in person or by attorney in the Burton-Lingo Company suit, because if the record spoke the truth as to service on her, or her personal appearance and answer therein, the suit of the Guaranty Trust & Banking Company and the suit of the intervener would have been on the Miller-Ware notes, as originally brought. On the answer of Adelle Bliller denying service of citation and denying her appearance in said suit, and those facts appearing, the cause of action of the Guaranty Trust & Banking Company and inter-vener was not then on the Bliller-Ware notes, but was on the right to be subrogated as having paid the Miller debt, as evidenced by the Miller-Brown notes. In other words, if the Guaranty Trust & Banking Company did not know of the want of service on Adelle Miller, and did not know that she did not appear by person or by attorney in said cause, and could not have known by the use of proper diligence, the statute would not be a bar to their suit. As said by the Court of Civil Appeals in Cleveland v. Carr, 40 S. W. at page 409, it is not generally true that a plaintiff’s ignorance or inability to learn of his cause of action will prevent the statute from running, and that ordinarily the limitation runs regardless of those facts; but in cases like the one at bar, where, without fault of the Guaranty Trust & Banking Company either fraud or facts occur that destroy or set aside the judgment of the court, an exception is made by which a suspension of the running of the statute is allowed until such time as the discovery of such facts ought to be made. There is only one view to be taken of the facts on the issue of limitation in this case, and that is the one that prevents the running of the statute; the facts were testified to by Mark Bliller and Adelle Miller and are not controverted. The Guaranty Trust & Banking Company, in the absence of anything to put them upon notice or inquiry, had the right to suppose that the return of the officer spoke the truth, and that the attorney who assumed to appear and file an. answer for Adelle Miller in the Burton-Lingo Company suit was authorized by Adelle Bliller to do so.

Under the view we take of the case, we think we need not further discuss the issues in detail as presented in appellant’s assignments. They have been considered and are overruled. The judgment of the trial court is reformed as to Mark Bliller, Adelle Bliller, and W. H. Anderson, her guardian, ad litem, so as to read that Winchester Cooley, intervener, have a valid contractor's and builder’s lien on the premises in controversy to secure the payment of the sum of $50, and interest thereon at the rate of 6 per cent, per annum from the date of its payment to the receiver, viz., the 4th day of Blay, 1915, until paid, and that said lien be, and here now is,, in all things established and foreclosed; and in all other respects the judgment of the lower court is in all things affirmed. The costs of this appeal are taxed against the intervener.

HARPER, O. J.

(concurring). I am now strongly inclined to the opinion, though I do not dissent, that th'e facts of this case show title in Cooley by reason of assignments by contract from Brown to Burton-Lingo Company and from the latter to the Guaranty Trust & Banking Company of the original Brown notes and mechanic’s lien, and last, by judicial sale by the receiver to him, made,under order of the court and duly confirmed, and cannot be collaterally attacked. Guaranty State Bank & Trust Co. v. Thompson, 195 S. W. 960. That the equitable doctrine of subrogation in its true sense does not apply, but that when the court, through) its receiver, sold the Marls Miller note ($5,627.25) sued upon, as one of the assets of the bank, and it containing the original Brown obligation, Cooley succeeded to all the rights of the bank, and when,, in the instant case, the judgment in No. 7388 was set aside and all muniments of title executed under the Mark Miller bank agreements were set aside, it left the original suit pending with the right of the bank to proceed, had it not parted with its title through the sale to Cooley. Having done so, Cooley is now in the position of the bank and is entitled to judgmeht for the whole of thJe debt and to foreclose the Brown mechanic’s lien upon the homestead.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, O. J.

text:
    VALDESPINO v. DORRANCE & CO.
    (No. 7600.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 5, 1918.
    On Motion for Rehearing, Jan. 16, 1919.)
    1. Appeal and Error <®=>544(3) — Necessity op Exceptions — Decision on Plea op Privilege.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 2062, providing that, where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto, an exception is not necessary where a plea of privilege was overruled and the evidence heard was incorporated in the record.
    2. Appeal and Error <§=>544(1) — Bill op Exceptions — Necessity—Plea op Privilege-Necessity op Exceptions.
    Although the effect of sustaining a plea of privilege is to change the venue of the suit, a motion for change of venue and a plea of privilege are entirely different proceedings, and pleas of privilege are .not included within district and county courts rule 55 (142 S. W. xxi), providing for bills of exceptions to review rulings on change of venue.
    3. Venue <§=>7 — Place op Performance op Contracts — Implied Promises.
    An implied promise to perform a contract in a county other than that of defendant’s residence will not place the venue of a suit thereon in such county.
    4. Venue <§=>21 — Residence op Dependant-Exceptions.
    One who sues a defendant in a county other than that of his residence must bring his case clearly within the exceptions to the general rule that a defendant is entitled to be sued in the county of his own residence.
    5. Venue <®=>7 — Place , of Perpormance op Contract.
    If the terms of a written contract are such that it must necessarily be performed in a certain county, suit can be maintained thereon in such county.
    6.Venue <®=>7 — Place of Performance of Oral Contract.
    Suit on an oral contract to return overpay-ments, if any, on a sale of cotton upon being scaled and weighed in the county of the purchaser’s residence, cannot be brought in such county under section 5 of the venue statute, but must be brought in the county of the seller’s residence.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by Dorrance & Co. against A. S. Valdespino. From a judgment for plaintiffs, defendant appeals.
    Reversed and rendered, and rehearing denied.
    Goldstein & Miller, of El Paso, and G. P. Dougherty, of Houston, for appellant.
    R. W. Franklin, of Houston, for appellees.
   PLEASANTS, O. J.

This controversy grew out of the following facts:

Appellant is a resident of El Paso county, and resided and had his place of business in said county during the year 1915. Ap-pellees reside in Harris county, and during said year were engaged in the business of buying and selling cotton. They had an agent, H. M. Freund, who represented them in El Paso county during the year mentioned. On June 21, 23, and 26, 1915, appellees’ agent, Freund, purchased cotton for them from appellant. Each of these purchases was upon the following terms; Appellant was to be paid for the cotton before it was shipped to Houston at an agreed price per pound on a basis middling in accordance with classification and weights accepted by Freund at El Paso, less an agreed amount to cover freight charges from El Paso to Houston. When the cotton reached Houston, it was to be reweighed and reclassed, and final settlement between the parties was to be made in accordance with the Houston weights and classification. This agreement was entirely oral. In pursuance of the agreement the cotton was weighed and classified by Freund and delivered to the railway by appellant, who procured a bill of lading therefor showing that the cotton was consigned to his order “Notify.” The hill of lading was thereafter indorsed by appellant in blank and delivered by him to the Rio Grande Valley Bank & Trust Company at El Paso.

Appellant also gave the bank a memorandum showing the amount he was to receive for the cotton, and instructed the bank to credit his account with said amount when it was received. Upon the presentation to him of the bill of lading Freund drew his draft on appellees in favor of the Rio Grande Valley Bank & Trust Company for the amount agreed to he paid by him for the cotton. We do not think the finding material, but, if it could be so considered, the judgment of the trial court in favor of ap-pellees imports a finding by that court that the draft was delivered by Freund to appellant, who delivered it to the bank. Such finding is against the great preponderance of the evidence, but is supported by the testimony of Freund. The bank attached the bill of lading to the draft, credited appellant’s account with the agreed amount, and forwarded the draft to Houston for collection. The appellees paid the draft upon presentation and received the bill of lading and the cotton. Each of the three purchases and shipments of cotton were made in the manner above stated. The bills of lading obtained by appellant contain no statement of the weights or classification of the cotton. These bills of lading were taken out in the form stated and indorsed by appellant in blank at the request of Freund to enable him to obtain the money from the El Paso bank on his draft on appellees.

According to the Houston weights and classification of the cotton, the amount received by appellant from Freund was about $2,000 in excess of the value of the cotton at the agreed price per pound on a basis “middling.” This suit was brought by appellees against appellant to recover such excess.

Appellant filed and presented a proper plea of privilege to be sued in the county of his residence, and answered by general denial and special pleas, which need not be set out. The plea of privilege was heard on February 23, 1917, and was overruled by the court on February 28th. The defendant excepted to the ruling of the court; such exception being recited in the order of the court overruling the plea. The cause was tried on its merits at a subsequent term of the court on May 11, 1917, and appellees recovered a judgment against appellant for the amount claimed by them.

The agreed statement of facts filed with the record contains a statement of all the material facts adduced in evidence on the hearing of the plea of privilege and on the trial of the cause on the merits. The agreement of counsel for appellee appended to the statement of facts and the approval of the trial judge of the statement are as follows:

“I, R. W. Franklin, attorney for plaintiff in this cause, hereby agree that the facts set forth in the foregoing 56 pages are a true and correct statement of the facts adduced in evidence at said two hearings, but I decline to approve this statement of facts, because there is included in the same the evidence adduced at the hearing on the plea of privilege at a previous term, which I do not consider proper to he included in such statement of facts, and not the proper or legal way to present such testimony or preserve the exception.”
“The foregoing statement of facts having been presented to me, the same is hereby approved as a true and correct statement of all the evidence adduced on the hearing of the plea of privilege and on the trial on the merits, and order the same filed as a part of the record in this cause, and plaintiff’s exception noted to the approval and filing of said statement of facts for the reason set out in his refusal set forth above.
“Henry J. Dannenbaum, Judge Presiding.”

Appellees in due time filed a motion in this court to strike out the statement of facts, or in the alternative to strike out that portion of the statement containing the facts adduced on the hearing of the plea of privilege on the ground that it was not proper to include in the statement of facts adduced on the' hearing of the plea of privilege, because such could be properly presented to this court only by a bill of exceptions to the action of the court overruling the plea of privilege prepared and taken at the time the plea was overruled, and because the statute does not authorize a statement of facts on appeal from a judgment rendered at one term of court to include evidence introduced on a partial hearing of the case at a previous term. This motion was taken with the case, and, in connection with appellees’ objections to our considering the first assignment of error, complaining of the judgment of the court overruling the plea of privilege on the ground that the record contains no bill of exceptions to the order of the court overruling the plea, will be disposed of before considering the other questions in the case.

We cannot agree with counsel for ap-pellee in the proposition that a bill of exceptions is necessary in this case to authorize an appellate court to revise the ruling of a trial court on a plea of privilege. Article 2062, Vernon’s Sayles’ Civil Statutes, provides that—

“Where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto.”

As before stated, appellant’s exceptions to the ruling of the court on the plea of privilege is recited in the order of the court overruling the plea. It is agreed by the parties that the statement of facts filed with the record in this case contains all of the facts adduced in evidence on the hearing of the plea. If the evidence upon which the court acted in overruling the plea could be properly presented to this court by an agreed statement of facts, it is clear that the ruling and action of the court fully appears from the record before us, and under the provisions of the statute above quoted no bill of exceptions is necessary to authorize us to reverse such ruling.’ If the plea had been heard with the case, there could be no question of the propriety of embodying in the statement of facts the evidence adduced on the plea with the evidence on the merits of the case, and no serious contention could be made tbat in such ease a bill of exceptions would be necessary. We do not think that the fact that the plea was heard at a different time from the trial of the case on the merits, and at a different term of the court, materially affects the question. At the time this plea was acted on appellant had no right to appeal from the order overruling his plea, and could only present his complaint of such order to .the appellate court on his appeal from the final judgment. We can see no reason for holding that the evidence adduced upon the hearing of the plea could not be properly preserved and presented to this court with the evidence adduced upon the trial on the merits, in a statement of facts prepared after the final judgment, and we are cited to no case which so holds. In the case of Marshall v. Spillane, 7 Tex. Civ. App. 532, 27 S. W. 162, this court refused to sustain an assignment complaining of the action of the trial court sustaining oral exceptions to the defendant’s plea of privilege. In passing upon the assignment the court say:

“This assignment is not supported by the record, for the only action by the court upon the plea shown by the record of which we can take notice is the order made August 10, 1893, which shows that the general demurrer, plea in abatement, and exceptions of defendant E. J. Marshall were overruled, to which he excepted, and took leave to file an amended answer. It does not appear from this order that exceptions were sustained to the plea, and there are no exceptions thereto in the record. For aught that appears otherwise, the court may have heard evidence upon the plea, and found that Killeen resided in Galveston county. At a subsequent term of the court, and at the term at which the case was tried on its merits, the defendant Marshall took a bill of exceptions to the action of the court in overruling the plea, which only shows, however, that, upon exceptions being raised to the sufficiency thereof, the court overruled the plea. The bill of exception should have been taken and filed at the term at which the ruling complained of was made. Rev. St. arts. 1358, 1363; Dist. Ct. Rules 53, 60 [142 S. W. xxi]; Price v. Lauve, 49 Tex. 80; Campbell v. Cook (Tex. Civ. App.) 24 S. W. 980.”

We think it is clear that this case does not support the proposition that when a plea of privilege upon a hearing on the facts is overruled that the evidence upon which the court acted can only be presented to the appellate court by a bill of exceptions. It is manifest from the opinion of the court above quoted that the holding that a bill of exceptions should have been taken at the time the ruling of the court was made was based upon the fact that the ruling of the court did not otherwise appear of record. In the case of American Warehouse Co. v. Ray, 150 S. W. 764, the Court of Appeals for the Fourth District refused to sustain an assignment complaining of the ruling of the trial court on a plea of privilege, because there was no bill of exceptions taken to the ruling. From the statement in the opinion the ruling complained of was not otherwise shown by the record. The court also, after citing rule 55 for the district and county courts (104 Tex. 667, 142 S. W. xxi), which provides that as to rulings of the court upon application for continuance, for change of venue, and other incidental motions, bills of exceptions must be taken, says that, “as a plea of privilege now amounts to nothing more than * ⅜ * a change of venue, ⅜ ⅜ * it seems to come within the very language of” the rule.

It is true that the effect of sustaining a plea of privilege is to change the venue .of the suit, but a motion for change of venue and a plea of privilege are entirely different proceedings, and it cannot be held that the term “motions for change of venue,” as used in the rule, includes pleas of privilege to be sued in the county of one’s residence.

In the case of Luter v. Ihnken, 143 S. W. 675, the court which decided the case of American Warehouse Co. v. Ray, before discussed, in an opinion written by the learned justice who wrote the opinion in the case last mentioned, held that a bill of exceptions was not required to show the ruling of the trial 'court sustaining a plea of privilege. It is true this holding was based upon the fact that the statute made the order of the court overruling the plea a final judgment from which an appeal could be prosecuted, but the opinion further holds that the proceeding on a plea of privilege “cannot be classed as an application for a change of venue, although it may result in such change.”

In the case of Crowell v. Bank, 163 S. W. 339, it is held by the Court of Appeals for the Third District that the ruling of a trial court refusing to sustain a plea of privilege cojild not be shown by a bill of exceptions, but must appear in the minutes of the court.

This review of the cases shows that the opinions of our appellate courts upon the question of the application of rule 55 to rulings upon pleas of privilege are somewhat conflicting and confusing.

We are of opinion that a bill of exceptions was never necessary when the order overruling the motion and entered in the minutes of the court recited that the party against whom the ruling was made excepted thereto, and if the ruling was upon the facts, such facts were shown in a statement of facts. If under the old statute the plea was sustained, the case was dismissed, and, the judgment of dismissal being a final judgment, no bill of exceptions was required to entitle the plaintiff to have the ruling of the court revised on appeal.

The present statute, which provides that if the plea is sustained the suit shall not be dismissed, but transferred to the proper county, gives the right of .appeal to either party from the ruling or judgment of the court on the plea, and, such order being a part of the record of the case, no bill of exceptions is necessary, and if evidence is heard by the court, and the plea determined on the facts, such facts should be presented to the appellate court by a statement of facts prepared as in other appeals from final judgments of a trial court. As we have before stated, at the time the plea of appellant in this case was overruled he had no right of appeal, and the facts upon which the court acted might have been shown by a bill of exceptions, but he was not required to present them in that way.

It follows from these conclusions that ap-pellees’ motion to strike out that portion of the statement of facts containing the facts shown on the hearing of the plea, and their objections to our considering appellant’s assignment of error attacking the ruling of the court on the plea of privilege, cannot be sustained.

This brings us to a consideration of the question of whether the order of the court overruling the plea of privilege was correct.

The defendant in this case was not sued in the county of his residence, and the ground upon which such valuable statutory right was denied him was that the evidence was sufficient to show that he had contracted in writing to pay plaintiffs the sum claimed by them in Harris county, where the suit was brought, and the venue of the suit was thus placed in Harris county under section No. 5 of the venue statute (Rev. St. 1011, art. 1830). In the case of Lasater v. Waits, 95 Tex. 555, 68 S. W. 500, our Supreme Court says:

“The rule of construction which has always been applied in this state is that a' plaintiff, basing his action upon one of the exceptions [to the venue statute], must bring his case clearly within it. The defendant is not to he denied ihe privilege of being sued where he resides upon a strained or doubtful construction of the exceptional provision.”

It is well settled that an implied promise to perform a contract in a county other than that of the defendant’s residence will not place the venue in such county. One who sues a defendant in another county than that of the defendant’s residence must bring his case clearly within one of the exceptions to the general rule. Mahon v. Cotton, 13 Tex. Civ. App. 239, 35 S. W. 869; Burkitt & Barnes v. Berry, 143 S. W. 1187. This does not mean that the written contract must recite in express and exact words that it is to be performed in the county in which the suit is brought, but, if the terms of the written contract are such that it must necessarily be performed in that county, it comes within the statute, and suit can be maintained thereon in the county in which it is performable. Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399.

With these well-settled rules of decision in mind, we agree with counsel for appellant that the evidence in this case wholly fails to show that appellant contracted in writing to pay appellees the sum claimed by them in this suit in Harris county.

The only written instruments introduced in evidence to which appellant was a party were the bills of lading issued to him by the railway company and indorsed by him in blank, and delivered to the El Paso bank. These bills of lading consigned the cotton to appellant’s order at Houston, Tex., with the word “Notify” indorsed thereon, and in one or two of them the indorsement was “Notify Dorrance & Co.” These bills of lading only call for so many bales of cotton, and contain no statement as to the weight or class of the cotton. Under the undisputed evidence which we have before set out the value of the cotton at the price agreed upon, based upon the weights and classification accepted by ap-pellees’ agent, Freund, was to be paid appellant before the cotton left El Paso, and was so paid to him by the amount being placed to his credit in the El Paso bank in accordance with the terms of the agreement. Upon these facts, giving the bills of lading indorsed by appellant the force and effect of a written contract between him and appellees, by no sort of construction can they be held to bind appellant to do more than to deliver to ap-pellees at Houston, Tex., the number of bales of cotton called for therein. It certainly cannot be held that the drafts drawn by appellees’ agent, E]reund, on appellees in fav- or of the El Paso bank added anything to the obligations of appellant evidenced by the bills of lading. It is true the drafts were attached to the bills of lading and were paid by appellees at Houston as a condition to the delivery of the bills of lading, the possession of which was necessary to enable them to obtain possession of the' cotton, but they were not signed or indorsed by appellant, and formed no part of his written contract with defendant. If, however, he had drawn the drafts, and the money called for therein had' been paid him or his assignee at Houston, the drafts and bills of lading, considered together, would only evidence a written contract on his part to deliver to appellees at Houston the identical bales of cotton called for in the-bills of lading, and it is not contended that this was not done; for it affirmatively appears that the cotton called for in the bills of lading was delivered at Houston and received by the appellees.

The agreement between Freund and appellant that the cotton was to be reweighed and reclassed at Houston, and, if upon such reweighing and reclassification the amount paid appellant at El Paso was not the full value of the cotton at the agreed price per pound, Freund or appellees were to pay appellant the balance so found to be due him, and if the amount that had been paid appellant exceeded the value of the cotton, appellant was to return the amount he (appellant) had been overpaid, was oral. It is upon this oral agreement, no part of which is evidenced by any writing, that appellees’ suit is based. No case can be found that will sustain the contention that such oral agreement can be grafted upon the contract evidenced by the drafts and bills of lading in this case, and thus become metamorphosed into a contract in writing binding appellant to pay appellees in Harris county the amount due them under such agreement. The opinions of this court in the cases of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, and Callender v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, were based upon facts essentially different from the facts of this case. The bills of lading and drafts in each of those cases by notations or recitals therein, taken together, were held to constitute a contract by which the defendant bound himself, in consideration of the payment of the amount of the draft, to deliver to the plaintiff in the county of plaintiff’s residence grain in the one case and cotton in the other'of a specified weight and class, and upon breach of the contract to deliver the specified character of grain or cotton, suit to recover damages therefor could be maintained in the county in which the defendant had contracted to make the delivery.

The opinion in the case of Keller v. Mangum, 161 S. W. 19, does not disclose the contents of the bill of lading, which, together with the draft, in the opinion of the court, constituted a contract in writing performable in the county in which the cotton was delivered. The holding is based upon the theory that the defendant failed to deliver cotton of the value called for in the written contract evidenced by the bill of lading and the draft, and the suit, being for breach of said contract, could be maintained in the county where the cotton was contracted to be delivered. This was the holding in the Seley and Callender Cases, and those cases are cited in the Keller-Mangum Case in support of the opinion. We do not think the facts disclosed in the opinion bring the case within the rule announced in the cases cited, but all of the facts may not have been set out in the opinion. There is nothing in the opinion in the case of Seed & Grain Co. v. Blumberg, 162 S. W. 1, which sustains appellees’ contention in this case. We think the present ease is ruled by the case of Sanders v. Hester Cotton Co., 195 S. W. 270, and all that was necessary in this opinion upon this question was to have cited the clear and well-considered opinion of Justice Graves in the Sanders Case, but in view of the fact that able members of the bar and some of our district judges seem to construe the Seley and Callen-der Cases as holding that, whenever a bill of lading and a draft are the means by'which a seller receives payment for goods sold and shipped by him out of the county of his residence, he can be sued in the county in which the goods were delivered and draft paid upon any cause of action growing out of or connected with the sale of the goods, we deemed it not amiss to review the cases and discuss the question at some length. The opinions in the Seley and Callender Cases were by this court, and the writer of this opinion wrote the opinion m the Callender Case, and in neither of those cases did the court hold that a defendant could be sued out of the county of his residence under section 5 of the venue statute upon a cause of action arising from a breach of contract, unless such contract is in writing and expressly provides for its performance in a county other than-that of the residence of the defendant, or its terms and nature are such that it must necessarily be so performed, and we do not think the opinions in these cases can be fairly construed otherwise. The right to be sued where one resides and is known is a substantial right long recognized and guarded in Anglo-Saxon law and expressly guaranteed by the statute of our state, and such right should not be frittered away by loose or too liberal construction of the exceptions to the rule provided by the statute. The necessities or conveniences of large business enterprises which affect the public welfare might induce the Legislature to further extend the exceptions, but until the Legislature does this by amending the statute, the courts must enforce it as it is written, giving the language of the act its plain intent and meaning.

Judgment of the court below must be reversed, and judgment here rendered directing the transfer of the suit from Harris county to El Paso county, and it has been so ordered.

Reversed and rendered.

On Motion for Rehearing.

In the motion for rehearing filed by appel-lees it is very earnestly insisted that this court erred in stating in the opinion heretofore filed herein that the bills of lading and drafts in the cases of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, and Callender v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, “by notations or recitals therein taken together were held to constitute a contract by which the defendant bound himself, in consideration of the paymejnt of the amount of the draft, to deliver to the plaintiff in the county of plaintiff’s residence grain in the one case and cotton in the other of a specified weight and class, and upon breach of the contract to deliver the specified character of grain or cotton suit to recover damages therefor could be maintained in the county in which the defendant had contracted to make the delivery.”

This statement is inaccurate as applied to the C'allender-Sbort Cases if it be construed to mean that there was any notation on the bills of lading or drafts in evidence in that case indicating the grade or weight of the cotton. The bills of lading in that case, just as in this case, only called for a certain number of bales of cotton, and the drafts were drawn for the value of the cotton at the agreed price per pound, based on grade and weight at the point of shipment. Neither the bills of lading nor the drafts contained any notations or recitals indicating the grade or weight of the cotton.

The contract under which the cotton was purchased provided that the cotton should be paid for at so much per pound f. o. b. cars at Houston, on a basis middling, Houston weights and classification.

This court held, in effect, in the case mentioned, that the bills of lading and the drafts above described constituted a contract in writing by the defendant to deliver to the plaintiffs at Houston cotton which, when classified and weighed at Houston, would at the agreed price per pound be worth the amount of the drafts, and for a breach of this contract suit could be maintained against the defendant at Houston.

We are not inclined to question the correctness of that holding, and any expressions in our main opinion which can be so construed were not so intended, and are here withdrawn.

The facts in this case distinguish it from the Callender Case. As stated in our main opinion, the undisputed evidence in this case shows that the draft on appellees was not drawn by appellant, nor indorsed by him. He was not the payee in the draft which was drawn on appellees by its agent at El Paso in favor of the El Paso bank. It was cashed by the El Paso bank, and the proceeds paid to appellant in El Paso. The cotton was weighed by the public weigher at El Paso, and a sample from every bale was examined by appel-lees’ agent, Freund, after which he began negotiations with appellant, for the purchase of the cotton. The parties finally agreed upon the price, and agreed amount was paid appellant in the manner stated. Appellant testified:

“The purpose of having these bills of lading taken in my name as the consignor for the shipment of cotton from El Paso to Houston was so that Mr. Freund could negotiate his drafts in order to pay me the money for the cotton. I did not suggest .to him that it be fixed that way. He suggested it to me. * * * I explained to Mr. Freund fully. I wanted the cash there in El Paso.”

Appellees’ agent, Freund, testified:

“It is a fact that I paid Mr. Valdespino in cash the price of the cotton that he wanted there at El Paso, the full amount of it according to my class and weights there at El Paso, according to what we had agreed on there at El Paso. I paid him every cent of the value of the cotton that we had agreed on there at El Paso.”

How is it possible to get out of these bills of lading and drafts a contract on the part of appellant to deliver cotton of any specific weight and grade at Houston? Appellant was not a party to the drafts, and the drafts and the bills of lading, taken together, fail to show what amount appellant was paid for the cotton, and appellee’s cause of action depends entirely upon the oral contract of sale made by appellant with appellee’s agent at El Paso. This being true, it necessarily follows that a suit for the breach of that contract could not be maintained over appellant’s objection, elsewhere than in the county of his residence.

We are fully satisfied that our disposition of this appeal as indicated by our main opinion was correct, and the motion for rehearing must be overruled.

Overruled.
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