text:
    DALLAS COUNTY v. REYNOLDS.
    (No. 7860.)
    Dec. 1, 1917.
    (Court of Civil Appeals of Texas. Dallas.
    Rehearing Denied Jan. 5, 1918.)
    1. Time <&wkey;8—“Day.”
    As a general rule, the term “day,” as used in legislative enactments, or in contracts, means the whole 24 hours, that is, from midnight to midnight; particularly in reference to official services except where it is in some way restricted or limited.
    [Ed. Note.—Por other definitions, see Words and Phrases, First and Second Series, Day.]
    2. Prisons <&wkey;18(S)—Ghar&e of Sheriff foe Prisoners—Statute—“Day.’ ’
    Under Acts 32d Leg. c. 64, allowing the sheriff for each prisoner for each day such amount as may be fixed by the commissioners’ court, if reasonably sufficient as compensation, not less than 40 cents per day for each prisoner, nor more than 50 cents, the term “day” means days and fractions thereof, so that the sheriff is entitled to full compensation for a prisoner under his contract with the commissioners’ court, though the prisoner is in custody, only a part of a day.
    Appeal from District Court, Dallas County; T. A. Werk, Judge.

      Suit by W. K. Reynolds against Dallas County. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    John W. Pope, of Dallas, for appellant. Albert Walker, of Dallas, for appellee.
   RAINEY, C. J.

Appellee, W. K. Reynolds, sheriff of Dallas county, sued said county for $591.40, for services rendered, for safe-keeping, support, and maintenance of prisoners confined in the county jail, as provided by the terms of chapter 64, Acts of the Thirty-Second Legislature, p. 107, allowing the sheriff the following charges:

“To each prisoner for each day such amount as may be fixed by the commissioners’ court, provided the same shall be reasonably sufficient as compensation for such service, and in no event shall it be less than forty cents per day for each prisoner, nor more than fifty cents for each prisoner per day.”

The commissioners’ court fixed the amount for such services at 40 cents per day. The county denied owing anything, but claimed that it had paid the sheriff in full for his services, and that the sheriff’s claim was for fractions of days for which it was not indebted to said sheriff. A trial was had, and judgment was rendered for the sheriff, from which the county appeals.

There is no controversy as to the facts, but the issue arises over the proper construction of the law as ahove quoted. The sheriff contends that when a prisoner is placed in jail he is entitled to a full day’s pay, whether or not he stays for the full 24 hours, or for only a part of a day; while the county contends that if the prisoner stays in jail only a part of a day, that is, less than 24 hours, the sheriff is only entitled to receive pay for said fractional part of said day. So the question arises whether or not the term “day” as used in the statute covers the full 24 hours, or is divisible into fractions of the day for the purpose of computing the time to control the pay for services of the sheriff when a prisoner is kept for part of a day.

It appears that the charges made by the sheriff were for prisoners that had been in his actual custody, and he is seeking pay for the full period of days while in his custody, while the county has paid him for a full day for each prisoner so kept, but is resisting payment for those who were kept by said sheriff for less than 24 hours. The county auditor, on January 1, 1916, required a record to be kept showing the time when prisoners were incarcerated in the jail and when they were discharged, and record has been kept since that time. There was on an average of from 150 to 175 prisoners received and discharged every month, and the sheriff had to employ an extra person as jailer, to whom he paid §150 per month, who testified, in effect, that in addition to his other duties he kept the jail record and frequently sat up until after 10 o’clock at night making entries of the time prisoners were received and when discharged, which task was very burdensome and inconvenient.

As a general rule the term “day,” as used in legislative enactments or in contracts, means the whole 24 hours, that is, from midnight to midnight; especially is this the rule in reference to official services, except where it is in some way restricted or limited. O’Connor v. Towns, 1 Tex. 107; Speer v. State, 2 Tex. App. 246; Haines v. State, 7 Tex. App. 30; Janks v. State, 29 Tex. App. 233, 15 S. W. 815; Linhart v. State, 33 Tex. Cr. R. 507, 27 S. W. 260; Muckenfuss v. State, 55 Tex. Cr. R. 229, 116 S. W. 51, 20 L. R. A. (N. S.) 783, 31 Am. St. Rep. 813, 16 Ann. Cas. 768; Jones v. State, 32 Tex. Cr. R. 534, 25 S. W. 124; Denver v. Pearce, 13 Colo. 388, 22 Pac. 774, 6 L. R. A. 541; Miner v. Goodyear Co., 62 Conn. 410, 26 Atl. 643; In re Senate Res., 9 Colo. 628, 21 Pac. 475; Cosgriff v. Commissioners, 151 Cal. 407, 91 Pac. 98; 13 Cyc. 263; 38 Cyc. 314, § 6. Many more authorities might be cited from other states, but we deem it unnecessary to do so.

In Speer v. State, supra, the court in its opinion says;

“We know no rule of law or legal mode of computing time by which we would be warranted in holding that parts of two days make a day.”

In O’Connor v. Towns, supra, the court quotes from Lester v. Garland, 15 Ves. 246, as follows:

“Our law rejects the fractions of a day more generally than the civil law does. The effect is to render 'the day a sort of indivisible point", so that any act done in that compass of it, is not referable to any one rather than to every other portion of it, but the act and the day are coextensive, and therefore cannot be properly said to be passed until the day is passed.”

In Janks v. State, supra, the court said;

“The word ‘day,’ as used in article 178 of the Penal Code, includes the time elapsing from 12 o’clock midnight to the succeeding one,” etc.

In Linhart v. State, supra, the court, in discussing the time when a person becomes of age, used the following language:

“It is to be observed that a person becomes of age on the first instant of the last day of the twenty-first year next before the anniversary of his birth. Thus, if a person were born at any hour of the 1st day of January, A. D. 1801 (even a few moments before 12 o’clock at night of that day), he would be of full age at the first instant of the 31'st of December, 1821, although nearly forty-eight hours before he had actually attained the full age of twenty-one, according to years, days, hours and minutes, because there is not in law, in this respect, any fraction of a day, and it is the same whether a thing is done upon one moment of a day or another.”

Judge Davidson, in his opinion in the case of Muckenfuss v. State, supra, discussed the meaning of the word “days” in a Texas statute. In that case the opinion turned on the meaning of the word “day” in article 302, Penal Code of Texas, which inhibits, under certain conditions, certain public amusements on Sunday. In this decision Judge Davidson said:

“ ‘Sunday’ as used in this statute, means the entire day; that is, from midnight Saturday night until midnight Sunday. It includes twenty-four houi’s. Such has been the construction of ‘day’ in all the decisions of this state where simply a ‘day’ is mentioned. ⅜ ⅜ It is unnecessary to cite authorities, we think, in Texas to sustain these positions.”

In Miner v. Goodyear, etc., supra, the court also construed the meaning of the word “day” as same was used in a statute. In that opinion the court used this language:

“The current of authorities is substantially unvarying to the effect that when the word ‘day’ is used in a statute or in a contract, it will, unless it is in some way restricted, be held to mean the whole twenty-four hours.”

A part of the text in Cye. vol. 13, p. 263, ■cited above, is:

“As used in a statute or in a contract, twenty-four hours and not mei'ely the day as popularly understood from sunrise to sunset, or during the time the light of the sun is visible.”

A part of the text in Cyc. vol. 38, p. 314, .and in section 6, under the title ‘Day,’ is:

“It may be stated generally that in the computation of a period of time measured in days and in the construction of the woi'd ‘day’ as used in a contract or statute, the law adopts as the unit of measurement the period of twenty-four hours extending from midnight to midnight.”

In Smith v. Commissioners, 10 Colo. 17, 13 Pac. 917, in construing the statute reading as follows: “For the time necessarily spent in the discharge of his duty he shall receive $5.00 per day,” etc., the court said:

“In this connection counsel for the appellee asks for an opinion ‘as to what length of time will constitute á day’s service for the superintendent.’ We answer, the law does not recognize fractions of days; and when it provides a per diem compensation for the time necessarily devoted to the duties of an office, the officer is entitled to this daily compensation for each day •on which it becomes necessary for him to perform any substantial official service, if he does perfoi-m the same, regardless of the time occupied in its performance.”

On account of necessity and for public convenience and in order to avoid disputes, the law rejects fractional parts of a day. Long’s Appeal, 23 Pa. 297; Miner v. Goodyear, etc., 62 Conn. 410, 26 Atl. 643; Cosgriff v. Commissioners, 151 Cal. 407, 91 Pac. 98.

In Long’s Appeal, supra, the court said:

“It is a principle of the common law that in judicial and other public proceedings there are no fractions of a day, and that all transactions of the same day are, in general, regarded as occurring at the same instant of time. This principle has been established from necessity and from a regard to public convenience.”

A part of the' language used by the court in Cosgriff v. Commissioners, supra, is:

“The fractions of the days are no more taken into consideration than are the fractions of the ■seconds. The consequence is that every day and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, and would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable.”

It is contended by appellant that to construe a “day” as used in the statute to mean the time from midnight to midnight would, in many cases, work an injustice. In reply it might justly be said that in many ways it might work an injustice to the sheriff to construe the statute as contended for by appellant.

It seems that in the instant case the county auditor required that a record be kept of the fractional part of the day, when only a part of a day was consumed in keeping a prisoner, in some instances to the hour, allowing the sheriff only 1% cents per hour. By this method it might arise that if a prisoner was received in the morning, say at 7 o’clock, and discharged at 2 o’clock the same day, after two meals were given, and all the trouble engendered for receiving, keeping, and discharging him, the sheriff would only receive about 12 cents, which would in no riespect begin to compensate him for his trouble 'in keeping, supporting, and. maintaining him. When the contract was made for the pay of the sheriff for such services, there was nothing said about a division of a day’s time, and our decisions holding that when a day is so expressed it is to be construed to mean the time elapsing between midnight and midnight, we will so construe it, especially so when the county commissioners had the opportunity to limit it in the contract with the sheriff and failed to do so.

Bearing on the question at issue appellant cites one authority, that of Pressley v. Marion County Commissioners, 80 Ind. 45, where the court, passing on a statute which used the following language x “For boarding each prisoner * ⅜ ⅜ in his charge, per day, 60 cents” — the sheriff contending that he should be allowed something for his trouble in safe-keeping and caring for the prisoners, said that the law of Indiana did not allow the sheriff anything for his services in safe-keeping and caring for prisoners, but only allowed compensation for feeding prisoners; hence nothing was allowed. That is a different case from the instant one, and we do not think in view of the other decisions it should prevail in this case. A ruling of the Attorney General of this state, in construing our statute on this point, is cited by appellant, which holds contrary to the views here expressed, but we do not concur in his views, and believe them contrary to the weight of authority. Therefore we conclude that the holding of the lower court is correct, and its judgment is affirmed.

Affirmed.
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J. MORROW, X PRENDERGAST, J.

license: Public Domain

text:
    McLAREN v. STATE.
    (No. 4669.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.
    On Motion for Rehearing, Dec. 21, 1917.
    Dissenting Opinion Dec. 31, 1917.)
    1. Infants <&wkey;16 — Juvenile Defendants — PROSECUTION FOR FELONY — STATUTES.
    Acts 33d Leg. c. 112, § 1, amending Code Cr. Proc. art. 1195 (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195), and providing that, when an indictment for felony is returned against any male juvenile under the age of 17, his parent, attorney, etc., may file a sworn statement before the case is ready for trial setting forth his age, and that the judge shall hear evidence on the question of his age, and that, if satisfied that he is under 17, he shall dismiss the prosecution, and try the juvenile as a delinquent, and further providing for a commitment to the State Industrial School for Boys upon an indeterminate sentence, is mandatory, and where such fact is shown by evidence the court has no discretion to refuse to dismiss the prosecution.
    2. Statutes <&wkey;227 — Mandatory Provisions —“Shall.”
    The word “shall” is not always given a mandatory effect in construing a statute, and a statute, notwithstanding use of such word, is sometimes held directory, but when the word is used, the presumption is that it is in the imperative, and not in the directory, sense (citing Words and Phrases, Second Series, Shall).
    3. Statutes &wkey;>230 — Amendment—Intent to Change Law — Presumption.
    The presumption is that the Legislature in adopting an amendment intended to change the law, and the phraseology of the amended act materially different from that of the original act raises a presumption of an intent to change the meaning.
    4. Constitutional Law &wkey;>250 — Classification of Persons for Punishment — Legislative Power.
    The Legislature in the passage of criminal laws may take cognizance of the youth of offenders and make provisions modifying or exempting them from punishment, which classification is valid where it operates in a uniform manner upon the individuals of the class.
    On Motion for Rehearing.
    5. Infants <§=^16 — Juvenile Court — Offenders — Repeal of Statute.
    Acts 33d Leg. c. 112, § 1, amending Code Cr. Proc. art. 1195 (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195), and repealing a former provision under which the transfer of a case of a juvenile charged with felony to the juvenile court was within the discretion of the trial judge, repealed Rev. Civ. St. art. 2200, containing a similar provision.
    6. Infants <&wkey;16 — Juvenile Offenders — Statutes.
    Rev. Civ. St. art. 5229, as amended by Acts 33d Leg. (1st Called Sess.) c. 6, § 9 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5229), providing that a boy under 17 convicted of a felony shall be sent to the training school for boys instead of the penitentiary, does not conflict with the mandatory provisions of Acts 33d Leg. c. 112, § 1, amending Code Cr. Proc. art. 1195 (Vernon’s Ann. Code Cr. Proc. 1916, art. 1195), requiring the judge, on a showing that a male person indicted for felony is under 17, to dismiss the prosecution and proceed to try him as a juvenile delinquent.
    7. Constitutional Law &wkey;>70(3) — Construction of Statute — Policy of Law.
    The argument that the policy of a law is unsound is not available to control its construction contrary to the expressed legislative intent.
    Prendergast, J., dissenting.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    J. C. McLaren was convicted of murder, and lie appeals.
    Reversed.
    J. F. Taulbee, of Georgetown, for appellant. W. G. Love, of Houston, Wilcox, Graves & Metcalfe, of Georgetown, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder. He was a boy under 17 years of age at the time of the commission of the offense and at the time of the trial. This fact was brought to the attention of the court by a sworn statement in accord with article 1195, Vernon’s Ann. Code Cr. Proc. 1916, and the fact duly established by evidence, and found to exist by the court as shown by the bill of exceptions. Appellant sought, in consequence thereof, to have the felony indictment dismissed. The action of the court in refusing to dismiss the felony charge is made the basis of complaint and properly brought before this court for review.

Article 1195, supra, is as follows:

“Male Persons under the Age of /Seventeen Accused of Felony to be Prosecuted as Juvenile Delinquents; Committed to State Industrial School for Boys upon Indeterminate Sentence; Time of Detention; Proof of Age; Proviso.— When an indictment is returned by the grand jury of any county charging any male juvenile under the age of seventeen years with a felony, the parent, guardian, attorney or next friend of said juvenile, or said juvenile himself, may file a sworn statement in court, setting forth the age of such juvenile, at any time before announcement of ready for trial is made in the case. When such statement is filed, the judge of said court shall hear evidence on the question of the age of the defendantand, if he be satisfied from the evidence that said juvenile is less than seventeen years of age, said judge shall dismiss such prosecution and proceed to try the juveniíe as a delinquent, under the provisions of this act. If said juvenile be found to be delinquent, and sentence be not suspended, as provided in the laws of this state in cases of felony on first offense the defendant shall be committed to the State Industrial School for Boys upon an indeterminate sentence: Provided, that such defendant shall not be detained in said school after he has reached the age of twenty-one years. Such defendant shall be conveyed to the said school by the probation officer, sheriff or any peace officer designated by the court: Provided, that such conviction and detention in said school shall not deprive defendant of any of his rights of citizenship when he shall become of legal age: And provided, further, that the age of the defendant shall not be admitted by the attorney representing the state, but shall be proved to the satisfaction of the court by full and sufficient evidence that the defendant is less than seventeen years of age, before the judgment of commitment to said institution'shall be entered. The officer-conveying any defendant to said school shall be-paid by the .county in which conviction is rendered the actual traveling expenses of said officer and defendant: Provided, further, that nothing in this act shall be held to affect, modify or vitiate any judgment heretofore entered confining any defendant to the State Institution for the Training of Juveniles; but the unexpired portion of any such judgment shall be fulfilled by the confinement of' any such defendant in the State Industrial School for Boys.”

It is contended that the provisions of this statute are mandatory, and that, when it is made to appear in the manner required by the statute that appellant, who was charged with a felony, was a boy under 17 ydars of age, and the fact was established by evidence, the court was without discretion to refuse to dismiss the prosecution. The point has not heretofore been directly brought before this court for review. There is a statement in one of the opinions, Town-ser v. State, 182 S. W. 1104, in which views are expressed indicating that the provisions of the statute were not mandatory. The question, however, was not involved in the fates of that case, as the appellant was a female, whose rights were not defined by the statute mentioned, which applies only to males under 17 years of age. Neither was it involved in McCallan v. State, 76 Tex. Cr. R. 353, 174 S. W. 613, for the reason that the appellant was charged with a misdemeanor, and the statute in question deals with the charge of felony. We have not been furnished with a brief defining the state’s views. We assume, however, that the learned trial judge was guided by the expressions of opinion that the statute was not mandatory contained in the McCallan’s Case, supra, and Townser’s Case, supra. The article of the statute is amendatory of a similar provision in the act of 1909 (page 100), which act in express terms left the question as to whether the proceeding should be dismissed to the discretion of the trial judge. It authorized him to dismiss it, “or the judge of the district court may in his discretion proc.eed to try the case as provided by law.” This provision touching discretion was held effective by this court in Ragsdale v. State, 61 Tex. Cr. R. 145, 134 S. W. 234, decided February 15, 1911. At a subsequent session of the Legislature the provision thus passed upon by the court in Ragsdale’s Case was amended so as to eliminate the language in express terms giving the district judge discretion with reference to the dismissal of the prosecution, and substituting therefor the words:

“When such statement is filed, the judge of said court shall hear evidence on the question of the age of the defendant; and, if he be satisfied from the evidence that said juvenile is less'than seventeen years of age, said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent, under the provisions of this Act.” Acts 1913, pi 214, c. 112.

The Legislature was cognizant of the opinion of this court in the Ragsdale Case, supra, at the time the amended statute was written. If it had been the desire' of the Legislature to leave the discretion in the district judge, provided in the act of 1909, the change in the language was unnecessary. To hold that by changing the provision expressly giving discretion to one in terms mandatory the Legislature intended that the man-1 datory words should be given the same interpretation as the discretionary words would, we think, be contrary to established rules touching the interpretation of statutes. 36 Cyc. 1165.

The word “shall” is not always given a mandatory effect in construing a statute. A statute, notwithstanding the use of the word “shall,” is sometimes held directory. Words and Phrases (2d Ser.) p. 557. When the word “shall” is used, however, the presumption is that it is in the imperative, and not a directory, sense. Haythorn v. Van Kauren, 79 N. J. Law, 101, 74 Atl. 502; Holmes v. Royal Loan Ass’n, 128 Mo. App. 329, 107 S. W. 1005; Whitsett v. Wamack, 95 Mo. App. 290, 69 S. W. 24.

The presumption is that the Legislature in adopting the amendment intended to change the law, and the phraseology of the amended act, being materially different from that of the original act, raises the presumption of an intent to change the meaning. Railway v. Telephone Co., 93 Tex. 321, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884; Jessee v. De Shong (Tex. Civ. App.) 105 S. W. 1011; Evansole v. Evansole, 169 Ky. 793, 185 S. W. 487; 36 Cyc. 1165.

The classification of persons amenable to punishment for crime, within constitutional limitations, is a legitimate exercise of legislative authority (Wharton on Crim. Law, §§ 364-370; Ruling Case Law, vol. 8, p. 64), but crimes and the punishment therefor must be defined by the lawmaking power, and operate in a uniform manner upon the individuals of the class embraced in the law. The intent to vest in the trial judge the discreation to determine which individual shall be prosecuted for a felony and which treated as a delinquent juvenile is not to be inferred. The power is doubtful because it would commit to the trial judge the arbitrary discretion to determine the grade of the offense, without judicial investigation of the facts, or facility for review. Penal Code, arts. 1-3; King v. State, 87 Tenn. 304, 10 S. W. 509, 3 L. R. A. 210; Ex parte United States, 242 U. S. 47, 37 Sup. Ct. 72, 61 L. Ed. 129, Ann. Cas. 1917B, 355; Snodgrass v. State, 67 Tex. Cr. R. 615, 150 S. W. 162, 41 L. R. A. (N. S.) 1144; Marshall v. State, 72 Tex. Cr. R. 83, 161 S. W. 112. The legislative right to take cognizance of the youth of offenders in the passage of criminal laws and to make provisions modifying or exempting them from punishment is universally conceded. 14 .Ruling Case Law, 264, and cases cited; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905; State v. Yeargan, 117 N. C. 706, 23 S. E. 153, 36 L. R. A. 196, and notes. Numerous examples of the exercise of such authority are found in our own statutes, notably article 34 of the Penal Code, declaring that no person under 9 years of age shall be punished for crime except for perjury, and none between 9 and 13 except upon proof of understanding of tlie nature and. illegality of the offense. Vernon’s Ann. Pen. Code 1916, p. 15.. Article 35 of the same Code exempts persons under 17 years from punishment with death. The act of the Thirty-Third Legislature under consideration (article 1195, supra), given the mandatory construction discussed, is but another example of the exercise; of ⅛⅞ same power, an'd, so construed, it gives the youth under 17 years of age charged with a felony the privilege of exemption therefrom, makes it obligatory upon the court to recognize the exemption by the dismissal of the prosecution for felony, and gives the state the right to proceed against him as a delinquent The intent of the Legislature to make the provision mandatory is emphasized by reference to another act of the same session provided for indeterminate sentences, in that it extended the merciful 'provision of the indeterminate sentence only to those felons above the age of 17 years, clearly indicating the legislative view that there should be no felons under that age. Article 865a, C. O. P.

The trial court in denying appellant’s motion to dismiss committed error which requires a reversal of the judgment, which is ordered.

PRENDERGAST, X, dissents.

On Motion for Rehearing.

MORROW, X

The state in its motion for rehearing refers us to McCallan’s Case, 76 Tex. Cr. R. 509, 174 S. W. 611, wherein certain statutory provisions touching the juvenile laws of the state were commented upon. The construction of the article of the statute construed in this case (article 1195, C. C. P.) was not involved in the McCallan Case, for the reason that in that case the question befqre the court was the right of a juvenile charged with a misdemeanor, while article 1195, supra, touches only the right of a juvenile charged with a felony.

The contention is made that the act of 1907 (section 9), which is article 2200 of the Rev. Civil Statutes, is in force and unre-pealed, and the provisions therein contained, providing that a transfer of a case of a juvenile charged with a felony to the juvenile court is within the discretion of the trial judge, control the disposition of, the appellant whose rights accrued under the act of 1013 (chapter 112, § 1) cannot be sustained. The act of 1913 amended a provision of the Code of Criminal Procedure passed in 1909 which, with reference to the discretion of the judge in juvenile cases, was in substance the same as the provision of article 2200, supra, and in writing the amendment repealed . article 1145, Code Cr. Proc. 1895, containing such discretion, and substituted therefor the mandatory language quoted in the original opinion. Article 1145, supra, is construed in Ragsdale, 61 Tex. Cr. R. 149, 134 S. W. 234, _ and expressly repealed by Acts 1913, c. 112, § 1 (Yernon’s Ann. Code Cr. Proc. 1916, art. 1195), by completely rewriting article 1145 and substituting therefor article 1195 as quoted in the original opinion.

Article 5229 of the Revised Civil Statutes, as amended by the Thirty-Third Legislature (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5229), is not in conflict with article 1195, supra, as construed in the original opinion. That act (article 5229) in substance provides that a boy under 17 years of age convicted of a felony shall be sent to thq training school for boys instead of to the penitentiary. A boy under 17 years of age charged with a felony may, if he so elect, rely upon his plea of not guilty and stand his trial on the charge of felony, taking the chances of conviction or acquittal; or he may, if he so elect* file his plea setting up the fact that he is under 17 years of age, which, when established by proof, will require the couft to dismiss the felony charge. If he elect to be tried for a felony, and not as a juvenile, article 5229 as amended provides his place of confinement upon conviction.

The legislative policy disclosed in article 1195, as well as in article 5229, supra, is to prohibit the sending of boys under 17 years of age to the state penitentiary and to provide a method whereby they may by reason of their youth avoid the consequences of conviction for a felony. This is illustrated in Arrendell v. State, 60 Tex. Cr. R. 350, 131 S. W. 1096, wherein it is held that the exemption from prosecution for a felony by reason of youth refers to the time of the trial and when the boy is over 13 years old, not to the time the offense is committed.

The argument made that the policy of the law is unsound is not available to control the construction of the statute contrary to the expressed intent of the Legislature. Prom the suggestion that there is much in the juvenile laws that might be improved by amendment, we do not dissent. Until so amended we can only apply to them as best we may the settle rules of construction.

Following these rules, we are constrained to overrule the state’s motion for rehearing.

PRENDERGAST, J.

(dissenting). The un-contradicted and unimpeached testimony in this case reveals one of the most atrocious and cruel, murders that is recorded in criminal records. The majority opinion fails to state the facts. I think it is important and necessary that this be done, and I will here succinctly state them;. They were established by the uncontradictedi testimony of disinterested witnesses and by the written confession of the appellant himfeelf.

The deceased, R. F. (Frank) McLaren, lived in the country several miles from Taylor. Appellant, his son, X O. McLaren, lived with him. In the early part of the night of November 27,1916, deceased went from his home to Taylor in Ms automobile to an Odd Eel-lows’ lodge meeting. In going be went by and picked np and took with bim four of bis neighbors. They left Taylor a little after 11 o’clock that night returning home. He first took bis neighbors to their homes, and, after dropping the last one, started to his home alone.

Appellant was bom October 10, 1900, and was therefore on said night 16 years, 1 month, and 17 days old — in his seventeenth year. He had been intending and planning for some time to murder his father, deceased. He knew his father had that night gone to said lodge meeting, and that he would return home on a certain route. He induced Harry MteBryde, a young man 22 years old, to go with him and assist him kill his father. They took with them, or McBryde did, a.gun barrel with which to kill Mm. They lay in wait for him near the road on which they knew he would return. About or near midnight deceased reached the point where they lay in wait and discovered them. He stopped and invited them in his automobile to ride with him. They got in the automobile on the back seat. He started up and after going for a while McBryde from behind struck him a blow on the head which crushed his skull and stunned him if it did not kill him.. McBryde continued to strike him repeated blows, crushing his skull most horribly. Of course, When the first blow was struck, deceased lost control of his machine and it left the road. Appellant himself got over on the front seat, took control of the steering wheel, and ran the machine back into the road. The blood from his father ran and was running out on the front seat taken by appellant. Indeed, his pants and his clothes were saturated therewith. Appellant then ran the .machine with his murdered father by his side to a bridge, and he and McBryde ran the machine off of the bridge with his father in it, turning it upside down. They then set fire to the m&chine and his father, as he says, in order to make it appear that Ms father accidently ran off the bridge and his machine caught fire. They then took the gun barrel and hid it. They washed the blood off their hands, and appellant went to a certain barn, removed all of his bloody clothing and hid them. Later he went back, got the gun barrel from where they had hid it that night, took it elsewhere, and threw it in a water hole, where it sunk in the mud. It was afterwards found and identified where appellant said he had thrown it.

The machine was practically burned up, and in the burning the body of deceased was largely consumed by the fire. An hour or two after they killed deceased several persons going from Taylor on said road found at said bridge the said burned car and burned body of deceased. They gave the alarm, and later the neighbors and officers reached the body. Appellant and McBryde so far deceived them by running the car off thb bridge and burning it and deceased’s body that they thought deceased had accidently run off the bridge, his car caught fire, and was consumed, consuming his body. Thet did not at the time, it seems, suspect deceased had been murdered. No especial examination was made of his skull at that time. He was buried without ascertaining that his head had been crushed. Later developments aroused suspicion, his body was disinterred, his skull examined by physicians, and it was then seen and learned that Ms skull had been crushed, beaten into a pulp, and that said gun barrel was the instrument used in doing this by appellant and McBryde.

The case was called for trial January 25, 1917. Just prior thereto appellant filed his affidavit to the effect that he was a juvemle under the age of 17 years. The affidavit was in accordance with our juvenile statute. The court on that date heard evidence of his age, and found it a fact that his age was as stated above. In Ms motion and affidavit he moved that the cause against him be transferred to the juvenile court, and that he be tried as a juvenile, and not tried for the felony offense of the murder of his father. The court held that under the juvenile statute and the decisions of this court thereunder he had the discretion not to transfer the case to the juvenile docket and try him as a juvenile, but to proceed to trial as any other like cases of felony in his court,, and thereupon he duly so ordered, and had such order entered properly in the minutes of the court as follows:

“It is therefore ordered, adjudged, and decreed by the court that said motion be, and the same is hereby, overruled, and the court in the exercise of its discretion,-and after hearing and considering the testimony as to toe age of the defendant, and as to the character of the defendant, and the circumstances under which the crime charged against him was committed, here now orders and directs that the best interest of said defendant and of society require that this cause be tried' and disposed of by this court in accordance with the law governing the trial of causes in this court, and that this cause be set for trial and disposed of in due order as are other felony cases-of its grade.”

On February 24, 1915, in McCallan v. State, 76 Tex. Cr. R. 353, 174 S. W. 611, this court, after the most careful investigation, and consideration, expressly held that Acts 1913, p. 214’, amending article 1195, O. O. P., of the juvenile statute, was not mandatory, requiring the district judge to peremptorily dismiss a felony charge against a male under 17 years of age and try him as a juvenile, but that, notwithstanding said amended article stated, “Said judge shall dismiss,” etc., the Legislature intended to still leave it discretionary to the judge whether or not he • (should dismiss such prosecution. The Legislature was then in session at its regular term. The next Legislature convened in regular session i}u (January, 1917. There were also special sessions of the Legislature after the regular session beginning in January, 1913, and there were other special sessions of the Legislature after the regular session in 1917. The executive and the Legislature acquiesced in the said construction of said statute by this court, and the Legislature in no way amended said article of the juvenile statute, nor did the executive recommend it, to show that this court’s construction of said article was other than as intended by the Legislature, as held by this court. Agato, this court in Townser v. State, 182 S. W. 1105, in a felony case, expressly adhered to its holding in the McCal-lan Oase and cited that ease on the point. This decision was rendered February 2, 1916. Neither the executive recommended nor the Legislature thereafter amended said article to show that this court’s construction of the act of 1913 was wrong, but acquiesced, by not enacting otherwise, in said construction given by this court. Again, in Davis v. State, 188 S. W. 990, in a felony case, this court expressly adhered to the decision in the Mc-C'allan Oase and cited it with approval. This decision was rendered October 18,1916; and, notwithstanding these several decisions of this court construing said act of 1913, the Legislature in 1917 still did not change the said act or amend it so as to show that the construction of this court was wrong, but by not doing so again impliedly acquiesced in the construction of said article by this court. It looks like, therefore, that the question should be regarded as settled and the law upheld, and not now construed so as to permit appellant herein to escape the just punishment of, as stated, his most atrocious and cruel murder of his father. The Legislature never intended that such crimes should escape punishment. On the contrary, the Legislature intended to still leave the discretion with the district judge as was held in the McOallan and Townser and Davis Cases. The undisputed facts in this case reveal such another atrocious and cruel crime which the Legislature intended should not escape punishment as was given in illustration in the said McOallan Oase.

While it adds to the length of this opinion, still I think it of sufficient importance to here copy what was held by this court in said ¡McCallan, Townser, and Davis Oases. In the McCallan Oase it was held:

“Prior to 1889 all persons convicted of crime, even under the ago of 16 years, were liable to the same punishment as those above said age. If of felony, they had to be confined in the penitentiary ; if of a misdemeanor, they were compelled to pay a fine and suffer a jail imprisonment, as might be imposed under the law. By Act April 2, 1889, p. 95, § 12, as amended in 1895 (page 94), and incorporated in our Code of Criminal Procedure of 1S05 as articles 1145 and 1146, it was for the first time required that when a male person under 16 years of age was convicted of a felony, and his punishment assessed at imprisonment of 5 years or less, that he should not be confined in the penitentiary, but in the reformatory established and located at Gatesville, Tex. That act made no provision about a misdemeanor conviction.
“The first act about juveniles was enacted by the Legislature April 5, 1907 (Laws 1907, p. 137), in ten sections, defining and prescribing the procedure for the trial of a ‘delinquent child.’ Said articles 1145 and 1146 of the Code of Criminal Procedure were amended by the act of March 17, 1909 (Laws 1909, p. 100). The very next act of the same Legislature amended section 9 of the 1907 delinquent child act, and the next act (Laws 1909, p. 103) changed the name of the Gatesville institution, and prescribed regulations therefor.
“The revisers of 1910-1911 bodily copied the said act of 1907 in the Code of Criminal Procedure as articles 1197 to 1206, inclusive, and copied said articles 1145 and 1146, as amended in 1909, in the same chapter, as articles 1195 and 1196. At the same time they also embodied in the Revised Civil Statutes said act of 1907, as articles 2191 to 2201, inclusive, and the Legislature adopted both as thus contained. There is no difference between these several provisions in the Revised Statutes and those copied in the procedure above noted. * * * The Legislature in 1909 (Laws 1909, p. 103) amended the Revised Statutes, regulating the control of said Gatesville institution, and changed the name of it. This act was embraced in the Revised Civil Statutes of 1911 under articles 5221 to 5234, inclusive.
“Again, on April 2, 1913 (Laws 1913, p. 214), the Legislature amended said articles 1195 to 1207 of the Code of Criminal Procedure, in lieu of those articles as they appeared in the Code entirely, making changes therein, except article 1205, which was expressly repealed. And on August 16, 1913, at the special session of the same Legislature, the said articles of the Revised Statutes, 5221 to 5234, were amended and re-enacted with changes, and articles 5234a was added thereto. Evidently it was the intention of the Legislature that all these laws were to be construed together as one whole. The said sections 9 and 10 of the act of 1907, embodied as articles 2199 and 2200 of the Revised Civil Statutes, have neither been amended expressly nor repealed expressly. Taking the various enactments, we conclude that it was the intention of the Legislature not to repeal said articles 2199 and 2200. It is a universal rule that repeals by implication are not favored.
“Said article 1195, Code of Criminal Procedure, as enacted in 1909 (Laws 1909, p. 100), and embraced in the Revised Code of Criminal Procedure of 1911, provided that, when a male juvenile under 16 years of age was indicted for a felony, he, or any one for him, might file a sworn statement setting forth that he was under the age of 16. Thereupon the judge was required to hear the evidence, and, if satisfied that the defendant was less than 16 years of age, ‘said judge shall have authority to order such prosecution dismissed,’ etc. This article, as amended by Act April 2, 1913 (Laws 1913, p. 214), was changed so that, if the male was under 17 years of age, he, or any one for him, could file such sworn statement, and the judge should hear evidence, and, if satisfied that he was under 17 years of age, ‘said judge shall dismiss such prosecution and proceed to try the juvenile as a delinquent,’ etc. The language in this latter article would ordinarily be construed as mandatory or imperative; but, as stated, the Legislature left in full force said article 2200, Revised Statutes, which expressly provides that, whenever it shall appear to the district court that any person prosecuted in such court for a felony is under 16 years of age, ‘such court shall have authority to order such prosecution dismissed and to order such child to be committed to the juvenile court of the county * * * for ?uch action and disposition as said juvenile court may think proper in the premises.’ Again, by an act of the same Legislature at its special session August 16, 1913, * * * by the amendment of article 5229 of the Revised Civil Statutes, it was expressly enacted: ‘Hereafter all male persons under the age of seventeen years who shall be convicted ot a felony, or other delinquency in any court within this state unless his sentence be suspended, as provided by law, or otherwise disposed of or unless by reason of the length of the term for which he is sentenced, is required under the law to be confined in the State penitentiary, shall be confined in the Texas Training School for Boys [The said Gatesville institution.]’ And said article 1195, as amended April 2, 1913, clearly contemplates that a mere juvenile under 17 years of age may be legally indicted by the grand jury for any felony he may have committed. And it further contemplates clearly that, if found guilty of a felony, his punishment may be assessed at more than 5 years, when the offense carries a greater punishment, or it provides that, if he be found to be a delinquent, and sentence be not suspended as provided by the laws of this state in cases of felony on first offense, then, and only then, shall he be committed to said Gatesville institution, clearly contemplating that, if his penalty is fixed at greater than 5 years, he shall be incarcerated in the penitentiary. Taking the whole legislation, we cannot believe that the Legislature intended that a male person under 17 years of age shall not, under any circumstances, be punished as a felon. Illustrations could be made which, it seems to us, would preclude' such an idea. For instance, suppose that a male not quite 17 years of age and a female not quite 18 years of age should together, with firearms, rob some girl under 15 years of age, then by force take her into some secluded place, and the woman just under 18 years of age should hold the little child while the male just und.er 17 years old should ravish her by force, and then, fearing the little girl had. recognized them, and that they would be prosecuted for robbery and rape, they should then murder her, thus committing three of the most horrible crimes known to our law or to civilization. And that this might be the case is no unreasonable supposition; for in Campbell v. State, 63 Texas Crim. Rep. 595, 141 S. W. Rep. 232 [Ann. Cas. 1913D, 858], and the companion case of Hutcherson v. State, 62 Texas Crim. Rep. 1. 136 S. W. Rep. 53, it was shown that Hutcherson, a man, was assisted by Mrs. Campbell, who was then only a young woman about 16 years of age, committed rape upon a young girl under 15 years of age, and both were convicted therefor. And in Morris v. State, 39 Texas Crim. Rep. 371 [46 S. W. 253], Morris, a man, first raped a little 6 year old blind girl, and then murdered her, because she threatened to tell her mother on him, and he was convicted for the murder with the death penalty assessed.”

In the Townser Case this court said:

“We have had under careful consideration the said juvenile and delinquent child acts of the Legislature in the recent cases of McCallan v. State [76 Tex. Cr. R. 353] 174 g. W. 611, and Bartee v. State [70 Tex. Cr. R. 285] 174 S. W. 1051, and we therein fully discussed the said laws and the effect thereof. We there held that, even in a prosecution of a male under 17 years of age for a felony, the said laws did not make it compulsory for the district judge to dismiss such felony charge and have the party proceeded against under the juvenile act, but that the court had the power and authority in such case of felony to proceed to the trial regularly as if the party was an adult male. * * ⅜ We have no doubt that we reached the correct conclusion in those cases.’”

In the Davis Case this court held that:

The district judge must have held that appellant therein “was .of that character of person who should not have his case sent to his juvenile or delinquent court for trial, but should be treated as a felon. That he had a right to so adjudge and hold was decided by this court in the case of McCallan v. State [76 Tex. Cr. R. 353] 174 S. W. 612. Judge Prendcrgast in that opinion reviews at length all the acts of the Legislature in regard to delinquent children, and held, when that question was presented to a trial judge, he would have the authority to hear evidence, and, after doing so, to determine whether or "not the interest of the person charged and society required that his case be sent to the delinquent court for trial, or that he be tried as a felon. The opinion in the case is decisive of the question here presented, and we do not deem it necessary to again review the provisions of the statute.”

The action of the district judge in refusing to transfer this case to the juvenile .court and trying appellant as a felon for the murder of his father was correct, and this judgment should be affirmed, not reversed.

Moreover, before the decision in this ease was rendered on November 7, 1917, appellant reached the age of 17 years on October 10th prior thereto. Therefore this case should not be reversed on that’ account, for on the next trial he must be tried as a felon, and not as a juvenile, as expressly held by this court in Arrendell v. State, 60 Tex. Cr. R. 350, 131 S. W. 1096, and to now reverse the case because appellant was not tried as a juvenile cannot possibly avail him on another triaL

I respectfully, but earnestly, dissent from the reversal qf this case.
      <&wkey;For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    COMMONWEALTH BANK & TRUST CO. OF SAN ANTONIO v. LIMBURGER.
    (No. 5935.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 19, 1917.
    Rehearing Denied Jan. 9, 1918.)
    1. Bills and Notes <®=j343 — Failtjee or Consideration — Duty to Make Inquiry.
    Where plaintiff bank had actual notice before it acquired the notes sued on that the stock for which they were given was issued without bringing to the corporation any assets as the basis for such stock, it knew that the consideration for the notes had failed in part at least, and was put upon inquiry as to whether there had been a total failure of consideration.
    2. Bills and Notes &wkey;>525 — Bona Fide Purchaser — Failure oe Consideration.
    In an action on notes, given for corporate stock, held, under the evidence, that the cashier of plaintiff bank had such knowledge with reference to the consideration for the notes as to prevent the bank' from being a bona fide holder, although it purchased the notes before maturity.
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by the Commonwealth Bank & Trust Company of San Antonio against Henry Limburger, Jr. Judgment for defendant, and plaintiff appeals.
    Affirmed.

      Lewright & Douglas and. L. H. Porter, all of San Antonio, for appellant. Prank H. Sweet and Davies & Davies, all of San Antonio, for appellee.
   MOURSUND, J.

The West Texas Bank & Trust Company, hereinafter referred to as the hank, sued Henry Limburger, Jr., upon six promissory notes, aggregating $250, dated September 20, 1909, four being for $21 each, due respectively three, six, nine, and twelve months after date, and two for $84 each, due respectively two and three years after date, all payable to the order of Theodore Harris, and alleged to be owned and held by plaintiff.

Defendant admitted the execution of the notes, and alleged that he had delivered them in consideration of one share of stock of the Lotus Lodge Colony Company, hereinafter designated as the company, transferred to him by Harris. The answer is lengthy, and it is difficult to determine just what theories of defense are undertaken to be pre>-sented, but as we understand it defendant relied upon fraud and failure of consideration to defeat the notes. To show fraud, he alleged that Harris had falsely represented to him that the company owned 6,000 acres of land, unincumbered, situated in Mexico. Further on he alleged that the prospectus of the company stated that its capital stock had been exchanged for 6,000 acres of land in Mexico, and that such statement had misled him. As we understand the plea of failure of consideration, it is to the effect that the entire capital stock of the company had been transferred to Harris for 6,000 acres of land; that instead of conveying said land to the company, Harris conveyed it to Mc-Caleh, president of the bank, to be held in trust by him to secure the payment of Harris’ indebtedness to the bank, that said land, or the company’s right thereto, constituted assets of the company held in lieu of its stock, and that as it did not get said land the stock was worthless. It was charged that the bank knew the notes sued on were given for stock in the company, and knew that the land was the sole asset, and that it had taken a conveyance thereof to its president to secure its indebtedness, and therefore had notice of the failure of consideration relied upon by defendant. Pie alleged that he had tendered the share of stock to Plarris who had declined to receive it, and in his answer he formally tendered same to the bank, and prayed for cancellation of his notes.

Plaintiff’s supplemental petition contained a general demurrer and special exceptions, a general denial, and a special plea that it was a bona fide holder of the notes, for a valuable consideration, and that it had obtained them before maturity in the ordinary course of business, without notice of any facts which would impeach or tend to impeach their validity as between Harris and defendant. The Commonwealth Bank & Trust Company, as the successor in interest of the West Texas Bank & Trust Company, was substituted as plaintiff in the cause.

The case was submitted on special issues in answer to which the jury found that the West Texas Bank & Trust Company had no notice of any fraudulent representations made to defendant, but that there was a failure of consideration for the notes, and that said bank had notice thereof at the time it acquired the notes; also that the bank applied the proceeds of the notes of the Lotus Lodge Colony members to the payment of the personal indebtedness of Harris other than that incurred in the purchase of the 6,000 acres of land, and that the money so collected was sufficient to pay the money advanced by the bank for the purchase of said land. Upon this verdict judgment was entered in favor of defendant.

The only question necessary to be considered on this appeal is whether there was a failure of consideration, and, if so, whether such defense can be urged against the bank, for on the issue of fraud the jury found against defendant, and the last two issues relate to immaterial matters. One of the witnesses testified that the stock was worthless, and the evidence warrants the finding that the entire capital stock was transferred to Harris, who in consideration thereof was to convey to the company 6,000 acres of land in Mexico. This land has never been conveyed to the corporation.

The president of the bank and the cashier testified that they did not know that the land constituted the sole asset of the corporation, and that they had no notice at the time the bank acquired the notes of any failure of the consideration therefor. The testimony of the president need not be further noticed as defendant does not rely thereon, but points to that of the cashier as sufficient to sustain the finding of the jury on the issue of notice by the bank of the failure of consideration for the notes.

The testimony of the cashier discloses that Harris who had organized the corporation known as the Lotus Lodge Colony Company, was indebted to the bank to the extent of about $8,000, and needed money to redeem a tract of land in Mexico, consisting of 6,000 acres, from a debt held against it by a bank ■in Mexico. He had purchased the equity of one Galan in such land, and proposed to convey the same to the company in consideration of stock in the company. An arrangement was made between him and the officials of the bank by which he Was to assign to the bank notes given him for stock in the company, aggregating about $16,000, which were to be held as collateral security for his 'pre-existing indebtedness and such future indebtedness as he might incur to the.bank; it being contemplated that advances would be made sufficient to redeem the Mexico land and pay some traveling éxpenses and other expenses incident to carrying out the arrangement. On September 23, 1909, a large number of notes were so assigned, and on October 12, 1909, others, including those sued upon herein. McCaleb, the president of' the bank, made a trip to Mexico, and took a deed to the land in his name, presumably from Harris, as the cashier testified Harris had previously purchased the land. The deed was taken instead of a mortgage or deed of trust in order to save expenses, and taxes incident to mortgages in Mexico, b.ut was to serve the purpose of a mortgage to secure the payment of $15,000 due the bank by Harris. On November 2, 1909, an instrument was executed by McCaleb, as president, and Walthall, as secretary, of the bank, acknowledging that the title to the land was in Harris, and stating that McCaleb held the same in trust to secure the payment of three notes by Harris to the bank, all dated November 2, 1909, and aggregating $15,000, upon the payment of which the bank was to make title to the land to the Lotus Lodge Colony Company, or to such person or corporation as it might designate. The notes assigned corresponded in amounts and due dates to those sued on in this case. A great many of them were collected and the proceeds applied to the payment of Harris’ indebtedness. The cashier of the Commonwealth Bank & Trust Company testified there was still due by Harris the sum of $7,218.95. The title to the land is still held in trust by W. P. McCaleb.

On the question of the bank’s knowledge of the transactions between Harris and the company, Walthall testified:

“At the time the bank accepted these notes as collateral security to secure the indebtedness of Theodore Harris to the bank, we did not have any knowledge that the consideration for these notes had failed; we knew at that time that it had not failed, because it was part of the general plan, which was to put it where if these people paid their notes it couldn’t fail-in. other words, there were sufficient notes to have paid off the entire advance; if all the notes had been paid, then the obligation would have been automatically canceled by the payment of the individual collateral notes, and the title would have been transferred as we agreed to transfer it. All these collateral notes were not paid, and the Theodore Harris note was never paid. * * ⅜ I didn’t know that the Lotus Lodge Colony Company’s asset was the land, and that that was their sole asset, that they had nothing else, because I didn’t think we got all of it. We understood that the lodge was going to purchase the land from Theodore Harris, that they had purchased the land, and that Theodore Harris gave or took their notes for his stock, and they were to utilize the money for the purpose of paying him; X believe it was $25,000; I think they were to pay him $25,000 for the land; I am not certain.”

We believe this testimony supports a finding that the bank knew Harris had contracted to convey the land to the company for the stock issued to him, and that if the corporation did not get the land it would have nothing to show for the stock issued to Harris. If the corporation received no property or money, for such stock, it naturally follows that the stock itself was not worth its face value, and in fact was only worth its proportionate part of such other assets as the corporation might have. This seems to have been recognized by Walthall, for he testified in effect that by taking $16,000 worth of notes the matter was arranged so that there could be no failure of consideration for the notes if all of the notes were paid, for in that event the land would be transferred to the corporation, and thus it would acquire the asset which would make the stock worth what the makers of the notes expected it to be worth.

We conclude that, as the bank knew before and at the time it acquired the notes that the corporation would not get the land for which the stock had been issued, it was chargeable with knowledge that the value of the stbck depended upon a contingency' namely, the payment of all the notes given therefor and assigned to the bank. As the bank had actual notice before it acquired the the notes sued on that the sale of the stock for which they were given had not brought to the corporation at that time any assets as the basis for such stock, it knew that the consideration for the notes had failed in part at least, and it was' therefore incumbent upon it to have prosecuted that reasonable inquiry which would have led to a knowledge of all the facts, namely, that the corporation had no assets, and would never have any unless the debt of Harris was paid off. Meade v. Sandidge, 9 Tex. Civ. App. 360, 30 S. W. 245.

Appellant relies upon the case or Forster v. E'nid, O. & W. Ry., 176 S. W. 788, in which it is held that a bank purchasing a note before maturity with mere knowledge that the consideration therefor was stock to be thereafter issued by a railroad corporation and the completion by it of a railroad then in course of construction is a purchaser in good faith. The court cites 3 R. O. L. p. 1067, § 273, which reads as follows:

“The courts universally hold that knowledge that a note was given in consideration of the executory agreement or contract of the payee, which has not been performed, will not deprive the indorsee of the character of a holder in due course, unless he also has notice of the breach of that agreement or contract. So knowledge of a warranty on a sale in which a note was given is held not to affect the rights of a purchaser of the note for value before maturity, if he liad no knowledge of the breach of the warranty. A recital in the instrument respecting such agreement or warranty is not sufficient of itself to advise him that there was, or would necessarily be, a failure of consideration. The presumption of law would be that the contract would be carried out in good faith, and the consideration performed as stipulated. Of course if the transferee had knowledge of the breach of contract or warranty before taking the instrument, the defense may be interposed. And on the principle that several instruments made at one and the same time, and having relation to the same subject-matter, must be taken to be parts of one transaction, and construed together for the purpose of showing the true contract between the parties, it has been held that an agreement made at the time of the execution of a note, forming its real consideration, and to be performed before its maturity, is a part of the same contract, and, between the original parties to the note, cannot be enforced until the agreement is.performed; and that a purchaser of such note before maturity, and before the time of performance of the agreement, with notice and knowledge of its relation to the note, is bound by it the same as if it were attached to the note or written upon the same piece of paper.”

This case is not one involving a breach of an executory contract subsequent to the acquisition by the bank of the notes. It is a case in which Harris, by his act in conveying the land to McCaleb, breached his contract to convey it to the company, and, as the bank knew he was selling the stock received for the land, it was bound to know that he was selling stock for which the company, up to that time, had received no assets.

The assignment complaining of a remark made by the court to counsel for plaintiff is overruled for the reason that it appears to us that the testimony of the cashier of the bank above referred to shows conclusively that he had such knowledge of the facts with regard to the consideration for the notes as to prevent the bank from being a bona fide holder thereof. His conclusion that the bank had no notice cannot be held to raise an issue of fact, when he states the facts on which it is based, and such facts fail to justify the conclusion.

The judgment is affirmed.
      (gL^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CRUZ et al. v. TEXAS GLASS & PAINT CO.
    (No. 5925.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 5, 1917.
    On Motion for Rehearing, Jan. 9, 1918.)
    1. Evidence @=>41 — Judicial Notice — Teems of Court.
    Judicial notice will bo taken that several terms of the Bexar county district court must have been held during two years.
    2. Appeal and Error @==>500(1) — Record-Pleas of Privilege — Waiver.
    Where the record does not indicate that pleas of privilege were called to court’s attention during two years, they will be considered waived.
    3. Venue @=>32(2) — Jurisdiction — Admissions.
    Defendants who filed a plea of privilege admitted the court’s jurisdiction by making a settlement with the original plaintiff.
    4. Parties @=>75(3) — Intervention—Waiver.
    Failure to notify a defendant of an intervention is waived, where not raised until after the trial.
    5. Mechanics’ Liens @=>264(2) — Intervention — Effect.
    A mechanic’s lien defendant, who answered the original petition, was bound to take notice of materialman’s intervention.
    6. Mechanics’ Liens @=>132(8) — Account and Affidavit — Time for Filing.
    A mechanic’s lien account and affidavit, filed within 90 days after delivery of plate glass, sent to replace glass broken on a former shipment, held filed within 90 days after the last delivery, as required by Rev. St. art. 5636.
    7. Evidence @=>179(¾ — Secondary Evidence — Oontrol of Original.
    Admitting testimony that notices of me-, chanic’s lien claims had been mailed to the property owner, held not erroneous, where the mailing' was shown by registered mail return receipts, and originals were found in possession of defendant property owner or his agent.
    On Motion for Rehearing.
    8. Venue @=>32(2) — Plea of Privilege-Waiver.
    A plea of privilege is waived, where no action was taken during the term in which it was. filed, and it was not continued without preju-. dice.
    9. Venue @=>22(1) — Defendant’s Residence —Mechanic’s Lien Action.
    In a mechanic’s lien action, defendant con-, tractor’s residence gave the court jurisdiction, as against pleas of privilege filed by other defendants.
    10. Courts @=>30 — Jurisdiction — Removal of Defendant.
    A mechanic’s lien defendant cannot destroy the court’s jurisdiction, which had attached to him, by leaving the state and instructing his attorney to make no further defense.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Mechanic’s lien action by the Alamo Iron Works against Eduardo Cruz and others, in. which the Texas Glass & Paint Company, and others intervened. Judgment for the. named intervener, and defendants appeal.
    Affirmed, and motion for rehearing overruled.
    A. Winslow, of Laredo, and Ryan & Mat-lock, of San Antonio, for appellants. Hertz: berg, Kercheville & Thomson, of San Am tonio, for appellee.
   FLY, C. J.

The Alamo Iron Works instituted suit against N. S. Brown and Eduardo Cruz, alleging that the plaintiff had sold to N. S. Brown certain goods, wares, and merchandise of the value of $701.37, to be used in the construction of a certain building in Laredo, Tex., bélonging to, Cruz, which was being constructed by Brown for him. Cruz filed a plea of privilege to be sued in Webb county, and also answered on same date, claiming not to waive his plea of privilege, and admitted that he had a contract with Brown to build his house, but that he had not received any notice of the claim from the plaintiff, and was not indebted to Brown in any sum. Brown also answered in the case”.' In a supplemental petition the plaintiff prayetj that John O. Buenz, a surety on a bond given by Brown to Cruz for the faithful performance of the building contract, be made a party. Joseph Dean intervened. Buenz pleaded his privilege to be sued in Webb county, and also answered denying liability. The suit was filed on February 12, 1914, and on November 4, 1914, appellee filed a plea of intervention alleging that it bad furnished certain materials to N. S. Brown to be used, and which were used, in the construction of the certain building in Laredo belonging to Cruz, which is fully described; that Cruz was indebted to Brown, and the goods were furnished under and by virtue of a contract between Brown and Cruz; that Brown had given to Cruz a bond, with John O. Buenz as surety, for the faithful performance of his contract, which by its terms inured to the benefit of intervener; that Brown defaulted and breached his contract, and that appellee had given Cruz due notice at the time and in the manner reauired by law of its claim and had fixed its statutory lien against Cruz. The court dismissed the cause as to the Alamo Iron Works, the original plaintiff, and Dean, an intervener, overruled exceptions to the pleas of privilege, overruled the pleas of privilege, and on same day the cause was tried on its merits as between Brown and Cruz and appellee, and upon the verdict of a jury for $1,147 in favor of appellee and. the finding in favor of a lien for material, the court rendered judgment in favor of appellee for that sum as against Brown and Buenz and the foreclosure of the lien indicated as against the property of Cruz, and in favor of Cruz over against Buenz, surety on the bond given by Brown. The judgment was corrected so as to show that Brown was not served with a notice of the intervention of appellee, and did not appear in the trial of the cause; the only appearance he made in the cause being through his answer filed in reply to the petition of the Alamo Iron Works'.

The first six assignments of error consume over one-half of the printed brief of appellants consisting of 92 pages, and are devoted, to the pleas of privilege and the conditions arising therefrom on account of the failure to notify Brown of the intervention of appellee.

The record fails to show that any disposition was ever made of the pleas of privilege of Cruz and Brown filed as against the original plaintiff; the only action, on pleas of privilege, being taken after the Alamo Iron Works and Dean had on their own motion been dismissed from the suit. The suit was filed on February 12,1914, the first plea of privilege of Cruz was filed on April 6, 1914, and that of Buenz on May 22, 1914. Appellee intervened on November 4, 1914, and at that time, according to the record, no action had been taken to the pleas of privilege in the original case, nor was it ever taken, although the trial did not take place until December 5, 1916, more than two years after the pleas of privilege were filed in. the original case, and more than two years after appellee intervened. This court judicially knows that a number of terms of the district .court of Bexar county must have been held during the time this cause was pending, and in the absence of anything in the record to show that the pleas of privilege were ever called to the attention of the court in the original case, or ever called to the attention of the court for two years in the intervention suit, the pleas will be regarded to have been waived. There is nothing in the record that indicates that action by the trial court on the pleas of privilege was sought by appellants until the final trial of the cause, and the pleas will be deemed to have been waived. Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Watson v. Mirike, 25 Tex. Civ. App. 527, 61 S. W. 538; Railway v. Parsons, 109 S. W. 240; Smith v. Bank, 187 S. W. 233. The court was justified in overruling the pleas on the ground of waiver, and, as we believe, on the merits of the pleas had they been properly presented. The jurisdiction of the court was admitted by a settlement with the original plaintiff and intervener, and the cause dismissed by them.

Appellants showed, and insist in their brief, that Brown was insolvent and had permanently removed from the state, when the petition in intervention was filed, and such being the case he was not a necessary party to the intervention. No' complaint of any kind was made of the failure to notify Brown and bring him into the suit, until .after the trial. The objection was waived. Sellers v. Puckett, 180 S. W. 639.

Brown had answered the original petition filed in the suit, and he was for all purposes before the court and was bound to take notice of the intervention of appellee. Bryan v. Lund, 25 Tex. 98; Jordan v. Corley, 42 Tex. 284; Kirby v. Estill, 75 Tex. 484, 12 S. W. 807; Roller v. Reid, 87 Tex. 69, 26 S. W. 1060; Beale’s Heirs v. Johnson, 45 Tex. Civ. App. 119, 99 S. W. 1045; Vernor v. Sullivan, 126 S. W. 641; Sullivan v. Doyle (Sup.) 194 S. W. 136. These eases are directly in point and the fact that Brown may not have prosecuted his answer, but left the state, does not differentiate this case from those cited. It did not matter whether he had abandoned his defense and the state; his answer had been filed, and he had made his appearance in the case. He was bound by the intervention. The case of Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172, is not in conflict with the decisions cited herein. Hart v. Hunter, 52 Tex. Civ. App. 75, 114 S. W. 882. We have seen no case holding that where a defendant has filed an answer it is necessary to notify him of the filing of an intervention plea. The principle enunciated in Bryan v. Lund, 25 Tex. 98, has been often approved. In the last edition of Townes, Texas Pleading, p. 295, it is asserted-that:

“The order of the court granting leave to in tervene is notice of the intervention to all parties then before the court.”

All parties are before tbe court wbo bave filed pleadings' therein.

There was no denial of Brown’s liability on tbe account, which was the basis of ap-pellee’s suit; it could not be controverted that he had a contract with Cruz to erect his building; the evidence showed notice within the statutory time to, Cruz; there was no conflict in the evidence as to Buenz having been a surety on a certain bond which had been breached by Brown; and the evidence showed beyond doubt and without denial that a surplus of $1,256.83, after paying other debts, was turned over by Cruz to Buenz. Buenz nor Cruz made an attempt to show what was done with that money. No special charges were requested by appellants. The seventh, eighth, and ninth assignments are overruled.

The tenth assignment, as well as the seventh, eighth, and ninth assignments, could not, if sustained, affect the liability of Buenz on the bond, -but apply only to the liability of Cruz on the lien for material. The account and affidavit were filed within 90 days from the delivery of the last material, which, under the statute, was the time of accrual of the indebtedness. It is true that the last material delivered was plate glass which was sent to replace glass broken on a former shipment, but it was delivered, was material, and was the last delivery. Bev. Stats, art. 5636.

The eleventh assignment of error is without merit and is overruled. It is not followed by proposition or statement, but, if it were, the assignment of error is founded on an assumption that is directly in the face of the testimony.

The account and affidavit substantially followed the statute, and the twelfth assignment of error is overruled. The notice was given within the 90 days, the account and affidavit were filed within the same time, and the statute created the lien.

The 'thirteenth assignment of error assails the action of the court in admitting testimony to the effect that letters, containing a notice of the claim against the contractor, had been mailed to Cruz and his agent. The objection is without merit, if for no other reason because the originals were found in the possession of Cruz or his agent, Ryan. We think the evidence of mailing was sufficient. Cruz did not deny receiving the notice either through his answer or on the stand as a witness. The evidence showed that Ryan was acting as the agent of Cruz in building the house. The notice to Cruz was registered in the post office at San Antonio, and a card was returned through the mail showing a receipt by Cruz of the notice. The evidence shows beyond doubt that Cruz was given proper statutory notice of the indebtedness of Brown for material ■ to appellee. The thirteenth and fourteenth assignments of error are overruled.

The fifteenth assignment of error is without merit. The last item furnished the contractor by appellee was sent on November 29, 1913, and' the notice was sent on February 3, 1914, less than 90 days from date of the last shipment. The evidence showed without contradiction that Brown bought the material from appellee; that it was used in erecting a building for appellant Cruz; that he was fully notified of the fact that the material had been bought by Brown and had been used in the construction of his house; that when so notified he had more than enough of the contract price of the building in his hands to pa.y the account of appellee, but did not pay it; that he had taken a bond from Brown with Buenz as surety for the performance of the building contract, and which bond inured to the benefit of appellee. Appellants are justly indebted to appellee in the sum found by the trial court.

The judgment is affirmed.

On Motion for Rehearing.

Buenz filed his plea of privilege on May 22, 1914, being the April term of the court. No action was had on the plea at that term, and it was not continued without prejudice. The plea was thereby waived. Both pleas of privilege were filed before ap-pellee intervened in the case, and although the plaintiff was dismissed from the suit, as well as the other interveners, the pleas were not renewed after appellee entered the suit, and, as stated in our former opinion, no action was taken on the- pleas of privilege as between the original parties. Some inaccuracies crept into that opinion on the subject of the plea of Cruz, but whether the pleas were waived or not, Brown’s residence in. Bexar county was sufficient ground to give the court jurisdiction of the cause, and the pleas were properly overruled.

The jurisdiction of the court having attached, Brown could not destroy it by leaving the state and instructing his attorney not to further prosecute his defense. He was a proper party to the original suit, he answered in the suit, and was in it until the final judgment. It is absurd and unreasonable to contend that a defendant can take himself out of court by informing his attorney that he did not intend to further defend in the cause. Jurisdiction cannot be defeated on any such secret agreement between attorney and client. The record fails to disclose the dismissal of Brown from the case, and it would be a very anomalous proceeding to permit a defendant to withdraw from a case against him. All defendants would withdraw, if such a rule were established. No rule is better settled in Texas than that a defendant who has answered in a case is bound to take notice of the petition of interveners. In Bryan v. Lund, 25 Tex. 98, the defendant had not answered, and the court held that he should he notified of an intervention, hut said further:

“If Bryan had answered to the suit of Lund, he would then have been considered as before the court, and as bound to take notice of the petition of interveners.”

In the case of Fleming v. Seeligson, 57 Tex. 524, it was held:

“It is the practice to require the original parties who were properly before the court to take notice at their peril of a petition for intervention filed by leave of the court.”

To the same effect is Roller v. Reid, 87 Tex. 69, 26 S. W. 1060. This rule has been reiterated hy the Supreme Court in the late case of Sullivan v. Doyle, 194 S. W. 136. The court said:

“Having entered his appearance in the main case, McKinley was before the court for all purposes, and Doyle was entitled to judgment against him upon his cross-action, without the necessity of citation.”

The contract between Brown, the contractor, and appellee was that all material was to be shipped to Laredo and delivery made there. Two plate glasses were broken in shipment, and were not delivered, and appellee on November 29, 1913, shipped two others to replace those bioken. The shipment and delivery were made at a date within 90 days of the time when the notice was given. Articles 5623 and 5636, Rev. Stats. The last two plate glasses were not delivered on the first shipment because they were broken, and the delivery was not made until the second shipment of plate glass arrived in Laredo. There is no room for a reasonable discussion of this proposition.

There is no merit in the motion for rehearing, and it is overruled.
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author: HIGGINS, J.

text:
    HART-PARR CO. v. PAINE et al.
    (No. 757.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 6, 1917.
    Rehearing Denied Jan. 3, 1918.)
    1. Contracts <&wkey;337(l) — Actions on — Pleading — Breach.
    To recover money on a contract, the petition must show a breach thereof, and, failing to do so, is subject to general demurrer.
    2. Appeal and Error <&wkey;843(2) — Matters Unnecessary to Review — Demurrable Petition-Evidence.
    On appeal where a petition is found demur-rable, and the case is to be remanded therefor, the sufficiency of the evidence will not be reviewed.
    3. Trial ⅞=3240 — Argumentative Instructions.
    Refusal of argumentative instructions is not error.
    4. Trial <&wkey;203(3) — Defense — Affirmative Instructions.
    A defendant is entitled to an affirmative presentation of its defense in the instructions.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by H. A. Paine and another against the Hart-Parr Company. judgment fof plaintiffs, and defendant appeals.
    Reversed and remanded.
    B. F. Louis, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellees.
   HIGGINS, J.

H. A. Paine and P. L. Shu-ford, appellees, brought this suit against Hart-Parr Company. Briefly stated, the allegations of the petition show that appellees became sales and distribution agents for appellant, and to conduct repair work for it at its plant in Houston, and control and manage its warehouse there, and for the performance of other matters in connection with! their duties as manufacturer’s agents for defendant in that territory, and that they entered upon the discharge of their duties under said contract. Dissatisfaction between the parties arose, and appellees gave notice of cancellation of the contract, and! demanded a settlement of all matters between the parties; that thereupon appellant sent its agent to Houston with authority to act in the premises, and entered into negotiations with plaintiffs to the end that their differences be adjusted and all matters closed ; that an agreement was entered into whereby it was agreed that plaintiffs should pay the sum of $323.43, and defendant should pay the sum of $1,538; that the item of $323.43 to be paid by plaintiflrs represented a different account from that involved in the item of $1,538 to be paid by defendant, and that plaintiffs paid in cash the sum of $300, and tendered into court the balance of $23.-43 in satisfaction of their said promise to pay in the adjustment aforesaid; that the sum of $1,538 was a compromise amount made with the agent of appellant in full and complete settlement and satisfaction of plaintiffs’ demands against appellant, and that the said agent promised and obligated Hart-Parr Company to pay the said sum of $1,538 representing the amount due plaintiffs and to accept the sum of $323.43 as representing the amount due defendant; that although often requested, the Hart-Parr Company had wholly failed and refused, and now fails and refuses to pay said sum of $1,538, or any part thereof. Judgment was prayed for that amount.

The theory of the defendant was that an unconditional agreement to pay said sum of $1,538 was not made by its agent. The case was submitted upon special issues as follows:

“No. 1. Did E. L. Jaco, acting for defendant Hart-Parr Company, promise and agree unconditionally to pay plaintiffs Paine & Shuford the sum of $1,538 in adjustment of the matters then being urged by and between said parties, and did said Paine & Shuford agree to accept same?”
“No. 2. Did the plaintiffs herein agree to pay unconditionally to said E. L. Jaco for the defendant Hart-Parr Company the sum of $323.43 as representing the balance due by them upon the repair account; and did the said Jaco for said defendant company agree to accept same?”

Both issues were answered in the affirmative. Judgment was rendered in favor of the plaintiffs, and Hart-Parr Company prosecutes this appeal? *

It is assigned as error that the petition is subject to a general demurrer because the same fails to allege any time at which the defendant agreed to pay the amount sued for, and therefore fails to state a cause of action. In a suit upon a contract there must be an allegation showing a breach thereof upon the part of the defendant and a petition which fails to show a breach is subject to general demurrer. Cotton v. Thompson, 159 S. W. 455; Merchants, etc., y. Williams, 181 S. W. 859; Carter v. Olive, 128 S. W. 478; Phillio v. Blythe, 12 Tex. 124; Railway Co. v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Whitaker v. Record, 25 Tex. Supp. 383; Brackett v. Devine, 25 Tex. Supp. 194; Grant v. Whittlesey, 42 Tex. 320. Unless the time has expired within which the defendant was required to pay the sum agreed upon, there has been no breach of the contract. There is nothing in the petition to show when the sum of $1,538 was payable. It is impossible to tell whether it was payable immediately, on demand, within a reasonable time or by a certain date. If the defendant’s obligation to pay has not matured there has been no breach of its contract, and in the absence of an allegation showing that the time for performance by it has expired, such breach is not shown. 9 Cyc. 725; Bradley v. Atlantic Coast Co., 68 N. J. Daw, 73, 52 Atl. 231. From this it follows that the petition is subject to a general demurrer, necessitating a reversal.

Under the first and second assignments, it is asserted that there is no evidence to sustain the finding of the jury upon the issues submitted, and it is asked on that account that the cause be reversed and rendered for appellant. Since the petition fails to state a cause of action, it would not be proper to reverse and render on account of the insufficiency of the evidence. A judgment so rendered would not bar a subsequent suit upon a petition stating a good cause of action. It would therefore serve no purpose to examine the evidence for the purpose of ascertaining whether it is sufficient to support the findings. If the case be retried upon an amended petition, stating a good cause of action, then it would not be proper, in advance of that trial, to comment upon the probative force of the evidence. We therefore express no opinion with respect to the sufficiency of the evidence.

Special charge No. 1, the refusal of which is made the basis of the fifth assignment, was argumentative, and for this reason its refusal presents no error. Error is assigned to the refusal of a special instruction requested by the defendant which reads:

“You are charged in this case that if you believe from the evidence that the agreement, if any there was made, at the final conference which took place in Mr. Love’s office about March 12, 1915, was substantially that defendant would accept the orders which plaintiffs had taken and would pay the commissions upon such orders under the terms of the contract and upon settlements being made for the tractors embraced in such orders, and such settlements being accepted by the defendant, then you are charged that you will answer special issue No. 1 in the negative; that is, ‘The parties hereto did not make such unconditional agreement.’ ”

Without undertaking to determine whether this charge should have been given upon the pleading and evidence presented, yet, in view of a retrial, attention is called to the rule which entitles the defendant to an affirmative presentation of its defense, as announced in the following authorities: Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318; Higginbotham v. Weaver, 177 S. W. 534; Railway Co. v. Alcorn, 178 S. W. 836, and cases there cited.

Reversed and remanded.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.


author: HALL, J.

text:
    SAYLES et al. v. FIRST STATE BANK & TRUST CO. OF ABILENE et al.
    (No. 1330.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 19, 1917.
    Rehearing Denied Jan. 9, 1918.)
    Judgment &wkey;>377— Setting Aside—Geounds —Matter in Abatement.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1822, as to pleading incorporation, and article 1906 requiring affidavit of verification of a plea that plaintiff was not duly ineor porated as alleged, where defendants in an action on notes answerpd and failed to raise the issue that the plaintiff bank was not duly incorporated, they, could not raise such question by motion to set aside the judgment.
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by the First State Bank & Trust Company of Abilene and others against John Sayles and others. Proceeding by defendants to vacate the judgment. From an order denying the motion, defendants appeal.
    Affirmed.
    See, also, 195 S. W. 231.
    'Perry Sayles and Eugene De Bogory, both-of Abilene, for appellants. D. M. Oldham and W. D. Girand, both of Abilene, for ap-pellees.
   HALL, J.

Appellants executed their, two promissory notes to the Commeroial Bank of Abilene, Tex., and said bank, before maturity, transferred the same to the appellee bank and trust company. Suit was filed by the appellee bank upon the notes, alleging that it was a private corporation duly incorporated under the laws of the state of Texas, and that E. V. Bynum was its president. Appellants answered by general denial and alleged (a) that plaintiff was not an innocent holder of the note sued upon; (b) denied that defendants were jointly and severally liable; (c) set up fraud in the execution and delivery of the.notes; and (d) that the consideration therefor was fraudulent. The case was tried January 1, 1916, resulting in a verdict in favor of the bank against all of appellants for the full amount of the principal, interest, and attorney’s fees provided in both notes. Motion for new trial was overruled and appellants herein appealed to the'.Court of Civil Appeals at Ft. Worth. By order of the Supreme Court the cause was transferred to the Eighth Court of Appeals, where the judgment of the trial court was affirmed. Thereafter appellants instituted this proceed- ’ ing in the county court to vacate the judgment, upon the ground that said “judgment was void a quo, because there was no person, natural or artificial, named as plaintiff therein,” and the trial court was without jurisdiction to render judgment without a party plaintiff. The history of the litigation is set out in the motion, and it is alleged that;

“There was a person existing by the name of the First State Bank & Trust Company, a corporation under the laws of Texas (although such person at the time of the institution of this sham suit was extinct, dead, and fictitious) who acquired said purported notes, but said Commercial National Bank of Abilene, Tex., never indorsed same. Said First State Bank & Trust Company transferred or assigned said notes pri- or to its extinction or death.”

It is further alleged, in substance, that prior to the institution of the suit the First State Bank & Trust Company of Abilene was now extinct and dead; that said bank and trust company was incorporated as a banking and trust company under the Revised Statutes of Texas, and was not dissolved under articles 1205 and 1206 of the Revised Statutes of Texas, and could not be dissolved under such provisions; that it was not dissolved under article 453 et seq., of the Revised Statutes of Texas, and could not have been dissolved under either that article or article 561, “but, on the other hand, it became extinct and dead and had no business to wind up prior to the filing of this suit.” The court found, among other facts, that appellants filed their answer in the original action brought to recover upon the notes and failed to raise the issue that appellee bank was not duly incorporated as required by article 1906, subdivision 7, Vernon’s Sayles’ Civil Statutes, and held because no verified answer was filed denying that appellee was duly incorporated under article 1822, Vernon’s Sayles’ Civil Statutes, the allegation should be taken as true; that the pleading attacking the right of appellee to sue upon the notes was a plea in abatement, and not having been filed in the due order of pleading, the issue could not be raised by motion to set aside the judgment.

We think this holding is unquestionably correct. Harvey v. Provident Ins. Co., 156 S. W. 1127; Shappard v. Cage, 19 Tex. Civ. App. 206, 46 S. W. 839; Midkiff v. Johnson County Bank, 144 S. W. 705; Vernon’s Sayles’ Civil Statutes, arts. 1906, 1822; 10 Cyc. 1353. The motion to vacate the judgment does not show that appellants had a meritorious defense, and that they had used due diligence in presenting it or had been illegally deprived of their day in court; on the contrary, it is shown that they filed an extended answer in the original trial, urging several defenses, but failed to plead in abatement as required by the article of the statute mentioned above. The motion alleges that appellee bank at one time was duly incorporated, and while there is a general allegation that it is defunct, dead, and extinct, such statement is merely the conclusion of the pleader, and it is not shown that the corporation was ever dissolved in either of the ways provided for dissolving corporations in this state. Vernon’s Sayles’ Civil Statutes, arts. 1205, 1206. While it is alleged that appellee bank had no assets, such statement cannot be true in the face of the showing in the motion itself that ap-pellee had a valid judgment for the amount of the notes. By article 1206 it is provided that the president, directors, and managers of any corporation which has been dissolved shall be trustees of the creditors and stockholders of the corporation, with full power to settle its affairs, collect all outstanding debts, etc. If we should take the general allegation by appellants that the bank was extinct and dead as a sufficient allegation that the corporation had been dissolved, the motion would still be subject to a general demurrer, since it is not shown that the original suit was not instituted by the trustees in the name of the corporation, to collect the debt. <

For the reasons stated, the action of the court in denying the motion is sustained, and the judgment is affirmed.
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