author: WALTHALL, J.

text:
    UNION MEN’S FRATERNAL & BENEFICIARY ASS’N et al. v. STATE.
    (No. 675.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 13, 1916.)
    1. CORPORATIONS . <&wkey;613(l) — FORFEITING Charter — 1'boceedings—'Who May Bring.
    A county attorney may not bring suit to forfeit the charter of a private corporation; Const, art. 4, § 22, providing that the Attorney General shall take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power not authorized by law, conferring exclusive authority on him in that respect.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2431-2434; Dec. Dig. &wkey;613(l).]
    2. Intoxicating Liquors &wkey;>274^-NuiSANCE —Injunction—Petition.
    The petition alleging that defendant without a license engaged in business of a liquor dealer, that it conducted a saloon, that it had misused its corporate privileges, in that it has unlawfully sold intoxicating liquors, does not show a present actual, threatened, or contemplated pursuit of the business, so as to authorize injunction under Rev. St. art. 4674, as for a nuisance; but rather a violation some time in the past.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 410; Dec. Dig. <&wkey;>274.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Petition' by the State against the Union Men’s Fraternal & Beneficiary Association and others. From an order granting injunction, defendants appeal.
    Reversed and dismissed. .
    M. W. Stanton and Hudspeth & Dale, all of El Paso, for appellants. C. W. Croom and P. H. Marcum, both of El Paso, for the State.
   WALTHALL, J.

On September 27, 1916, the following petition was filed in the Thirty-Fourth district court of El Paso county:

“To the Honorable Dan M. Jackson, Judge of said Court:
“Comes now the state of Texas, hereinafter called plaintiff, by her proper county attorney, C. W. Croom, complaining of the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, and Joe Sullivan and Lee Alexander, hereinafter called defendants, and for cause of action says:
“(1) That Joe Sullivan and the said Lee Alexander are residents of the city and county of El Paso, and state of Texas, and that the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, is a private corporation duly and legally organized under and by virtue of the laws of the state of Texas. That Joe Sullivan is the president and Lee Alexander is the secretary of said corporation, upon whom process against the same may be served.
“(2) Plaintiff, complaining, now says that the defendant the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, was duly and legally organized as a private corporation for the purposes hereinafter set out, to wit, for purposes which are to the county attorney unknown.
“(3) Plaintiff alleges that, immediately after the issuance of its corporate charter, the defendant corporation engaged in the business and occupation as of a retail liquor dealer. That the said corporation leased, owned, and controlled certain premises located on the third floor of building occupied by the ‘Fashion Store’ on San Antonio street, in the city and county of El Paso, Tex. That upon the premises aforesaid, the defendant corporation conducted a saloon and buffet, and sold therein and therefrom spirituous, vinous, and malted liquors in quantities of one gallon and less, to be drunk upon the premises, and that the defendant corporation, nor any one for it, upon the said premises, had taken out a license, or paid to the state of Texas, the county of El Paso, or the city of El Paso, any occupation tax, as is required by law of those who engage in the business or occupation as that of a retail'liquor dealer.
“(4) Plaintiff further alleges that the defendant corporation has misused and abused its corporate privileges, both expressed and implied, in this: That it has unlawfully sold intoxicating liquors, and liquors capable of producing intoxication, upon its premises, in quantities of one gallon and less, and that the same were drunk, or were to be drunk, upon the premises. That the defendant corporation had for a long time prior to the date of the filing of this petition and information maintained under the name of its corporate charter, and acting through the officers of said corporation, and under their direction and control, a saloon and buffet.- That the said defendant corporation, by its officers, agents, servants, and employés, has conducted and carried on a saloon business and the occupation of retailing intoxicating liquors. That the said corporation, by its agents, servants, and employés, sold and retailed intoxicating liquors and liquors ■ capable of producing intoxication, on all the days of the week, including Sundays, and all the hours of the day, especially between the hours of 9:30 p. m. and 6 o’clock a. ni. of the following day, on all the days of the week, including Sundays.
“(5) Plaintiff further says that said corporation has, since the issuance of its charter afore-said, constantly violated the laws, in this: That it has sold intoxicating liquors and liquors capable of producing intoxication, without a state license therefor; that by such sale of intoxicating liquors aforesaid it has usurped a franchise to which it is not entitled under the laws of the state of Texas; that, such corporation having been incorporated for the purposes as set out hereinbefore, it had no right nor authority under or by virtue of its corporate franchise, either expressed or implied, to engage in the business or occupation as that of a retail liquor dealer; that such sale of intoxicating liquors was not necessary to the enjoyment of the corporate purposes, nor was it reasonably appropriate to the purpose for which the state of Texas issued its said charter. Plaintiff further alleges that the corporation, by its servants, agents, and employés, has permitted its premises to be used for the playing of games with cards, in violation of the laws of this state.
“(6) Plaintiff further says that the sole purpose of the organization and its corporation has been for the purpose of illegally and fraudulently enabling the said corporation by its agents, servants, and employés, to run a saloon and buffet upon the premises aforesaid.
“Wherefore, premises considered, plaintiff prays:
“(1) That the court grant and issue a writ of injunction enjoining and restraining .the defendants Joe Sullivan and Lee Alexander, president and secretary, and the defendant the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, from using the premises or any part thereof, for the purpose of selling spirituous, vinous, or malted liquors; from selling spirituous, vinous, and malted liquors on the premises; from keeping on the premises, for the purposes of dispensing, selling, or giving away to the members of the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, or their invited guests, spirituous, vinous, or malted liquors; that the defendant Joe Sullivan, president, not only be enjoined from doing the acts herein complained of, personally, but likewise through any agent, servant, employé, or any other person; that the court issue a writ of injunction commanding the said the Union Men’s Fraternal & Beneficiary Association of El Paso, a corporation, its officers, servants, and employés, to desist from selling, keeping for sale, dispensing, or giving away, upon its premises, spirituous, vinous, and malted liquors, and from further permitting games to be played with cards upon the premises of the Union Men’s Fraternal & Beneficiary Association of El Paso, or any part thereof, until a final hearing of this cause shall be had.
“(2) Plaintiff prays that this petition be filed as an information in this cause, and that the defendants, and each of them, be cited to appear and answer in this behalf, that the defendant corporation be cited to appear, by service upon Joe Sullivan, its president, that upon final hearing of this cause that the plaintiff have judgment, that the defendant corporation be ousted of all its franchises and corporate privileges, and that the said charter heretofore granted it by the Secretary of State of the state of Texas be forfeited, for costs of suit, and for such other and further relief as both in law and in equity the plaintiff may be entitled to.
“[Signed] O. W. Oroom, Oo. Atty.
“P. H. Marcum.”

On the presentation of the petition, the district judge ordered “that the petition be filed as an information in this cause,” and directed that the clerk issue the writ of injunction for all things as prayed for in the petition; the injunction to be subject to the further order of the court. The writ of injunction was directed to the corporation as named, and “Joe Sullivan, President,” and, after reciting the subject-matter of the petition and the order of the court, commanded that they jointly and severally refrain from doing the matters complained of. On the 29th day of September, 1916, an order of the court recites that the defendants came into open court and through their attorneys gave notice of appeal and requested the court to make a further order suspending the enforcement of its previous order for injunction and fix the amount of the super-sedeas bond upon appeal, which request the court granted; the bond was given, and the case is before this court on appeal from the order granting the injunction. The defendants answered by general exception.

The contention of the appellants is that article 4, § 22, of the state Constitution, confers exclusive authority upon the Attorney General of the state to represent the state in all inquiries into the charter rights of all private corporations and, in the name of the state, to take such action in the court as may be proper and necessary to prevent any private corporation from exercising any power or privilege not authorized by law, and, whenever sufficient cause exists, seek judicial forfeiture of such charters; that it does not appear from the petition filed by C. W. Croom, county attorney, that he was authorized to filé and prosecute said cause; that appellant corporation he ousted of all of its franchises and corporate privileges, and that the charter granted be forfeited; and that, for the reason stated, the trial court was in error in granting the temporary injunction upon the petition filed by the county attorney. It is also the contention of defendants that, if any statute of the state confers authority upon the county attorney to file a petition and information to forfeit the charter of a domestic corporation, such statute would be in contraversion of and conflict with said article of the Constitution, and for that reason inoperative.

It is quite clear to us, for many reasons, that the petition does not state a cause of action against either Sullivan or Alexander, and we need not discuss or consider the issues further as to them. If, as claimed by appellant corporation, the state Constitution confers exclusive authority upon the Attorney General of the state to inquire into the charter rights of all private and domestic corporations, and, in the name of the state, to take such action in the courts as may Be necessary and proper to prevent them from exercising powers and privileges not authorized by law, we take it as a self-evident proposition that the county attorney at his own initiative, could not effectively file a petition in the court inquiring into the charter powers and privileges of such corporation and take a forfeiture of its charter privileges. Article' 4, § 22, has reference to the Attorney General, and, in part, provides:

“He shall represent the state in all suits and pleas in the Supreme Court of the state in which the state may be a party, and shall especially inquire into the charter rights of all private corporations, and, from time to time, in the name of the state, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power, or demanding or collecting any species of taxes, toll, freight or wharfage, not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law.”

In State v. International & G. N. R. R. Co., 89 Tex. 562, 35 S. W. 1067, the county attorney of Galveston county, by leave of the judge of the district court, filed an information in the nature of a quo warranto in the name of the state, against the railway company, a private corporation, operating under the laws of this state, charging that it was exercising powers not conferred upon it by law, -and demanding, receiving, and collecting charges and fares or tolls without being authorized to do so by law. On demurrer of defendant, the cause was dismissed by the trial court on the ground that neither the county attorney nor the district attorney had authority to institute or conduct the proceedings. The question was certified to the Supreme Court whether or not, under our Constitution and laws, those officers are clothed with such authority. The court held they were not. A similar ruling was made in State v. Moore, 57 Tex. 309. In State v. Paris Ry. Co., 55 Tex. 76, in which the county attorney had filed the suit in the name of the State ex rel. S. E. Clement et al., to enjoin the railroad from building its tract: along a street in Paris, on the ground that, if built, it would create a nuisance, in discussing the article and section of the Constitution in question, the Supreme Court, through Judge Gould, said:

“We think it manifest that the institution of suits in the name of the state to enjoin private corporations from exceeding their powers and thereby creating public nuisances is such action as, under this section of the Constitution, it is for the Attorney General to take, or cause to be taken, when, in his judgment, it may be proper and necessary. The power given county attorneys * * * (under Constitution, art. 5, § 21) does not extend to the institution of suits like this, unless it be done with the sanction and in the name of the Attorney General.”

We think the above authorities are conclusive upon the question of the authority of the county attorney of El Paso county to file a suit to forfeit the charted of a private corporation. As said by the Court of Civil Appeals for the Fifth District:

“The state would not be bound by a judgment in such unauthorized proceeding, and as the state is not bound the defendant would not be.” Oriental Oil Co. v. State et al., 135 S. W. 722.

See, also, Brady v. Brooks, 99 Tex. 366, at 379, 89 S. W. 1052.

There is another feature of this case, which it seems to us is not necessarily involved in the question above discussed. The petition alleges, in the third paragraph, that the appellant corporation “engaged in the business and occupation of a retail liquor dealer; * * * that the defendant corporation conducted a saloon and buffet and sold therein and therefrom spirituous, vinous, and malted liquors.” The petition does not state that the defendant at the time of the filing of the petition .was so engaged, nor when it was so engaged. In the fourth paragraph, it is alleged that “the defendant corporation has misused and abused its corporate privileges both expressed and implied, in this, that it has unlawfully sold intoxicating liquors,” etc.

The allegations in the fourth paragraph, we take it, was intended by the pleader to allege, as it did, that the corporation had exceeded and abused its corporate powers and privileges, and for that reason should forfeit its charter. The fifth paragraph of the petition is a repleading of substantially the facts contained in the third and fourth, and deny in the defendant the right to engage in the business of retail liquor dealer.

We think we need not discuss the question of the authority of the county attorney to bring a suit for injunction against a corporation in behalf of the state strictly under article 4674, Revised Statutes, and articles following, as the petition does not show a present actual, threatened, or contemplated pursuit of the business denounced in article 4674, but rather shows that the defendant has at some time in the past violated the provisions of that article, and that, for having done so, the forfeiture of its charter is sought in the suit filed. True, the petition prays that defendant be enjoined from using the premises described as a place for dispensing liquors and from doing the acts complained of, but fi;om the prayer alone it can hardly be inferred that appellant is then actually doing, threatening, or contemplating the doing of the things complained of, and that, independently of the purpose to forfeit the appellant’s corporate franchise, it is sought to enjoin the appellant from selling liquors. We disclaim any intention in this opinion of passing upon the question of the right of the county attorney to file a suit in behalf of the state to enjoin appellant or any person from a violation of matters denounced in article 4674, Revised Statutes.

For the reasons stated, the case is reversed, and the cause dismissed.
      <S&>Far other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    ADAMS v. HARRIS.
    (No. 1670.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 9, 1916.)
    1. VENDOR AND PURCHASER <&wkey;278 — EXTENSION of Lien — Limitation of Actions.
    Under Vernon’s Sayles’ Ann. Civ. St. arts. 5693, 5694, limiting the foreclosure of liens on land either by exercise of power of sale or by foreclosure suit to four years after the maturity of the indebtedness, unless extended as provided by article 5695, which required the extension to be in writing', acknowledged and filed for record, the extension of a vendor’s lien note, not recorded, does not authorize foreclosure after the expiration of the limitation period even as between the parties thereto.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 776, 777; Dec. Dig. <&wkey;>278.]
    2. Limitation of Actions t&wkey;148(4) — Renewal of Promise — Statute.
    But such extension, when signed by the party to be charged, as required by article 5705, is a sufficient renewal of the note as a personal obligation, and entitles the vendor to judgment thereon.
    [Ed. Note. — For other case's, see Limitation of Actions, Cent. Dig. § 601; Dec. Dig. &wkey;ol48(4).]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Suit by Mrs. Mary J. Harris against James R. Adams and another, to recover the balance due on a promissory note and foreclose a vendor’s lien. Judgment for the plaintiff for a part only of the amount due on the note and denying foreclosure of the vendor’s lien, and both parties named appeal.
    Judgment reformed as to the amount of recovery, and otherwise affirmed.
    Price & Beaird, of Tyler, for appellant. J. M. Burford, of Mt. Pleasant, for appellee.
   HODGES, J.

In November, 1915, Mrs. Mary J. Harris, the appellee, filed this suit against C. H. Wallace and the appellant, J. R. Adams. The object of the suit was to recover a judgment for the balance due on a promissory note originally executed by Wallace for $400, and to foreclose a vendor’s lien upon certain described real estate. The material facts are set out in the findings of the trial court, which are, in substance, as follows: On April 29, 1901, J. E. Taylor sold and conveyed by a general warranty deed a tract of land situated in Titus county to C. I-I. Wallace, a part of the consideration being a note for the sum of $400 payable to Taylor or bearer January 1, 1902. The note contained the usual provisions for interest and attorney fees, and expressly reserved a vendor’s lien upon the land conveyed. Some time before the maturity of the note Taylor, for-a valuable consideration, assigned it, together with the lien, to the appellee, Mary J. Harris. The note was not paid at maturity, but the interest appears to have been paid as it accrued. On December 9, 1913, the note being out of date, Wallace, the maker of the note, executed the following contract of renewal:

“In order and for the purpose of renewing the hereto attached note given by Dr. O. H. Wallace on April 29, 1901, for the sum of $400.00 in favor of J. E. Taylor or bearer, I, Dr. O. H. Wallace, do hereby acknowledge in writing that said note, less the credits on same is just, due and unpaid, and that all liens securing the same are valid and binding. [Signed] O. H. Wallace.”

This agreement was attached to the note. On December 23, 1914, Wallace, joined by his wife, conveyed the land for which the note was given to James R. Adams, the appellant. As a part of the consideration Adams assumed the .payment of the above-mentioned note for the extent of $300. On April 30, 1915, Adams, desiring to secure an extension of the note, entered into a contract to that effect, which was duly signed and acknowledged by him and Mrs. Harris. Neither of these contracts of renewal was recorded as provided for by law. At the time of the last renewal there was due upon the note $342.17.

Upon these facts the court concluded that both contracts of renewal were ineffectual because neither was recorded as required by the statute. He further concluded, however, that by reason of the assumption on the part of Adams, as stated in the deed from Wallace to him, of the payment of $300 on the note, Adams, was personally liable to the plaintiff for that amount, with legal interest from January 1, 1915. ’ He rendered judgment accordingly, but refused to foreclose the vendor’s lien. Judgment also was rendered against Wallace for the amount of the note sued on, with interest. Both parties have appealed from that judgment. Adams assigns as error the action of the court in rendering judgment against him for any sum. Mrs. Harris complains that the court erred in failing to render judgment in her favor for the full amount of the note, and further in refusing to foreclose the vendor’s lien stipulated in the note.

Article 5693 of Vernon’s Sayles’ Statutes provides that the power of sale in any mortgage or deed of trust shall expire four years after the maturity of the indebtedness secured. Articles 5694 and 5695, as amended by the act of 1913 are as follows:

“Art. 5694. The right to recover any real estate by virtue of a superior title retained in any deed of conveyance heretofore or hereafter executed, or in any vendor’s lien note or notes heretofore or hereafter executed, given for the purchase money of such real estate, shall be barred after the expiration of four years from the maturity of such indebtedness, and if suit is not brought for recovery of such real estate, or for the foreclosure of the lien to secure such note or notes within four years from the date of the maturity of such indebtedness, or if suit is not brought within such time for the recovery of the land by the original vendor, or his transferee, or for the foreclosure of the lien given to secure such notes, the purchase money therefor shall be conclusively presumed to have been paid in any suit to recover such land or to enforce a lien thereon, and the lien reserved in any such notes and deeds conveying the land shall cease to exist four years after tile note or notes have matured, provided the lien reserved in such note or notes may be extended as provided in section 5695 of this chapter and provided, if several obligations are secured by said deed of conveyance, the same may be enforced at any time prior to four years after the note or obligation last maturing has matured and may be enforced as to all notes not then barred by the four years statute of limitations.
“Art. 5695. When the date of maturity of either debt referred to in either of the foregoing articles is extended, if the contract of extension is signed and acknowledged as provided for in the law relating to the execution of deeds óf conveyance by the party or parties obligated to pay such indebtedness as extended and filed for record in the county clerk’s office in the county in which the land is situated, the lien'shall continue and be in force until four years after maturity of the notes as provided in such extension, the same as in the original contract and the lien shall so continue for any succeeding or additional extension so made and recorded. The date of maturity set forth in the deed of conveyance or deed of trust or mortgage or the recorded renewal and extension of the same shall be conclusive evidence of the date of maturity of the indebtedness therein mentioned. Provided that the owners of ail notes secured by deeds of trust or other liens and the owners of all vendors’ lien notes reserved in deeds of conveyance which were executed prior to July 14, 1905, and which are more than four years past due at the time this act takes effect as shown by the original mortgage, deed of trust or conveyance, or last record extension shall have twelve montfis after this act takes effect within which .they may obtain such record extension as hereinbefore provided for, or bring suit to enforce the liens securing them if same are valid obligations when this act takes effect and if such debt is not so extended of record, or suit is not brought within such time, the right to extend such debt of record, or bring suit to enforce such liens shall be forever barred,” etc.

It will be observed that articles 5693 and 5694 fix four years after the maturity of the debt as the limit within which the lien created to secure its payment may be enforced either by the execution of a power of sale or through judicial proceedings. But in that connection it is also provided that such liens may be extended in the manner specified in article 5695. Briefly stated, it is required by the latter article -that the contract of extension must be in writing, signed and acknowledged by the party to be bound thereby, and filed in the office of the clerk of the county court of the county in which the land is situated. It is urged by counsel for the appel-lee that, as between the parties to the renewal contract, registration is not essential to its validity; that this provision of the statute was inserted only for the benefit of third parties having a right to rely upon the deed records for notice that the lien had been extended. The force of that contention is weakened, if not destroyed, when we consider the evil which the law was intended to correct and the language employed with reference to contracts made prior to July 14, 1905. The Legislature must have had in mind the frequent embarrassments resulting from protracted delays in asserting outstanding superior legal titles where the purchase money of land had not been paid, and in enforcing liens which had been renewed without the evidence having been placed of record. The Legislature had the power, if it saw fit to exercise it, to make registration in such cases essential to the validity of contracts of extension beyond the lifetime of the vendee’s original obligation.

Article 5695 provides a method for ascertaining the maturity of debts secured by liens for the purpose of determining whether or not the lien is barred. It is expressly provided that the date of maturity as set forth in the deed of conveyance, the mortgage or deed of trust, or the recorded renewal and extension shall be conclusive evidence of the date of maturity. In the absence of any recorded renewal and extension, the date specified in the conveyance, deed of trust, or mortgage must control.

In this case the debt and lien were created prior to July 14, 1905. Neither had been discharged in 1913 when the present law was enacted. By the express terms of the statute the holder was allowed 12 months after it went into effect to do one or the other of two things — procure and have recorded a con- ■ tract of extension, or file suit for the enforcement of the lien. It is provided that:

“If such debt is not so extended of record, or suit is not brought within such time (one year.), the right to extend such debt of record, or bring suit to enforce such liens shall be forever barred.”

The appellee, in this instance having failed to comply with either of these requirements, must suffer the consequences. Her lien became barred.

But the court also held that the renewal contract which had been made by Wallace at one time and Adams at another did not have the effect of perpetuating the personal obligation to pay the original note. In this we think there was error. In enacting the statute which has been discussed the Legislature was undertaking to deal with liens and the superior legal titles to real estate, and no attempt was made to disturb, or modify, the provisions of article 5705, which prescribes the manner of renewing personal obligations which have become barred by limitation. The renewal contracts executed by Wallace and Adams, while ineffectual for the purpose of renewing and extending the lien because not executed within the time prescribed by the statute, nor recorded as there required, were sufficient to renew and extend the original personal obligation to the extent specified. According to the findings of the court the appellant, after purchasing the land, did enter into a contract with the appellee by which he agreed to pay the balance due on the original purchase-money note. That contr.act is valid and enforceable personal obligation, notwithstanding the expiration of the lien by limitation.

The judgment of the trial court will therefore be reformed as to the amount awarded against the appellant. In all other respects, it will be affirmed.
      <g=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    HENSLEY et ux. v. PENA.
    (No. 638.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.)
    Afpeal and Error &wkey;>773(2) — Briefs— Failure to File — Dismissal.
    Under Rev. St. art. 2115, providing that not less than five days before the time of filing the transcript in the Court of Civil Appeals, the appellant for plaintiff in error shall file with the clerk of the district court a copy of his brief, and rule 39, Rules for the Courts of Civil Appeals (142 S. W. xiii), making a failure to comply with such provision without showing cause for such failure ground for dismissing the appeal, where appellants have offered no excuse for failing to file a copy of the brief with the clerk of the district court, the appeal must be dismissed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108; Dec. Dig. &wkey; 773(2).]
    Appeal from District Court, Presidio County; P. R. Price, Judge.
    Suit by Mrs. Antonio Pena against S. J. Hensley and wife. Prom a judgment for plaintiff, defendants appeal.
    Dismissed.
    J. D. Martin, of Ft. Stockton, and K. C. Miller and W. C. Jourdan, both, of Marfa, for appellants. Belcher & Sutton, of Marfa, for appellee.
   HARPER, C. J.

This suit was filed by appellee against appellants in form of trespass to try title to an undivided one-half interest in Survey No. 350, Presidio county, Tex., and also for cancellation of a certain deed. Tried with jury and resulted in a verdict and judgment for plaintiff, from which Hensley appealed.

This cause was tried at the January term, 1916. Transcript reached the clerk of this court May 1, 1916. Copies of appellant’s briefs were offered for filing in this court in October, 1916. There was no offer to file copies in the court below. Article 2115, Rev.. Civ. Stat. of Texas 1911, provides that:

“Not less than five days before the time of filing the transcript in the Court of Civil Appeals, the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief, which shall be by the derk deposited with the papers of the cause, with the date of filing indorsed thereon. * * *

Rule 39, Supreme Court Rules for the Courts of Civil Appeals of Texas (142 S. W. xiii), provides that a failure to comply with the provisions of the above statute, without showing good cause for not complying therewith, shall be grounds for dismissing the appeal, and appellants have offered no excuse. Appellants filed motion to be permitted to file their briefs in this court, which was overruled, whereupon they filed their motion to dismiss the appeal, and said motion is sustained and appeal dismissed.
      ©arjEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    MILLER v. MEYER.
    (No. 7088.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1916.
    Rehearing Denied Dec. 7, 1916.)
    1. Boundaries <&wkey;37(3) — Location — Side Line — Sufficiency of Evidence.
    In an action to recover a strip of unlocated and unappropriated public lands lying between the west boundary of a survey and the east boundary of another survey where the m’aps or plats had made the west boundary of the first survey the east boundary of the second, evidence held to sustain a verdict for defendant.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. &wkey;37(3).] .
    2. Boundaries <&wkey;37(3) — Survey—Resurvey.
    An original survey agreeing with maps in use for many years should not be held erroneous because not agreeing with resurveys made long aft-erwards and based upon the assumption that information furnished by living persons as to locality of the lines and corners was' absolutely correct, nor, where they are based upon an indefinite and uncertain starting point.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. &wkey;37(3).]
    3. Boundaries <&wkey;3(6) — Calls — Surveyed Lines.
    The real object in applying the various calls is to find the footsteps of the surveyor, and, when found and identified, all classes of calls must yield to them,
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 2A-29; Dec. Dig. <&wkey;>3(6).]'
    4. Boundaries <&wkey;ll, 37(3) — Adjoining Surveys — Unappropriated Strip.
    Adjoining surveys made by the same survey- or within a few days of each other, mapped with a common division line and calling for each other, will appropriate the- land the one to the other, and very clear evidence must be adduced to justify the conclusion of the existence of any vacancy between such surveys as actually made.
    [Ed. Note. — For other cases, see Boundaries. Cent. Dig. §§ 92-94, 1S6-191: Dec. Dig. <&wkey;> 11, 37(3).]
    5. Adverse Possession &wkey;>110(4) — Pleading —Evidence.
    In an action to recover land alleged to lie between two surveys gwned by defendant, with a cross-bill by defendant to recover such strip,, and a plea of title by limitation to the land sued for to protect his chain of title against any defects so that plaintiff might not show an outstanding title in some one else, evidence as to the long possession and use of the land sued for by defendant was admissible.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 644, 645; Dec. Dig. (&wkey;> 110(4).]
    Appeal from District Court, Harris County ; John A. Read, Judge.
    Action by A. R. Miller against Joseph F. Meyer, with cross-action and plea in recon-vention. Judgment for defendant on his cross-action, and plaintiff appeals.
    Affirmed.
    Gill, Jones & Tyler and B. F. Louis, all of Houston, for appellant. Baker, Botts, Parker & Garwood, D. F. Rowe and Leonard Doughty, all of Houston, for appellee.
   LANE, J.

On the 10th day of October, 1916, we handed down an oral opinion in this case. Appellant has filed his motion for a written opinion, and in compliance with such request we present the following:

For the purpose of clearly presenting the contentions of the parties, we make the following statement:

On the 29th day of September, 1838, Surveyor H. Trott surveyed and located a tract of land known as the Owen’s survey in Harris county. He began this survey at its northeast corner; and from thence he ran south 2,888 varas for its southeast corner; thence west 2,888 varas for its southwest corner; thence north 2,8S8 varas for its northwest corner; thence east 2,888 varas to the place of beginning.

On the 9th day of October, 1838, the same surveyor surveyed and located what is known as the W. N. Bronaugh survey in said county. His field notes by which this survey was located call to begin at a stake near the head of the south fork of Bray’s bayou for its southwest corner; thence east 3,818 varas to a stake for its southeast corner; thence north 2,200 varas to a stake for its northeast corner, the same being the Owen’s southeast corner; thence west 3,818 varas to a stake and mound in prairie (with said Owen’s line crossing said bayou at 940 varas, passing his and Hooker’s corner at 2,888 varas -and with Hooker’s line 828 varas to Aiken’s southeast corner and Hooker’s southwest corner); thence south 2,200 varas to beginning — thus locating the Bronaugh survey south of the Owen and Hooker surveys, and making the combined south lines of the Owen and Hooker the north line of the Bron-augh, and making the southwest corner of the Hooker the southeast corner of the Aiken, hereinafter described, and the northwest corner of said Bronaugh a common corner for all three of said surveys. The Hooker survey referred to is the same as the Brown shown on the maps introduced in evidence.

The records from the General 'Land Office, introduced in evidence by defendant in this suit, show that on the 10th day of October, 1838, H. Trott, the same surveyor who surveyed and located the two surveys, Owen and Bronaugh, on the 2,9th of September and October 9, 1838, respectively, surveyed and located what is known as the Aiken survey. His calls for the boundaries of said survey are substantially as follows: Beginning at a stake in prairie the southeast corner of Black’s survey; thence north 1,900 varas for the northwest corner of this (Aiken) survey; thence east one mile to stake for northeast corner; thence south one mile to a stake for southeast corner; thence west one mile to beginning.

The records from the General Land Office showing the survey and location of the Hooker shows that Surveyor H. Trott, in seven or eight months after he had surveyed and located the Owen, Bronaugh, and Aiken surveys, to wit, in June 1839, again went to the same locality and surveyed and located the Hooker survey, making its south, west, and east boundary lines, respectively, to run as follows: Beginning at Owen’s southwest corner on the Bronaugh’s north line; thence west with said line 928 varas to the southeast corner of the Aiken; thence north with the east line of the Aiken; and then, after reaching the west line of the Owen, he ran with said Owen’s west line south to place of beginning. Thus locating the Hooker or Brown north of the Bronaugh and appropriating all the land lying between the Owen and Aiken, 92S varas in width.

In April, 1840, Surveyor Henderson surveyed and located the Simmons, now shown on the official map as the Ely, and in his field notes, by which the same was located, he makes the south line of the Aiken the north line of the Simmons, and the southeast corner of the Aiken the northeast corner of said Simmons. He then calls to run south 1,344 varas with the west line of the Bron-augh; thence west 1,344 varas, etc. Thus making the west line of the Bronaugh and the east line of the Simmons a common boundary between the two surveys.

The probative force of the undisputed facts as above stated is that the records of the surveys mentioned, in use in the General Land Office, show that 'Surveyor H. Trott surveyed and located the Owen survey on September 29, 1839; that ten days later he surveyed and located the Bronaugh survey south of the Owen, and made the south line of the Owen and south line of the Hooker (surveyed later) the; north line of the Bronaugh; and that in running this north line of the Bronaugh he began at the southeast corner of the Owen and ran with the south lines of the Owen • and Hooker surveys west 3,818 varas to the Aiken southeast corner, passing the southwest corner of the Owen 828 (928) varas east of the southeast corner of the Aiken; that on the day after locating the Bronaugh he surveyed and located the Aiken, with its east boundary line 928 varas west of the Owen west line; that within seven or eight months thereafter the same surveyor returned to the field of operations .and located the Hooker between the west line of the Owen and east line of the Aiken and making its south line rest on and run with the north line of the Bron-augh 928 varas to the southeast corner of the Aiken, thus appropriating all the unlocated land lying north of the Bronaugh, and between the Owen on the east, and Aiken on the west; that Surveyor Henderson in April, 1840, located the Simmons, and in doing so made the west boundary line of the Bronaugh the east boundary line of the Simmons, and called for the southeast corner of the Aiken as the northeast corner of the Simmons.

The maps or plats of the Owen, Bronaugh, Aiken, Hooker, and Simmons surveys in general use in the General Land Office from 1861 to 1869, introduced in evidence, show the relation of these surveys, one to the other, as they are located by the field notes of the locating surveyor, as hereinbefore stated. The title to all the land actually embraced within the boundaries of the Bronaugh and Simmons surveys has passed by mesne conveyances from the sovereignty of the soil to defendant Meyer.

On November 21, 1896, a map or plat was prepared and filed in the General Land Office which, if true, shows that there was a narrow strip of unlocated and unappropriated public land lying between the west boundaries of the Bronaugh and Hooker, and the east boundaries of the Aiken and Simmons, thus pulling apart these surveys and destroying the common boundaries between them which are shown to exist by all the field notes and maps with reference to said surveys in the General Land Office from 1861 to 1896, by locating the west lines of the Bronaugh and Hooker several hundred varas east of the conceded east line of the Simmons and Aiken, and thereby encroaching on the territory formerly shown to be embraced within the boundaries of the Bronaugh and Hooker.

In July, 190S, plaintiff A. R. Miller made application for a survey of said unappropriated strip as shown by the map of date November 21, 1896. Upon such application, said apparent unappropriated strip was surveyed, and thereafter, on the 4th day of February, 1909, was awarded to said Miller upon his application to purchase.

From the foregoing statement, it clearly appears that appellant’s contention is that the west line of the Bronaugh is not the same as the east line of the Simmons, but in fact is several hundred varas to the east thereof, and that there is unappropriated public? land lying between the true west line of the Bronaugh, which he contends is shown by the map of 1896, and the conceded east line of the Simmons, and that the award of the same to him in 1909 passed the title thereto to him.

A. R. Miller instituted this suit against Joseph F. Meyer to recover the title and possession of about 128 acres of land which he contends was public school land in 1909 lying between the east line of the Simmons (now Ely) survey and the west line of the Bron-augh survey in Harris county, which he alleges was awarded to him by the state of Texas in 1909. Joseph F. Meyer answered and denied that there was any such vacant land as claimed by Miller and pleaded not guilty, and further by cross-action and plea in reeonvention pleaded that he was the owner of all the land embraced within the boundaries of the Bronaugh and Simmons (Ely) surveys, and prayed ' for judgment over against Miller for the title to said land. He also pleaded the statute of limitation of three, five, and ten years. The cause was tried before a jury, who were instructed by the trial judge, in substance, that the controlling question in the case was as to the true location of the west boundary line of the Bronaugh survey; and that the burden of proof was upon the plaintiff Miller to establish by a preponderance of the evidence that the east boundary of the Ely (Siminons) and the west boundary of the Bronaugh surveys were originally so located as that there was left between them a vacancy as contended by Miller; that in determining such question,they should, if possible, follow the footsteps of the original surveyor as they were actually made on the ground when he located the surveys. Other instructions applicable to the facts and law of the case were given. The court then propounded to the jury six questions, among which was question No. 1, as follows:

“As surveyed by the original surveyors, do, or do not, the Bronaugh and Ely surveys join each other along the extent of the east boundary lines of the Ely survey? You will answer this question by saying, ‘They do,’ or, ‘They do not,’ as you may find the fact to be. If in answer to the preceding question you say that the Bronaugh and Ely surveys do so join each other, then you need inquire no further, but return your answer as your verdict. If you do not so find, you will answer the following questions.”

The jury answered this question, “They do,” and made no further answers to the remaining questions. Upon this answer of the jury the court rendered judgment for the defendant Meyer for the land sued for in his cross-bill, which included the land sued for by Miller.

The main contention of appellant for the reversal of the judgment rendered in favor of appellee is that while the surveyor H. Trott, who surveyed and located the Bronaugh survey, in his locative field notes, in running the north line of the Bronaugh, called to run west 3,818 varas to the southeast corner of the Aiken survey, the distance called for did not in fact reach the southeast corner of the Aiken, but fell short thereof the width of the land claimed by him; that the Aiken southeast comer was marked by no object and could not be definitely identified and located, and therefore the call for such corner did not carry the surveyor to the same, and that under such circumstances the distance called for should control rather than the call for such corner. In other words, it is insisted that the great weight and preponderance of the evidence isi so overwhelmingly against the answer of the jury to question ÍSTo. 1 submitted to them by the court, that their finding should be set aside on appeal, and that the judgment rendered in the lower court should be reversed and the cause remanded for another trial.

We have already seen that the records and maps relative to the location and boundaries of the Bronaugh, and other surveys with which it in some manner connects, make a prima facie case for appellee Meyer. We have carefully examined all the evidence relied upon by appellant for a judgment in his favor, together with all the facts and circumstances proven, and have reached the conclusion that as a whole the evidence falls very far short of being such conclusive evidence as would or should require from the jury a verdict favorable to appellant.

On page 4 of appellant’s brief it is said:

“The testimony showed that the H. Aiken survey was fixed without contradiction to the extent of its east line, so far as its location to the east from the post oak upon the Thomas Dickson survey is concerned, and that the testimony without contradiction, therefore, locates the east line of the Ely (Simmons) survey as at a point no further east than the east line of the-Aiken.”

It follows then that the southeast corner of the Aiken is fixed and established by the uncontradicted testimony.

The uncontradicted evidence shows that H. Trott surveyed and located the Bronaugh, Aiken, Owen, and Hooker (or Brown) surveys practically at the same time, and by his calls makes the southeast comer of the Aiken, also the northwest corner of the Bronaugh, and the southwest corner of the Hooker (or Brown) surveys. We think the fact that the same surveyor called for this one point as the common corner for all of these surveys, made practically at the same time, was sufficient evidence to support the finding of the jury. It is inconceivable that the surveyor who made these surveys could have been mistaken as to the location of this point at the time he called for it as the northwest, corner of the Bronaugh, and it follows from what has been said that, if the Bronaugh northwest corner is at the same point as the southeast corner of the Aiken and the northeast corner of the Simmons (or Ely), the west line of the Bronaugh and the east line of the Simmons (or Ely) is a common division line of both surveys, and therefore there is no vacancy between the two surveys as contended by appellant. We attribute but little importance to the fact that the field notes by which the Aiken was located show that the Aiken southeast corner was established one day later than the line of the Bronaugh, which calls to 'run to such corner, for evidently both surveys were made by the same surveyor practically at the same time. Nor do we give any weight to the testimony of the witness Rosenberg as to pencil marks on the original field notes of the Bronaugh survey, made by the surveyor who located said survey. Such testimony does not raise the issue as to whether certain words were erased from said field notes before the issuance of the patent. Where an original survey agrees with maps that have been in use for many years, as in the instant case, it should not be held erroneous because it does not agree with resurveys made long afterwards, and based upon the assumption that information furnished by living persons as to the locality of the lines and corners is absolutely correct, nor where they are based upon an indefinite and uncertain starting point. McCombs v. Sheldon, 26 S. W. 1114; Dyon v. Waggoner, 37 Tex. Civ. App. 205, 83 S. W. 46.

The real object in applying the various calls is to find the footsteps of the surveyor. When these are found and identified, all classes of calls must yield to them. Fulton v. Frandolig, 63 Tex. 330; Converse v. Bangshaw, 81 Tex. 275, 16 S. W. 1031; Ruling Case Law, vol. 4, § 56, p. 117. “Adjoining surveys made by the same surveyor within a few days of each other, mapped with a common division line and calling for each other, will appropriate the land the one to the other. Very clear evidence would have to be adduced to justify the conclusion that any vacancy existed between such surveys as actually made.” Wyatt v. Foster, 79 Tex. 413, 15 S. W. 679; Stanus v. Smith, 8 Tex. Civ. App. 685, 30 S. W. 262; Booker v. Hart, 77 Tex. 146, 12 S. W. 16.

We think the finding of the jury that the line between the Bronaugh and Simmons (or Ely) surveys was a common division line, and that there was no vacancy between them, is amply supported by the evidence and is decisive of the issues in this case.

We do not think the court erred in permitting witnesses to testify as to the long possession and use of the land embraced within the boundaries of the Bronaugh and Ely surveys, sued 'for in defendant’s cross-bill. He pleaded title by limitation to the land sued for in his cross-bill as a means, and out of precaution, to protect his chain of title against any defects, to the end that appellant might not show an outstanding title in some one else. We think the evidence admissible for the purpose for which it was offered.

We have examined and considered all of appellant’s assignments and overrule them.

We find no error in the trial which resulted in the rendition of the judgment in favor of appellee. The judgment of the trial court is affirmed.

Affirmed.


author: WILLS ON, C. J.

text:
    INTERNATIONAL ORDER OF TWELVE, KNIGHTS AND DAUGHTERS OF TABOR, v. BROWN et al.
    (No. 1690.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1916.)
    Insurance @=>814 — Mutual Benefit Insurance — Waiver of Process — Statute.
    Under Acts 33d Leg. c. 113, § 17 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4844), providing that service of citation in a suit against a fraternal beneficiary society shall be made on the commissioner of insurance, and that legal process shall not be served on such society in any other manner, which act was passed after the previous statute had been construed to provide only an additional method of service, service on the commissioner is the exclusive mode of service, whether the society is incorporated or not, and judgment by default cannot be rendered, where service was had only on the recorder of a local lodge.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1995;. Dec. Dig. @=>814.]
    Error from Franklin County Court; O. L. Reaves, Judge.
    Action by Tommy Brown and others against the International Order of Twelve, Knights and Daughters of Tabor. Judgment for plaintiffs by- default, and defendant brings error.
    Reversed and remanded for new trial.
    R. T. Wilkinson, of Mt. Vernon, for plaintiff in error. L. W. Davidson, of Mt. Vernon, for defendants in error.
   WILLS ON, C. J.

The writ was prosecuted from a judgment by default against plaintiff in error in favor of Tommy Brown, in his individual capacity .and as next friend of the minors, Tommy, Jr., Rosellee, Mary Ella, William, and Louella Brown, for $300, the sum claimed to be due them as the beneficiaries named in a benefit certificate issued by plaintiff in error to Hattie Brown, deceased.

It appears that the judgment was unauthorized, because service, as required by law, of a citation was not had on plaintiff in error before it was rendered. The service was on one Lottie Gatlin, chief recorder of one of plaintiff in error’s local lodges, when it should have been on the commissioner of insurance ; for, it seems, plaintiff in error was a fraternal beneficiary society (but whether incorporated or not does not appear in the record). The Legislature in section 17 of Act April 2, 1913 (Gen. Laws, p. 227), after declaring the service of a citation in a suit against such a society shall be made on the commissioner of insurance, declared;

“Legal process shall not be served upon any such society except in the manner provided herein.”

Defendants in error cite Bankers’ Union of the World v. Nabors, 36 Tex. Civ. App. 38, 81 S. W. 91, and Modern Woodmen of America v. Metcalfe, 154 S. W. 662, as cases supporting his contention that the mode of service of a citation provided by the act was merely cumulative of the general law upon the subject, and, therefore, that the service had on the chief recorder of the local lodge was sufficient. The ruling made in the first of the two cases mentioned was with reference to Act May 12, 1899 (Gen. Laws, p. 195), and that in the other case with reference to Act May 1, 1909 (Gen. Laws, p. 357). The act of 1899 was repealed by the act of 1909, which in turn was repealed by Act April 2, 1913, above referred to, which was'in force at the time the service was had. Neither the act of 1899 nor the act of 1909 contained the provision in the act of 1913 set out above. It would seem, therefore, that that provision was made because of the rulings in the cases cited and with the intent on the part of the Legislature to provide an exclusive mode of service of a citation in such eases. That such was the intent of the Legislature is further indicated by the fact that the language used in the act of 1909 was that “service may only be made upon such” commissioner, while that used in the act of 1913 is that “service shall only be made upon such” commissioner.

The judgment' will be reversed, and the cause remanded for a new trial.
      <S=aPor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RIDLING v. FANNIN COUNTY.
    (No. 1689.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 30, 1916.)
    1. Appeal and Error @=>389(3) — Pauper’s Appeai^-Proof of Inability to Give Security for Costs — Statute.
    Under Rev. St. art. 2098, providing that where appellant is unable to pay the costs of appeal or to give security, he shall be entitled to prosecute his appeal, but must make strict proof of his inability to pay costs, either before the county judge of the county where he resides or before the court trying the case, where the party seeking to appeal as a pauper is a nonresident of the state, he must make proof of his inability to give the required security before the court which tried the case, and the certificate of a county judge in another state that he has made proof is of no legal value in perfecting the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2075; Dec. Dig. @=>389(3).]
    2. Appeal and Error @=792 — Fundamental Defect in Perfecting — Notice by Court —Action by Adverse Party.
    Where a nonresident seeking to appeal as a pauper did not make proof of inability to give the required security before the court which tried the case, as required by Rev. St. art. 2098, the defect in perfecting the appeal is fundamental, of which the Court of Appeals is required to take notice without action by the opposing party, so that the appeal will be dismissed.
    [Ed. Note. — For other cases, see Apoeal and Error, Cent. Dig. §§ 3137-3141; Dec. Dig. @=>792.]
    Appeal from District Court, Fannin County ; Ben H. Denton, Judge.
    Suit between Sid T. Ridling and Fannin County. From a judgment for the county, Ridling appeals.
    Appeal dismissed.
    J. H. G. Lee and H. G. Evans, both, of Bon-ham, for appellant. A. S. Broadfoot, of Bon-ham, for appellee.
   HODGES, J.

The appeal in this case is prosecuted upon an affidavit in lieu of an appeal bond. In his original petition the appellant alleged that he was a resident of Miller qounty, Ark. As proof of his inability to make the bond required for an appeal he presents an affidavit to that effect made before a notary public of Miller county, Ark. Accompanying this affidavit he has filed the following certificate from the county judge of Miller county, Ark.:

“The State of Arkansas, County of Miller.
“I, J. M. Oats, county judge of the county of Miller and state of Arkansas, do hereby certify that Sid T. Ridley, the plaintiff in the above cause, has this day made proof before me of his inability to pay the costs of the appeal in said cause, or any part thereof, and that he is unable to give security therefor.”

Article 2098, Rev. St., which regulates appeals to this court, is as follows:

“Where the appellant or plaintiff in error is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to prosecute his appeal; but, in order to do so, he shall be required to make strict proof of his inability to pay the costs, or any part thereof. Such proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party, stating his inability to pay the cost, which affidavit may be contested by any officer of the court or party to the suit, whereupon it shall be the duty of the court trying the case, if in session, or the county judge of the county in which the suit is pending, to hear evidence and to determine the right of the party, under this article, to his appeal.”

It will be observed that there are two tribunals before which proof of inability to give the required security may be made— one, the court trying the case, and the other, the county judge of the county where the appealing party resides. It has been definitely decided that the reference in this statute to the county judge of the county in which the appealing party resides is limited to the county judges of counties in Texas, and is not available to nonresidents attempting to appeal in forma pauperis. Harvey v. Cummings, 62 Tex. 187; Fletcher v. Anderson, 145 S. W. 622. See, also, Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659. In the last-mentioned case Associate Justice Williams said:

“The statute defines what the proof it requires shall be, when it provides that it ‘shall consist of the affidavit of said party, stating his inability to pay costs’; * * * and ‘its evident purpose is to enable the appellant to make prima facie proof of his inability to give the required security and to enable those having conflicting interest to controvert such proof’ ” — citing Wooldridge v. Roller, 52 Tex. 451.

He continues:

“When it is made before the court trying the ease, if in session, the statute requires no other action if there be no contest. It is only where the affidavit is made before some officer not authorized to determine the facts in case of a contest that it has been held or intimated' by this court that it must be presented to one who is so authorized for further action on his part.”

It follows from what has been decided in the cases referred to that the appellant in this instance should have made his proof of inability to give the required security before the court which tried the case, and the certificate of the county judge of Miller county, Ark., is of no legal value in perfecting this appeal. The record fails to show that the affidavit of the notary public was ever presented to the court which tried the case, and for that reason there is no evidence that the statute was complied with. It has been frequently decided that it must affirmatively appear from the record that the statutory requirements for perfecting an appeal have been followed. Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S. W. 435, and cases there cited. Other cases might also be mentioned in which similar holdings are announced, but we deem it unnecessary. The defect here referred to is a fundamental one of which we are required to take notice without any action on the part of the opposing party.

The appeal will therefore be dismissed.


author: SWEARINGEN, J.

text:
    RUSSELL v. KOENNECKE.
    (No. 5738.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1916.)
    1. Appeal and Error <@=>509 — Proceedings to Transfer Canse — Notice oe Appeal.
    Where the transcript shows that no notice of appeal was given by appellant in open court, the Court of Civil Appeals has no authority to consider the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2317; Dec. Dig. <@=>509.]
    2. Appeal and Error <§=>417(1)— Proceedings to Transfer Causeh-Notice of Appeal.
    A paper which in no way identifies the case, whether by its style, file number, or the description of any judgment, or order, and which is not signed, though filed with the clerk of court, does not constitute notice of appeal.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2140, 2141; Dec. Dig. <§=> 417(l}j
    3. Appeal and Error <@=>417(1) — Proceedings to Transfer Cause — Notice of Appeal.
    Under Rev. Civ. St. art. 2085, providing that where the appellant is not required by law to give bonds, the appeal is perfected by the notice provided for in the preceding article, which authorizes notice of appeal in open court, a notice of appeal, made by filing a written statement with the clerk, if not brought to the attention of the court, does not amount to a notice in open court, and is not sufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2140, 2141; Dec. Dig. <@=> 417 (ll]
    Appeal from District Court, Gillespie County; N. T. Stubbs, Judge.
    Suit by A. E. Russell against Albert Koen-necke. From a judgment for defendant, plaintiff appeals.
    Dismissed.
    James Raley, of San Antonio, for appellant. A. W. Moursund, of Fredericksburg, for appellee.
   SWEARINGEN, J.

Appellant, A. E. Russell, filed a partition suit against appellee, A. E. Koennecke. Appellee answered by a general demurrer to appellant’s petition. On tbe 22d day of February, 1916, tbe court rendered tbe following judgment:

“No. 995. A. E. Russell v. Albert Koennecke. February 22, 1916. On this day came on to be heard the above numbered and styled case, defendant’s demurrer to plaintiff’s original petition, and after hearing the same and plaintiff’s petition, it is considered by the court that the law is with, the defendant, wherefore it was ordered and adjudged that the said demurrer be sustained, and, plaintiff refusing to amend, it was further ordered and adjudged that this case be and is dismissed, that the defendant, Albert Koennecke, have and recover from plaintiff, A. E. Russell and the sureties, James Raley and Jennie Raley, all costs in this behalf expended, for which execution will issue.”

On February 23, 1916, tbe following was filed:

“Plaintiff, having filed a trial amendment, refuses to further amend, and the cause is dismissed, to which plaintiff excepts 'and gives notice of appeal on the ground that the petition is a good one and the demurrer was not called to the attention of the court at the first term when the business of the court did not interfere.”

Tbe only assignments complain of tbe order of tbe court sustaining tbe demurrer; consequently there is no statement of facts.

Tbe transcript shows no notice of appeal given by appellant in open court. For this reason this appellate court has no authority to consider tbe case. W. U. Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945; McMillan v. White House Lumber Co., 149 S. W. 734; Houston & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 370; El Paso & S. W. R. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486.

Tbe paper filed February 23, 1916, and copied above in no way identifies tbe case at bar. Tbe style of tbe case and tbe file number do not appear on it; neither does it describe any judgment nor order, and it is not signed. Even if it did identify tbe case, filing it with tbe clerk does not constitute notice of appeal. Notice of appeal made in a particular manner is necessary to give this court jurisdiction of tbe cause. R. C. St. art. 2085.

Furthermore, if notice of appeal could be given by filing a written statement to that effect with the clerk, still, if it was not brought to tbe attention of tbe court, it was not notice made in open court, which is tbe manner of giving tbe notice required by .the statutes. Gibson v. Singer Sewing Machine Co., 147 S. W. 284.

Because tbe record does not show that appellant gave notice of appeal in open court, tbe cause will be dismissed from tbe docket of this court; and it is so ordered.

Dismissed.
      <S=aFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: FDY, C. J.

text:
    DODSON v. JONES, County Superintendent.
    (No. 5752.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 6. 1916.)
    1. Schools and School Districts <@=>144(5) —Teachers—Compensation.
    Where the court found? that a contract to pay relator $75 a month as school principal and $50 a month as janitor out of the free school money of the state was made to evade Rev. St. 1911, arts. 2780, 2781, providing that a teacher holding a first-grade certificate shall in no event receive more than $75 a month from the public free school fund, and also found that another person was employed as janitor in the same school, vouchers granted by the trustees for the additional salary to the principal as janitor were properly rejected by the county superintendent.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 313; Dec. Dig. <§=>144(5).]
    2. Schools and School Districts <@=>144(5) —Teachers—Compensation.
    Rev. St. 1911, art. 2772, providing that the state and county available school funds shall be used exclusively for the payment of salaries of teachers and superintendents and fees for taking the scholastic census, and that the surplus of the state fund may be used to pay janitors and for other enumerated purposes, does not authorize payments from the free school fund to a principal as janitor.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 313; Dec. Dig. «=>144 (5).]
    Appeal from Val Verde County Court; J. Q. Henry, Judge.
    Application by J. L. Dodson for mandamus to Josephine Jones, County Superintendent. Prom a judgment denying the application, the relator appeals.
    Affirmed.
    J. D. Dodson, of Dallas, for appellant. Phil B. Poster, of Del Rio, for appellee.
   FDY, C. J.

Appellant sought a writ of mandamus to compel appellee, the superintendent of public instruction for Val Verde county, to pay certain vouchers which he claimed evidenced certain sums due him for services as janitor of a public school. The court heard the application and denied the mandamus.

Appellant was the principal of school No. 1, district No. 2; and was being paid the sum of $75 out of the free school money of the state. About the same time of his employment as principal, he was also employed by the trustees as janitor with a salary of $50 a month. Vouchers were issued to appellant for his services as janitor, and the county superintendent, N. S. Jones, approved two of them before he went out of office. He was succeeded by Miss Eva Strickland, and she refused to approve the seven remaining vouchers. The matter was appealed to the county board of education, 'then to the state superintendent, and finally to the state board of education; the last two mentioned sustaining the county superintendent. No special tax was levied by schools 1 and 2, with which appellant was connected, but were run on state money alone. Appellant performed services both as principal and janitor for nine months, the time for which he was employed by the trustees. Miss Strickland resigned and was succeeded by appellee. The vouchers were not presented to her for approval.

The court found that the contract with appellant for his services as janitor was made to evade the terms of articles 2780 and 2781, Revised Statutes, which provide, among other things, that a teacher holding a first-grade certificate shall in no event receive more than $75 a month from the public free school fund. The court also found that a man named Tristan Maldanado was also employed as janitor in the same school in which appellant was employed as principal and janitor. The law could not be evaded in that way, and the vouchers granted by complacent trustees wore properly rejected by the county superintendent. It is a preposterous proposition that a country school, or two country schools, would require the services of two janitors. We are of opinion that it was never intended that the principal of a school should he paid two salaries out of the public free school money.

Tire first section of article 2772, Rev. Stats., which is cited by appellant, provides that the state and county available school funds shall be used exclusively for the payment of salaries of teachers and superintendents and fees for' taking the scholastic census, and we fail to see what aid or comfort that gives a man who is endeavoring to obtain a part of the school fund for services as a janitor, when he was drawn, for the same time pay as principal of the school. It is true that in the second section of the article cited it is provided that a surplus of such state fund may be. used to pay janitors and for other enumerated purposes, but not to increase the pay of teachers. The other articles and decisions cited do not sustain the contention of appellant.

The judgment is affirmed.


author: HADD, J.

text:
    CARR v. WRIGHT.
    (No. 1073.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1916.)
    1. Appeal and Error <®=>1051(3) — Harmless Error — Ruling on Evidence.
    Any error in allowing plaintiff to testify that T. made the contract as agent of defendant was harmless; defendant testifying that T. made it both for himself and as representative of defendant, and it appearing that after it was made the whole matter was submitted to the defendant and the terms approved by him.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167; Dec. Dig. 1051(3).]
    2. Parties <§=j84(2) — Nonjoinder — Action Against Partner — Waiver.
    Defect of the petition in suing one partner alone on the firm’s obligation is waived by defendant not interposing plea in abatement.
    [E’d. Note. — For other cases, see Parties, Cent. Dig. §§ 136, 138, 141, 142; Dec. Dig. <S=o84(2).]
    Appeal from Roberts County Court; J. E. Kinney, Judge.
    Action by J. P. Wright against J. J. Carr. 'Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. W. Sanders, of Canadian, for appellant. Coffee & Holmes, of Miami, for appellee.
   HADD, J.

Appellee, plaintiff below, sued appellant, alleging, in substance, that during the year 1915 he was the owner of a threshing outfit; that the defendant Carr, acting by and through his duly authorized agent, Sam Teague, employed plaintiff to thresh certain crops of wheat, milo maize, etc., located on the defendant’s farm; that he contracted with defendant through his agent Teague to do the threshing at 8 and 10 cents per bushel; that by the terms of the contract plaintiff was to furnish a dependent crew, consisting of engineer, separator man, and water hauler; and that defendant was to furnish the remainder of the crew and outfit consisting of men, wagons, and teams, and that feed and coal should be hauled to the thresher by such teams. In the alternative it is alleged that if no such contract was formed, then defendant was indebted to plaintiff for services rendered in threshing said crops to the reasonable amount of 8 and 10 cents per bushel; that only $10 had been paid on the account, leaving a balance due plaintiff of $309.08.

Defendant answered by general demurrer, special exceptions, and general denial, and alleged in substance as follows: That plaintiff was to have, as compensation for threshing, 8 and 10 cents per bushel, hut that plaintiff should furnish an independent crew —that is, furnish all the help necessary to properly do the threshing; that the contract set up by plaintiff was not a contract between plaintiff and defendant, but was a contract between plaintiff on one side and the defendant, and Sam Teague, who jointly owned with defendant the grain threshed, on the other side. Defendant further pleaded payment to the amount of $336.55, by reason of which plaintiff had already overpaid in the sum of $32.50, and prayed for judgment for said overplus.

A trial before a jury resulted in a verdict and judgment for plaintiff in the sum of $234, being the sum fixed as reasonable compensation for services rendered.

The first error assigned is the court erred in permitting appellee to testify that Teague made the contract with him as the agent of Oarr. Carr testified that Teague made the contract with appellee as the representative of both himself and Carr. It further appears from the statement of facts that after appellee and Teague had made the contract the whole matter was submitted to Carr and the terms approved by him. The error, if any, is therefore harmless.

The remaining assignments in various ways insist that because Teague was jointly interested in the crops with Carr, or, as is stated by several witnesses, was a partner with Carr in the grain to be threshed, no judgment should have been rendered against Carr alone for the whole amount. Appellant did not seek to abate the action because of the defect of parties defendant by sworn plea, • as required under the statute. They therefore waived this defect in the petition. "Vernon’s Say les’ Civil Statutes, art. 1906, subsec. 5; Slayden-Kirksey Woolen Mill v. Robinson, 143 S. W. 294; Sellers v. Puckett, 180 S. W. 640; Holman v. Vickery, 106 S. W. 430; St. Louis Southwestern Ry. Co. v. Parks, 40 Tex. Civ. App. 480, 90 S. W. 344; Brackenridge v. Claridge, 42 S. W. 1005.

We find no reversible error in the record, and the judgment is affirmed.

       other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    HILL et al. v. STATE et al.
    (No. 7252.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 29, 1916.)
    1. Peocess @=>6 — Amendment of Pleading —New Cause of Action.
    When a defendant has once been served with ' citation, he must take notice of any amendment of the petition not setting up a new or additional cause of action, but when "the amendment presents an additional or new cause of action, citation must be issued thereon and served on him to authorize judgment by default thereon.
    [Ed. Note. — Por other cases, see Process, Cent. Dig. § 5; Dec. Dig. <@=>6.)
    2. Judgment <®=5>17(1) — Default Judgment —Tax Judgment.
    Where, in a suit by the state for unpaid land taxes, the amended petition sued for a much larger amount than the original, claiming laxes for additional years, and a number of defendants sued in the first were not joined in the second, the cause of action was changed, and default judgment on the amended petition without service of citation thereon was unauthorized.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 25; Dec. Dig. <S=>17(1).]
    3. Judgment <®=»101(1) — Default Judgment —Tax Judgment — 'Verification.
    Under Rev. St. art. 7688, requiring petition in suit to collect delinquent taxes to be verified, etc., an unverified petition in such suit will not support judgment by default.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 168, 170; Dee. Dig. <S==>101(1).3
    Error from District Court, Harris County; Cbas. E. Asbe, Judge.
    Suit by the State against H. Masterson and others, in which amended original petition was filed, making additional defendants, George A. Hill and another, and also a second amended original petition, making defendants George A. Hill and others. Judgment for the State, and defendant George A. Hill and others bring error.
    Reversed and remanded.
    Geo. A. Hill, Jr., of Houston, for plaintiffs in error.
   PLEASANTS, C. J.

The state of Texas brought this suit against H. Masterson and five other defendants, one of whom was plaintiff in error Julia Hill, to recover $484.-94 alleged to be the amount of the state and county taxes due for the years 1901, 1904, 1905, 1907, and 1908 on a tract of land which was described in the original petition as “1,000 acres of land in the David Harris survey, abstract No. 26, said 1,000 acres being the same property referred to in a deed from Mrs. Annie H. Boxley to H. Masterson, dated and recorded in volume 145, page 28 of the deed records of Harris county, Tex., all said property being situated in the county of Harris in the state of Texas.” By an amended original petition filed on April 12, 1913, additional defendants were made, among whom were plaintiffs in error George A. Hill and Raymond Hill. The amount claimed by the amended petition was $724.-12, state and county taxes for the years 1901 and 1904 to 1911, inclusive, upon land described as in the original petition. Plaintiffs in error George A. Hill, Julia Hill, and Raymond Hill, were duly served with citation on said amended petition, but did not appear or answer in said cause. On June 18, 1915, a second amended original petition • was filed, in which only the plaintiffs in error and J. J. Sweeney and the Texas Town Lot & Improvement Company were made defendants. The amount claimed in this petition was $835.91, “taxes due for the year 1901 and the years 1904 to 1914, inclusive, on 949 acres of land, more or less, in the David Harris survey, and being the unsold portion of a 1,000-acre tract conveyed by Mrs. Annie Boxley to H. Masterson.” This petition was not verified by affidavit of the attorney who brought the suit, nor of the county judge of Harris county, as required by the statute. No citations were issued on this petition, and no answers were filed, and no appearance made by any of the plaintiffs in error. On July 12, 1915, judgment by default was rendered on said second amended petition in favor of the state of Texas against plaintiffs in error and J. J. Sweeney and the Texas Town Lot & Improvement Company for the sum of $1,081.95, and foreclosure of tax Ren for said amount on 929 acres of land out of the David Harris survey in Harris county.

Plaintiffs in error ask a reversal of this judgment upon two grounds: Eirst, because they were not served with citation upon the second amended petition on which the judgment was rendered,- and did not answer or make any appearance in said cause, and the amount claimed in said petition being larger and being taxes claimed for additional years to those mentioned in the petition upon which plaintiffs in error were cited, and the claim not being against all of the defendants named in the petition on which they were served with citation, the trial court was not authorized to render a default judgment against them; and second, that the judgment was not authorized because the petition upon which it was rendered was not verified as required by the statute. Both of these objections to the judgment are valid and must be sustained.

It is unnecessary to cite authorities on the proposition that a judgment by default is unauthorized when the defendant against whom it is rendered has not been served with citation and has not answered or made appearance in the cause. When a defendant has once been served with citation, he must take notice of any amendment of the petition which does not set up a new or additional cause of action, but when the amendment presents an additional or new cause of action, citation must be issued thereon and served on the defendant to authorize a judgment by default upon such new or additional cause of action. The cause of action alleged in the petition upon which the judgment was rendered was not the same as that alleged in the petition upon which plaintiffs in error were served with citation. The amount sued for was much larger and is claimed as taxes for other years in addition to those mentioned in the first amended petition, and a number of the defendants who were sued jointly with plaintiffs in error in the first amended petition were not sued by the petition on which the judgment was rendered. Franklin v. City of Houston, 22 Tex. Civ. App. 459, 54 S. W. 913.

It is provided by article 7688 of our Revised Statutes that a petition in a suit to collect delinquent taxes “shall be verified by the affidavit of” the attorney bringing the suit, “or the county judge, to the effect that the averments contained in said petition are true to the best knowledge and belief of affiant.” It has been held, and we think correctly, that an unverified petition in a suit of this kind will not support a judgment by default. Cockrell v. State, 22 Tex. Civ. App. 568, 55 S. W. 579.

For the reasons indicated, the judgment of the court below against plaintiffs in error is reversed and the cause remanded.

Reversed and remanded.
      «SxsaiTor other cases see samp topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    WHITCOMB v. STATE.
    (No. 4249.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.
    On Motion for Rehearing, Dec. 20, 1916.)
    1. Criminal Law <@=1076(4) — Appeal—Recognizance. _
    _ Under the express provisions of Code Cr. Proc. 1911, art. 920, an appeal in a misdemeanor case tried in the county court can only be perfected by entering into a recognizance in open court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2711-2718; Dec. Dig. <@=1076(4).]
    2. Criminal Law <@=1076(4) — Appeal—Jurisdiction — Recognizance.
    An appeal bond will not answer the purpose of the recognizance required by Code Cr. Proc. 1911, art. 920, to perfect an appeal in a misdemeanor case tried in the county court, nor will it confer jurisdiction on the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2711-2713; Dec. Dig. <@= 1076(4).]
    3. Criminal Law <@=1076(4) — Appeal—Jurisdiction — Recognizance-
    An instrument in the form prescribed for a recognizance, but which, instead of being taken in open court and made a matter of record, is signed by the obligors, approved by the judge, and signed by the clerk, is not a recognizance such as is required by Code Cr. PToc. 1911, art. 920, to -confer jurisdiction on the Court of Criminal Appeals on appeal in a misdemeanor case tried in the county court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2711-2713; Dec. Dig. <@= 1076(4).]
    On Motion for Rehearing.
    4. Courts <@=116(2) — Minutes—Alteration by Clerk.
    After adjournment of the county court, the county clerk had no authority without permission to add to or take from the minutes approved by the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 371; Dec. Dig. <@=116(2).]
    5. Criminal Law <@=1076(4) — Appeal—Recognizance — Entry Nunc Pro Tunc.
    The county judge is without authority after adjournment to order that a recognizance, taken but not entered in the minutes for the term, shall be entered nunc pro tunc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2711-2713; Dec. Dig. • <§= 1076(4).]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Mrs. Lacy Whitcomb was convicted of vagrancy, and appeals.
    Affirmed, and motion for rehearing overruled.
    Kay & Seagler, of Palestine, for appellant. J. J. Strickland, Co. Atty., of Palestine, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of vagrancy in the county court, from which judgment she prosecutes this appeal.

There are several bills of exception in the record, but the Assistant Attorney General has filed a motion to dismiss this appeal on the ground that this court is without jurisdiction, and attaches to said motion the following certificate of the county clerk of Anderson county:

“I, J. I. Hopkins, clerk of the county court in and for Anderson county, Tex., do hereby certify over my official signature and seal that in cause No. 7009, styled State of Texas v. Mrs. Lacy Whitcomb in the county court of Anderson county, Tex., and now on appeal in the Court of Criminal Appeals of Texas, do hereby certify that the appeal bond filed was never recorded in the minutes of the court; said bond is dated April 21, 1916, and is signed by Mrs. Lacy Whitcomb as principal and O. Mi. ICay, F. E. Dublin, and R. V. Snaer as sureties; that this said appeal bond is the only bond ever filed by the said Mrs. Lacy Whitcomb and is the bond that the case was appealed on, and is the bond that was filed in my office and placed with the papers and copied into the transcript; that said bond was never recorded on the minutes of this court, and no bond in her case was ever recorded on the minutes of this court, and no recognizance in her case was ever copied on the minutes of this court; and the above appeal bond dated April 21, 1916, was the only bond or recognizance tendered me, and the only bond of any description filed in this court after her conviction.”

An appeal in a misdemeanor case, tried in the county court, can only be perfected by entering into a recognizance in open court. Article 920, Code of Criminal Procedure; Maxey v. State, 41 Tex. Cr. R. 556, 55 S. W. 823; Quarles v. State, 37 Tex. Cr. R. 362, 39 S. W. 668; Koritz v. State, 27 Tex. App. 54, 10 S. W. 757. An appeal bond will not answer the purpose of a recognizance, nor confer jurisdiction on the Court of Criminal Appeals. Palmer v. State, 63 Tex. Cr. R. 614, 141 S. W. 109; Herron v. State, 27 Tex. 337; Cook v. State, 8 Tex. App. 671; Arnold v. State, 3 Tex. App. 437; Bacon v. State, 10 Tex. 98; Saufly v. State, 83 S. W. 710. In Jones v. State, 1 Tex. App. 4S6, an instrument of the character and kind shown by this record to have been executed by appellant is held to be an appeal bond and conferred no jurisdiction on this court. For other decisions so holding, see Bennett v. State, 192 S. W. -, decided at the last sitting of this court.

The appeal is dismissed.

On Motion for Rehearing.

Appellant has filed a motion asking that the order dismissing this case be set aside, and attached to said motion is the certificate of the county judge of Anderson county in which he certifies that he in fact took a recognizance, but that it was not entered in the minutes of the court for the term. The term of court at which appellant was tried adjourned the 1st day of last July, and after this court had dismissed this appeal, copying therein the certificate of the county clerk of date November 4, 1916, appellant or her counsel goes to the clerk, and without any order of the court, so far as the record discloses, has the clerk to copy the instrument filed, and so certify on the 14th day of November, 1916. The clerk after the adjournment of court, without permission, had no authority to add to or take from the minutes as approved by the court; but, had the court ordered the bond entered nunc pro tunc, he would have no authority to do so, as has ■been frequently decided by this court.

The questions here presented have heretofore been passed on by this court, and we do not deem it necessary to discuss them again. In Maxey v. State, 41 Tex. Cr. R. 556, 55 S. W. 823, this court held:

“The Assistant Attorney General has filed a motion to dismiss the appeal, because there is no recognizance in the record, nor a certificate that appellant is confined in jail. In reply to this, appellant has filed an affidavit of the county judge to the effect that a recognizance was actually taken in open court. This is not sufficient. The recognizance should have been entered of record in the final minutes of the court. A ‘recognizance’ is an undertaking entered into before a court of record in session by a defendant in a criminal action and his sureties, by which they bind themselves, etc. The requisites * * * are pi'escribed by our statutes. Articles 303, 308, 886-888, Code Grim. Proc. From an inspection of these articles it is evident that, whatever the court may have done in the way of taking recognizance, it is not perfected until this recognizance is entered of record in the final minutes of the case. 20 Am. & Eng. Enc. of I^aw (1st Ed.) 471. In Quarles v. State, 37 Tex. Cr. R. 362 [39 S. W. 668], it was held that the entry of this recognizance could not be made nunc pro tunc, so as to give this court jurisdiction. In Thompson v. State, 35 Tex. Cr. R. 505 [34 S. W. 124, 612], it was held it was the duty of appellant to see that this recognizance was entered of record before the adjournment of the court, and that such recognizance could not afterwards be amended. And see Dement v. State, 39 Tex. Cr. R. 271 [45 S. W. 917], We accordingly hold that, in order to give this court jurisdiction, it is necessary not only that the recognizance be taken, but that such recognizance be entered of record during the term at which the appeal was taken.”

For list of authorities of recent date, see Knowlton v. State, 169 S. W. 674.

The motion for rehearing is overruled.
      <®c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. PRENDERGAST. P. J.

text:
    EMERSON v. STATE.
    (No. 4295.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.
    On Motion for Rehearing, Dee. 27, 1916.)
    Weapons <©=^10 — Manner op Carrying — “About tiie Person.”
    A pistol carried in the box of a buggy seat is carried “about the person” of the driver.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 9; Dec. Dig. >®=5l0.
    For other definitions, see Words and Phrases, First and Second Series, About the Person.]
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Robert Emerson was convicted of unlawfully carrying a pistol and appeals.
    Affirmed.
    S. M. Adams, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully carrying a pistol and assessed the lowest punishment.

The only question is as to the sufficiency of the testimony to sustain the conviction. We have read it carefully, and we think it is sufficient. Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Mayfield v. State, 170 S. W. 308, and cases there cited.

The judgment is affirmed.

HARPER, J., absent.

On Motion for Rehearing.

PRENDERGAST. P. J.

Appellant insists that under the statute and decisions of this court, the evidence did not establish his guilt, and that the cases cited in the opinion were inapplicable. This court, in the very recent ease of Wagner v. State, 188 S. W. 1001, 1002, expressly quoted and approved the contention and argument of the state, as follows:

“The information alleged that the pistol was carried on and about the person, and we * * * submit that the weight of authority is with the proposition that a pistol under or behind the cushion of a vehicle on which the driver sits is carried about the person. The Legislature must have meant something when it used the words, ‘or about the person,’ and, on principle, using the word ‘about’ in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could, without materially changing his position, get his hand on it; otherwise every person having a vehicle would be authorized to keep prohibited weapons in his vehicle and within reach of his hand, ready for action, and thus fill our streets and highways with armed men, while peaceful pedestrians and passengers or guests in such vehicles would not be so exempt from the law.”

We also quoted and approved the propositions from the authorities laid down by Mr. Branch, in his An. P. C., § 974, as follows:

“ ‘A pistol in a basket on one’s arm is carried “about the person.” Johnson v. State, 51 Tex. Cr. R. 648, 104 S. W. 902.’
“ ‘A pistol on the wagon seat or under the buggy cushion on which defendant sat is carried “about his person.” Garrett v. State, 25 S. W. 285; Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Mayfield v. State, 170 S. W. 308.’
“ ‘A pistol in the bottom of the buggy in which defendant rode is “about” his person. De Friend v. State, 69 Tex. Cr. R. 329, 153 S. W. 881.’
“ ‘A pistol under a buggy seat is “about” the person. Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384.’ ”

The uncontroverted testimony, we think, brings this case clearly within these decisions and statute, both in spirit and in letter.

Mr. Castleberry, the deputy sheriff, testified: That on the day he arrested appellant for carrying a pistol, he received information that he had a pistol out at Mr. Hodges’. That he went from town out there about ten miles, and found appellant in a buggy, out in front of the bouse, with Mr. Hodges’ daughter. 1-Ie called him off away from the girl and buggy and told him of his information. He denied that he had a pistol, and told the officer he could search him. The officer did search him, and found no pistol on his person, yet did find on his person four pistol cartridges. That he then stepped back towards the buggy and the defendant also started back, but he told him to stay back. That he went to the buggy, raised the cushion, and found a pistol in the box of the seat. That he could see it through the cracks in the box of the seat, the lid of which was made of slats. That he took the pistol out. It was a .38 caliber and had three snapped and two loaded shells in it. The four cartridges he had gotten off of defendant’s person were of the same caliber and character as those in the. pistol. He names two, and says that there were one or more persons present at this time.

Appellant himself testified, and did not deny anything that the officer had testified, but testified that on the Monday before his arrest at the time on Saturday, he had said pistol out at the lot at his father’s where he lived, and snapped it three times at an owl, and that the pistol fired once; that after taking the empty from the chamber, he put in one shell, placed the pistol under the buggy seat in the box of the seat, where it was found by the officer; that the pistol remained there from that time until he was arrested, as stated; that he never saw or handled it after he had so placed it on Monday evening; That he rode from his home to Mr. Hodges’ in the buggy, several miles, with the pistol therein, as stated.

The motion is overruled.
      <&xoFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes