text:
    PRIDDY et al. v. TABOR et al.
    (No. 8373.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 6, 1916.
    Rehearing Granted June 24, 1916.
    Rehearing Denied Oct. 21, 1916.)
    1. Homestead &wkey;>118(3) — Community Property — Deeds—Validity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3594, providing that if the wife becomes insane, the husband shall have excldsive control of community property, and she need not join in conveyances thereof, and Const, art. 16, § 50, prohibiting sale of homestead by.husband without wife’s consent a deed of the husband during the wife’s insanity, granting the homestead, though in consideration of debts of the community, but without a showing of necessity thereof, is invalid.
    [Ed. Note. — For other cases, see Homestead, Cent.Dig. §§ 192, 195. 204; Dec.Dig. &wkey;118(3).J
    2. Appeal and Error <&wkey;934(2) — Scope — Presumptions.
    If it is a controlling issue whether the deed of the husband alone, during the wife’s insanity, granting community property, was for necessities of the community, and there is evidence sufficient to sustain finding that the sale was not necessary, and the court, without making such finding declared the sale, invalid, such finding would be presumed in aid of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <&wkey;934(2).]
    3. Homestead <&wkey;>118(2) — Community Property — Sales by Husband — “Necessary Sale.”
    Where the only community property was the homestead, which the husband sold for payment of debts. of the community, such sale was not a necessary sale in a legal sense, since the homestead in no event was subject to payment of the debt.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 203, 204; Dec. Dig. &wkey;HS(2).]
    4. Trial <&wkey;71 — Hearing op Evidence — Powers of Court.
    Independent of statute, courts retain control over judgments during term time and may set aside, correct, or reform them, so that it was not error for the court on motion for new trial to open the case to hear additional evidence; it being presumed that such evidence was made necessary by the motion for new trial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 167; Dec. Dig. @^71.]
    ’5. Trial <&wkey;72 — Hearing op Evidence — , Powers op Court. ,
    That the court, after reopening a case to hear testimony on a single issue, refused to hear additional testimony by the adverse parties who did not allege that their testimony was in rebuttal of that then introduced, but who sought to introduce new testimony which could not in any way affect the result, was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 168; Dec. Dig. <&wkey;>72.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Suit by Dora Tabor, for herself and as next friend of Etta May and Myrtle Alice Tabor, infants, against W. M. Priddy, in which Charles Hill and M. H. Moore were, on defendant’s motion, impleayded. Decree for plaintiffs in part, with judgment over for Priddy against Hill and for Hill against Moore, and Moore and Hill appeal.
    Af: firmed.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellants. S. O. Jones and Fitzgerald & Cox, all of Wichita Falls, for appellees.

      Writ of error pending in Supreme Court.

   DUNKLIN, J.

Lots Nos. 1 and 2, adjoining each other and situated in McBride’s first addition to the city of Wichita Falls, was the community property of S. H. Tabor and his wife, Dora Tabor, and lot No. 2 and a strip off the rear end of lot No. 1, 65 feet.in length and of the entire width of the lot, constituted the homestead of the family.

On June 22, 1912, Mrs. Dora Tabor was duly adjudged insane by the county court of Wichita county. As a part of that, decree the court ordered that she be conveyed to one of the asylums of the state for the insane. She was then placed in. the county .jail' by the sheriff, presumably to await accommodations in the asylum, as it is a matter of common knowledge .that such institutions ‘are inadequate to care for all such wards of the state.

On June 27th following, S. H. Tabor executed a bond payable to the state, conditioned that he himself would restrain and properly- care for his wife as long as her mental unsouhdness should continue, or until he should return her to the custody of the sheriff; and upon the execution of that bond she was discharged from the jail and her custody intrusted to her husband.

■ On August 6,-1912, S. H. Tabor returned her to the custody of the sheriff by reason o'f the fact that her mental condition had grown worse, and he "was unable to properly care for her. Thereupon she was again incarcerated in the county jail, and there confined until September 23, 1912, when she was finally discharged, and she has been of sound mind ever since.

On September 4, 1912, during her last incarceration. in the county jail and while she was insane, S. H. Tabor sold all of lot No. 1 to M. H. Moore by a deed of conveyance executed by him alone and without the signature and acknowledgment of his wife, as required by the Constitution and statutes for a valid conveyance of the homestead. It is reasonably apparent from the record that while Mrs. Tabor was confined in the county jail, and at the time of the sale to M. H. Moore, S. H. Tabor, with the two minor children of himself and Mrs. Dora Tabor, continued to occupy and claim the same property as a homestead, which had theretofore been the homestead of the family, and which had been noted above. Lot No. 2, upon which was situated the dwelling house of the family, was never sold, and when Mrs. Tabor was released from the county jail she returned thereto and has occupied it as her home ever since.

The total consideration for the conveyance from S. H. Tabor to M. H. Moore was $565, of which amount $350 was evidenced by seven promissory notes executed by the grantee to the grantor for $50 each; $100 was 'paid in cash, and $115 was paid by the cancellation of an account in that sum then due M. H. Moore, who was a physician, for professional services rendered S. H. Tabor and his family during the year 1912. Later S. H. Tabor executed a release of the vendor’s lien on the lot in consideration of the full payment of said notes. M. H. Moore then sold the lot so purchased from S. H. Tabor to Charles Hill, who in turn sold it to W. M. Priddy. All the deeds mentioned above were duly recorded.

S. H. Tabor died November 1, 1913. On November 19, 1914, Mrs. Dora Tabor, for herself and as next friend for Etta May Tabor and Myrtle Alice Tabor, minor children of herself and S. H. Tabor, instituted this suit against W. M. Priddy in the form of trespass to try title to recover all of lot No. 1 so sold to M. H. Moore by S. H. Tabor. Plaintiff also pleaded specially that defendant was claiming title under some character of deed to him and his vendors executed by S. H. Tabor, but that such conveyance was invalid by reason of the fact that at the time of the execution of such deed by S. H. Tabor the property was a part of the homestead oí S. H. Tabor and his family, and the deed was never executed by his wife, Mrs. Dora Tabor.

The defendant Priddy, in addition to a plea of not guilty and a plea of innocent purchaser for value, and a plea of valuable improvements placed upon the lot by him in good faith, interpleaded his vendor Charles Hill, who likewise interpleaded his vendor, M. H. Moore, each of said vendees praying judgment on the warranty of title to him. Hill and Moore each filed an answer 'adopting the pleas filed by Priddy. By supplemental petition plaintiff denied the facts set forth in all those pleas.

Lot No. 1 was 170 feet in depth, a portion of which, 105 feet in depth, measured from the front and the entire width of the lot had been separated from the remainder by a fence and had been rented out. Plaintiffs were, denied a recovery for that portion of the lot, but judgment was awarded in their favor against all defendants for the remainder, which was the rear portion of the lot, and also for rents. Judgment was also rendered on the warranties of title given by Moore and Hill in favor of their respective vendees. Defendants Moore and Hill have appealed from the judgments in plaintiffs’ favor.

No findings of fact were filed by the trial judge who tried the case without the aid of a jury, but it is apparent that the recovery awarded was upon a finding, which was amply supported by the evidence, that the portion of the lot so recovered by plaintiffs was a part of the homestead of S. H. Tabor and his wife at the time of the sale to M. H. Moore, and that as the deed to Moore by S. H. Tabor was not executed and acknowledged by Mrs. Dora Tabor, it conveyed no title. Whether that conclusion was correct is the principal question presented by appellants here.

In Shields v. Aultman-Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219, in which a writ of error was denied by our Supreme Court, the sale of the homestead by the husband alone while his wife was hopelessly insane was held to be a valid sale; and the evidence showed that the property constituting such homestead was the community property of the two. In the opinion rendered in that case, following a reference to the statutes authorizing the appointment of guardians of the estates of insane persons, and giving to the husband a preference right to such appointment for the estate of his insane wife, the court said:

“In the case under consideration the property was 'community property, and the homestead at the time of the sale, and was never abandoned, according to the findings of the jury upon the special issues submitted. Had the wife been sane, her consent to its alienation, expressed in the way; provided by law, must have been obtained, in order to give the sale validity. Her personal consent was rendered impossible by her insanity. To have resorted to the guardianship proceeding would not have obtained her consent, and, unless the husband had authority to separately convey, the property was hopelessly tied up in his 'hands. It is an old-established maxim that the law never requires impossibilities. We think it also clear that courts ought not to construe laws regulating the conveyance of property so as to unnecessarily and unreasonably interfere with personal proprietorship therein. It is' admitted in the pleadings of the parties, and an unquestioned fact in the case, that the wife was hopelessly insane when the property was occupied as a homestead; that she was in an insane asylum in St. Louis at the time it was sold by the husband; and that she has remained there, and continued insane, since. Under these conditions we think the husband had the right to sell the property.”

As a second ground for sustaining the validity of that conveyance the court found as a fact that after the conveyance was executed the husband permanently abandoned the property as a homestead, and that the abandonment had continued for a number of years before the acquisition of the property by Aultman-Miller & Co., who purchased it in good faith and for value, and held that after such abandonment the deed executed by the husband before the abandonment became effective; citing in support of that conclusion Marler v. Handy, 88 Tex. 422, 81 S. W. 636.

In Gilley v. Troop, 146 S. W. 954, this court sustained the validity of a conveyance of a homestead by the husband alone, while his wife was temporarily insane, and a writ of error was likewise denied in that case by the Supreme Court. That decision was based on two grounds: The first, because of the inability of the wife, through her insanity, to join in the conveyance, and upon the reasoning based upon that condition advanced in the decision in Shields v. Aultman-Miller & Co., supra, and the second upon the fact that the husband, after his wife had become insane, in good faith¡ and before the execution of the deed, had abandoned the homestead, which was his separate property, and had acquired another home in another state. In our opinion in that ease reference was made to the fact that the insanity of the wife was temporary only, while in the Shields Case the insanity of the wife was permanent; but we reached the conclusion that such difference in the facts would not require a different conclusion upon the issue of the authority, vel non, of the husband to convey the homestead without being joined by his wife in the deed of conveyance.

Article 3594, 2 Vernon’s Sayles’ Texas Civil Statutes, reads:

“Where the wife dies or becomes insane, leaving a surviving husband and child, .or children, the husband shall have the exclusive management, control and disposition of the community property in the same manner as during her lifetime, or sanity; and it shall not be necessary that the insane wife shall join in conveyances of such property, or her privy examination and acknowledgment be taken to such conveyances, subject, however, to the provisions of this chapter.”

In order for the husband to avail himself of the authority given by the foregoing statute, other articles of the same chapter of the statutes require him to make application to the county court therefor, to return an inventory and appraisement of such community estate, and to execute a bond in a sum equal to the value of the entire estate.

In Gibson v. Pierce, 146 S. W. 983, the Court of Civil Appeals of the Eighth District held that in the absence of a compliance with the provisions of those statutes, the husband, during the insanity of the wife could not convey her one-half interest in lands belonging to the community estate of the two spouses, even though, in so doing, he acted in good faith and not for the purpose of defrauding his wife. But our Supreme Court granted a writ -of error in that case, reversed the decision of the Court of Civil Appeals, and sustained the validity of the conveyance of the entire title. In that case it appeared that the vendee of the husband, in part consideration .for the conveyance, assumed payment of a community debt secured by mortgage lien upon the land, the debt having been incurred and the mortgage given while the wife was insane, but which debt lacked ten months of being due -at the time of the conveyance, and the Supreme Court’s decision was upon the hypothesis that the sale was made for the purpose of paying that indebtedness, although it does not appear that there was any specific finding of that fact by the jury, nor by the Court of Appeals. It was held that when the wife is insane, the right of the husband to sell community property for the purpose of paying community debts, without complying with the provisions of the statutes mentioned above, is the same as his right to sell such property for the purpose of paying community debts after the death of the wife without any administration upon her estate; that the powers conferred by statute for administration upon community property when the wife is insane are cumulative to his authority, independent of the statute, to make such sales for the purpose of paying community debts. In that case the land in controversy consisted of a tract of some 730 acres, 200 acres of which was the homestead of the family when the wife became insane, and continued such homestead for some years thereafter, but was abandoned by the husband during said mental condition of his wife. The act of such abandonment of the homestead having been in good faith on the part of the husband, it was held by the Supreme Court, in effect, that the question of the right of the husband to sell the homestead during the insanity of his wife was not involved. See Pierce v. Gibson, 184 S. W. 502.

In the present suit, the good faith of the husband in the sale to M. H. Moore, was not questioned; in other words, there was no contention that he made the sale for the purpose of defrauding his wife of her community or homestead rights in the property.

We are of the opinion that the conclusion reached in the case of Shields v. Aultman-Miller & Co., and in Gilley v. Troop, discussed above, in effect, that the insanity of the wife, even though the same was of a permanent character, would of itself authorize the husband alone to convey the homestead, was unsound. The denial of a writ of error by our Supreme Court in each of those cases does not necessarily imply an approval of that conclusion by the Supreme Court, since, as shown already, the decision in each of those cases was predicated also upon a finding of fact that the husband had abandoned the property as a homestead; in the Shields Case the abandonment occurring after the deed was executed, and in the Gil-ley Case tlie abandonment occurring before the execution of the deed in controversy.

Section 50 of article 16 of our Constitution expressly. prohibits the sale of the homestead by the husband without the consent of the wife, given in such manner as may be prescribed by law; and by statutory enactment in order to convey the homestead it is required that the wife shall join with the husband in the deed thereto, and to privily acknowledge the same before an of-.iicer authorized to take acknowledgments. To give effect to the deed of S. H. Tabor in controversy in this suit clearly would be to violate the express provisions of the Constitution and statute, and, in order to uphold it, it would be necessary to bring it within some authorized exception, if any there be, to those enactments. By a long line of decisions of this state, beginning with Wright v. Hayes, 10 Tex. 135, 60 Am. Dec. 200, an exception has been ingrafted upon the statutes of this state which authorize the husband alone to control, manage, and dispose of community property of himself and wife other than the homestead. According to those decisions, when the husband has abandoned the wife, leaving such property, she is authorized to dispose of it, whenever such disposition becomes necessary for the support of herself and family. In Cheek v. Bellows, 17 Tex. 617, 67 Am. Dec. 686, the Supreme Court said:

“She and her children are entitled to a support from the property; and if the husband is absent, there is no reason or rule of law that would prohibit the wife from making a contract to meet the necessities of the case. It would be a strong case that would permit her to go further.”

In Heidenheimer v. Thomas, 63 Tex. 287, it was held that. a deed to the homestead, executed by a wife during the insanity of her husband, was invalid. That deed was executed in consideration of the satisfaction of a debt owing by the husband and the property, which had a rental value of $40 or $50 per month, was the only means of support left to the family. After reviewing the authorities authorizing the sale by the wife of community property to supply the necessities of the family, when her husband has abandoned her, and in holding that that rule did not apply to the deed there under consideration, the 'Supreme Court used the following language:

“If such a rule existed, it could only spring from the necessity of the family to have a support; to which the sale, in the case under consideration, could in no manner have contributed. Upon the contrary, such a sale would have deprived the family of the only piece of property which could have contributed to its support.”

The cases of Shields v. Aultman-Miller Company and Gilley v. Troop, are the only decisions in this state which we have found holding that the insanity of the wife would of itself authorize the husband to execute a valid conveyance of the homestead before the same is abandoned as such, and those decisions are contrary- to all tile decisions in other states which we have been able to find upon that question. In 21 Cyc. 541, discussing the sale of homestead, it is said:

“If the husband or wife is insane when the joint conveyance or mortgage is executed, the conveyance is invalid.”

Several decisions in states other than Texas are cited in support of -that text, one of which is Thompson v. N. E. Mortgage Security Co., 110 Ala. 400, 18 South. 315, 55 Am. St. Rep. 29. In that case a- deed of conveyance of the homestead signed by the husband and also by the wife, who was insane at the time, was held to be void, and in the decision the following was said:

“The.purpose of the statutes in securing an exempt homestead to every resident of the state, and in requiring the wife’s voluntary signature and assent to any alienation thereof when belonging to the husband, is to protect the wife, and through her the family, in the enjoyment of a dwelling place. Turner v. Bernheimer, 95 Ala. 241 [10 South. 750], 36 Am. St. Rep. 207. 'This court, as well as those in other states having a similar system, has adopted a strict rule on this subject, in accordance with which it is generally held that to convey the homestead there must be a strict compliance with the statutory mode of alienation. * * * The insanity of the wife does not dissolve the bond of marriage, nor withdraw her or her family from the beneficent purpose of the homestead laws. The statute is plain, unambiguous and admits of no exceptions, which would destroy its obvious design. If the occupant be a married man, the voluntary signature and assent of the wife, evidenced in the manner prescribed, are essential -to a valid alienation of the homestead, unless the conveyance be made to her. Efforts have been made to in-graft other exceptions, arising out of the supposed necessities of the case, upon similar statutes, but they have uniformly failed.”

Numerous decisions are cited in the opinion to support the holding so expressed. In Withers v. Love, 72 Kan. 140, 83 Pac. 204, 3 L. R. A. (N. S.) 514, the Supreme Court of Kansas reviewed the authorities at length upon the question now under consideration and reached the same conclusion as did the Supreme Court of Alabama ■ in the case last cited. Among other authorities the case of Shields v. Aultman-Miller Company is cited, but is criticized as unsound. To the same effect are Alexander v. Vennum, 61 Iowa, 160, 16 N. W. 80; Adams v. Gilbert, 67 Kan. 273, 72 Pac. 769, 100 Am. St. Rep. 456; Ballenger v. Lester, 113 Ky. 96, 67 S. W. 266; Curry v. Wilson, 45 Wash. 19, 87 Pac. 1065.

' In the' present suit there ! was' evidence sufficient to sustain a finding that the salé of the lot in controversy by S. H. Tabor to M. H. Moore w'as not made for the purpose of paying the' community debt of $115 then owing to 'Mooré' for professional services; and if that were the controlling issue -in the case as it was in the decision by the Supreme Court, in Pierce v. Gibson, such a finding would be presumed in support of the judgment. But even though - the evidence had shown, and the trial court had found, that said sale was made for the purpose of paying that debt, the rear -portion of lot No. T, which constituted a part of tie homestead,- and judgment for which was rendered in favor of Mrs. Dora Tabor and her children, was not subject to the xsayment of that account. Hence it cannot be said that the sale of that part of lot No. 1 was necessary, in a legal sense, to pay that debt. Nor was there any showing in the evidence that any part of. the consideration was necessary for the support of the family, nor that the husband sold the same for the purpose of reinvesting the proceeds in another homestead. The case merely shows a sale of a part of the homestead by the husband alone, without being joined in the sale by his wife, and without first abandoning the property as a homestead and without any showing of any necessity therefor. The sale in controversy was clearly in violation of the Constitution and statutes, and according to the reasoning of the Supreme Court in Heidenheimer v. Thomas, and authorities there cited, it could not, in any event, be sustained in the absence of a showing of some necessity therefor, and even though it could be said that necessities, such as indicated above, would create a proper exception to the constitutional and statutory restrictions against his power to sell the homestead without the consent of his wife, the case does- not come within any such exception, and for the reasons above given we hold that the. sale of the roar end of lot No. 1, which constituted a part of the homestead, was invalid, and, accordingly, the opinion heretofore rendered by us, in which we reached a conclusion adverse to the foregoing, is withdrawn. That conclusion renders it necessary to dispose of other assignments of error presented by appellants which were not considered upon the original hearing, and those assignments will now be discussed. ' .

The trial of the case was on the 25th day of May, 1915, at which time a judgment was rendered in favor of plaintiffs for a strip off the rear end of lot No. 1, the lot in controversy, 85 feet in length and the width of the lot. The court also at that time rendered judgment in favor of Priddy against his vendor, defendant Hill, for $75, and in favor of Hill against defendant Moore for the same sum; such judgments over being upon the respective covenants of warranty of title in the deeds of conveyance executed by the defendants to each other. Defendants Priddy, Moore,, and Hill all filed motions to set aside that judgment and grant a new trial of the case.

Those motions were heard on July 20,1915, during the same term of court at which the judgment had been rendered. Upon that hearing the trial judge, upon his own initiative and over the objection of defendants Hill and Moore, heard further testimony, after which he reformed the judgment theretofore rendered so as to reduce the portion of the lot in controversy awarded to plaintiffs from a length of 85 feet, as originally decreed, to a length of 65 feet, and so as to iucrease the amounts of judgments over in favor of defendant Priddy against Hill to $275, and $16.50 interest thereon, and in favor of Hill against Moore to $275, with $24.75 interest thereon; such judgments over being upon the respective warranties óf title given to those parties in the respective sales by one to another.

It appears that the court had intended to give judgment for plaintiffs for all that portion of the lot in controversy lying north of a fence separating that portion from the remainder upon which the rented house had been erected, and which remainder was awarded to defendant Priddy; and just where this fence was located was one of the issues upon which additional testimony was heard; the only other issue upon which additional testimony was heard being the relative value of the strip 65 feet in length off of lot No. 1, that was finally awarded to plaintiffs, as compared to the consideration paid by each of the defendants for said lot in its entirety. Bills of exception contained in the record recite that at the time the court announced his intention to hear further testimony, he stated that he would overrule the motions of all the defendants for a new trial, but would hear further testimony as to the value of the land adjudged to plaintiffs, but upon no other issue. The bills recite further:

“Thereupon defendants Hill and Moore objected to reopening the case and the introduction of new testimony upon that issue alone, for the reason that said action by the court was in effect the granting, of a new trial upon that issue alone; but said defendants Hill and Moore asked that if the judgment was set aside on any issue whatever that a new trial be granted as to all parties and all issues.”

And further that:

The “defendants Hill and Moore offered to and could have proved by the defendant M. H. Moore that when he bought the property in controversy from S. H. Tabor that said Tabor owed him a large bill of about $165 for medical services, and that said Tabor owned no other property except the lot in controversy and the house and lot on which he lived, and that the witness Moore was mistaken in his testimony, upon the trial of this cause on the 26th day of May, 1915, when he testified that the said Tabor had other property, as said property had been sold by the said Tabor prior to that time, and-the said defendants Hill and Moore also offered to and could have proved by the witness Sam Wisdom that the time the said ,S. H. Tabor sold the lot in controversy to M. H. Moore that he (Tabor) owed the bill to said Moore, and in addition thereto the said Tabor owed large sums for groceries and other things, and that all such bills and accounts were community debts of the said Tabor and his wife, who was then insane, and that there was no property, either community or separate, owned by Tabor with which said debt could be paid, except the homestead and the lot in controversy, and that the said Tabor had no means of paying same except by a sale of sdid property, which said testimony was offered by the defendants Hill and Moore after the court had reopened the case upon the issue of valuation, and in effect had granted a new trial to defendant Priddy upon that one issue, but the" court refused to hear said testimony of the said witnesses M. H. Moore and Sam Wisdom, as above set out, and refused to permit sai'd witnesses to be sworn, and announced that he would not hear said testimony.”

Error has been assigned to the rulings of the court in admitting such additional testimony, and to the refusal of further testimony offered by appellants and recited in the bills of exception,. as shown above.

It thus appears that the only objection to the admission of th'e additional testimony heard was that such action was, in effect, the granting of a new trial upon one issue alone, which the court had no authority to do. There was no claim made that appellants could rebut such additional testimony by other evidence, or that appellants desired so to do, nor was there a request for time to produce further testimony upon the issue of the relative value of the strip finally awarded to plaintiffs as compared to the consideration paid by defendants for the lot as a whole. In other words, the objection urged merely challenged the legal authority of th'e court to hear such additional testimony. Independent of statutory provisions for the correction of judgments, it is a familiar rule of common law that courts retain complete control over judgments during the terms at which they are rendered, and, while such terms continue, may set aside, correct or reform them. Henderson v. Banks, 70 Tex. 398, 7 S. W. 815; Sugg v. Thornton, 78 Tex. 666, 9 S. W. 145; 23 Cyc. 859, 860. And in 38 Cyc. p. 1360, the following is said:

“A motion to reopen a case for the purpose of introducing further evidence in the cause is addressed to the sound discretion of the court, which is not subject to review, unless there has been an abuse thereof.”

Again in the same volume on page 1368:

“It is discretionary with the court what further evidence it will hear after the case has been reopened. Thus if the court grants leave to introduce further specific testimony, it is discretionary with the court whether it will permit the introduction of other evidence than that specified, and, unless an abuse of this discretion appears, refusal to permit evidence other than that specified is not ground for reversal.”

See, also, Riverside Portland Cement Co. v. Masson, 69 Or. 502, 139 Pac. 723, Ann. Gas. 1916A, 127, to the same effect, and supported by other authorities therein cited.

As noted already, the trial was by the court without a jury, and the correction and reformation of the judgment was at the same term of court during which the original judgment was rendered; and as appellants’ objection to the admission of further testimony was confined alone to á challenge of the authority of the court to thus reopen the case in part, and as they did not offer other evidence in rebuttal of that heard and made no showing that such testimony could be procured, it clearly appears that the trial judge did not abuse the discretion vested in him to hear such additional testimony. In the absence of any showing to the contrary, it must be presumed that such further hearing was necessary to the ends of justice, and that the necessity arose from a lack of sufficient evidence upon those issues, or that the action of the court in hearing it was induced by some contention presented by appellants’ motion for a new trial, which was then presented by appellants, but which does not appear in the record before us. -38 Cye. 1361, 1362.

In view of our conclusion expressed above upon the issue of the right of S. H. Tabor to sell a part of his homestead without being joined in the deed by his wife, the refusal of the court to hear the further testimony offered by appellants at the time the judgment was reformed and corrected did not constitute reversible error, since, even though it be accepted as true, it could not change those conclusions. If such testimony was true, then S. H. Tabor was iny solvent, owned no property except his homestead, which was not liable for any of the debts, and had no means of support for himself, his insane wife, and two young children, except his own labor. In our opinion such proffered testimony would tend to support, rather than militate, against our conclusions upon that issue. Heidenheimer v. Thomas, 63 Tex. 287.

For the reasons indicated, appellees’ motion for rehearing is granted, our former judgment of reversal is set aside, all of appellants’ assignments of error are overruled, and the judgment of the trial court is affirmed.
      cg^sFor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HENDRICKS, J.

license: Public Domain

text:
    THOMPSON et al. v. FIRST STATE BANK OF AMARILLO.
    (No. 1045.)

    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1916.
    On Motion for Additional Findings of Fact, Oct. 25, 1916.
    Rehearing Denied Nov. 8, 1916.)
    1. Banks and Banking <&wkey;39 — Capital Stock — Payment—Constitutional Provisions.
    A note given in payment for the capital ■stock of a bank in contravention of Const, art. 12, § 6, prohibiting the issuance of stock in a corporation, except for money paid, labor done, or property actually received, is void as between the parties.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dec. Dig. &wkey;>
    2. CORPORATIONS <&wkey;544(2) — Capital Stock-Trust Fund Doctrine.
    The capital stock of a corporation, especially its unpaid subscriptions, is a trust fund for the benefit of its general creditors.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2162; Dec. Dig. <&wkey;>544(2).]
    3. Corporations <&wkey;80(10) — Subscription to Capital Stock — Insolvency—Trust Fund Doctrine.
    In view of the doctrine whereby subscriptions to the capital stock of a corporation become a trust fund for the benefit of its general creditors, the corporation’s insolvency is a bar to a rescission of a subscription contract for fraud.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dee. Dig. &wkey;80(10).]
    4. Courts <&wkey;90(l) — Rules oe Decision..
    Because a court adopts a rule established by line of decisions upon a given question, it does not necessarily follow that it must carry such rule to its logical results where the parties occupy different relations to the subject and to each other.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-315; Dec. Dig. &wkey;90(l).]
    5. Banks and Banking <&wkey;39 — Subscription Note — Validity—Estoppel.
    A subscriber to the capital stock of a banking corporation payable by note, in contravention. of Const, art. 12, § 6, prohibiting the issuance of stock in a corporation except for money paid, labor done, or money actually received, which note had been negotiated so as to give the corporation a credit, after its insolvency, and in view of the trust fund doctrine, was estopped to assert the invalidity of the note.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dec. Dig. <&wkey;>39.]
    6. Banks and Banking &wkey;>39 — Capital Stock — Payment by Note — Issuance.
    Under Const, art. 12, § 6, prohibiting the issuance of stock in a corporation except for money paid, labor done, or property actually received, a banking corporation has no right to issue or tender its stock until the subscriber’s note is paid.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dec. Dig. <&wkey;39.]
    On Motion for Additional Findings of Fact.
    7. Banks and Banking <&wkey;>39 — Subscription Note — Action—Evidence.
    In an action by state officers in the name of a banking corporation to recover upon subscription note to it, evidence held to show that the liability of the parties on the note on the ground that it was given in violation of the Constitution, was not raised until the bank had failed and suit was brought.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dec. Dig. &wkey;»39.]
    Error from District Court, Potter County; Hugh B. Umphres, Judge.
    Action in the name of the First State Bank of Amarillo in liquidation, instigated by state officers, against E. O. Thompson and others. Judgment for plaintiff, and defendants bring error.
    Affirmed.
    Crudgington & Works, of Amarillo, for plaintiffs in error. Turner & Rollins, of Amarillo, for defendant in error.

      Application tor writ of error pending in Supreme Court.

   HENDRICKS, J.

Plaintiff in error E. O. Thompson executed to the First State Bank of Amarillo, on September 22, 1913, a promissory note for $1,000, bearing 10 per cent, interest from maturity, and prqviding for the usual 10 per cent, attorney’s fees. The consideration for the execution and delivery of the note was the contemplated issuance and- delivery of certain stock in said banking institution, and at the time of the execution of the note E. O. Thompson was a minor and L. O. Thompson, his father, signed said note as a surety. Thereafter' the First State Bank of Amarillo became insolvent, and its affairs were taken in charge by the Commissioner of Insurance and Banking of the state of Texas, and J. O. Roots as special agent, under the authority of the commissioner of banking, assumed the active charge of the liquidation of said bank, for the benefit, primarily of the creditors of said institution, and secondarily, for the stockholders. In the proceeding involving the process of liquidation this suit was instituted at the instigation of the state officers, using the name of the bank as party plaintiff, for the purpose of collecting the proceeds of said note.

Considerably prior to the insolvency of said institution, E. O. Thompson, the principal in said note, attained his majority, but the question of his minority as a defense to his liability on the paper is neither pleaded nor urged in this record.

During the time of -his minority E. O. Thompson received and retained a certain dividend on the stock of said bank, aggregating about 8 per cent., and we infer from the record that no question was ever raised in regard to the liability of either of the defendants until after the bank had failed and this particular suit was instituted.

The plaintiffs in error Thompson allege:

“That no stock nor certificate of stock was delivered or tendered to them or either of them in plaintiff’s bank as a consideration for such original note or any of the renewals thereof until after said plaintiff bank had become insolvent and such stock and all certificates thereof had become worthless.”

D. O. Thompson testified that he saw the original certificate of stock issued in Ernest’s name (the son) after the bank failed and some time after it was in the hands of the receiver.

The officers of the First State Bank discounted said note with the Guaranty Bank & Trust Company of Dallas, which credited the latter bank with the proceeds of said note on July 8, 1910, and the same note was nominally paid by said First State Bank August 19, 1910, one month and eleven days after its negotiation to the Dallas bank. The note matured on its face January 1, 1914; the First State Bank becoming insolvent April 2, 1914, the plaintiff in error E. O. Thompson attaining his majority in March, 1913.

The plaintiffs in error, defendants in the court below, confessed the cause of action, except in so far as it may be avoided by their special answer.

The trial court, at the close of the tsstimony, peremptorily instructed the jury against the plaintiff in error, and, presenting the question in many phases in this record, it is essentially contended that the note is absolutely void because in contravention of the provisions of the Constitution prohibiting the issuance of stock in a corporation except for money paid, labor done, or property actually received. Const, art. 12, § 6.

This court held, in the case of McWhirter v. First State Bank of Amarillo, 182 S. W. 684, where the facts, to a considerable extent, were similar to the record here, that McWhirter, who executed a note, in consideration of the issuance and delivery of stock in the same bank, was estopped to deny his liability upon said note, after the assets of the bank had been taken in charge by the officers of the state government, for the purpose of realizing upon said assets for the benefit of -the creditors and stockholders of that institution. In that case, as here, the note had been negotiated to the Dallas bank, and a short time thereafter returned to the First State Bank, without any real consideration having been passed between the Dallas and the Amarillo banks.

After the return by the Dallas bank to the Amarillo bank of the note in-that case, as well as in this, the note was renewed by the original makers, but in the McWhirter Case the jury found, upon the submission of an issue to them, that the renewal note in reality constituted a loan between the parties; equivalent to finding that said renewal note was not the representative of the first note executed, and hence was not given for the original stock contracted for by the maker. In the McWhirter Case, though probably not as clearly and explicitly shown as it should have been, we proceeded upon the theory that if the renewal note was not a loan, but in reality by substitution continued to represent the former note, and hence the consideration for the. stock, the insolvency of the bank, with its affairs in the hands of the government, precluded the contention under the Constitution that the note was void.

Plaintiffs in error urge with persistency and considerable force in their brief, and in a written argument, that if such a note is void ab initio, as having been inhibited by the Constitution, it is void for all purposes, and that the change in the condition of the affairs of the bank cannot have the talismanic effect of vitalizing the note.

The doctrine that the capital stock of a corporation is a trust fund for the payment of its debts — particularly so after its insolvency — contributed, as an element, to the conclusion declared in the McWhirter Case. This doctrine was established in the United States Circuit Court as early as 1824. Judge Story, in the course of an opinion, said:

“It appears to me very clear upon general principles, as well as the legislative intention, that the capital stock of banks is to be deemed a pledge or trust fund for the payment of the debts contracted by the bank. The public, as. well as the Legislature, have always supposed this to be a fund appropriated for such purpose.” Wood v. Dummer, 3 Mason (U. S.) 308, Fed. Cas. No. 17.944; Thompson on Corporations, vol. 4 (2d Ed.) § 3416.

In 1873, nearly three years before our present Constitution was ratified, the Supreme Court of the United States said of this rule:

“Though it be a doctrine of modern date, we think it now well established that the capital stock of a corporation, especially its unpaid subscriptions, is a trust fund for the benefit of the general creditors of the corporation.” Sawyer v. Hoag, 17 Wall. 610, 21 L. Ed. 731.

The Supreme Court of this state, in the case of Hdwe. Co. v. Mfg. Co., 86 Tex. 161, 24 S. W. 22, 22 L. R. A. 802, by Chief Justice-Stayton, follows the well-settled rule and quotes from Sawyer v. Hoag, supra, this language:

“The debt which the appellant owed for his stock was a trust fund devoted to the payment of all of the creditors of the company. As soon-as the company became insolvent, and this fact became known to the appellant, the right of set-off for an ordinary debt to its full amount ceased. It became a fund belonging equally, inequity, to all the creditors, and could not be appropriated by the debtor to the exclusive payment of his own claim.”

Chief Justice Stayton also quotes from Appleton v. Turnbull, 84 Me. 72, 24 Atl. 592, to this effect:

“Unpaid stock is as much a part of the assets of a corporation as the money that has been paid in upon it. * * * During the existence of the life of the corporation it is a trust to be managed for the benefit of the stockholders; but in the event of its dissolution, or insolvency, it becomes a trust fund for the benefit of its-creditors.”

It has been the settled doctrine of the-courts that corporate insolvency, as bearing upon the right of a subscriber to rescind his contract for fraud, is a bar to such rescission. Cook on Corporations, vol. 1, p. 164; Scott v. Deweese, 181 U. S. 215, 21 Sup. Ct. 585, 45 L. Ed. 828, 829. This position is also-well illustrated by the case of Burleson v. Davis, 141 S. W. 561 (writ of error denied by the Supreme Court).

It is true that our courts have adopted the theory that the prohibitive language in the Constitution of this state, with reference to the issuance of stock, except for money paid, labor done, or property actually received, restricts the same as between the parties, and does not proceed upon the theory that it is-wholly between the government and the corporation.

This court, as best it could, has followed the logic of that theory, giving effect to what we considered- were reasonable conclusions, based upon such a premise. However, as Chief Justice Brown said, in the-case of Chase v. Swayne, 88 Tex. 223, 30 S. W. 1051, 53 Am. St. Rep. 742:

“It does not necessarily follow * * * that, because a court adopts a rule established by a line of decisions upon a given question, that it must therefore carry that rule to its logical results by applying it to all cases upon the-same character of contracts, where the parties occupy different relations to the subject and to-each other.”

In that cause cases are considered where-such logical result is not extended.

In the case the trust fund doctrine-prevailed when the Constitution of this state was enacted as to its prohibitive features-in regard to the issuance of stock. In the McWhirter Case, and the present case, the-subscribers’ notes are negotiated to another bank with a credit obtained in the transferee bank, and the note after organization of the new bank is immediately reacquired by it as an asset, and then renewed with the original maker. If a bank were permitted to obtain a credit by a showing of deposits tQ the extent of its capital stock presented to the proper banking authorities of this state for the purpose of organization, and all the notes of the stockholders were those so used as representing the entire capital stock, and said stockholders were then permitted, after insolvency, to invoke the Constitution as prohibiting the execution and delivery of such notes, evidently there would be no capital stock for the benefit of creditors. The insolvency and the changed status of the bank and the changed relationship of the parties create the interposition of a new principle; not but what the notes are void between the original parties, but that the original maker is estopped to so assert it. Depositors of a bank have the right to assume that an institution of that character has complied with the law of this state and acquired a fund as a means of indemnification to it, arguing it as a general proposition and eliminating the guaranty feature as an element. The stock books of the corporation, ordinarily would show such a subscriber as a full-fledged stockholder. To then permit him to say that he was not a stockholder, when the insolvency of the bank creates the rights of creditors as one of paramount consideration, to this court is unconscionable. The receiver represents the creditors as well as the corporation. Lyons v. Benney, 230 Pa. 117, 79 Atl. 251, 34 L. R. A. (N. S.) 105.

We think the McWhirter Case was properly decided upon the main principle enunciated therein, and hence at this time, notwithstanding the vigor of appellants’ argument, and seeming logic in inferentially combating it, we cannot do otherwise that reaffirm the principle.

The pleading of the plaintiffs in error, in effect that the stock.was neither delivered nor tendered to either of them as a consideration for the original note, or any of the renewáls thereof, until after the bank had become insolvent, supported by the testimony of L. O. Thompson, that he never saw the original certificate of stock until after the bank had failed — as an available plea in defense — rather sustains the liability, and the judgment. The corporation had no right to issue or tender the stock until the note was paid, and the position asserted in the pleading would probably be controlled by the following authorities: Commonwealth Bonding & Casualty Ins. Co. v. Hill, 184 S. W. 247; Cope v. Pitzer, 166 S. W. 447; Bank v. Falvey, 175 S. W. 833; Horn v. Baker, 173 S. W. 474; Davis v. Burns, 173 S. W. 476; Cattlemen’s Trust Co. v. Turner, 182 S. W. 438; Cattlemen’s Trust Co. v. Pruett, 184 S. W. 716.

The judgment of the lower court is affirmed.

On Motion for Additional Findings of Fact.

Complaint is made as to some of the findings in the original opinion, in that one finding is incomplete and others either erroneous or partially erroneous.

It was said in the opinion:

“We infer from the record that no question was ever raised in regard to the liability of either of the defendants until after the bank had failed, and this particular suit was instituted.”

Plaintiff in error calls the court’s attention to certain pleadings and offered evidence—

“to the effect that E. O. Thompson was only an accommodation subscriber for stock, and that he was never regarded as a stockholder, neither was he or Ms father,_ L. O. Thompson, considered liable on the original note or any of the renewals thereof, except as accommodation signers.”

Our statement is correct as to the only issue raised in this court. The nine assignments in plaintiff in error’s brief, including the assignment on fundamental error, only present, in different phases, the question of their liability, on account of the note having been given for stock in violation of the Constitution.

The first assignment says:

“The court erred in peremptorily instructing the jury to find againgt the defendants the amount of the note sued upon, which, as the evidence shows without conflict, was executed in renewal, and as the evidence of the same indebtedness represented by note of date July 1, 1910, * * * which said original note was given and received in full satisfaction and payment for $1,000 of the capital stock in plaintiff bank,” etc.

We are not concerned in reality with any question in this record whether E. O. Thompson was an accommodation subscriber or ■whether L. O. Thompson, the alleged accommodation indorser, was liable as principal or as an accommodation signer. The question of the liability of either of these parties upon this note, on the ground that the note was given in violation of the Constitution, was not raised until the bank had failed and the suit had been filed. Abstractly speaking (inappropriate, however, to the record and brief as presented in this court), plaintiffs in error are correct as to the position assumed in their pleading, and some testimony offered for the purpose of sustaining the pleading, i It was stated in the opinion that E. O. Thompson received and retained a certain dividend on the stock. Complaint is made that the “record shows without question that this very dividend was paid as interest on the note.” E. O. Thompson testified that he received this particular dividend, spent the money, and personally never tendered it back. He did further testify that his father tendered it back for him, but the tender was in this manner: “He took it and paid the interest on this particular note with it.”

Paragraph 3 of plaintiff in error’s motion, we do not construe to be a request for any finding. Our attention is merely called to their bill of exception No. 3 as to certain matters that were sought to be proven in regard to the delivery of a certificate of stock. There is no assignment predicated on this bill of exception.

Paragraph 4 complains of the incompleteness of our finding “relative to the discount of the original note giveh by plaintiffs in error to the First State Bank by the Guaranty Bank & Trust Company.” It is said in the motion it was “definitely shown that plaintiffs in error arranged no loan with the First State Bank about the time of the original note or soon thereafter; neither did they in any wise become indebted to the First State Bank, as shown by testimony of both of plaintiffs in error.” We did not find that plaintiffs in error arranged any loan. Our finding relative to the discount by the First State Bank was a part of the history of the case, and we regarded the question of the redelivery by the Guaranty Bank & Trust Company of the note to the First State Bank as in reality placing said paper in the same position as having been given for the contemplated issuance and delivery of stock in said State Bank.

The latter part of paragraph 4 says our finding is incomplete (relative to the discount of the original note), for the reason that there was testimony sought to be introduced by plaintiffs in error, “to the effect that all renewals of this original note were had under the original agreement which was to the effect that E. O. Thompson should in fact not become a stockholder in the bank, but that his name should only be used as an accommodation, and without any real obligation ever resting on either of the plaintiffs in error in regard to said stock or any of said notes.” The question was not before us, as often stated, with reference to the matter of accommodation. Aside from the proposition of liability raising the constitutional prohibition, with reference to the issuance of stock, the liability of a party who executes his notes solely for the purpose of permitting a corporation to organize and obtain a charter, permitting insolvency to ensue' and creditors’ rights to accrue, could probably be easily solved. However, no such question is presented and not necessary to decide, nor a finding of fact relative thereto made.

With the explanations mentioned herein, the motion for additional findings of fact is overruled.
      J&wkey;For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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author: BUCK, J.

text:
    PERRY BROS. v. McNEILL.
    (No. 8391.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 17, 1916.
    On Motion for Rehearing, Nov. 11, 1916.)
    1. Appeal and Eeeoe <&wkey;743(l) — Assignments op Eeeoe — Sufficiency—Rules op Court.
    Under rule 24 for Courts of Civil* Appeals (142 S. W. xii), requiring an assignment of error to specify the grounds of error relied on and set forth in a motion for new trial, rule 25 (142 S. W. xii), requiring an assignment of error to point out the part of the proceedings contained in the record in which the error is complained of so as to identify it, and to refer to the part of the motion for a. new trial in which the error was complained of, and rule 31 (142 S’. W. xiii), requiring that to each proposition there be subjoined a statement of such proceedings contained in the record as is necessary to support the proposition with a reference to the page of the record, an assignment of error in a charge, followed by a statement referring to the “fourth bill of exception, statement of facts, page 16,” was insufficient, and would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. <&wkey;743(l).]
    On Motion for Rehearing.
    2. Appeal and Eeeoe <&wkey;759 — Assignments op Eeeoe — Suppiciency—Notice op Objection — Rule op Coubt — “Direct. ”
    No notice of the appellee’s objections to the sufficiency of the assignments of error as provided by rule 15a for Courts of Civil Appeals (142 S. W. xi), is required, where appellant fails to comply with ride 29 (142 S. W. xii) in preparing his brief, regardless of whether the court’s action is invoked by appellee in his brief, or whether the court of its own motion refuses to consider such assignments, and notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, as amended by Acts 33d Beg. c. 136, and Supreme Court rule 101 (159 S. W. xi), adopted in compliance therewith, providing that the appellant shall file assignments of error with the clerk before taking the transcript from the clerk’s office, and that where a motion for new trial is filed the assignments therein shall constitute the assignments of error, and that an assignment' shall be sufficient which directs the court’s attention to the error complained of, as the word “direct” means to cause to point or go straight to a thing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dee. Dig. <&wkey;759.
    For other definitions, see Words and Phrases, First and Second Series, Direct.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Action by W. T. McNeill against Perry Bros. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. W. Moores, of Stepbenville, for appellant. Hickman & Bateman, of Stepbenville, for appellee.
   BUCK, J.

Appellant brought suit against appellee in tbe justice court upon a promissory note, and made affidavit and bond for writ of attachment, alleging in tbe affidavit that appellee was about to dispose of bis property for tbe purpose of placing it beyond tbe reach of bis creditors. Tbe writ of attachment was issued and an actual levy was made under the writ by the officer upon a certain peanut thresher belonging to appel-lee, but the officer made no return on the writ. The service of the writ caused a delay in the operating of the thresher of some four hours, until, the appellee having secured the money with which to pay off the alleged debt, the thresher was released. Whereupon appellee brought suit against appellant for damages for the alleged unlawful issuance and levy of the writ in the sum of $2,050, $250 alleged to be actual damages, and $1,800 exemplary. From a judgment for plaintiff in the sum of $15, the defendant, a corporation, appeals.

Appellee has filed in this court an objection to the consideration of any of the six assignments in appellant’s brief, because said assignments are not briefed in compliance with the provisions of the rules laid down by the Supreme Court for the guidance of the Courts of Civil Appeals and the attorneys practicing therein, and especially does he urge a failure to comply with rules 29 and 31 (142 S. W. xii and xiii), for the guidance of the Courts of Civil Appeals, and rule 101a (159 S. W. xi), for the guidance of district and county courts.

While we are not inclined to require a strict observance of the rules as a prerequisite for consideration by us of the assignments presented by an appellant, yet we deem it our duty to require at least a substantial compliance with the rules made and provided for our guidance, as well as that of the profession generally. We have come to the conclusion that appellant has failed of a substantial compliance with' the rules mentioned in each of its six assignments. For instance, the fourth assignment of error, submitted as a proposition, is as follows:

“The court erred in charging the jury that they should assess plaintiff’s damages in such a sum of money as they believed from the evidence would reasonably compensate him for the time lost by reason of said levy of the writ of attachment: First. There was no return upon the writ of attachment, showing that a levy had been made. Second. The compensation for time lost would be for profits that would be lost while the machine alleged to have been seized by virtue of the writ of attachment could not be used by virtue of said seizure, and profits are not recoverable as damages.
“Statement.
“Defendants’ fourth bill of exception, statement of facts, page 16.”

Rule 24 (142 S. W. xii), for the Courts of Civil Appeals provides that:

“The assignment of error must distinctly specify the grounds of error relied on and distinctly set forth in the motion for a new trial in the cause, and a ground of error not distinctly specified in reference to that which is shown in the record, or not specified at all, shall be considered as waived, unless it be so fundamental that the court would act upon it without an assignment of error as mentioned in rule 23.”

Rule 25 (142 S. W. xii) provides what shall constitute a distinct specification of error; that it must point out that part of the proceedings contained in the record in which the error is'complained of, in the particular matter, so as to identify it, etc.—

“with such reasonable certainty as may be practicable, in a succinct and clear statement considering the matter referred to, and must refer to that portion of the motion for a new trial in which the error is complained of.” .

•Rule 31 provides:

“To each of said propositions there shall be subjoined a brief statement, in substance, of such proceedings, or part thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition, with a reference to the pages of the record. This statement must be made faithfully, in reference to the whole of that which is in the record having a bearing upon said proposition, upon the professional responsibility of the counsel who makes it, and without intermixing with it arguments, reasons, conclusions or inferences.”

With these rules above quoted, in whole or in part, in mind, it will be noted that no reference is made in this assignment to the motion for new trial, or whether the assignment presented was contained in the motion for new trial or not, or whether any motion for new trial was ever filed, and, if so, whether it is contained in the record. The page of th'e transcript where the “fourth bill of exception” is to be found is not included in the statement. By reference to page 16 of the statement of facts, to which reference is made in the “statement,” it is found that the upper half of said page contains a portion of the testimony of T. J. McNeill and the lower half contains a portion of the testimony of W. T. McNeill, the plaintiff, and no reason is given in the statement under the assignment why either excerpt of testimony on page 16 is applicable or pertinent to the issue presented in the assignment, or supports the same. We are of the opinion that appellee’s objection .should be sustained. Texas Grain & Elevator Co. v. Dyer, 184 S. W. 1049.

The other five assignments are practically in the same condition and subject to the same objections. We are inclined to believe that counsel for appellant did not exercise his customary care in preparing his brief, and that h'e has sacrificed clearness, fullness, and perspicuity in the effort at brevity. If the rights of his client affected by this $15 judgment were of sufficient moment to justify an appeal to this court, we think they also should be held worthy of more carefulness in the preparation of the brief.

finding no fundamental error manifest of record, th'e judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant urges error in the court’s action in refusing to consider its assignments because not properly briefed. It is urged that appellant was entitled to ten days’ notice of the appellee’s objections1, under rule 15a (142 S. W. xi) for Courts of Civil Appeals. No notice is required where appellant' tails to comply with rule 29 in preparing his brief, and it makes no difference whether the action of the 'court is invoked by appellee in his brief, or whether the court of its own motion and volition refused to consider such defectively briefed assignments. Cooper v. Hiner, 91 Tex. 658, 45 S. W. 554; T. & P. Ry. Co. v. Eberheart, 91 Tex. 323, 43 S. W. 510; Stone v. Stitt, 56 Tex. Civ. App. 465, 121 S. W. 187; rule 29 for Courts of Civil Appeals. In this conclusion, we do not consider that we are disregarding article 1612, Vernon’s Say les’ Texas Civil Statutes, as amended by the Thirty-Third Legislature (Acts 33d Leg. c. 136) nor rule 101 (159 S. W. xi), adopted by the Supreme Court in compliance with said article; nor do we think we are in conflict with the holding of the Supreme Court in M., K. & T. Ry. Co. v. Beasley, 155 S. W. 183-187; nor with the Galveston court in Conn v. Rosamond, 161 S. W. 73; nor with the Amarillo Court in Kilgore v. Savage, 164 S. W. 1081. All these cases recognize that the rules of procedure and practice made by the Supreme 'Court are subject to legislation touching and controlling matters concerning which the rules treat. Article 1612 prior to the amendment in 1911 contained the language which we have not italicized in quoting said article as amended, to wit: '

“Assignments of Error; Requisites of. — -The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, 'distinctly specifying ' the grounds on which he relies, before he takes the transcript of [the] record from the clerk’s office; provided, that where a motion for new trial has heeh filed that the assignments therein shall constitute the assignments of error, and need not he repeated hy the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived, hut an assignment shall he sufficient which directs the attention of the. court to the error complained of." • •'

The amendatory provision, [‘where a motion for new trial has been filed, that the assignments therein shall constitute the assignments of error,” limits the assignments to those presented in the motion for new trial, and hence restricts rather than enlarges appellant’s rights. Hence, if a more liberal policy with reference to assignments be introduced by these amendments to the original article, it- is1 because of the language “but an assignment shall be sufficient which directs the attention of the court to the error complained of.” We think, in the sense used, “direct” means “to cause to point1 or go straight to a thing.” Standard Dictionary. And that an assignment that fails1, either in itself, or by- proposition or by statement, as in those in -the instant case, to-direct the attention .of the court to the error charged, and to the basis for the contention made, is bad, and that Courts of Appeals are not required to give consideration thereto. We do not think the amended article was intended to or should be held to supplant rule 29, requiring each assignment to be accompanied with appropriate propositions and statements, or that else it “shall be regarded as. abandoned.” Douthitt v. Farrar, 159 S. W. 182.

The motion for rehearing is overruled.
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