text:
    VANDERWOLK et al. v. MATTHAEI.
    (No. 5273.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 29, 1914.
    Rehearing Denied June 10, 1914.)
    1. Husband and Wife (§ 198) — Wife’s Sep-árate Estate — Conveyances.
    Where land was the separate property of a wife, a deed from the stepmother of the wife to the wife’s husband conveyed no title, notwithstanding the wife permitted and acquiesced in the conveyance.
    - [Ed. Note. — For other cases, see Husband and Wife,^ Cent. Dig. §§ 733, 944; Dec. Dig. § 198.]
    2. Husband and Wife (§ 171) — Wife’s Sep-árate Estate — Mortgage—Debts of Husband.
    Where a wife executed a mortgage to secure her husband’s note, any extension of such note without her consent, which would be binding upon both parties, so that the holder of the note could decline to accept payment until the extended date, would release her property so mortgaged.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 671-6S3, 721, 950, 951; Dec. Dig. § 171.]
    3. Acknowledgment (§ 37) — Contents of Certificate —Acknowledgments of Married Women.
    Under Rev. St. 1911, art. 6802, providing that the officer shall not certify to a married woman’s acknowledgment, unless she acknowledges that the instrument is her act and deed, that she has willingly signed the same, and that she wishes not to retract it, a certificate to'a married woman’s deed which failed to show that she did not wish to retract it was fatally defective.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 183, 199-216; Dec. Dig. § 37.]
    4. Mortgages (§ 587) — Foreclosure by Action — Judgment—Persons Concluded.
    Where a husband and wife executed a mortgage of the wife’s separate property, a judgment foreclosing such mortgage after the death of the wife was not binding upon the heirs of the wife; they not being parties.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1685, 1685%, 1687, 1688; Dec. Dig. § 587.]
    5. Acknowledgment (§ 37) — Contents of Certificate — Acknowledgment of Married Women.
    Where a certificate to a married woman’s deed failed to state that she did not wish to retract it, it could not be contended, in the absence of evidence to the contrary, that the acknowledgment was, in fact, properly taken, but merely defectively certified.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 183, 199-216; Dec. Dig. § 37.]
    6. Adverse Possession (§ 63) — Hostile Character of Possession — By Vendor or Purchaser.
    Where husband and wife conveyed land and retained a vendor’s lien to secure purchase-money notes, the vendee did not hold adversely to the wife, though the deed as to her was void, because defectively acknowledged, as the vendee thought the deed was good, and recognized the existence of the superior title in her.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 333-857; Dec. Dig. § 63.]
    7. Mortgages (§ 213) — Redemption—Necessity oe Tender.
    • Before a mortgagor can recover property mortgaged, of which the mortgagee is rightfully in possession, he must tender the amount of money due on the mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 482-491, 1576; Dec. Dig. § 213.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Action by Elizabeth Jenke Vanderwolk and others against W. A. Matthaei. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    J. E. Edmundson, of Bellville, and John T. Duncan, of La Grange, for appellants. Searcy & Botts, of Brenham, and Johnson, Matthaei & Thompson, of Bellville, for appel-lee.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series A Rep’r Indexes

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   MOURSUND, J.

Elizabeth Jenke Vander-wolk and Charles J. Jenke, a minor suing by his father, Chas. A. Jenke, as next friend, on April 5,1913, sued W. A. Matthaei in trespass to try title, seeking to recover two tracts of land in Austin county, one containing 75 acres, the other 33 acres. Defendant answered by general denial, plea of not guilty; then pleaded statutes of limitation of three, five and ten years in bar of plaintiffs’ suit; and also pleaded that he had made improvements in good faith, setting out the title upon which he based said claim. Plaintiffs pleaded their minority in reply to the pleas of limitation, denied the allegations of the answer, and attacked the title under which defendant claims, alleging in detail the various defects claimed by' them to exist in defendant’s title.

Judgment was rendered for defendant, and findings of fact and conclusions of law were filed.

The findings of fact read as follows:

“First. I find that this suit was filed by the plaintiffs against defendant in the district court of Austin county, Tex., on the 5th day of April, 1913.
“Second. I find that A. Louise Jenke was the wife of Chas. A. Jenke and the mother of plaintiffs; that she died intestate in Austin county, Tex., on the 5th day of June, 1895, leaving surviving her her husband, Chas. A. Jenke, and the plaintiffs and another minor child, who died in infancy about one year after the death of the said A. Louise Jenke; that there was no administration on the estate of the said A. Louise Jenke; that the plaintiff Elizabeth Jenke Vanderwolk married - Vanderwolk on the -day of January, 1909; and that the said -■■ Vanderwolk died on the - day of August 1909.
“Third. I find that A. .Louise Jenke was the daughter of George C. and Caroline Nolte; that they both died before May 13, 1890, and died without leaving a will; that A. Louise Jenke claimed the property by inheritance from her father and mother, George C. and Caroline Nolte; that plaintiffs claim the same by inheritance from their mother, A. Louise Jenke; that plaintiffs alleged in their petition that A. Louise Jenke was the common source of title.
“Fourth. The plaintiffs first introduced a deed from Louise Nolte, the stepmother of A. Louise Jenke, stating that the said deed was made for the purpose of conveying the interest of Louise .Nolte in her father and mother’s estate, and was for partition. This deed was made with the consent of A. Louise Jenke. This deed vested the legal title to the property conveyed by Louise Nolte, if the said Louise Nolte had any title in said land, in Chas. A. Jenke. This deed was dated April 19, 1890, and was duly recorded on the 21st day of April, 1890.
“Fifth. Plaintiffs next introduced in evidence the mortgage executed by Chas. A. Jenke and his wife, A. Louise Jenke, conveying the land in controversy to Mrs. Clara Matthaei, to secure the payment of two promissory notes of even date with said mortgage due and payable 1 and 2 years after date, respectively, each of said notes being for the sum of $250, and bore interest from date until paid at the rate of 8 per cent: per annum. This mortgage was duly acknowledged and recorded on the 17th day of May, 1890. Plaintiffs next introduced in evidence a deed from Chas. A. Jenke and his wife, A. Louise Jenke, conveying the land in controversy to Theo Dierbach. This deed was dated August 23, 1894, the consideration being that Theodore Dierbach should pay to W. A. Matthaei, who was then the owner thereof, the two Clara Matthaei notes, and for the further consideration of three notes executed by said Theodore Dierbach to Chas. A. Jenke, one for $76.15 and two for $100 each. This deed was recorded on the 25th day of August, 1894. In the acknowledgment of A. Louise Jenke to this deed, the words ‘that she did not wish to retract it’ were left out by the notary taking the acknowledgment.
“Sixth. Plaintiffs next introduced in evidence the petition filed in the district court of Austin county, Tex., on the - day of May, 1900, by W. A. Matthaei, as .plaintiff, against Chas. A. Jenke and Theodore Dierbach on the two notes executed by Chas. A. Jenke to said Mrs. Clara Matthaei, secured by mortgage above referred to, and which were assumed by Theodere Dierbach. The judgment entered in said suit against Chas. A. Jenke and Theodore Dierbach forecloses said mortgage as against Chas. R. Jenke and Theodore Dierbach on said land. The order of sale issued on said judgment, and the sheriff’s deed, conveying said land to W. A. Matthaei. This deed was dated the 9th day of August, 1900, and recorded on the 31st day of August, 1900.
“Seventh. On the 21st day of March, 1890, J. H. Maehemehl conveyed to Chas. A Jenke lot No. 3 of the A. Haak’s subdivision to the town of Bellville for $400, secured by vendor’s lien note. The money borrowed from Mrs. .Clara Matthaei was used for the purpose of paying off this vendor’s lien note and erecting a house on said lot for Chas. A. Jenke and wife to liv.e in, the old house having been burned down.
“Eighth. I find that the mortgage notes executed by Chas. A. Jenke to Mrs. Clara Mat-thaei were renewed by Chas. A. Jenke in 1894 and again in 1897. The deed from Chas. A. Jenke and wife to Theodore Dierbach was recorded on the 25th day of August, 1894. I find that A. Louise Jenke in 1894, by joining in the deed to Theodore Dierbach,' ratified and confirmed the renewal of the Matthaei notes made by Chas. A. Jenke/’
“Tenth. I find that Chas. A. Jenke sold two (2) of the vendor’s lien notes executed to him for the land to Schauerhammer & Roensch of Bellville, Austin county, Tex., and that Theodore Dierbach paid said notes!
“Eleventh. The defendant introduced in evidence for himself each of the instruments above referred to and that had been introduced by the plaintiffs.
“Twelfth. I find that Theodore Dierbach entered into possession of 75 acres of the land sued for in the fall of 1894, fenced the same, and raised a crop thereon for the years 1895 and 1896, and that the said Theodore Dierbach, by himself and agents claiming to be the owner-of said land, had and held quiet, peaceable, and continuous adverse possession thereof, using and enjoying the same, and paying all of the taxes due thereon under deed duly recorded from the fall of 1894 to the date that the land was sold to W. A. Matthaei by the sheriff on the 9th day > of August, 1900.
“Thirteenth. I find that as soon as the sheriff’s deed to said land was executed and delivered to the said W. A. Matthaei, that he, claiming to be the legal owner of said land, went into possession thereof and held quiet, peaceable, continuous, and adverse possession of said land, using and enjoying the same, and paying all taxes due thereon under deeds duly registered from the 9th day of August, 1900, to the filing of this suit.
“Fourteenth. I find that the $500 due Mat-thaei, and secured by the mortgage, was never paid, and that W. A. Matthaei is in possession of said land.
“Fifteenth. I find that neither the plaintiffs nor the defendant deraign title to the land in controversy from the sovereignty of the soil.”

Our conclusions upon the law of the case are:

1. That plaintiffs and defendant claim title from a common source, to wit, Mrs. A. Louise Jenke. The deed from her stepmother, Louise Nolte, to Chas. A. Jenke conveyed no title, and, besides, carries on its face notice that the land is the separate property of Mrs. A. Louise Jenke. There is no merit in the contention that the latter could pass title to her husband by permitting, or acquiescing in, the making of a conveyance to him of her land.

2. The mortgage executed by plaintiffs’ mother was for the purpose of securing the payment of her husband’s note, and any extension thereof without her consent, which would be binding upon both parties, so that the holder of the note could decline to accept payment until the date to which such note was extended, and Jenke could refuse to pay it until that time, would release her property so mortgaged. Red River Nat’l Bank v. Bray, 105 Tex. 312, 148 S. W. 291. In this case the court found that the notes had been renewed twice by Mr. Jenke, one of which renewals had been ratified by his wife, but fails to find that they were extended, or to state facts from which we can determine whether any extension was made sufficient to release Mrs. Jenke’s land. Upon examining the statement of facts, we find that the court’s finding that the notes were renewed is correct, as Jenke signed two written renewals sufficient to toll the statute of limitations, but such promises did not create any extensions for any definite time, nor is the evidence sufficient to show that any agreement was ever made which would have prevented Jenke or Mrs. Jenke or her heirs from at any time paying off the notes. Therefore Mrs. Jenke’s land was not released from liability under the mortgage.

3. The deed from Jenke and wife, to Dierbach bears the following certificate of acknowledgment:

“The State of Texas, County of Austin.
“Before me, J. H. Machemehl, a notary public in and for Austin county, Texas, on this day personally appeared Chas. A. Jenke and Louise Jenke, wife of said Charles A. Jenke, both to me known to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed, and the said Louise Jenke, wife of the said Chas. A. Jenke, having been examined by me privily and apart from her husband and having the same by me fully explained to her, she, the said Louise Jenke, acknowledged such instrument to me to be her act and deed, and declared that she had willingly signed the same for' the purposes and consideration therein ex-pressedi
“Given under my hand and seal of office this 23d day of August, A. D. 1894. J. H. Maehe-mehl, Notary Public, Austin County.”

At the time said acknowledgment was taken, the law relating to acknowledgments was the same as it now is, which provides that the officer shall not certify to a married woman’s acknowledgment unless she acknowledges that the instrument, is her act and deed; that she has willingly signed the same: and that she wishes not to retract it. Article 6802, Rev. Stat. 1911. Article 6805 prescribes that a certain form shall be substantially followed.

The certificate above set out fails to show that Mrs. Jenke declared that she did not wish to retract the instrument. Neither the words set out in the statutory form nor any words equivalent thereto are used. The law gives to a married woman a chance to retract, no matter how willingly she signed the instrument, and, while we might be disposed to question the wisdom of requiring so much particularity in the taking of a married woman’s acknowledgment, and venture the opinion that our law has been productive of much more injustice and wrong than it has prevented, yet we must give effect to the plain provision of the statute as written. The words expressing the idea that she signed willingly are those designated in the statutory form, and there are no words which, even with the utmost liberality of construction, can be pointed out as conveying the idea that Mrs. Jenke ever declared that she did not wish to retract the instrument. Under the plain terms of the statute, the declaration of a desire not to retract is just as essential as the declaration that the signing was willingly done, and compliance with one of such requisites does not dispense with the other. Davis v. Agnew, 67 Tex. 206, 2 S. W. 43, 376; Burkett & Murphy v. Scarbrough, 59 Tex. 495; Williams v. Ellingsworth, 75 Tex. 480, 12 S. W. 746; Murphy v. Beynaud, 2 Tex. Civ. App. 470, 21 S. W. 991; Estes v. Turner, 30 Tex. Civ. App. 365, 70 S. W. 1007. Certificates have been held good in which words were used which, in the opinion of the courts, showed that the woman declared she wished not to retract, though the language used was different from that set out in the statutory form. See Norton v. Davis, 83 Tex. 32, 18 S. W. 430; Masterson v. Harris, 37 Tex. Civ. App. 145, 83 S. W. 428; Spivy v. March, 105 Tex. 473, 151 S. W. 1037, 45 L. R. A. (N. S.) 1109. Appellee cites the last-named case as authority to sustain the certificate now being considered. The court did not hold that any statutory requirement could be dispensed with, but construed certain language to be sufficient to show a substantial compliance with the statute. We do not care to discuss the question whether that construction was correct. Appellee can receive no comfort from the opinion, unless it is construed as doing away with the requirement that an opportunity to retract shall be given, and we decline to give it that construction. Mrs. Jenke’s acknowledgment to the deed to Dierbach was fatally defective, and such deed did not pass her title to the land. Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595; Holland v. Votaw, 130 S. W. 884.

4. The judgment foreclosing the mortgage lien and the execution sale thereunder are not binding upon the plaintiffs, as their mother was dead at the time such suit was filed, and no administration upon her estate existed, nor was it attempted to foreclose the mortgage as to any one holding her title to the land.

5. The question then arises whether defendant has any title by limitation. The first question is whether Dierbach acquired title by limitation. Appellee contends that limitation would have run against Mrs. Jenke had it not been for her coverture, and that upon her death it began to run against the children, because disabilities cannot be tacked together.

As we understand the holding in the case of Yeeder v. Gilmer, supra, it could not be contended in this case that Mrs. Jenke’s acknowledgment was, in fact, properly taken, but merely defectively certified, and that therefore the deed was not void for four years after its signing, and, in fact, there was no pleading to that effect, nor any evidence, although the notary who took the acknowledgment testified upon the trial. We therefore conclude that the instrument under which Dierbach claimed was void as to Mrs. Jenke.

The deeds signed by Jenke and wife did not purport to be the deed of Mrs. Jenke alone, but was a deed on Jenke’s part, in which he conveyed the land to Dierbach, and said deed was sufficient to support a claim by virtue of the five-year statute of limitations as against outsiders and as to the makers, had the purchase money been paid. Hunton v. Nichols, 55 Tex. 217; McDonough v. Jefferson Co., 79 Tex. 535, 15 S. W. 490; Bank v. Roberts, 103 S. W. 455. But appellants contend that, as the purchase money was not paid, and a vendor’s lien was retained, limitation would not begin to run as against their mother until the notes were paid off or her title repudiated by Dierbach. In, other words, that, as Dierbach thought the. deed was good, and recognized the existence, of the superior title in her, he could not be , said to have held adversely to her. There can be no doubt, under the authorities, that as to Jenke there was no adverse holding by. Dierbach, as a note held by Jenke was never paid off, and we cannot see that the fact that, as to Mrs. Jenke the deed was a'nullity can make the holding adverse to her when, in.' fact, Dierbach considered the superior title, to be in her. We cite in support of this conclusion, the case of Smith v. Pate, 91 Tex. 596, 45 S. W. 6, and the cases therein cited.

The possession under which appellee claims-title by limitation did not become adverse until the mortgage lien had been foreclosed and appellee had purchased under execution sale. At that time plaintiffs were minors, and at the time this suit was brought plaintiff Chas. J. Jenke was still a minor. Plain-tiff Elizabeth Jenke Yanderwolk was born June 4, 1889, was married in January, 1909, and became a widow in August, 1909. As she was under 21 years of age during the period of her marriage, limitation did not run during said time against her right to recover land. Article 5684, Rev. Stat. 1911; Gibson v. Oppenheimer, 154 S. W. 697. Appellants are not barred by the statutes of limitation of five or ten years, and the three-year statute does not apply in this ease.

6. The appellee, however, contends that he is at least a mortgagee in lawful possession of the premises, and that appellants, if not precluded from recovery upon the grounds hereinbefore considered, are nevertheless precluded from recovering, because they have not tendered the amount of the debt secured by the mortgage. We have concluded that the evidence fails to show such an extension as would release the mortgage lien. Dierbach went into possession under a general warranty deed which did not pass Mrs. Jenke’s title, but passed such title as her husband thereafter acquired. Jenke inherited a life estate in one-third of the land from his wife, and a. one-sixth interest from his child. So we find that Dierbach, who was put in possession of the land by appellants’ parents, be-, came a part owner thereof after Mrs. Jenke’s death, and such interest passed to appellee under the foreclosure proceedings, as well as the possession of the land held by Dierbach.

Was the appellee a mortgagee legally in possession of the land? The facts are different from those in the case of Morrow v. Morgan, 48 Tex. 308, for in that case the foreclosure conferred no title or right of possession whatever. In this case, if an outsider had bought from Dierbach after the title acquired by Jenke passed to him and paid off the mortgage, it is clear that appellants could not recover without reimbursing him to the extent that their interests in the land were subject to the mortgage. Duke v. Reed, 64 Tex. 705. We think the same rule should be applied when the mortgagee secures the title and possession held by Dierbach by proceedings valid as to him, and therefore conclude that appellants were not entitled to recover in an action of trespass to try title.because they did not offer in their pleadings to pay their part of the mortgage debt. Calhoun v. Lumpkin, 60 Tex. 190; McCamant v. Roberts, 25 S. W. 731; Hicks v. Hicks, 26 S. W. 227; Baker & Terrell v. Collins & Williams, 4 Tex. Civ. App. 520, 23 S. W. 493; Garrett v. McClain, 18 Tex. Civ. App. 248, 44 S. W. 47; Hays v. Tilson, 18 Tex. Civ. App. 610, 45 S. W. 479; Northcraft v. Oliver, 74 Tex. 162, 11 S. W. 1121; Rodriguez v. Haynes, 76 Tex. 232, 13 S. W. 296; Whitney v. Krapf, 8 Tex. Civ. App. 304, 27 S. W. 843; Kaylor v. Kelsey, 91 Neb. 404, 136 N. W. 54, 40 L. R. A. (N. S.) 839, and note thereto; Townshend v. Thomson, 139 N. Y. 152, 34 N. E. 891; Bryan v. Brasius, 3 Ariz. 433, 31 Pac. 519; Sawyer v. Loan & Trust Co., 41 Wash. 524, 84 Pac. 8; Raggio v. Palmtag, 155 Cal. 797, 103 Pac. 312.

The judgment is affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    HOLLAND et al. v. CRANFILL.
    (No. 7116.)
    (Court of Civil Appeals of Texas. Dallas.
    May 16, 1914.
    On Rehearing, June 6, 1914.)
    1. Judges (§ 44) —Disqualification — Pecuniary Interest — Taxpayer oe Municipality.
    Under Const, art. 5, § 11, providing that no judge shall sit in any ease wherein he may be interested, judges who were taxpayers of the city of Dallas were disqualified to sit in the Court of Civil Appeals in review of a judgment holding that an ordinance authorizing the issuance of bonds submitted to the electors under the initiative and referendum provisions of Dallas Charter (Acts 30th Leg. c. 71, art. 8), and which was declared adopted by the election officers, was not adopted because of the lack of enough legal votes to pass it, as a judge is disqualified when an order, decree, or judgment will affect him directly in a pecuniary manner.
    . [Ed. Note. — For other cases, see-Judges, Cent. Dig. §§ 203-207; Dec. Dig. § 44.]
    On Rehearing.
    2. Municipal Corporations (§ 108) — Ordinances — Submission to Voters.
    Pursuant to Dallas Charter (Acts 30th Leg. c. 71, art. 8) the required number of electors requested the submission of an ordinance reciting that it was to require the securing of estimates on installing a municipal electric light and power plant and the submission of a proposition based on such' estimates at a regular election, and ordaining that a committee should have estimates made and submitted to the board of commissioners, and that no further contracts for the public electric lighting of the streets be made before a proposition of the establishment of such municipal plant based on such estimates was voted on by the citizens at a regular election. This ordinance having been adopted and such estimates made, the board submitted an ordinance for the issuance of bonds for the purpose of constructing and establishing such plant. Held,, that this second ordinance was submitted under the initiative and referendum provision, as it was an inherent and necessary part of the first ordinance, and contemplated thereby, and, moreover, under article 2, § 2, article 3, § 11, and- article 8, ordinances may be enacted only by the board of commissioners or by the electors under the initiative and referendum provisions.
    [Ed. Note. — For other eases, see Municipal Corporations, Dec. Dig. § 108.]
    3.Judges (§ 44) — Disqualification — Pecuniary Interest — Taxpayer oe Municipality.
    Under article 2, § 5, of the charter (Acts 30th Leg. c. 71), requiring bonds, however originated,_ to be submitted to the proper taxpayers by ordinance prescribing the time, manner, and place of election for that purpose, the adoption of such ordinance for the issuance of bonds, whether submitted under the initiative and referendum provisions or not, left no discretion to the. board of commissioners, but required them to issue the bonds, and, in a suit to determine whether such ordinance was legally adopted, taxpayers of the city of Dallas were disqualified to sit as judges in the Court of Civil Appeals, under Const, art. 5, § 11.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 203-207; Dec. Dig. § 44.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Suit by J. B. Cranfill against W. M. Holland and others to contest a municipal election on the question of issuing bonds. From a judgment in favor of plaintiff, defendants appeal.
    Cause passed, because of the dis-of the judges, until the ment of a special court to hear and' determine it.
    C. F. O’Donnell and Marvin S. Church, both of Dallas, for appellants. Seay & Seay, of Dallas, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am-. Dig.-Key-No. "Series & Rep’r Indexes

   RASBURY, J.

The city of Dallas derives its governmental authority from a special charter granted by the Legislature. Among other grants in the charter are certain initiative and referendum provisions by which the qualified electors of the city may initiate ordinances and have same referred to the electors for adoption or rejection. Dallas Charter (Acts 30th Leg. art. 8, page 49). In the manner provided by the charter, so far as the record here shows, an ordinance providing, in effect, that the city should issue its bonds in the sum of $400,000, and that the money secured thereby should be expended in constructing a municipal light plant for lighting the city’s buildings, streets, parks, grounds, etc., was by the mayor and board of commissioners referred to the qualified electors of the city for their adoption or rejection át a regular election held April 1, 1913. The election was held, and a canvass of the vote by the election officers developed that the ordinance had been adopted, and it was so declared by appellants. With reference to those entitled to vote in city elections the Dallas charter provides that at elections held to determine the expenditure of money, etc., only those shall be qualified to vote who pay taxes on property in the city, which, of course, applied to those electors who participated in the election under discussion. Shortly after the result of the vote on the adoption or re-jeetion of the ordinance was declared, appel-lee, a resident taxpayer, instituted the instant suit, alleging, in substance, that, while upon the face of the returns of said election there was east 1,585 votes for the ordinance and 1,512 against it, nevertheless 1,069 of the votes for the ordinance were illegal, for the reason that many persons voted for the ordinance who were not qualified voters, since they did not pay taxes upon property in the city of Dallas. Prayer was for a recount of the votes and the entry of such judgment as the facts would authorize. Appellants, the mayor and board of commissioners, met the issue thus tendered by full and appropriate pleadings. There was a trial by jury, before whom a recount of the votes was had, and upon their verdict judgment was entered reversing the returns of the election and reciting that said ordinance failed of enough votes to pass it, and decreeing that it was not adopted by the qualified electors participating in said election. Prom such judgment the mayor and board of commissioners have appealed and assign for review certain proceedings had in the court below.

Upon submission of the case, and during oral argument, the suggestion was made by counsel for the city that the members of this court are, if taxpayers of the city, disqualified by the Constitution of the state to hear and determine the cause, and should recuse themselves, and certify that fact to the Governor, in order that qualified justices may be appointed as provided by law. The ordinance involved in the election contest which is before us for review provides for the expenditure of $400,000 by the city, which amount can be secured only by taxation. Each member of this court owns property in and pays taxes thereon to, the city of Dallas. Thus the question at once arises: Are we “interested,” as that term has been several times construed, to such an extent as brings us within the provisions of the Constitution and prohibits our participation in the case? The Constitution ' of 1876, as amended in 1891, provides:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. When the Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, or any member of either, shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the state, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of such cause or causes. When a judge of the district court is disqualified by any of the causes above stated, the parties may, by consent appoint a proper person to try said case; or, upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by lawr.” Const, art. 5, § 11.

That portion of the article which inhibits members of his court sitting in cases in which they are “interested” is, as we have said, the provision affecting us. The question has been before the appellate courts many times, but the ruling cases peculiarly applicable in the instant ease, because of similarity in the facts, are City of Austin v. Nalle, 85 Tex. 520, 22 S. W. 668; City of Dallas v. Peacock, 89 Tex. 58, 33 S. W. 220; City of Oak Cliff v. State of Texas ex rel. Gill et al., 97 Tex. 391, 70 S. W. 1069. The general rule deducible from those cases, as well as earlier Texas cases therein referred to, broadly stated, is that, where a judicial officer has such an interest in the matter at issue in a given suit that any order, decree, or judgment entered therein will affect him directly in a pecuniary manner, he comes within the provisions of the Constitution. On the other hand, if the result of his judgment, decree, or order is but to remotely affect him pecuniarily or is dependent upon other contingencies, he is not disqualified. Typical of the negative of the rule is City of Oak Cliff v. State ex rel. Gill, supra, wherein our Supreme Court held that Chief Justice Gaines was not disqualified to participate in a suit attacking the validity of the act of the Legislature annexing Oak Cliff to the city of Dallas. Justice Gaines was a taxpayer in the city of Dallas, and the act of annexation provided, among other things, in effect, that the city was authorized, for purposes therein enumerated, to issue $50,000 in bonds and levy a tax sufficient to provide a sinking fund and interest, and it was argued that, being a taxpayer, he was interested in the litigation, etc. The Supreme Court, speaking through then Justice Brown, held that Chief Justice Gaines was not disqualified because any judgment entered in the cause by the Supreme Court did not directly produce or cause the issuance of the bonds nor the levy of the tax, since the judgment holding the act valid in no respect exerted any influence over the city council of the city of Dallas in determining whether it would or would not act upon the authority conferred by the act of ax-nexation, and since its authority to do so was derived, not from the judgment or decree of the Supreme Court, but from the act annexing Oak Cliff. Applying the reverse of the holding in that case to the instant litigation, will any judgment we may enter in the instant case produce or defeat the issuance of the bonds and the levy of the tax necessary to the redemption thereof? We believe that indisputably it will. As we have said, the ordinance directing the issuance of the bonds was submitted to the electors of the city by authority of, and in compliance with, the initiative and referendum provisions of the city charter. One of the provisions of that article of the charter is that:

“If a majority of the qualified electors voting on said proposed ordinance shall vote in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the city, and any ordinance proposed by petition or which shall be adopted by a vote of the people cannot be repealed or amended except by a vote of the people.”

In construing the provision just quoted, pur Supreme Court, in City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Tex. 337, 148 S. W. 292, said:

“The plain declaration of this charter provision that ‘such ordinance shall thereupon become a valid and binding ordinance of the city’ forbids the view that the completed enactment of this ordinance was dependent upon anything further than the ascertainment by the board of commissioners that a majority of the qualified electors had voted in favor of it.”

Thus, when appellants, the mayor and board of commissioners, ascertained that the ordinance here involved had been adopted, their functions ceased, and the ordinance stood a finished and completed municipal law, under which it was the duty of the appellants to prepare and negotiate the bonds and levy the tax thereby authorized and use them for the purpose indicated. It follows then that, if we take cognizance of the present cause, it will be to entertain and to determine a proceeding which contemplates the destruction of a law which has, in effect, imposed a tax directly upon us, and the existence of which, in the language of the Supreme Court, is dependent upon a judgment to be entered by the members of this court. The record here shows the ordinance was held by the lower court not to have been adopted, and, in illustration of what we have said, an affirmance of that judgment would be to relieve us of the tax imposed, and that such a condition would result is said to be a sure test of disqualification.

For the reason stated, we deem ourselves disqualified tb enter any order in the appeal other than to certify our disqualification to the Governor, which is herewith directed, and that the cause be passed until a special court is appointed to hear and determine same.

On Rehearing.

Counsel for appellee earnestly insist that we are in error in holding ourselves disqualified to consider this appeal on the merits because we are in error in holding: (1) That the ordinance submitting the bond issue was enacted by virtue of the initiative and referendum provision of the city charter; (2) that the “proposition” submitted to the electors to vote the bonds was, in fact, an ordinance; and (3) erred, as a matter of law, in holding that any judgment we might enter on the merits of this appeal 'would produce or prevent the issuance of the bonds.

. The facts contained in the record, because agreed to, were stated by us in a general way, because we presumed no issue would arise in that respect, but, in order to make clear our conclusions of law, we will discuss seriatum the successive steps shown by litigation. On February 20, 1912, certain .electors of the city of Dallas, “constituting in number more than five per cent, of the entire vote cast for all candidates for mayor at the last preceding election,” requested appellants to submit to the legal voters of said city at the general election to he held in April, 1912, the following ordinance:

“An ordinance requiring the securing of estimates on installing a municipal electric light and power plant, and the submission of a proposition based on said estimates at a regular election.
“Be it ordained by the board of commissioners of the city of Dallas, and by the people of Dallas, acting under the initiative provisions of the charter:
“(a) That a committee consisting of the street, water and finance commissioners, is hereby instructed to have estimates made and submitted to the board of commissioners within 90 days, for installing a municipal electric light and power plant in connection with the water department, and,
“(b) That no further contracts for the public electric lighting of the streets be made by the city before a proposition for the establishment of said municipal plant, based on these estimates, is voted on by the citizens at a regular election.”

There are but two methods provided by the Dallas charter by which ordinances may be enacted: By the board of commissioners, and by the electors, as authorized by the provisions of the initiative and referendum provisions of the charter (article 2, § 2; article 3, § 11; article 8). Here we call attention first to the enacting clause of said ordinance which recites that it is ordained “under the initiative provisions of the charter,” and second to the statement already quoted from the agreed statement of facts, describing those presenting the ordinance as “constituting in number more than five per cent, of the entire vote cast for all candidates for mayor at the last preceding election,” which is all but a litéral reproduction of the language contained in the initiative provision of the charter providing how such ordinances may be originated. Thus it will be seen that the ordinance quoted was at least enacted under the initiative and referendum provisions of the charter. Proceeding, then, with the record, it appears that appellants did submit said ordinance to the electors at a general election on April 2,1912, and after canvassing the votes appellants declared said ordinance “duly enacted.” After-wards, acting pursuant to the powers conferred by the ordinance so adopted, the board of commissioners, acting through two of its members, estimated the cost of installing said municipal lighting and power plant, which estimate was adopted by the board. Thereupon appellants submitted to the electors for their adoption or rejection at the general election of April, 1913, arid after making said estimate, the following ordinance:

“For the proposition of the issuance of $400,-000 in bonds of. the city of Dallas, for the purpose of procuring money for the following permanent public improvements, to wit: For the purpose of constructing and establishing a municipal electric lighting plant to furnish the public lighting of the streets, parks, grounds and municipal-buildings of the city of Dallas.”

We hold this last ordinance to he an inherent and necessary part of the ordinance submitted to the electorate, and to have been contemplated by said ordinance. The preamble of the initiative or first ordinance recites its purpose to be to secure an estimate of the cost of installing a municipal light and power plant and the submission of a proposition based on such estimate at a regular election. Further, the concluding clause thereof makes the intention yet clearer in directing that no further contracts for public lighting be made by the city until a proposition to establish a lighting plant based upon the estimates to be prepared by authority of the first ordinance is voted upon at a regular election. The necessity for deferring an election on the bond issue contemplated by the initiative ordinance is found in the fact that by the Dallas charter bonds may in no event be issued by its commissioners until authorized by vote of the electorate. Article 2, § 5. Recognizing that rule, the appellants made no attempt to submit the bond issue contemplated thereby until the attitude of the electorate toward the ordinance as a whole was disclosed ; since the issuance of bonds with which to construct the proposed plant depended upon the adoption of the ordinance authorizing both. At the first regular election arter the adoption of the ordinance, being the only election at which bond issues may be approved or rejected, the next successive step under the ordinance was taken, that of submitting to the electorate the bond issue contemplated thereby. Until the electorate had voted upon the issuance of the bonds made necessary by the provision in the charter requiring ¿11 bonds to be so voted upon the ordinance was incomplete and unfinished, since by its exact provisions a subsequent election upon a bond issue to perfect and complete its purpose was contemplated.

Beyond and beside what we have just said, and conceding that the ordinance last submitted to the voters was independent of, and not contemplated by, the initiative ordinance, the result in the last analysis will surely be the same. The Dallas charter provides that every proposition to issue bonds, however originated; shall be submitted to the property taxpayers of the city, by ordinance prescribing the time, manner, and place of election for that purpose. Dallas Charter, art. 2, § 5. Such an ordinance was prepared and submitted to the voters, which contained the provision that the bonds, if voted, would be used to procure the money necessary to establish the lighting plant authorized by the first ordinance. This last ordinance, on the face of the returns of the election, was adopted. By judgment of the district court it is decreed, as matter of fact, that it was not. Thus whether the bonds shall be issued or not ultimately depends upon the result of the election contest, and as a consequence any judgment entered in this appeal by us will produce or prevent the issuance of the bonds. While appellants, as the duly constituted officials of the city have the right to propose bond issues to the electorate, and may exercise their discretion in that respect, it is equally clear that, alter a majority of the property taxpayers have voted the bonds, their duties become purely ministerial, and are confined to the preparation and negotiation thereof, as prescribed by the further provisions of the charter.

Deeming our original conclusions correct, it becomes our duty to overrule the motion for a rehearing.


author: RICE, J.

text:
    HARPER v. DAWSON.
    (No. 5363.)
    (Court of Civil Appeals of Texas. Austin.
    April 22, 1914.
    Rehearing Denied June 3, 1914.)
    1. Justices of tee Peace (§ 166) — Jurisdiction.
    Where, on appeal to the county court from a justice of the peace, the county court dismissed the appeal because no final judgment was rendered by the justice of the peace, the dismissal left the case in the justice’s court, and he could proceed to trial thereof.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 638-646; Dec. Dig. § 166.]
    2. Justices of the Peace (§ 162) — Appeal-Trial De Novo.
    An appeal from a justice’s court to the county court abrogates the judgment of the justice’s court and puts the case in the county court for trial de novo.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 600, 603, 605; Dec. Dig. § 162.]
    3. Venue (§ 32) — Plea of Privilege — WAIVER.
    Defendant, by pleading a counterclaim and going to trial without calling his plea of privilege to the attention of the court, waived it.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    Appeal from Coke County Court; G. S. Arnold, Judge.
    Action by L. Dawson against F. L. Harper. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 140 S. W. 385.
    R. B. Truly, of Ballinger, for appellant. S. B. Kemp, of Robert Lee, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RICE, J.

Appellee on the llth of April, 1911, brought suit in the justice’s court against appellant, where he recovered judgment from which an appeal was taken to the county court, where judgment also went in his favor, from which appellant prosecuted an appeal to this court, which was dismissed on motion of appellee for the reason that there was no final judgment entered in the county court. See Harper v. Dawson, 140 S. W. 385, for a full statement of the case.

On return of the mandate to the county court, appellee moved to dismiss the appeal and withdraw the papers on the ground that no final Judgment had been entered in the justice’s court, which was granted. Thereafter, on the 10th of May, 1913, plaintiff in the justice’s court moved for trial, which was resisted by appellant on the ground that the case was not pending in that court. This objection was overruled, and the case tried on its merits before the court without a jury, resulting in a judgment in behalf of appellee, from which an appeal was taken to the county court. On trial in that court appellant in limine presented his plea in abatement, urging that this ease was not properly in the county court, for the reason that the same had been heretofore disposed of in that it had been dismissed both from the Court of Civil Appeals and the county court; but this plea was overruled and the case tried before the court without a jury, resulting in a judgment in behalf of appellee in the sum of $100.45, from which this appeal is prosecuted.

The first assignment urges that the court erred in failing to sustain appellant’s plea in abatement. We think there is no merit in this contention. The record shows that there was no final judgment in the justice’s co'urt in that it failed to dispose of appellant’s counterclaim. Without a final judgment, no appeal can be taken from the justice to the county court. See article 2391, R. S. 1911. And, in the absence of such final judgment, it becomes the duty of the county court to dismiss the appeal. See Sapp v. Anderson, 135 S. W. 1068, and authorities there cited. This dismissal left the case pending in the justice’s court, and the court correctly proceeded to trial thereof. If the case had been properly appealed from the justice to the county court, and appellee had voluntarily dismissed his appeal, then appellant’s contention would be correct, because the appeal, under such circumstances, abrogated the judgment of the justice’s court and put the case in the county court for trial de novo, and, if it is then dismissed by plaintiff, the case would be at an end. See Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; W. U. Tel. Co. v. McKee Bros., 135 S. W. 658; Woldert Grocery Co. v. Booneville Elevator Co., 99 Tex. 581, 91 S. W. 1082; Harter v. Curry, 101 Tex. 188, 105 S. W. 988; Roberts v. McCamant, 70 Tex. 743, 8 S. W. 543. But the appeal in this case was dismissed by the county court on the ground that it had never acquired jurisdiction of the case, because there was no final judgment in the justice’s court from which an appeal could be taken.

We overrule appellant’s second assignment of error, urging that the court erred in failing to sustain his plea of privilege, for the reason that this plea must be regarded as waived and abandoned for • two reasons: First, because appellant in the justice’s court on the first trial pleaded a counterclaim. See Kolp v. Schroeder, 131 S. W. 860. Besides, the record fails to show that this plea was called to the attention of the court, and therefore it must be regarded as waived.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.


author: KEY, C. J.

text:
    PUGH et al. v. PUGH.
    (No. 5372.)
    (Court of Civil Appeals of Texas. Austin.
    May 20, 1914.)
    1. Appeal and Error (§ 559) — Record on Appeal — Statement oe Facts — Requisites.
    A statement of facts should only contain the testimony that was admitted and the objections made thereto, and a statement of facts which sets forth evidence sought to be introduced, objections thereto, and the sustaining of the objections, disregards the rule defining the requisites of a statement of facts, and may on motion be stricken out.
    [Ed. Note. — For other cases, see Appeal and Errors, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.]
    2. Appeal and Error (§ 559) — Questions Reviewable — Bill op Exceptions — Requisites.
    In the bill of exceptions, and not in the statement of facts, is the proper place to show that testimony was excluded, when the party complaining desires to have the ruling reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2483-2489; Dec. Dig. § 559.]
    3. Appeal and Error (§ 557) — Record — Obligation op Appellant.
    It is the duty of appellant to see that the statement of facts is properly prepared.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2489-2482; Dec. Dig. § 557.]
    4. Appeal and Error (§ 655) —Record on Appeai^Defects — Estoppel.
    Appellee, who agrees to a statement of facts, is not thereby estopped from moving to strike it out for failure to comply' with the law and the rules regulating statements of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2823-2825; Dec. Dig. § 655.]
    5. Appeal and Error (§ 1133) — Questions Reviewable — Statement op Facts.
    Where a statement of facts cannot be considered, so as to make it appear that error complained of in appellant’s brief was committed, the judgment must be affirmed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.]
    Appeal from District Court, Anderson County; John S. Prince, Judge.
    Action between J. A. Pugh and another and Mrs. Margaret S. Pugh. From a judgment for the latter, the former appeal.
    Motion to strike out statement of facts sustained, and judgment affirmed.
    Funderburk & Strickland, of Palestine, for appellants.- Gregg & Brown, of Palestine, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

In this case we sustain appel-lee’s motion to strike out the statement of facts. The motion referred to complains because only one statement of facts was filed in the court below, while the statute requires that two should be filed there, one of which is required to be sent up with the transcript, and the other to remain in that court; also because it contains extraneous matters, shown by the statement of facts itself not to have been admitted in evidence, and covering a considerable number of pages thereof.

The statute now in force requires the appellant to file statement of facts in the trial court in duplicate; and while we are inclined to agree with the holding in Witherspoon v. Crawford, 153 S. W. 633, that the statute is, in a certain sense, mandatory, in view of the facts shown in'this case in reply to the motion, we might not hold that the failure to comply with that statute in this ease does not constitute of itself sufficient ground for striking out the statement of facts. But the other objections to the statement of facts are serious and well founded; for instance, about seven pages contain a copy of a judgment, objection made to its introduction, arguments made pro and con in reference to its admissibility, and remarks made at different times by the trial judge, the final result being that the objection was sustained and the document referred to not admitted in evidence. Though not covering as many pages, the statement of facts shows that the same procedure was gone through with reference to an order of sale, which was not admitted in evidence; ajlso, though not pointed out in the motion, similar procedure was had in reference to other testimony which was excluded. By this we mean that the statement of facts shows that objections were made to the admissibility of other testimony, and remarks made by the attorneys upon such objections, which testimony was excluded. Nothing can properly be incorporated in a statement of facts except testimony that was admitted in evidence, together with objections made thereto.

In the bill of exceptions, and not in the statement of facts, is the proper place. to make it appear that certain testimony was excluded, when the complaining litigant desires to have that ruling reviewed by an appellate court. In fact, instead of condensing, as required by the rules, the stenographer’s notes seem to have been adopted. In fact, it is reasonably certain that, if the statute and rules regulating the matter had been complied with, the statement of facts could have been reduced in volume one-third, if not one-half; and while it is true that the motion to strike out does not embrace all of the objections referred to, we hold that,inasmuch as the rules were made for the purpose of facilitating the dispatch of business in the appellate courts, it is proper to. consider such omissions in passing upon the motion. And, so considering the matter, we have reached the conclusion that there was such a flagrant disregard of the law and the rules regulating such matters as renders it our duty to sustain the motion and strike out the statement of facts. Caswell v. Hopson, 43 S. W. 547; Heidenheimer v. Tannenbaum, 23 Tex. Civ. App. 567, 56 S. W. 776; Railway v. Flanary, 45 S. W. 214.

It is well settled, as shown by some of the cases just cited, that it is the duty of an appellant to see that the statement of facts is properly prepared, and that an appellee, by agreeing to such statement, does not estop himself from movinsr to strike out for failure to comply with the law and rules regulating such matters.

As the statement of facts cannot be considered, we cannot hold that the trial court committed reversible error in regard to questions presented in appellants’ brief; and, it not being made to appear that such error was committed, the judgment appealed from is affirmed.

Affirmed.