author: TALBOT, X

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. THOMAS et al.
    (Court of Civil Appeals of Texas. Dallas.
    April 12, 1913.
    Rehearing Denied May 3, 1913.)
    1. Conteacts (§ 186) — Actions tor Breach.
    No person can sue upon a contract, unless he be a party to it or in privity with it.
    LEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 790-797; Dec. Dig. § 186.]

      2, Mechanics’ Liens (§ 315) — Contracts— .Construction.
    Where the owner of land, who desired to erect a dwelling, required the contractor to give a bond with sureties, conditioned that he would faithfully carry out the work and pay all claims and liens against the premises, with a further provision that the obligation should inure to the benefit of materialmen and subcontractors, the last clause gave a right of action to all material-men and subcontractors, regardless whether they had a lien upon the premises; it being the apparent intention of the owner to require a bond for the payment of all the debts incurred by the contractor in the erection of the dwelling.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. § 315.]
    ■3. Mechanics’ Liens (§ 315) — Enforcement —Consideration.
    As a contract between two parties based upon a valid consideration may be enforced by a third when entered into for his 'benefit, material-men and subcontractors who furnished material for a dwelling have the necessary privity to maintain an action on a bond given by the contractor to perform and to pay all claims and liens against the premises, and providing that it should inure to the benefit of materialmen and subcontractors.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. § 315.]
    Appeal from District Court, Dallas County.
    Action by the Carson Lumber Company and others against W. E. Thomas, the United States Fidelity & Guaranty Company and another. From a judgment against the named defendants, the United States Fidelity & Guaranty Company appeals.
    Affirmed.
    Hunt, Myer & Teagle, of Houston, and Seay & Seay, of Dallas, for appellant. Wood & Wood, -of Dallas, for appellees.

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

   TALBOT, X

Appellant makes the following statement of the nature and result of the suit, which we adopt: This suit was brought by the Carson Lumber Company and other plaintiffs and interveners against W. E. Thomas, Mrs. Z. Blaffer, and the United States Fidelity & Guaranty Company. The record in the case in substance shows that Mrs. Z. Blaffer desired to erect a house for a fixed sum of money. The contract was awarded to W. E. Thomas, contractor. Mrs. Z. Blaffer, the owner, required a bond for the faithful performance of the contract by W. E. Thomas, contractor. This bond he gave, and the United States Fidelity & Guaranty Company signed the same as surety. The plaintiffs and interveners in the court below are materialmen and subcontractors who furnished to the contractor material and labor for the house thus erected. The contractor, Thomas, failed to pay them, and they brought suit against Thomas, the contractor, Mrs. Z. Blaffer, the owner, and the United States Fidelity & Guaranty Company, as surety upon the contractor’s bond. Mrs. Z. Blaffer answered in substance that the house had been completed in accordance with the plans and specifications in the contract with Thomas and that she owed a balance of $341.49 on said contract, and which amount she was ready and willing to pay as soon as she was able to determine to whom she might safely pay said amount, and which said amount she tendered into court. She did not ask for any money judgment against any one, but prayed that no mechanic’s lien be established by any of the plaintiffs or inter-veners against the property. W. E. Thomas answered by general demurrer and a general denial. The United States Fidelity & Guaranty Company answered by special exception and special answer in substance that it was merely a surety upon the bond of Thomas given to Mrs. Z. Blaffer, the owner, and that said obligation or contract was simply a contract between Thomas, as principal, and the bonding company, as surety, and made for the benefit of and to indemnify the defendant Mrs. Z. Blaffer, and her alone; that the plaintiffs and interveners were not parties to the contract and had no interest in the Same; that said bonding company had not made any promise to plaintiffs or interveners in said contract, nor was there any consideration passing from this defendant to any of said plaintiffs or interveners, and that said plaintiffs or interveners were strangers to said contract, and there is no consideration moving from these plaintiffs or inter-veners herein to said defendant; that there is no obligation or duty on their part mentioned in said contract and none on the part of this defendant in so far as these plaintiffs or interveners were concerned; that there is no privity of contract existing between any of said plaintiffs or interveners and this defendant, nor any obligation of any kind or character,moving from the defendant to the plaintiffs or interveners, or from the plaintiffs or interveners to this defendant. The court submitted the case to the jury on special issues, which was simply to find what amount was left unpaid on the respective contracts of interveners and plaintiffs with the defendant Thomas. The jury found the amounts due virtually as set up in the various pleadings of the plaintiffs and interveners. Upon such finding judgment was rendered against W. E. Thomas and United States Fidelity & Guaranty Company for the aggregate sum of $883.54, constituting the various claims of the plaintiffs and interveners, and from this judgment the United States Fidelity & Guaranty Company alone appealed.

There is practically no conflict in the testimony. It conclusively establishes that the claims sued on by the plaintiffs and interven-ers were for material furnished or labor performed by them at the instance of W. E. Thomas, in the construction of Mrs. Blaffer’s house, and that said claims were just and unpaid. The contract between Mrs. Blaffer, the owner, and W. E. Thomas, as contractor, is, in substance, so far as is necessary to state, that the contractor will, for the sum of $4,175, construct, according to the plans and specifications thereof, a certain house for Mrs. Blaffer, and contains this provision or stipulation, namely: “And it is further agreed that the contractor shall hold the owner harmless against any liens, garnishments or debts of any kind on account of any labor employed or material used in the erection of this building.” The. bond executed by W. E. Thomas and the appellant for the faithful performance by Thomas of his building contract with Mrs. Blaffer was in the sum of $2,000, and conditioned as follows : “The condition of this obligation is such, however, whereas, the said W. E. Thomas has entered into a contract with the said Mrs. Z. Blaffer, dated August 23, 1911, for the furnishing of all material and labor and erecting a two-story frame residence building according to plans and specifications made and prepared by J. O. Gill, architect; said contract is here referred to with greater particularity. Now, if the said W. E. Thomas shall well and truly comply with the terms of said contract, and faithfully carry out the work under said contract mentioned, including all changes in said work hereinafter referred to, and to pay all claims and liens against the said premises on which the said building is erected, as provided in said contract, and shall hold the said Mrs. Z. Blaf-fer free for all time from all claims and liens, and from damages mentioned therein, then his obligation shall be null and void, otherwise to remain in full force and effect. And we, the sureties on this bond, hereby consent to all terms and specifications of said contract, and to all specifications, drawings, plans and details referred to therein. We do further agree that changes may be made as provided in the said contract, plans and specifications, and work to be done thereunder. And that our obligation under this bond shall apply to such changes the same as if they had been made in said contract before said contract had been signed by the parties thereto. We do further agree that any change in the method and amount of the payments stipulated to be made by the said Mrs. Z. Blaffer, in said contract, shall not affect our liability on this bond. And we also agree that the obligation of this bond shall inure to the benefit of material men and sub-contractors.”

The question presented by the assignments of error for our decision is whether or not the plaintiffs and interveners herein are entitled to maintain this suit and recover upon the bond, made the basis of the action, by virtue of the provision in said bond to the effect that the obligation created thereby should inure to the benefit of materialmen, and subcontractors. Appellant contends, in effect, that they are not entitled so to do: (1) Because they are not parties or privies to-said contract or bond, and because if they were there was absolutely no consideration for the promises therein made or obligation therein assumed by appellant so far as plaintiffs and interveners are concerned; (2) that.plaintiffs and interveners are not entitled to-reeover upon said bond because by reading the building contract between Mrs. Blaffer and W. E. Thomas and the bond together, as they should be read, the reasonable construction of the bond is that it was intended to bind the obligors therein to pay only such claims or debts incurred for material furnished or labor performed in the erection of Mrs. Blaffer’s house as were secured by liens fixed upon said house in accordance with the-provisions of our statute relating to mechanics’, laborers’, and materialmen’s liens.

The precise question involved does-not seem to have been heretofore passed upon by any appellate court of this state. Oases in which the right of materialmen to recover on bonds containing a provision somewhat similar to the one found in the bond sued on in this case was denied, have been cited, but none directly in point. In the cases of Republic Guaranty & Surety Company v. Wm. Cameron & Co., 143 S. W. 317, Texas-Glass & Paint Co. v. Southwestern Iron Co., 147 S. W. 620, and Campbell-Root Lumber Co. v. Smith, 148 S. W. 1195, the bonds sued on contained the following provision: “This bond is made for the use and benefit of all persons- who may become entitled to liens under the said contract [building contract],, according -to the provisions of law in such cases made and provided, and may be sued on by them as if executed to them in proper person.” In each of these eases the bond by its express terms inured only to the benefit of lienholders, and the right to recover was denied because, the materialmen suing had failed to show that they had acquired valid liens upon the owner’s property. Whether they would have been entitled to recover, had such liens been shown, was not determined. In the first case mentioned, the court, in this connection, said: “Having, reached the conclusion that neither Cameron & Co. nor Buckley & Son had acquired ‘liens or rights of liens’ on the property, because it was Cantwell’s homestead, * * * it is-unnecessary to determine, and we do not determine, whether, had they acquired liens, they or Cantwell for their use and benefit might have maintained a suit on the bond.” In the third case mentioned, the court, after-holding that the plaintiffs had no liens, and could not have, because the property was public school property, remarked: “If the bond in the present case had provided that the obligors were bound, not only to the-trustees of the Killeen independent school district, but likewise to all persons who might perform labor or furnish material in the construction of said building, irrespective of whether they were lienholders or not, then it seems, under the authorities, that plaintiffs in this case 'might have a cause of action and he able to maintain this suit.” In the case of National Bank v. Railway Company, 95 Tex. 176, 66 S. W. 203, the appellant sued to recover of Evans & Hoshour, contractors, for the value of labor performed in the construction of machine shops, engine house, etc., and to foreclose against the railway company’s property a lien alleged to exist thereon by virtue of such labor, etc. Consolidated with this action were the suits of other parties seeking to recover on said contractors’ bond executed to the railway company for the purpose of indemnifying it against claims, demands, and liens of laborers and materialmen, and the Supreme Court held that, inasmuch as no liability of the railway company to the plaintiffs in the suit nor lien upon its property was shown, there was no breach, and therefore no right of action upon the bond. The court, however, took occasion to say: “We are not prepared to hold that the railroad company might not have required of the contractors a bond binding them and sureties to pay all debts contracted with persons for labor, material, or other things necessary to the performance of the contract, whether the claims might be asserted against the railroad company’s property as a lien or not; and that under such a contract, if it had been made, the materialmen and the laborers might sustain an action against the contractors and their sureties upon its bond.”

The remarks quoted from the opinions in the two last above cases were not necessary to a decision of the questions involved and cannot be regarded as authoritative expressions of the courts; but they may, perhaps, be considered as indicating that, had valid liens been shown, it would have been held that under the terms of the bond a right of action thereon would have existed. It is a well-established general rule that “no person can sue upon a contract, except he be a party to or in privity with it.” If the appellees in this case were parties to or in privity with the bond in suit, it is by virtue of that provision which reads: “We also agree that the obligation of this bond shall inure to the benefit of materialmen and subcontractors.” Counsel for appellees admit that without this provision the suit could not be maintained. With it inserted in the bond, are the appellees beneficiaries and entitled to a right of action thereon? We have reached the conclusion that this question should be answered in the affirmative. The right of action does not depend, as in the cases to which we have referred, upon the existence of a materialman’s or laborer’s lien. By the terms of the bond its obligation inures to ■the benefit of “materialmen and subcontractors,” (regardless of whether they have or have not secured liens upon the property of Mrs. Blaffer. The undisputed proof is that appellees were materialmen and subcontractors within the meaning of the bond. Under contracts with W. E. Thomas, the contractor, they furnished material for, and which was used in the erection of, Mrs. Blaf-fer’s building or under contracts with Thomas performed labor in constructing it. Under the facts, appellees are entitled, we think, to maintain this suit against the appellant and recover of it the amount of their respective claims. Obviously, the provision of the bond declaring that its obligation should inure to the benefit of materialmen and subcontractors was not inserted in the bond to protect Mrs. Blaffer against liens on her property because a previous clause of the bond fully provides for her protection in this respect. It is certainly difficult to understand how the bond in question could inure to the benefit of materialmen and subcontractors unless they have a right of action thereon for the material furnished or labor performed in the erection of Mrs. Blaffer’s house. If such is not the proper construction of the bond, then the provision declaring that its obligation shall inure to the benefit of materialmen and subcontractors is meaningless and of no effect. In construing the bond the folly of inserting such a provision in it should not be imputed to those responsible for its execution. On the contrary, we think it fairer and more reasonable to conclude that Mrs. Blaffer intended to and did require of her contractor, Thomas, a bond binding him and his surety to pay all debts contracted with persons for labor and material necessary to the performance of the building contract, whether the claims might be asserted against her property as a lien or not.

That a contract between two parties upon a valid consideration may be enforced by a third; party when entered into for his benefit seems to be settled law, and that in such a case “it is sufficient in order to create the necessary privity, that the promisee owes to the party to be benefited some obligation or duty, legal or equitable, which would give a just claim.” Such, at any rate, is the well-established rule in our sister state Missouri, and we regard it a just and proper one. City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 695, and cases there cited.

We therefore hold that appellees are ma-terialmen or subcontractors within the meaning of the bond sued on„ and as such are entitled to maintain this suit and recover of appellant the amount of their respective claims. The judgment of the court below is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    BALL v. SMITH et al.
    (Court of Civil Appeals of Texas. Austin.
    April 2, 1913.
    Rehearing Denied April 30, 1913.)
    1. Habeas Corpus (§ 99) — Custody oe Children — Rights oe Parent.
    While the father, and, on his death, the mother, is generally entitled to the custody of infant children as their natural protectors for maintenance and education, the right is not an absolute one, and the guiding consideration by which the court will be influenced in determining the question of the right to custody is the welfare of the children.
    [Ed. Note. — F'or other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99; Parent and Child, Cent. Dig. §§ 13, 17.]
    2. Habeas Corpus (§ 99) — Custody oe Children — Rights of Father.
    Relator was a lawyer of good practice, and earned an income suflicient to support all his children. He had the reputation of being a law-abiding, truthful man, hut his reputation for morality was notoriously bad. On separation of relator and his wife, he voluntarily surrendered to her three of their minor children, whom she cared for for two years without his assistance until her death, when they were delivered to her brothers and sister, who were cultured, Christian people, and financially well-to-do and able and willing to care for them. This they continued to do until relator remarried, when he applied for the custody of the children, who while they had been away from their father had hecome alienated from him, and were disinclined to return. Held, that an order refusing to require their surrender to the father, and permitting them to remain in the custody of their uncles and aunt, was proper.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. D'ig. § 99; Parent and Child, Cent. Dig. §§ 13, 14}
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    Habeas corpus, on the relation of F. M. Ball, against Edgar Smith and others. Decree for defendants, and relator appeals.
    Affirmed.
    This action was brought by relator, F. M. Ball, against. Edgar Smith, W. B. Smith, and D. I-I. Hart, respondents, for writ of habeas corpus to recover the custody and control of his two minor children, Derie. and Hart-well Ball, aged, respectively, 12 and 8 years, alleging that they were illegally restrained of their liberty by them. By cross-action respondents sought to recover through ha-beas corpus proceedings from F. M. Bail the custody and control of Frank M. Ball, Jr., and Eliza Ball, of the ages of 18 and 15 years, respectively, basing their right so to do on the ground that said minors were the children of relator and Linder Smith Ball, now deceased, alleging that respondents Edgar and W. B. Smith were the brothers of said Linder Ball, deceased, and uncles of said minors, and that respondent Hart was the husband of Derie Hart, a sister of said Linder Ball. Respondents Edgar and W. B. Smith further alleged that their said sister left to said children an estate of the value of $20,000, and that by the terms of her will they were appointed independent executors thereof and trustees of all of said children, with power to manage said estate for their benefit, which said will had been duly filed and probated, alleging that relator, by reason of his immoral habits and mistreatment of said children, was not a proper person to have their custody and control, that none of said children except Eliza Ball had during the last four years been in the custody and control of their father, and that the former two were living with respondents, and that none of said children desired to live with their father. Answering, relator filed a general denial and set up the fact that by decree of the district court of Bowie county the custody and control of his daughter Eliza Ball had been awarded to him, and which he pleaded as res adjudicata. The case was tried before the court without a jury, who awarded the custody of all of said minors, except Eliza Ball, to respondents, but awarded her custody to her father, sustaining his plea of res adjudicata, from which judgment relator has appealed, urging by several assignments that the facts did not warrant the conclusion reached on the part of the court.
    The court filed its conclusions of fact and law, now adopted by us, and from which it appears that relator and Linder Smith Ball were husband and wife, and that the children above named were the fruits of said marriage; that F. M. Ball, Jr., was at the time of the trial 18 years of age, and Elíáa Ball 16 years of age (the ages of Derie and Hartwell Ball not being stated, but we presume that their ages were as heretofore stated in the pleadings); that relator and his said wife lived together until some time in the year 1907, when domestic difficulties caused a practical separation, though they continued to live under the same roof until about 1909, when on the 30th of November of said' year they were divorced by decree of the district court of Bowie county, Tex.; that by agreement said judgment awarded the care and custody of Eliza Ball to relator, and that of the other children to their mother; that all of the children lived with relator and his wife up to the time of the separation, and after that time lived with their mother up to the date of the judgment of divorce, after which Eliza Ball left her mother’s home to reside with her father, the other three children remaining with their mother; that in 1910 relator remarried, since which time Eliza has continued to reside with her father and stepmother. While relator was absent from the state his former wife, Mrs. Linder Ball, died, and was buried in Austin, Tex., where her relatives resided, and all the children accompanied the body of their mother to Austin, and after the funeral were taken in charge by respondents Edgar Smith and D. H. Hart and their respective families. Soon after this time relator requested that these children be sent to him at Texarkana. Whereupon F. M. Ball, Jr., and Eliza Ball, returned to Texarkana to reside with him, and Eliza continued to reside with him ever since, but F. M. Ball, Jr., after a short while became dissatisfied, and after one unsuccessful attempt, ran away from his father, returning to his relatives in Austin, where he has since remained, the two younger children having lived with respondents in Austin since the death of their mother'. Up to the time of the separation of relator and Mrs. Linder Smith Ball, deceased, relator supported all of his children comfortably, and was usually kind to them, though he would occasionally use improper language to them and in their presence; and on at least one occasion before the separation and on at least one occasion after F. M. Ball, Jr., returned to him from Austin, relator became violently angered with his said son, and punished him excessively. After securing a divorce from relator, Mrs. Linder Ball continued to reside at her home in Texarkana, retaining the custody of and supporting all of the children awarded to her in the divorce proceeding, relator contributing nothing to their support, and during which period relator saw little of these children; that the children remaining in the custody of Mrs. Linder Smith Ball (the ones ■whose custody was awarded to respondents) came to view the differences existing between their father and mother from their mother’s standpoint, and at the date of their mother’s death and at the time of the trial were and are more or less alienated from their father, and they strongly object to returning to him.
    For some years previous to the divorce relator was notoriously immoral,_and his reputation in Texarkana for morality is not now good, though it is not shown that he has been guilty of any immoral conduct since his second márriage. By reason of his moral delinquencies relator’s social standing is not good; that relator is well regarded as a lawyer, has a good practice, and his income is sufficient to support all of his children. His reputation as a law-abiding, truthful man is good. Bespondents and their families are cultured, Christian people; they have comfortable homes and are financially well-to-do; an affectionate attachment exists between them and the minor children of their sister, Mrs. Linder Ball, deceased. The children are and will continue .to be well cared f6r, and the best educational advantages are being provided for them. They inherited a sufficient sum of money from their mother to provide for their support, and it will be for the best interest of the children, F. M. Ball, Jr., Derie Ball, and Hartwell Ball, that their care and custody be awarded to respondents.
    Mahaffey & Thomas, of Texarkana, for appellant. R. L. Batts, D. H. Doom, and J. H. Hart, all of Austin, for appellees.

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

   RICE, J.

(after stating the facts as above). By natural law, the custody of the child is given to the parent, .for the reason that it is presumed that out of this relationship flow.such love and affection for the child as would promote its best interests; but this is not an inalienable or paramount right. In the event' of a failure on the part of the parent from any cause to perform this sacred trust, the state has the right to interfere and take from his custody the child, to the end that it may be properly reared and brought up. This is done in the interest of society and good government. It is said by Chancellor Kent (vol. 2, pp. 220, 221) that: “The father, and on his death the mother, is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors for maintenance and education. The courts of justice may, in their sound discretion, and when the morals or safety or interest of the child strongly require it, withdraw the infant from the custody of the father or mother, and place the care of them elsewhere” — citing in support of the text In re Wollstonecraft, 4 Johns. Ch. (N. Y.) 80: Commonwealth v. Addicks, 5 Bin. (Pa.) 520; Ex parte Crouse, 4 Whart. (Pa.) 9; U. S. v. Green, 3 Mason, 482, Fed. Cas. No. 15,256; Case of Wellesley v. Duke of Beaufort, 2 Russell, 1; State v. Smith, 6 Greenl. (Me.) 462, 20 Am. Dec. 324. The same doctrine is set forth in sections 440 et seq., Church on Habeas Corpus.

In Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653, Chancellor Walworth, delivering the opinion of the court, says, among other things: .“The father’s right to his children is not absolute and inalienable. In those American cases which uphold to the greatest extent the right of the father, it is conceded that it may be lost by his ill usage, immoral principles or habits, or by his inability to provide for his children. But the great principle which runs through nearly all of the American and the earlier English cases is that which is stated by Thompson, Chief Justice, in the Matter of Waldron, 13 Johns. [N. Y.] 418, when speaking of the custody of the infant, in the case of the claim by the father, to such custody, viz.: ‘It is the benefit and welfare of the infanf to which the attention of the court ought principally to be directed.’ As a necessary result of this principle, it follows that the custody of infant children must always be regulated by judicial discretion exercised in reference to their best interest. * * * The interest of the infant is deemed paramount to the claims of both parents. This is the predominant question which is to be considered by the court or tribunal before whom the infant is brought. The rights of the parents must in all cases yield to the interests and welfare of the infant." After discussing the fact that this regulatory power is in the sovereign or state, the opinion further proceeds: “It seems, then,' that by the law of nature the father has no paramount, inalienable right to the custody of his child. And the civil or municipal law in setting bounds to his parental authority, and in entirely or partially depriving him of it in cases where the interests and welfare of his child require it, does not come in conflict with or subvert any of the principles of the natural law. The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection to consult the welfare, comfort, and interest of such child in regulating its custody during the period of its minority.” Finally, the court says: “Upon a review of all of the authorities binding upon the courts of this state, I have come to the undoubting conclusion that the right of a father to the custody of his child is not absolute, and that its custody is referable to its interest and welfare, and is to be selected by the court in the exercise of a sound judicial discretion, irrespective of the claims of either parent. This conclusion is warranted by the law of the state, as well as by the law of nature. A sense of parental duty ought ever to withhold a parent from pressing his or her claims to the custody of a child whenever the true interest of such child forbids it; and, whenever this parental obligation fails to influence the conduct of the parent, it is fortunate that the enlightened principles of our law authorize our courts to interfere in behalf of the child.” See, also, State v. Smith, supra, which was a ease where the father was seeking to recover his children from the custody of the grandfather, and.relief was refused.

In the case of United States v. Green, supra, where the contest was between the father and grandfather, who were citizens of different states, over the custody of the child, the court, quoting approvingly from the opinion in the case of State v. Smith, above referred to, Mr. Justice Story, delivering the opinion, said: “As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for his interest to be under the nurture and care of its natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw it from other persons, it will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant; and, if the infant be of sufficient discretion, it will also consult its personal 'wishes. It will free it from all undue restraint and endeavor, as- far as possible, to administer a conscientious, parental duty with reference to its welfare. It is an entire mistake to suppose that the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody.” See State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223; also, note in Matter of Scarritt, 43 Am. Rep. 779; In re Bort, 25 Kan. 308, 37 Am. Rep. 255. It is said in 21 Am. & Eng. Ency. Law (2d Ed.) p. 1037 et seq., that “the guiding consideration by which the court will be influenced in determining the proper parent or other person to whom the custody of the child will be granted is always the welfare of the child” — citing in note 1 Leading Oases from England, Canada, and America in support of the text.

The following citations from our own reports are likewise in point: Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Parker v. Wiggins, 86 S. W. 788; White v. Richeson, 94 S. W. 202; State v. Deaton, 93 Tex. 243, 54 S. W. 901; Schneider v. Schwabe, 143 S. W. 265. In Legate v. Legate, supra, it was held that the law recognized the parent as the natural guardian entitled to the custody of the minor, so long as he discharged the obligation imposed upon him; but added that it did not recognize any property interest in the child, and that the state as its protector, interested in its proper education, had the right, in proper cases, to deprive a parent of its custody, when demanded by the interest of the child and of society. The same doctrine was recognized in the case of Schneider v. Schwabe, supra, wherein a writ of error was denied by the Supreme Court. Many eases hold that where the parent has voluntarily surrendered the custody of his child, or abandoned it to others, he will be denied its custody where upon application it appears that it is for the best interest of the child to remain with those to whom its custody had formerly been given. This is especially true where it is shown that it is well provided for in its new home, is surrounded by influences likely to promote its best interest, and where a tender relationship has sprung up between the child and those with whom it is living. See State v. Libbey, supra. All of the cases cited recognize the fact that if, for any substantial reason, it appears to the trial court that the parent is an improper person to have control and care of his child especially where it has been given to another, it will not disrupt the new relationship and return the child to the custody of its parent; and in State v. Lib-bey, supra, it was held to be within the sound discretion of the court, whether the custody of the child would be given to the father, and that in determining the question the court will consider, not only the fitness of the father for the trust, but the condition of the child with the person from whose custody it is sought to be taken, its relationship to such person, the present and prospective provision for its support and welfare, the length of its residence there, and whether with the consent of its father, and the understanding, tacit or otherwise, that it should be permanent, the strength of the ties that have been formed between them, and, if the child has come to years of discretion, its wishes upon the subject.

We do not think the cases cited and relied upon by appellant contravene the doctrine here announced. In the Deaton Case, 93 Tex. 243, 54 S. W. 901, there was no evidence that the mother who was the applicant was an unfit person for the custody of the child, nor did the court find as here that it would be for the best interest of the child to remain with respondent. Neither was it held in the case of Watts v. Lively, 60 S. W. 676, that the father was not a fit person to be given the custody of his child; but it was held that the mere fact that the child would be more comfortably reared with its grandpar-ets was not enough to authorize the court to disregard the father’s right. It is true that many of the cases are made to turn upon the fact that the father had, prior thereto, voluntarily surrendered the custody of the child to the care of the persons from whom he sought to remove it; but this does not seem to be an essential requisite. We take it that whenever the court from all the circumstances in evidence finds as a conclusion of fact that the best interest of the child will he subserved by awarding its custody to persons other than its .parents that this will be done irrespective’of any other consideration. But in the instant ease the children were voluntarily relinquished by appellant not, it is true, to the respondents, but to their mother. During her custody of them it seems that they became alienated from their father, and are now disinclined to return to him. The court no doubt took all these matters, as well as others shown by the record, into consideration in determining what was for the best interest of these children.

In the present case, the father having voluntarily surrendered them to their mother, she took them and for two years cared for and performed all the duties of a mother and father as well. There they naturally, if not before, imbibed and became imbued with their mother’s side of the unfortunate differences which terminated in a legal separation of their parents. During these two years relator seems rarely to have seen them, and failed to contribute to their support and maintenance, but all these duties devolved upon the mother, who faithfully discharged them with love and affection till death, at which time they followed her remains to Austin, where the respondents reside, who after the burial took charge of them. Here they found refuge in homes of culture and refinement with respondents, their relatives, who, the record shows, are willing and amply able to maintain, rear, and educate them. A tender and affectionate regard has sprung up between the children and respondents; they are anxious to remain, and are being reared and educated under Christian influences, presumably happy and contented in their new homes.

The trial court in the exercise of its discretion has determined not to disturb existing conditions on the ground that it will conserve the best interest and welfare of said children to remain with respondents; and, under all the circumstances disclosed by the record, we do not feel justified in saying that its discretion has been abused, for which reason said judgment is affirmed.

Affirmed.


author: HIGGINS, J.

text:
    TEXAS & N. O. RY. CO. v. YERKES.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.
    Rehearing Denied May 8, 1913.)
    1. Master and Servant (§ 228) — Employer’s Liability Act — Construction.
    The Employer’s Liability Act (Rev. Civ. St. 1911, arts. 6640-6652) applies to an employs working as a woodworker in railroad shops.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.]
    2. Constitutional Law ■(§ 238*) — Master and Servant (§ 228) — Equal Protection of Law.
    Employer’s Liability Act (Rev. Civ. St. 1911, arts. 6640-6652), providing that contributory negligence by a railroad employe will not bar a recovery in an injury action against a company, but only diminish the damages sustained in proportion to his negligence, does not violate the equal protection clause of the federal Constitution.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 688-690, 695, 706-708; Dec. Dig. § 238 ;* Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.]
    3. Commerce (§ 58) — Interstate Commerce —State Regulations.
    The Employer’s Liability Act (Rev. Civ. St. 1911, arts. 6640-6652), providing, among other things, that the contributory’negligence of a railroad employe shall not bar recovery, but only diminish the amount of recovery ap-portionate to the employe’s negligence, is not invalid, as obnoxious to the commerce clause of the federal Constitution, because it does not limit its application to intrastate commerce; the statute being merely inoperative, in so far as it applies to interstate commerce, if Congress has acted on the subject.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 77-86, 100; Dec. Dig. § 58.]
    Appeal from District Court, Harris County ; Norman 6. Kittrell, Judge.
    Action by S. E. Yerkes against the Texas & New Orleans Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.

      Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for ap-pellee.

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

   HIGGINS, J.

Appellee was employed as a woodworker by appellant, a railway corporation, in its shops in the city of Houston, and on June 2, 1911, sustained personal injuries while in the performance of his duties. This action was for damages resulting from such injuries, and upon trial verdict and judgment was rendered in favor of appellee, from which this appeal is prosecuted.

Contributory negligence was pleaded, and the several issues thus raised by the pleadings and evidence were appropriately submitted in the court’s charge, applying the provisions of the Employer’s Liability Act of this state (Rev. Civ. St. 1911, arts. 6640-6652), which provide that contributory negligence will not bar a recovery, but the damages sustained by the employé shall be diminished in proportion to the amount of negligence attributable to him. It is urged the court erred in applying the provisions of such act, for the following reasons: (1) The Employer’s Liability Act of this state applies only to employes suffering injury or death while engaged in operating a railroad, and not to employes killed or injured while working in repair shops, and since the evidence disclosed that appellee was injured while engaged as a woodworker in appellant’s shops he was not within the protecting scope of the act. (2) If the act does apply to employes of that class, the same is nevertheless void, because it violates the equal protection-clause of the fourteenth amendment to the federal Constitution; and (3) the act is further assailed as being obnoxious to the commerce clause of the federal Constitution (article 1, § 8, .par. 3), which confers upon the national Congress the power to regulate commerce among the several states.

As to the first objection urged, an inspection of the act will disclose that it clearly embraces within the scope of its provisions employes such as appellee. Furthermore, it has been expressly so decided in Railway Co. v. Jenkins, 137 S. W. 711, in which a writ of error was refused.

Inquiry into the question of whether or not the act violates the equal protection clause of the federal Constitution is foreclosed by numerous decisions. Discussion of this question ‘would be fruitless, and we content ourselves with citing the authorities. See Railway Co. v. Jenkins, supra; Railway Co. v. Scott, 143 S. W. 710 (writ of error refused); Railway Co. v. Taylor, 134 S. W. 819; Campbell v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878; Supreme Lodge, etc., v. Johnson, 98 Tex. 1, 81 S. W. 18; Insurance Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Railway Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463.

As we understand appellant’s position assailing the constitutionality of the act as obnoxious to the commerce clause of the federal Constitution, it is that the state law does not limit its application to the regulation of the business of intrastate commerce, and since it applies equally to interstate commerce the act in so far undertakes to regulate interstate commerce and infringes upon the exclusive legislative jurisdiction delegated to the national Congress by the constitutional provision above noted; that this infringement upon the authority vested in the federal Congress renders the entire act void, as the constitutional portions are so inter-blended with the unconstitutional parts that they are incapable of separation. In the case of Howard v. Railway Co., 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, it was held that the original federal Employer’s Liability Act applied to intrastate as well as interstate commerce, and, in so far as it applied to intrastate commerce, it exceeded the legislative authority of Congress, and that this unconstitutional feature of the act was so inter-blended in the statute as to be incapable of separation, and the entire act therefore void. At first glance it would seem that, since our state statute likewise does not limit its operation to intrastate commerce, the same process of reasoning would apply, destroying the validity of the act as a whole. However, as applied to state legislation upon this subject, the same consequence does not follow. The same question was before this court in Freeman v. Swan, 143 S. W. 724 (writ of error refused), and in discussing this question Chief Justice Peticolas said:

“A further contention was stated in argument to this effect: That the federal Employer’s Liability Act [Act April 22, 190S, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322)] was held unconstitutional in the case of Howard v. Railroad, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, because the Supreme Court construed it as undertaking to govern or control, not only cars engaged in interstate commerce, but also those engaged in intrastate commerce, and the point is made that, as the state statute is substantially a copy of that act, it is subject to the same objection, in that it purports to cover cars in every service, those in interstate commerce, as well as those in intrastate commerce. We do not believe the conclusion soundly follows for a number of reasons:

“First. Said state statutes regulating the relation of master and servant are applicable to those engaged in interstate commerce until Congress has acted. Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; M. P. Ry. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Railway v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109. The state statute, then, even if we construed it as undertaking to cover cars in every service, interstate as well as intrastate, is unquestionably valid, as against this objection, until Congress has acted. When Congress does act, as it has done, the result is simply to limit the application of the state statute to ears in intrastate service.

“Second. It is elementary law that a statute attacked for unconstitutionality will always be sustained as to those portions not clearly unconstitutional, save in the event the unconstitutional portions and the constitutional portions are so intermingled as that they cannot be severed. The very federal Employer’s Liability Act which was held unconstitutional, in so far as it purported to regulate intrastate commerce, was yet sustained as to the territories and the District of Columbia. E. P. & N. E. Ry. v. Gutierrez, 215 U. S. 97, 30 Sup. Ct. 21, 54 L. Ed. 107. It is clear that if an act of Congress attempted to regulate intrastate commerce it is necessarily unconstitutional; but it does not at all follow that a state statute, purporting to regulate safety appliances on cars in all services, or the carrier’s liability on all railroads, would be unconstitutional, because it .might to some extent affect interstate commerce. We are of opinion, therefore, that the statutes attacked are not subject to the objections urged to them.”

A like question was presented to the Texarkana Court of Civil Appeals in Railway Co. v. Turner, 138 S. W. 1126, and disposed of in an opinion by Chief Justice Willson as follows: “If it should be conceded that the state statute should be construed as an attempt to regulate interstate commerce, we do not think it should for that reason be held to be invalid, but think it should be held to be merely inoperative, in so far as it affects interstate commerce, while the federal statute remains in force. In the absence of a federal statute covering the subject, the state clearly would have power to cover- it by enactments of its own; for the subject is not one over which it can be said the power of Congress is exclusive, in the sense that the states are without power to act with reference to it, notwithstanding inaction with reference thereto on the part of Congress. Covington v. Kentucky, 154 U. S. 209, 14 Sup. Ct. 1087, 38 L. Ed. 962; 7 Cyc. 422. If the federal statute should be repealed and the state statute should not be, clearly on the repeal of the former the latter would become operative. Henderson v. Spofford, 59 N. Y. 131; 7 Cyc. 421; 17 A. & E. Enc. Law (2d Ed.) 55, 57, 59. That such a result would follow under the circumstances stated proves that the state is not without power to enact, though for the time being it is without power to enforce, such a statute.” See, also, Central Law Journal, vol. 74, No. 12, page 205.

For the reasons indicated in the authorities next above cited and quoted, we overrule the third objection.

From what has been said, it follows that the court properly refused the special charge embodied in the fourth assignment.

Since preparing the foregoing opinion, our attention is called to an opinion rendered by the Galveston Court of Civil Appeals in Railway Co. v. Bright, 156 S. W. 304, not yet officially reported, in which each of the contentions of appellant herein was adversely decided by that court. We therefore refer to this case as an additional authority in sup-> port of the views here expressed.

Affirmed.


author: PLY, C. J.

text:
    HOLT v. GUERGUIN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1913.
    Rehearing Denied May 7, 1913.)
    1. Appeal and Error (§ 877) — Harmless Error — Rulings Not Affecting Result.
    ■ A proponent of a will, contested on the ground of testamentary incapacity and undue influence, who is also a defendant in a suit, consolidated with the will contest, to set aside a deed executed by testatrix and her husband and to recover personal property may not complain of the fact that a party disclaimed in open court as to all interest in the estate, on the ground that an interest in an estate may not be relinquished in such manner; the disclaimer not depriving proponent of any interest in the estate.
    [Ed. Note. — For. other cases, see Appeal and Error, Cent. Dig. §§ 3569-3572; Dec. Dig. § 877.]
    2. Appeal and Error (§ 742) — Assignments of Error — Sufficiency.
    An assignment of error complaining of testimony objected to will not he considered, where it is not followed by an intelligible statement, and one which does not indicate what ef- ■ feet the testimony had on any issue in the case; for the court need not seek for the possible effects to ■ consider the assignment.
    [E!d. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    3. Evidence (§ 271) — Admissibility— Self-Serving Declarations.
    In a proceeding for the probate of a will, contested on the ground of testamentary incapacity and undue influence, consolidated with a suit to set aside a deed executed by testatrix and her husband, and to recover personal property, the testimony of the husband of proponent of the will, who is a defendant in the suits to set aside the deed, as to what he told a third person, not in the presence of testatrix’s husband, as to what the latter meant by having papers fixed up right away, or as soon as possible, before it was too late, was properly excluded as self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    4. Wills (§ 155) — Undue Influence — Nature.
    The undue influence which will vitiate a will must be exercised at the time of the making of the will.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 375-381; Dec. Dig. § 155.]

      5. Wills (§ 332) — “Undue INFLUENCE” — INSTRUCTIONS.
    A charge, submitting the question as to whether a testatrix was under undue influence “at or before the time of the execution of the will” to such an extent as to induce her to make a disposition different from what she would have made had she been left free, correctly defined “undue influence” at the very time of the execution of the will.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. § 785; Dec. Dig. § 332.

    Por other definitions, see Words and Phrases, vol. 8, pp. 7166-7172.]
    6. Deeds (§ 211*) — Wills (§ 55) — Mental Incapacity.
    Evidence held to show that one making a will and a deed did not possess sufficient mental capacity.
    i[Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211;* Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.]
    7. Deeds (§ 211*) — Wills (§ 166) — Undue Influence — Evidence.
    Evidence held to show that a deed and will were procured by undue influence.
    [Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211;* Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.]
    8. Wills (§ 166) — Undue Influence — Evidence.
    The existence of undue influence vitiating a will may be proved by circumstantial evidence, such as the condition of testator’s mind, his age, weakness, and infirmity, his surroundings and the circumstances attending the making of the will, the opportunity for the exertion of undue influence, the words and acts of testator and the beneficiary, the existence of confidential relations between them, and the unnatural character of the will.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.]
    9. Deeds (§ 203*) — Wills (§§ 53, 164) — Undue Influence — Mental Incapacity — Evidence — Admissibility.
    In a suit for the probate of a will disinheriting an insane son of testatrix, and to set aside a deed executed by testatrix and her husband, on the ground of undue influence and mental incapacity, evidence that about five years before the making of the will and deed the husband gave directions for the disposition of the property showing that he did not wish to disinherit the son was admissible.
    [Ed. Note. — Por other cases, see Deeds, Cent. Dig. §§ 602, 604-611; Dec. Dig. § 203;* Wills, Cent. Dig. §§ 111, 112, 120-130, 403-414; Dec. Dig. §§ 53, 164.]
    10. Appeal and Ebbob (§ 742) — Assignments of Ebbob — Review.
    An assignment of error will be overruled, where the statement under it is so imperfect that no information can be obtained from it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    11. Wills (§ 374) — Pbobate—Jurisdiction OF DISTRICT COUBT ON APPEAL.
    The district court, on appeal from the county court in proceedings for the probate of a will, tries the case de novo, and may probate the will or declare it void.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. § 840; Dec. Dig. § 374.]
    Appeal from District Court, Bexar County ; J. B. Camp, Judge.
    Consolidated suits by Adeline G-uerguin I-Iolt for the probate of the will of Mrs. Manuela Morales Guerguin, deceased, in which Leopold Guerguin and others appeared as contestants, and, by Mrs. Annie Guer-guin, as next friend of Leopold Guerguin, and others against Adeline Guerguin Holt to set aside a deed executed by testatrix and her husband, and for the recovery of personal property. Prom a judgment annulling the will and canceling the deed and for the value of the personal property, Adeline Guer-guin Holt appeals.
    Affirmed.
    Joseph Ryan, J. G. Griner, and C. C. Clamp, all of San Antonio, for appellant. Carlos Bee, Henry Stieler, and Webb & Goeth, all of San Antonio, for appellees.

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

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

   PLY, C. J.

Appellant sought to probate the will of Mrs. Manuela Morales Guerguin in the county court, and a contest was filed by Mrs. Annie Guerguin, as next friend of her husband, Leopold Guerguin, a person of unsound mind, on the ground of the mental condition of testatrix at the time the will was executed, October 6, 1910, by reason of the fact that the will was not executed as required by law, of undue influence over testatrix by appellant, and of fraud perpetrated by her. On October 16, 1911, Carlos Guer-guin, a minor, and Edna Guerguin Hill, joined by her husband, O. A. Hill, children of Leopold Guerguin, intervened in the contest, adopting the pleadings of Annie Guer-guin. The will was admitted to probate by ±he county court, and the cause -was appealed to the district court. Prior to that time Annie Guerguin, as next friend of Leopold Guerguin, had filed two suits against appellant, one to set aside a deed executed by Charles Guerguin and Manuela Morales Guerguin, parents of Leopold Guerguin and appellant, in which they had conveyed to appellant all the property they owned, as well as certain lots belonging to Leopold Guerguin; the other suit being to recover certain jewelry and other personal property. When the will contest reached the district court, the three suits were consolidated by agreement. Edna Hill, joined by her husband, for herself and her minor brother, Carlos Guerguin, filed an amended pleading, in which it was alleged that Leopold Guer-guin had died pending the suit, and that Edna Hill and Carlos Guerguin were his surviving children and only heirs at law; that Charles Guerguin, the father of Leopold, died on May 11, 1911, and Manuela Morales Guerguin, his wife, and mother of Leopold Guerguin, died on April 30, 1911, and that they at the time of their death owned the property in controversy, situated in San Antonio, and 237,135 acres of land in Mexico. It was alleged that on or about October 6, 1910, Adeline Guerguin Holt, her husband, D. T. Holt, J. G. Griner, and W. L. Frame entered into a conspiracy to deprive Leopold Guerguin, their insane father, of his share of his parents’ estate, and in pursu-anee of the conspiracy caused Manuela Morales Guerguin to execute the document purporting to be her last will and testament, whereby all the property of the estate was bequeathed to Adeline Guerguin Holt; that at said time the purported testatrix was of unsound mind, without capacity to understand the effect of the instrument she was executing, and the property she was devising, or her relation to her son; that the property sought to be devised was of the probable value of $500,000; that Manuela Morales Guer-guin at the time was about 75 years of age, and was mentally and physically weak and infirm, and was a bedridden invalid and paralytic, and executed the will under the influence and by the fraud and trickery of the conspirators named; that Charles Guer-guin was weak physically and mentally, and helpless and infirm; and that he and his wife, Manuela, were under the control, custody, and influence of appellant and wholly unable to exercise their own will. It was further alleged that on the day succeeding the execution of the will by Manuela Morales Guerguin she and her 'husband, Charles Guerguin, were induced, through the fraud, trickery, and undue influence of the conspirators, to execute a deed to the whole of their property, real and personal, to appellant; that Charles Guerguin, at the time, was nearly 90 years old, was blind and nearly completely deaf; that he and his wife were rapidly approaching dissolution, were suffering from Bright’s disease and hardening of the arteries, and in a condition of senility that rendered them incapable of understanding the nature of the transactions into which they were led by the conspirators. It was also alleged that the deed was concealed until after the death of Charles and Manuela Guerguin. Each and every allegation of the petition was specially traversed by appellant. The cause was tried by jury on special issues submitted by the court, and on the answers thereto judgment was rendered annulling the will of Manuela Morales Guerguin, canceling the deed made by Charles Guerguin and Manuela Morales Guerguin to appellant, dated October 7, 1910, canceling a deed made by Manuela Morales Guerguin and Carlos Guerguin to appellant; that ap-pellees recover from appellant lots 4, 5, and 6, block 8, new city block 972,. in San Antonio, Tex., being the homestead of Mrs. Annie Guerguin and appellees; that appel-lees recover one-half the property of the estate in Texas and Mexico; that they recover $835, being the value of certain personal property; and that they recover from appellant $10,476.54, with interest. Commissioners were appointed to appraise the real property, which was undivided, and apportion appellant a one-half interest in the same, and that the other moiety be apportioned, one half of it to Edna Hill, and the other half to Carlos Guerguin.

We fail to comprehend what injurious effect the statement of Mrs. Annie Guerguin that she waived all interest in the estate could have had upon the rights of appellant. Appellant does not claim that any injury resulted, but merely states the abstract proposition that Mrs. Guerguin owned an interest in the estate which she could not relinquish in the manner she did. The bill of exception shows that Mrs. Guerguin disclaimed, in open court, as to all interest in the estate, and it is stated that the disclaimer would be reduced to -writing. The disclaimer did not deprive appellant of a dollar in the estate. The purported assignment of error is really not one, and should not be considered. It is not followed by any statement whatever.

The second assignment of error is not followed by an intelligible statement, and does not indicate what effect, if any, the criticised testimony had on any issue in the case. It is not the province or the duty of an appellate court to seek for the possible effects that testimony objected to may have had upon the issues, but that should be clearly and succinctly pointed out in the brief. We cannot ascertain why Ftame’s connection with the Eureka Gold Mining Company could arouse the animosity or prejudice of the jury against appellant. The same objections obtain as to the third, fourth, and fifth assignments of error. Neither is followed by a statement, and it is not apparent in what manner the matters of which complaint is made could have affected appellant’s case.

The sixth assignment of error is not followed by a statement, but as it contains a statement in itself that indicates somewhat the matter' of which complaint is made it is considered. The evidence of what Holt, the husband of appellant, told Nelson, not in the presence of Charles Guerguin, as to what the latter meant by having “papers fixed up right away, or as soon as possible, before it was too late,” was properly excluded. The evidence was self-serving, and may have been a part of the alleged conspiracy to obtain the will and deed from the old people. The eases cited have no bearing upon the question sought to be raised.

The seventh assignment of error is not followed by any statement. It is considered, however, because it contains the question which is assailed by it. The only proposition is that the undue influence must have been in operation at the time of the execution of the will. The qualification of the question as to Mrs. Manuela Guerguin being under the influence of Mrs. Holt “at or before the time of execution of the will” by the words, “to such an extent that it induced the said Mrs. Manuela Morales Guex--guin to act contrary tó and to make a different disposition of her property, by the terms of said will, from what she would have made had she been left free,” relieved the charge of any ground for criticism. No matter when the influence began, if it continued up to the time of the publishing of the will and caused the testatrix “to act contrary to her own wishes,” her act was not a voluntary one and the will was not hers in law. The influence must be exercised at the time of the making, and the charge fully covered the law in that respect. Not only that, but a special charge asked by appellant and given by the court intensified and emphasized the law as to undue influence. The jury could not have done otherwise, under the evidence and the charge, than find that the will was the outcome of undue influence upon the testatrix, not only before, but at the very time of, the execution of the will. These conclusions dispose of the eighth, ninth, and tenth assignments, which are like unto the seventh.

Our conclusions as to the facts dispose of the eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth assignments of error. The only witness who swore that Mrs. Manuela Morales Guerguin had the will explained to her and fully understood it was the attorney who wrote it, and he was ijnpeached by a number of reputable witnesses. Even the physicians offered by appellant testified to the decrepit, weak condition of the old couple, both mental and physical. Dr. Paschal stated that Charles Guerguin “was blind, and had to be led around and cared for like an infant”; that Mrs. Manuela Guerguin was partially paralized, and had a general weakness of the muscular system; that the old man was in a condition to yield to influence rather than combat it; that he had Bright’s disease in an advanced stage as a result of arterial sclerosis;' that arterial sclerosis has caused a complete mental overthrow, but it does not always; is capable of it, and frequently causes paralysis, which finds its seat in the brain. Mrs. Guerguin’s paralysis began in the early part of 1910. She had Bright’s disease and hardening of the blood vessels, which is arterial sclerosis. Her condition wds progressive. Dr. Berry admitted that the old people were suffering from senility; that they were suffering from Bright’s disease and arterial sclerosis, which have a tendency to cause unsoundness of mind. He testified: “Arterial sclerosis is a progressive and incurable disease culminating in dissolution. It is a weakening disease of the organs and functions of the body, but has its effect on the system generally. It weakens the entire system, and generally the brain powers and forces, and its general effect is to diminish the resisting powers of a person and render them less aggressive and more passive. * * * Yes; I would say that it is ordinarily correct, as a rule, that a person, say, 75 years of age, paralyzed, in an advanced state of Bright’s disease, emaciated, bedridden, with arterial sclerosis, would be in a condition where there would not be much resistance to influence that would be brought to bear on them.” There was evidence tending to show that the two old people were utterly incapable of attending to any business ; that appellant would not let them sell a lot; denied more money to her afflicted brother, Leopold, who had spent his life working in the interest of her father’s estate, and had lost his mind; that she had attempted to cast doubts upon the paternity of her brother’s children; that her parents often spoke of her brother, and had great affection for them. Leopold Guerguin was industrious and economical, and conducted his father’s business until he lost his mind in 1909. Mrs. Manuela Morales Guerguin died in 1911, and was about 76 years old when she died. The aged couple lived in the same house with appellant and her husband, and the attorney who was employed to draw the will and write the deed on October 6 and 7, 1910, was a man never employed by the aged couple; their former attorney being passed over for one chosen and selected by the husband of appellant. The will was witnessed by the attorney and his stenographer. The husband of appellant was a business associate of the attorney who prepared the will and deeds. The old people did not know him. The uncontroverted evidence showed that Charles and Manuela Morales Guerguin had the most affectionate feelings for their son, Leopold, and at all times expressed solicitude for his welfare, and yet they pauperized themselves, disinherited their only son, and gave everything — -a vast fortune — to their daughter, the appellant. The testimony was sufficient to sustain the findings of the jury and the judgment of the court, not only on, the ground of the incapacity of the aged couple to convey their property, but on the ground of undue influence.

The existence of undue influence is a question of fact, and from its very nature, like all fraudulent and vicious schemes, hides its features behind masks and operates in dark and secret places and in covert ways, and proof of it must usually be by circumstantial rather than by direct testimony. Those circumstances may be the condition of the testator’s mind, his age, weakness, and infirmity, his surroundings and the circumstances attending the execution of the will, the opportunity for the exertion of such influence as would trammel or destroy the exercise of free agency in the disposition of the property, the words and acts of testator and beneficiary, the existence of confidential relations between them, and the injustice, unreasonable and unnatural character, of the will. Rollwagon v. Rollwagon, 63 N. Y. 504; Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275, 55 Am. Rep. 479; Bryant v. Pierce, 95 Wis. 331, 70 N. W. 297; In re Barney, 70 Vt. 352, 40 Atl. 1027; Marx v. McGlynn, 88 N. Y. 357; Smith v. Smith, 60 Wis. 329, 19 N. W. 47.

In the ease of Ashton v. Thompson, 32 Minn. 25, 18 N. W. 918, the Supreme Court of Minnesota said: “Upon grounds of public policy, or, as it is otherwise expressed, of public utility, equity exercises a salutary jurisdiction in setting aside donations of property made to a donee who stands in some confidential or fiduciary relation to the donor.” Such relationship would not be sufficient, standing alone, to render void a conveyance, but when coupled with such potent circumstances as the marked influence shown to have been exerted by the beneficiary in this case, the opportunity and temptation to influence, the unnatural disinheritance of an afflicted son, who had been loyal and dutiful, the affection the aged couple expressed for him, their enfeebled condition of mind and body, the officious control of the property of the parents by appellant, her slander of her brother’s children, it is ample to sustain the verdict. When the will and deed were executed, no old friend was called in as a witness, no old legal adviser was requested to draw the instruments, but the attorney and the man who witnessed with him were strangers and in their hands was left the disposition of half a million dollars worth of property.

As said by the Supreme Court of Massachusetts in Woodbury v. Woodbury, 141 Mass. 329, 5 N. E. 275, 55 Am. Rep. 479: “It is often difficult to show by direct proof the undue influence, and direct evidence of the actual exercise of such influence can hardly be expected. Oftentimes the means of keeping the influence out of sight are many and easy of application, and yet the result may be clearly apparent. Delafield v. Parish, 25 N. Y. 9. The fact of the influence exerted is more often gathered from all the circumstances surrounding the donor, his health, age, and mental condition, how far he was dependent upon and subject to the control of the person benefited, the opportunity which he had to exercise his influence, and the disposition of the donor to be subject to it. In addition, the fact of influence by the donee over the donor having been established, it is not necessary to show by absolute evidence that this was exercised by the donee at the time the gift was made. Undue influence must be exercised in relation to the gift made, and not as to other transactions, in order to invalidate a gift thus obtained. But if the jury find from the evidence that, at or about the time when the gift was made, the alleged donor was, in other important particulars, so under the influence of the person receiving the gift, that, as to them, he was not a free agent, but was acting under undue influence, the circumstances may be such as fairly to warrant the conclusion, from the absence of any evidence bearing directly upon acts done when the alleged gift was actually made, that in relation to that also the same undue influence was exerted.” That doctrine need not be invoked in this case, however, for the suspicious circumstances followed the lives of the aged couple to the very time of the execution of the will, deed, and other instruments, and cry out against the whole transaction as illegal, fraudulent, and unnatural.

It is insisted that a moving cause for the execution of the instruments which stripped the insane son of any inheritance in property that he had devoted his life to enhancing in value, and robbed the minor grandchildren (the only ones, by the way) of any part in the estate, was caused by the hatred of the aged couple to their daughter-in-law, but how easy it would have been to have devised the property so that she could not have reached it, and, even if the insane father had been deprived of it, to have given something to the minor grandchildren. The legal adviser and doubtless the appellant knew that, but it was not suggested. According to the testimony of the mother of appellees, the old people did not entertain any animosity to her, but invited her to call on them, which she was not permitted to do by appellant. The wife was even deprived of the privilege of seeing her husband by appellant, after he was taken to his parents’ home. After the husband left for the asylum, Mrs. Guerguin was denied admittance to the presence of her parents-in-law; the reason given by appellant being that they were sick and would cry. The minor appellee, • Carlos Guerguin, was his grandfather’s namesake, and had been so named by his grandmother. He was the only grandson, and yet by the instruments under which appellant claims the property he was totally disinherited and his paternity and that of his sister questioned by the beneficiary in the instruments, the appellant herein.

The directions given by Charles Guerguin to his wife five years or more before the disposition of the property was made, which is herein in controversy, clearly show that he did not wish to disinherit his son, but wanted him to have one-half the property. If he desired to deprive his daughter-in-law of any interest in the estate, he could have done so without depriving the son .and grandchildren of all interest in the estate. Those directions anyway merely showed the state of his mind long before the will, deed, and other instruments were executed, and there was evidence tending tc show that it did not exist in 1910.

The statement under the eighteenth assignment of error is so imperfect and obscure that no information can be obtained from it, and the assignment is overruled. The assignment in the brief is different from that in the record.

The nineteenth assignment of error is overruled. When the case involving the probate of the will was appealed to the district court, that tribunal tried the cause de novo, and had the authority to probate the will or declare it null and void. There is no ruling •to tile contrary in the case of Buckner v. Wait, 137 S. W. 383, cited by appellant. In that case it was held that the district court could not, in an original proceeding, interfere with the administration of an estate in the county court; but it was not held that the district court did not have the authority to try a probate case appealed from the county ■court, and to render a different judgment from that rendered in the county court. Such holding would be in the face of the Constitution and laws of the state. R. S. 1911, art. 1706.

The twentieth and twenty-first assignments of error are not followed by - statements casting any light on them, and they are overruled.

The case of Salinas v. Garcia, 135 S. W. 590, decided by this court, is invoked as being applicable to the facts in this case, but the facts in that case are not similar to the facts in this. The will in the Salinas Case was drawn by a man who was an old friend to the testatrix, who was well and favorably known throughout Texas, and who was wholly unprejudiced. The will was in favor of her sons, who had cared for their mother and attended to her business, and there-was no evidence of undue influence. Every case must be tested by its peculiar facts; and, while the law as expressed in the cited case is the law at all times, it must have facts to which it can be applied. This court has con-' sistently thrown about the wills of aged persons every safeguard and protection vouchsafed by law and supported by facts, but it cannot set aside a judgment annulling a will, where the verdict upon which it is based is as well sustained as in this case.

The judgment is affirmed.


text:
    GLOVER v. ALBRECHT, Dist. Clerk, et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 10, 1913.
    Rehearing Denied May 8, 1913.)
    1. Mandamus (§ 187) — Review—Demurrer.
    In reviewing an order sustaining a general demurrer to a petition for mandamus, the court must be governed by the allegations of the petition, and cannot consider special matters of defense pleaded by respondents in their answer.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 427-137; Dec. Dig. § 187.]
    2. Mandamus (§ 154) —Right to Writ — Petition.
    Plaintiff filed a petition for mandamus against the clerk to compel the issuance of execution on a judgment, alleging that the judgment was recovered April 19, 1911, and on the next day the judgment defendant filed a motion for new trial; that the regular judge being ill he was unable to hold the term of court, and that a special judge was selected, who held the court until April 23, 1911, when the regular judge died; that by his death the term came to an end, and that his successor did not qualify until April 28th following; that defendant’s motion for a new trial was not submitted to the court for decision prior to adjournment of the court occasioned by the death of the regular judge, and not having been acted on during such term, was by operation of law overruled or waived, and that the judgment in favor of plaintiff remained in full force and effect; that it was not appealed from or superseded, and that plaintiff became entitled to an execution 30 days after the adjournment of the term, and that, more than such time having elapsed, plaintiff made demand therefor on the clerk, and was refused. Held that, under the rule that all reasonable intendments in favor of the petition shall be indulged as against a general demurrer, the allegations were sufficient to show that no action had ever been taken on the motion for a new trial, and that plaintiff was entitled to his execution as a matter of right.
    [Ed. Note. — For other eases, see Mandamus, Gent. Dig. §§ 296-316; Dec. Dig. § 154.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by W. J. Glover against Henry Al-brecht, clerk of the district court of Harris county, for mandamus to compel defendant to issue an execution on a judgment recovered by plaintiff against the Houston Belt & Terminal Railway Company. From a judgment dismissing the suit, plaintiff brings error.
    Reversed and remanded.
    See, also, 149 S. W. 1192.
    Gibson, Fenn & Wander, of Houston, for plaintiff in error. Andrews, Ball & Street-man, A. L. Jackson, and McDonald Meachum, all of Houston, for defendants in error.

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

   HIGGINS, J.

Plaintiff in error instituted this suit in the district court of Harris county, against Henry Albrecht, clerk of said court, .and the Houston Belt & Terminal Railway Company, his petition containing the following allegations: That Albrecht was the duly elected, qualified, and acting clerk of said court; that on April 19, 1911, plaintiff, upon a trial before a jury, obtained a' verdict in the sum of $7,500 against the Houston Belt & Terminal Railway Company in cause No. 50,189, entitled William J. Glover v. Houston Belt & Terminal Railway Company, in accordance with which judgment upon said date was accordingly rendered in his favor; that this judgment was entered in the minutes of said court on April 19, 1911; that on April 20, 1911, said Houston Belt & Terming.1 Railway Compiany filed its .motion for a' new trial in said cause. The judgment and motion for new trial were set out in full in the petition. It was further alleged that the judgment was rendered at a regular term of said court, which convened on Blarch 6, 1911, and which term by law was permitted to continue for the months of March and April; that on the first Monday of said March, the same being the date provided by law for the convening of said term, J. A. Read was duly elected by the practicing attorneys of the Harris county bar to preside at said term in the absence of the Hon. William P. Hamblen, who was then and there the duly elected, qualified, and acting judge of said court, and who was absent by reason of illness and unable to convene and hold said term of court; that such illness of the regular judge continued until April 23, 1911, upon which date he departed this life; that during said illness the said term of court continued to be held from March 6th until the 22d day of April, 1911, by the said special judge, J. A. Read, who presided over the court and administered the functions of said office as special judge in the absence of said Hamblen, and he carried on and conducted the business of said court until the 22d day of April, 1911.

Paragraphs 4 and 5 of said petition read as follows:

“(4) Now your petitioner would further show that April 23, 1911, was Sunday, and that there was no court in session, and that at the death of Judge W. P. Hamblen the said regular March term of court, which had then and theretofore been carried on and conducted by the special judge presiding during the illness of said W. P. Hamblen, became and was adjourned by operation of law, and that said term of court became and was at an.end, and that the powers and authorities of said J. A. Read as such special judge expired at the death of said Judge W. P. Hamblen, the regular, duly elected, and qualified judge of said court, and that the regular March term, 1911, which had been theretofore convened, was concluded •and at an end; that the vacancy in the office •of district judge of said Fifty-Fifth judicial district occasioned by the death of Judge Hamblen was not filled until the 28th day of April, 1911, by the appointment by the Gov•ernor of Texas of William Masterson, who only qualified and took the oath of office on the 28th day of April, 1911.

“(5) Now plaintiff would further show that said formal motion for a new trial, which had been theretofore filed in said •court at the regular March term thereof on the 20th day of April, 1911, as aforesaid, in •said cause No. 50,189, styled as aforesaid, was not submitted to the court for decision prior to said adjournment of court occasioned by the death of Judge Hamblen, not having been acted upon during the term of court at which the same had been filed, was by operation of law overruled or waived, and became and was without further force or •effect, and that the judgment theretofore rendered in said cause on the 19th day of April, 1911, in favor of William J. Glover •against the Houston Belt & Terminal Railway Company became and was final and in full force .and effect.”

It was further alleged that the judgment Tendered in said cause No. 50,189 was not appealed from by the defendant therein, mor in any manner superseded, and that the plaintiff became and was entitled to have an •execution issued upon said judgment 30 days after the adjournment of said term of court at which the same was rendered; that more tha.n 30 days had elapsed since the adjournment of said term; that the defendant in said judgment had not paid or satisfied' the same or any part thereof, and plaintiff had made due demand in writing, on June 28, 1911, to the defendant, Albrecht, clerk as aforesaid, for the issuance of an execution upon said judgment to enforce the collection thereof, and that said Albrecht had refused and still refuses to issue such execution, thus defeating plaintiff in the collection thereof, and was thus withholding from him the due and lawful process of the law to which he was entitled to enforce such collection. Albrecht being a party at interest and disqualified to act in the cause, the appointment of a special clerk was prayed, and upon trial it was prayed that a writ of mandamus issue to the said clerk directing him to'issue a writ of execution upon the said judgment rendered in cause No. 50,189 to enforce its collection.

Upon hearing a general demurrer to the petition was sustained; and, the plaintiff declining to amend, the suit was dismissed. In so doing we think the trial court erred. In determining the correctness' of his action in this matter, we must be governed by the allegations contained in the petition, and cannot take into consideration the special matters of defense pleaded by the respondents in their answer. These are matters in avoidance of the facts alleged in the petition, and can only be considered after a hearing upon the merits and proof of the facts therein alleged has been adduced. These special matters of defense were presented to this court upon a motion to dismiss the appeal, and it was there held that they affect the question of whether or not the mandamus should or should not be granted. And it is, of course, manifest that they cannot be considered in determining the sufficiency of the petition, since the petition upon its face does not disclose the existence of those facts.

The fourth allegation of the plaintiff’s petition contains an averment of a legal conclusion to the effect that the death of Judge Hamblen,by operation of law adjourned said term of court, and that the power and authority of Judge Read to act in his place and stead thereby terminated. It is unnecessary for us to pass .upon the correctness of this legal conclusion, since the petition alleges that the motion for a new trial was not submitted to the court for a decision prior to the adjournment occasioned by the death of Judge Hamblen, and not having been acted upon during the term of court to which the same was filed was thereby overruled or waived, and the judgment rendered in the cause became final.

Indulging all reasonable intendments in favor of the sufficiency of a petition as against a general demurrer, it must be held that the allegations contained in this petition were sufficient to show that no action had ever been had upon any motion for a new trial filed in the cause, and that no order had been entered granting, a new trial and setting aside the judgment theretofore rendered; and, in the absence of any such order, appellant was entitled to his execution as a matter of right.

For the reasons indicated, the judgment of the lower court is reversed, and the cause remanded for a trial upon its merits.


text:
    PARKER v. CLAY ROBINSON & CO. et al.
    (Court of Civil Appeals of Texas. El Paso.
    April 24, 1913.)
    1. Venue (§ 32) — Place of Suit — Domicile —Personal Privilege.
    The right to be sued in the county of one’s domicile is a personal privilege, and does not affect the jurisdiction of the court to render judgment if it has jurisdiction over the subject-matter.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    2. Venue (§ 32) — Place oe Suit — Suit in Wrong Counts-— Objection — Method.
    The privilege to be sued in the county of defendant’s domicile cannot be raised by general demurrer, though the fact that the court has no jurisdiction over defendant’s person appears on the face of the petition, but the question must be raised by a plea of privilege verified' by affidavit.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.]
    Appeal from District Court, Brewster County; A. M. Walthall, Judge.
    Action by Joe Parker against Clay Robinson & Co. and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    J. D. Martin, of Alpine, for appellant. J. C. Brooke and W. Van Sickle, both of Alpine, and Capps, Cantey, Hanger- & Short and David B. Trammell, all of Ft. Worth, for appellees.

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

   HIGGINS, J.

Appellant instituted this suit in the district court of Brewster county against W. F. McGaughy, a resident of Brewster county, and Clay Robinson & Co., a corporation, domiciled in Tarrant county, upon a draft drawn by McGaughy in the sum of $2,539 to the order of appellant upon Clay Robinson & Co., drawee, dated April 26, 1912. Clay Robinson & Co. filed a plea to the jurisdiction of the court over its person, claiming its privilege of being sued in the county of its residence, and, subject to such plea, filed an answer consisting of a general demurrer and certain special exceptions to the form of the plaintiff’s petition, a general denial, and specially pleaded other facts in bar of the action. On September 16, 1912, an order was entered reciting that on that date the plea of privilege of Clay Robinson & Co. came on to be considered by the court, and it appearing to the court that an issue of fact was raised by the pleadings as to the agency relation of McGaughy to Clay Robinson & Co. and of the liability of said last-named defendant, and it further appearing that the plaintiff had demanded a trial by jury upon such issues of fact, the court therefore declined to hear evidence in support of the plea of privilege, and it was therefore ordered that the plea be overruled, and the same be submitted to a jury to be thereafter impaneled in the cause to hear and determine the plea. This order is peculiar, as it first states that it overrules the plea of privilege, and follows it up immediately by ordering that the trial of the issues raised by the plea be submitted to a jury for determination. These orders are contradictory, and, considering the order in its entirety, we think the proper construction to be placed thereon is that it was merely the entry of record of the court’s opinion that an issue of fact was raised which the court considered should be submitted to a jury and that he should refuse to hear evidence thereon. This is the construction of the order placed thereon by ap-pellees, and we think it correct. Thereafter, on September 21st, the judgment was entered from which this appeal is prosecuted. This judgment recites that the general demurrer and special exceptions of Clay Robinson & Co. to plaintiff’s second amended original petition came on to be heard, said Clay Robinson & Co. at the same time not waiving but insisting upon and urging its plea of privilege; that, after hearing the general demurrer and special exceptions, the court was of the opinion that the special exceptions should be overruled, but that Clay Robinson & Co.’s general demurrer as applied to plaintiff’s right to sue it in Brewster county should be sustained, which general demurrer the court had considered in connection with the plea of privilege. It was further recited that the court was of the opinion that it was apparent upon the face of plaintiff’s petition that same did not show any joint liability on the part of Mc-Gaughy and Clay Robinson & Co. so as to authorize the latter to be sued out of the county of its domicile, and that it did not maintain any office in Brewster county, and that none 'of the exceptions existed which would authorize the suit to be brought out of the county of said defendant’s residence were shown by any of plaintiff’s allegations in his petition. It was therefore ordered and adjudged by the court that Clay Robinson & Co.’s special exceptions be overruled, but that the general demurrer of Clay Robinson & Co. to the petition of plaintiff as applied to its right to be sued within the county of its domicile be sustained, and it was therefore ordered that the suit be transferred to Tarrant county. In this same judgment a general demurrer of McGaughy was sustained and the suit dismissed as to Mc-Gaughy.

The right to be sued in the county of one’s domicile is a personal privilege, and does not affect the authority of the court to render judgment in the cause if it has jurisdiction over the subject-matter.

In order to claim the privilege, .it must be done by a plea of privilege in the form prescribed by law and verified by affidavit. It is unnecessary to cite authorities in support of this view. There are also decisions which hold that, where the petition upon its face discloses that the court has no jurisdiction over the person of the defendant, the question of venue may be raised and the right preserved by a special exception addressed to the petition. We know of no authority which permits' the privilege to be claimed in any other way, and it has been expressly decided that a general demurrer to the petition is not sufficient. McKie v. Simpkins, 1 White & W. Civ. Cas. Ct. App. § 279. The petition upon its face may have affirmatively disclosed that no exception existed authorizing the suit against Clay Robinson & Go. to be filed in Brewster county, but this would not have affected the authority of the court to proceed 'to final judgment unless the privilege to be sued in Tarrant county was asserted -by proper plea , or special exception seasonably filed. A general demurrer in no wise relates to or raises that question.

For the reasons indicated, the judgment of the lower court is in' all respects reversed and remanded.

McKENZIE, J., did not sit in this case.