author: RICE, J.

text:
    THOMAS GOGGAN & BROS. v. MORRISON et ux.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 26, 1913.
    On Motion for Rehearing, Jan. 28, 1914.)
    1.Abatement and Revival (§ 8) — Grounds oe Abatement — Another Action Pending.
    A pending action in another county, brought by the payees of a check against the makers to enforce its payment, could be pleaded in abatement of an action by the makers against the payees and the bank on which the check was drawn to cancel the check and enjoin the payees from prosecuting their suit and the bank from paying the check; the subject-matter being the same, and makers being entitled to set up their present cause of action as a defense in the other action.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 39-56, 58-63, 68-72; Dec. Dig. § 8.]
    2. Courts (§ 475) — Concurrent Jurisdiction-Pending Action.
    Suits cannot be maintained at the same time in two counties in different courts having concurrent jurisdiction, where the parties and the subject-matter are the same, but the court first obtaining jurisdiction will have exclusive jurisdiction of the suit.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1229, 1231-1239, 1247-1259; Dec. Dig. § 475.]
    3. Venue (§ 7) — County oe Domicile.
    Under Rev. Civ. St. 1911, art. 1830, cl. 5, prohibiting one from being sued out of the county of his domicile, except where he has contracted in writing to perform an obligation in any particular county, when he may be sued therein, defendant must have contracted in writing to perform the contract relied on, to authorize suing him in such county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. § 7.]
    4. Venue (§ 22) — Domicile oe Defendant-Unnecessary Parties.
    If another, joined as defendant, was not a proper party to the action, such joinder would not give the court jurisdiction of an action against the other defendant brought in a county other than his domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    5. Venue (§ 22) — County of Domicile.
    Where the petition, in an action against the payees of a check and the bank on which it was drawn to enjoin the enforcement of the check and to cancel the check, did not allege a tort or joint contract, so as to make the bank liable, the joinder of the bank did not confer jurisdiction to maintain an action against the payees in a county out of their domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    6. Parties (§ 25) — Checks — Liability of Bank.
    Since the drawing of a check created no obligation by the bank in favor of the payee in absence of acceptance by the bank, and it would be liable upon paying it, if ordered not to do so by the maker, the bank was not a proper-party defendant in an action by the maker of a check on the bank for goods purchased to cancel the check and shipping order and enjoin the prosecution of a suit to enforce payment of the check by the seller of the goods.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 31, 36-40; Dec. Dig. § 25.]
    7. Venue (§ 8) — County of Domicile — Wrongful Garnishment.
    Rev. Civ. St. 1911, art. 1830, cl. 9, provides that, where the foundation of a suit is a trespass, for which a civil action for damages may lie, suit may be brought either in the county where the trespass was committed or in that of defendant’s domicile, and subdivision 8 permits an action for damages for wrongfully suing out of an attachment to be brought in the county where the writ was issued or levied, but makes no provision for actions for damages from abusing garnishment process. Held, that an action for damages for maliciously suing out a writ of garnishment could not be maintained in the county in which the garnished funds were located instead of that of defendant’s domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.]
    8. Pleading (§ 111) — Plea of Privilege-Necessity of Proof.
    A plea of privilege to be sued in the county of defendant’s domicile may be raised by exception without an offer of proof to sustain it, where plaintiff’s pleadings disclose the facts upon which the plea is based.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.]
    9. Process (§ 6) — Amended Petition — Notice to Opposite Party — Necessity.
    Under Rev. Civ. St. 1911, art. 1824, providing that, where an amended pleading is filed in vacation, five days’ notice thereof must be given to the opposite party, defendant was entitled to notice of the filing of an amended petition alleging a new cause of action, though it had filed exceptions to the original petition.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 6; Dec. Dig. § 6.]
    10. Judgment (§ 525) — Construction.
    A judgment recited that the case came on regularly for trial and plaintiffs announced ready for trial, and it appearing to the court that defendant bank had been duly cited as required by law and had duly filed its answer and appeared, and, notwithstanding such fact, neither of the defendants appeared further, and offered no objection why judgment should not be rendered ¿or plaintiffs, and all matters of fact as well as of law were submitted to the court “and the court having heard the pleadings, the evidence, and the argument of counsel, and fully understanding the matter, it is of the opinion that the law is with the plaintiffs,” after which judgment was entered for plaintiffs as stated. Held, that the judgment showed that the court passed upon defendant’s defenses in rendering juagment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 568, 968, 982½ ; Dec. Dig. § 525.]
    On Motion for Rehearing.
    11. Appeal and Error (§ 715) — Record-Affidavits.
    An affidavit of counsel for plaintiff as to the dismissal of another suit cannot be- considered on appeal, being no part of the appellate record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2964, 2965, 3273; Dec. Dig. § 715.]
    12. Judgment (§ 17) — Pleadings to Sup- . PORT.
    Where a judgment for plaintiff was rendered on an amended petition alleging a new cause of action not set up in the original pleadings, and of the filing of which defendant had neither actual nor constructive notice, and neither he nor .his counsel were present in court at trial, the judgment will be set.aside in direct proceedings for that purpose.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33, 157, 422; Dec. Dig. § 17.]
    Error to Milam County Court; John Watson, Judge.
    Suit by W. A. Morrison and wife against Thomas Goggan & Bros. Judgment for plaintiffs, and defendants bring error.
    Reversed, and remanded, with instructions.
    James B. & Charles J. Stubbs, of Galveston, for plaintiffs in error. W. A. Morrison, of Cameron, for defendants in error.

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

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

   RICE, J.

On the 12th of July, 1912, as appears from the pleadings, Mrs. W. A. Morrison, while in Galveston, contracted to purchase from Goggan & Bros., a corporation, an Emerson piano, stool, and scarf for the sum of $332.50, executing and delivering to it in payment therefor her personal check on the Citizens’ National Bank of Cameron, Tex., for said sum, payable to the order of plaintiff in error, and at the same time signing and delivering to it a shipping order, promising payment therefor in Galveston county, and containing other stipulations of the purchase. On returning to Cameron the next day, she wired plaintiff in error, countermanding said order, and notified said bank not to pay said check, which said telegram was promptly delivered to plaintiff in error, notwithstanding which it shipped said piano, etc., to her address at Cameron, Tex., which she refused to receive. Payment of said check being refused by the bank, plaintiff in error thereafter brought suit in the county court of Galveston county against her and her husband, W. A. Morrison, to enforce payment thereof, alleging that he had acted with her in said purchase and execution of said check; in which suit defendants in error appeared and urged their- plea of privilege to be sued in Milam county, which was overruled and cause set down for trial. Thereafter, on the 25th of September, 1912, Morrison and wife brought this suit in the county court of Milam county, against plaintiff in error and the Citizens’ National Bank of Cameron to cancel said check and shipping order,, and to enjoin plaintiff in error from prosecuting its suit and said bank from the payment of said check.

Plaintiff in error on October 7th filed exceptions to the original petition, because it appeared therefrom that the county court of Milam county had no jurisdiction over it, and that it appeared therefrom that its domicile and places of business were in Galveston and elsewhere, but not in Milam county, when said suit was filed, and because it did not appear that the cause of action or any part thereof arose in said county, nor that its principal office was situated therein, or that it had an agent or representative in Milam county. It further excepted on the ground that said petition failed to show that the cause of action sought to be alleged came within any of the exceptions to exclusive venue in the ■ county or counties designated in clause 24 of article 1830, R. S., or in other clauses thereof, or in article 1834 and article 2308 of the Revised Civil Statutes; and further because it failed to state a cause of action against the Citizens’ National Bank, and it did not appear to be a necessary or proper party- thereto; and likewise filed its,plea of ■personal privilege to be sued in Galveston county, the county of its residence, setting up also in abatement the pendency of the Galveston county suit.

On October 11, 1912, Morrison and wife filed their first amended original petition, in lieu of their original petition, filed September 25, 1912, and to the averments in the latter- added the following: That Goggan & Bros., for the malicious purpose of injuring and harrassing them, on August 21, 1912, sued out a writ of garnishment in the Galveston county ease, causing same to be served upon the Citizens’ National Bank of Cameron, in which bank both plaintiffs had money on deposit, more than sufficient to pay the sum mentioned in the garnishment, and that by service of said writ plaintiff in error, in furtherance of its purpose to annoy them, procured said sums to be impounded in said bank, and thereby became liable to pay them legal interest thereon from August 22, 1912, to the end of this suit, alleging that the issuance and service of said writ was without probable cause and was maliciously sued out in order to injure them; claiming $500 exemplary, damages, which was not claimed in their original petition, together with $75 actual damages, which was $25 more than was alleged in their original petition, and pleaded expense and trouble of having to travel to Galveston as additional grounds for exemplary damages, repeating their prayer for Injunction.

A jury having been waived, judgment was rendered in the case on the same day the amended petition was filed, against plaintiff in error for $67.15 actual and $100 exemplary damages, and the injunction against it and the bank was perpetuated, and the writ of garnishment declared canceled, as well as the check and contract, and the bank enjoined from answering the garnishment or from paying the money mentioned in the cheek or any other amount, relieving the plaintiffs from all liability by reason of said contract, check, and garnishment, and enjoining plaintiff in error from transferring both said check and said contract, and requiring that it deposit both in said court for cancellation, from which judgment this writ of' error is sued out.

It is urged by plaintiff in error that the court erred in rendering judgment against it for various reasons: First, on the ground that its objections to the jurisdiction of the court and its plea of privilege were not sustained; and second, that it erred in not sustaining its plea in abatement; and likewise contended that neither plaintiffs’ original nor amended petition showed any cause of action against it; and further erred in rendering judgment against it on said amended petition, for the reason that the same set up new causes of action, in addition to those alleged in the original petition; and that it nowhere appears in the record that plaintiff in error had notice of the filing of said amended petition, or appeared and answered thereto.

We will now discuss these questions, not, however, in the order named. First, Did the court err in overruling the plea in abatement, setting up the pendency of the Galveston suit? We think so. It clearly appears from the pleadings of defendant in error that another suit was pending in Galveston county between the same parties, involving the same subject-matter, and in which the defendants in error could have asserted, as a defense, the same cause of action set up in the Milam county suit. This being true, we think, as a matter of comity and public policy, it ought to defeat their right to prosecute this suit.

Two courts of concurrent jurisdiction1 will not, at the same time, entertain, a suit between the same parties over the same subject-matter ; but the court first obtaining jurisdiction will hold it to the exclusion of the other. 11 Cyc. p. 985, subd. 2; Bonner v. Hearne, 75 Tex. 242, 12 S. W. 38; Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Arthur v. Batte, 42 Tex. 160; Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086; McCorkle v. McCorkle, 25 Tex. Civ. App. 149, 60 S. W. 434; State v. Burnett, 9 Tex. 43; Clepper v. State, 4. Tex. 245.

In Cyc., supra, it is said: “Where two actions between the same parties on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy.” Again, in 1 Cyc. 21, it is said that: “It is a general principal of the law that the pendency of a prior suit for the same thing; or, as is commonly said, for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit. The principle on which pleas of another action pending are sustained is that the law, which abhors a multiplicity of suits, will not permit a debtor to be har-rassed and oppressed by two actions to recover the same demand, where the creditor can obtain a corpplete remedy by one of them.” It is said further, in the same work (page 22) that: “The rule, however, is not one of unbending rigor or of universal application ; nor is it a principle of absolute law. It is rather a rule of justice -and equity generally applicable, and always so, where the two suits are virtually alike and in the same jurisdiction.” But it is said in 1 Cyc. p. 34, subd. 5, that: “The plea of a prior action pending applies only where plaintiff in both suits is the same person and both are commenced by himself, and not to cases where there are cross-suits by plaintiff in one suit, who is a defendant in the other,” citing eases from various states in support of the text. An examination of these cases discloses'that some' are not applicable, for the reason that they were between different parties; others because the points raised were different in character; some on account of the fact that one was a suit in equity, whereas the other was in a court of law; while others amply support the text. It is contended, however, by defendants in error that this general doctrine does not obtain in Texas, citing in support of their insistence Garza v. Piano Co., 126 S. W. 906; Gin Co. v. Mill Co., 152 S. W. 856; Ins. Co. v. Hargus, 99 S. W. 580. The first two cases are in accord with their contention and should be followed, if announcing the correct doctrine; but to do so, in our opinion, would likely result in such confusion and conflict as justifies us, we think, in declining to follow them. The earlier cases in Texas where the question is discussed seem to hold, as stated in the syllabus in Payne v. Benham, supra, that: “A plea of former suit pending for the same cause of action, if sustained, will not abate the latter suit, but the plaintiff will be put to his election which suit he will prosecute, and be required to abandon the other and pay the costs of it.” See, also, Trawick v. Martin-Brown Co., 74 Tex. 522, 12 S. W. 216; Ry. Co. v. Barton, 24 Tex. Civ. App. 122, 57 S. W. 292. Those were cases, however, in which the plaintiff was undertaking to prosecute two separate and distinct suits against the same defendant, whereas, in the present case the parties are reversed. We cannot think, however, that this should make any material difference in principle, because the same results would follow in either event. If two suits between different parties could be maintained in different courts at the same time, involving the same subject-matter, the anomolous condition would be presented of one court ordering the performance of a certain thing which the other might forbid. The present case affords an apt illustration of such conflict. If in Galveston Case should go in favor of plaintiff in error, then such judgment would permit a recovery by it of the amount of said check against defendants in error, as well as against the garnishee for the amount shown to be due by it to defendants in error, with process to enforce it; whereas, if defendants in error recover in the Milam county suit, its judgment would cancel said check and shipping order, and forbid the payment thereof by the Milam county bank and require their surrender for cancellation, a condition of things, we think, never contemplated in our jurisprudence. And, if it were permissible for the same parties to file two, what would prevent their filing any number of suits in different courts, involving the same subject-matter? thus producing interminable confusion and controversy; whereas, if the rule asserted by us announces the correct doctrine, no such confusion could exist, and but one judgment.could be entered. We believe that the court below erred in failing to sustain said plea, for the reasons stated.

However, it is not necessary to base our decision solely upon this phase of the case, since it must, in any event, be reversed, tor reasons hereinafter stated on other features of the case as made by the record.

We think the exceptions presented to the jurisdiction of the court should have been sustained, for the reason that it appeared from the averments of the petition in the Milam county suit that said court had no jurisdiction over plaintiff in error. But it is contended by defendants in error that said jurisdiction should be sustained for several reasons: First, because it is alleged that said contract was to be performed in Milam county; second, because the bank, whose residence is in Milam county, was made a party defendant therein; and third, because funds belonging to defendants in error were impounded in the Milam county bank by reason of the garnishment proceedings.

With reference to the first insistence, it is sufficient to say that it is not averred that plaintiff in error contracted in writing to perform any obligation or do any particular thing in Milam county, and therefore it could not be held in such county. See clause 5, art. 1830,' R. S. 1911.

With reference to the second contention, it is sufficient to say that, if the bank is not a proper or necessary party, then the mere fact of its being joined as defendant would not give jurisdiction to said court. See House v. Kountze Bros., 17 Tex. Civ. App. 402, 43 S. W. 561; Chaison v. Beauchamp, 12 Tex. Civ. App. 109, 34 S. W. 303.

Petition fails to show cause of action against the bank. Railway Co. v. Land & Lumber Co., 54 S. W. 324; Russell v. Heitmann & Co., 86 S. W. 75; Ry. Co. v. Mangum, 68 Tex. 342, 4 S. W. 617. No joint tort nor joint contract is alleged; hence joining the bank did not confer jurisdiction over plaintiff in error. Edwards v. Buchanan, 14 Tex. Civ. App. 268, 36 S. W. 1022. See, also, Sass v. Ry. Co., 17 Tex. Civ. App. 603, 43 S. W. 271.

So the question recurs as to whether said bank was a proper or necessary party. Defendants in error alleged that they had on deposit in said Milam county bank a greater amount than necessary to pay said check, and made said bank a party for the purpose of enjoining the payment thereof. The mere fact that a check was drawn by Mrs. Morrison against said bank, in the absence of an acceptance by the bank, created no obligation against it in favor of the drawee, and was not binding upon it. See Garner v. Thomson, 35 Tex. Civ. App. 283, 79 S. W. 1083; Atchison, etc., Ry. Co. v. Waddell, 38 Tex. Civ. App. 434, 86 S. W. 655; 17 En. Dig. Tex. Repts. 471-473. And, if the bank had paid said check after the defendants in error had ordered it not to do so, then it became liable to them therefor. So we conclude that the bank, under the aver-ments in the pleadings, was neither a necessary nor a proper party to this suit, and therefore jurisdiction cannot be sustained in Milam county on this ground.

But it is contended by defendants in error that the impounding of the funds by the writ of garnishment was such a trespass on their property as would give jurisdiction in Milam county under clause 9 of article 1830, R. S. 1911; wherein it is said that, where the foundation of a suit is a trespass for which a civil action in damages may lie, then the suit may be brought in the county where such trespass was committed, or in the county where the defendant has his domicile. While we concede that the unlawful and fraudulent suing out of' the writ of garnishment would furnish the basis for a suit against the defendant so abusing the process of the court, still this furnishes no reason why the suit to recover damages therefor could be brought in another county than that of the residence of the defendant. See Hubbard v. Lord, 59 Tex. 384; Townes on Pleading, pp. 221 to 224. The fact that the defendants in error had deposited funds in the Milam county bank gave them no right to any particular dollar in said bank, but simply created the obligation of creditor and debtor between them and said bank; and the mere suing out of a writ of garnishment, however wrongful the same may have been, constituted, in our judgment, no trespass against their property in Milam county, because such bank had none in their possession. The fact that our statute permits an action for damages to be brought against one who wrongfully sues out a writ of attachment or sequestration in the county where issued or levied, and fails to make any such like provision covering the issuance and service of writs of garnishment, is significant, at least, that it was not intended that suits for the wrongful issuance or levy of such writs could be brought in any county .other than the residence of the defendant. Subdivision 8 of article 1830, E. S. 1911, was first enacted on March 29, 1889, and prior thereto suits to recover damages for the wrongful issue and levy of attachments could not be maintained against the plaintiff in attachment in any other county than that of his residence, except it be alleged and shown that the writ was not only "unlawfully and wrongfully sued out, but, in addition, that he either conspired with the officer to make an unlawful levy or sale of the property, or else was present at the time of the levy and aided and encouraged him to make same, in which event it constituted a trespass under said subdivision. See Cahn Bros. v. Bonnett, 62 Tex. 676, 677; Hilliard v. Wilson, 65 Tex. 287; Willis & Bro. v. McNatt, 75 Tex. 69, 12 S. W. 478; Hubbard v. Lord, supra; Focke, Wilkie & Long v. Blum, 82 Tex. 436, 17 S. W. 770. The case of Baines v. Jemison, 86 Tex. 118, 23 S. W. 639, was based on facts occurring prior to this enactment, and contained no allegation showing that the plaintiff wrongfully conspired with the officer to make the levy, or that he was present and aiding the officer in making the same in the county where made. It was held in that case that the statute of 1889 could not be regarded as retroactive, and without which the cause of action could not be maintained in the county the levy was made, but alone in the county of his residence. After a full consideration of the above authorities, we are clearly of the opinion that the defendants in error’s contention in this respect is not well taken.

It is also urged by defendants in error that, since no evidence was offered in support of the plea of privilege, no error was committed in overruling the same, citing Eagland v. Ins. Co., 157 S. W. 1187. But in that case it is held that no proof is required to sustain such plea, where the facts are revealed on the face of plaintiff’s pleading, which is the ease here. All the authorities seem to hold that the plea of privilege can be urged by exception, where the pleadings of the plaintiff disclose the facts upon which such plea is predicated.

Again, the judgment in this case was rendered upon an amended petition setting forth a new cause of action, and the record fails to show that plaintiff in error had notice thereof. Our statute provides that, where an amended pleading is filed in vacation, the counsel filing it must give five days’ notice thereof to the opposite party, or, if filed in term time, the same must be done with leave of the court (E. S. 1911, art. 1824), neither of which facts is shown by the record in this case. And, notwithstanding the plaintiff in error had filed its exceptions to the original petition, under the circumstances, it was entitled to notice of said new cause of action, and without which judgment should not have been rendered against it. See Morrison v. Walker, 22 Tex. 20; McRee v. Brown, 45 Tex. 507; Erskine v. Wilson, 27 Tex. 118; Stewart v. Anderson, 70 Tex. 589, 8 S. W. 295; De Walt v. Snow, 25 Tex. 321; McMillan v. Jones, 66 Tex. 100, 18 S. W. 112; Turner v. Houston, 21 Tex. Civ. App. 214, 51 S. W. 642; Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303; Tyson v. First State Bank & Trust Co., 154 S. W. 1055.

Our Supreme Court, in Morrison v. Walker, supra, held that, where a demand for money upon, a cause of action other than that set forth in the original petition is made by an amendment, there must be service of the amendment, or the record must disclose the fact that the party to be affected by it was actually in court in person or by attorney, and might have had notice of such amendment, but which it failed to do in this case.

In Erskine v. Wilson, supra, it is held that, if the defendant had not taken issue upon the amended petition setting up a new promise, it would have been the duty of the plaintiff to have caused a copy of it to be served upon him. To the same effect is De Walt v. Snow, supra.

• The ease of McMillan v. Jones, supra, is one in which all the parties had appeared and answered. An amendment was thereafter filed, setting np an entirely new cause of action, and one of the parties, Mrs. McMillan, was not present; nor was she in any wise notified of the new claim. The court held that she was entitled to her day in court before her rights in the matter set up by the amendment could be acted upon, and that “it could not be heard until she was duly notified to appear and answer to it, unless she voluntarily appeared for that purpose, and this the record shows she did not do.”

It is contended, however, in this case that the court did not in fact pass upon the defenses urged by plaintiff in error, and hence it could not be heard to complain. We differ with defendant in error in this contention-. The judgment in this respect recites: “Now on this the 11th of October, 1912, this case came on regularly for trial, and the plaintiffs appqared in person and announce ready for trial, and it appearing to the court that the defendant Thomas Goggan & Bros, had been duly cited in the manner and for the length of time as required by law, and had duly appeared herein and filed its answer and plea of privilege, and that the defendant the Citizens’ National Bank had filed its answer and entered its appearance herein, but, notwithstanding such facts, neither of the said defendants appeared further and offered no reason or objection why judgment should not be rendered against them as claimed by plaintiffs, and a jury was waived and all of the matters of fact as well as of law, were submitted to the court, and the court having heard the pleading, the evidence, and the argument of counsel, and fully understanding the matter, is of the opinion that the law is with the plaintiffs, and that they should recover their damages by reason of the premises.” Then proceeded in the regular way to give judgment in favor of plaintiffs against defendant for $167.15, actual and exemplary damages, canceling the check and order and forbidding the bank from paying said amount, and requiring the defendants to file said check and order in the registry of the court for. cancellation. It therefore, we think, sufficiently appears that the court considered the pleadings of the parties and determined the issues arising thereon in favor of defendants in error, for which reason defendants in error’s contention cannot be sustained.

Believing that the court erred in rendering judgment in behalf of defendants in error, the judgment is reversed, and the cause remanded, with instructions to the court below to dismiss this case, unless defendants in error desire same transferred- to Galveston county, as would be their right by virtue of the acts of the 30th Legislature, c. 133 (article 1833, R. S. 1911; Ragland v. Ins. Co., 157 S. W. 1187; Luter v. Ihnken, 143 S. W. 675; El Campo Water Co. v. El Campo Ice Co., 150 S. W. 259), in which event said court will comply with such request and direct the case so transferred.

Reversed, and remanded, with instructions.

On Motion for Rehearing.

Defendants in error have filed an able and elaborate motion for rehearing, insisting that the court erred, among other things, in sustaining the plea in abatement, suggesting, as a reason therefor,- that it appeared by affidavit of counsel for plaintiff in error that the Galveston case had' been dismissed prior to the rendition of judgment in the Milam county case. This affidavit, however, being no part of the record, cannot be considered by us for any purpose, but the case must be adjudicated upon the record as presented by the transcript.

It is likewise urged that this court erred in holding that the trial court passed upon the issues presented by the plaintiff in error’s plea of privilege and abatement. This matter, we think, is conclusively settled against his contention by the recitals of the judgment, wherein it appears that the court passed on the law questions presented by such pleas, determining them against the contention of plaintiff in error.

Since the judgment rendered was on a new cause of action, not set up in the original pleadings, of which the plaintiff in error is not shown by the record to have notice, either constructively or otherwise, and since it does not appear that plaintiff in error was either personally present in court or by attorney at the time of the trial, such judgment is for this reason assailable, and should be set aside in direct proceedings for this purpose.

After a most careful consideration of the entire motion, we are inclined to- think that it is not well taken, for which reason it should be overruled, and it is therefore so ordered.

Motion overruled.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    HEIN v. JOHN FINNIGAN CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 14, 1914.
    Rehearing Denied Feb. 4, 1914.)
    Frauds, Statute or (§ 23)—Agreements off Guarantee—Necessity or Writing-.
    An oral agreement by father to guarantee advances made to his son, not to exceed- $1,000, is unenforceable as being within the statute of frauds (Rev. Civ. St. 1911, art. 3965, subd. 2), providing that such agreement must be in writing.
    [Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by the John Finnigan Company against Henry Hein, Sr., and Henry Hein, Jr. From a judgment for plaintiff, defendant Henry Hein, Sr., appeals.
    Reversed and rendered as to Henry Hein, Sr., but affirmed as to Henry Hein, Jr.
    A. Winslow, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.

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

   CARL, J.

Appellee, John Finnigan Company, brought this suit against appellant, Henry Hein, Sr., and Henry Hein, Jr. The petition charges that on or about July 2, 1909, plaintiff, at the special instance and request of the defendants, advanced and delivered to defendant Henry Hein, Jr., at the several times specified in the attached account, goods, etc., and that a balance of $427.-95 remained due and unpaid;' that defendant Henry Hein, Sr., requested that plaintiff give a credit or make advances to Henry Hein, Jr., not to exceed $1,000, in excess of payments and credits; and that said Henry Hein, Sr., agreed to stand good for such credits and advances to the extent of $1,000. Appellant answered by general demurrer and general denial and among other things set up two years’ limitation and further pleaded the statute of frauds in bar of the action as to him.

The appellee thereupon filed a supplemental petition in which it admitted that it had no written contract or evidence that Henry Hein, Sr., agreed to become responsible for his son, Henry Hein, Jr.’s, debt to the extent of $1,000, but “plaintiff avers that John T. Murphy, father of plaintiff’s present local manager, his said father being now deceased, and defendant Henry Hein, Sr., had had business dealings together for more than 15 years before plaintiff and defendant Henry Hein, Jr., began their business dealings; that said business dealing between plaintiff, under the local management of John T. Murphy, deceased, was carried on in plaintiff’s name as creditor and defendant Henry Hein, Sr., as debtor; that said defendant Henry Hein, Sr., was then engaged in the butchering business, wherein he had many hides to dispose of, and contracted with plaintiff to sell the same to plaintiff at their market value when delivered, and in said business plaintiff for more than 15 years, under the management of said John T. Murphy, deceased, made cash advances' to said Henry Hein, Sr., in anticipation of and for the purpose of securing the purchase of said hides; that after the death of plaintiff’s local manager, John T. Murphy, his son, Harris Murphy, the present local manager of plaintiff, continued such business dealings with said Henry Hein, Sr., until or about the 1st day of July, 1909, when said defendant apprised the local manager of this plaintiff that he was going to turn over his butchering business to his son (his codefendant herein) and retire therefrom, and said defendant requested plaintiff, through its said local manager, to continue the business with his son as it had been previously conducted with said defendant Henry Hein, Sr. Whereupon plaintiff’s manager told and informed said defendant that, if he (Henry Hein, Sr.) would guarantee plaintiff in the repayment of its advances from said defendant’s son to plaintiff from time to time as such balances accrued, plaintiff would continue the business with his son as it had previously done with said defendant. Defendant replied he would not agree to guarantee and stand for more than $1,000 of such advances as they should accrue, but that he would stand good for and guarantee said advances to the extent of said $1,000 as the account ran; that both parties, including the defendant Henry Hein, Jr., well understood and knew that the business was to be a continuous one, and at reasonable times, to say, about once a month, the delivery of hides from defendant Henry Hein, Jr., would reduce the indebtedness from time to time, sometimes so as to nearly balance the account, and at others having a considerable balance due plaintiff, and the object of Henry Hein, Sr.,, in limiting his liability to $1,000 was that he should not be held liable beyond that amount at any one time for any balance so due.”

The plaintiff recovered, as prayed, the sum of $427.95, and Henry Hein, Sr., appeals.

This appeal is predicated upon two propositions, viz.: (1) That the promise of Henry Hein, Sr., to guarantee the debt of his son to the extent of $1,000, if made, was within the statute of frauds; and (2) that the debt sued on was barred by the two years’ statute of limitation as to appellant. The first item of the account is dated July 2,1909, and the last one is December SO, 1911. Suit was filed March 21, 1912, and the account sued on shows that more than the balance of $427.95 sued for was furnished within two years before the filing of the suit.

We shall first see if the appellee’s suit as to appellant falls within the statute of frauds (article 3965 of the Revised Civil Statutes), section 2 of which is as follows: “To charge any person upon a promise to answer for the debt, default or miscarriage of another.” It will be observed that appellee alleged in its supplemental petition that “plaintiff’s manager told and informed said defendant that if he (Henry Hein, Sr.) would guarantee plaintiff in the payment of its advances,” etc. “Defendant replied he would not agree to guarantee and stand for more than $1,000 of such advances as they should accrue,” etc.

The authorities are in somewhat of a nebulous state as to just what does and what does not come within the statute. The case of Nichols v. Dixon, 85 S. W. 1051, Id., 99 Tex. 263, 89 S. W. 765, holds that an oral promise of the owner of a building to see that a mate-rialman was paid for his material was a promise to become liable for the debt of another and within the statute. And so in Texas Southern Railway Company v. Pyle, 83 S. W. 234, the yerbal promise of the president of the railway company to pay an indebtedness owing by the company was unenforceable under the statute of frauds.

Upon a somewhat similar state of facts, in Jones Lumber Co. v. Villegas, 8 Tex. Civ. App. 669, 28 S. W. 560, this court, speaking through Mr. Justice Ely, said: “We are of the opinion that no cause of action is shown as to Villegas. * * * There was no consideration whatever for the promise to notify appellant; and, if Villegas had made a direct positive verbal promise to have paid the debt of Mas to appellant, the promise, as being obnoxious to the statute of frauds, could not have been enforced.” In that case Villegas had $3,700 that would become due to Mas on the completion of the house and promised appellant he would not pay it out before notifying the- lumber company. The lumber had not been delivered. The court says: “It will be seen from the above exceptions to the rule that the promise made must be one which would create a contract that would form the basis of a suit at law. The promise in this case was not of that character, and, as before intimated, would not have been such had Villegas promised to pay the debt outright.” See, also, Loftus v. Ivy, 14 Tex. Civ. App. 701, 37 S. W. 766, wherein it is held that a verbal promise to pay for certain work, if another does not, is within the statute.

Cases that have given rise to considerable confusion are those in which there is a personal consideration to the one making the promise, and where it is an original undertaking and primary obligation to pay on part of the one making the promise. For instance, in American Brewing Association v. Gossett, 107 S. W. 357, the association was held liable because its promise to be responsible for the debt upon the fixtures was supported by a valuable consideration in that it was agreed that its beer would be sold, and without such promise it would not be handled, and because it was made a primary obligation of the association.

In the case cited by appellee (Hamilton v. Cushman Company, 15 Tex. Civ. App. 338, 39 S. W. 641), the petition charged: “That plaintiffs refused to credit the other defendant, and that Hamilton requested them to furnish the articles, which was done upon his credit. This showed an original undertaking on his part, which was not within the statute of frauds.” So in the Nixon v. Jacobs Case, 22 Tex. Civ. App. 97, 53 S. W. 595, the pleadings and evidence showed that it was an original undertaking of liability on Nixon’s part to be held primarily liable.

Chief Justice Conner says: “To take the case out of the statute, the oral promise must be an original one. The merchandise must have been advanced to the Mexicans upon the faith of a promise on appellant’s part to himself pay for them,- and not merely to ‘secure the payments,’ as authorized by the court’s charge.” Porter v. Norman, 136 S. W. 1173, citing Rentfrow v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229; Dabney v. Conley, 65 S. W. 1124.

It was held in Penick v. Castles, 144 S. W. 297, that a parol promise by defendant to pay his pro rata of any recovery by the bank in its action against the intestate was not enforceable because within the statute of frauds:

The case of R. B. Spencer & Co. et al. v. Nolle & Co., 143 S. W. 991, shows that there was ample consideration, and that the debt became a primary obligation, because the. lumber, etc., was on the ground, and suit was about to be brought to recover the goods. In that condition of affairs, the promise to pay the debt was to prevent a suit and to keep the goods.

But, while there may be some confusion on this subject in our Courts of Civil Appeals, the ease at bar is covered by the decision by our Supreme Court in the case of Brown v. Farmers’ & Merchants’ Nat’l Bank, 88 Tex. 265, 31 S. W. 285, 33 L. R. A. 359. W. O. Brown was in business, and the cashier of the bank, the petition and proof showed, refused to extend further credit, because he had given a deed of trust on his property in which his uncle, E. Y. Brown, was preferred. But it was claimed by the bank, and the proof seems to bear out the claim, that E. Y. Brown made an oral promise that, if the bank would continue to accommodate W. O. Brown, he (E. Y. Brown) would see that such advances were made all right, and that he would collect nothing under the trust deed till the bank should be paid in full. The promise was for future advances. Judge Denman, writing the court’s opinion, says: “We are of opinion that the promise of the minor, W. O. Brown, was not void, and that the promise of E. Y. Brown to answer for his indebtedness to the bank was within the statute of frauds, and no action can be maintained thereon because not in writing.”

It is not necessary to pass upon the question of limitation.

The above opinion clearly controls the one before this court. The pleadings and evidence both show that Henry Hein, Sr., only undertook to guarantee the payment of his son’s debt; and, since this is true, it is, in the light of the decisions, a verbal undertaking to “answer for the debt, default, or miscarriage of another” and within the statute of frauds.

It therefore becomes our duty to reverse and render this cause in favor of Henry Hein, Sr., but as to Henry Hein, Jr., the judgment of the district court will be affirmed.


text:
    ADKINS et al. v. HEARD et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.)
    1. Pleading (§ 34) — General Demurrer — Sunn cien cy of Pleading.
    Every reasonable intendment is indulged in favor of the sufficiency of a petition as against a general demurrer.
    [Ed. Note. — For other cases, see Pleading. Cent. Dig. §§ 5⅜, 66-74; Dee. Dig. § 34.]
    2. Schools and School Districts (§ 48)-— Use of School Funds — Jurisdiction of District Court^Conditions Precedent.
    The remedies provided by Rev. Civ. St. 1911, art. 4509, by appeals to the county superintendent, and then to the state superintendent and board of education, must first be exhausted, and, where no such appeals were taken, an application to the circuit court for an injunction against improper use .of school funds will be dismissed.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 100-111, 160; Dec. Dig. § 48.]
    Appeal from District Court, Refugio County; John M. Green, Judge.
    Suit by C. H. Heard and others against Leslie Adkins and others. From a judgment for plaintiffs, the defendants appeal.
    Reversed.
    W. L. Rea, of Refugio, and Dougherty & Dougherty and B. D. Tarlton, Jr., all of Beeville, for appellants. T. R. Wood and R. L. Daniel, both of Victoria, for appellees.

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

   CARL, J.

Appellees, C. H. Heard, J. J. Adkins, and F. B. Rook, taxpaying citizens of common school district No. 1, in Refugio county, brought this suit against Leslie Adkins, county judge and ex officio county superintendent of public schools, J. J. Power, Wilson Heard, and D. J. Kelley, trustees of said school district No. 1, and the Bank of Refugio, as the depository of the public free school funds. The purpose of the suit was to enjoin the trustees and the county superintendent from permitting to be carried out a contract whereby the trustees employed Fannie Horan, known in the religious world as Mother Augusta, Grace Taylor, known as Sister Mary Agnes, and Fannie McGlennon, known in the religious world as Sister Mary Xavier, to teach the public free school of common school district No. 1, in Refugio county.

The ground of complaint is that the school was being conducted in a sectarian manner; that the teachers so employed are members of a religious sectarian order known as “Sisters of Mercy,” which is under the control of the Roman Catholic Church; that they wear the garb or dress indicative of their order while teaching, same being the costume of what is commonly called “Nuns”; and that only members of that order have been employed to teach the school for many years. It is further charged: That the schoolrooms are in the lower floor of a building which belongs to an educational corporation known as the “Academy of Our Lady of Lourdes,” the incorporators of which are Sisters of Mercy and necessarily members of the Roman Catholic Church. The teachers, Sisters of Mercy, live upstairs; also, that religious services are held by the Catholic Church just a few feet away in another building, and bells are tolled at 6 o’clock mornings and at noon to indicate to all members of the Catholic Church that it is the hour for prayer.

The defendants (appellants) answered, denying that the school was being, or had ever been, conducted as a sectarian school, but admitted the allegations as to the teachers being Sisters of Mercy, and that they wore plain black dresses, with white collars and head pieces, and that to a girdle they wore was suspended a crucifix. It was admitted that they lived above the schoolrooms, and that their incomes as teachers which they derived from the public school funds, over and above their necessary living expenses, were devoted to the charitable and religious work of the church and its subordinate organizations. It was also admitted that the Catholic Church held religious exercises a few feet from the school building on Sundays, holidays, and when school was not in session; but specific denial was made that any effort was made at any time to give religious instruction.

The court granted the injunction, and defendants below, except Leslie Adkins, appeal. The court filed conclusions of law and fact, to which exception was duly taken.

The first assignment of error complains that the court erred in overruling their general demurrer, because the petition did not affirmatively show that an appeal had been taken to the state superintendent of public instruction and to the state board of education before the suit was filed, and that the court was without jurisdiction until that was made to appear. It is contended by ap-pellees that the allegation that the school of common school district No. 1, of Refugio county, was being conducted “in violation of law, and in violation of the rulings of the state board of education of the state of Texas,” is sufficient as against a general demurrer. It is true that every reasonable in-tendment is indulged in favor of the sufficiency of a petition as against a general demurrer; but whether this is true where another branch of the government has primary jurisdiction before the jurisdiction of the courts attach, and the pleadings do not show that the remedies of the primary jurisdiction have first been exhausted, it will not be necessary for us to decide, since we shall dispose of the case on the second assignment of error.

Article 2823 gives the control of the common schools to a board of trustees; they make contracts, and have general control under the supervision of the county superintendent. Article 2825, Revised Statutes of 1911. Article 4510 of the Revised Statutes of 1911 clothes the state superintendent with the duty of administering the school laws and school affairs of the public schools of the state, and article 4509 expressly provides an appeal from his decisions to the state board of education. In fact, the provisions of our school laws establish a complete system of procedure within itself before resort can be had to the courts. An appeal may be taken from the action of a board of trustees to the county superintendent. Erom his decision, it goes to the state superintendent and state'board of education.

Before the courts will assume jurisdiction, the remedies established by law for school government must first be exhausted, and, if it appear, either by pleadings or from the evidence, that those remedies have not been exhausted before suit was filed, .the bill will be dismissed.

The undisputed evidence shows that no appeal was ever taken to the state superintendent and state board of education. But a letter from State Superintendent Arthur Le-fevre to Hon. W. L. Rea, county superintendent of Refugio county, was introduced. This letter dealt with a similar situation, and inclosed a copy of an opinion given by the state superintendent to John E. Shaw at Somerset, Tex. Another ruling of the state superintendent in Comal County v. Judge Adolf Stein, dated September, 1909, was used. The court states that this was admitted as an authority of law, but not as evidence. These letters show that the superintendent ruled that the wearing of the church garb while teaching, and conducting the school in a Catholic convent under conditions similar to those that exist in this case, was conducting a sectarian school, and giving sectarian instruction, and therefore they were not entitled to receive any of-the public free school money. The Comal County Case was appealed to the superintendent at Austin and the state board of education. It was held that the teaching of school under conditions similar to those existing in the present case came within article 7, § 5, of the Constitution of the state, and article 2896, Revised Civil Statutes, prohibiting the use of any of the public free school fund to support a sectarian school. The court found that the letter to Judge Rea was written voluntarily in response to a letter from some lady suggesting that the school was being conducted as a sectarian school. These letters giving the ruling of the department of education on other cases are relied upon to show that an appeal was unnecessary, and, we presume, to account for the fact that no appeal was made to the state superintendent and state board of education. One thing is clearly established in this case, and that is that no such appeal was ever made to the state superintendent and state board.

So, whether the court erred or not in overruling the general demurrer to the petition, it is clear that the court did err in entertaining jurisdiction and granting the injunction when it was made to appear that no appeal had "first been made to the proper school authorities. This is fundamental, and a condition precedent before the courts can entertain a bill. Jurisdiction of the subject-matter cannot be waived, nor can it be conferred by consent. It is fixed by law. Woodruff v. Harrell, 67 Tex. 298, 3 S. W. 48; Murchison v. White, 54 Tex. 78; Mercer v. Woods, 33 Tex. Civ. App. 642, 78 S. W. 15; Halloran v. T. & N. O. Ry. Co., 40 Tex. 465. A full collation of authorities on this question may be found on page 373, vol. 11 Encyclopedic Digest of Texas Reports.

The Legislature has seen fit to place the educational affairs. of this state within the jurisdiction of a department created especially for that purpose, and has at the same time fixed the method of procedure by giving the right of appeal from the school boards to the county superintendent, and then to the state superintendent and board of education. That is, the primary jurisdiction and the judiciary will not assume jurisdiction in matters coming within the prerogatives of that department until the remedies therein provided are shown to have been exhausted. And when it is made to appear that those remedies have not first been resorted to, as it does in this case, the bill will be dismissed. It is on the same footing with a case appealed to this court from the justice’s court without first appealing to the county court. It is no answer to say that the department of education has ruled on the question in another case. Each case must rest upon its own peculiar facts. There would be just as much logic in a litigant seeking to go direct to the Supreme Court because this court had held adversely on a similar case, and therefore it was useless to pursue the course prescribed by law.

This court will assume that the department of education will correctly and faithfully discharge the duties incumbent upon it in all cases, and will never assume jurisdiction of matters placed by law in that department until those remedies are shown to have been resorted to and exhausted. Mr. Justice Neill held, in the case of McCollum v. Adams, 110 S. W. 526, that it was fundamental to show that the remedies provided in the department of education had first been exhausted. Nance v. Johnson, 84 Tex. 401, 19 S. W. 559; Cochran v. Patillo, 16 Tex. Civ. App. 458, 41 S. W. 537; Harkness v. Hutcherson, 90 Tex. 383, 38 8. W. 1120; McClure v. Bryant, 18 Tex. Civ. App. 141, 44 S. W. 3; McCollum v. Adams, 110 S. W. 526; Trustees v. Dudney, 142 S. W. 1007.

In the McCollum Case, supra, the court said: “The plaintiffs had no right to resort to the courts for relief in this matter until they had exhausted their remedy by appeal to the superintendent of public instruc* tion, who is charged with the administration of the school laws, to whom appeals in matters like those in question must be made. From this it is apparent that the petition discloses no right of action, and that the evidence shows that none exists. Thus fundamental error * * * upon the record is shown” and the case is reversed.

This case reaffirmed the doctrine laid down in Cochran v. Patillo, 16 Tex. Civ. App. 458, 41 S. W. 537, where it is said: “The school law provides a system for the control * * * of the public schools of the state by the officers and the boards whose duties are to see that the laws are properly administered, and that no pupil is deprived of the right to enjoy the benefits of the school. There is no pretense, by any averment in the petition or any fact in evidence, that application was made to any of the school authorities to have the boy reinstated. No case was shown that would authorize the courts to interfere with the management of the school by the school authorities.”

This question was again before the courts in Trustees v. Dudney, 142 S. W. 1007, and it was there held that the superintendent of public instruction has the power to hear and determine all appeals from the rulings and decisions of the subordinate school officers, and that the rule established by the courts is to the effect that such an appeal and decision is a condition precedent to the right of either party to bring the matter in controversy before the courts.

In the light of these authorities, coupled : with the fact that it is conceded no appeal was had in this case to the state superintendent of public instruction, this court and the court below have no jurisdiction, and the judgment is reversed, and the bill dismissed.


author: FLY, C. J.

text:
    THOMAS, County Judge, v. TAYLOR.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1914.
    Rehearing Denied Feb. 4, 1914.)
    1. Schools and School Distbicts (§ 135)— Teacheb’s Contbact — Rejection by Stt-perintendenos-Discretion.
    Under Acts 29th Leg. .c. 124, § 39, providing that the county superintendent, or county or county judge as ex officio county superintendent, “shall examine all contracts between the trustees and teachers, * * * and if in his judgment such contracts are proper, he shall approve the' same, * * * and shall be authorized to consider the amount of salary promised to the teacher,” the superintendent’s power as to such contracts is not confined merely to a revision of the matter of salary, but he has full discretion to examine and decide as to the propriety of every such contract, and to approve or reject same as his sound judgment may direct.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 130, 292-297; Dec. Dig. § 135.]
    2. Statutes (§ 181) — Construction.
    In construing a statute, the general intent must be kept in view, and the whole and every part must be considered to harmonize all the parts.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 259, 263; Dec. Dig. § 181.]
    3. Schools and School Districts (§ 135)— Teacher’s Contbact — Rejection by Superintendent-Grounds.
    It was not an abuse of discretion for the county judge, as ex officio county superintendent, to reject a contract between trustees of a school district and a teacher, where it appeared that the teacher was under criminal charges for misappropriating school money, and that the contract employed him for nine months, while the' other teachers were employed for only eight, and that it gave him a salary which the judge deemed excessive.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 130, 292-297; Dec. Dig. § 135.]
    Appeal from District Court, La Salle County; J. F. Mullally, Judge.
    Action by B. A. Taylor against Covey C. Thomas, County Judge and Ex Officio County Superintendent. From judgment for plaintiff, defendant appeals.
    Reversed.
    B. W. Teagarden, of San Antonio, J. Albert Strawn, of Cotulla, and John A' Vails, of Laredo, for appellant. Frank B. Earnest and Jno. W. Willson, both of Cotulla, and Hertzberg, Barrett & Kereheville, of San Antonio, for appellee.

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

   FLY, C. J.

This is an appeal from an order granting a writ of temporary injunction, which restrained appellant from attempting to prevent appellee from performing his duties as teacher in school district No. 1, La Salle county.

It appears from the pleadings that the trustees of school district No. 1 entered into a contract with appellee to employ him. as teacher for nine months “at a salary of $177.75 per school month, and free use of dwelling on school property.” That contract was presented to appellant, the county judge and ex officio county superintendent of La Salle county, for his action thereon, and on August 12, 1913, he declined to approve the contract. The reasons for his refusal were addressed to the trustees, and are in part as follows:

“Because on a charge of having embezzled $210.50 of money alleged to be the property of Cotulla common school district No. 1 of said La Salle county said Prof. Taylor was, on his examining trial, held before H. B. Stedham, justice of the peace, on the 31st day of May, 1913, held to await the action of the grand jury at its next regular term on the 6th day of October, 1913, said bond being in the sum of $500, which bond he gave. I testified in this examining trial, and heard practically all the testimony given by the other witnesses, and in my opinion said justice of the peace was authorized in holding him to await the action of the grand jury. Should the grand jury indict him, and should he be convicted, it might be impossible for him to carry out the terms of this contract. School is to begin September 1st, and cannot see my way clear to approve the contract, as no one knows what will be done in the month thereafter. Should he be indicted and not convicted, it might cause still greater confusion and dissatisfaction, and result in practically disrupting the school.

“Because he has violated the contracts made for the school terms of 1911-1912 and 1912-1913 in this: That he agreed in said contracts to discharge the duties required of him in accordance with the school laws of Texas and the regulations of the state superintendent and of the county superintendent of said La Salle county; that under such laws and regulations he was informed and knew that he had no right to collect and retain all or any part of the tuition derived from ‘the overs and unders’ in addition to the maximum salary allowed by law, which he was receiving, but that he did collect and retain at least part of said tuition, the exact amount of which I do not know, as said Prof. Taylor, although thereto requested by me, has failed and refused to make a sworn and itemized statement showing how much of such tuition he collected for the years 1911-1912 and 1912-1913.

“Because under the contracts filed with and approved by me for 1911-1912 and 1912-1913 as ex officio county superintendent of La Salle county, Tex., said Prof. Taylor was not to receive, as part of his compensation, any of the tuition from ‘overs and unders,’ as he was informed and knew; that he made what he terms ‘private contracts’ with the trustees, by which they agreed that he was to retain such tuition; that said ‘private contracts,’ and neither of them, were ever submitted to me, and were never approved by me in any way; that said Taylor, to the best of my information and understanding, collected during the year 1911-1912 at least $200 from such tuition, and paid to the said school fund only $32.40, which am informed was paid in by pupils as contributions to the domestic science department; that said Taylor did not pay in any of the tuition collected during the year 1912-1913 until several weeks after the close of school, and after demand made by me upon him in person that he should pay same when he, said Taylor, made a statement showing that he had collected during said year from such tuition the sum of $210.50 which he thereupon paid to the county depository for the credit of said school fund; that said statement was not sworn to by him, and although he promised to make one and swear to it, he has never done so, and I understand that he now refuses to do so.

“Because to the best information I can obtain there is at least $200 due the school fund of the Cotulla common school district No. 1 of said La Salle county for tuition from ‘overs and unders’ collected by said Prof. Taylor during the year 1911-1912, which tuition he has not paid, and has refused to account for in any way although thereto ■ requested, and it has become necessary to file a suit on this date, or within the next day or so, against said Taylor for an accounting, and for the recovery of any sum due said school district. This will have to be done in accordance with the ruling of the state superintendent, and, as I understand that you trustees refuse to sue Prof. Taylor for such, accounting, and for any sum of money due said school district, the suit will probably be brought by taxpaying citizens, with the necessary allegation that you refuse to act in accordance with the ruling of the state superintendent.

“Because the contract with Prof. Taylor that you wish me to approve for the ensuing term employs him for nine months, whereas the contracts with the other teachers of the same school employ them for only eight months, and see no use of having a superintendent one month with no teachers under him.

“Because you allow him a salary of $177.75 per month, which really consider too much, but do not reject contract on account thereof, and in addition give him ‘free use of dwelling on school property,’ and do not consider that proper. I know no law authorizing the school fund to furnish the head teacher and his family a dwelling free of charge. The use of the dwelling I would consider worth $10 to $15 per month, and it should be rented out, and the rent paid into the school fund. The mere fact that you have been allowing him to live in said house, the property of the school fund, free of rent, and that he is so living there now, does not, in my opinion justify an indefinite continuance thereof.

“Because said Prof. Taylor, as shown by accounts presented to me for approval during the years 1911-1912 and 1912-1913, acted as the purchasing agent for the board of trustees for Cotulla common school district No. 1 of said La Salle county, and practically every account made by said school district during said years was approved by him before the trustees of said district would approve same, and upon their approval I would approve same; that said trustees and 1 trusted him to buy only such things as could lawfully be paid for by the school fund, and also relied upon him to report all items to us correctly; that, as shown by affidavit of N. C. Windrow on file in my office, said Taylor, about the 6th day of February, 1913, had said Windrow to order for the pupils of said district a basket ball; that when same arrived said Taylor took said basket ball and instructed said Windrow to charge the price of same, $3.45, as follows: $2 as grape juice and $1.45 as chalk, said Taylor stating at the time to said Windrow that he, Taylor, did not know whether the account would be approved if charged as a basket ball; that said Windrow made the charge against said school district as instructed by said Taylor, and about March 1, 1913, made said bill for $3.45 as being $2 worth of grape juice and $1.45 as chalk, took said bill to said Taylor, who approved same, then to said trustees who approved same and then to O. C. Thomas, ex officio county superintendent, who approved same and said Windrow received his said $3.45 from the school funds of Cotulla common school district No. 1 of La Salle county, Tex., and said fund is out said amount of money for what I believe to be an illegal expenditure through the fault of said Prof. Taylor; that if same is a legal expenditure, evidently said Prof. Taylor did not so believe at the time, or was in serious doubt about same, and used this method to deceive said trustees and myself in order to have the school fund pay for a basket ball when have been told that entertainments were given occasionally and admission charged and received by said Taylor with which to secure funds to pay for such articles for the pupils.”'

The matter was appealed to the county school trustees and to the state superintendent of public instruction, and the action of appellant in refusing to approve the contract was sustained, and appellee then applied to the judge of the Forty-Ninth judicial district for temporary mandamus and injunction to compel appellant to approve the contract and restrain him from interfering with appellee in teaching the school. The writ of injunction was granted, and this appeal is from the order granting the same.

In 1905 an act was passed by the Legislature, “providing for a complete system of public free schools in Texas,” which act provided for a county superintendent of public instruction in each county under certain conditions, and also providing that, in counties having no superintendent, the county judge shall be ex officio county superintendent of public instruction, giving him the same powers as a county superintendent. In section 39 of the act, it is provided: “The county superintendent shall approve all vouchers legally drawn against the school fund of his county. He shall examine all contracts between the trustees and teachers of his county, and if in his judgment such contracts are proper, he shall approve the same; provided, that in considering any contract between a teacher and trustees he shall be authorized to consider the amount of salary promised to the teacher.” It is clear that the section in question enjoins upon the county superintendent the duty of examining all contracts between trustees and teachers, and invests him with the discretion of determining whether such contracts are proper and approving the same if he so finds. That power carries with it the authority to refuse to approve any contract not deemed proper by him, and in addition, in passing upon the propriety of the contract, he is given special authority to consider the amount of salary promised to the teacher. The Legislature evidently intended to clothe the county superintendent with revisory power over the contracts between trustees and teachers. 1-Ie was placed as a check upon the power of trustees to make contracts, and protect the people of his county from ill-advised contracts which might waste the public school funds, or impose upon a community a teacher totally unfit, from a moral standpoint, to have charge of the young, or incapacitated in any other way to teach. If his examination of such contracts would amount to nothing but a perfunctory duty, there would be no reason for the law, and, taking the section in question alone, there can be no hesitation in declaring that the superintendent of public instruction is clothed with full power and discretion to examine and decide as to the propriety of every contract between trustees and teachers, and to approve or reject them as his sound judgment may direct. Without such power the people of a county would be powerless to protect themselves from having their school fund dissipated, and their children placed in the care and custody of utterly unworthy, if not vicious, persons. The Legislature could not have intended that a county superintendent should be a mere figurehead, and that the school affairs of the county should be conducted by the trustees of the different school districts. The section in question, with others, makes the county superintendent the head of the educational system of the county, and no part of his duty is so important as that of supervising the contracts between trustees and teachers. It is true that school trustees are clothed with the authority to employ and dismiss teachers, but in each case their action is subject to revision by the county superintendent. “They shall contract with teachers and manage and supervise the schools, subject to the rules and regulations of the county and state superintendents.” In section 72 of the act it is provided that: “Trustees of districts shall make contracts with teachers to teach the public schools of their respective districts, but the compensation to teachers under written contract with the trustees shall be approved by the county superintendent before the school is taught, stating that the teacher will teach such school for the time and money specified in the contract.” The language is obscure and somewhat confusing, but if we transpose portions of it so as to read “but the compensation to teachers under written contract with the trustees stating that the teacher will teach such school for the time and money specified in the contract shall be approved by the county superintendent before the school is taught,” the meaning becomes clearer. We fail to discover in the section any desire or intent upon the part of the legislators to confine the duties of the superintendent as to contracts merely to a revision of the matter of salary. To read such an intent into section 72 would create a conflict with section 39, and strip the county superintendent of most of his powers in connection with contracts with teachers.

In construing a statute, the general intent must be kept in view, and the whole and every part must be considered in order to harmonize all of the parts. In the act in question the intent was to place the superintendent at the head of educational affairs in his county, and the powers given him must be so construed as to maintain and promote that intent. The evident intent, as clearly expressed in section 39, was to give the superintendent supervisory control over contracts of teachers, and for any good reason he could reject a contract. Of course the superintendent must exercise a sound discretion, and, if there is an abuse of his discretion, redress could be obtained in court.

The writ of injunction was not sought on the ground that the county judge has abused his discretion, but on the ground that he had no authority to reject a contract made by the trustees and teacher, unless it was for the reason that the salary contracted for was excessive. We cannot sustain that view of the law, but we are of the opinion that the county judge can refuse to approve such contract for any good and sufficient reason, and some of the reasons given by him were sufficient to sustain his action in rejecting the contract. No man should be permitted to teach the young of the state who would use the school money for one purpose and report that he used it for another, or who would collect the School fund and fail and refuse to account for it, and who is under criminal charges for appropriating such fund. Even if the county judge had no authority to disapprove of the contract only on the ground of the amount to be paid the teacher, the reasons given by him show that he disapproved it on that ground also. He stated as one of his reasons that appellee was employed for nine months while the other teachers were employed for only eight months, at the end of which time the teachers would quit and the school necessarily come to an end. He also stated that the salary of $177.75 and free use of a house worth a rental of $10 to $15 a month was too much, and that he did not consider it “proper.” He states that he did not reject the contract on account thereof, but the reason was a good one, and the people he represents should have the benefit of his findings thereon, and have the contract disapproved.

No proper ground was set out in the petition for injunction, and it should have been refused. It is the order of this court that the judgment of the district court be reversed, and the temporary injunction dissolved and set aside, and that appellant recover all costs in this behalf expended.