text:
    GOWAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1914.
    On Motion for Rehearing, March 11, 1914.)
    1. Cbiminai, Law (§§ 1092, 1099) — Appeal-Antedating Bill op Exceptions.
    Neither the trial judge nor any other person has authority to antedate bills of exception and statement of fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§. 2803, 2829, 2834-2861, 2919, 2866-2880; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1111) — Appeal—Filing Bill op Exceptions — Determination op Date.
    This court will on appeal, whenever necessary, go behind the filing marks on a statement of facts or on bills of exception to determine whether such statement and bills were in fact legally filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.]
    3. Criminal Law (§§ 1092. 1099) — Appeal-Bills of Exceptions — Time fob Filin».
    Where the bill of exceptions and statement of facts were not filed within the time allowed by law, and were not presented to counsel for the state or to the trial judge for their consideration and approval within such time, the bill of exceptions could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.)
    4. Criminal Law (§ 1102) — Appeal—Statement of Facts — Time foe Filing.
    Where defendant’s statement of facts, though appearing to have been filed on January 2d, was not made out and certified by the stenographer until March 7th, allowing 11 days for presentation to the district attorney and trial judge and for filing within the time allowed by law, and was not presented to the trial judge or the prosecuting officer or filed within that time, it will be stricken from the record.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    5. Criminal Law (§ 1144) — Appeal—Presumptions — Ruling on Competency of Juror.
    Where defendant alleged the incompetency of a juror, and the court, in overruling the motion for a new trial, stated that he heard and considered evidence thereon and overruled it, without the evidence it will be presumed that the ruling was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    6. Criminal Law (§ 1090) — Appeal—Necessity of Bill of Exceptions.
    Matters of fact involved in the rulings of the court below will not be reviewed on appeal, unless substantiated by proper bills of exception, and statements in the motion for a new trial are not sufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1092) — Appeal-Filing Bill of Exceptions — Duty of Counsel.
    It is the imperative duty of defendant to see that his bills of exception are filed within the time fixed by law, and, even though he delivers them to the trial judge in time, it is still his duty to follow them up, have them acted upon, and filed.
    TEd. Note — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    N. Gowan, alias Bisso Gowan, was convicted of murder, and he appeals.
    Affirmed.
    J. S. Callieutt, of Corsicana, for appellant. Luther A. Johnson, of Corsicana, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases 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 Dec. Dig. & Am: Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was tried in the district court of Navarro county, beginning on the 30th day of September, 1912, and ending on the 21st day of December, 1912, during which term the motion for á new trial was overruled. The transcript was not filed in this court until the 15th day of December, 1913, about a year from the adjournment of the court at the term which he was tried, and more than a year from the date on which his trial occurred; the record showing that he was tried November 21, 1912. The law requires that those records be filed in this court within 90 days from the adjournment of court, or, if the term lasts more than 8'weeks, within 90 days from the overruling of the motion for a new trial. The failure of the clerks to comply with this law has caused much complaint to be made about “delay in the disposition of criminal cases.” A species of negligence had grown up in regard to forwarding transcripts, and in June of last year we had notices printed and mailed to each clerk that we would no longer countenance such negligence on their part, but would expect and require a compliance with the law by them. A. letter was received from the clerk of ■ the district court of Navarro county; he writing in July that he had been unable to complete the record in this case because the bills of exception had not been filed, and that he would forward same as soon as he could get the.bills. He was notified to send a transcript of the proceedings as was then properly filed and of the record in his office, but he did not do so. In December, 1913, the court’s attention being called to the fact that a year had elapsed and still the record not forwarded to this court, we ordered citation to issue commanding him to file the transcript in this case, and appear and show cause why he had not filed same within 'the time required by law. When the transcript was filed in this court on the 16th day of last December, the bills of exception showed to have been filed in the trial court on February 14, 1913, ten months prior to the time the record was filed in thiá court. We gave the clerk an opportunity to explain this matter and the contradiction between these file marks and his letter written in July of last year. He was sworn and testified that the bills of exception were not in fact filed in his office until the 10th day of December, 1913, more than a year after the trial of the case, but under the direction of the judge of the trial court he had antedated their filing and placed the file mark as of date February 14th, by direction of the trial judge.

It has been frequently held by this court that the trial judge nor any other person has no authority or power to authorize the antedating of bills of exception and statement of facts.

In the case of Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79, in an opinion by Judge Hurt, it was held: “This court, on appeal, will, whenever necessary, go behind the file marks appearing upon a statement of. facts or bills of exception, in order to ascertain and determine whether the said statement of facts and bills of exception were in fact legally filed, following Spencer v. State, 34 Tex. Cr. R. 238 [30 S. W. 46, 32 S. W. 690]. And what the district Judge or district attorney may have said or done, with reference to filing the statement of facts back within the time allowed by law, cannot avail to exonerate the appellant from the use of diligence before expiration of the time allowed by law.”

This has always been the rule of law, and it next became necessary to determine whether or not it was the fault of counsel for the appellant that these papers had not been filed properly. The testimony of the clerk shows clearly that they had not been filed within the time allowed by law, in fact not filed within 12 months after the trial. Mr. Johnson, of counsel for the state, then testified that these bills of exception were not presented to him nor the trial judge until in May, 1913, for their consideration and approval, whereas at the furtherest appellant was not allowed longer time than March 18, 1913, in which to prepare them, secure their approval, and have them filed. Under such circumstances, the bills of exception, under the law, cannot be considered.

As to the statement of facts, while it shows to have been filed on January 2, 1913, yet the- certificate of the stenographer shows it was not made out and certified to by him until March 7, 1913, more than two months after the filing date. Of course it was impossible for the statement of facts to have been filed before it was made out by the stenographer. But, as it was certified to on March 7th, this allowed time to present it to the district attorney and trial judge and have it filed within the time allowed by law, 90 days, or March 18th; yet the clerk testifies on oath that same was not in fact filed within the 90 days, and Mr. Johnson says it was not presented to him within that time for his consideration nor presented to the court for approval until after he had considered same and agreed thereto. So it, too, bears a false date of filing, and was not in fact filed within the time permitted by law, and must be stricken from the record. And, in the absence of a statement of facts and bills of exception, there is no ground in the motion for a new trial we can review.

There is a ground in the motion alleging the incompetency of one of the jurors, which fact was unknown to appellant until after the trial of the case, which ground is supported by the affidavit of appellant and two of his counsel. However, in overruling the motion for a new trial, the court states he heard and considered the evidence on this ground of the motion, and overrules it, and, with no evidence before us, we must conclude that the court did not abuse his discretion in finding that the juror was a qualified juror at the time .of this trial. In the case of Jordan v. State, 10 Tex. 502, it was held: “In considering the motion, the court may judge, not only of the competency, but of the effect of evidence. There may be cases where the court might well grant a new trial, if, in the opinion of the presiding judge, injustice had been done, while at the same time, should a new trial be refused, this court would not be warranted in reversing the judgment. The judge who' presides at the trial is afforded much better and more ample means of judging of the merits of the application than the revising court can be. And therefore it is the governing rule of the action of this court, affirmed and enforced by repeated decisions, from the earliest cases upon the subject to the present time, not to reverse the judgment of the district court refusing a new trial, unless some principle of law has been violated, misconceived, or disregarded, to the prejudice of the party, or there is good reason to apprehend that injustice has been done, in refusing the application. Though the district court, in its discretion, upon the application of the accused, might have granted a new trial, if, from the evidence and circumstances of the case, as they were apparent to the presiding judge, in his opinion, the ends of substantial justice required it, yet, from anything before us in the record, we cannot say that any principle or rule of law has been infringed or injustice done.” So it can be readily seen that when the trial court heard testimony on the issue before him, and it is not brought up in the record in a way we can review it; we must presume the trial court ruled correctly.

In the case of Sharp v. State, 6 Tex. App. 658, this court said: “When matters of fact are involved in the rulings of the court below, such rulings will not be revised” on appeal “by this court, unless the facts are substantiated by proper bills of exception. Statements in a motion for a new trial * * * will not suffice”—citing Marshall v. State, 5 Tex. App. 273; Code of Criminal Procedure, art. 606.

It would perhaps be proper for us to state that the prosecuting officers and trial judges are not antagonistic to the bills of exception and statement of facts being considered; in fact, the trial judge ordered them filed back as of date within the time. But this action was unauthorized by law, in strict violation of it, and we hope no other judge will take such action. If those who are to administer the law do not obey its mandates but connive at an evasion of it, in what position are they, then, to see that others who violate the law are. made to suffer for their misdeeds? In this instance this prisoner has been compelled to remain in jail for 12 months, when, if he was entitled to have his case reversed, he ought to have been placed in position to have gained his liberty some nine months ago by giving bond. The county has been compelled to support him for 12 months, when, if his case should have been affirmed, he ought to have been in the penitentiary for the past nine months, earning his own living by labor instead of lying idle in jail, being fed and clothed by the people of Navarro county. Again, after this long lapse of time, had it been necessary to reverse the case, the chances are that many of the witnesses would now be unobtainable, or if obtainable, at a much greater cost to the state. These and other considerations, and the fact that the law is thus written, should be sufficient for all officials to see that the law is complied with, and in this way, and this way only, can we hope to prevent delay in criminal cases. If you can take 12 months to file bills of exception and the transcript in this court, then you can take two years, or three years, and, if we once-go beyond the time fixed by law, then there is no end to the time that may be taken.

We have inquired into this delay in filing the bills of exception and statement of facts closely, for, if this delay had been the fault of the officers representing the state, we had intended to reverse the case and let this be a lesson to prosecuting attorneys and officials. But, as the evidence shows that the statement of facts nor bills of exception were not prepared and presented to the court in the time allowed by law, appellant must suffer the consequences of his own negligence.

Another matter: We had the clerk before us. He shows that this is his first term of office, and he was acting under the instructions of the trial judge. We thought at first of assessing against him a heavy penalty, because the authority of the trial judge would not authorize him to ignore the law, but taking everything into consideration, and his manifest sincerity and frankness in stating the real facts on examination, we have concluded to assess against him the cost of issuance and service of process in bringing him before this court. Upon the payment of the costs incident thereto he will be discharged.

While, under the circumstances, it was not incumbent upon us to read this record, yet we have done so, for we dislike to see an injustice done any man, even though by his negligence he was not entitled to have his case reviewed. After reading it, we are of the opinion that the evidence would not only justify the verdict herein rendered but would have, sustained a verdict of murder in the first degree, with the highest penalty known to the law assessed against him. The record reeks with facts tending strongly to show a willful premeditated killing, while his victim .was plowing in his field. That appellánt went there for the purpose of slaying him, and did so, and he ought to feel thankful to his counsel for their able conduct of the case, and to the jury for the mercy shown in their verdict.'

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a lengthy motion for rehearing in which he earnestly insists that his bills of exception should be considered. While he admits they were not filed for more than a year after the trial of the case, yet he says he prepared them in February prior thereto and notified the prosecuting officers that they were ready for their inspection. He then admits he held them until in May, when he, for the first time, delivered them to the trial judge and requested him to act thereon. This was about six months after the trial. In Riojas v. State, 36 Tex. Cr. R. 185, 36 S. W. 268, this court, speaking through Judge Henderson, said: “Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge, and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: ‘This bill of exceptions was handed me within the time prescribed by law, and during the term of court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel at the time of the admission of the same; and the clerk of the district court of Atas-cosa county is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements thereon, and forward same to Austin as a part of the transcript in said cause.’ This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty of counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Tex. App. 229 [8 S. W. 25]; Exon v. State, 33 Tex. Cr. R. 461 [26 S. W. 1088].”

It is thus seen it is made the imperative duty of appellant to see that his bills of exception are filed within the time fixed by law. This is the law, and we are and should be bound thereby. It is seen in this case it is held that, even had appellant delivered the bills to the judge in time, it would still have been his duty to have followed them up and had them acted on and filed. In this case, though, it appears they were not delivered to the judge within time, and relied on the promise of an attorney that the law should be ignored and overridden.. When this is called to our attention, we cannot sanction nor permit it.

Again he says the statement of facts was made out on March 7th and sent to him, and a duplicate was sent to the district clerk, which was received on March 12th, but.it is not contended that either had been agreed to by counsel or approved by the judge at that time, and it is manifest by the record and papers before us that the statement of facts was not presented to the judge for his approval until more than 100 days had elapsed after the adjournment of court for the term. Had appellant been diligent when he received the statement of facts on March 12th, and secured an agreement from the prosecuting officers that it was correct, or if that officer declined to pass on it and then agree to it, had then delivered a copy of the statement of facts to the judge with the request that he approve same, or prepare a statement and file it, it could have been done in the time required by law, and he would then have done what the law required him to do. But he did not do this, but waited until after the time had elapsed in which he could file a statement of facts, and then presented it to the judge for his signature. Counsel cannot by agreement abrogate the law, and we are not authorized to do so. No good reason is assigned, except that counsel had been busy. Counsel say that in the cases of S. P. Ward and Louis Walker, appealed from Navarro county, the statement of facts and bills of exception were antedated, and yet they were considered, and, because we considered the record in those cases, we should do so in this case. Those two and a number of other cases from other counties, in which the filing of records in this court were unnecessarily delayed, caused us, at the termination of the last term of this court, in last June, to make and enter an order stating that such negligence would no longer be tolerated. This notice was published in the daily press of this state, and the clerks of all the courts were promptly notified, and the clerk of the court in this case was notified in July of last year that this record must be forwarded, and counsel were notified of such action, as the sworn testimony in this record discloses, and yet no attention was paid to the matter until some six months thereafter we notified the clerk that he would be fined if this record was not filed in this court, when the bills of exception were hurriedly filed and dated back. We are but enforcing the Code of Criminal Procedure as written, and- we gave notice simply that all might know that the negligence that had grown up would no longer be tolerated; and yet counsel say although, after receiving notice that this court had entered such an order, they still ignored the law, because it had been done before the notice had been given, we should follow the policy of ignoring the law and let bills of exception and statement of facts be filed whenever it is convenient for it to be done, regardless of the law. The fact that in the Ward and Walker Cases the statement of facts and bills of exception, if it was done, had been antedated was not called to our 'attention, and it appeared that it was solely the negligence of the clerk that the records had not beén forwarded to this court at the proper time, and for this reason they were considered. Had it been made to appear, as in this case, that they had been dated back, they would have been stricken out, as they are stricken out in this case.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: PRENDERGAST, P, J.

license: Public Domain

text:
    YBARRA v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1914.)
    1. Indictment and Information (§ 139) — Motion to Quash — Time fob Filing.
    Where an accused moves to quash the indictment on the ground that the sheriff who summoned one talesman to complete the grand' jury which found the indictment was not properly sworn, the motion comes too late, if not made until the end of the trial.
    [Ed. Note. — For other case, see Indictment and Information, Cent. Dig. § 473; Dee. Dig. § 139.]
    2. Ceiminal Law (§ 1206) — Punishment — Statutes — Homicide.
    Pen. Code 1911, art. 15, provides that When a penalty for an offense is altered by a subsequent law, the penalty of the second law shall not be inflicted for an offense committed before it took effect, and that accused shall be tried and punished under the law in force when the offense was committed unless the second law ameliorates the punishment, when accused shall be punished thereunder unless he elects to be punished under the former law. Articles 17, 18, and 19 declare that when a repealing statute substitutes a new penalty for an offense punishable by the repealed statute, the repealing statute shall not exempt from punishment for a violation of the repealed law while it was in force; that if an offense be defined by one statute and its definition subsequently changed, the modification shall not apply to offenses already committed; and that no offense committed under existing laws shall be affected by their repeal. Held, that one who committed a homicide in June preceding July 1, 1913, on which date the new murder law went into effect, must be tried under the old law, unless he expressly elects to be tried under the new.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3271-3277, 3279, 3280; Dec. Dig. § 1206.]
    3.' Statutes (§ 267) — What Law Governs.
    Although the homicide for which accused was tried was committed before the act of April 15, 1913 (Acts 33d Leg. c. 138), which changed the procedure in homicide cases by amending Code Cr. Proc. 1911, arts. 735, 737, 737a, 743, became effective, such changes in procedure must be followed where the trial was not had until after the statute went into effect.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.]
    Appeal from District Court, Hays County; Frank S. Roberts, Judge.
    Sango Ybarra was convicted of murder, and he appeals.
    Reversed and remanded.
    E. M. Cape, of San Marcos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P, J.

Appellant was convicted of murder, and the death penalty assessed.

There are but few questions raised which are necessary to be decided. We bave carefully studied the evidence shown by the statement of facts. In view of the disposition we must make of the case on this appeal, we do not discuss the evidence. It clearly raised murder in both the first and second degrees, and was sufficient to have sustained a verdict under either.

The appellant made a motion to change the venue. This was contested by the state, and the affidavits of several persons showed that appellant was not entitled to a change of venue. As the matter is presented, the court correctly overruled appellant’s motion for a change of venue.

He also sought to quash the indictment on two grounds: First, that the commissioners, in selecting the grand jurors, unlawfully discriminated against Mexicans, and that there was no Mexican on the grand jury. The commissioners were appointed and selected the grand jurors which preferred the indictment herein against appellant some time before this offense is alleged to have been committed. They testified on appellant’s motion on this ground, and their testimony shows that no discrimination was made against Mexicans, or any other race, and the court correctly held this no ground to quash the indictment.

The other ground was that only 11 of the grand jurors who were selected by the commissioners were present and qualified as such, and that the sheriff summoned one talesman under the order of the court, who was selected to complete the jury panel. Appellant’s complaint on this ground is that the sheriff was not sworn before he summoned this talesman. No complaint whatever was made of this at the time the grand jury was impaneled. The indictment was preferred by the grand jury and filed in the court September 16, 1913. This trial occurred October 10, 1913. No complaint on this score was made by appellant until at the trial. Under the circumstances this was entirely too late for appellant to make this objection, and the court correctly overruled his motion to quash the indictment on that account.

Some question is made of the refusal of the court to permit appellant to further examine one of the jurors on his voir dire, who had already been accepted by both sides and sworn as such juror. It is unnecessary to pass upon this question, for it doubtless cannot occur on another trial.

The killing occurred on June 7, 1913, and it is so charged in the indictment. Before the trial began, and all during the trial, the appellant, as he expresses it, elected to be tried under the old murder law as it existed at the time the offense, if any, occurred. The court refused this, and instead tried him under the new murder law which went into effect July 1, 1913. The appellant not only raised the question and sought to be tried under the old law, by expressly electing to do so, before the trial began, but objected to the court’s charge in not doing so, and requested special charges correctly submitting murder in the first and second degrees under the old law, which special charges the court refused. He also so complains of the various matters in his motion for new trial. We deem it unnecessary to copy the court’s charge. It is sufficient to say that by it he submitted murder only. He did not submit, in specific terms, murder in the first degree, nor in the second degree, nor did he submit murder in such terms as to make the distinction between the two degrees. This court, in several eases tried for alleged murder committed before the new statute went into effect, but tried afterwards, has already held that unless the appellant expressly himself elects to be tried under the new law, he must be tried under the old, but, as to murder in the first degree, the new law ameliorating the penalty, as to that degree the punishment fixed by the n,ew must be charged. The statutes also expressly require this. We, therefore, deem it unnecessary to further discuss the question in this case. Articles 15, 17-19, P. C.; Hill v. State, 161 S. W. 118; Shaw v. State, 160 S. W. 103, and Cook v. State, 160 S. W. 465, both recently decided.

What we have said about being tried under the old law is meant as to the offense itself and the punishment therefor prescribed under articles 1140-1142, 1444, P. C., before amendment by the Legislature in 1913, p. 238. But although the offense was committed before the amendment of these articles of the Penal Code, yet the amended articles of the procedure (articles 735, 737, 737a, and 743), as amended by Act of April 5, 1913, p. 278, must be followed in all trials whether the offense was committed before or after the said Penal Code was amended. James v. State, 163 S. W. 61, and Wright v. State, 163 S. W. 976, both recently decided; Barnett v. State, 42 Tex. Cr. R. 306, 62 S. W. 765.

For the error above shown, the judgment is reversed, and the cause remanded.


author: HARPER, J.

text:
    MANNING v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    1. Homicide (§ 158) — Evidence — Admissibility.
    In a prosecution for homicide, evidence of accused’s threats against deceased and others, and his language just before he killed deceased, is admissible, if not as part of the res gestae then to show accused’s state of mind, where the state claimed that deceased, as a peacemaker, endeavored to quiet a difficulty at a dance given by accused, and that accused shot him as he was running away, and accused claimed that he was endeavoring to keep order and killed deceased in self-defense.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.] ■

      2. Statutes (§ 267) — Teial.
    Acts 33d Leg. c. 1382, requiring the filing of objections to the charge on submission to counsel and before it is read to the jury, which went into effect on July 1, 1913, applies to all criminal prosecutions thereafter, and complaints to the charge, made for the first time in the motion for new trial, cannot be considered.
    [Ed. Note. — Eor other cases, see Statutes, Cent Dig. §§ 350-359; Dec. Dig. § 267.]
    Appeal from District Court, Sabine County; A. E. Davis, Judge..
    Sam Manning was convicted of murder in the second degree, and be appeals.
    Affirmed.
    J. W. Minton, of Hemphill, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases 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 Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant when tried was found guilty of murder in the second degree, and his punishment assessed at five years’ confinement in the state penitentiary.

There is but one bill of exception in the record, and that complains of the following proceedings had upon the trial: Frank Ellison was sworn and testified:

“I know a little about the trouble or diffi-. culty, that occurred at Sam Manning’s dance in December of last year. I heard some blackguarding and cursing and boards popping and crying up there. I heard Sam Manning cursing. I knew Frank Kirby, and I saw him the next morning. He was dead. It was about U o’clock somewhere, and along about that time — I had been asleep — I heard him (Manning) cursing his wife for a God damned dancing slut, ‘You thro wed my shells away, God damned you, and if you don’t help me hunt them, I will kill you all. I am going to kill Mack Eliison. My neck has been tried twice for killing two God damned sons of bitches, and I am going to kill some more.’ I heard, I think, about four shots before that.
“Defendant: We object to this testimony, and ask that it be stricken out. It is shown to be after the occurrence.
“Q. How long did you say that was after the last shot fired? A. It was just a few minutes after the three last shots fired, and I goes up there to see what he was hunting. Q. How long was it before you got up there to the house? A. I suppose it was 10 or 15 minutes. I went to get my boots on; I heard these boards popping and him cursing up there, and I got one of my boots sorter twisted, and when I got my boots on, I went right up there.
“Defendant: We object to it because it is not shown to have any connection with the alleged crime; the statements, if made, were made against third persons, made subsequent to the alleged commission of the offense with which the defendant is charged, and it is irrelevant and immaterial and prejudicial to this defendant.
“Court: Objection overruled. Defendant excepts. .
“Witness states: During this time, he was right out in front of his gate, and had some splinters in his hand, a little light, and said, T am going to get me a shotgun and kill every God damned one of them.’
“Defendant: We offer the same objection to this last statement. It is shown to be after the commission of the offense, not connected with the offense with which the defendant is charged, and is irrelevant, and is not a part of the res gestie. (Objection overruled. Defendant excepts.)
“Court: I believe the witness says it was within 10 or 15 minutes of the time he heard the last shots fire.
“Witness: It was about that time.
“Witness states: I lived about 150 steps from there, and as soon as I could get dressed I went up there, after this last shooting and fighting. I went up there as quick as I could after the three shots fired. I did not go the closest way up to his (Manning’s) house. I kinder went around. I suppose I went 200 yards before I got right up in front of his gate. I had dressed and gone this, distance, and it was then I heard this cursing. I walked up there. Of course, I heard some cursing before I got there. As to whether or not I heard any cursing from the time I heard the last pistol shoot until I got there, will say it was just about continuous. It was just about continuous cursing after I heard these last three shots up until I got there, and it was the hardest cursing I ever heard. As to whether or not I heard him from down at my house, will say of course I could.”

This witness was followed by J. F. Flowers, who testified that shortly after he heard the shots appellant came down to the kiln where he was at work, with a shotgun in his hands, and asked if he had seen anything of Frank Kirby, the deceased. The testimony introduced prior to the testimony of Mr. Ellison showed that appellant had a dance at his house, and was drinking; that he had his pistol out in his hands, was cursing, and had shot at one man, who .ran off, when the difficulty arose in which Kirby lost his life. The state would have Kirby a peacemaker, while appellant would have him raising a difficulty with him, and advancing on him with an open knife when he fired the fatal shot. There is and can be no question that appellant fired three or four shots that night prior to the time Kirby ran off, some of them being fired at Kirby; that Mr. Ellison is testifying to what took place immediately after appellant had fired the shots at Kirby, and just preceding the time he was seen by Flowers with a shotgun hunting Kirby. Under such circumstances, we think the testimony was admissible, if not as res gestas statements, then testimony as shedding light' on the transaction in which Kirby lost his life, to enable the jury to pass on the state of mind of appellant, and decide which of the two theories was the correct theory in the case. Appellant would have himself trying to preserve order, committing no overt act himself, except in defense of his life, while the testimony offered by the state would have him during the same transaction not only shooting Kirby without just provocation, but assaulting and. threatening others, and using his firearms in a way. to show a reckless disregard of human life. There was no cessation, in so far as appellant is concerned from the time he drew his pistol in the house until he was seen hunting Kirby with a shotgun, and under such circumstances any and all of his acts and conduct were admissible.

This case was not tried until the 14th day of October, three months after the law in regard to filing objections to the charge before it was read to the jury had gone into effect. This law passed by the Thirty-Third Legislature went into effect July 1st •of last year, and applied to all trials had .after that date. James v. State, 163 S. W. 61; Ybarra v. State, 164 S. W. 10, both recently decided. Consequently complaints .as to the charge of the court, made for the first time in motion for new trial, after verdict, cannot be considered by us on appeal. Acts of 33d Leg. Sess. Acts, p. 278.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    WILLIAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 28, 1914.)
    Appeal from District Court, Smith County, R. W. Simpson, Judge.
    Jim Williams was convicted of cattle theft, .and he appeals. Affirmed.
    C. E. Lane, Ásst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Erom a conviction of cattle theft, with the lowest punishment assessed, appellant prosecutes this appeal. There is no statement of facts, in the absence of which no question is raised that can be review■ed. The judgment is affirmed.


author: RAINEY, C. J.

text:
    DEVANCE et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.
    Rehearing Denied March 7, 1914.)
    1. Raileoads (§ 398) — Killing Person on Track — Negligence—Evidence.
    Evidence, in an action for the killing by a train, on a foggy night, of a person asleep or drunk, with his head on a rail of the track, his body outside the track and near some weeds, held to show no failure of. duty as to lookout, or after discovering the peril.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. § 398.]
    2. Railroads (§ 381) — Killing Person on Track — Contributory Negligence.
    One killed by a train having been lying on the track, drunk or asleep, was guilty of contributory negligence, as matter of law.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1285-1293; Dee. Dig. § 381.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Action by Lizzie Devanee and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    J. H. Beavers, of Winnsboro, and Harris, Suiter & Britton, of Quitman, for appellants. Alex. S. Coke, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for appel-lee.

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

   RAINEY, C. J.

Appellants, the surviving wife and children of Tom Devanee, brought this suit to recover damages of the appellee for the killing of said Tom Devanee by negligently running its train over him. Appel-lee answered by general demurrer and denial and pleaded specially contributory negligence; that Tom Devanee was a trespasser on defendant’s track; that he was lying down on the track; that he was at the time asleep or drunk, or was both asleep and drunk, which was the cause of his death. A trial resulted in a verdict and judgment for appellee, from which this appeal is taken.

Tom Devaneé was run over by appellee’s train and killed at a point five miles west. from Winnsboro. He was lying with his body at a right angle with the track; his head or neck resting on the south rail and the trunk extending south from the rail. His head was severed from the body and fell between the tracks, and the body extended south from the rail. Along the track, in the community where the accident occurred, it was pretty thickly settled, and during the day and the first part of the night persons commonly and habitually used the railroad track as a pathway. The accident occurred between 1 and 2 o’clock at night. The track was straight for about a mile; there being nothing in daylight to obstruct the view. The night in question was foggy and dimmed the headlights of the engine to some extent. The engineer was keeping a lookout, and, when he got within about 200 feet from where Devanee was lying, he saw what he took to be some cross-ties that the section hands had placed there for the purpose of placing the hand car' on. He did not discover it was a human being until within 10 or 15 feet of Devanee, and then it was too ■ late to try to stop the engine. Devanee' had on his body three or four pint bottles of whisky, and the contents of one was about half gone. None were broken, and no evidence of any being spilt, but there were fumes of whisky detected by parties who reached the remains immediately after the accident. West of the body, and near where it was lying, weeds and grass were growing near the track.'

Recognizing that the law makes it the duty of train operatives to use ordinary care to discover persons on the track to avoid injuring them, we think the facts in this case fail to show that the operatives failed to use such care in this instance. The engineer testified that he kept a lookout and saw nothing to indicate there was a human being on the track until too late to prevent the accident. It is true the track was straight and a bright headlight was burning, but the night was foggy, and Devanee was lying down on the track at a time in the night when the engineer had the right to assume that no one would be there. There was grass and weeds growing near the track near where the body was lying, all of which shows a condition which rendered the seeing of Devanee on the track almost an impossibility until within a very short distance from him. Railway Co. v. Malone, 102 Tex. 269, 115 S. W. 1158.

There are no facts to indicate that Devanee was walking on the track, but they conclusively show that he was lying on the track drunk, or asleep, which made him, as a matter of law, guilty of contributory negligence and prevents him from recovering. Railway Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945; Railway Co. v. McMillan, 100 Tex. 562, 102 S. W. 103; Caldwell v. Railway Co., 54 Tex. Civ. App. 399, 117 S. W. 488.

The court only charged on the issue of discovered peril, and we doubt if this issue was raised by the evidence. The special charges asked by appellants relating to the duty of the operatives keeping a lookout were properly refused. The evidence, we think, clearly shows that the appellee was not guilty of negligence, and that deceased was guilty of such negligence as prevents appellants from recovering. The evidence was such as warranted a peremptory instruction for the defendant.

The judgment is affirmed.


author: HALL, J.

text:
    BLAIR v. LOWREY.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1914.)
    Specific Performance (§ 13) — Defenses — OWNERSHIP of Property.
    If the property does not belong to the person contracting to convey, the contract cannot be specifically enforced.'
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 30-32; Dec. Dig. § 13.]
    Appeal from Floyd County Court; Arthur B. Duncan, Judge.
    Action by J. W. Blair against C. S. Low-rey. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    C. H. Yeale, of Floydada, and Synnott & Underwood, of Amarillo, for appellant. R. C. Joiner, of Plainview, for appellee.

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

   HALL, J.

J. W. Blair, as real estate broker, filed this suit in the county court of Floyd county against appellee, Lowrey, to recover $500, alleged to be due as commissions on the sale of defendant’s real estate. Plaintiff’s petition contains the necessary allegations, and the defendant’s answer, after general denial, alleged that no exchange was made, and that Stephens, the other party to the exchange, was unable to carry out his agreement, because he did not own the land, and that it was not defendant’s fault that the trade was never consummated. At the conclusion of the testimony the court directed the jury to return a verdict for the defendant, and judgment was entered accordingly.

Several questions are presented in the appellant’s brief for consideration; but in our opinion it will only be necessary to consider one proposition. Appellee insists that the written contract entered into between appel-lee and J. J. Stephens was not binding, and could not be specifically enforced, and that, under the case of Moss & Raley v. Wren, 102 Tex. 567, 113 S. W. 739, 120 S. W. 847, and authoiities there cited, appellant was not entitled to commissions until such a contract had been executed. The evidence developed the fact that a portion of the land which Stephens was to convey to appellee in part consideration for appellee’s land belonged to the wife of Stephens, and that she refused to execute a conveyance, thus placing it beyond the power of appellee and Stephens to close the trade. The rule is that, when the proof shows that the property contracted for does not belong to the party making the contract, there can be no specific performance decreed. C. W. Hahl & Co. v. West, 129 S. W. 878; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 122. There being no issue of fact to submit to the jury, we think the court was correct in peremptorily instructing a verdict.

The judgment is affirmed.


author: RASBURY, J.

text:
    COY v. ROWLAND.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.)
    1. Courts (§ 163) — Jurisdiction of County Court' — Writ of Possession.
    Under Const, art. 5, § 16, as amended, providing that county courts shall not have jurisdiction of suits for the recovery of land, and Rev. Civ. St. Í911, § 1766, declaratory thereof, the county court, in a suit to compel a landlord to perform the terms of a rental on shares, with cross-action asldng cancellation of the contract, damages, and possession of the premises, though having jurisdiction to cancel the contract, was without jurisdiction to issue a writ of possession to enforce such decree.
    [Ed. Note. — For other cases, see Courts. Cent. Dig. §§ 410-411, 443, 479,1294; Dec. Dig. § 163.]

      2. Appeal and Ekeob (§ 1040) — Haemless Bbeob.
    In an action to compel performance of a contract of rental on shares or in the alternative for damages, with a cross-action for cancellation of the contract, damages, and possession, any error in sustaining a special exception to the part of the petition _ seeking a mandatory injunction was immaterial, where the jury found against plaintiff on every issue.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    Appeal from Henderson County Court; C. D. Ourn, Judge.
    Action by J. C. Coy against E. C. Rowland, with cross-action and counterclaim by defendant. Judgment for defendant, and plaintiff appeals.
    Reformed and affirmed.
    E. A. Dandman and W. R. Bishop, both of Athens, for appellant. N. Frank Faulk and E. P. Miller, both of Athens, for appellee.

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

   RASBURY, J.

A sufficient statement of this case is that appellant sued appellee, alleging thát he had rented certain lands in Henderson county from appellee for cultivation during the year 1913, the rental to be paid by a share in the crops raised thereon, and that as part of the contract appellee was to furnish appellant a team of farm horses and furnish groceries to the amount of $75, and pay appellant as well $1 per day for all labor performed for appellee by appellant, and 75 cents per cord for all wood cut from appellee’s lands. Appellant further alleged that he entered upon the performance of the contract, and had partially complied therewith, when appellee by certain unlawful acts made further performance by appellant impossible. Mandatory injunction, compelling appellee to perform the terms of the contract, was sought in order that the crop could be grown in accordance therewith. In the alternative judgment was asked for damages alleged to have accrued, and which would accrue as a result of the loss of an opportunity to make a crop for that year. In addition to exceptions and the general issue appellee specially pleaded that appellant was incompetent as a farmer, that he cruelly and unmercifully abused the team of horses furnished him, failed to cultivate the land and keep abreast with his work, which would result in a loss to appellee of his share of the crop agreed to be grown upon the land, and had by various and sundry acts in law aban-, doned his contract. Judgment was asked canceling the rental contract, for damages for loss of his share of the products that would probably be raised upon the land, and for possession of the premises and certain personal property. There was a trial by jury, and the verdict was,. “We, the jury, find for, the defendant.” Upon the verdict judgment was entered that appellant take nothing by. his suit against appellee, and that the rental contract existing between the parties be canceled and held for naught, and that a writ of possession issue directed to the proper officers of Henderson county, commanding them to place appellee in possession of the rented premises and certain personal property therein described.

No attack is made upon the sufficiency of the testimony to support the verdict and judgment, and we assume that the evidence was sufficient to support the finding of the jury that the rental contract had been abandoned by the appellant, and, that neither appellant nor appellee had suffered or would suffer the damages alleged by them respectively.

The first assignment of error was not preserved in the motion for new trial, but is tendered on the ground that it is fundamental because apparent of record, and is that the court erred in awarding possession of the rented premises to appellee and directing the issuance of a writ of possession for the purpose of enforcing such decree. The record supports the claim that the judgment awards such writ of possession for the leased land, and we are of opinion that the judgment in that respect is fundamentally erroneous on the ground that the county court is without jurisdiction to enter judgment awarding the possession of land. Article 5, § 16, of the Constitution, as amended, provides, among other matters, that the county courts when established shall possess exclusive jurisdiction in certain matters, “but (that such courts) shall not have 'jurisdiction of suits for the recovery of land.” Harris, Ann. Cons. p. 441. The Legislature, in creating such courts in observing the constitutional provision, provided that the county courts should not, among other things, have jurisdiction for the. recovery of lands. Article 1766, R. S. 1911. There are cases which hold that it is proper, in the trial of suits originally cognizable in the county court, to incidentally prove or deny ownership of title to land, but none, we believe, which hold that title to land may be vested or divested, or possession thereof awarded, and writs for the enforcement of such decrees issued by such courts. City of Victoria v. Schott, 9 Tex. Civ. App. 332, 29 S. W. 681; Hollis v. Finks, 34 Tex. Civ. App. 12, 78 S. W. 555; Melvin v. Chancy, 8 Tex. Civ. App. 252, 28 S. W. 241; Henslee v. Boyd, 48 Tex. Civ. App. 494, 107 S. W. 128. The instant case was primarily to enforce performance of a contract for the rental of land, and in' the alternative to recover damages. . The purpose of the suit was met by the defense or counterclaim that the contract had be.en abandoned, with prayer for cancellation thereof and damages resulting from such abandonment. To determine such issues the county court had jurisdiction, since the amount of damages disclosed by the petition and answer came within. the amounts over which the county court had, in the one instance, concurrent, and in tlie other, exclusive, jurisdiction, and it is urged that incidental to the right to cancel the rental contract was the further right to restore possession of the premises held by virtue of such contract. We are unable to reach such a conclusion, since thei right to award possession of land comprehends the right to determine ownership, or right of possession, which is expressly denied the county courts, except in case of appeal in forcible entry and detainer suits from courts of justices of the peace. Upon other tribunals have been conferred the right to adjudicate title and confer possession of lands, and the right to do either, as we have said, has been expressly denied the county courts. The district courts have exclusive jurisdiction of all suits for trying the title to lands and may issue writs of possession therefor. All suits for the possession of lands, either in case of forcible entry or forcible detainer, is cognizable in justice courts, with the right of appeal to county courts.

The next and remaining issue in that the county judge erred in sustaining appellee’s special exception to that part of appellant’s petition seeking a mandatory injunction, requiring appellee to comply with his contract. The court did sustain an exception to that part of the petition on the theory, we presume, that appellant’s pleading disclosed an adequate remedy at law, but whatever was the reason for such action, same is now immaterial, since the jury, upon the merits of the case, found against appellant on every issue involved in the case. Before the writ could be available after trial, it must appear that appellant was entitled to specific performance, and the jury, as we have said, found that he was not, and, even if the court did err originally, which question is not determined, the error has been cured by the verdict for the reasons stated.

The judgment of the trial court will be reformed so as to deny the right to and the issuance of a writ of possession, and as reformed will be affirmed.

Reformed and affirmed.


author: HUFF, C. J.

text:
    WICHITA MILL & ELEVATOR CO. et al. v. BURRUS.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1914.
    On Motion for Rehearing, March 7, 1914.)
    Appeal and Eeeoe (§ 79) — Judgment Ap-pealable — Final Judgment.
    A judgment against all the defendants except one, but in no way disposing of him, whose dismissal would have resulted in a dismissal of the defendant partnership, of which he was a member, is not final, and so not appealable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 277; Dec. Dig. § 79.]
    Error from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by C. H. Burrus against the Wichita Mill & Elevator Company and others. Judgment for plaintiff, and defendants bring, error.
    Dismissed.
    Huff, Barwise & Buffington, of Wichita Falls, and Dillard & Moore, of Lubbock, for plaintiffs in error. Bean & Klett and W. F. Schenck, all of Lubbock, for defendant in error.

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

   HUFF, C. J.

C. H. Burrus, appellee, instituted this suit against the Wichita Mill & Elevator Company, a partnership composed of Frank Kell and M. Lasker, and the City National Bank of Wichita Falls, to cancel a certain bond executed by R. G. Way & Co., as principals, and J. A. Jordan, R. W. Groves, and C. H. Burrus, as sureties, payable to the Wichita Mill & Elevator' Company, in the sum of $2,000.' It is alleged that one Morgan, the agent of the Wichita Mill & Elevator Company, procured appellee’s signature upon a fraudulent representation that E. R. Hayne, B. O. McWhirter, and J. W. Groves would sign the bond, which they did not do. etc. The case was filed in the district court of Lubbock county. The record shows that citation was issued to Galveston county to be served on M. Lasker, and that service was had on him November 7, 1912, and Frank Kell was served October 14, 1912, and the City National Bank was served on the same day. The district court for Lubbock county convened on the 11th day of November, 1912, and on the 13th day of November, 1912, judgment was taken by default against the Wichita Mill & Elevator Company, Frank Kell, and the City National Bank of Wichita Falls. The judgment in no way disposed of M. Lasker. As to the other parties the court canceled the bond as prayed for by appellee. Without disposing of M. Lasker, there was no' final judgment from which an appeal can be taken. Lilliensterne v. Lewis (Sup.) 12 S. W. 750; Williams v. Bell, 53 Tex. Civ. App. 474, 116 S. W. 837; Flow v. Railway Company, 147 S. W. 679; Hillsman v. Cline, 145 S. W. 726.

There being no final judgment, this court is without jurisdiction, and the appeal is dismissed.

On Motion for Rehearing.

The defendant in error, by motion for rehearing, asserts we were in error in refusing to entertain the aijpeal in this case, and in holding the judgment appealed from is not final. That a judgment against a partnership may be taken by service on one of the partners and the member of the firm served, is so well settled that the citation of authorities is unnecessary. In order to obtain such judgment, against the Wichita Mill & Elevator Company, it was not necessary to bring M. Lasker in the case by service of citation, is' not questioned by this court;' but defendant in error did serve him'with citation, and, having brought him into the case to answer, we held that it was necessary to dispose of him before final judgment could he entered. The defendant in error, in his motion, advances the proposition: “If the defendant in error had dismissed M. Lasker from the suit, he would thereby have dismissed the partnership of Wichita Mill & Elevator Company, and would not have been entitled to a judgment against said company.” We concede the correctness of the proposition, and the authorities cited by defendant in error sustain the proposition (McManus v. Cash, 101 Tex. 261, 108 S. W. 800; Frank v. Tatum, 87 Tex. 205, 25 S. W. 409; Glasscock v. Price, 92 Tex. 271, 47 S. W. 965); but where we differ from defendant in error is he did indirectly what he could not do directly, that is, took no judgment against M. Lasker after making him personally a party, and in effect discharged or dismissed him by taking no judgment against him. If he could not dismiss him, how could he refuse to take judgment against him? If he was a party which could'not be dismissed, then he was a party which the judgment should dispose of in some way. We cite the following additional authorities as supporting our conclusions heretofore given in this case: Benge v. Panhandle Land Co., 145 S. W. 318; Benge v. Sledge, 132 S. W. 873.

The motion for rehearing is overruled.


author: TALBOT, J.

text:
    MARTIN v. DANIEL et al.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.)
    1. Fraud (§ 12) — Action's —Right of Action.
    A false statement upon which an action of fraud may be predicated must relate to existing or pre-existing facts, and mere promises as to future acts will not support it, and hence an action for damages for fraud based on a breach of a promise to obtain funds, and conduct the business of a corporation, cannot be maintained; the promise relating to acts in the future.
    [Ed. Note. — For other cases, see Fraud, Cent Dig. § 14; Dec. Dig. § 12.]
    2. Cancellation of Instruments (§ 46).— Actions — Evidence.
    In a suit by stockholders of a corporation to cancel a note given by them to defendant to secure an indebtedness of the corporation to defendant, on the ground that defendant breached an agreement, entered into when the note was delivered, to remain with the corporation and conduct its business, evidence of the breach of such agreement is admissible to establish a failure of consideration for the note.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Dec. Dig. § 46.]
    3. Trial (§ 169) — Peremptory Instruction eor Defendant.
    In an action for deceit, and to cancel a note given by plaintiffs to defendant to secure a debt of a corporation to defendant, in con:sideration of an agreement by defendant to give his personal attention to the affairs of the company, and, among other things, to make its financial standing as good on a specified date as it was on a prior date, a peremptory instruction to find for defendant “as to all matters set up in plaintiffs’ petition” was improper, though the practically uncontradicted evidence showed that defendant did comply with the stipulation as to financial standing at the date mentioned.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. § 169.]
    4. Evidence (§ 441) — Contradiction of Note by Parol Evidence.
    Where plaintiffs, stockholders of a corporation, executed a note to defendant to secure a debt of the corporation, evidence of a contemporaneous parol agreement by defendant not to negotiate the note, but to carry and extend it until certain other debts of the' corporation were discharged, was inadmissible to vary the expressed terms of the note.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.]
    5. Evidence (§ 142) — Admissibility—Materiality.
    Where defendant, in settlement of a suit by plaintiffs to rescind a purchase of corporate stock, agreed to handle the corporation’s business in such a manner as to make its financial standing as good as it was on the date of the sale of the stock, evidence of an appraisal of the property of the corporation made a year or more after the sale is inadmissible to show the value of the stock at the time of the purchase.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. W. Daniel and others against G. C. Martin. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Jones & Jones, of Mineóla, for appellant.

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

   TALBOT, J.

This suit was instituted by the appellees against appellant, and by their amended petition, upon which the case was tried, they alleged, in substance: That on the 18th day of March, 1911, the appellees purchased from the appellant and one M. T. Skinner 106 shares of the capital stock of the Hardwick Abbott Manufacturing Company, a corporation organized under the laws of Texas. That said shares were of the par value of $100 per share, and the appellees purchased said shares for the sum of $160 per share. That thereafter a suit was filed in the district court of Nolan county, Tex., to rescind said contract of sale, and that after the filing of said suit the appellant and appellees entered into a written contract, by the terms of which the appellees were to dismiss the suit filed in Nolan county, and, as a part of the consideration for the dismissal of said suit in Nolan county, the appellant did covenant and agree as follows: “And, further, the said G. C. Martin does hereby bind and obligate himself, and guarantee that all suits filed against the said company shall be dismissed, and, further, that the said G. C. Martin will procure sufficient funds to carry on the business of said company, but in this connection all parties hereto shall indorse the company’s paper to procure said funds, and, further, tile said G. 0. Martin does hereby agree to carry the amount due him by said company in open accouut.” And the said G. C. Martin did further agree: “That he will make any and all deficiency or shortage good; that he will individually pay off ali excess and liability, and in every way make the financial standing of the company as good at this time as it was on March 18, 1911.” They further alleged: That on August 2, 1911, the date of said contract, the Hardwick Abbott Manufacturing Company was indebted to said Martin in the sum of about $3,000, and the defendant agreed to carry same in an open account. That afterwards, on the 3d day of August, 1911, the said G. C. Martin contracted and agreed with the plaintiffs that he would stay with the Hardwick Abbott Manufacturing Company at Dallas, Tex., and give said company and its affairs his personal attention, until all of the past-due indebtedness of said company should be paid or adjusted to the satisfaction of the appel-lees, and that he would not make any demand on the company until all of its other obligations then existing had been paid. That in consideration of said agreement the appellees J. W. Daniel and T. J. Dudley did execute, for and on behalf, of the Hardwick Abbott Manufacturing Company, and for themselves did personally sign as surety, a certain promissory note dated August 3, 1911, payable to G. C. Martin, at Dallas, Tex., December 1, 1911, with interest from date at the rate of 10 per cent. That the said Martin did further agree that he would not sell, transfer, or negotiate said note in any way, and that after maturity thereof he would extend the date of payment of said note in the event the other debts of the said company should not be paid on or before maturity of said note. That such representations were fraudulent, and plaintiffs were thereby induced to execute said note, which was given in settlement in whole or in part of said company’s indebtedness to defendant. They further alleged: That they (appellees) had fulfilled their agreements in all respects ; but that G. C. Martin had failed to .perform his contract in the following respects: That he had not procured sufficient funds to carry on the business of the Hardwick Abbott Manufacturing Company, and he had not made any effort to do so. That he had not made the financial standing of said company as good as it was on the 18th day of March, 1911. That he had not stayed with the business and given it his personal attention. That said company has not been able to pay off and discharge the greater portion of its debts and claims existing against it at the time the above agreement was made. That the said G. C. Martin did, on the 26th day of August, 1911, collect from the city of Dallas the sum of $61S.50, due the Hard-wick Abbott Manufacturing Company, and did convert the same to his own use, and he-has not given the business of the Hardwick Abbott Manufacturing Company any attention or assistance whatever. That by reason thereof the said company, and thereby the plaintiffs J. W. Daniel and T. J. Dudley, holders of the greater portion of the stock,, have been greatly damaged in the sum of $2,-618.50. They further alleged that said Martin, contrary to his agreement, had been and-is now endeavoring to transfer and negotiate the note which appellees and the Hardwick. Abbott Manufacturing Company had executed to him, that said Martin had no property-subject to execution, and that they had no-adequate remedy at law. They prayed for-damages in the sum of $16,960, and that the injunction which had been issued in the-case be made perpetual, and for general and special relief. On March 3, 1913, they filed' a trial amendment, in which they alleged that G. C. Martin was possessed of all the facts as to the condition of the Hardwick Abbott Manufacturing Company prior to August 2, 1912, and knew its condition to be insolvent;. that it was impossible for plaintiffs to have discovered the condition of said company on said date; that they did not so discover said financial condition of said company prior to that date; that Martin represented to-them that the company was in good financial condition, and, if not, that he would make the condition of the company good; that said representations were made with intent to deceive and defraud these plaintiffs; that the representations were- fraudulent; that plaintiffs believed them to be true at the-time, and they acted upon them as true, and thereafter they discovered said company was in bad financial condition, and they called upon the defendant to- make its financial condition good, and he failed to- do so. They-further alleged in the- trial amendment that the consideration for which- said note was-given had failed, and they prayed that it be-canceled and held for naught, and for damages, etc.

On the 2d day of September, 1912, the defendant, Martin, filed his amended answer and plea in reconvention or- cross-action, in-which he pleaded a general demurrer, general denial, numerous special exceptions, and specially that the plaintiffs had investigated the financial condition of the Hardwick Abbott Manufacturing Company for themselves,, and, after obtaining all of the information they desired, and with a full knowledge of' the financial condition of said company, they purchased said stock, and executed said note, and that he made no false or untrue statement to them, or either of them, in regard to said matters or things. Hé specially pleaded that at the time of the execution of said note the plaintiff Daniel was solvent; that he is now and for some time has been hopelessly insolvent; that T. J. Dudley is now and at all times has- been insolvent; that at the time of the execution of said note the Hardwick Abbott Manufacturing Company was a going concern; that it is now and for some time past has been insolvent, and had gone into bankruptcy; that the affidavit for injunction heretofore issued in this cause was not made in good faith, and that each and all of the facts alleged in said affidavit are untrue; that since the execution of said note X W. Daniel has conveyed all of his property, and that the injunction issued in this cause was sued out for the purpose of permitting said Daniel to dispose of his property, and that by reason thereof said note has become worthless; that the United States Fidelity & Guaranty Company was a surety upon said injunction bond — and he prayed for judgment against each of the plaintiffs and said surety upon said bond the amount of his note, with interest. He further alleged that he could and would have been able to have negotiated or sold said note to a man at Merkel, Tex., if not prevented by the writ of injunction issued in this cause; that at the time he took said note he fully informed the plaintiffs about the equity he had in a tract of land situated in Erath county, Tex.; that certain deferred payments would become due upon said land on December 1,1911, and that said payments were secured by the vendor’s lien upon said land; that he informed plaintiffs that he expected to negotiate their note in order to make his payments upon said land, and that, by reason of the injunction having been issued in this cause, he had lost his said land by reason of foreclosure proceedings having been instituted, and that he had thereby been damaged in the sum of $3,700, the value of his equity in said land. The defendant United States Fidelity & Guaranty Company answered by general demurrer, special exception, and a general denial, and adopted the pleadings of the plaintiff on the 3d day of March, 1913. A trial on the 11th day of March, 1913, resulted in a verdict in favor of the plaintiffs for $5,000 damages, that defendant, Martin, take nothing by his plea in reconvention or cross-action, and that the note for $2,000 given him by the plaintiffs and the Hardwick Abbott Manufacturing Company be canceled and held for naught. Judgment was entered in accordance with the verdict of the jury; but afterwards, upon a hearing of the defendant’s motion for a new trial, the court required the plaintiffs to enter a remittitur of so much of the judgment as awarded them the $5,000 damages. The motion to set aside the judgment in all other respects was overruled, and defendant appealed.

The first assignment of error complains of the court’s refusal to direct, at the request of appellant, a verdict in his favor “as to all matters set up in plaintiff’s pleadings.” The propositions contended for under this assignment are: (1) That “a promise to obtain funds with which to conduct a business is merely a promise to perform an act in the future, and is in no sense such a promise as will sustain an action for fraud”; (2) that “a promise to continue to work for and stay with a business is a promise to perform acts in the future, and is not such a promise as will constitute actionable fraud”; (3) that the undisputed testimony in this case shows that G. C. Martin did make the financial condition of the Hardwick Abbott Manufacturing Company in as good condition on August 2, 1911, as it was in on March 18,1911.

It is well settled that a false statement upon which fraud may be predicated must be of existing facts, or facts which previously existed, and cannot consist of mere promises as to future acts, even though such promises are subsequently broken. Conoway v. Newman Mill & Lumber Co., 91 Ark. 324, 121 S. W. 353; Mathews v. Eby, 149 Mo. App. 157, 129 S. W. 1016; 20 Cyc. p. 20, and cases cited. Plaintiffs’ action, in so far as it sought to recover damages of defendant, and to cancel the note given him by them and the Hardwick Abbott Manufacturing Company purely upon the ground that defendant had fraudulently represented and promised that he would obtain funds with which to conduct the business of said company in the future and would continue to work for and stay with the business could not be maintained. These promises, however, may have entered into and formed a part of the consideration for the execution and delivery of the $2,000 note, and, if so, constituted a proper defense to said note under plaintiffs’ plea of failure of consideration. In view of this phase of the case, the peremptory instruction was properly refused.

We are of the opinion that the practically undisputed evidence shows that defendant, Martin, made good any obligation he may have assumed to put the Hardwick Abbott Manufacturing Company by August 2, 1911, in as good financial condition as it was in on March 18, 1911; but this was not sufficient to justify the giving of defendant’s special charge directing the jury to return a verdict in his favor “as to all matters set up in plaintiffs’ petition.”

The court charged the jury as follows: “Gentlemen of the jury, at the request of plaintiffs you are further instructed, in addition to the general charge given herein, that, if you believe from the evidence that at the time of the execution and delivery of said note for $2,000, that defendant, G. C. Martin, or any one with his authority, agreed and contracted with plaintiffs to extend, carry, or renew said $2,000 [note] until the other debts of the Hardwick Abbott Manufacturing Company were paid, and you find that the debts of said company were not paid, then you shall find for plaintiffs against defendant on defendant’s cross-action for damages herein, and by your verdict you will cancel said note.” This charge is made the basis of appellant’s fifteenth assignment, and was error and prejudicial to appellant. If, at the time the note mentioned in the charge was given, the appellant agreed to extend the time of its payment until the other debts of the Hardwick Abbott Manufacturing Company were paid, it was but a promise to do or perform certain things in the future concerning it, which furnished no legitimate defense to defendant’s cross-action based upon said note. The note by its terms became due and payable on a day certain, and its legal effect could not be controlled, varied, or defeated by allegations and proof of a parol contemporaneous agreement relieving appel-lees, upon certain contingencies, of payment at the time specified in it. Such a promise did not constitute a part of the consideration of said note, or, if a part, not the whole consideration, and the charge was not called for or applicable to the pleadings or facts touching appellees’ plea of failure of consideration.

Appellant requested the court to charge the jury that they could not find for the appellees upon their allegations that the defendant agreed he would not sell, transfer, or negotiate the $2,000 note executed and delivered by the Hardwick Abbott Manufacturing Company and appellees to appellant, and to return a verdict in favor of appellant upon that issue. This charge was refused, and the jury, on the contrary, instructed at the instance of appellees that, if the appellant, at the time said note was executed and delivered, entered into an agreement not to negotiate, transfer, or assign said note, then in no event to find for defendant on his cross-action. The refusal of the one and the giving of the other of these charges constituted material error, and, for the same or a similar reason, that the giving of the special charge made the basis of appellant’s fifteenth assignment was error.

We are further of the opinion that the paragraph of the court’s charge complained of in appellant’s sixteenth assignment of error was upon the weight of the evidence; but that, in view of the remittitur entered by ap-pellees, furnishes no ground for a reversal.

The fifth assignment of error is that the court erred in permitting the witness E. P. West to testify, over the objection of this defendant, as to the value of the plant of the Hardwick Abbott Manufacturing Company at a date subsequent to August 2, 1911, as is more fully shown by defendant’s bill of exceptions No. 10. The testiniony here complained of and admitted was to the effect that a year or more after the sale of the shares of stock to appellees the entire plant, building, and material owned by the Hardwick Abbott Manufacturing Company were appraised at $3,650. This appraisement and estimate of the value of the property belonging to the Hardwick Abbott Manufacturing Company was made at a time too remote from the date of the sale and purchase by appellees of the stock of said company held by them to furnish a criterion, or to be of any reliable aid, in determining the value of the property or assets of said company at the time of such sale and ourehase, or in determining any other issue in the case. It was therefore inadmissible, and should have been excluded.

For the errors indicated, the judgment is reversed, and the cause remanded.


author: KEY, C. J.

text:
    LANE, Comptroller, v. VOLZ & FALWELL.
    (Court of Civil Appeals of Texas. Austin.
    June 25, 1913.
    Rehearing Denied Oct. 8, 1913.
    Writ of Error Denied by Supreme Court Dec. 17, 1913.)
    1. Intoxicating Liquors (§ 108) — Licenses —Proceedings to Review Forfeiture.
    Rev. Civ. St. 1911, arts. 7436 to 7442, provide for the revocation of liquor licenses by the comptroller, and section 7443 declares that any person aggrieved by the annulling of his license may sue in the district court to reinstate such license. Const, art. 2, § 1, declares that no person in our department of the government shall exercise any power properly attached to either of the others. Held, that section 7443 must be construed as not merely providing a method for review of the action of the comptroller but as authorizing a trial de novo, for, if the comptroller was exercising judicial power, the statute under which he acted would be invalid.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.]
    2. Appeal and Error (§ 1058) — Review — Harmless Error.
    In a suit by one aggrieved by the comptroller’s revocation of his liquor license, any error in excluding depositions taken before the commissioner appointed by the comptroller was harmless to the comptroller, where the witnesses, whose depositions were taken, testified, and the depositions would not have strengthened the case.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.]
    3. Intoxicating Liquors (§ 108) — Licenses —Forfeiture—Evidence.
    In a proceeding to annul the comptroller’s forfeiture of plaintiff’s liquor license, a finding by the trial court that plaintiffs did not willfully and knowingly sell intoxicants to minors and students in institutions of learning held not so contrary to the evidence that it could be disturbed on appeal.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Suit by Volz & Falwell against W. P. Lane, Comptroller. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    B. F. Looney, Atty. Gen., and W. A. Keeling, Asst. Atty. Gen., for appellant. D. K. Woodward, Jr., and Dickens & Dickens, all of Austin, for appellees.

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

   KEY, C. J.

Counsel for appellees concede the correctness of the following general statement of the nature and result of this suit, as contained in appellant’s brief: This is a suit brought by appellees against appellant, as comptroller, for the reinstatement of their license to sell intoxicating liquors. Ap-pellees alleged in their petition that on complaint filed against them charging that they, as retail liquor dealers, had sold intoxicating liquors to minors and to students of an institution of learning, and had permitted minors and students of an institution of learning to enter and remain in their place of business, appellant had, under the provision of section 9a to section 95 of chapter 17 of the Acts of the Thirty-First Legislature (1st Ex. Sess.), issued a commission and had taken testimony, and had thereafter revoked and canceled appellees’ license. Appellees further alleged that they felt themselves aggrieved by the act of appellant, and that they had not knowingly sold intoxicating liquors to minors, and had not knowingly permitted minors and students of an institution of learning to enter and remain in their place of business, and alleged that the action of the comptroller was erroneous, and praying for a hearing in the matter as provided by law, and that after said hearing their license be reinstated.

Appellant filed his answer in said cause, containing formal denial of the allegations made by appellees, and alleging in substance that his action in canceling appellees’ license was warranted by the testimony taken before the notary public in said matter in accordance with law, and that said testimony sustained the complaint made that appellees had violated the law as charged, and that he acted in good faith in considering and hearing the testimony, and that the- charges against appellees were established by a preponderance of the creditable evidence introduced.

On a trial of said cause before the judge, a jury not having been demanded by either party, a verdict was rendered in favor of ap-pellees on the 3d day of May, 1913, which judgment reinstated the license of appellees as a retail liquor dealer, and set aside the action of the comptroller in revoking their license. Thereafter, in the time required by law, appellant filed his motion for a new trial, which motion was by the court overruled on May 8, 1913, to which action of said court appellant excepted and gave notice of appeal to this court, and this cause is here for revision.

This cause was tried by the court as an original action. The plaintiffs were permitted to introduce any testimony they desired, tending to show whether or not appellees sold intoxicating liquors to minors and to students of an institution of learning, or permitted minors or students of an institution of learning to enter and remain in their place of business, as was alleged in the comptroller’s complaint, and the defendant was permitted to produce testimony on the same point, and the court heard and determined this cause upon the testimony so taken, and refused to admit in evidence or take into consideration any testimony heard by the comptroller, or any acts or conduct of the comptroller other than the comptroller’s act in forfeiting the license, and the court, after receiving the testimony in the manner herein stated, determined as a fact that appellee’s license should be restored to them.

After appellant perfected his appeal in this case, appellees opened their place of business, and thereafter'appellant applied to this court for a writ of injunction restraining appellees from keeping open their place of business pending this appeal, which writ of injunction was granted, and the appellees were duly enjoined from keeping open their place of business pending this appeal.

Opinion.

Under the first and second assignments of error counsel for appellant present the contention that the trial court should have excluded all other testimony, and should have admitted in evidence the written testimony taken before the notary public and upon Which appellant acted in canceling the license, and should not have considered any other testimony. Articles 7436 to 7442, K. S., inclusive, confer power upon the comptroller of public accounts to forfeit liquor dealers’ licenses, and prescribe the mode of procedure to accomplish that result. In canceling appellees’ license the comptroller acted in substantial compliance with the statute; and, among other things, he appointed a commissioner who took the written depositions of certain witnesses, which depositions and the entire record made by the comptroller were offered in evidence in his behalf in this suit, and, upon objection, were excluded by the trial court. This suit was instituted under article 7443, R. S., which follows immediately after those regulating the procedure for forfeiture by the comptroller, and which declares that any person, feeling himself aggrieved by the action of the comptroller in forfeiting a liquor dealer’s license, may bring suit against the comptroller in the district court to reinstate such license. We think it is quite clear that this statute was not intended as a mode of appeal, in which the trial was not to be de novo, but merely a review of the action of the comptroller upon the testimong presented to him. There is nothing in the statute that indicates any such legislative purpose; and, as the appellate jurisdiction of the district court seems to be limited by the Constitution to proceedings which have originated and been disposed of in other courts inferior to the district court, it would seem that the Legislature would have no power to authorize an appeal from the official action of an officer belonging to the executive and not the judicial department of the government. Appellant cannot afford to claim that his action in forfeiting the license was a judicial act, for, if he does so, he takes the risk of having the statute, which confers upon him such power, condemned as in violation of section 1, art. 2, of the Constitution, which separates the state government into legislative, executive, and judicial departments, and declares that “no person or collection of persons being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.” So we. conclude that it was not the intention of the Legislature, in enacting article 7443, to provide for a mere review of the action of the comptroller upon the evidence submitted to him; but that the legislative purpose was to authorize an original suit to be tried as other civil suits are tried; and, such being the case, the first and second assignments of error are overruled.

Furthermore, with one or two unimportant exceptions, all the witnesses, whose depositions were before the comptroller, were on the stand and testified in the trial of this case; and it seems to us, as a result of a comparison 'between the statement of facts and the evidence upon which the comptroller acted, that, if the latter had been considered by the district court, it would not have strengthened appellant’s case. In other words, appellant made quite as good, if not a better, case, at the trial in the district court in favor of a forfeiture of the license, than was made by the testimony upon which he acted in declaring the forfeiture; and therefore, if it could be held that the latter testimony was admissible in this case, the error in excluding it would be harmless.

The third assignment presents substantially the same question in another form, and for the same reasons it is likewise overruled.

The fourth assignment reads as follows : “The court erred in holding that the evidence introduced did not sustain the charges against plaintiffs for knowingly selling intoxicating liquors to minors and permitting minors and students of an institution of learning to enter and remain in their place of business, for the great preponderance of the testimony in this case shows that the plaintiffs knowingly violated the conditions of their application for a permit and conditions of their bond authorizing them to sell intoxicating liquors, in that they sold intoxicating liquors to O. R. Holland and J. M. Slator, both of whom were minors and students of an institution of learning, and that they permitted both of such persons to remain in their place of business knowingly.” Under that assignment, counsel for appellant submit but one proposition, which is as follows: “Where the evidence establishing a fact is positive and certain, and the evidence disputing this fact is of a negative quantity, the court would not be warranted in setting aside the positive evidence establishing the fact when the great preponderance of the testimony of a positive character establishes such fact.”

Both of the appellees testified positively that they were not acquainted with either Slator or Holland, and that they had never knowingly sold intoxicating liquor to either of them, and that at the time in question they were not aware of the fact that either of them were minors or students of an institution of learning. In fact, they testified that they had never sold intoxicating liquor to either Holland or Slator, or knowingly permitted either of them to enter and remain in their place of business. Slator and Holland both testified that they were in appel-lees’ place of business two or three times' on the night in question, and on each occasion purchased and drank intoxicating liquors. They each stated that they did not know who sold the liquor to them; that they were not asked and did not give any information as to their ages and as to being students, while, as a matter of fact, Holland was 1& and Slator 20 years of age, and they were each students of the State University. There was much testimony tending to show that they wore no uniforms, and were not dressed so as to indicate that they were students of an institution of learning; and there was testimony, pro and con, tending to show that there was nothing in their appearance to indicate the fact that they were minors, the greater number of witnesses testifying in ap-pellees’ favor on that point. Such being the condition of the testimony, and the trial judge having all the witnesses before him. and being in a much better position to pass upon their credibility, we overrule the fourth assignment, and hold that the evidence does not sustain the proposition submitted thereunder.

While the trial judge filed no findings of fact, the judgment which was rendered involves findings to the effect that appellees did not, on the occasion in question, knowingly sell intoxicating liquors to O. R. Holland and J. M. Slator, knowing them to be minors and students of' an institution of learning, and did not knowingly permit them to remain in their place of business; and, in order to prepare the case for further appeal, we so find the facts.

All the other assignments complain of rulings made by the trial court as to the admissibility of testimony; and, without discussing the questions presented, we overrule the assignments.

As the validity of the provisions of the statute which authorize the comptroller to forfeit liquor dealers’ licenses and provide for a suit to reinstate the same has not been questioned, we dispose of the case upon the assumption that the provisions providing for such forfeiture are constitutional, and that the one authorizing a suit to reinstate the license is sufficient for that purpose, although it does not prescribe wbat facts shall be proved in order to obtain the judgment reinstating the license, nor does it otherwise define the cause of action.

No reversible error has been pointed out, rand the judgment is affirmed.

Affirmed.


text:
    TOWELL v. TOWELL.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.)
    'Dismissal and Nonsuit (§ 14) — Yoluntabt Nonsuit — Condition of Cause.
    Under Rev. St. 1911, art. 1955, providing that a nonsuit may be taken at any time “before the decision is announced by the judge,” the mere filing with the clerk of a written paper stating that plaintiff will not further prosecute the suit, but with the permission of the •court will take a nonsuit, in no way brought to the notice of the judge until after definite announcement of his decision, is not a sufficient election to entitle plaintiff to a nonsuit.
    [Ed. Note. — For other cases, see Dismissal .and Nonsuit, Cent. Dig. § 30; Dec. Dig. § 14.]
    Appeal from District Court, Delta County; Wm. Pierson, Judge.
    Action by M. E. Towell against R. M. Tow-•ell for divorce. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Newman Phillips, of Cooper, for appellant.

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

   RASBURY, J.

Appellant sued appellee for -divorce and the custody of their minor child. Trial by jury was waived, and all matters in ■controversy were submitted to the district judge for his determination. After submission the trial judge announced that the case would be taken under consideration, and his decision announced later. A week subsequent the judge in the forenoon of that day informed the attorneys that immediately after the noon recess he would announce his de-•eision in the case, and at the time indicated to appellant’s attorney what his decision would be. About 2 o’clock the court summoned the attorneys for both parties, and announced that his decision was for appellee. About one hour before the judge announced his decision appellant filed with the clerk of the court a written pleading or paper, stating she would not further prosecute her suit, but would take a nonsuit with permission of the court. ‘ Such action by appellant was called to the attention of the court for the first' .time after he had announced his decision. Upon the facts stated appellant asked permission to take the desired nonsuit The judge declined the request because, in his opinion, it came too late. Appellee in the .suit sought no affirmative relief against appellant. The action of the court below in refusing to permit appellant to take a non-.suit is the only error assigned on appeal.

While the right conferred upon a plaintiff to a nonsuit is a valuable one for obvious reasons, particularly on occasions developed or arising at trial, and while “the substance and not the shadow” of the right should be preserved (Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427), the limitations upon the right are just as important. The statute (article 1955, R. S. 1911) in reference to cases tried, without the assistance of a jury, as was the case here, provides that the nonsuit may be taken “at any time before the decision is announced” by the judge trying the case. The-bill of exceptions shown in the record in the instant case, as qualified by the judge, shows an announcement of the decision, followed by a discussion between appellant’s counsel and the trial judge concerning the evidence adduced on trial, at the conclusion of which the court again announced that his decision was for the appellee. At this juncture counsel for appellant informed the court for the first time that the paper seeking permission to take a nonsuit had been filed in the manner stated. We conclude upon the facts stated and disclosed by the bill of exceptions that appellant failed to bring herself within either the letter or spirit of the act. While the statute conferring the right does not prescribe the particular method or manner of claiming the right, and does not, in our opinion, preclude either party from indicating his or her intention, as was done in this ease, at the same time we are equally clear thát it is necessary to serve actual notice of the filing of the paper, if that method is adopted, upon the judge prior to the announcement of his decision before the right to take such nonsuit can be effectively claimed. The instant ease does not come within the rule announced in Kidd v. McCracken, 105 Tex. 383, 150 S. W. 885, holding in effect that mere expressions by the court, indicating what his decision will be before actually announcing same, could not preclude the plaintiff from taking a nonsuit. In fact it appears from the bill of exceptions in this ease that the court below did indicate what his decision would be, and that appellant failed to act upon it except in the manner stated. It will be conceded that appellant’s intention, as indicated by the paper filed in the case, was obvious, but the record as it stands leaves us nevertheless without discretion in the matter, in view of our conclusion that actual notice must be served upon the trial judge of such intention. We are also of opinion that the instant ease is distinguishable from Adams v. St. L. S. W. Ry. Co., 137 S. W. 437, decided by this court and relied upon by appellant. In the Adams Case it appears that the suit was tried before a jury, and after plaintiff had closed her case counsel submitted and argued a motion to instruct a verdict for defendant, after which the court, in answer to an inquiry from counsel for plaintiff, indicated his intention to direct verdict for defendant, whereupon, and before any instrue-tions had been given tbe jury, and benee before tbe jury bad returned a verdict, plaintiff claimed ber right to take a nonsuit, wbicb was refused by tbe trial court. On appeal this court, speaking through Associate Justice Talbot, in reversing tbe action of tbe trial court, said: “We have concluded that tbe mere announcement by tbe trial judge of what bis decision will be * * * is not such an announcement of bis decision as is contemplated by the statute.” Tbe difference in tbe two eases is thus obvious, since in the Adams Case tbe right was claimed before actual announcement of decision, while in tbe instant case it was claimed after such actual announcement.

In consonance with tbe views stated and tbe facts disclosed by tbe bill of exceptions, we conclude tbe court did not err in refusing appellant permission to take a nonsuit, and for that reason tbe judgment is affirmed.