author: RASBURY, J.

text:
    TYREE et al. v. ROAD DIST. NO. 5, NAVARRO COUNTY, et al.
    (No. 7916.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 24, 1917.
    Rehearing Denied Dec. 22, 1917.)
    1. Ajppeai and Error <&wkey;756 — Briefs — Order on Temporary Injunction.
    On appeal under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644, from order on temporary injunction, which article 4645 provides shall be heard on bill and answer, and the affidavits and evidence admitted at trial, without briefs, save that appellant may file a brief on furnishing ap-pellees with a copy, appellant having elected to brief the ease, the brief need not comply with the rules for ordinary appeals, and so need not be based on assignments of error.
    2. Pasties <&wkey;40(2) — Intervention—Interest in Subject-Matter.
    Landowners and taxpayers in a road district are interested in the subject-matter of a suit, which is where a road shall be located, so as to be entitled to intervene.
    5. Parties <&wkey;38 — Intervention — Reason eor Reeusing.
    • That the board of a road district has power to defend a suit to enjoin location of a road according to the plan adopted by it,-and to compel its location elsewhere, is no reason why landowners and taxpayers, approving the adopted location, may not intervene.
    4. Appeal and Error &wkey;>958 — Intervention —Discretion oe Oourt.
    While there should be some reasonable limitation on the number who may intervene in a proceeding affecting the general common interest, rather than the individual, the number allowed to intervene not materially adding to the costs, the discretion involved will not be interfered with.
    6. Highways &wkey;>91 — Status oe Board — “Quasi Public Corporation.”
    The board of a road district, which under Sp. Acts 33d Leg. c. 95, consists of certain county officers, and others that they may select, and is given entire charge of the laying out and construction of the roads of the defined district, authority to employ an engineer, duty on his report to make such adoption as may seem best to them, power to condemn land, and to use convicts in road building, and whose members are required to give bond, is a “quasi public corporation.”
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Quasi Public Corporation.]
    6. Highways <s=44(1) — Promises as to Location — Eeeect on Board.
    Promises as to location of road made by one group of voters to another to induce votes for creation of a road district are not binding On the district board, a public corporation intrusted with discretion as to location of roads.
    7. Contracts <&wkey; 123(1) — Validity — Injury to Public Service.
    Any agreement in advance of formation of a road district by those who automatically become members of the district board, intrusted with power of locating roads as they deemed best, as to where roads should be located, is void as against public policy.
    8. Highways &wkey;>64 — Location—Discretion oe Board — Intereerence by Court.
    The discretionary powers conferred by the Legislature on the board of "a road district as to location of roads cannot be interfered with by tho court, save where the power conferred is exceeded, fraud is imputed and shown, or there is a manifest invasion of private rights.
    9. Highways t&wkey;44(l) — Location — Board Agreement to Arbitrate — Delegation oe Power.
    Any agreement by the board of a road district, intrusted with discretion • of location of a road as it may deem best, to arbitrate its location, is void, as a delegation of the power given it by the Legislature.
    10. Highways <&wkey;44(l) — Location — Condition.
    Location of road by a road district’s board is not invalid because on the condition that the right of way be donated.
    11. Injunction <&wkey;135 — Discretion in Granting.
    Injunction is not a matter of right, but is in the sound discretion of the judge, unless the facts on which it is sought present solely questions of law.
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Suit by B. E. Tyree and others against Road District No. 5, Navarro County, and others, others intervening, for injunction and mandamus. From an adverse judgment, plaintiffs appeal.
    Affirmed.
    • Richard Mays, of Corsicana, for appellants. R. 'El. Prince, R. S. Neblett, and Detxter Hamilton, all of Corsicana, for appellees.
   RASBURY, J.

By special act of the Legislature ¡Navarro county, or any political subdivision, or defined district therein, is authorized to'issue bonds for the purpose of constructing public roads, to levy and collect taxes to pay interest thereon, and to create a sinking fund for the redemption thereof, when approved by a two-thirds majority of its resident property taxpayers, qualified voters, at an election held'for that purpose upon petition of a specified number of voters, in the manner and under the regulations provided by the act. Special Laws Reg. Sess. 33d Leg. 372; volume 16, Laws Texas. By the provisions of the act, when an election held in any political subdivision or defined district of the county is in favor of the bonds, the county judge, the county commissioner of the precinct in which such subdivision or defined district is situated, the county auditor if there be such officer, and two citizens of the political subdivision or defined district, to be selected by a majority vote of all elected county commissioners, become a board for such district. Such an election was held in a defined district in Navarro county, designated in the record as road district No. 5, whereat the issuance and sale of $100,006 of bonds for road-buildng purpose's was authorized. Thereafter the county commissioners selected the two citizens provided for, who, with the others named, constituted the district board. Such board by the act has “entire and exclusive charge, control and management of all matters, pertaining or relating to the laying out and constructing of thei permanent roads of such * * * political subdivision or defined district,” as well as the authority to employ a competent, experienced, and skilled highway engineer, whose duty it is, under the direction and control of the board, to make a complete and accurate survey of a system of roads, upon direct and alternate routes, and to file with the board detailed field notes, maps, profiles, working plans, specifications, estimates, etc., whereupon it is the! duty of the board to take his reports, etc., under advisement, and after full consideration and investigation “to adopt such maps, profiles, plans and specifications as may seem best to them.” In the exercise of the power conferred upon them the board ■sold the bonds, employed an engineer, and upon Ms reports and after public hearings adopted a road system, for the district. Among other roads adopted by the board is one which begins at Dawson, a town near the north line of the district, and runs due east for some distance. About this road there is now no controversy until it reaches a given point. At this point two roads were proposed, both diverging from the point indicated, one designated as road No. 5, and one as road No. 6, both running in a general southeastern direction, and both converging at a common point about five miles distant from the point of divergence. The board selected road No. 5. Thereupon this suit was instituted by appellants, B. F. Tyree and others, against appellees, road district No. 5 and five individuals or commissioners constituting the board, the purpose being, among other things, to prevent by injunction pen-dente lite and by perpetual injunction finally the location and construction of road No. 5 and to compel by mandamus the location and construction of road No. 6. Upon presentation of the petition to the district Judge 1-Ion. H. B. Davis, interlocutory injunction maintaining the status,quo was ordered pending full hearing, a day for which was set. Pending such hearing Alfrotd Luckey and 148 others intervened in the suit opposing the relief soughji-.by the appellants. Upon hearing the interlocutory injunction was dissolved, and the temporary injunction pendente lite was refused, save as to road No. 5 and road No. 6 from the point of divergence to the point of convergence, the construction of either of which was temporarily enjoined pending this appeal upon appellants giving bond in the sum of $1,000. The bond was given and appeal perfected to this court under the provisions of articles 4644, 4645, Vernon’s Sayles’ Oiv. Stats.

Both sides present preliminary issues involving matters of practice, the first to be considered being the objection of the inter-veners to any consideration of appellants’ brief, because the issues presented therein are not grounded upon any assignment of error filed in the court below or upon any action of the court disclosed in any finding of fact or conclusion of law. The facts comprehended in the objection are true. Article 4644, Vernon’s Sayles’ Civ. Stats., provides for an appeal from any order granting, refusing, or .dissolving a temporary injunction when transcript is filed in this court within 15 days from the entry of such order. Article 4645, Id., provides, in substance, that the case shall be heard on the 'bill and answer, and the affidavits and evidence admitted at trial, without brief, save that appellant may file a brief upon furnishing appellees with a copy thereof within two days of submission. Such are . the plain provisions of the statutes governing such appeals and being a special remedy necessarily control any general statutes or rules concerning similar remedies. Counsel for interveners argue, however, that having elected to brief the case, the brief should have conformed to the rules provided for in ordinary appeals, that is to say, should have been based upon assignments of error. We think not. While the habit has grown in our practice of developing such proceedings in the same manner that they are ordinarily developed on final trial, nevertheless assignments of error in such trials are not required, and when the appellant elects to brief the case, he is at liberty to brief it in such manner as seems best to present his view of the issues, which is not a bad rule in any case, and is not expected to include in the brief that which is not required in the court below. In all other respects the brief is an intelligent and orderly presentation in the usual way of the issues raised, and which, if the objections were sustained, it would be our duty to segregate, arrange, and consider upon the whole record.

Another preliminary question raised by appellants is, in substance, that the court erz-ed in overruling appellants’ exception -to the intervention of Luckey and his 148 co-interveners, on the ground that their pleading failed to disclose any right to participate in the litigation. The substance of the allegations of interveners showing their interest in the controversy is that they are residents, propei'ty owners, and taxpayers of road district No. 5, and that the road adopted by the board when constructed will most completely and most beneficially serve as a whole the people residing in the district, and that any interference with the action of the board would cause great inconvenience and loss to the people. The right of intervention in a pending suit has long been a recognized remedy (Whitman v. Willis, 51 Tex. 421), and is now conferred in this jurisdiction by statute wMch in substance provides that any person may intervene in any pending suit in term time or in vacation. Article 1824, Vernon’s Sayles’ Civ. Stats.- There have been many decisions adjudging the right under varying facts, a recitation of which would be without interest. The rule deducible from the cases is epitomized in the statement that:

“If the interest of the * * * intervener is in the subject-matter the rule is almost universally recognized that he may intervene at any time,” * * * unless his interest is “merely in the thing, and not in the particular rights, wrongs and remedies which are being-litigated.” Townes’ Texas Pleading, 293.

The inquiry then is: What was the subject-matter of the suit, and did the interveners have an interest therein? The subject-matter of the suit, it occurs to us, was the route or location or situs of the public road, as distinguished from how or when it was to be constructed, that is to say, the “thing” itself. Interveners were property owners and taxpayers within the district where the road was located and subject to the tax levied to pay the interest on and ultimately redeem the bonds, and alleged that the board so located road No. 5 as to best serve the convenience and beneficial interests of the people as a whole, and that any other location would irreparably impair such convenience and beneficial interests. While the allegations are general, we think they are sufficient to disclose a real interest in the subject-matter of the suit, that is, the rights, wrongs, and remedies asserted by the parties to the suit at the time of intervention, since it can be fairly said that, if those who pay the taxes to construct public roads are not interested in the location, situs, or route of the roads, then there is no one who, from a legal standpoint, can be said to be interested. In such connection it is argued, however, that the exception should have been sustained because the board had full power to defend any action relating to the authorized acts of the corporate entity, in the absence of any claim that it would not and could not properly defend the litigation. While we do not find in the act express authority conferred upon the board to maintain or defend litigation affecting acts done within its authority,' we think with counsel, for reasons stated at another place, it did have such authority. We conclude, nevertheless, that such authority was not exclusive of the rights of those showing an interest in the litigation to assert it. It seems that when the state, and by analogy any instrument thereof, sues or permits itself or other corporate body to be sued, the test of the right to intervene undergoes no change. Herndon v. Robertson, 15 Tex. 594; 14 Standard Enc. Proc. 310.

While we think, as indicated, that in-terveners disclosed that interest in the subject-matter of the suit contemplated by the rule, we also think that in a proceeding which affects the community or general common interest, rather than ⅛⅜ individual, there should be some reasonable limitation of the number who may intervene. Inter-veners are not unlike plaintiffs and defendants; in fact, the statute permitting intervention does not attempt to fix the status of interveners or regulate the number who may intervene, and the cases before and following the enactment of the statute have determined that right purely upon equitable principles. Hence in this character of case we say interveners occupy largely the position of one or more persons who sue or defend as the representatives of a class. In that type of case it is said that:

“The test of what amounts to an impracticable number, permitting one to sue for all, varies with the circumstances of each case.” 30 Oye. 136.

The authority quoted notes the fact that an able court in one instance required that as many as 250 should be parties to the suit, while in another case the same c-ourt said:

“Seventy-five persons is surely a very large and unwieldy number of persons to join in an action where it is practicable for a few to settle the controversy for the benefit of all.” Hodges v. Nalty, 104 Wis. 464, 80 N. W. 726.

As said in the case just cited, it is difficult to strike a precise rule, but we think in this proceeding that the number of appellants who brought the suit for the class opposing the action of the board is a more practicable and intelligent exercise of the right conferred than is the large number who intervened to sustain the action of the board. At the same time, in view of the discretion of the trial judge in such matters, and the fact that the number of interveners can affect, at most only the question of costs, which does not substantially add to such expense, sinc-e their intervention was voluntary, and did not require the issuance of process, we conclude that in this particular case we would be justified in neither attempting to tax in-terveners with the costs nor reversing the judgment on that ground.

Appellants alleged as basis for the relief sought, among other things, that prior to the creation of road district No. 5 appellants and those they sued for resided in -What was known as PUrdon road district, now comprising the northeastern portion of road district No. 5. At a time when a road bond election was pending in said Purdon district certain persons, acting for a number of the citizens of road district No. 5, as after-wards created, represented to appellants and the citizens of the Purdon road district that, if they would vote against and defeat the bonds proposed at the pending election, and afterwards join Purdon territory with theirs, and assist in voting bonds in the proposed district, they would locate in the new district substantially the road desired by those advocating the bond issue in Purdon district, such road being similar to road No. 6, referred to in this proceeding, and that, relying on such representations, appellants by their efforts defeated the proposed bonds in Purdon district, and thereafter by like efforts of appellants the new district was created and the bonds carried in road district No. 5, which but for the aid and support of appellants would have been defeated.

The evidence adduced by appellants in support of the foregoing allegations discloses that while the election in the Purdon district was pending certain of the citizens outside of Purdon district, but within road district No. 5, as afterwards created, in mass meeting, organized themselves for the purpose of defeating the bonds in Purdon district, and for the purpose of creating a new district after the defeat of the bonds in the Purdon district, and for that purpose through their committees promised the citizens of Purdon district that, if they defeated the bonds at the pending election and joined in creating the new district, a road of the kind sought by the proposed bond issue would be built for them. The" bond issue in Purdon district was defeated. Thereafter those representing the proposed district appeared before the proper authorities and obtained order for an election therein. After the order for and pending election those authorized by the mass meeting undertook to designate on rough maps or plats the roads that would he constructed if the people would vote for the bond issue, one of which was a road traversing the Purdon district and corresponding with road No. 6. As we have shown, the bonds were voted, and the new district was created. When the board located the roads, it did not locate one in the manner promised by the committee.

Upon the pleading and proof detailed appellants advance several contentions, the effect of all of which is that the district was created and the bonds voted in consideration of the promises involved in the agreement between the citizens of the respective sections of the district, which being true, the board is, in equity, bound thereby, since its corporate existence resulted from the reliance of appellants upon such agreement and without which its existence would have been defeated.

While authority for the creation of road districts, and by necessary implication officials or boards to administer the business of constructing such roads, is found in article 8, § 62, of the Constitution, a careful examination of the special act under which appellee road district No. 5 was created discloses that the Legislature did not define the legal status of the boards therein authorized, that is to say, their legal privileges or liabilities. At no place in the act is it expressly declared that the boards, after they come into existence in the manner provided, shall constitute a body corporate under the name and for the purposes designated in the act with authority to sue and be subjected to suit. Such hoards, however, are clearly auxiliaries or in-strumentalities of the state, invested with authority to administer and control subordinate local affairs, and. are, in our opinion, to be classed, in the absence of legislative definition of their status, as quasi public corporations. 1 Dillon, Mun. Corp. (5th Ed.) 25; Id. 67. In addition to what we have already said concerning the manner in which such boards come into existence, its membership and powers, the act also provides that the members of the hoard shall execute bond payable to the county judge, conditioned as in cases of county commissioners when acting as road supervisors, and shall receive the same salaries, received by members of the county commissioners’ court while atténding its sessions, confers upon the board authority to condemn land in the same manner that railroads may now condemn for right of way, as well as the right to use convicts in road building upon the same terms that the county may upon its public roads. We have sought the true status of the board for the reason that we consider that fact important in view of counsel’s contention that the rule announced in the texts and cases, of which Railway Co. v. Granger, 86 Tex. 350, 24 S. W. 795, 40 Am. St. Rep. 837, is typical, obtains and controls in the instant case. That rule, briefly and generally stated, is that, when private corporations, with knowledge of the facts and after incorporation, adopt the unauthorized contracts of its promoters in order to secure the benefits accruing therefrom, they do so cum onere. While the rule invoked is of undoubted verity, we are unable to comprehend the applicability of that rule here. We are constrained to hold that promises made by one group of voters to another, in order to induce the latter to support and vote for a public measure at a pending election, such as the creation of a public rpad corporation, are ir no respect binding upon the corporation or its members, who, in the exercise of the discretion conferred, deem such promises not for the public good, and that such public corporation and its members in no respect occupy positions analogous to private corporations who adopt the unauthorized acts of promoters. But if it be conceded for the moment that the rule does apply, yet the record fails to disclose that the appellee board in fact adopted the agreement between the groups of citizens, or that, if it had, any benefit would have accrued to the board. On the contrary, if the board took any action in that respect, it was to repudiate such contract. Counsel, however, argues that the board or corporation exists by virtue of such agreement; that is to say, that because of said promises those citizens interested therein induced the qualified voters as a whole to vote the bonds and tax on faith of the promises, and equity requires a compliance therewith. The board as an entity, of course, took no part in any such arrangement, since it was not in existence at the time. The votes for the bonds and tax were legal.votes, and whatever may have induced their casting as they were cannot obviously affect the legality of the board or in any manner curtail or limit its rightful functions. Eurther, we are constrained to and do hold that, if the board or those who automatically became its members had in advance made such an agreement, it would have been void and unenforceable, because opposed to public policy on the ground that the members are public officials charged by law with the performance of public duties requiring the exercise of sound discretion in the interest of the public, and that such contract affected and was calculated to destroy the free exercise of the duty, and would have been an interference with the administration of government, which has always been a ground for invoking the rule of. public policy. It has been decided in this state that it is contrary to public policy for a public officer to assign or give a lien upon his unearned compensation, because inconsistent with the public good and calculated to embarrass the officer in the discharge of his public duties. National Bank v. Fink, 86 Tex. 303, 24 S. W. 256, 40 Am. St. Rep. 833. The reasons against foreclosing such officers’ judgment and discretion in advance of his election on questions affecting the public generally, it occurs to us. is a matter of much greater import. Further, it may be said that the relief sought, on the grounds stated, amounts to judicial interference with the discretionary powers conferred by the Legislature upon the board, since, when the granting power confers upon a designated body or auxiliary authority the right to determine the expediency or necessity of measures within the scope of the grant, courts are without authority to interfere, save where such bodies exceed the power conferred, or fraud is imputed and shown, or there is a manifest invasion of private rights. 1 Dillon, Mun. Corp. (5th Ed.) 457.

It was alleged by appellants that pending trial the controversy was submitted to arbitration, all parties agreeing to be bound thereby, and that upon hearing the arbitrators and the umpire selected by them recommended the adoption of road No. ®, which the board declined to do, but which under the agreement to arbitrate it was alleged the board was in law bound to accept. Appellants’ evidence on such issue tended to show that when the case was called for trial a large number of interested citizens ¡were present and a lively interest manifested in the matter, coupled with the desire for a settlement of the controversy by some character of compromise, and that the district judge, upon suggestion of counsel, recessed court in order that conferences might be had. Also it appears, after recess of the district court, that County Judge Traylor, a member of the board, which was then in session, in a general discussion about the courthouse, suggested that the factions select committees, and that if an agreement was reached the board would abide by it. A committee of four was finally agreed upon, two representing one side, and two the other, who in turn selected a fifth member. This committee, in effect, selected road No. 6, and so reported to the board. The official action of the board upon the report, whatever may have induced it, as disclosed by its minutes at a first meeting, was that the parties desired to submit a report, but, inasmuch as they were not in agreement, the report would not be considered, and at a second meeting that the report signed by the committee and referred to supra would not be accepted for the reason that: •

“The board finds upon investigation that said committee does not represent the full citizenship interested in said roads, and therefore the board refuses to adopt the recommendation of the said committee.”

The honorable trial judge prepared and filed a written opinion containing conclusions of fact and law, in which he declares, in reference to the matter of arbitration:

‘•‘It is a fact * * * that * * * there was considerable talk * * * about a compromise, that is, a location of the road which would be satisfactory to everybody. * * * Certain men were selected, some say by authority, * * * and failed to agree, and called in a fifth man, and they made an award and change of route. * ' * It is likewise a fact * * ‘•‘It is a fact * * * that * * * there was considerable talk * * * about a compromise, that is, a location of the road which would be satisfactory to everybody. * * * Certain men were selected, some say by authority, * * * and failed to agree, and called in a fifth man, and they made an award and change of route. * ' * It is likewise a fact * * * that the board fail * * * and refused to acquiesce in that compromise.”

The pleading and proof so standing, appellants contend that a common-law arbitration •binding upon all parties is disclosed, and that the trial judge should have so adjudged.

Without reference to whether the facts related show an arbitration and award or not, we nevertheless conclude that they afford no relief against the action of the board in adopting road No. 5. Wei have reached such conclusion for the reason that the location of the road was, in our opinion, a matter which could not be lawfully submitted to arbitration. As we have shown at another point in this opinion, the Legislature, by the act referred to, conferred upon the board entire and exclusive charge, control, and management of all matters pertaining or relating to laying out and constructing roads, and directed said board, after the engineer’s survey of a system of roads, etc., had been made, to adopt such thereof “as may seem best to them.” We have also shown that the 'board’s status is that of a quasi public corporation, to whom the Legislature has delegated the powers enumerated. That an instrumentality of the state to whom the Legislature has delegated certain powers cannot in turn delegate such powers to a board of arbiters is just as sure, we believe, as that only the powers conferred may be exercised by the instrumentality. Yet such would have been the effect of an arbitration of the present controversy, because all that remained for the board to do after the full and extensive report required from the engineer was to exercise their judgment as public officials and select such roads as seemed best to them, which is but to say that they were to exercise a sound discretion upon a public matter in the interest of the public. That fact, we believe, presents an insuperable objection to arbitration. It is the duty and privilege of such boards to meet the responsibility placed upon them by the Legislature, and the rule that their acts in such respect will not be disturbed, save when the grant is exceeded, fraud is imputed and shown, or there is a manifest invasion of private rights, is as well established as the rule that denies them the right to delegate the power transferred to them by the Legislature. The rule forbidding the delegation of delegated powers has been stated many times and in many ways, but is briefly epitomized in the statement that:

“The principle is a plain one, that the public powers or trusts developed by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” X Dillon, Mun. Oorp. (5th Ed.) 460.

In the succeeding paragraph of .the authority cited it is declared that any contract, by law or ordinance, which tends to cede away, control, or embarrass the legislative or governmental powers of such corporations, are void as disabling them from performing their public duties. The board could, as an incident to its corporate existence as a matter of course arbitrate or compromise claims by or against it, asserting corporate liabilities or demands. This right presents, in our opinion however, an. obviously dissimilar question.

The issue is also made that the court should have granted the relief prayed for for the reason that the location of road No. 5 was on the express condition that the right of way, including cut-offs, should be donated free of charge. The minutes of the board support the claim. We see no reason why the board could not locate the road on the condition stated. We can conceive of many good business reasons why such condition should be included in the order, one important one being that an unconditional location would open the way for exorbitant demands for the land necessary for right of way. We cannot, however, see why such condition would afford ground for injunction. The condition tended to conserve the money of the taxpayer if it had any effect at all. In any event, that fact alone did not, in our opinion, furnish sufficient basis for the relief sought.

The remaining issues present in various ways and from as many angles the contention that the action of the board in selecting road No. .5 was so unjust, unreasonable, and discriminative as to constitute a fraud upon appellants and a confiscation of their property, and hence an abuse of the powers and discretion of the board, and for which it is argued that the trial judge should have at least awarded the writ of injuction pen-dente lite. Concerning the award of the writ-of injunction, it is in substance declared that the writ, being summary and extraordinary, ought not to. be awarded except for the .prevention of great and irreparable injury, since it does not lie as a matter of right for every injury to the estate or right of another, but is a remedy always within the sound discretion of the judge, unless the facts upon which relief is sought present solely questions of law. 1 R. C. L. 307, 308. The rule stated is thei general equity rule, and there is in our statutes no special provision which changes such general rule in cases of the present characteir. We have read the evidence on the issue presented. To segregate the facts from the mass of evidence and set them out in this opinion would serve no good purpose, since it is only our duty to reach a conclusion upon such facts. It will suffice to say that in adaptation of the trial judge’s conclusion the board did not act unwisely or in fraud of appellants’ rights or unjustly discriminate against them or their common right to have the roads so located as would reasonably best serve the interest of the com'munjty as a whole.

The judgment is affirmed.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    COPPARD et al. v. GARDNER, Sheriff, et al.
    (No. 5920.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 28, 1917.
    Rehearing Denied Jan. 2, 1918.)
    1. Bankeuptcy <§=>87 — Involuntary Proceedings — Notice to Cbeditoes.
    The filing of a petition in involuntary bankruptcy by proper parties, making the jurisdictional allegations, operates as lis pendens and is notice to all creditors.
    2. Bankruptcy <§=203 — Dissolution oe Liens by Adjudication — Bona Fide Purchasers.
    Under the terms of Bankr. Act July 1, 1898, c. 541, § 67, subd. “f,” 30 Stat. 564 (U. S. Comp. .St. 1916, §, 9651), the liens of all judgments, executions, and levies obtained within four -months of filing of a petition against a debtor are annulled upon the adjudication, of bankruptcy, but titles obtained under such liens by bona fide purchasers for value and without notice or reasonable cause of inquiry are preserved, while money collected on judicial writs and not paid over to plaintiff belongs to the state in bankruptcy.
    3. Bankeuptcy <§=279 — Invalid Sales — Liability — Notice.
    A sheriff is not liable to the trustee in bankruptcy for conversion, although he sells property under levy after the bankruptcy proceedings began, unless he had notice thereof.
    4. Bankeuptcy <®=200(4) — Liens—Validity as Against Tbustee.
    Where a judgment obtained more than four months before judgment debtor was adjudicated a bankrupt did not create a lien, a levy within the four months is void.
    5. Evidence <§=43(4) — Judicial Notice — Pboceedings in Other C'oubts.
    A state court is not bound to take judicial notice of the filing of a petition in bankruptcy, but must have notice through pleadings filed.
    6. Bankeuptcy <§=279 — Notice 'op Ownee- - SHIP.
    Notice to a sheriff that a judgment debtor is in bankruptcy must come through official channels and a notice of intention to bring bankruptcy proceedings is insufficient.
    7. Sheriffs and Constables <®=151 — Indemnity Bond — Attobney’s Fees.
    There is no authority under Texas law for assessment of attorney’s fees against creditors or sureties on sheriffs’ indemnity bonds taken under Rev. St. 1911, art. 253, when sued for conversion, unless the bonds so provide.
    Appeal from District Court, Dimmit County; J. F. Mullally, Judge.
    Suit by M. Coppard and others against W. T. Gardner, Sheriff, and others. Judgment for plaintiff as against certain defendants and in favor of defendant Gardner. Exceptions by F. Yandervoort, the Memphis Coffin Company, and A. P. Johnson sustained. Plaintiff and cross-defendants Kell Milling Company, J. E. Doran, and J. A. Birdsong appeal. Affirmed as between plaintiff and defendant Gardner.
    Reversed and rendered as between the Sheriff and other parties.
    J. D. Grenshaw, of San Antonio, for appellants. Yandervoort & Johnson, of Car-rizo Springs, W. D. Love, of Uvalde, and N. A. Rector, of Austin, for appellees.
   PLY, C. J.

This is a suit instituted by M. Coppard, trustee of the estate of Mary E. Butler, bankrupt, against W. T. Gardner, individually and as sheriff of Dimmit county, for conversion of property of said Mary E. Butler, a petition) for bankruptcy having been filed, on account of her insolvency, on March IS, 1914, and the said Coppard had been duly appointed trustee of her estate. Attached to the petition is an itemized list and statement of values of the articles of personal property alleged to have been converted. The sheriff answered, in effect, that he had seized and sold the property in question under and by virtue of orders issued out of several state courts, and had required and taken certain indemnity bonds for his protection, and he prayed that the parties for whom he had sold the property be made parties, and that he have judgment against them for any judgment rendered against him. Those parties answered in the ease. The court rendered judgment in favor of W. T. Gardner as against the trustee and in his favor as against certain of the cross-defendants for his attorney’s fees. An exception by P. Yandervoort, Memphis Coffin Company, and A. P. Johnson was sustained. M. Cop-pard, the plaintiff, and cross-defendants'the Kell Milling Company, J. E. Doran, and J. A. Birdsong appealed.

The facts show that the petition for involuntary bankruptcy as to Mrs. M. E. Butler was filed by some of her creditors on March 13, 1914. The first judgment under, which the sheriff acted in seizing and selling personal property of Mrs. Butler was obtained on December 8, 1913, _ and others were obtained in that month and in January, February, March, and April, 1914, and the sales under orders of sale began on February 28, 1914, and continued at intervals until March 14, 1914. All the seizures of goods were within four months of March 13, 1914, when the petition for bankruptcy was filed; one judgment, however, not being obtained in the four months. There is no dispute about the facts, and the trial judge justified his judgment in favor of the sheriff on the ground that he had no notice of the bankruptcy proceedings.

The filing of a petition in involuntary proceedings in bankruptcy by proper parties, making the jurisdictional allegations, operates as lis pendens, and is notice to all creditors, and no other notice to creditors is required. Collier on Bankruptcy,- p. 858; In re Billing (D. C.) 145 Fed. 395.

In subdivision “f” of section 67 of the bankrupt statute, as enacted in 1898, in February, T903, and in June, 1910, it is provided:

“That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien, shall he deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien, shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect: Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry.” U. S. Comp. St. 1916, § 9651.

Under the terms of this statute the liens of all judgments, executions, and levies obtained within four months prior to the filing of the petition are annullecjl upon the adjudication of bankruptcy. The provision as to judgment liens has no applicability in this case, for the reason that the judgments gave no lien and would apply only to the attachment liens or execution liens.

The statute declares that all judgments, attachments, levies, and other liens secured through legal proceeding^ obtained within four months of the filirig of the petition in bankruptcy are void, and the Supreme Court of the United States has held that until the mone£ collected under the judicial writs is paid over to the plaintiff the law would apply as to the money, and it would belong to the estate of the bankrupt. Clarke v. Larremore, 188 U. S. 486, 23 Sup. Ct. 363, 47 L. Ed. 555.

The case of Conner v. Long, 104 U. S. 228, 26 L. Ed. 723, is one directly in point in this case. The facts in that case were that on July 20, 1875, an attachment was issued in a certain action in a state court, and certain personal property belonging to Spauld-ing, defendant, was seized and sold on August 1st, on the ground that it was perishable. Final judgment in the cause was had on September 15, 1875, and execution was issued on same date and returned on September 20th, showing that the proceeds of the sale ordered.by the court had been paid to the judgment creditor. The petition for bankruptcy was filed on July 23, 1875, and Spaulding was adjudged a bankrupt on September 4, 1875. The assignee sued Conner, the sheriff, for conversion of the goods sold by him. The sheriff denied:

“That he knew or in any way had any notice or intimation of alleged proceedings in bankruptcy until subsequent to such sale and until after the payment over by this defendant of the money so received by him upon such sale, as hereinafter set forth.”

The trial court instructed the jury that the sheriff was guilty of conversion of the property and was liable to the plaintiff for its market value. It was assumed that the sheriff had no notice of the bankruptcy proceedings as pleaded by him. The Supreme Court, in considering the four months provided by the statute as to attachments, held:

“One consequence is that, if property of the debtor levied on under such attachment has been sold prior to the filing of the petition in bankruptcy, but thereafter the proceeds of the sale remain in the hands of the sheriff, or have been applied before the assignment to the payment of the judgment in the attachment suit, the rights of the assignee attach to the money, and cannot follow the property sold, for, not being subject to the attachment of the bankruptcy proceedings, the title to the attached property is not thereby transferred to the assignee; but, the attachment being dissolved upon that event, the right to the proceeds of the sale passes under the assignment, released from the claims of all parties to the attachment suit, as of the date of the commencement of the proceedings in bankruptcy. And in such a case the plaintiff in the attachment suit, having received the proceeds of the sale on his judgment, would be liable to an action by the assignee for the sum of money had and received to his use; or, if it remained in the hands of the sheriff, the as-signee might become a party to the action and obtain an order of the court, requiring the amount to be paid directly to himself. Another result is that, if the property has been sold under the attachment after the commencement of the bankruptcy proceedings, no title passes by the sale, for the property ceased at that time to be the property of the bankrupt, and became the property of the assignee, a stranger to the action, and not affected by it; and both the plaintiff in attachment and the purchaser at the sheriff’s sale would be liable to the assignee for a conversion of his property — the one for having caused its sale; the other for having taken possession of it as owner.”

The innocent purchaser under the law of 1898 is protected.

The court, after reviewing several cases, as to the liability of the sheriff showing his liability only in so far as there was erroneous action on his part in executing the writ, held:

“It is manifest that the act of the sheriff for which he is sought to be charged in the present action is not within the rule established as to the latter class of cases; for he neither had nor exercised any discretion in making the sale, and, doing only what he was specifically and in terms commanded to do by the order of the court, the court is responsible for his obedience.”

The court further held:

“There is no language in the Bankruptcy Act that, either expressly or by any necesary implication, requires us to hold the officer liable in such circumstances; nor is its policy defeated or thwarted by refusing to do so. The opposite conclusion is based upon an inference from the doctrines relating to the conversion of personal property, and in our opinion is a misapplication of the principle invoked.”

The court held that the sheriff was not liable for conversion, although the sale under attachment took place after the bankruptcy proceedings had been begun. We have seen no case by the Supreme Court that questions the correctness of the decision in Conner v. Long, although the case was cited on another point approvingly in Jones v. Springer, 226 U. S. 148, 83 Sup. Ct. 64, 57 L. Ed. 161. The Conner v. Long Case places no liability on the sheriff unless he had notice of the penden-cy of proceedings in bankruptcy.

The judgment obtained on December 8, 1913, was not within the four months’ period, but under our laws it did not create a lien, and, so far as it and all the judgments afterwards obtained are concerned, the executions and attachments issued within the four months gave no liens superior to the rights of the trustee which arose by the filing of the petition in bankruptcy.

In the case of Clarke v. Larremore, here-inbefore cited, it was held that, if the money from a sale under execution was in the hands of the sheriff when the petition in bankruptcy was filed, the money belonged to the bankrupt’s estate, and should not be paid to the judgment creditor. The court said:

“The purchaser at the sheriff’s sale might keep possession of the property which he had purchased, but the money received as the proceeds of such sale would undoubtedly belong to and should be paid over to the judgment debtor. The bankruptcy proceedings operated in the same way. They took away the foundation upon which the rights of the creditor, by judgment, levy, and sale, rested. The duty of the sheriff to pay the money over to the judgment creditor was gone, and that money became the property of the bankrupt, and was subject to the control of his representative in bankruptcy.”

Speaking of certain New York cases considered .in the opinion, the court further said:

“In none of those cases had anything been done to affect the validity or force of the writ of execution. Whatever was done was done under a writ whose validity and potency were unchallenged and undisturbed; while here, before the writ of execution had been fully executed, its power was taken away. Its command had ceased to be obligatory upon the sheriff, and the execution creditor had no right to insist that the sheriff should further execute his commands.”

The facts in that case briefly stated were that on January 23, 1899, E. H. Olarke began an action on notes signed by R. W. Kenney, and recovered judgment. An execution was levied on certain stock and fixtures belonging to Kenhey and the goods were sold. Shortly after the levy of the execution a writ of attachment was issued at the instance of one Leon Abbett and levied on the same property. He sought to' enjoin the sheriff from paying ■ the proceeds of the sale to Clarke. The court dissolved the temporary injunction, and before the sheriff had paid the money to Clarke a petition in involuntary bankruptcy was filed, and an injunction was issued by the federal judge to restrain the sheriff from paying the money to Clarke. Kenney was afterwards adjudged a bankrupt, and the federal' judge ordered the sheriff to pay over the money to Larremore, the trustee. The case finally reached the Supreme Court of the United States, and the judgment was affirmed. There is no conflict between this and the Conner v. Long Case. The Larremore Case was decided under the bankrupt law of 1898, which is in some respects different from the law of 1867, under which the decision in Conner v. Long was rendered, but not sufficient to involve the points decided. However, it has been held in a number of cases, as well as in Conner v. Long, that while the filing of the petition operates to nullify all acts as to property sold or held under judicial process within four months prior to that event, except in case of liens given before the four months began, still the state court in which causes are pending is not hound to take judicial notice of the filing of the petition, but must have notice through pleadings filed therein. Collier on Bankruptcy, pp. 555, 556; Doe v. Childress, 21 Wall. (88 U. S.) 642, 22 L. Ed. 549; Eyster v. Goff, 91 U. S. 521, 23 L. Ed. 403; Miller v. Clements, 54 Tex. 354; Wallace v. Bogel, 62 Tex. 636; Pinkard v. Willis, 24 Tex. Civ. App. 69, 57 S. W. 891; Belcher v. Bush, 67 S. W. 444.

This seems to be the proper doctrine, for no court has judicial knowledge of the proceedings! in other courts, and in order to bring home to a state court exercising proper jurisdiction over a case which arose before the jurisdiction of the bankrupt court had attached there must be some notice, by intervention or otherwise, of the pendency of the bankrupt proceedings. The mere filing of a petition in bankruptcy could not oust the jurisdiction oi¡ a state court over a cause lawfully pending when the petition was filed. Without a plea setting up the pendency of bankrupt proceedings, the state court could have no judicial knowledge of the fact that bankruptcy proceedings had been inaugurated. As said by the Supreme Court of the United States in Conner v. Long:

“In the present case it is admitted that the state court had full and perfect jurisdiction, in all respects, until it was terminated by the proceedings in bankruptcy. But the fact that put an end to its jurisdiction did not appear by its own record, and consequently one of which the sheriff could not, by legal possibility, have official notice; -and without that he was bound to obey the order of that court, to whom he was responsible, directing the sale of the property, which, so far as he was concerned, at the time it was made, was an exercise of jurisdiction as legitimate as the issuing of the original attachment under which the property had been lawfully taken and held.”

That decision has not been assailed or questioned, and, although made under the law of 1867, applies with equal force to the statute of 1898 and its amendments.

The act of 1898 recognizes the fact that notice is necessary to be given to render the purchase of property of the bankrupt invalid, by providing that:

“Nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry.”

Notice of or inquiry about what? It must necessarily be about the matter treated of in the section which is the filing of the petition and would apply to purchases after the filing rather than before, because a purchaser could not have knowledge of a thing that did not exist when he purchased. He could not he held to be other than an innocent purchaser before the filing, unless he was perhaps guilty of fraud or collusion with the bankrupt. The only persons charged hy the act with notice of the filing of the petition in bankruptcy are the creditors of the bankrupt, and this is inferred from the fact that the only instances in which creditors shall receive notice are carefully selected and specified in the bankruptcy statute. No valid notice was given in the cases in which the sheriff acted in selling the property claimed by the trustee.

The only testimony as to the sheriff being notified of the filing of the petition was a telephone message to a deputy of the sheriff from a person whose authority to give such notice was not disclosed, in which he said that he intended to file a petition in bankruptcy. If the sheriff had refused to make the sales, and the intention to file the petition had been abandoned, he would have been in direct contempt of the court that had ordered him to make the sale, and the fact that some one had informed him that he intended to file a petition would probably not have been accepted as a valid excuse for not executing the orders of the court. The orders of a court of this state cannot be nullified or countermanded by a private individual notifying an officer of the court that he intends to file a petition in bankruptcy. The notice of such filing must come through official channels, and can be of no efficacy when issued by a citizen clothed with no authority. Such notice would doubtless put a person intending to purchase at a sheriff’s sale on notice, but not an officer acting under authority of a court.

There is no authority under Texas law for the assessment of attorney’s fees against creditors or sureties on indemnity bonds in favor of a sheriff when he is sued for conversion of property by reason of attaching property at the instance of the creditors. The statute is explicit in stating that an officer levies an attachment at his own risk, but may take a bond of indemnification to secure him. Article 253, Rev. Stats. If he desired to save attorney’s fees, he should have provided in his indemnity bonds that the parties would permit him to employ attorneys and pay their fees, or he could have notified his indemnitors to defend the causes against him and save him harmless. An officer who has obtained an indemnity bond before seizing property under an attachment, when a judgment is recovered against him for such seizure, can only recover on the bond for damages recovered against him for such seizure. Stevens v. Wolf, 77 Tex. 215, 14 S. W. 29. In that case the constable was indemnified to the extent of $192, and the court in giving judgment for that amount named $25 as attorney’s -fees, and the Supreme Court held that the officer was entitled to a judgmént for $192, and it did not matter that the court divided it and called part of it attorney’s fees.

The other assignments of error present questions which could be of importance only in case of a reversal, and need not, therefore, be considered by this court, in view of affirmance of the judgment as to appellant.

The judgment is affirmed as between M. Coppard, trustee, and W. T. Gardner, sheriff;, but is reversed as between the sheriff; and the other parties, against whom he recovered for attorney’s fees, and it is adjudged that he recover nothing as against them, and they recover of him all costs in this court incurred, and that all the other costs incurred be assessed against appellant.
      <§cmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, Jr., C. J.

text:
    DUGAN et al. v. SMITH et al.
    (No. 278.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Appeal and Error <&wkey;1012(l) — Review— Conclusiveness oe Findings.
    The findings of fact by a trial judge when supported by evidence are binding upon the appellate court unless clearly wrong, or so opposed to the great preponderance of the evidence as to suggest that truth and justice have not been attained.
    2. Habeas Corpus <&wkey;99(3) — Custody op Children — Interests of Child.
    In habeas corpus by a mother against persons to whom she had freely and voluntarily transferred her parental authority and custody over a child, and who had ineffectually attempted to adopt the child, findings that defendants were in comfortable circumstances and able properly to support and educate the child, that their home was surrounded by moral and Christian influences, that the child under their care would have educational facilities and advantages, that defendants and all members of their family were devotedly attached to her, and regarded her as a daughter and younger sister, that the child greatly desired to remain in their home and custody, that they were qualified in every respect to have her care and custody, and to direct her education and development, and that the mother was an immoral, unchaste, and untruthful woman, that she did not have the love and affection for the child that a mother should feel for her offspring, and was not a proper person to have the child’s care and custody, warranted the conclusion of law that the best interests of the child demanded that her possession and custody remain with respondents.
    3. Habeas Corpus <&wkey;85(l) — Right to Custody of Children — Burden of Proof.
    One seeking to withhold from a child’s natural parent the custody and possession of such child has the burden of showing that the best interests of the child demand that its custody and care be taken from the parent.
    Appeal from District Court, Montgomery County; L. B. Hightower, Judge.
    Habeas corpus by Mrs. Sallie Copeland Dugan and husband against Mrs. Fannie Smith and husband. From a judgment in favor of respondents,- the relators appeal.
    Affirmed.
    McCall, Crawford & McCall, of Conroe, for appellants. W. N. Foster and A. L. Kayser, both of Conroe, and C. W. Nugent, of Houston, for appellees..
   HIGHTOWER, Jr., C. J.

Appellants, Mrs. Sallie Copeland Dugan, and G. A. Dugan, her husband, commenced this proceeding by suing out a writ of habeas corpus for the purpose of recovering from appellees, Mrs. Fannie Smith and Fulton Smith, her husband, the possession and custody of Dorothy Lee Copeland, a girl child nine years of age, and who is the daughter of said Sallie Copeland Dugan by a former husband, Reuben Copeland. In the application for writ of habeas corpus, it was alleged, substantially, by relators, appellants here, that relator Sallie Copeland Dugan was the mother of the child, Dorothy Lee Copeland, and that she was entitled to the possession and custody of her said child, and that said child was being wrongfully and illegally restrained of her liberty by said respondents, Mrs. Fannie Smith and Fulton Smith, and her possession and custody was wrongfully withheld from relator Sallie Copeland Dugan. At the hearing of the writ, respondents, appellees here, filed an answer somewhat lengthy, setting up, substantially, among other things:

(a) That' relators were not entitled to the possession and custody of said minor child, for the reason that said Sallie Copeland Dugan had theretofore transferred and delivered the possession and custody of said minor child, when of the age of five years, to respondents, and that respondents had, in fact, legally adopted said Dorothy Lee Copeland under the statute of this state.

(b) That relator Sallie Copeland Dugan was not a proper person to have the care and custody of said minor child, Dorothy Lee, for the reason that said Sallie Copeland Dugan was a woman in bad repute as to chastity, etc., as well as of bad character as to chastity.

(c) That said Sallie Copeland Dugan was not a proper person to have the care and custody of said Dorothy Lee, for the reason that said Sallie Copeland Dugan was a cruel and unnatural mother.

(d) That the best interests of the minor, Dorothy Lee, required that her custody and possession be given to and remain with respondents.

(e) That respondents had become greatly attached to and bore great affection for said minor child, and were able and willing to provide for, rear and educate said child, and would do so if her possession and custody were permitted to remain with respondents.

There were other matters alleged in the answer of respondents, but in view of the conclusions reached by the trial judge, both in his findings of fact and conclusion's of law, it is unnecessary to further detail the matters set up by respondents, as no useful purpose would be served thereby.

We may say, at the outset, that there was nothing in the contention of respondents as to the allegations of adoption set up in their answer, for the reason that the attempted adoption by them of the child, Dorothy Lee, was null and void, as is practically conceded by appellees on this appeal, and that matter is dismissed without further comment. The proceeding was treated throughout by the trial court as being a civil action for the purpose of recovering the possession of the minor, Dorothy Lee Copeland, and such view taken by the trial judge was acquiesced in by both appellants and appellees. The case was submitted to the trial court without a jury, and resulted in a judgment in favor of respondents, remanding to them the custody, possession, and control of the child, Dorothy Lee Copeland. The trial judge, on request, filed findings of fact and conclusions of law, as follows:

“Bindings of Fact.
“First. I find that relator Mrs. Sallie Copeland Dugan, then Mrs. Sallie Copeland, some time during the year 1911 or 1932, accompanied by the child, Dorothy Lee Copeland, a daughter of herself and husband, Reuben Copeland, from whom she was then separated, applied to respondents for employment as a domestic servant in the household and hotel of respondents, and that respondents gave her employment and admitted herself and child to their home, and placed them in comfortable quarters and pleasant surroundings. Said relator, together with her said child, resided with respondents continuously from the time mentioned until her marriage to relator G. A. Dugan, which occurred during the early part of 1915, and during all of said time respondents treated them with kindness and consideration. Within a few months after said relator entered the service of respondents, she and her child came to be treated rather as members of the family of respondents than otherwise, and respondents in a short time began to care for and treat the child, Dorothy Lee Copeland, in the manner that parents usually treat their own children, the respondent Mrs. Fannie Smith performing for it all those cares and duties that a mother ordinarily performs for her child.
“Second. I find that relator Mrs. Sallie Du-gan, then Mrs. Sallie Copeland, habitually neglected to care for her said child, and to do and perform the usual and ■ customary duties that mothers perform for their children, and, because thereof, respondent Mrs. Fannie Smith assumed such duties and did constantly and continuously perform them. From the evidences of neglect by said relator Mrs. Sallie Dugan, then Mrs. Sallie Copeland, of her said child and her treatment of it, which I find was unnatural and cruel, I find as a fact that she was and is an unnatural mother, without the parental feeling that the average mother has for her offspring.
“Third. I find that soon after relator Mrs. Sallie Dugan, then Mrs. Sallie Copeland, and her said child went to live with respondents, said relator requested respondents to take over the care, and custody of and parental authority over said child, Dorothy Lee Copeland, and to adopt her, and that thereafter she frequently made request of the respondents that they do so. I find that respondent Mrs. Fannie Smith, after having from time to time been so requested by relator, finally consented to do so, but only after carefully urging said relator to consider what it meant for her to give up her child, and only after being so fully and freely advised by said relator that she did not aesire to retain the care and custody of said child, and desired to give her to respondents. I find that respondent Mrs. Fannie Smith, with the consent of her husband, IPulton Smith, in good faith attempted to adopt said child, and, to that end, executed the instrument which is set out as Exhibit A in respondents’ answer. In this connection I find that at the time respondents adopted, or attempted to adopt, the- child, Dorothy Lee Copeland, as set out in Exhibit A, said relator Mrs. Sallie Dugan, then Mrs. Sallie Copeland, freely and voluntarily transferred her parental authority and custody over said child to respondents, as shown by writing which is a part of said Exhibit A, attached to said pleadings. I find that such action was taken by the relator after C. A. Toler, a reputable attorney, and the notary public before whom said instrument was acknowledged, had, at the request of respondents, fully explained to her the effect of said instrument, and especially that the effect thereof would be that she was releasing all care, .authority, and control of said child forever.
“Fourth. I find further that since the institution of this proceeding respondents, having been advised that some technical objection might lie to the original instrument of adoption, as shown in Exhibit A, voluntarily and in a good-faith effort to bring about the desired relation between themselves and said Dorothy Lee Copeland, went before the proper officer and executed an instrument of adoption as shown in Exhibit B, attached to respondent’s pleadings.
“Mfth. 1 find that relator Mrs. Sallie Dugan is-not a truthful woman; on the contrary I find such lack of veracity as to suggest a fundamental lack of integrity of character.
“Sixth. I find that relator Mrs. Sallie Dugan is an immoral and unchaste woman. While the evidence fails to disclose any specific act of unchastity since said relator intermarried with her present husband, G. A. Dugan, still I think the evidence justifies the finding, and I so find that she is still an impure and unchaste woman.
“Seventh. I further find that said relator Mrs. Sallie Dugan has not the love and affection for said child, Dorothy Lee Copeland, that any mother should feel for her offspring; and I find, because thereof, as well as because of other findings of fact herein, that she is not a proper person to have the care and custody of said clifid.
“Eighth. I find that relator G. A. Dugan is a sober, industrious and hard-working man, that he is a good citizen, and earns in his employment $70 to $80 per month, and that he is willing for his wife to have the custody of said child, and has joined in her application looking to that end.
“Ninth. I find that respondents are in comfortable circumstances; that they own a good home in Conroe, where they conduct a hotel; that they enjoy a good patronage and are able properly to support and educate the child, Dorothy Lee Copeland. I find that their home is surrounded by moral and Christian influences, and that said child, under their care and custody, will have educational facilities and advantages of the churches and Sunday Schools that are open to the best homes in Conroe, a town of about 3,500 population, the county seat of Montgomery county. In this connection, I find that the status of the negro girl, Sal Smith, in the home of respondents, is that of a trusted negro domestic, and that her relation to the family of respondents is such as is usual in Southern homes.
“Tenth. I find further that respondents and all the members of their family are devotedly attached to the child, Dorothy Lee Copeland, and regard her as a daughter and younger sister; and I find that said child greatly desires to remain in the home and custody of respondents.
“Eleventh. I find that respondents are qualified in every respect to have the care and custody of said child, and to direct its education and development.
“Twelfth. I further find that the welfare of the child, Dorothy Dee Copeland, demands that its custody and care be awarded to respondents, and that said child’s best interests will be subserved by so directing.
“Conclusion of Law.
“Based upon the findings of fact foregoing, X conclude as a matter of law that the care and custody of said child should be awarded to the respondents, Mrs. Fannie Smith and Fulton Smith, and accordingly I give judgment that said child be remanded to their care and custody, and direct and adjudge that they do have and retain the care and custody of said child, Dorothy Lee Copeland.”

We find in appellants’ brief six assignments of error under several of which a number of different propositions are urged, but we shall not discuss these several assignments in their order, or in detail, for the reason that we are of opinion that the findings of fact made by the trial judge, above copied, find support in the' evidence adduced upon the trial, with the exception, perhaps; of the second finding of fact, which is to the effect that relator Mrs. Sallie Dugan is a cruel and unnatural mother. As to this one finding, we have concluded that the evidence did not warrant the trial judge in his conclusion, for we believe that the poverty and necessitous circumstances of the mother of the child, during the time she was employed as a domestic in connection with the hotel of respondents, were such as to practically wholly prevent this mother giving to her child that care and attention which a mother would, under different and more favorable circumstances, give to her child. And we believe that the evidence in connection with the one or two occasions on which it is claimed this mother cruelly punished by indulging in excessive chastisement, was not reasonably sufficient to warrant the conclusion that such punishment was excessive or cruel. As to all the other findings of fact by the trial court, however, as above set out. we have concluded that the evidence in this record, considered as a whole, was sufficient, if given credence by the trial judge, to warrant and authorize such findings.

We understand the rule to be well settled in this state that where findings of fact made by a trial judge have support in the evidence, as shown by the record on appeal, such findings are binding upon the appellate court, unless the appellate court is able to say that such findings by the trial court are clearly wrong, and so opposed to the great preponderance of the evidence as to suggest that the truth and justice of the case have not been attained. Applying this rule, which is so well understood by the bar of this state that citation of authority would be superfluous, we cannot say that the findings of fact of the trial judge, above mentioned, with the exception only of the second finding, are not supported by evidence in the record legally sufficient to warrant such findings. And since such findings of fact, as here approved and adopted, warrant the conclusion of law made by the trial judge, to the' effect that the best interests of the minor child, Dorothy Lee Copeland, demand that her possession and custody remain with respondents, this court has no' alternative but to. affirm the judgment of the trial court, leaving that custody and possession with respondents. Counsel for appellants cite in their brief, and quote at great length from the opinion of the Supreme Court in the case of State v. Deaton, 93 Tex. 243, 54 S. W. 901, and claim that the rule announced in that case required the trial judge in the instant case, upon the evidence adduced below, to award the custody and possession of the minor, Dorothy Lee Copeland, to her mother and stepfather, who are appellants. We have considered very carefully the opinion of our Supreme Court in the Deaton Case, and without discussing in detail the facts of that case, or the rule of law announced by the able jurist who wrote the opinion, we hold that, the case is not authority for the contention of appellants here. In the Deaton Case» the Supreme Court held that upon the findings of fact, as made Dy the trial court, the natural parent seeking the custody and possession of its child was entitled thereto, but the findings of the trial court in that case differ so widely from the findings of fact in this case that there cannot be said to be any comparison between the two cases.

In the Deaton Case, the Supreme Court did, squarely and correctly, announce the rule, which we believe to be just and sound, that where any person seeks to withhold from the natural parent the custody and possession of a child, such person has the burden of showing that the best interests of such child demand that its custody and care be taken from the natural parent, and we agree with this rule to the fullest extent. In addition to State v. Deaton, supra, the following authorities bear directly upon the vital question involved in this appeal. Legate v. Legate, 87 Tex. 250, 28 S. W. 281; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Ball v. Smith, 156 S. W. 576; Schneider v. Schwabe, 143 S. W. 265. The principle of' law governing in cases of this character is. now so well understood by the bench and profession of this state that we feel it would be-entirely useless and unprofitable for this court to enter into a further discussion of the same.

It is, of course, with great reluctance that this court is compelled to give its assent to-the judgment of a trial court which takes from the possession of a mother the custody and control of her own child, especially a girl child of such tender age as nine years» and we feel that the trial court in this instance, and, indeed, all courts upon whom such solemn duties and responsibilities frequently rest and must be discharged, entertain the same feelings as we do, but where the courts conclude that the best interests of children demand that their custody and control be taken from the parent, then the duty resting upon the courts to so remove such children is quite as sacred, if .not more so, than any other duty resting upon them.

We have not attempted to discuss in detail the evidence adduced upon the trial below, the insufficiency of which to warrant the findings of the trial court is challenged by appellants, for the reason that to do so would not and could not change the conclusions this court has reached, and besides, we do not care, unless specially requested to do so, to give further publicity by way of publishing in the law books generally, such evidence which led the trial court to conclude, and this court to adopt such conclusion, that the best interests of the minor'in question demand her custody and control be left with the appellees in this case. We can but hope that the unfortunate mother in this case may so continue to live in her new station in life that much of her grief and disappointment in the past will be forgotten, and that all criticism of her unfortunate mistakes in the past be hushed. And, in' conclusion, we call attention to these few lines of Nature’s immortal poet:

“Then gently scan your brother man,
Still gentler sister woman; _
_ Though they may gang a kennm’ wrang, To step aside is human.
“One point must still be greatly dark,
The moving why they do it;
And just as lamely can ye mark How far perhaps they rue it.

Finding no error in the record, for which this court would be authorized to reverse the trial court’s judgment, all assignments of error are overruled, and that judgment is affirmed.
      <@n»For otlicr cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    WELLS FARGO & CO. v. SPRAGUE.
    (No. 5943.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 19, 1917.)
    1. Carriers <§=115 —Carriage or Goods— Negligence.
    Where the precooling of refrigerator cars took place after the delivery of fresh vegetables to the carrier, negligence in precooling and icing the cars is attributable, not to the shipper, but to the carrier.
    2. Appeal and Error &wkey;>742(8) — Assignments of Error — Statement.
    Where the statement under an assignment of error was unsatisfactory and failed to show that the finding of the court complained of was not supported by the statement of facts, the appellate court need not examine the statement of facts in order to determine that question.
    3. Carriers <&wkey;132 — Carriage of Goods— Negligence — Burden of Proof.
    Where a carrier undertook to precool refrigerator cars and to ice them during transit and the shipment was injured by failure to properly precool and ice the cars, the carrier has the burden of proving that it exercised due care notwithstanding it had no precooling plant at the place of shipment.
    4.Carriers <&wkey;150 — Carriage of Goods— Negligence.
    Even as respects an interstate shipment a carrier cannot contract against liability for its negligence.
    Appeal .from District Court, Cameron County; W. B. Hopkins, Judge.
    Action by Jack Sprague against Wells Fargo & Co. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Morrison & Robards, of San Benito, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Spears & Montgomery, of San Benito, for appellee.
   FLY, C. J.

This is a suit for damages to three cars of green corn and ripe tomatoes shipped from points in Cameron county, Tex., to Chicago, Ill. It was alleged that the three cars were properly loaded with the corn and tomatoes, the same being fresh and in good condition to be iced, precooled, refrigerated, and shipped to Chicago and delivered there in good condition to Roy Campbell, the consignee, in consideration of the charges demanded by appellant; that, after the three cars had been properly loaded and delivered to appellant, the ventilators in two of them were closed by fastening heavy paper over them in order that they might be precooled, but after such precooling the paper should have been, but was not, removed and the air could not circulate, but became dead and stale, and the temperature necessary to protect the corn and tomatoes from spoiling could not be maintained, and the products were injured thereby. It was further alleged that the cars were not properly and sufficiently iced while on the road to keep it at such temperature as was necessary to protect the shipment from heat and deterioration, so that the corn and tomatoes were greatly damaged when they reached Chicago. The cause was tried without a jury, and judgment rendered in favor of appellee for $2,413.90.

The court filed his conclusions of fact which we find are supported by the statement of facts. The precooling of the cars took place after the delivery of the products to appellant, and after appellee had lost all authority or control over them, and the negligence of allowing the paper to remain over the ventilators was that of appellant, and that negligence, together with the failure to properly ice the cars while en route, caused the damages to the corn and tomatoes in the sum found by the court.

The first assignment of error attacks the conclusion of the court that the damages arose from a failure to maintain the temperature in the cars at 45 to 55 degrees Fahrenheit. The statement made under the assignment of error is quite unsatisfactory and fails to show that the finding of the court was not supported by the statement of facts. It is not incumbent on the court to examine the statement of facts in order to ascertain if the contentions of appellant are true. Appellant asked appellee if he desired to have the cars precooled, and it took charge of the precooling. It (loes not matter whether it had a preeooling plant or not; it devolved upon appellant to see that the precooling was properly done and that the cars were in proper order before the shipment began its journey. This it failed to do, and it also failed to show that the bunkers in the cars were kept filled with ice. The corn and tomatoes arrived in Chicago in bad condition., and the burden rested on appellant to show that it had exercised reasonable care in icing the cars. When cars 102 and 105 were tendered for delivery at Chicago, the temperature was 70 degrees at the bottom and 76 degrees at the top; the temperature should have been between 45 and 55 degrees. Negligence was shown as to the ventilation and icing. The contents of the two cars were practically valueless, and appellee was under no obligation to receive the cars. Appellant could not contract against its negligence, n'o matter if the shipment was an interstate one. The authorities cited by appellant do not hold contrary to this proposition.

The «sixth assignment of error does not point out any error of which it may be desired to complain, and is overruled.

No error is indicated by the brief, and the judgment is affirmed.
      <gss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    PROVIDENT NAT. BANK OF WACO v. HOWARD et ux.
    (No. 5849.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 28, 1917.)
    1. Appeal and Error <&wkey; 1050(1) — Harmless Error— Admission of Evidence.
    Where defendant elicits certain matters from plaintiff on cross-examination, it is harmless to admit the same evidence by a later witness.
    2. Banks and Banking <&wkey;154(7) — Action por Deposits — Admission op Evidence.
    In an action against a bank for money deposited, where the bank denied such deposit, it was proper for one who paid plaintiff certain money to testify that he started down a street that would take him to the bank.
    3. Appeal and Error <&wkey;1050(3) — Harmless Error — Admission of Evidence.
    In an action against a bank for money deposited, where the bank denied such deposit, evidence of one who paid plaintiff money that plaintiff started down a street that would take him to the bank, if immaterial, was harmless. -
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Suit by Gip Howard and wife against the Provident National Bank of Waco. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Sleeper, Boynton & Kendall and R. O. Stotter, all of Waco, for appellant. Tom M. 'Hamilton and J. A. Kilbler, both of Waco, for appellees.
   KEY, C. J.

Appellees, Gip Howard and his wife,, brought this suit and recovered a judgment against appellant for the total of two sums of money alleged to have been delivered to and deposited with appellant by Gip Howard in the name of his wife. There was a jury trial, which resulted in a verdict and judgment for appellees, which appellant seeks to have reversed upon two assignments of error, each complaining of the action of the trial court in permitting the plaintiff to introduce certain testimony alleged by appellant to be immaterial and prejudicial.

Appellee Gip Howard testified that he had a checking account in appellant’s bank kept in the name of his wife; that on August 3, 1915, he delivered to the teller of the bank $75 as a deposit, and on the following day that he delivered to such teller $54 as a deposit. These sums were never placed to appellees’ credit, and therefore they brought this suit.

Appellant’s teller testified that neither of the deposits specified by Gip Howard was delivered to him, and that nothing appeared upon the books of the bank to show that such deposits had been made.

On cross-examination by appellant’s counsel Gip Howard testified that the $75 deposited by him on August 3d was paid to him on that date 'by a Mr. Collins. Thereafter appellees proved by Mr. Collins that on the 3d day of August, 1915, he paid to Gip Howard $75, and on the following day paid him $54; that after each of the payments was made Mr. Howard started down Franklin street, in the city of Waco, and that that was the proper way to go to appellant’s bank.

Appellant objected to all that testimony upon the ground that it was immaterial and prejudicial 'to appellant, which objections were overruled, and those rulings constitute the predicate of this appeal.

We hold that the rulings referred to do not constitute reversible error. The main fact testified to by Mr. Collins to the effect that he had paid Mr. Howard money on the occar sion referred to had already been elicited by appellant from Mr. Howard; and therefore, if it was immaterial, it did no harm to prove it by Mr. Collins, as appellant had already proved it by Mr. Howard. If it be conceded that the balance of the testimony given by Mr. Collins could havei but little probative force, still it disclosed circumstances tending slightly to corroborate Howard’s testimony to the effect that after Mr. Collins paid him he carried the money to appellant’s bank and deposited it therein. Besides, if the testimony was immaterial, it is difficult to see how it could be prejudicial to appellant.

Immaterial evidence is often harmless, and therefore constitutes no ground for reversal; and when testimony falls within the twilight zone between materiality and immateriality, as does the testimony under consideration, and there is nothing in it derogatory to the complaining litigant, or laudatory of his opponent, the ease ought not to be reversed on account of the admission of such testimony.

No reversible error has been shown, and judgment is affirmed.

Affirmed.
      <§r^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes