author: TALBOT, J.

text:
    GRAVES v. M. GRIFFIN O’NEIL & SONS et al.
    (No. 7790.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 11, 1916.)
    1.Injunction <&wkey;145 — Affidavit to Petition.
    The affidavit verifying petition, without which Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, provides injunction shall not be granted, must be that the facts stated in the petition are ti-ue, and must be direct and positive and not from hearsay; so that one that affiant has read the petition, and that the statements of facts there are true to the best of his knowledge and belief, is insufficient.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 318, 321; Dec. Dig. &wkey;145.]
    2. Appeal and Error <&wkey;854(2) — Affirmance — Reasons of Trial Court.
    Judgment denying injunction, though placed on other grounds, may be affirmed because of insufficiency to authorize injunction of the affidavit to the petition, questioned hy special demurrer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410; Dee. Dig. <&wkey;> 854(2).]
    3. Municipal Corporations ■&wkey;>898 — “Warrants” or “Bonds.”
    A city intending to issue warrants as evidence of indebtedness created by contracts for improvements, and having taken the steps necessary therefor, instruments issued pursuant thereto, regardless of their form and the fact that they contain elements of a bond, are warrants, and not bonds, which it cannot issue unless authorized by a majority of the taxpaying voters.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 1883; Dec. Dig. &wkey;> 898.
    For other definitions, see Words and Phrases, First and Second Series, Bond; Warrant.]
    4. Municipal Corporations &wkey;>1000(6) — Taxpayer’s Action — Correction of Record of City Council.
    All parties interested being before the court in a taxpayer’s action to enjoin collection of a tax to retire city warrants, on the ground that the levy did not have the consent, required by Rev. St. art. 931, of two-thirds of the aldermen elected, the record of the city council, pleaded by plaintiff, showing that only three of the five aldermen voted for the levy being directly attacked by allegation that it was a clerical mistake, and that in fact four of the aldermen voted therefor, may be required to be corrected, as prayed, on evidence showing such fact.
    [Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. &wkey;>1000(6).]
    5. Municipal Corporations <&wkey;142 — Disqualification — Holding Two Offices — “Office of Emolument.”
    No salary for alderman being provided by the statute under which a city was incorporated or by ordinance, he, though holding another salaried office, is not, within Const, art. 16, § 40, prohibiting any person from holding at the same time more than one civil office of emolument.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. § 314; Dec.Dig. <&wkey;142.]
    6. Municipal Corporations &wkey;> 147 — Aldermen— Collateral Attack on Qualification.
    The issue of disqualification under Const, art. 16, § 40, of an alderman because of election to and acceptance of another office of emolument, not being directly raised by the pleadings in a suit to enjoin collection of a tax, and he having been at least a de facto alderman, acting under color of office, his vote for the levy cannot be disregarded.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 324, 325] Dec. Dig. &wkey;147.]
    7. Municipal Corporations <&wkey;340 — Warrants — Diversion from Purpose.
    There was no diversion from their purpose of warrants of a city issued for improvement and extension of its waterworks, then consisting of a well; the object of the contract being to connect the system, to such well, and the specifications of the contract being carried out, with the single exception that after the contract was made and the work was commenced it was found the well was too small, and the city from other funds dug a larger one, a few feet away, and the system was attached to it.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 869; Dec. Dig. <&wkey;> 840.]
    8. Municipal Corporations &wkey;>354 — Contract — Abrogation by Subsequent Contract.
    Contracts for municipal improvements were not abrogated by a subsequent agreement of the city to deliver in advance the warrants for the work on the execution of an indemnity bond.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 886, 887 ; Dec. Dig. @=»354.]
    9. Municipal Corporations &wkey;»354 — Contracts — Abrogation by Subsequent Contract.
    Contracts for municipal improvements cannot be abrogated by a subsequent contract, if it be illegal and void because authorized by no ordinance or resolution of the city council.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. <S==354.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by N. C. Graves against M. Griffin O’Neil & Sons and others. From an adverse judgment, plaintiff appeals.
    Affirmed.
    J. A. L. Wolfe, of Sherman, for appellant. J. J. C-ollins, of Dallas, and Webb & Webb, of Sherman, for appellees.
   TALBOT, J.

This suit was instituted by the appellant to restrain the appellees the city - of Tioga, its mayor, A. J. Scott, and board of aldermen, Henry McGehee, Harry Lauderback, R. E. Speers, T. J. Price, and R. V. Perry from carrying out certain contracts entered into with M. Griffin O’Neil & Sons, from diverting certain funds created for a specific purpose to other and different uses, and to enjoin the collection of certain taxes which had been levied by the board of aldermen of the city of Tioga for the purpose of paying the interest and creating a sinking fund tor the retirement of certain warrants issued by the city of Tioga to M. Griffin O’Neil & Sons. On the 7th day of July, 1916, the Hon. W. M. Peck granted a temporary restraining order and set the case down for hearing for Monday, July 24, 1916. On July 12, 1916, an order was entered modifying the original order so as to permit ap-pellees to put in engine and lay mains in the streets of the city of Tioga. On the 24th day of July, 1916, the cause came on for hearing, and same being adjourned until a later date, was completed on September 2, 1916, when an order was entered dissolving the temporary restraining order theretofore granted, and denying the temporary injunction prayed for. It was further ordered that the cause be continued on the docket of the district court for final hearing and disposition. Plaintiff, in open court, excepted to the ruling of the court, and gave notice of appeal.

The allegations of the appellant’s petition are, in substance:

That the city council of Tioga, Grayson county, Tex., on the 30th day of March, 1916, by ordinance, entered into two contracts with the appellee M. Griffin O’Neil & Sons — one for the construction of certain street improvements in accordance with plans and specifications adopted therefor, at a cost of $4,000; the other for the improvement and extension of the waterworks system of the city, according to plans and specifications adopted therefor, at a cost of $7,000. Thai the compensation for the payment of the work under the respective contracts was provided to be paid by the issuance of interest-bearing warrants of the city to the contractor, as the work progressed. That the respective ordinances provide for the creation of an interest and sinking fund by the levy of a tax of 25 cents on the $100 to pay for the warrants at their respective maturing dates for the improvements and extension of the waterworks, and a levy of a tax of 15 cents to pay for the warrants paid to the contractor for the improvement of the streets at their maturing dates. That on the 18th day of May, 1916, the board of aldermen of the city of Tioga passed an ordinance “auditing and allowing estimate No. 1 iiresented to M. Griffin O’Neil & Sons, contractors, covering street work which has been completed by contractors under his contract with the city of Tioga, Tex., and authorizing the delivery to said contractor of city of Tioga, street improvement warrants hereby authorized to be issued in payment for said work.” By said ordinance it was declared that the contractor had completed, in accordance with the terms of his contract, all the street improvement work in accordance with the plans and specifications attached to his contract of date March 30, 1916, and the work was accepted by the city and allowing contractor’s estimate and ordering delivered said $4,000 in street improvement warrants. On the same date, to wit, May 18, 1916, a similar ordinance was passed auditing the estimate of said contractor for the waterworks improvement provided for in his contract of date March 30, 1916, declaring that the work had been completed in accordance with the plans and specifications, was thereby accepted by the city council, and ordering the delivery to said contractor the said $7,000 in waterworks' improvement warrants provided for in the contract and ordinance of date March 30, 1916. That the mayor and the city secretary of the city of Tioga each joined in a certificate to the effect that said work had been done, completed, and accepted by the city council of the city of Tioga as in full compliance with said respective contracts, and that the work done was worth the amount paid therefor. That on the 18th day of May, 1916, M. Griffin O’Neil & Sons and the city of Tioga, Tex., by and through its mayor, A. J. Scott, entered into the following contract:

“The State of Texas, County of Grayson: This agreement, made this the 18th day of May, 1916, between the city of Tioga, Grayson county, Texas, party of the first part, and M. Griffin O’Neil & Sons, of Dallas, Dallas county, Texas, party of the second part, witnesseth: That heretofore on the SOth day of March, 1916, the above parties entered into a contract whereby the party of the second part is to construct a system of waterworks for the party of the first part, at the cost of eleven thousand ($11,000.09) dollars, and by the provisions of which contract the said party of the first part is to pay to the said party of the second part the before-mentioned sum of eleven thousand dollars in legally issued warrants of the city of Tioga. It is therefore hereby further agreed that the party of the second part shall deliver to the party of the first part a solvent surety bond in the sum of eleven thousand ($11,000.00) dollars, said bond to guarantee all the .provisions of this contract, and stand as a guarantee that the party of the second part will immediately start the construction of the waterworks system and complete said system in accordance with the attached plans and specifications at and for the sum of eleven thousand dollars, the party of the first part hereby agreeing, on receipt of said surety bond, to deliver to the party of the second part the before-mentioned warrants properly executed and signed, together with all the necessary delivery papers executed in the same manner as though the before-mentioned work had been completed. Signed and sealed by the respective parties. M. Griffin O’Neil & Sons, by Donald O’Neil, Secretary. City of Tioga, Texas, A. J. Scott, Mayor.”

That on the date this contract was entered into the city council of said city issued to M. Griffin O’Neil & Sons the warrants under both the contracts calling for street improvement and the improvement and extension of the waterworks system. That the bond required of M. Griffin O’Neil & Sons in the foregoing contract was given. That this transaction was done by virtue of a conspiracy between the appellees on the one hand, and M. Griffin O’Neil & Sons on the other, to accomplish by indirection, which, if done directly, would have been an open and flagrant violation of law, and to avoid the law requiring bonds to be first submitted to a vote of the qualified taxpayers, and that the warrants so issued are, in truth and in fact, bonds. That the taxes levied or attempted to be levied in each of the ordinances referred to are illegal, in that two-thirds of all the aldermen elected to said offices of the city did not vote for said tax levy. That the mayor and board of aldermen are seeking to divert, disburse, and expend the $4,000 fund authorized for street improvement in the construction of a sytem of waterworks, and that the fund of $7,000, which was authorized and created for the purpose of improving and extending the present waterworks system of the city, is being diverted by the council in attempting to use the same, for the construction of a separate and independent system of waterworks in the city. That no interest or sinking fund was provided to take care of an alleged contract of May 18, 1916, for $11,000, nor was the same authorized by an ordinance br resolution, or in a lawful manner, and that appellees knew that the $11,000 fund was being diverted from the purpose for which it was created. That the city of Tioga paid to ap-pellee, contractor, the warrants or money prior to the doing of any work stipulated in the contract by the contractor. That the city council is attempting to levy a tax and will continue to levy a tax, as provided for by the respective ordinances, for the year 1916, and subsequent years, to pay for the warrants. That on May 18, 1916, an ordinance was passed by the city council of the city of Tioga, declaring, and the mayor and secretary made certificate thereof, to the effect that M. Griffin O’Neil & Sons had done and performed all the work required of them under their contracts entered into on the 30th day of March, 1916, but that no work whatever had been done under said contracts.

The prayer of the petition is, in substance, that M. Griffin O’Neil & Sons be enjoined from receiving the alleged city warrants, or, in the event they have already received them, from making any disposition thereof. That said aldermen be enjoined, from diverting said funds and be required to' hold said funds, as a special fund for the sole purpose for which same was by said ordinances provided. That said mayor and aldermen of the city of Tioga be restrained from any attempt to enforce said ordinances, and particularly that portion levying a tax of 15 cents and 25 cents, respectively, on the $100 on the property within the corporate limits of said city for the purpose of paying interest and creating a sinking fund on said respective sums of $4,000 and $7,000 and for general, special, and equitable relief.

Appellant insists upon the following propositions in support of his contention that the temporary injunction prayed for by him should have been granted, namely: First, that the evidence of indebtedness given by the city of Tioga to the contractor, both as to the $4,000 for street improvement and $7,000 for waterworks improvement are void, because not authorized by a majority of the qualified property tax paying voters of the city; second, that as the tax levy for paying the interest and sinking fund on the indebtedness created by the city of Tioga to M. Griffin O’Neil & Sons was not authorized by a two-thirds vote of the aldermen elected by the city of Tioga, such tax levy was void; third, that the $4,000 of street improvement warrants could not be legally diverted to other purposes; fourth, that the authority conferred by the ordinance of March 30, 1916, to improve and extend the present waterworks system of the city of Tioga did not confer upon the officials of said city the authority to build and construct an independent system, and the use of $7,000 in warrants issued under said ordinance for any purpose other than that specifically permitted by said ordinance was an illegal diversion of the same; fifth, that the contracts, both for street improvement and waterworks improvement of date March 30, 1916, were abrogated by the ordinances of date May 18, 1916; sixth, that the contract of May 18, 1916, created a debt against the city of Tioga for $11,000, which was not payable ont of the current revenues for the year, and there being no provision made at the time for paying the interest and creating a sinking fund for its retirement, same was void; seventh, that the contract of May 18, 1916, for the construction of a system of waterworks for the' sum of $11,000, not having been authorized by any ordinance or resolution of the city council of the city of Tioga, was void; eighth, that the $4,000 street warrants and the $7,000 waterworks warrants having been issued for the purpose of creating a fund of $11,000 for the construction of a system of waterworks to cost $11,000, the whole transaction was illegal and void.

The appellees, in briefs and arguments filed by appellees in this court, reply to the foregoing propositions of the appellant, but insist, in effect, that a special demurrer urged by them to the appellant’s petition, on the ground that it was not verified as required by law, should have been sustained, and that therefore independently of any other question in the case, the injunction sought was properly denied, and the judgment of the court below should be affirmed by this court. The affidavit to the petition, so far as necessary to state, is:

“That I [the affiant] have read the foregoing petition-and (state) that the'statements of fact therein contained are true to the best of my knowledge and belief.”

Clearly, this affidavit was sufficient. Article 4649 of Vernon’s Sayles’ Texas Civil Statutes provides that no writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge, verified by his affidavit. The test of the sufficiency of this affidavit, according to the decisions of the appellate courts of this state, is:

“That the affidavit of the facts sworn to must be so direct and unequivocal as that an indictment for perjury would lie, if the oath is falsely made.” Pullen v. Baker, 41 Tex. 419; Moss v. Whitson, 130 S. W. 1034; Clarey v. Hurst, 136 S. W. 840; Smith v. Banks, 152 S. W. 449.

The affidavit must be that the facts stated therein are true. It must be positive and not from hearsay. Railway Co. v. Pietzsch, 10 Tex. Civ. App. 572, 30 S. W. 1083. The test stated is not met by the affida/vit made to appellant’s petition, and the court erred in overruling appellee’s demurrer. The ■ affidavit not being such as is required by law, the trial court would have been justified in refusing the injunctive relief sought for that reason, and the fact that the court for other reasons satisfactory to it denied ■such relief, even if such reasons were not sound, its judgment should not be disturbed. If his conclusion is right it is immaterial if a wrong reason may have been given in support thereof. The fact then that the injunction asked for should have been denied because appellant’s petition was not verified as required by law, we might rest an affirmance of the court’s judgment upon the fact alone, but the case is still upon the district court docket for final determination, and we regard it proper if not essential to express our views upon other questions raised on this appeal. We shall therefore briefly state our conclusions in regard to the propositions urged by appellant that may become material on a further hearing of the case in the trial court.

1. We are inclined to the opinion that the warrants issued by the city of Tioga and given to the contractor, M. Griffin O’Neil & Sons should not be regarded as bonds and void because not authorized by a majority of the qualified property tax paying voters of said city. If it was the intention of the city council of the city of Tioga to issue warrants as evidence of the indebtedness created for street improvement and for waterworks improvement by the contracts of date March 30, 1916, and took such steps as were necessary to issue warrants, the instrument drawn, regardless of its form, and the fact that elements of a bond were contained in it, would be, it occurs to us, a warrant. The city of Tioga could not legally issue bonds of the city for any purpose authorized by law, without first submitting the question of their issuance to the voters of the city of Tioga, who are qualified'property tax payers of said city, and a majority of such qualified property tax payers voting at said election is in favor of the issuance of bonds. But the city of Tioga was authorized to make contracts for the improvement of its streets and waterworks, and could determine that such improvements should be paid for otherwise than by the sale of bonds. If, therefore, said city determined that the improvements involved in this suit should be paid for by warrants of the city, and such warrants and not bonds were issued for that purpose, the statute forbidding the issuance of bonds, unless authorized by a majority of the taxpaying voters of the city, has no application. Article 931 of the Revised Statutes provides that the city council of an incorporated city shall have power by ordinance to assess and collect taxes, provided no tax shall be levied unless by consent of two-thirds of the aider-men elected. This has been a difficult question to determine, but we have reached the conclusion that the testimony is sufficient to warrant the conclusion that the city of Tioga by proper ordinance issued warrants and not bonds in payment of the indebtedness created for the improvement of its streets and waterworks.

2. The evidence was sufficient to warrant the lower court’s conclusion that the tax levy to provide a fund with which to pay the principal and interest of the warrants issued to M. Griffin O’Neil & Sons under the contracts for the improvements in question was made by a two-thirds vote of the aldermen elected by the city of Tioga. The evidence shows that there were five aldermen elected, and that one of them, prior to the making of the contracts with M. Griffin O’Neil & Sons for the improvement of the streets and waterworks system of the city of Tioga and the passage of the ordinance in relation thereto, had moved out of the city and abandoned his office. T. J. Price .was elected an alderman of the city in April,' 1915, and later was elected to the office of city secretary at a salary of $2 per month. At the time of the tax levy, to wit, March 30, 1916, there were present A. J. Scott, mayor, and Aldermen Henry McGehee, Harry Bauderback, R. E. Speers, and the said T. J. Price. The record in the minutes book of the city council showed that the vote by which the tax levy was made to create a fund for the payment of both $4,000 warrant for street improvement, and $7,000 for waterworks improvement, was made by a vote of three ayes and no noes. This status of the vote, as shown by the record of the city council, was. pleaded by the appellant, and the contention made that it affirmatively appeared therefrom that two-thirds of the aldermen of the city of Tioga had not voted in favor of the tax levy for paying the indebtedness incurred with M. Griffin O’Neil & Sons, and hence such levy was void. The appellees by affirmative allegations charged that the record of the city council showing that only three of the aldermen elected by the city of Tioga had voted for said tax levy was a mistake, a clerical error, and should be corrected; that in truth and in fact four of the aldermen, constituting two-thirds of the number which had been elected by said city, voted for said levy, and they prayed that said record be corrected. These allegations of the appellees were, we think, such a direct attack upon the record in question as to admit proof of its incorrectness and authoz-ize the court upon a final hearing of the case to enter judgment directing that said record, if found upon all the evidence adduced to be incorrect, be corrected and made to speak the truth. Whether parol testimony would have been admissible to show that a mistake had been made in recording the vote upon the proposition to levy a tax for the payment of the warrants issued and delivered to M. Griffin O’Neil & Sons, and that four aldermen voted for said levy instead of three in the absence of appellees’ pleading attacking the correctness of said record, we need not determine. That a correction of such mistake could be required upon proper allegations amounting to a direct attack upon the record and upon proof of those allegations we have no doubt. In the present case all the parties are before the court, and we can see no good reason why the correction of the record should not be ordered, as requested, if the ’evidence should show it to be incorrect. The evidence upon the hearing at which the judgment of the court now appealed from was rendered was amply sufficient to show that four of the aldermen elected by the city of Tioga voted for the levy of the tax in question, and in view of appellees’ pleadings above referred to we hold that said testimony was admissible, and justifies the conclusion that the tax levy in question was authorized by a two-thirds vote of the aldermen of the city of Tioga.

But appellant insists that if parol evidence was admissible, either under appel-lees’ pleadings or without such pleadings, to contradict the record made by the city of Tioga in relation to the vote cast for the levy of the tax to create a fund for the payment of the warrants delivered to M. Griffin O’Neil & Sons, still as R. V. Perry had moved out of the city and ceased to be an alderman and T. J. Price had been elected city secretary and accepted that office, it was not possible for there to have been more than three qualified votes given in favor of the tax levy. This contention is based upon that provision of our Constitution (section 40, article 16) which prohibits any person from holding in this state at the same time more than one civil office of emolument. The answer to this contention, if there be no other, is that the office of alderman of the city of Tioga is not an office of emolument, and the provisions of the Constitution referred to has no application. The statute under ■ which the city of Tioga is incorporated provides no salary for aldermen and none is provided by ordinance of said city, so far as is disclosed by the record before us. If, however, we should be mistaken in the view that the office of alderman in the city of Tioga is not one of emolument, then we'think the vote of T. J. Price in favor of the ordinances in question should be held to be legal upon the ground that he was a de facto alderman. There is absolutely nothing to show that his election to the office of alderman was void, and it cannot therefore be said that he has no colorable right to the office. He was, it appears, acting colore officii, and his right cannot be tried in a collateral proceeding. It could only be tried in an action in which the issue was directly presented. Such issue is not so presented by the pleadings of the appellant in this case.- Price, in voting for the ordinances, was acting, at least, under color of authority, and it must be held in this proceeding that he was empowered so to act. Broach v. Garth, 50 S. W. 594; Ex parte Call, 2 Tex. App. 497; Thompson v. Johnson, 84 Tex. 584, 19 S. W. 784.

3. The evidence is of such a character as to justify the conclusion that the appellees had not and did not intend to divert the $4,-’ 000 warrant issued for street improvement to. the improvement or construction of waterworks. The trial court’s judgment necessarily embraces such a finding, and we would not be warranted in the present status of the evidence to disturb that finding. It is clear that we would not be authorized to say as a matter of law that such diversion had been or was intended to be made.

4. We are also of the opinion that we would not be warranted in saying that the appellees had or intended to divert the $7,-000 warrants issued for the improvement and extension of the waterworks of the city of Tioga from the specific purpose permitted by the ordinance authorizing their issuance. The evidence is sufficient to justify the conclusion that the $7,000 warrants were used for practically the same purpose for which they were issued. The undisputed facts show that the only waterworks system that Tioga had at the time the contract in question was entered into was a public well on the public square in the town of Tioga, and that the object in making the contract for the improvement of its waterworks was to connect the system to that well, and the specifications constituting a part of the contract that was entered into were literally carried out by the contractors with the one exception that after the contract was made and the work commenced it was found that the old well was possibly too small, and the city of its own means outside of this contract simply dug a larger and more efficient well within a few feet of the old well, and the system was attached to it. A. J. Scott, mayor of the city of Tioga, testified:

“The plans and specifications represented here by these blueprints and plans and specifications we had before us were made at the time we entered into the original contract for the extension of the waterworks system. Those people are doing identically the same work, except they are tying on to a different well. The new well is about 20 feet east and southeast of the old well. So far as O’Neill & Sons are concerned they are doing identically the same work they agreed to do, and we just simply furnished them a different well. We have not given up the city’s claim to the old well. If the new well should get out of repair the old well is close enough to easily attach to it. We are still laying claim to both wells; but so far as the plans and specifications that were made and contemplated that stated that it was an extension of the old system, that is the identical work that they are doing now. By the term ‘extension of the present system’ we meant tying on to the old well. That was all of the present system we had. If we had come into possession of the other system we could not have used it in this because the well wasn’t large enough, and the casing is all rotten, and I don’t believe we could have put it in shape to use it.”

5. The contract of May 18, 1916, referred to in the former part of this opinion, did not have the effect to abrogate the contracts for street improvement and waterworks improvement, bearing date March 30, 1916. At least it could not be said in the present state of the record as a matter of law that such was the effect of said contract and ordinance. The conclusion is warranted from the testimony that said contract of May 18, 1916, is simply an agreement by which the city of Tioga obligates itself to deliver to M. Griffin O’Neil & Sons the warrants issued for the improvements contracted for before the work of constructing said improvements was completed upon the execution and delivery to said city of a solvent surety bond in the sum of $11,000 guaranteeing that the said O’Neil & Sons would immediately start the construction of said improvements and complete them in accordance with certain plans and specifications. Donald O’Neil, without contradiction, testified that these specifications provided for the construction of a waterworks system on a $7,000 basis, and for $4,000 worth of street improvement. He further said:

“In order to obtain those warrants at the time we obtained them, we entered into that contract of indemnity. The contract recites that it is intended to indemnify the city of Tioga in the sum of $11,000, and it makes the statement that it is for waterworks purposes for the construction of a waterworks system. We agreed to take warrants of the city of Tioga in the amount of $7,000_ to do certain waterworks construction. This instrument was written in our office and covers $11,000 worth of work. It says here $11,000 worth of waterworks. It was made to indemnify the city against our failure to proceed with the work after we had received warrants in payment for the $7,000 worth of waterworks and $4,000 worth of streets. The recitation in there that it was for waterworks system was not intended to indicate that we were building a waterworks system for $11,000. Our contract is specifically set out. It was not intended to change the terms of our original contract. We are constructing the work under the original contracts, $7,000 for waterworks, and $4,000 for streets.”

Again, the contract of May 18, 1916, is signed by M. Griffin O’Neil & Sons, and the “City of Tioga, Texas, by A. J. Scott, Mayor,” and appellant asserts in his seventh proposition urged before this court, that said contract was not authorized by any ordinance or resolution of the city council of the city of Tioga, and therefore void. If therefore said contract, for the reason asserted by appellant, was illegal and void, it was of no effect whatever, and could not of course abrogate the contracts of March 30, 1916.

6. Whether the $4,000 street improvement warrants and the $7,000 waterworks warrants were issued for the purpose of creating a fund of $11,000 for the construction of a system of waterworks alone, to cost $11,000, with the view of accomplishing indirectly that which the law would not permit appel-lees to do directly, as contended by appellant in his eighth proposition, was perhaps an issue of fact beiore the trial court, and not one of law. The trial court in the hearing of the application for the temporary injunction has resolved that issue of fact in favor of the appellees, and we regard such action as binding upon us in the present state of the evidence.

Believing we would not be warranted in reversing the judgment of the court below, the same is affirmed.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    GERLACH MERCANTILE CO. v. HUGHES-BOZARTH-ANDERSON CO.
    (No. 1054.)

    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 1, 1916.
    On Motion for Rehearing, Nov. 29, 1916.)
    1. Garnishment @=>17o — Judgment Against Defendant.
    There can be no valid judgment against the garnishee until there is one against the original defendant.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 315-322; Dec. Dig. @==>175.]
    2. GARNISHMENT @=>124^QuESTIONING ORIGINAL Judgment — Power of Garnishee.
    If the court rendering judgment against the original defendant had jurisdiction of his person and of the subject-matter of the suit, the garnishee cannot be hoard to question the conclusiveness of the judgment between plaintiff and defendant, and the mere fact that the original judgment must be obtained before judgment can be rendered against the garnishee does not give him the right to assail it for mere irregularities not rendering it void.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. § 249; Dec. Dig. @=>124.]
    3. Judgment @=>297, 311 — Correction of Recitals.
    If the first entry of judgment was a mistake, and was not the judgment of the court, it was its right and duty to correct the entry on the minutes to speak the truth; and if there were recitals of facts as to date of service which were made by mistake, the mistake could be corrected.
    lEd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 581, 584-586, 604, 605; Dee. Dig. @=>297, 311.]
    4. Judgment @=>299(1) — Correction After Term.
    By virtue of the continuing power of a court over its records, it may correct them and cause an entry of judgment to speak the truth at a time subsequent to the term at which it was rendered.
    LEd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 583, 585, 586; Dec. Dig. @=> 299(1): Appeal and Error, Cent. Dig. §§ 2201, 467-L-4676.]
    5. Garnishment @=>235(1) — Protection of Garnishee by Amended Judgment.
    A judgment of a court of competent jurisdiction, amended after term to correct a mistake in entering it upon the minutes, showing on its face to be valid, and importing verity, being in full force and unappealed from, protected a garnishee under it.
    [Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 423-425; Dec. Dig. @=>235(1).]
    6. Judgment @=>518 — “Collateral Attack" by Garnishee.
    An attack by a garnishee on the original judgment against defendant, amended after term to correct a mistake in its entry, is a “collateral attack.”
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 901, 902; Dec. Dig. @=>518.
    For other definitions, see Words and Phrases, First and Second Series, Collateral Attack.]
    7. Garnishment @=>103 — Evidence—Original Judgment Against Defendant.
    The original judgment against a defendant was admissible as evidence in garnishment proceedings against his debtor.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 284, 301; Dec. Dig. @=>163.]
    8. Judgment @=>521 — Collateral Attack by Garnishee — Validity of Amended Original Judgment.
    In the absence of affirmative showing on the face of the proceedings that there was no notice to defendant of motion to amend an original judgment to correct a mistake in its entry, in a garnishee’s collateral attack on such judgment the court is not authorized to hold it void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 964; Dec. Dig. @=>521.]
    9. Garnishment @=>81(1) — Jurisdiction — Resident Debtor — “Garnishment of a Debt.”
    The “garnishment of a debt” due a nonresident by a resident debtor is recognized by the statutes and decisions as being a suit in rem against the attached debt, the effect of which is to subject it to payment of the amount due plaintiff, though the general rule is 'that the situs of the debt and obligation is at the domicile of the creditor, and the right to subject the obligation of a nonresident does not infringe upon the sovereignty of the state of the nonresident creditor’s domicile.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 146; Dee. Dig. @=>81(1).
    For other definitions, see Words and Phrases, First and Second Series, Garnishment.]
    10. Judges @=>56 — Disqualification of Judge — Effect on Original Judgment.
    The fact that the judge in garnishment proceedings is related to the garnishee, or is in some other way connected with, or interested in, the subject-matter of the proceedings, docs not render void the judgment in the original suit against the original defendant.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. @=>56.]
    11. Evidence @=>244(10) — Admissions — By Agent of Corporation.
    In garnishment proceedings to reach the effects of the judgment debtor which he sold to the garnishee in violation of the Bulk Sales Law (Acts 31st Leg. c. 27), on showing that the general manager of the garnishee corporation bought the goods for his company, what he said in relation thereto while the negotiations were in progress was admissible as part of the transaction.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 926, 927; Dec. Dig. @=>244(10).]
    12. Evidence <^=244(7) — Admissions — Personal Acts of Agent.
    If the general manager was acting for himself and not for the company in buying the stock of goods in violation of the Bulk Sales Law, the company was not bound by his declarations.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 923; Dec. Dig. @=>244(7).]
    13. Evidence @=>484, 489 — Opinions—Competency of Witness — Value of Goods.
    In garnishment proceedings to subject a stock of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk .Sales Law, the testimony of witnesses, who testified to experience in handling and estimating goods of the class arid character in question, as to the amount of goods left after an auction sale, and as to the value of the goods, which the garnishee was charged to have mingled with its own and sold, was admissible, there being no invoice by which the goods could be valued, objection going more to the weight than the admissibility .of tho testimony.
    [Ed. Note. — For other cases, see Evidence, Cent.Dig. §§ 2267, 2274; Doc. Dig. @=>484, 489.]

      14. GARNISHMENT <3=163 — EVIDENCE—LACK of Notice of Same in Btjlk.
    In garnishment proceedings on account of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk Sales Law, the attorney for the plaintiff, resident elsewhere than in the city of residence of his clients, was properly allowed to testify that they received no notice from the garnishee or the debtor with reference to the sale, as provided by the statute.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 284, 301; Dec. Dig. <8=163.]
    15. Appeal and Error <8=1050(1) — Harmless Error — Evidence.
    The admission of such testimony of plaintiffs’ attorney was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1060, 1069, 4153, 4157; Dec. Dig. 8=1050(1).]
    16. Appeal and Error <8=273(2) — Pleading <8=87 — Objection to Form — Review.
    In garnishment proceedings, where the supplement, so called, and the other portion of the traverse, were attached together and made part of each other by allegation, in the absence of special exception as to the order of the pleading or that they were attached to each other, the entire answer should be looked to by the trial court and Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1764; Dec. Dig. <8=273(2); Pleading, Cent. Dig. § 180; Dec. Dig. <8=87.]
    17. Fraudulent Conveyances <8=47 — Sales in Bulk — Liability of Transferee.
    If the transferor of a stock of goods had creditors, the purported sale was void as to them if the Bulk Sales Law was not complied with, and if the transferee sold, disposed of the goods, or converted them by mingling them with its own, it became indebted to the trust for the creditors for their value.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. <8= 47.]'
    18. Garnishment <8=164 — Disposition of Goods by Garnishee — Sufficiency of Evidence.
    In garnishment proceedings on account of goods alleged to have been sold to the garnishee by the judgment debtor in violation of the Bulk Sales Law, where the goods were in the garnishee’s establishment in July, 1913, when it marked the price so as to sell them, declaring they were going to give the people the full benefit of the bargain, and the garnishee, by its answer, swore that it had no effects of the debtor on December 7, 1914, when the writ was served, the trial court was warranted in inferring that the garnishee had disposed of the goods, especially in the absence of any evidence to the contrary.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 302; Dec. Dig. <8=164.]
    19. Fraudulent Conveyances <8=276 — Sales in Bulk — Burden of Proof — Notice to Creditors — Statute—“Unless.”
    Under the Bulk Sales Law, providing that any sale of any portion of a stock of merchandise shall be void as against creditors of the seller “unless” the purchaser shall make full inquiry as to the names and places of residence of the seller’s creditors, and shall in good faith notify the creditors, in garnishment proceedings on account of a stock of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk Sales Law, where plaintiff showed a bulk sale, or a sale not in the regular course of business, and that it was a creditor of the seller, and that there were other creditors, the burden to show that the sale was within the- exception of the statute shifted to the garnishee, since the primary meaning of “unless” is unloosened from, having the force of “except,” and those claiming to be excluded under it must show they are within the exception (citing Words and Phrases, Unless).
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 808; Dec. Dig. <3= 276.]
    On Motion for Beh earing.
    20. Judgment <8=497(3) — Attack — Lack of Service.
    A party affected by a judgment obtained in a suit by publication has the right to show by the record either in a direct or collateral proceeding that there was no service, or such facts as show the court did not have jurisdiction, or would render the judgment void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 938; Dec. Dig. <8=497(3).]
    21. Judgment <8=497(1) — Collateral Pro- ' ceeding — Showing of Jurisdiction.
    In a proceeding collateral to a judgment, such as a garnishment proceeding, if the judgment on its face shows jurisdiction, the party claiming under it is not required to go further.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 937; Dec. Dig. <8=497(1).]
    22. Judgment <8=521 — Attack — Lack of Service — Burden of Proof.
    The burden to show there was no service is on the party assailing a judgment for lack of such service as is required by law.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 964; Dec.. Dig. 8=521.]
    23. Garnishment 8=162 — Amendment of Original Judgment — Notice of Motion-Burden of Proof.
    In garnishment proceedings' on an amended or corrected judgment which did not recite notice to the judgment debtor of the motion to amend, the burden was on the garnishee to show that there was no notice, which was not satisfied by showing that the clerk issued none, since notice could have been given in other ways, or been waived.
    [Ed. Note. — For other cases, sec Garnishment, Cent. Dig. § 300; Dec. Dig. 8=162.]
    24. Garnishment <8=162 — Amendment of Original Judgment — Notice of Motion-Presumption.
    In garnishment proceedings under an amended original judgment, the presumption, in the absence of contrary evidence, is that notice of the motion to amend was waived, or given in some way.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 300; Dec. Dig. 8=162.]
    25. Appeal and Error 8=934(1) — Presumption — Amendment of Original Judgment —Notice.
    In garnishment proceedings under an amended original judgment, the court should presume on appeal that if notice of the amendment was not waived by the judgment debtor, the garnishee would have proven the fact either by the record or aliunde evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777, 3780, 3781; Dee. Dig. 8=934(1).]
    Appeal from District Court, Hemphill County; C. Coffee, Special Judge.
    Garnishment proceedings by the Hughes-Bozarth-Anderson Company against the Ger-lach Mercantile Company. From a judgment for plaintiff, the garnishee appeals.
    Judgment affirmed.

      Hoover & Dial and Baker & Willis, all of Canadian, for appellant. Fisher & Palmer, of Canadian, for appellee.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

This isi an appeal from a judgment in favor of the appellee, Hughes-Bozarth-Anderson Company, against the appellant, Gerlach Mercantile Company, for the sum of $809.45, being the principal and interest of an indebtedness due by James Margetts to the appellees, as established by a judgment in favor of appellees, against Margetts in cause No. 710, on the district court docket.

On the 7th day of December, 1914, the ap-pellees, in cause No. 710, Hughes-Bozarth-Anderson Co. v. James Margetts, sued out a writ of garnishment, causing its affidavit and bond for writ to be filed therein on that day and causing a writ of garnishment to be issued to the appellants, Gerlach Mercantile Company, to answer at the next term of the district court of Hemphill county, to be convened on the 11th day of January, 1915, what, if anything, it was indebted to James Mar-getts, and what effects, if any of the said Mar-getts, it had in its possession.

The original suit appears from the record to have been instituted by appellants against Margetts as a nonresident, and service was obtained therein by publication. The district court, in which the case was pending, convened January 11, 1915. The case appears to have been passed until the August term, 1915, when judgment was taken against Margetts by default. This judgment recites in its face that service was had by publication in a paper on the following dates: December 17, 24, and 31, 1914, and January 7, 1915, stating that the court found that the appellees here and plaintiffs there recover the sum of $640, together with interest at the rate of 10 per cent, from the 1st day of June, 1913. At the January term of court, January 28, 1916, it appears that this judgment was amended or corrected upon motion. The order directing the correction of the judgment, among other things reciting that it appeared to the court that the judgment entered of record in the minutes of the court did not set forth and speak the action and judgment of the court as rendered in the cause and that a clerical error was made in entering the judgment therein, and it was therefore ordered that the motion be granted, and that the judgment entered be reformed and made to speak the judgment of the court. The judgment caused then to be entered showed that the suit was instituted by appel-lees against Margetts, and that he was cited by publication, that he had not filed an answer within the time prescribed by law, and that the Hon. J. W. Sanders, an attorney of the court, was appointed to defend in behalf of Margetts. Then reciting the publication in a weekly newspaper published in Hemphill county, and that it was published on the 10th, 17th, 24th, and 31st days of December, 1914, and on the 7th day of January, 1915, being published four successive weeks prior to the return day of the term, January, 1915. It decreed the same amount, reciting that the indebtedness appeared to be a liquidated demand evidenced by an instrument in writing; reciting also that the process of the court may issue to subject the res or the property and effects brought within the jurisdiction of this court, by virtue of the writ of garnishment issued in the cause and served upon Gerlach Mercantile Company, which cause was then pending in the court upon the dockets as cause No. 1028, Hughes-Bozarth-Anderson Co. v. Gerlach Mercantile Company, Garnishee. And it was further ordered that plaintiff’s garnishment lien be and the same was foreclosed.

The original judgment entered also showed that the 1-Ion. J. ,W. Sanders was appointed by the court without reciting that he was an attorney of the court. The garnishees answered the writ of garnishment that it had no property or effects of Mjargetts,’ and that it was not indebted to him and knew no one who was so indebted.

The appellee, Hughes-Bozarth-Anderson Company, traversed this answer, alleging substantially that the garnishee was indebted to said Margetts, and that it had effects of said Margetts in its possession, alleging that it purchased a stock of merchandise from James Margetts, July 19, 1913, and that the seller and purchaser failed to comply with the Bulk Sales Daw of Texas, with regard to getting a list of the creditors of Margetts and in not registering notice to them; that the garnishee paid only $1,319.05 for the goods, and their real value and market value was $3,000; that the garnishee moved the stock of goods into a building where it was running a business of like character and mingled the merchandise with his own, placing it beyond identification and reach of the creditors of Margetts; that it sold part of the goods and appropriated all of same to the use and benefit of the garnishee, alleging fraud on the part of Margetts, and the knowledge of such fraud by the garnishee in placing his property, or attempting to do so, beyond the reach of creditors.

This case was tried before Hon. C. Coffee, special judge, who was agreed upon by the parties; the Hon. Frank Willis, the regular presiding judge of that district, having certified that he was disqualified to try the garnishment proceedings, but rendered the corrected or amended judgment in the original suit, No. 710.

The facts in this case, we think, were sufficient to warrant the trial judge in finding that the appellant purchased the' goods from Margetts, paying therefor the sum of $1,310.-05, and immediately thereafter removed the same from Margetts’ store building to the house occupied by appellee as a mercantile establishment, with goods therein of like kind and character. The facts necessary to a fur-tlier understanding of this case will he noticed in disposing of the several assignments.

It is undoubtedly true that there can be no valid judgment against the garnishee until there is a valid judgment against the defendant. If the court had jurisdiction of the person and of the subject-matter of the suit, the garnishee cannot be heard to question the conclusiveness of the judgment as between the plaintiff and defendant, for the judgment against himself will be full protection to him for any payment he may make under it. Sun Metal Insurance Co. v. Seeligson, 59 Tex. 3. If the judgment was void it will not protect the garnishee. Shoemaker v. Pace, 41 S. W. 498.

The assignments from 1 to 9, inclusive, and propositions thereunder, urge that the judgment is void because: (1) On its face it is shown citation by publication was not made for fully 2S days before the return day. (2) That it was not shown the debt was payable in the county of the suit, it being a debt due a nonresident. (3) That the corrected judgment, rendered January 28, 1916, the day before trial, should not have been admitted in evidence because rendered without notice as provided by statutes. (4) It was entirely different from the first judgment, rendered at the August term, containing new and different adjudication, it being: (a) In rem instead of one in per-sonam, as was the first, (b) The property was brought into court by garnishment and the lien foreclosed without notice to the garnishee. (c) The latter judgment reciting a recovery upon a liquidated demand found upon a written instrument the former only found a debt, (d) The original judgment showed service by publication less than 28 days. The corrected judgment showed more than that time, (e) The garnishee was required to look to the whole record, petition, citation, and the like, which are not shown in this record. (5) The judgment was rendered by the Hon. Prank Willis, who had certified his disqualification in the garnishment cause, and therefore void.

As we understand, appellant does not contend the corrected judgment is void on its face, but that it is so because there was no notice given to the defendant therein, and because the latter was different in important particulars from the former. We also understand it is not contended that the court did not in fact render the judgment at the August term which is shown by the amended judgment entered at the January term following, but that because the entry first made evidenced on its face that it was invalid, that it could not be amended or corrected. If this entry was a mistake and was not the judgment of the court, it was the right, as well as the duty, of the court .to see to it the judgment entry on the minutes spoke the truth; that, it evidenced the judgment which the court rendered. If there are recitals of facts as to the date of service*, which in truth are shown to have been made by mistake, we see no reason why the mistake may not be corrected. Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040. As will be observed in the original entry, the first date of publication is stated as the 17th of December. The amendment shows that the first date of publication was the 10th day of December, 1914. The first judgment simply shows that it was one in personam, while the corrected judgment shows it to be one in rem. We believe it will not be necessary to enter into a discussion whether the first entry on its face was void or voidable. If the amended judgment shows to be a valid judgment the garnishee is protected by it. The correction was entered before the trial of the garnishment proceedings and the rendition of the judgment therein. It has been held that a judgment entered as a personal one against a nonresident upon service by publication may be corrected so as to make it one in rem, restricting it to the fund attached by garnishment. Austin Nat. Bank v. Bergen, 47 S. W. 1037.

By virtue of the continuing power of a court over its records, it may correct the records and cause the entry of the judgment to speak the truth at a time subsequent to-the term at which it was rendered. Blum v. Neilson, 59 Tex. 378; Hickey v. Behrens, 75 Tex. 488, 12 S. W. 679. The fact that service was had by publication on the days named in the corrected entry, that a garnishment was issued and served, that the debt was a liquidated demand, that the defendant was a nonresident, and that the suit was one in rem, and that jurisdiction was-obtained by the garnishment lien, were all matters of record in that case, by which the entry could be corrected and would not rest upon parol testimony. The judgment here, as was said by Mr. Justice Phillips, in Coleman v. Zapp, supra—

“sought only to amend the entry, nunc pro tunc, so as to include that which was omitted and thereby afford a faithful record of the whole judgment. In other words, it did not seek the amendment or correction of a judicial mistake-as distinguished from a clerical mistake or omission.”

The court having the power to correct an. erroneous entry of the judgment in this case-at the terms' it did, the amendment as ordered entered shows a valid judgment in which the court had jurisdiction by virtue of the attachment of the defendants’ property or' debt through garnishment proceedings,, and to enforce the lien so acquired. This judgment, being in full force and unap-pealed from, is sufficient to protect the garnishee. The attack upon the judgment by the garnishee is a collateral attack. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Ferrell, etc., v. McCormack, 184 S. W. 1081; Reeves v. Fuqua, 184 S. W. 682. The judgment here entered was rendered in a different proceeding from the original case. It was under the law admissible as evidence in the garnishment proceeding, but the mere fact that it must be obtained before judgment could be rendered against the garnishee did not give the garnishee the right to assail it because there were mere irregularities not rendering it void. It was the judgment of a court, of competent jurisdiction, valid on its face, importing verity. This judgment the garnishee was not required to set aside or to show that there were irregularities which might set it aside. Being a valid judgment on its face, which will protect the garnishee, is all with which the garnishee is concerned. Patterson v. Seeton, 19 Tex. Civ. App. 430, 47 S. W. 732.

Our Supreme Court has held to render a judgment of the district court liable to collateral -attack for want of service or notice to the defendant, against whom the judgment was rendered, it is necessary that the absence of notice or service should appear affirmatively on the face of the proceedings in which the judgment was rendered. Mikeska v. Blum, 63 Tex. 44; Lyne v. Sanford, 82 Tex. 58, 19 S. W. 847, 849 (3), 27 Am. St. Rep. 852.

The amended judgment does not recite whether notice of the motion to amend was served on the defendant or upon his attorney. The clerk testifies that he issued no notice. The defendant could have waived notice or notice may have been effected by other methods than by service of process issued by the clerk. In the absence of an affirmative showing on the face of the proceedings that there was no notice, in a col-' lateral attack upon the judgment, we do not believe we are authorized to hold the judgment void. Lawler v. White, 27 Tex. 250; Pitch v. Boyer, 51 Tex. 336; Gibson v. Oppenheimer, 154 S. W. 694.

In the case of Fitch v. Boyer, above, it is stated a domestic judgment of a court of general jurisdiction—

“is entitled .to such absolute verity, that in a collateral action, even where the record is silent as to notice, the presumption, when not contradicted by the record itself, that the court had jurisdiction of the person also, is so conclusive that evidence aliunde will not be admitted to contradict it.”

It is assigned that it was error to overrule the appellant’s exception to the traverse, to the effect that in the absence of a showing that the debt garnished was payable within the jurisdiction of the court that the situs would be where the nonresident creditor lived.

In the original action it is shown that both plaintiff and defendant therein were nonresidents. The garnishee owing the debt, or who held the effects of the nonresident defendant, resided within the jurisdiction of the court. “The general rule is well settled that the situs of the debt and obligation is at the domicile of the creditor. But the attachment laws of many states recognize the right of a creditor of a nonresident to attach a debt or credit owing or due him, by a person within the-jurisdiction where the attachment issues, and to this extent the principle has been sanctioned that the laws of the state, for the purpose of attachment proceedings, may fix the situs of a debt at the domicile of the debtor.” 2 R. C. L. p. 806, Attachment, § 5.

The case of Smith v. Taber, 16 Tex. Civ. App. 154, 40 S. W. 156, cited by appellant, as we understand it, is in accord with the rule above quoted. The garnishment of a debt due a nonresident by a resident debtor is recognized by our statutes and by repeated decisions as being a suit in rem against the attached debt, the effect of which is to subject it to the payment of the amount due the plaintiff. This right to subject the obligation of a nonresident does not, under the holdings of our courts, infringe upon the sovereignty of the state of the nonresident’s domicile.

The judge, the Hon. Frank Willis, of the district in which this case was tried, rendered the judgment in the original suit, out of which the garnishment was issued, No. 710. In this ease the garnishment proceedings, No. 1028, he certified his disqualification, and the Hon. C. Coffee tried the garnishment case as special julge. The cause or grounds of disqualification are not stated. It can be readily seen that the judge may not be disqualified in the original suit, but in the garnishment he may be related to the garnishee, or in some other way may have been connected or Interested in the subject-matter of the latter suit. In either event, this would not render the judgment in the original suit void. The case of Patterson v. Seeton, 19 Tex. Civ. App. 430, 47 S. W. 733, we think settles the question. In that case the judge who rendered the original judgment was the brother-in-law of the garnishee. The court there held the original judgment was not void on account of the relationship of the judge rendering the original judgment. It has been held also a judge presiding at the trial of an action on an appeal bond is not disqualified because he was attorney for the defendant in the criminal case in which the bond was given. Hobbs v. Campbell, 79 Tex. 360, 15 S. W. 282; Harverty v. State, 32 Tex. 602. Assignments from 1 to 9 are overruled.

The tenth assignment is overruled. George Gerlach, by the answer of appellant, shows that he was the general manager of appellant corporation. This fact, with other circumstances, shows that he bought the goods for his company and what he said in relation thereto while the negotiations were in progress, was admissible as part of the transaction. If the evidence should show he was acting for himself and not the company, of course the appellant would not be bound by his declarations. That fact depends upon the evidence to be considered by the court.

The eleventh and twelfth assignments are overruled. L. S. Parmer and W. A. Parmer gave their estimate; one of the amount of goods left after an auction sale and the other of the value of the goods. There was no invoice by which the'goods could be valued; they were removed from one house and placed in another building with other goods. About the only way to arrive at the amount of the goods or their value was by giving an estimate. These witnesses testified to experience in handling and estimating and to their knowledge of the value of the class and character of goods in question. We think the objection goes more to the weight to be given to the testimony than to its admissibility. This evidence we believe falls under the rule announced in Harris v. Schuttler, 24 S. W. 989; Belknap v. Groover, 56 S. W. 252. The charge in this case was that appellant purchased the goods in bulk and mixed and mingled them with other goods. The estimated value was about the only way appellant had of proving their value or amount.

The thirteenth assignment urges there was error in permitting W. A. Parmer to testify that appellee'.did not receive notice from the garnishee or Margetts with reference to the sale, as provided by the statute. It is urged he could not have known the fact testified to, for the reason that the witness was an attorney at Canadian, and the appellees, the clients of the witness, resided in Oklahoma City. He testified there was no notice. We do not see very well how the court could have excluded the evidence. The court doubtless gave the evidence such weight as it was entitled to under the circumstances; however, if the admission of this evidence was error, as we view the record, it could not have been material.

The fourteenth assignment is to the effect that there was no evidence that the appellant eyer purchased or received the goods. Without setting out the evidence, we believe the facts are sufficient to warrant the trial court in finding that the appellant purchased and paid for Margetts’ goods and moved them into its business house, and that it paid therefor the sum of $1,310.05.

The fifteenth assignment of error is as to the form of the pleadings. This assignment will be overruled.

The supplement so called and the other portion of the traverse were attached together and made part of each other by allegation. There was no exception as to the order of the pleading, or that they were attached to each other. In the absence of such special exception the entire answer should be looked to by the trial court and this court.

The proposition under the fifteenth assignment, the sixteenth assignment, and the nineteenth assignment present the proposition that to warrant the judgment against the garnishee for the value of the goods the pleadings and facts must justify a monied recovery; that is, that the garnishee disposed of the goods. It is asserted there is no fact showing that the goods were disposed of by the garnishee. The goods were shown to be in the mercantile establishment of the corporation, and were being marked down as to price and for sale. This was in July, 1913, and the employés asserted at the time the people should have the benefit of the price. The goods were found in the store with goods of like kind and character. The allegation is they were intermingled with other goods so they could not be segregated or identified. The appellant in this case, the facts we think show, took possession of the goods. The goods were the property of Margetts if at the time of the alleged sale the Bulk Sales Law (Acts 31st Leg. c. 27) was not complied with; that is, if he then had creditors the purported sale was void as to them. If it should be found Margetts or the garnishee has not complied with the law these goods could be appropriated by his creditors to their debts. It will be noticed the garnishee did not state that it held the goods or offered them as a stakeholder for levy under execution of the creditors, but simply denied that it had any effects of Margetts. Our Supreme Court holds that one purchasing merchandise in violation of the Bulk Sales Law holds the property as trustee for the creditors of the seller and not for himself. Owosso, etc., v. McIntosh et al., 179 S. W. 257, L. R. A. 1916B, 970. If the appellant sold or disposed of this property it became indebted to the trust for its value. Id. The judgment recites that the garnishee was indebted at the date of the garnishment in the sum of $1,310.05. It is claimed there is no evidence establishing such indebtedness. The trial court evidently found the value of the goods to be the amount appellant paid for them instead of the estimated value made by the witnesses. The court also evidently found that the appellant had disposed of or appropriated the goods. They were in appellant’s establishment in July, 1913, when it marked the price so as to sell them, declaring they were going to give the people the full benefit of the bargain. Appellant, by its answer, swears it had no effects of Margetts on December 7, 1914, when the writ was served. If it did not have such effects it had disposed of them and was therefore indebted. It was in the power of the garnishee to show by its answer and by evidence whether it had these goods or any part of them, but it remained silent when it was called upon to speak, and from these facts we think the trial court had evidence and ground for the inferences that appellant had disposed of the goods, especially in the absence of any evidence to the contrary.

The appellant cites us to the case of Holloway Seed Co. v. City National Bank, 92 Tex. 187, 47 S. W. 95, 516, on the question of pleading. The pleadings in this case allege a conversion of the goods by intermingling them with other merchandise of the garnishee. The case cited holds that if it was desired to show a pecuniary liability on the part of the garnishee it was necessary to plead the facts from which' such pecuniary liability arose, “so that the garnishee shall have the opportunity of contesting them upon the trial.” The garnishee in this case, by traverse, was given an opportunity to contest this allegation. This it did not see proper to do, either by pleading or evidence. It is again said in that case:

“There were no allegations in the pleadings of either party with reference to this matter (mingling). The court held that since the garnishee, after the service of the writ, had so mingled other merchandise of a like character with the original articles of the stock as to make it impracticable to distinguish them, it should deliver up to the sheriff the whole stock as it existed at the time of the trial. The complaint here is that the court erred in its ruling, because the facts upon which it was based were not pleaded. We are of the opinion, however, that it was not a matter necessary to be pleaded. The rule as to the confusion of goods is merely a rule of evidence. The wrongful mingling of one’s * * * goods with those of another, when the question of identification of the property arises, throws upon the wrongdoer the burden of pointing out his own goods, and, if this Cannot be done, he must bear the loss which results from it. It is but an application of the principle that ,all things are presumed against the spoliator; that is to say, against one who wrongfully destroys or suppresses evidence.”

The case was reversed because there was a conditional judgment; that is in the event the property was not returned that the plaintiff recover $5,000. This the Supreme Court held could not be done under the statute because under the pleadings no such judgment was sought. Judge Gaines, who delivered the opinion for the court, was careful to state although the only statutory judgment was to require the garnishee to deliver the goods to the sheriff, it did not follow, however, he said, that the plaintiff would be without remedy. Since the plaintiff, by the proceeding, acquired a lien upon the effects the garnishee could be proceeded against, either in an original suit or an ancillary proceeding for the conversion of the property. “If, in a case of fraudulent transfer, the garnishee has sold a part of the effects transferred before the service of the writ, then, as held in Willis v. Yates, 12 S. W. 232, he may be held liable to the extent of the goods so sold, as for a debt. And so we think that when he has sold or converted the goods, in whole or in part, after the writ has been served upon him, the plaintiff is not without remedy in the very proceeding itself. While there is no express remedy given by the statute in such a case, * * * we are of the opinion that it was not intended that the garnishee could, by an unlawful 'disposition of the property after the service of the writ, force the plaintiff to a new suit.” The court then held in that case there was no such pleading as would give the garnishee an opportunity to meet that issue. In other words, it had the right to point out the goods, and it must be given an opportunity to do so, and if the traverse had in that proceeding given it the opportunity, the court could have rendered a personal judgment against the garnishee, as on a debt, upon proof of conversion by mingling.

In this case the pleadings charge the garnishee with converting the goods. The evidence is sufficient to warrant the finding that they were mingled with the garnishee’s goods of like kind and character. The garnishee neither by evidence nor pleading denies the facts charged. It stands in the attitude of “one who wrongfully destroys or suppresses evidence.” When it took charge of the goods it did so as trustee for the creditors under the Bulk Sales Law, and when it converted them by mingling them it was liable to the creditors for their value. Such is the holding of the Holloway Case and the Owosso Case, supra, as we understand them. The lien was fixed on the funds held in trust by the garnishment. The appellee was entitled to its judgment for the amount of its demand, which did not exceed the value of the goods converted.

The seventeenth assignment presents the question of the burden of proof. The proposition is that the plaintiff takes the burden of establishing a purchase in violation of the Bulk Sales Law. The apparent contention in this case is that there was no evidence showing a failure to obtain a list of the creditors of Margetts, or notice to them under the act. The evidence in this case is meager, but in support of the judgment of the court we construe it as sufficient to show that Margetts was engaged in a mercantile business in the town of Canadian, and that about the date alleged he sold the stock of goods to the garnishee in bulk and not in the usual course of the business, for the sum of $1,310.05. That at that time he was indebted to various creditors for goods, among whom was the appellee. Appellant contends in order to render the sale void under the statute the burden was on the plaintiff to show, not only the sale in bulk and indebtedness at the time, but also there was no list of the debts given and no notice was sent to the creditors. In the Owosso Case, supra, it is said:

“In considering this question it should be remembered that the purchase by defendants in error from Sweet, however innocently intended, was an open violation of the Bulk Sales Law, and, under section 1 thereof, ‘void as against creditors of the seller.’ There was, then, no real sale in law, but merely a change of possession.”

In some jurisdictions the statute makes a violation of the law presumptively fraudulent and void as to creditors. If good faith is shown that presumption is rebutted. This is not so under our statute and the holding of the Supreme Court. The sale in bulk as to creditors is void unless the list and notice is obtained and given as required by the act. The wording of the statute would indicate the sale is void when creditors are shown and a bulk sale proven. We interpret the clause, “Unless the purchaser or transferrer shall at least ten days before the sale or transfer in good faith make full and explicit inquiry of the seller or transferrer as to the names and places of residence,” etc., and the purchaser shall at least ten days before the sale in good faith notify the creditors, to be an exception to the rule preceding it; that is, “Any sale or transfer of any portion of a stock of merchandise * * * shall be void as against creditors of the seller or transfer-rer.” “Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it or in some manner to modify it.” Sutherland, Stat. Const. § 222. “The exception of a particular thing from general words, proves that, in the * opinion of the lawgiver, the thing excepted would be within the general clause, had the exception not been made.” Brown v. State of Maryland, 12 Wheat. 419, 6 L. Ed. 678. “When there are words expressive of a general intention, and then of a particular intention incompatible with it, the particular must be taken as an exception to the general,' and so all the parts of the act will stand.” Howard Oil Co. v. Davis, 76 Tex. 630, 13 S. W. 665; Campbell v. Wiggins, 85 Tex. 424, 21 S. W. 599.

The primary meaning of “unless” is “unloosened from” ; it has the force of “except.” So what follows in the sentence after the word “unless” is excepted or unloosened from what went before it. As used in Code, § 216, providing that the officer shall not be bound to keep the property levied upon un-*lcss the plaintiff on demand shall indemnify him, though negative in form, conveys an affirmative meaning, viz. that if the cause is made as provided it shall he valid against them. 8 Words and Phrases, 7194; Manning v. Keenan, 73 N. Y. 45. “ ‘Unless’ frequently, as used in statute, means ‘except.’ ” Alexander v. People, 7 Colo. 155, 2 Pac. 894; Young v. Little, 15 N. J. Law, 1, 15; In re Pearson’s Estate, 110 Cal. 524, 42 Pac. 960; In re Smith’s Estate, 131 Cal. 433, 63 Pac. 729, 82 Am. St. Rep. 358; Cramer’s Appeal, 43 Wis. 167. “Unless it appears,” or unless a thing is done, implies that the burden of proof is upon those who would make the intention appear, or that the thing was done. Ramsdill v. Wentworth, 106 Mass. 320. In other words, those claiming to be excluded from the general rule must show they are within the exception. This is illustrated by our Supreme Court in construing article 3967, R. C. S. Every gift by a debtor “shall be void as to prior creditors, unless it appears that such debtor was then possessed of property,” etc. That court said:

“The proposition announced by the Court of Civil Appeals, that the burden of proof was upon the plaintiff to establish the insolvency of Summerlin in order to subject property given to his wife, is in conflict with the above article of the statute. As to pre-existing debts, the gift was, by the statute, prima facie void and the property subject to the payment of such debts of Summerlin unless the donee should make it appear that he was, * * * ‘possessed of property within this state, subject to execution, sufficient to pay * * * existing debts.’ The terms of the statute are so plain that it is not necessary to add argument to enforce it.” Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567.

Upon whom the burden of proof rests to bring the appellant within the exception is further illustrated by the rule frequently applied under the statutes of limitation. If the period of limitation is shown the burden is on the one claiming during the time that he or ‘she was then under disability, suspending the running of the statute as nonage, coverture, or the like. We therefore hold ap-pellee having shown a bulk sale or a sale not in the regular course of business and at the time it was a creditor of Margetts, and that there were other creditors of his, the burden or duty of proceeding or going forward and showing the sale was within' the exception shifted to appellant, and, having failed to discharge that duty, the court was authorized to hold the sale void and to subject the property garnished to the appellee’s debt.

The eighteenth assignment of error is overruled for the reason given in overruling assignments from 1 to 9, inclusive.

The' evidence in this record is not at all satisfactory on several points, but we believe will be sufficient and is sufficient to support the judgment of the court.

Affirmed.

On Motion for Rehearing.

Some of the authorities cited by us in the original opinion are not strictly applicable to suits by publication against a nonresident, but refer to domestic judgments. They were cited by us as illustrative of the question of notice to amend the judgment. We did not for a moment question the right of the party affected by a judgment obtained in a suit by publication to show by the record there was no service, either in a direct or collateral proceeding, or such facts as would show the court did not have jurisdiction, or such facts as would render the judgment void. In a collateral proceeding if the judgment on its face shows jurisdiction, then the party claiming under it is not required to go further. If the adverse party wishes to assail the judgment the burden is on him to show that there was no service, such as required by law. This is supported, we think, by Hopkins v. Cain, 105 Tex. 591, 143 S. W. 1145. Headnote No. 2 of that case, which correctly reflects the holding therein, is as follows:

“Where the judgment assailed recites service, the court will be bound to accept that as correct. In the absence of such recital in a judgment obtained on service by publication, it will look to the entire record to determine it, the burden being on the attacking party; and the statement of facts is by_ the statute made a part of the record where judgment is against unknown heirs.”

In the amended, judgment service is shown to have been obtained the required length of time. The court had jurisdiction by virtue thereof and by the seizure of the debt or property by garnishment, and jurisdiction to render the judgment at the August term; but a mistake was made in its recitals, and at the January term following this mistake was corrected. The amended or corrected judgment does not recite notice of the motion. The burden, therefore, was on appellant to show there was no notice. This it attempted to do by showing the clerk issued none. Notice could have been given, in other ways or could have been waived. The appellant does not show or negative these facts. The burden resting on it was not thereby discharged and the amended judgment shown to be void. The presumption, in the absence of evidence to the contrary, is that notice was waived or given in some way or the judgment would not have been entered. The filing of the amended pleading requiring service is not analogous. It is the pleading which states the cause of action and gives the right to a judgment; hence citation is required. We do not think the authorities on such a condition applicable to this case where only notice is required of the motion to amend the judgment by the record. We should rather presume if notice was not waived appellant would have proven that fact, either by the record or by aliunde evidence. Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778, 31 Am. St. Rep. 80, supports this proposition, and we believe it has not been departed from in this state. Much is said by way of discussion in numerous decisions, but the rule appears as stated by the decisions above cited.

The motion for rehearing is overruled.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    AMERICAN NAT. INS. CO. v. HOLLINGSWORTH.
    (No. 5663.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Insurance <@=>602 — Actions on Policies —Costs and Attorney’s Fees — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4746, providing that, if an insurance company liable therefor refuses to pay a loss within 30 days after demand, it shall be liable to pay the holder 12 per cent, damages on the amount of the loss and reasonable attorney's fees for its prosecution and collection, as a corporation can only act through Its agents, such demand can be made upon any agent of the company shown to be duly authorized to act for it in the premises.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1117; Dec. Dig. <@=>602.]
    2. Insurance <@=>602 — Actions on Policies —Costs and Attorney’s Fees — Statute.
    Unde# A^ernon’s Sayles’ Ann. Civ. St. 1914, art. 4746, proper demand for payment is a prerequisite to the demand for penalty and attorney’s fees, and mere furnishing of proof of loss- and filing suit is not sufficient.
    [Ed. Note. — For other cases, see Insurance,. Cent. Dig. § 1117; Dec. Dig. <@=>602.].
    3. Evidence <@=>555 — Opinions — Examination — Expert Witnesses.
    In an action by beneficiary of life policy on the issue of attorney’s fees allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4746, upon failure of company to pay loss 30 days after demand, in the absence of proof of the amount of services performed by the attorneys prosecuting the case, it was improper in interrogating expert witnesses as to the value of such services,, to recite what was done by counsel in the preparation of the case.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2376; Dec. Dig. <@=>555.]
    4. Appeal and Error <@=>206(2) — Preservation op Objections — Examination of Expert.
    In an action by beneficiary of life policy, on the issue of attorney’s fees allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4746, where defendant insurance company did not object that no proper, predicate was laid for a recitation of what was done by counsel in preparing the case, in interrogating expert witnesses as to the value of such services, the error was not reversible.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1273, 1286-1289; Dee. Dig. <@=>206(2).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Action by Mary L. Hollingsworth against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    J. L. Shelton, M. C. H. Park, and J. D. Williamson, all of Waco, for appellant. Cross & Rogers, of Waco, for appellee.
   RICE, J.

Prior to his death in February, 1914, Evans Hollingsworth took out two policies of insurance with appellant, each of which was payable to his wife, Mary L. Hollingsworth. One of these was a sick benefit policy, and the other a “whole life policy.” After his death, payment not being made, appellee brought this suit against appellant to recover thereon, as well as for the statutory 12 per cent, damages and attorney’s fees. Appellant pleaded payment, and denied the right on the part of appellee to recover penalty and attorney’s fees, on the ground that no statutory demand had been made for the payment of said policies. A jury trial resulted in a verdict in behalf of appellee in the sum of $165, with 12 per cent, penalty, amounting to $19.80, and $200 attorney’s fees, and upon which judgment was duly rendered, from which this appeal is prosecuted.

The principal questions raised by this appeal are: (1) Whether the statutory demand for payment must be made upon the company alone, and not upon an agent; (2) if permitted to be made upon an agent, whether the demand in the instant case was made upon an agent of the company authorized to receive such demand; and (3) if so, whether the amount recovered for attorney’s fees was excessive. The statute upon which recovery for the penalty and attorney’s fees is predicated provides that in cases where a loss occurs, and the insurance company liable therefor shall refuse to pay the same within 30 days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, 12 per cent, damages on the amount of such loss, together with reasonable attorney’s fees, for the prosecution and collection of such loss. Article 4746, vol. 3, Vernon’s Sayles’ Rev. Civ. Stats. As a corporation can only act through its agents, it seems to us that such demand can be made upon any agent of the company duly authorized to act for it in the premises. To hold otherwise, we think, would be to render the statute inoperative. Sabine & East Tex. Ry. Co. v. Cruse, 83 Tex. 460, 18 S. W. 755. We are not satisfied, however, in the instant case with the proof offered to show that the agent upon whom the demand was made was authorized to act for the company in this regard. It is true it is shown that he was the general superintendent of agencies -in and for McLennan, Hill, and Falls counties. But the proof failed to show that he was authorized to act for the company in making settlement or payment of losses, or to act for the company in the adjustment of this particular loss. Proper demand under the statute for payment of the loss is a prerequisite to the demand for penalty and attorney’s fees. Mere furnishing of proof of loss and filing suit is not sufficient. See Ford v. Mutual Life Ins. Co., 103 Tex. 522, 131 S. W. 406. There was an effort on the part of appellee to show demand upon the company by letter mailed and addressed to its home office, but the contents of this letter are hot shown, nor does it appear from the evidence that any demand was made therein for payment of the loss. If such demand had been made therein it seems this could have been shown.

In construing a somewhat similar statute, in Railway Co. v. Cruse, supra, Mr. Chief Justice Stay ton held that:

“Penalty shall not be recoverable unless notice be given to the railway company; and by the latter we would understand to be meant some officer of the company clothed with general powers.”

If in the instant case it can be shown that Russell, upon whom demand for payment, was shown to have been made, while not a general officer of the company, was authorized by it to make settlement of this particular loss or losses' of like character, then we think the company would be bound by proper demand made upon him for payment thereof.

We do not think it was proper, in the absence of proof showing the amount of services performed by the attorneys prosecuting the case, in interrogating expert witnesses as to the value of such services, to recite what was done by counsel in the preparation of the case for trial. But, as appel* lant failed to object on the ground that no proper predicate was laid therefor, this is not' deemed reversible error. We are not prepared, however, to approve the amount of the verdict for attorney’s fees.

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

Reversed and remanded.
      <S=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    CREWS & WILLIAMS v. GULLETT GIN CO.
    (No. 5682.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1916.
    Rehearing Denied Nov. 29, 1916.)
    1. Corporations <©=5672(7) — Action by Foreign Corporation — Pleading — Compliance With Statute.
    In action by foreign corporation, where the petition does not show that the corporation is transacting business in the state, it is not necessary that it allege that the corporation has obtained a license to transact business in the state.
    [Ed. Note. — For other cases, see Corporations,' Cent. Dig. §§ 2647, 2648; Dec. Dig. <©=67'2(7).j
    2. Judgment <©=252(3) — Pleading to Sustain.
    In action against a partnership composed of two partners, where the petition, although it contained no specific prayer for judgment against each defendant, concluded with a prayer for judgment for the amount of plaintiff’s debt, interest, and attorney’s fee, etc., and “for such other and further relief to which it may show itself entitled,” etc., it authorized judgment against the defendants individually.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 441; Dec. Dig. <©=252(3).] .
    3. Appeal and Error <©=907(3) — Record — Presumptions.
    Upon appeal from judgment for plaintiff, where there is no statement of facts, necessary allegations of the complaint will be presumed to have been established by proof.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <©=907(3).]
    4. Evidence <©=80(1) — Presumptions—Laws oe Other States — Interest.
    In the absence of proof on the subject, it will be presumed that the law of another state is the same upon the subject of interest as the law of the state in which the case is tried.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. <©=80(1).]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by the Gullett Gin Company against Crews & Williams. From judgment for plaintiff, defendant appeals.
    Affirmed.
    S. R. Allen, of Hamilton, for appellant. •A. R. Eidson, of Hamilton, for appellee.
   KEY, C. J.

Appellee sued appellants and recovered a judgment upon four promissory notes and foreclosing a chattel mortgage on certain personal property, and the defendants have appealed.

Tlie first assignment charges the court erred in rendering judgment against the defendants because it appears from plaintiff’s petition that plaintiff is a foreign corporation doing business in this state, and it is not alleged or shown that the plaintiff has complied with the laws of the state of Texas, authorizing it to do business in this state, and authorizing it to prosecute a suit within the state. The answer to this assignment is that the plaintiff’s petition does not allege that the plaintiff was transacting business in Texas, and therefore it was not necessary to allege that it had obtained a license to transact such business. Implement Co. v. Beer, 19 Tex. Civ. App. 311, 45 S. W. 972; Brin v. Shirt Co., 43 S. W. 295; Telephone & Telegraph Co. v. Kellogg, etc., 62 Tex. Civ. App. 402, 132 S. W. 983; Erwin v. Powder Co., 156 S. W. 1097. Appellant has brought up no statement of facts, and therefore we have no knowledge as to what was shown by the testimony upon this or any other point involved in the appeal.

The plaintiff’s petition shows on its face that the suit was brought against Crews & Williams, a partnership composed of J. C. .Crews and Joe E. Williams; and, while there was no specific prayer for a judgment against each defendant, the petition concluded with a prayer for judgment for the amount of the plaintiff’s debt, interest, and attorney’s fee, with foreclosure of its chattel mortgage, “and for such other and further relief to which it may show itself entitled,” etc. Hence we overrule the second assignment, which charges that the petition did not authorize a judgment against the defendants individually. Cothran v. Marmaduke & Brown, 60 Tex. 370; Robertson v. Tonn, 76 Tex. 538, 13 S. W. 585; Wiggins v. Blackshear, 86 Tex. 665, 26 S. W. 939; Webb v. Gregory, 49 Tex. Civ. App. 282, 108 S. W. 478.

The third assignment of error complains of the action of the court in overruling appellants’ motion for a new trial based upon the ground of newly discovered evidence. That motion was properly overruled. It did not show sufficient diligence, and was defective in other respects.

The fourth assignment relates to the question of interest, the contention being that the plaintiff was not entitled to a judgment bearing 8 per cent, interest, because it did not plead the rate of interest allowed by law in the state of Louisiana, where the notes were made payable. The petition alleged that the notes bore interest at the rate of 8 per cent, per annum; and, there being no statement of facts, we must presume that the allegation referred to was established by the proof. Upon the subject of interest, the rule of law is that, in the absence of any proof upon the subject, it will be presumed that the law of another state is the same upon that subject as the law of the state in which the case is tried. Contracts for interest, not exceeding 10 per cent, per annum are authorized by statute in this state; and, applying the rule above referred to, we hold, in the absence of proof to the contrary, that it will be presumed that the law of Louisiana is the same as that of Texas, and that it authorizes contracts for interest, not to exceed 10 per cent, per annum. Therefore appellants’ fourth, and last assignment is overruled.

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

Affirmed.
      <©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes