author: MIDDDEBROOK, J.

text:
    SLAUGHTER, County Treasurer, v. KNIGHT, County Com’r, et al.
    (No. 78.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 17, 1916.)
    1. Counties <§=>98 (1) — Officers— Liability of Official Bond — Statute.
    Under Sp. Acts 28th Leg. c. 25 (Special Road Law for San Augustine County) § 1, providing that the members of the commissioners’ court of the county shall be ex officio road commissioners of their respective districts, and that one shall, before entering upon the duties of his office, in addition to his required bond as commissioner, execute a bond of $1,000, with sureties, conditioned that he shall faithfully perform all duties required of him by law or the commissioners’ court, etc., the sureties on the official bond óf a county commissioner as such were not responsible for his illegal drawing or receiving money from the county as ex officio road commissioner.
    [Ed. Note — For other cases, see Counties, Cent. Dig. §§ 141, 142; Dec. Dig. <§=»98(1).]
    2. Counties <§=>101(6) — Officers—Liability foe Default — Pleading and Proof.
    In suit by the treasurer of San Augustine county,_ where the petition showing upon its face an action laid against a county commissioner and the sureties on his bond for the unlawful collection of moneys as such commissioner, does not warrant recovery against him individually for defaults committed by him as ex officio road commissioner under the special road law for the county (Sp. Acts 28th Leg. c. 25).
    [Ed. Note. — Eor other cases, see Counties, Cent. Dig. § 157; Dec. Dig. <§=>101(6).]
    3. Courts <§=>120 — District Courts — Jurisdictional Amount.
    The district court had no jurisdiction of the county treasurer’s suit against a county commissioner to recover $120 unlawfully collected from the county; the amount being below its jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. <§=>120.]
    4. Counties <§=>101(6) — Liability of Officer — Illegal Collection of Money — Pleading.
    In suit by the treasurer of San Augustine county against a county commissioner and his sureties to recover moneys unlawfully collected, the allegation of the petition “that said account [of parties for road work] was approved and ordered paid by the county commissioners’ court, and on the same date county warrant No. 477 was issued and delivered to said defendant in payment therefor, and that said warrant was paid on the same date by treasurer’s check No. 390,” was insufficient as failing to charge that the warrant was issued in favor of defendant commissioner, that he collected it, or that he had pecuniary interest in it.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 157; Dec. Dig. <§=>101(6).]
    5. Counties <§=>206(1) — Claims—Allowance —Conclusiveness—Void Order — Statute.
    Under Const, art. 5, § 8, providing for appeals from commissioners’ courts to district courts with such exceptions as may be provided by law, and in view of Vernon’s Sayles’ Ann. Civ. St. art. 6866,- providing for an appeal to the district court from a judgment of the commissioners’ court, assessing damages after taking land for public roads, the only provision for appeal from a judgment of the commissioners’ court to the district court, where the commissioners’ court of San Augustine county ordered and allowed to a county commissioner without legal authority amounts claimed by him connection with roadwork, such judgment of the commissioners’ court, in excess of its jurisdiction, allowing and ordering illegal warrants, was subject to collateral attack.
    [Ed. ' Note. — For other cases, see Counties, Cent. Dig. §§ 322, 323, 326, 327; Dec. Dig. 206(1).]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Suit by G. W. Slaughter, Treasurer of San Augustine County, against W. K. Knight, County Commissioner of Precinct No. 1, and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. W. Minton, of Hemphill, and T. H. Downs, of San Augustine, for appellant. Davis & Ramsey, of San Augustine, for appel-lees.
   MIDDDEBROOK, J.

This is , a suit, brought in the district court of San Augustine county, Tex., by the county treasurer, against W. K. Knight, county commissioner of precinct No. 1, said county, and the sureties on his official bond, as county commissioner of precinct No. 1 of said county, alleging unlawful collection and holding of money belonging to said county by said commissioner. The suit is brought under special road law for said county, enacted by the Twenty-Eighth Legislature.

The charges are: (1) That he collected $30 at the end of each quarter, or $120 for the year 1911, as county commissioner of said county for reviewing, etc., the public roads of said county, when under the special road law for said county, he could collect only $30 for the entire year; (2) that he collected $78 for work done on roads by Teel and Hanks, and that such collection was without warrant of law; (3) that he collected $12 for letting and receiving bridges, and such collection was without warrant of law. Plaintiff also alleged presentation by said Knight of these different claims to the commissioners’ court of said county, the approval of said claims by the commissioners’ court, issuance of warrants by said court on the county treasurer, and payment of the same by the county treasurer . of said county. The total amount charged to have been illegally collected is $120. The petition alleges, also, the election of said Knight as commissioner of precinct No. 1 for said county, his qualification as such official, and the execution of the statutory bond by him for the sum of $3,000 as such officer, with Sam Parker and John Thompson, Jr., sureties on the bond, and the approval of the bond by the commissioners’ court, and pleaded the' bond in hare ver-ba. The bond is for the faithful performance of his duties as county commissioner.

Defendant Knight answered by general and special exception and' general denial. The exceptions are to the effect; (1) That defendant is charged with liability as a road commissioner under act of the Twenty-Eighth Legislature, but the petition fails to show that he qualified as such commissioner; (2) that under the special road law for San Augustine county, county commissioners are made ex officio road commissioners, and such commissioners are required to qualify and give bond in the sum of $1,000 for faithful performance of duty and properly accounting for all moneys, tools, and property of the county coming into the possession of such ex officio road commissioner; (3) that the petition fails to show lack of authority of the commissioners’ court to pay the sums of money charged to have been illegally received; (4) that the petition fails to show wherein or how the defendant is liable to the county for the money claimed; (5) that the petition showed voluntary payment by the commissioners’ court of the money charged to have been illegally collected; (6) that the petition showed payment of the various sums by the commissioners’ court, but failed to charge the receipt of such money as a part of the defendant’s special duty, and that he violated, the conditions of his official bond to faithfully perform his duty as county commissioner, as required of him under the law.

Defendants Parker & Thompson adopted the answer of defendant Knight, so far as applicable, and urged further special exception to the effect that the petition charged them as sureties on said Knight’s bond as county commissioner, etc., and as such sureties liable for. said money, but that the Twenty-Eighth Legislature had made a special road law for San Augustine county, which was then in force, and said law created the office of road superintendent for said county, and, in the absence of appointment of such superintendent, making the county commissioner ex officio road commissioner of said county, and requiring them to give bond as such in the sum of $1,000 for faithful performance of duty and properly accounting for all property of the county coming into the possession of such ex officio road commissioner; and that such bond was another different and additional bond to the bond as required under the law, in the sum of $3,000 for a county commissioner, and that suen bond as ex officio road commissioner was made payable to the county judge of San Augustine county for the benefit of the road and bridge fund of said county; and that the petition failed to show the qualification of said Knight as such ex officio road commissioner and his execution of bond as such commissioner ; and that the petition sought to hold them liable for acts of the county commissioner, which could have been performed, under the law, only in his capacity of ex offi-cio road commissioner.

The honorable trial court sustained the exceptions to the petition, and the only assignment of error presented for our consideration is:

“The court erred in sustaining the general exceptions of the defendant to the plaintiff’s petition.”

But one proposition is presented under this assignment, which is as follows:

“The facts set out in plaintiff’s petition show a good cause of action against appellees, and the cause should have been heard on its merits.”

To support this proposition, appellant cites Special Laws of Texas, Twenty-Eighth Legislature, 1903, p. 149, §§ 14, 16.

“See. 14. Each county commissioner,_ when acting as road commissioner, shall be entitled to $2.00 per day for services actually performed; provided, that he shall not receive more than $30 per quarter. Said per diem shall be paid out of the road and bridge fund, when the account shall have been approved by the commissioners’ court, and the court shall not approve said account unless the commissioner presenting,it shall make oath that the account is just, due, and unpaid, and said account shall specify the number of days’ work actually performed by him, and that it was necessary to be done under the circumstances, and if he worked only a part of a day, the number of hours worked shall be stated, and no commissioner shall be entitled to pay as road commissioner, either for himself or deputy, while he is performing the duties of county commissioner, nor shall he receive any additional pay than that provided by this section for inspection of his road, or other road service.”
“Sec. 16. The office of county superintendent of public roads and bridges is hereby created, and the commissioners’ court of San Augustine county may at its first regular term after this law shall have taken effect appoint a county superintendent of public roads and bridges, who shall hold his office until removed by said court, in which case there shall be another appointed to fill such vacancy. Such county superintendent' of roads and bridges shall be a person of good character, executive ability, and versed in road working, and shall be a freeholder in the county of San Augustine. Such superintendent shall have charge of, shall direct the labor of county convicts when doing road duty, and all the hands placed under him, and may through the direction of the commissioners’ court employ other hands to labor on the public roads, provided, that such hand or hands shall not cost at the rate of more than $1.00 per day. * * * Such county superintendent of public roads and bridges, before entering upon the discharge of his duties, shall take the oath of office prescribed by law, and shall enter into a bond in the sum of $2,000, with two or more good and sufficient sureties, to be approved by a commissioners’ court, and * * * to be filed by the clerk of San Augustine county and his successors in office in trust for the road and bridge fund of San Augustine county, and to be conditioned for the faithful performance of all the duties of his office. * * * That when a county superintendent of public roads is appointed the county commissioners shall receive no compensation as road commissioners, except $30 for inspecting the road once a year.”

It is to be noted that section 1 of the special road law for San Augustine county provides:

“That the members of the commissioners’ court of San Augustine county shall be ex officio road commissioners of their respective districts and under the direction of the commissioners’ court shall have charge of all teams. * * * Each of said commissioners shall before entering upon the duties of his office, in addition to his regular bond as commissioner, execute a bond of $1,000 with two or more good and sufficient sureties, payable to the county judge
* * * for the use and benefit of the road and bridge fund; conditioned that he shall well and faithfully perform all the duties required of him by law, or by the commissioners’ court
* * * and that he will account for all money or property belonging to the county that may come into his possession; * . * * that county commissioners shall not be allowed any commission when a deputy road commissioner has been appointed.”

Under this law it is clear that the bondsmen of County Commissioner Knight, sued in this case, could not be responsible for any of his acts as ex officio road commissioner. It is also clear that the suit is one based upon allegations of illegal drawing or receiving money from San Augustine county as such road commissioner; for under this law if no road superintendent is appointed, the several county commissioners are made ex officio road commissioners, and are required to give another and different bond as such official, for another and different purpose, and with different conditions in said bond. This being true, it could not be argued that bondsmen for him as county commissioner could be held liable for any illegal act or drawing of money from the county by such county commissioner, when acting in matters in which the law succinctly makes him another and different officer, to wit, ex officio road commissioner.

There is an alternative plea in this case, asking for judgment against County Commissioner W. K. Knight individually, if it should be found that he and his sureties are not jointly liable. We do not believe the pleadings in this case would warrant such finding, because the petition shows upon its face a different action pleaded from the one that would have to be proved; i. e., an action laid against a county commissioner, when the facts pleaded show that all the proof that could be introduced would be as to acts of another and different officer, under a different bond, for a different amount, and providing for different conditions under the special road law for San Augustine county.

Again, if the bondsmen, Parker & Thompson, are not liable under the pleadings, as we have already determined, then it would necessarily follow that the district court was without jurisdiction to try the case and render any jhdgment against County Commissioner Knight, for in such case, the amount, $120, is below the jurisdiction of the district court.

In paragraph 9 of plaintiff’s petition, he alleges that W. K. Knight presented his account to the commissioners’ court for $28 for work on roads with Teel & Hanks, and also $40 for 20 days’ work on roads with Teel & Hanks, and again $10 fo.r 5 days’ work with Teel & Hanks, giving the date of the presentation of such claim, its allowance, the warrant number, and the payment of the warrant by the county treasurer. These amounts, added to tlie amount alleged to Jiave been drawn for three-quarters of the .year 1911 by Commissioner Knight, illegally, in absence of the suit being upon the official •bond of County Commissioner Knight, would not mate a sufficient amount to give the district court jurisdiction; but if the amount ■was sufficient, after adding the vouchers in favor of Teel & Hanks to the amount which was audited to County Commissioner Knight himself, under the pleadings of this case, the general exception was well taken, because the pleadings nowhere charge that County •Commissioner Knight had any interest in nor were the vouchers for Teel & Hanks assigned to him or that he was in any pecuniary way affected by such vouchers, or the money in payment of them. One cannot tell from reading the petition but that County Commissioner Knight drew the warrants of Teel •fe Hanks and cashed them, and delivered the money to Teel & Hanks, or that he employed Teel & Hanks to do the' work, put in an account for them, drew the warrant, and delivered it to Teel & Hanks, or drew the warrant, cashed it, and delivered the money to Teel & Hanks. The exact verbiage of the allegation as to the cashing of said warrants is as follows:

“That said account was approved and ordered paid by the said court, and on the same date, county warrant No. 477 was issued and delivered to said defendant in payment therefor, and that said warrant was paid on the same date •by treasurer’s check No. 390.”

The same allegation is made as to the different vouchers charged. Such allegation •does not charge that the warrant was issued in favor of County Commissioner Knight. It •does not charge that he collected the warrant, nor does it charge that he had any pecuniary interest in the warrant, and therefore fails to charge a cause of action against him; and' we think there was no error by the honorable trial court in sustaining the ■exception; and appellant’s assignment of error is therefore overruled.

Appellees present a counter proposition to the affect that the several amounts charged to have been illegally collected by Commissioner Knight as shown hy the petition, having been allowed and adjudicated by the commissioners’ court, and the judgment of said court regularly entered, such judgment and action of the court is res adjudicata of the subject-matter, and is not subject to collateral attack. We do not agree with this assumption of the law, but, on the contrary, hold that if the several amounts allowed by the commissioners’ court to the county commissioner were not provided for by law, and the commissioners’ court acted without legal authority in auditing and allowing said amounts, in such event the court exceeded its authority and jurisdiction, and such judgment of the court, allowing and ordering such illegal warrants, is subject to collateral attack. There is a variance in authorities on this subject; but we think this has been settled by our Supreme Court. Article 5, § 8, of the Constitution of Texas provides for appeals from commissioners’ courts to district courts, “with such exceptions and under such regulations as may be provided by law.” Article 6866, Vernon’s Sayles’ Civil Statutes, provides for appeal from a judgment of a commissioners’ court, assessing damages for taking land for public roads, to the district court. This, so far as we have been able to find, is the only provision by the Legislature for appeal from a judgment or order of the commissioners’ court to the district court. So, in the instant case, there is no appeal provided by law from the judgment of the commissioners’ court, allowing the several amounts complained of to Commissioner Knight; and, such being the case, if they were illegal claims, they could not be legally allowed by the commissioners’ court; and if they were not legally allowed, the commissioners’ court’s action was a nullity, and the order void, and therefore subject to collateral attack. McKinney v. Robinson, 84 Tex. 496, 19 S. W. 699.

The action of the trial court is affirmed.
      <§c=>For other cases see same topic and KEY-NUMBER in all Key.-Numbered Digests and Indexes


source: Caselaw Access Project

author: TALBOT,. J.

license: Public Domain

text:
    PECK v. MURPHY & BOLANZ.
    (No. 7443.)
    (Court of Civil Appeals of Texas. Dallas.
    March 4, 1916.)
    1. Execution <&wkey;333 — Return—Statute.
    An execution when issued and placed in 'the hands of an officer is returnable under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3730, in 30, 60, or 90 days, if so directed by the plaintiff or his attorney, and if no return day is specified, is returnable on the first day of the next term of the court whence it is issued.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1002-1004; Dee. Dig. <&wkey;>333.]
    2. Limitation or Actions <&wkey;22(8) — Liability eob Failure to Levy and Return Execution.
    An'action by the assignee of a judgment under Rev. St. 1911, arts. 3776, 3777, to recover the amount thereof against the sheriff and the sureties on his official bond for refusal to levy and return such execution; accruing 90 days after the issuance of the execution, was barred by the five-year statute of limitations.
    • [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 109; Dec. Dig. 22(8).]
    3. Limitation oe Actions <&wkey;lll — Suspension oe Limitation — Injunction.
    In such ease the fact of a judgment enjoining the issuance and levying of an execution under the judgment assigned to plaintiff, entered after the issuance and return day of the execution, which did not restrain the assignee from proceeding against the sheriff for refusal to levy and return execution, and which only enjoined the levy of any execution then in the hands of the sheriff or the issuance and levy of any execution subsequent to the rendition thereof, did not interrupt the statute of limitation.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 521; Dec. Dig. <g=»lll.]

      4. Limitation of Actions <&wkey;192(3) — Concealment of Cause of Action — Allegations.
    In such case allegations of an injunction against the issuance and levy of any execution under the judgment against the property of the judgment debtor, procured to mislead plaintiff to believe that he had no cause of action against the sheriff for failure to execute and. return the execution issued on the judgment, without allegation as to what diligence he had used to discover the alleged fraud, or that it could not have been discovered by the exercise of ordinary diligence in time to save a proceeding from being barred by the statute, were insufficient to show any suspension of the statute of limitation.
    [Ed. Note. — Eor other cases, see Limitation of Actions Cent. Dig. § 701; Dec. Dig. <&wkey;> 192(3).]
    5. Limitation of Actions &wkey;>100(ll) — Fraud —Discovery—Laches.
    When the fraud relied upon to prevent the running of limitation is unknown to the injured party or is concealed, lapse of time will not be laches barring relief, unless such party has failed to use reasonable diligence to discover the fraud; and fraud prevents the running of the statute only until its discovery, or until by the exercise of reasonable care it might have been discovered.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 490; Dee. Dig. <&wkey;> 100(11).]
    6. Limitation of Actions <&wkey;lll — Suspension — Injunction.
    In a statutory action by the assignee of a judgment against the former sheriff and his sureties to recover the amount of a judgment for his refusal to levy and return execution, the action of the sheriff and his sureties in obtaining a judgment, perpetually enjoining plaintiff from any proceedings against the sheriff, suspended the running of the statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 521; Dec. Dig. <©=»111.]
    7. Sheriffs and Constables <&wkey;159 — Refusal to Levy and Return — Action Against Sheriff — Pleading.
    In such proceeding where plaintiff pleaded that the sheriff in a cross-action had obtained a perpetual injunction against any statutory proceeding on his official bond to recover the amount of the judgment, without alleging anything to relieve him of the legal effect of such injunction, the sheriff’s general demurrer was properly sustained.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 372-382; Dec. Dig. <&wkey;>159.]
    8. Appeal and Error &wkey;>736 — Assignment of Error — Form.
    An assignment of error in that the court erred in excusing the parties to go to try another case, and in dismissing without any opportunity to argue or to amend was not entitled to consideration because presenting two separate and unrelated questions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dee. Dig. (§=» 736.]
    9. Appeal and Error &wkey;>742(l) — Assignments of Error — Form—Record.
    Such assignment of error was not entitled to consideration where it did not include a brief statement in substance, of the proceedings or a part thereof contained in the record sufficient to explain and support the contention made as required by rule 31 for Courts of Civil Appeals (142 S. W. xiii).
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. 4&wkey;742(l).]
    10. Appeal and Ereor <&wkey;23G(2) — Presentation of Questions in Trial Court — Request to Amend.
    If plaintiff desired to amend his motion against a sheriff before the court sustained the defendant’s demurrer thereto, he should have requested the court’s permission to amend, and upon refusal should have reserved a bill of exception thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1385; Dee. Dig. &wkey;>236(2).]
    11. Appeal and Error <&wkey;980(l) — Sheriffs and Constables <&wkey;159 — Summary Remedies — Discretion of Trial Court — Ruling on Demurrer.
    The action of the trial court in sustaining a demurrer to appellant’s motion against a sheriff and his sureties without hearing appellant’s reply argument and in refusing to allow appellant to argue his exceptions to the special answer, was largely within its discretion, and would not be reviewed, where no abuse was shown by the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3834; Dee. Dig. <&wkey;>960(l) ; Sheriffs and Constables, Cent. Dig. §§ 372-382; Dee. Dig. <&wkey;>159.]
    12. Appeal and Error <&wkey;742(l) — Assignment of Error — Statement — Rule of Court.
    An assignment of error in that the trial court stopped appellant while he was reading his amended motion for a new trial and entered an order striking out and dismissing the motion, not supported by any statement required by rule 31 for Courts of Civil Appeals (142 S. W. xiii) was not entitled to consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;>742(l).]
    13. New Trial <&wkey;154 — Striking Out — Attack on Judge.
    The trial court, while authorized to eliminate from a motion for a new trial, any irrelevant and scurrilous matter, was not authorized by reason of such matter to strike out the entire motion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 312, 313; Dee. Dig. &wkey;154.]
    14. Appeal and Error <&wkey;1072 — Harmless Error — Striking Out.
    Error in striking out and refusing to consider appellant’s motion for a new trial was harmless, where the case went off on demurrers to appellant’s petition or motion, and no motion for a new trial in the district court was essential to appellant’s right to have that court’s action reviewed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4233% ; Dec. Dig. <S&wkey;1072.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by H. D. Peck against Murphy & Bolanz, in which Herman Kruegel, assignee of the judgment for plaintiff, moved for a recovery of the amount thereof against J. Roll Johnson, as former sheriff, and the sureties on his official bond. Motion dismissed, and Kruegel appeals.
    Affirmed.
    Herman Kruegel, of Dallas, in pro. per. Jeff Word, of Dallas, for appellee.
   TALBOT,. J.

On the 28th day of April, 1914, the appellant, Herman Kruegel, filed a motion in the district court of Dallas county, Tex., against J. Roll Johnson, as former sheriff of said county, and John H. Gaston, John A. Crowdus, and C. I-I. Alexander, as sureties on the official bond of the said Johnson as such sheriff, to recover, under articles 3776 and 3777 of the Revised Statutes of 1911, $1,135.80, the amount of judgment rendered in the above-entitled cause in favor of H. D. Peek, and against Murphy & Bolanz, a firm composed of J. P. Murphy and Charles E. Bolanz. On May 21, 1914, the appellant filed an amended motion on which the case went to trial. This amended motion alleges, in substance, so far as is material to state, that the said J. Roll Johnson was on November 4, 1902, duly elected sheriff of Dallas county, Tex.; that he duly qualified as such sheriff by taking the oath of office and executing bond as required by law in the sum of $10,-000, with the said John H. Gaston, John A. Crowdus, and C. I-I. Alexander as sureties thereon; that on October 22, 1895, there was duly rendered in the Forty-Eourth district court of Dallas county in the said cause of I-I. D. Peck v. Murphy & Bolanz, a judgment against J. P. Murphy, Charles E. Bolanz, and said Murphy & Bolanz, for the sum of $1,-135.80, with costs and interest from said date; that no appeal had ever been taken from said judgment, that it had not been set aside or canceled, had never been paid or otherwise satisfied or released, and that H. D. Peek caused the first execution to be issued thereon in July, 1896; that in July, 1901, the said H. D. Peck for a valuable consideration assigned and transferred said judgment to the appellant herein, Herman Kruegel, and that said Kruegel is now and has been, ever since said assignment and transfer, the legal owner and holder of said judgment; that he caused said judgment to be abstracted and recorded in the Dallas county judgment record and had thereafter the second execution issued thereon and placed in the hands of the said J. Roll Johnson, one of the appellees herein, for levy upon and sale of property belonging to the judgment debtors; that said Johnson under an unlawful and corrupt conspiracy and collusion with the judgment debtors willfully and corruptly returned said second execution without making the levy thereon, marked, “no property found,” when said debtors were solvent with sufficient property in sight subject to execution sale. The said motion further alleges that thereafter, on February 9, 1903, appellant, Kruegel, caused the third execution to be issued on said judgment and delivered the same to the said J. Roll Johnson, as sheriff of Dallas county, Tex., with instructions to levy the same upon a vacant lot, No. 3, block 4, Oakland Cemetery near Dallas, belonging to Chas; F. Bolanz, one of the judgment debtors, and subject to levy and execution sale; but that said Johnson, under and in furtherance of the aforesaid collusion and conspiracy, without legal cause and contrary to appellant’s rights, with fraudulent and corrupt intent, willfully and corruptly failed and refused to make a levy on said lot pointed out to him, or on any other property belonging to either of said judgment debtors, when he could have done so and made the money; that said Johnson under and in furtherance of the aforesaid collusion and conspiracy, without legal excuse or ground for not making the levy as aforesaid, and without legal right, failed to make return of said third execution to the clerk of the court that issued it. The prayer of the petition is, in substance, that the appellees be required to answer and show cause why they should not be ordered to pay to relator (appellant) the full amount of the said judgment with interest and costs, and that upon final hearing appellant, Kruegel, have judg-mefit against said appellees for the amount of said judgment, interest, and costs. The ap-pellees, on May 13,1914, answered the motion of the said Kruegel by general and special demurrers and special answer. The general demurrer is in the usual form, asserting that appellant’s motion showed no cause of action, and prayed judgment.

The first special demurrer is to the effect that appellant’s motion or petition shows on its face that his cause of action, if any he ever had, is barred by the statutes of limitation.

In their answer on the facts they plead specially the statute of limitation in bar of appellant’s right to recover; they deny that said judgment rendered against said Murphy & Bolanz, in favor of said Peck, was a valid subsisting judgment in force and effect in February, 1903, and allege that on September 8, 1898, said Murphy and said Bolanz filed their petition for adjudication in bankruptcy, in the United States District Court, and were adjudged bankrupts; that said Peek judgment was scheduled by them respectively as a liability against them, and that Peck proved up his said judgment against them in said court, and the same was allowed and established by said court, as a provable claim against them in favor of said Peck. That on June 8, 1899, said Murphy and said Bolanz were duly discharged of all their said debts by said court, and said Peck judgment was thereby discharged against them. They further aver, among other things we deem unnecessary to state, that on the 29th of December, 1903, said Bolanz and his wife and said Murphy filed in the Forty-Fourth district court of Dallas county, their petition against said Kruegel and said Peck, and against said Johnson, as sheriff of Dallas county, said cause being styled and numbered on the docket of said court, “Chas. F. Bolanz, et al. v. Herman Kruegel et al., No. 23151,” in which suit said plaintiffs alleged, among other things, that in September, 1898, said J. P. Murphy and said Chas. F. Bolanz each, were on their own petition, adjudged bankrupt by the United States District Court at Dallas; and that on June 8, 1899, they each received from said court their discharges in bankruptcy, discharging each of them from all debts and claims against them which existed on September 8,1898. That in said bankruptcy proceedings, said judgment of said Peck was scheduled by them as part of their liabilities, and same was duly proved up by said Peek against them and allowed by the referee in bankruptcy, that the same was a provable claim against them in bankruptcy, etc.; and that they and each of them, and said firm of Murphy.& Bolanz, had been released and discharged from all liability on said judgment thereby. That on November 23, 1904, said Forty-Fourth district court did render a judgment in said case, and among other matters did adjudge and decree that said J. P. Murphy and said Chas. F. Bolanz and said Murphy & Bolanz were discharged by their said bankruptcy from liability on said judgment of said Peek.

The appellant, Kruegel, by supplemental motion filed September 4, 1914, demurred generally and specially to appellee’s answers, and in reply thereto admitted that J. P. Murphy and Chas. F. Bolanz each received a general discharge in bankruptcy from the federal court at Dallas, sitting in bankruptcy on or about the dates mentioned in appellees’ answer, but denied that the firm of Murphy & Bolanz, ever-received any such discharge. He further denied that the discharge received by the said J. P. Murphy and Chas. F. Bolanz released them or either of them, or the firm of Murphy & Bolanz, from liability on the Peck judgment. He alleges that the discharge the said J. P. Murphy and Charles F. Bolanz received released them only from such debts and liabilities as are not specially excepted by law from the operation of a discharge in bankruptcy, and that the Peck judgment is such a debt as is specially excepted by law from such discharge; “that said judgment claim was feloniously and corruptly created by the bankrupts J. P. Murphy and Charles F. Bolanz, on felonish fraud, having on or about July, 1893, as a firm of investment bankers, styled Murphy & Bolanz, in a fiduciary capacity feloniously misappropriated to themselves and embezzled said H. D. Peck’s cash money held by them and to be by them loaned and invested in real estate loans and security for said Peek’s sole use and benefit, on commission to be paid by the borrower of the money. And all under false and pretended temporary insolvency and a premeditated, prearranged and fraudulent business failure and deed of assignment dated July 25,1893, to hinder, delay, deceive, cheat, and swindle their over 400 patrons,” etc. Appellant, Kruegel, also admits the rendition of the judgment of the Forty-Fourth district court, rendered November 23, 1904, in case No. 23151 as pleaded by defendants adjudging that they were discharged in bankruptcy from said Peck judgment, but avers in substance that said judgment was null and void: First, because the federal courts have exclusive jurisdiction over all bankruptcy matters; second, because at the time of the rendition of said judgment in ease No. 23151, Judge Morgan was judge of said court and presided at the trial and judgment, and he, with a number of others, were creditors of said Murphy & Bolanz, and that he in a fraudulent arrangement with them was paid In full while Peck and the others got nothing and that he was thus disqualified to preside and that appellant protested to his presiding, etc.; third, because an inspection of the said judgment shows that appellant and the clerk of said court, H. W. Jones, and his successors in office, were enjoined and restrained from issuing or causing to be issued any other and further exeeutioil on said judgment, and said sheriff Johnson and his successors in office were enjoined from levying any execution on any property of said defendants, and that said Jones was therefore disqualified from performing any clerical duties in said suit, because he must have been a party to the suit. And therefore everything connected with said judgment was and is void.

He also further pleaded, as ground why limitation did not run against him, that by said judgment in No. 23151, he and the district clerk and his successors were perpetually enjoined from having issued and from issuing any execution on said Peek judgment and said Johnson, as sheriff and his successors were by said judgment perpetually enjoined from levying any execution issued thereon, “and thereby attempted to invalidate, repudiate, and confiscate said judgment and to show to the world that relator (Kruegel) had no such valid judgment as he claimed, and consequently no cause of action, and thereby concealed from Kruegel his cause of action or the fact that he had one, and misled him to believe that he had no cause of action against respondent Johnson, as sheriff; whether he was misled, or believed it, or not, it was sufficient if he could have thereby been misled to believe it;” and fraud and concealment of fraud and of cause of action, as well as injunction, suspends the running of the statute of limitation until the injunction is dissolved.

Appellant Kruegel further pleaded, in substance, that appellees, in November, 1905, by a cross-action filed in ease No. 12634, Herman Kruegel v. Murphy & Bolanz et al., then pending in the Fourteenth district court of Dallas county, in a motion for penalty .proceeding identical to this, recovered a judgment perpetually enjoining appellant from bringing, instigating, and prosecuting any more suits, motions, or proceedings against these appellees for the failure of appellee Johnson to execute and return the execution involved in this suit, and that by reason of said judgment of the Forty-Fourth district court of November 23, 1904, in case No. 23151, and of said judgment of the Fourteenth district court in case No. 12634, defendants are estopped to plead limitation, and he pleads said judgments as a bar to the running of the statute of limitations.

On October 29, 1914, the case was called for trial, and the appellees’ general and special exceptions to appellant’s motion were presented and sustained, and said motion dismissed. Judgment was thereupon rendered that appellant, Kruegel, take nothing by his suit, and that appellees recover their costs. From this judgment, Kruegel appealed.

There are numerous assignments of error, but we shall not state and discuss them in detail. Neither of them, we think, is briefed as required by the rules prescribed by the Supreme Court for the preparation of eases for submission in this court. The principal questions arising on the appeal are: (1) Do appellant’s pleadings show upon their face that the cause of action alleged was barred by the statute of limitation at the time the original motion of appellant was filed? (2) Were said pleadings obnoxious to a general demurrer on the ground that they showed no cause of action against appellees which appellant was entitled to maintain? The second of these questions at least is fundamental.

According to the allegations of appellant’s amended motion the execution which the appellee Johnson, as sheriff of Dallas county, is charged with having failed to levy and return was issued on the 3d day of February, 1903, and the original motion charging him with a dereliction of duty in failing to do so was not filed until April 28, 1914. The period of limitation prescribed by our statute in a case of this character is 5 years. And an execution when issued and placed in the hands of an oificer is returnable to the first day of the next term of the court, or in 30, 60, or 90 days, if so directed by the plaintiff, his agent or attorney. Vernon’s Sayles’ Texas Statute, art. 3730. If no return day is specified in the execution, it is returnable on the first day of the next term of the court from whence it is issued. Tillman v. McDonough, 2 Willson, Cas. Civ. Ct. App. § 52. The record does not disclose whether or not a return day was specified in the execution in question, but whether there was or was not is immaterial here. The longest time that could lawfully intervene between the issuance of appellant’s execution and the date when it should be returned was 90 days, and considering that appellant’s alleged cause of action accrued 90 days after the issuance of the execution, and that limitation began to run from that date, more than 10 years had elapsed before the filing of his motion herein, and any right of action he may have had by reason of the failure of appellee Johnson to execute and return said execution was barred, unless the statute of limitation did not run because of some one or all of the matters alleged in avoidance of appellee’s plea thereof.

The matters alleged, as reasons why the statute of limitation did not run and could not be invoked as a bar to appellant’s right of recovery, are: (1) That by a judgment rendered in the district court of Dallas county on November 23. 1904, in cause No. 23151, styled Charles F. Bolanz et al. v. Herman Kruegel et al., it was adjudged that J. P. Murphy and Charles F. Bolanz and the firm of Murphy & Bolanz were, by their discharges in bankruptcy, released and discharged from liability on the Peck judgment, and the issuance and levy of any execution under said judgment on the property of the said Murphy & Bolanz, or either of them, perpetually enjoined; (2) that an attempt was made by the procurement of said judgment to thereby invalidate, repudiate, and confiscate the Peck judgment, and to show that appellant, Kruegel, had no valid judgment against Murphy & Bolanz, as claimed by him, and consequently no cause of action against appellee Johnson, and' thereby concealed from appellant, Kruegel, his cause of action, of the fact that he had one and misled him to believe that he had no cause of action against appellee Johnson as sheriff, and, whether he was misled, or believed it, or not, it was sufficient if he could have thereby been misled to believe it; and (3) that the appellees herein, on a cross-bill filed in cause No. 12634, styled Herman Kruegel v. Murphy & Bolanz et al., pending in the Fourteenth district court of Dallas county, a proceeding identical with the present one, recovered a judgment perpetually enjoining appellant from bringing and prosecuting any more suits, motions, or proceedings against them on the alleged cause of action in this suit. It is clear, we think, that neither the first nor the second foregoing matter alleged by the appellant was sufficient to prevent the operation and bar of the statute of limitation. The judgment enjoining the issuance and levy of execution under the Peck judgment was rendered, according to appellant’s pleadings, long after the issuance and return day of the execution, which he charges appellee Johnson refused to levy and return, and in no sense restrained or attempted to restrain the appellant from proceeding against the said Johnson, under the articles of the statute upon which the present action is based, for the alleged failure on his part to levy and return said execution. Said judgment, according to appellant’s allegations, had no other effect than to enjoin the levy of any execution which may have been in the hands of the appellee Johnson at the date of its rendition, and the issuance and levy of any execution subsequent to the rendition thereof. It did not therefore interrupt the running of the statute of limitation and authorize the maintenance of this proceeding.

The allegations to the effect that said judgment was procured for the purpose and with the intent to show that appellant, Kruegel, had no valid judgment against Murphy & Bolanz and consequently no cause of action against appellee Johnson, and thereby concealed from appellant his cause of action, or the fact that he had one and misled him to believe that he had no cause of action against appellee, etc., are insufficient to show any legal reason why the statute of limitation did not commence and continue to run against appellant’s alleged cause of action. If it can be said that the intent charged, and the manner of the alleged concealment of appellant’s cause of action from him and its effect to mislead him as claimed, would, in any event, under requisite or necessary allegations, be sufficient to prevent the running of the statute of limitation until it was, or by the use of reasonable diligence might have been, discovered by him, still we think appellant has failed to make such allegations. It is a well-established rule of law that when the fraud relied upon to prevent the running of limitation is unknown to the injured party, or is concealed, lapse of time will not be laches which bars relief, unless such party has failed to use reasonable diligence to discover the fraud. But it is equally well settled in this state that fraud prevents the running of the statute of limitations only until the fraud is discovered, or until by the exercise of reasonable diligence it might have been discovered. Munson v. Hallowell, 26 Tex. 475, 84 Am. Dec. 582; Anding v. Perkins, 29 Tex. 348; Bremond v. McLean, 45 Tex. 10; Bass v. James, 83 Tex. 110, 18 S. W. 336; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48. It is not averred by the appellant when he discovered the alleged purpose and fraud of the appellee Johnson and others, in obtaining the judgment enjoining the issuance and levy of execution under the Peck judgment, or when he realized or discovered that he had been misled thereby to believe he had no cause of action against the said Johnson for failing to execute and return the execution issued on said Peck judgment in’ February, 1903. Nor does he allege what diligence he used to discover the alleged fraud or that it could not have been discovered by the exercise of reasonable diligence in time to have enabled him to institute this proceeding, before the bar of statute of limitation. His allegations of fraud and the alleged effect of the judgment restraining the issuance and levy of execution on the Peck judgment were not therefore sufficient to show that his alleged cause of action was not barred by the statute of limitation, and consequently that his motion did not disclose on its face that it was subject to appellee’s plea of limitation by demurrer.

We think, however, that the third matter mentioned above and alleged by the appellant ■ in his supplemental motion was sufficient to show that appellee’s special demurrer, asserting that it appeared from appellant’s amended motion filed herein that his cause of action was barred by limitations, was not well taken. As has been seen, the matter alleged and here referred to was that the appellees had obtained, by.a cross-action filed in the suit of the appellant, Herman Kruegel v. Murphy & Bolanz, No. 12634, then pending in the district court of Dallas county, Tex., a judgment perpetually enjoining and restraining him from thereafter bringing or prosecuting suit, motion, or proceeding against appellee Johnson for failing or refusing to levy and return the execution issued on the Peck judgment on the 3d day of February, 1903. The failure to levy that execution as directed by appellant and to make return thereof is the basis of the present proceeding, and the judgment rendered in the cross-action mentioned enjoining appellant from thereafter bringing or prosecuting any suit or proceeding against appellee Johnson for such failure or refusal was according to appellant’s allegations, obtained in November, 1905. This was long before the time had expired under the statute of limitations, within which appellant was authorized to file a motion against ap-pellee Johnson, under the articles of the statute hereinbefore referred to, to recover the penalty denounced in said statutes for the alleged failure to execute and return his said execution. He was entitled, so far as the question of limitations is concerned, to the full period of 5 years from the date his alleged cause of action accrued to institute a proceeding to recover said penalty, and as he was deprived of the greater portion of that time by the judgment restraining him from bringing and prosecuting such a proceeding, the running of limitation was thereby suspended, and his right, if any he otherwise had to maintain the same, was not barred.

But the trial court, in addition to holding that appellant’s motion showed upon its face that his cause of action was barred by the statute of limitations, held, in effect, in sustaining appellee’s general demurrer, that appellant’s pleadings were insufficient to show a cause of action, which he was entitled to maintain, and this ruling gives rise to the second principal question stated in the former part of this • opinion, which we are called upon to decide. The trial court, as shown by conclusions of law filed, held that if appellant “was enjoined, as he pleads he was, then he has had no right to bring this action.” Appellant complains of this holding of the court and says, in effect, and correctly so we think, that the same had reference to his plea that he had been enjoined from bringing any suit or proceeding based on his alleged cause of action. In this rule of the court we think there was no error. The appellant pleaded, as we have seen, in substance, that the appellee Johnson in November, 1905, in a cross-action filed in an identical proceeding with the present one then pending in the Fourteenth district court of Dallas county, Tex., and styled Herman Kruegel v. Murphy & Bolanz et al., No. 12634, recovered a judgment in said court against appellant perpetually enjoining and restraining him from bringing and prosecuting any more suits, motions, or proceedings against appellee and the sureties on his official bond to recover, under articles 3776 and 3777 of the statute, the amount of the Peck judgment mentioned above for the failure on the part of the said Johnson to levy and return, as directed, the execution issued and placed in his hands under said judgment on February 3, 1903, and nothing is alleged to relieve appellant of the legal effect of said injunctive judgment. So far as the pleadings show said judgment restraining appellant from bringing and prosecuting a proceeding of the character now before this court against appellee and his sureties has never been appealed from or set aside, and is now, and was at the time this proceeding was instituted, in full force, and binding on appellant. It thus appearing by appellant’s own pleadings that he had been enjoined by a judgment of a court of competent jurisdiction from bringing and prosecuting this action or proceeding, and it not appearing by appropriate allegations that said judgment had been appealed from or set aside and annulled, the general demurrer of ap-pellees was by the trial court properly sustained.

It is assigned that:

“The court erred when respondent’s counsel had closed Ms argument in support of respondent’s [appellee’s] general and special demurrers to relator’s [appellant’s] motion for penalty, and relator was about to make counter argument thereto and just begun, and as well argument in support of Ms own general and special demurrers to respondent’s special answers, and then excusing the jury which had been impaneled and the parties in the case until next morning at 9 o’clock a. m. to go into trial of another case, and then next morning at 9 o’clock a. m., without giving relator an opportunity to be heard or say or argue anything in opposition to respondent’s argument and demurrers and as well in support of his own demurrers to respondent’s special answers, and in dismissing the case or motion thereon, and without even giving relator an opportunity to amend if he could amend Ms pleading if insufficient or defective in law.”

This assignment of error is not entitled to Consideration, because: (1) It presents two separate and unrelated questions; and (2) because there is not subjoined thereto, or to either of the propositions urged thereunder, a brief statement, in substance of such proceedings, or part thereof, contained in the record as is necessary and sufficient to explain and support the contention made, as is required by rule 31 (142 S. W. xiii), prescribed by the Supreme Court in regard to the briefing of cases for submission in this court. The substance of the bill of exceptions reserved to the action of the Court here complained of, showing that such action was taken, should have been stated in support of the assignment and propositions thereunder, at least the page of the transcript where such a bill could be found should have been stated. Neither of these things was done. Indeed, there is no statement whatever in support of the propositions contended for. Appellant contents himself by simply stating that “none seems necessary.”

But, however, if we were disposed to consider the assignment of error, we are not prepared to say the same points out reversible error. We have discovered in the transcript, without the aid the rules require appellant to give us by his brief, a bill of exception purporting to have been taken and reserved to the action of the Court here complained of; but neither the assignment of .error nor the said bill of exceptions states that appellant asked leave before or after the court sustained appellee’s exceptions to his motion and dismissed his case t'o amend his pleadings or that appellant desired to do so. If appellant desired to amend his motion after the court sustained appellee’s demurrers thereto,,, he should have requested permission of the court to do so, and upon refusal of such request he should have reserved a bill of exception to such refusal and made it appear affirmatively thereby that such request had been made and refused. This the record fails to show he did.

In reference to the complaint that the court sustained appellee’s demurrers to appellant’s m'otion without hearing a reply argument by appellant and refused to allow appellant to argue his exceptions to the special answer of appellees, it is sufficient to say that, such action on the part of the court was largely discretionary, and affords no sufficient ground for a reversal Of the case, unless it is made clearly to appear that he abused his discretion, to the prejudice of appellant. No such abuse appears by the record sent to this court. On the contrary, we think it appears that appellant has not been injured by the ruling of the court in these particulars. This is for the reason that appellant’s pleadings showed, and the trial court so held, as hereinbefore pointed out, that appellees had procured in November, 1905, in a court of competent jurisdiction, a judgment which had not been set aside or annulled, enjoining and restraining appellant from bringing and prosecuting any suit or proceeding against appellee for his failure to execute and return the execution issued February 3, 1903, which alleged failure is the basis of this action.

The appellant further asserts that the trial court stopped him while he was reading his amended motion for a new trial herein and caused an order to be entered of rec'ord striking out and dismissing said motion, as a file paper in this suit. This action of the court is complained of and made the basis of appellant’s fourth assignment of error. This assignment, however, like the one just discussed, is not entitled to consideration for the reason that neither it nor the propositions advanced under it is supported by the statement required by rule 31 promulgated by the Supreme Court for briefing cases for submission in the Courts of Civil Appeals. Neither the order claimed to have been entered dismissing the motion for a new trial nor a bill of exceptions reserved to the action of the court is copied or its substance stated in the brief in support of the assignment. Nor are we referred to the page of the transcript where such an order or bill of exceptions may be found. In fact no statement whatever in support of the assignment or any proposition under it is made.

We find, however, in going through the transcript, what purports to be an order dismissing appellant’s motion for a new trial and what purports to be a bill of exceptions taken to such action of the court. In explanation of this bill of exceptions the trial court says, in effect, that appellant’s said motion was dismissed because of appellant’s cruel and wanton attack therein on Judge Morgan, formerly judge of the Forty-Fourth district court of Dallas county. If, however, we were disposed to waive the. defective briefing of the assignment of error, we would not feel authorized to reverse the case because of the matter therein complained of, notwithstanding the ctourt may have erred in striking out appellant’s motion for a new trial. While the court was probably authorized to require the appellant to eliminate from said motion any irrelevant and scurrilous matter, he was not, we are inclined to think, authorized because thereof to strike out the entire motion. But if the court was not authorized to strike out and refuse to consider appellant’s m'otion for a new trial, and if the ruling was properly presented by brief for review in this court, the action does not authorize a reversal of the case. The case went off on demurrers to appellant’s petition or m'otion, and no motion for a new trial in the district court was essential to appellant’s right to have that court’s action reviewed on appeal. This being true he has suffered no material injury by the dismissal of said motion by the trial court, and that action can furnish no sufficient reason for a reversal.

The assignments of error that have not been mentioned are not entitled to be considered, because not briefed in accordance with the rules, or have been disposed of against appellant by what we have already said, or disclose no reversible error.

The judgment of the court below is affirmed.
      fesjEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=s>E'or other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    W. T. RAWLEIGH MEDICAL CO. v. FITZPATRICK et al.
    (No. 5579.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 16, 1916.
    Rehearing Denied March 22, 1916.)
    1. Monopolies &wkey;>17(2) — Contract in Re-stbaint op Trade — Statute.
    A contract, whereby defendant agreed to buy only from a medical company, and that the goods so purchased should be resold by him at definite prices, fixed by the medical company, and that he should have no other business or employment, was violative of Rev. St. 1911, arts. 7796, 7798, the Texas Anti-Trust Act, as in restraint of trade, and illegal and void under article 7799.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. @=17(2).]
    2. Commerce @=40(1) — State Anti-Trust Act — Merchandise in Interstate Commerce.
    Where defendant, a resident of Texas, agreed with an Illinois medical company that it should sell him goods at wholesale prices, to be shipped to him in Texas, he further agreeing to buy only from the company, to resell at prices fixed by it, and to have no other business, such contract, violative of the Texas AntiTrust Act (Rev. St. 1911, arts. 7796, 7798), was not enforceable as touching merchandise in interstate commerce, because the recited agreements relative to the sale at fixed prices, etc., operative after title to the goods passed to defendant upon their arrival in Texas, rendered the whole contract illegal and void.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. @=40(1).]
    Error from District Court, Coleman County ; John W. Goodwin, Judge.
    Suit by the W. T. Rawleigh Medical Company against R. P.* Fitzpatrick and others. To review a judgment for defendants, plaintiff brings error.
    Affirmed.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for plaintiff in error. Oritz & Woodward, of Coleman, for defendants in error.

      Application for writ of error pending in Supreme Court.

   RICE, J.

This suit was brought by the W. T. Rawleigh Medical Company, a private corporation of Freeport, Ill., plaintiff in error, against R. P. Fitzpatrick, J. E. Seymour, and C. L. Grable, defendants in error, to recover $676.26, a balance claimed to be due it by the former for merchandise sold by it to him, payment of which was guaranteed by said Seymour and Grable. It was alleged by plaintiff in error that on the 23d of November, 1909, it entered into a written contract with said R. P. Fitzpatrick, the performance of which was guaranteed by said Seymour and Grable, whereby, in consideration that plaintiff in error would sell to him on credit, at wholesale prices, to be sold by him at retail, certain merchandise therein mentioned, to be shipped to him from Free-port, Ill., to Loraine, Tex., he bound himself to pay for said merchandise at certain stipulated times, and, among other things, agreed to sell no other goods than those sold him by said company, and to sell all such goods at regular retail prices to be indicated by said company, and to have no other business or employment; which contract was subject to acceptance by plaintiff in error at its home office, and to continue in force only so •long as his said account and the amount of ■his purchases were satisfactory to said company. Defendants in error, among other things, interposed a general demurrer to plaintiff’s petition, on the ground that said contract above set out, upon which the suit is based, is violative of the anti-trust statutes of this state, which demurrer was sustained, and, plaintiff refusing to amend, the suit was dismissed, from which judgment this writ of error is sued out.

Plaintiff in error contends that the action of the court in sustaining said demurrer was incorrect and ought not to be upheld, for the reason that it appeared from the petition that the sale and purchase of the goods in ■question was a transaction involving interstate commerce and therefore did not come within the purview of the anti-trust statutes of this state. So, the questions presented for our consideration are: (1) Whether or not the contract set out, and under which the goods were purchased, is in violation of our anti-trust laws; and (2) if so, can such statutes be urged as a defense to the payment of the account, since the same was based upon and grew out of an interstate commerce transaction?

We think there can be no doubt but that said contract was in violation of articles 7796 and 7798 of the Revised Statutes of 1911, and, if so, was illegal and void, as declared by article 7799 of said statutes, because defendant Eitzpatriek thereby bound himself to buy from no one but plaintiff in error, and that said goods so purchased should be resold by him at definite prices, fixed by plaintiff in error, and further agreed to have no other business or employment. These provisions of said contract were in restraint of trade and rendered the contract illegal and void. Wood v. Texas Ice & Cold Storage Co., 171 S. W. 497; F. R. Watkins Medical Co. v. Johnson, 162 S. W. 394. And see, also, Armstrong v. Rawleigh Medical Co., 178 S. W. 583, where a contract for the sale of goods almost exactly similar to the one under consideration was held to be in violation of our anti-trust statutes. See, also, Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; T. & P. Coal Co. v. Lawson, 89 Tex. 394, 32 S. W. 871, 34 S. W. 919; Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S. W. 27.

But it is further contended on the part of plaintiff in error that, notwithstanding said contract may be violative of the antitrust statutes, yet said statutes constitute no defense here, because the transaction involves interstate commerce, and cite in support of this contention, among others, the following cases: Albertype Co. v. Feist, 102 Tex. 219, 114 S. W. 791; McCall v. Stiff Dry Goods Co., 142 S. W. 659; Stein Double Cushion Tire Co. v. Fulton Co., 159 S. W. 1014; Eclipse Paint Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S. W. 532; Maroney Hardware Co. v. Goodwin Pottery Co., 120 S. W. 1088; Miller v. Goodman, 91 Tex. 41, 40 S. W. 718.

The majority of the above cases have been ably reviewed and distinguished by Mr. Justice Taliaferro in Watkins Medical Co. v. Johnson, supra, from the case of Fuqua v. Pabst Brewing Co., supra, and shown not to be in conflict therewith. In the latter case, notwithstanding the fact that it was a suit to recover for beer sold by a Wisconsin brewer to a Texas dealer, and came within the protection of the commerce clause of the federal Constitution, yet the court held that the contract under which it was to be sold, being in contravention of our antitrust laws, would prevent the enforcement of the claim sued upon, saying, among other things:

“It is clear then, that when any shipment of beer was delivered under the contract by the company to Kingsbury at Amarillo, the title thereby vesting in him, as we have seen above, the same ceased to be an article of interstate commerce, and, in so far as the contract dealt with it thereafter-, it was not a contract with reference to an article of interstate commerce, and the clause of the Constitution above quoted does not prevent said statute from invalidating same. The case then comes to this: The parties contracted for the sale and purchase of beer to be transported from Milwaukee to Amarillo, to be there delivered to Kingsbury and become his property. So far the transaction was interstate commerce and not subject to state regulation without the consent of Congress, nor did the statute undertake in any way to regulate or prohibit same. But the parties by the same contract voluntarily went further, and so dealt with the subject, after it had ceased to be an article of interstate commerce, as to create a ‘trust,’ as above shown, in violation of the statute. A portion of the stipulations of the contract being lawful and others unlawful, the taint of illegality affects and destroys the whole. Edwards County v. Jennings, 89 Tex. 618, 35 S. W. 1053. The commerce clause of the Constitution was not designed to protect the contractual rights of a person who thus voluntarily intermingles an otherwise legal interstate commerce transaction with an entirely local and unlawful one. We are therefore of the opinion that, independent of congressional action, the contract sued upon was void.”

The same doctrine was reannounced and followed in Watkins Medical Co. v. Johnson, supra, and in which a writ of error was denied October -, 1915, by our Supreme Court (170 S. W. xviii), and is therefore the latest expression of that tribunal upon the subject. See, also, Armstrong v. Rawleigh Medical Co., supra.

We think the facts of the present case bring it clearly within the doctrine announe-'ed in the three last cases just mentioned, and must control, notwithstanding the contrary views expressed in McCall v. Stiff Dry Goods Co., supra; for .which reason we hold that the demurrer was properly sustained.

While it is true that that portion of the contract providing for the sale and shipment of the merchandise constituted interstate commerce, and therefore could not have been affected by the anti-trust statutes of this state, yet, by reason of the fact that under the agreement the title to the goods passed to Fitzpatrick upon their arrival in Tesas, it must be held that the laws of this state thereafter control his connection therewith; and, if the provisions of said contract above recited were in contravention of our statutes upon the subject, then the whole contract was thereby rendered illegal and void, and no recovery could be predicated thereon, because, if a portion of the contract is illegal and void, the whole must fall. See Burck v. Abbott, 22 Tex. Civ. App. 219, 51 S. W. 314, where it is said:

“That a part of the consideration for the contract was lawful can make no difference. The part of the consideration which is illegal taints the whole, and the courts will not expend their time in the inquiry as to what part of it was lawful. Nor does it vary the rule that appellants who invoke the doctrine are equally guilty, and can thus by their unlawful acts obtain an unconscionable advantage. The policy of the law is to discountenance the making of such contract, and it is thought that this can be done in no more effective way than by refusal to enforce them, and this is done without regard to the effect it may have upon the parties to the prohibited transaction.”

In Wegner v. Biering, 65 Tex. 509, 510, the court says:

“It is obvious that when there is ample valid consideration to support the promise sued on, yet, if to the abundance of valid consideration there has been added a leaven of what is illegal, the whole contract is tainted. Story on Cont. § 583: Bishop on Cont. § 471; Pollock on Cont. 318.”

In McNeese v. Carver, 89 S. W. 432, the court says:

“If any part of a consideration is illegal, the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal.”

Believing that the court did not err in sustaining the demurrer its judgment is in all things affirmed.

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


author: CARL, J.

text:
    COPPARD v. FARMERS’ & MERCHANTS’ STATE BANK.
    (No. 5622.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 1, 1916.
    Rehearing Denied April 5, 1916.)
    1. Corporations <&wkey;487(l) — Powers—Ultra Vires Acts — Validity.
    It is not every ultra vires act of a corporation that is void.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893, 1898; Dec. Dig. <&wkey;>487(l).]
    2. Corporations <&wkey;426(l) — Acts op Agents —Ratification .
    An act, ultra vires, though not void, may be ratified either by acquiescence of those charged with management of the corporation or by affirmative ratification.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1596, 1702; Dec. Dig. &wkey;426(l).J
    3. Corporations <&wkey;462 — Powers — Mercantile Corporations. ;
    The mere fact that the buyer of notes was a mercantile corporation would not make ultra vires its act in buying such notes from which it might largely profit.
    [Ed. Note. — For other cases, see Corporations. Cent. Dig. §§ 1816-1819; Dec. Dig. &wkey;462.] ■
    4. Corporations <&wkey;426(10) — Acts op Officers — Liability.
    Where money obtained from a loan from the plaintiff bank was placed to the. credit of the defendant corporation and credit entered in its passbook, and used to purchase collateral notes for the benefit of the corporation, it could not escape liability on the loan on the ground that it was the independent act of an officer.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1702, 1704, 1714; Dec. Dig. &wkey; 426(10).]
    5. Corporations <&wkey;414(2) — Acts of Officers — Liability.
    Where a note was executed by the president of the defendant corporation within the apparent scope of his authority, it was immaterial on the liability of the corporation how the money was to be used.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1641; Dec. Dig. <&wkey;>414(2).]
    6. Corporations (&wkey;370(3) — Powers — Implied Powers.
    A corporation is not restricted to the actual wording of its charter, but has implied powers reasonably necessary or usually incident to its business.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. &wkey;370(3).J
    Appeal from District Court, Karnes County ; F. G. Chambliss, Judge.
    Action by M. Coppard, as trustee of the J. L. Bain Mercantile Company, bankrupt, against the Farmers’ & Merchants’ State Bank. Judgment of nonsuit, and plaintiff appeals.
    Affirmed.
    Jas. D. Crenshaw, of San Antonio, for appellant. J. L. Browne and A. J. Parker, both of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   CARL, J.

Appellant, as trustee of the J. L. Bain Mercantile Company, bankrupt, sued the Farmers’ & Merchants’ State Bank for the conversion of certain assets of the bankrupt estate of the J. L. Bain Mercantile Company. The plaintiff’s petition alleges that J. L. Bain Mercantile Company became bankrupt about April 10, 1913, and plaintiff was duly appointed and qualified as trustee of said estate; that prior thereto various notes and accounts belonging to the bankrupt company were in the hands of the defendant bánk for the purpose of collection, the proceeds to be placed to the credit of the Bain Company; that said notes and accounts amounted to about $3,000; and it is charged that same have been converted by the bank.

The defendant bank, among other things, answered that about October 1, 1912, the J. B. Bain Company was indebted to it and had placed notes and accounts with it to secure such indebtedness, such collateral amounting to about $8,000. The note which was so secured was for $3,193.80, dated October 1, 1912, and due November 1,1912, with interest at 10 per cent, per annum after maturity, and providing for the payment of 10 per cent, of the principal and interest as attorney’s fees, if not paid when due, etc!, payable to the order of the Farmers’ & Merchants’ State Bank and signed by J. B. Bain Mercantile Company, J. T. Cook, and W. M. Mc-Cammon. It was further alleged that after the maturity of said note it was placed with an attorney for collection, and thereafter certain credits were made on this note in the aggregate sum of $3,004.08, leaving a balance claimed as d,ue on same in the sum of $397.26, and the bank asserted its right to hold said collateral until said debt was paid in full.

The plaintiff by supplemental petition alleged that said note was executed without authority of the board of directors of the Bain Mercantile Company, and was therefore ultra vires and void; also that the note was the personal debt of McCammon, the Bain Company being a mere surety, and that it was not authorized to become such surety under its charter; that the money so borrowed was obtained by McCammon to take up and pay off his note due the First State Bank of Runge, in the sum represented by the note given.

By supplemental answer, appellee' alleged that the note was executed by authority of the board of directors of the Bain Company; that this company received the benefits of the loan; that McCammon owned practically all the capital stock of the Bain Mercantile' Company; that no stockholder objected, and that said act in giving the note and placing the collateral was ratified and approved; that McCammon as president of the Bain Company had always signed notes, indorsements of notes, checks, etc., for the corporation, and no act of his had ever been questioned by the stockholders or creditors, and therefore the corporation was estopped to deny his authority to act for it in this instance. It was denied that the corporation was a mere surety, but it is alleged that it was principal and received the benefits, and the proceeds of the note were passed to the corporation’s credit.

This cause was submitted on special issues, and the issues and the jury’s anwers are as follows:

“(1) Was the loan of $3,195.80 -made by defendant bank on or about October 1, 1912, as shown by the notes in evidence made for the use and benefit of the J. B. Bain Mercantile Company? Answer this question ‘Yes,’ or ‘No.’
“Yes.
“(2) Did the defendant bank at the time of making the loan for $3,193.80, as shown by. the note in evidence, believe that it- was making same for the use and benefit of the J. B. Bain Mercantile Company? Answer this question ‘Yes,’ or ‘No.’
“Yes.
“(3) Was there a definite agreement and understanding between W. M. McCammon as president of the said J. B. Bain Mercantile Company and the defendant bank acting through its officers that the money obtained by this loan of $3,-193.80 was to be applied and used for the specific purpose of buying and obtaining the notes obtained from the Runge Bank, and that the proceeds of said loan should not be used by the J. B. Bain Company for any other purpose? Answer this question ‘Yes’ or ‘No.’
“No.”

Upon said answers, judgment was entered , that the plaintiff take nothing, from which this appeal is prosecuted.

The purpose for which the J. B. Bain Mercantile Company was chartered was the purchase and sale of goods, .wares, merchandise, agricultural and farm products. It was shown that the Bain Company had been engaged extensively in cotton buying as well as in the mercantile business. The note was made and the loan obtained, as found by the jury for the benefit of the corporation. The deposit slip for the proceeds of the loan, less interest, was issued to the Bain Mercantile Company, and the evidence shows that the collateral notes obtained therewith belonged to that corporation. BlcCammon was the owner of all the stock of the Bain Company, except two or three shares, for which Cook and the other stockholder had given notes which had never been presented for payment. In- other words, McCammon was the corporation, to all intents and purposes. He had commonly acted for the corporation. This transaction occurred October 1, 1912, and the corporation became bankrupt some time in April, 1913. During all this time the stockholders and directors of the corporation knew about the transaction whereby this debt was created on behalf of the corporation. Certainly a majority of the stockholders and directors, because McCammon, who owned all but two or three shares, and Cook, another director, who owned one share for which he had not paid, signed the note personally.

It is not every ultra vires act of a corporation that is void. Steger v. Davis, 8 Tex. Civ. App. 28, 27 S. W. 1068. See Irrigation Co. v. Hahn Bros. & Co., 105 Tex. 236, 146 S. W. 1187; Canadian Telephone Co. v. Seiber, 159 S. W. 905.

There is no reason why an act which is not void may not be ratified, and this ratification may be by acquiescence of those charged with the duty of managing the affairs of the corporation. Ft. Worth Pub. Co. v. Hitson et al., 80 Tex. 228, 14 S. W. 843, 16 S. W. 551.

Judge Hobby says in the ease last cited:

“An express assent, it is said, is not essential on. the part of the stockholders to operate as an equitable estoppel upon them. It may be inferred from the failure to promptly condemn the unauthorized, although not illegal, act and to seek judicial redress.”

The jury found that the bank, at the time it made the loan, believed that it was making the same for the use and benefit of the Bain Mercantile Company. Even if we concede that the loan was made for the purpose of getting possession of the Runge collateral, that was for the benefit of the Bain Company, because it was thought there was a substantial equity in those notes.

The simple fact that this was a mercantile corporation would not place it beyond its power to conserve and add to its assets by taking over notes where it might largely benefit.

“It has been held that a ratification by a corporation of an unauthorized act of its officers in executing a deed of trust of its property, for the benefit of its creditors, may be ratified by the express sanction of all its shareholders and directors, although no formal resolution to that effect is passed.” 10 Cyc. p. 1074.

The same authority says (10 Cyc. p. 1075):

“And even where the act complained of is ultra vires the company, the shareholders collectively, or a minority of them, may lose by their supineness the right to have the aid of a court of equity in undoing the act, under the corporation of the equitable doctrine of laches. Where a voidable act may be ratified by the shareholders, by taking a course of conduct with reference to it, upon full knowledge of the facts, it is immaterial that they proceed in ignorance of the legal effect of such acts.”

The money obtained from this loan was placed to the credit of the Bain Company, and credit entered in its passbook. The evidence shows that the collateral notes which McCammon bought were for the corporation’s benefit, and a majority of its directors took action in regard thereto and all of its stockholders, except the holder of one share. Gaston v. Campbell Co., 130 S. W. 222; Modern, etc., Co. v. Blanke, 116 S. W. 153; 10 Cyc. pp. 1078 and 1116; Waller v. Gorman Co., 141 S. W. 834.

The note was executed by the president of the Bain Company and within the apparent scope of his authority, and what the money was to be used for or how it was to be expended would make no difference. Houston Land & Loan Co. v. Danley, 131 S. W. 1144.

A corporation is not restricted to the actual wording of its charter, but carries with it those implied “powers which are reasonably necessary to the business, or which are usually incident to its prosecution." Northside Ry. Co. v. Worthington, 88 Tex. 571, 30 S. W. 1055, 53 Am. St. Rep. 778; Ft. Worth City Company v. Smith Bridge Company, 151 U. S. 294, 14 Sup. Ct 339, 38 L. Ed. 167.

The judgment is affirmed.
      (S^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    LOCKNEY STATE BANK v. BOLIN.
    (No. 924.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 16, 1916.
    On Motion for Rehearing, March 15, 1916.)
    1. Appeal and Error <§=>1045(3) — Harmless Error— Challenges to Jurors.
    Plaintiff was not injured by the overruling of a challenge to a juror where, though he exhausted his peremptory challenges in rejecting such juror, it did not appear that after exhausting his challenges he was required to accept an objectionable juror.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4126; Dec. Dig. <§=» 1045(3).]
    2. Evidence <§=>138 — Admissibility — Similar Acts.
    In an action on a note which defendant claimed was forged by G., where defendant testified to an admission by G. that he signed the note and there was therefore no question of intent or identity, evidence that G. had also forged the name of a third party to checks was not admissible without some connection being shown to make it admissible as a part of a system or design.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 414, 414%; Dec. Dig. <§=>138.1
    3. Witnesses 345(2) — Impeachment—Commission op Oppenses.
    It was not permissible to impeach G. by showing the forgery of such cheeks on his cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1126; Dec. Dig. <§=>345(2).]
    4. New Trial <§=>99 — Newly Discovered Evidence — Diligence and Materiality.
    In an action on a note claimed by defendant to have been forged by G., plaintiff moved for a new trial for newly discovered evidence consisting of the testimony of an apparently disinterested witness regarding the execution of a note by defendant at a certain time, the witness not knowing what note was executed. The supporting affidavits excluded negligence on plaintiff’s part as to its accessibility to, or acquisition of, any knowledge of the testimony. The testimony was conflicting as to who executed the note. Held, that a new trial should have been granted.
    [Ed. Note. — For other cases, see New Trial,. Cent. Dig. §§ 201, 207; Dec. Dig. <§=>99.]
    5. Evidence <§=>471(1) — Opinion Evidence-Subjects op Opinion Evidence.
    Testimony that one of the ways in which bankers discovered that checks had been forged was that their customers afterwards would come in and state that they had given no such checks was incompetent, as the jury were as competent to judge that matter as the witness.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2149; Dec. Dig. <§=>471(1); Witnesses, Cent. Dig. §§ 833, 988.]
    On Motion for Rehearing.
    6. Evidence <§=>271(1) — Declarations—Selp* Serving Declarations.
    While in an action on a note which defendant claimed was forged by G., if plaintiff had introduced a letter from G. to defendant referring to the note, defendant’s statements to G. soon after receiving the letter that he never signed the note and knew nothing about it would have been admissible, such statements were self-serving, and it was error to admit them where defendant himself introduced such letter.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068, 1070; Dee. Dig. <@=>271(1).]
    7. Evidence <@=>271(1) — Declabations—Self-Serving Declarations.
    In an action by a bank on a note which defendant claimed G. forged, it was error to permit defendant to introduce a notice from the bank as to the maturity of the note and then testify that in a conversation with the cashier he denied the execution of the note.
    [Ed. Note. — For other cases, see Evidence, 'Cent. Dig. §§ 1068, 1070; Dec. Dig. <@=>271(1).]
    8. Appeal and Error <@=>1020 — Rehearing— Grounds.
    Appellee was not injured by the court’s consideration of the alleged error of the trial court in denying a new trial for newly discovered evidence, though there was no bill of exceptions regarding the matter, where the judgment was clearly reversible on other grounds.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4035, 4036; Dec. Dig. <@=> 1029.]
    Appeal from Floyd County Court; E. P. Thompson, Judge.
    Action by the Lockney State Bank against H. S. Bolin. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    A. P. McKinnon, of Floydada, and Crudg-ington & Works, of Amarillo, for appellant. T. F. Houghton and J. B. Bartley, both of Floydada, and Martin, Kinder, Russell & Zimmermann, of Plainview, for appellee.
   HENDRICKS, J.

The appellant bank sued Bolin on a note for $383.50, dated December 1, 1913, providing for interest and attorney fees. Bolin pleaded non est factum, and the jury, in response to a single special issue, answered that he did not execute the note sued on.

Appellant’s first assignment complains of the trial court’s action in overruling his challenge for cause to the juror, L. E. Williams. Appellant rejected this juror with a peremptory challenge and exhausted all of its challenges in the selection of the jury. However, the bill of exceptions does not show that after exhausting its peremptory challenges it was required to accept an objectionable juror; hence no injury is shown. Snow v. Starr, 75 Tex. 411, 12 S. W. 673.

Appellant’s theory is that the original note, of which the present note is a renewal, was executed direct to. the bank, under the following conditions: That J. C. Garrison requested a loan of $350 from Bolin, and the latter not having the money, Bolin executed a note straight to the bank, lending the money to Garrison, in consideration of which Garrison and his father executed an indemnity note to Bolin; all of which the latter denied, contending that he never signed either the original or the renewal note, •and that the same was signed by Garrison in order to cover his shortage on the bank’s •books and free the same from suspicion upon .examination by the bank examiner. When J. C. Garrison was upon the stand, over the objection of the appellant, he testified on cross-examination that he had signed the name of Henry Kell to checks on the Lock-ney State' Bank, and had drawn thereon several hundred dollars.

The general" rule is that you cannot convict a man of one offense by showing the commission of similar offenses. However, when the object of such collateral matter is to show system, or design, or if similar offenses tend to establish identity, or intent, they may be placed in evidence. In this case, Bolin denies that he signed the note, and testifies to an admission of Garrison that he signed it, also an accompanying chattel mortgage to secure it. It is a plain issue of Bolin’s signature, or Garrison’s forgery, and the question of Garrison’s intent or identity, to be shown by the commission of similar offenses, of course, are not in the case. The principle of its admissibility is either upon system, plan, or design. It is insisted that, to be a part of a system or design, some connection must be shown to make it admissible.

The danger of inferring that an act is proven because a similar act has been admitted, unless there is some connection, is apparent. To show that a party has been a knave on other occasions, creates a prejudice -which may operate in injustice against the cause actually considered. It is certainly influential on the mind, and in many instances, to many men would raise a presumption of guilt to show the commission of similar offenses, though isolated and unconnected. The rule has been guarded, as well as the exceptions, and it is easier to state the rule and the exceptions than to apply it.

“The added element then must be, not merely a similarity of results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan, of which they are the individual manifestation.” Wigmore on Evidence, vol. 1, § 304.

Otherwise you would only furnish the jury testimony of isolated instances which would affect the defendant’s character; neither is it permissible to impeach this witness on the score of his credibility with this character of examination and testimony. Justice Brown, in the case of M., K. & T. Ry. Co. v. Creason, 101 Tex. 337, 107 S. W. 528, discloses the distinction, and the departure of the Court of Criminal Appeals of this state, “from the rule established by the Supreme Court both for civil and criminal cases at the time that it had jurisdiction of criminal matters.” That case rejected the testimony of a witness on cross-examination, showing that he had been indicted for felony, or other crime. We think this admission by Garrison of signing Kell’s name to cheeks and getting money thereupon, of itself, without some further connection, was improper.

The court also permitted the defendant, Bolin, to testify on direct examination, over plaintiff’s objection, that after the trouble had arisen over the note that he (Bolin) stated to Garrison that he Would have nothing to do with the note and knew nothing about it. The court also permitted the father of Bolin, over the plaintiff’s objections, to corroborate the testimony of his son, H. S. Bolin, the defendant. In the condition of this record, such statements were self-serving. The testimony was upon direct examination, and the declarations of the defendant were at a time after the trouble over the note had arisen.

“The declarations offered in evidence in such eases are at best hearsay, and are inadmissible under the general rule; and we are of opinion that if the declarations are sought to be brought within the exception, the grounds which take it out of the rule ought clearly to appear. The reason that evidence of former declarations of a witness are admissible in such case is that his testimony having been assailed on the ground that he had an interest to fabricate it, proof that he made statements consistent with that testimony a a time when he had no such interest tends to show that the testimony was not an afterthought and to rebut the theory of fabrication.” Insurance Co. v. Eastman, 95 Tex. 38, 64 S. W. 864.

In this case the court should have granted a new trial on the showing made by defendant as to newly discovered testimony. The affidavits, with the motion, clearly exclude negligence of the defendant bank as to its accessibility to, or the acquisition of, any knowledge of such testimony, and the issues were drawn, conflicting to such an extent as to who executed the note, that the judgment should have been set aside. In this connection, we have in mind the affidavit of an apparently disinterested witness, in regard to the execution of a note by Bolin at a certain time, though the witness did not know what note was executed.

It was clearly error to permit W. A. Robins to testify that one of the ways in which bankers discovered that checks have been forged upon them is that their customers afterwards come in and state that they have given no such checks; the jury were as competent to judge that matter as Robins, even if the following testimony of Bolin had been admissible.

No proof was made by the bank in regard to any declarations or statements of admissions made by Bolin as to the note; he was not asked any question in regard to receiving notice that the note was due, and his statement to the cashier of the bank, testified to by him, on direct examination, denying his execution of the note, after having received such notice, and after the bank, was pressing the obligation, is equally self-serving, in the condition of this record, and inadmissible. Insurance Oo. v. Eastman, supra.

We have permitted the correction of the record under the certificate of the clerk of the county court, applicable to one of appellant’s bills of exception.

The cause is reversed and remanded.

On Motion for Rehearing.

Appellee, Bolin, introduced the letter from Garrison “referring to the note,” and then testified that “soon after receiving the letter,” Garrison came to see him and he “then told Garrison that he never signed the “note” and knew nothing about it. Though the contents of the letter were not introduced, however, for Bolin to “open the way” for its introduction, and then on direct examination to build a case of denials by self-serving declarations, is not proper. If the bank takes the initiative and introduces the letter, Bolin’s statements to Garrison are of course then admissible and appropriate. As to the notice from the bank to Bolin as to the maturity of the note, appellant never introduced it; the introduction by appellee of said notice and the self-serving declarations of Bolin upon direct examination, based upon its introduction by him, are wholly improper.

This is the first time our attention is called to the lack of a bill of exceptions in regard to the refusal of a new trial on newly discovéred testimony; however, appellee is not injured, the cause being so clearly reversible on other grounds discussed in the original opinion.

With the foregoing explanation, the motion for rehearing is overruled.
      <g=»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@n=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes