author: RASBURY, J.

text:
    HENDRICK v. CHASE FURNITURE CO.
    (No. 7543.)
    (Court of Civil Appeals of Texas. Dallas.
    May 6, 1916.)
    Evidence <&wkey;441(ll) — Paeol — Contempora- . neotjs Collateral Agreement — Bills and Notes.
    In a suit on a note payable unconditionally at a time certain, a contemporaneous agreement to postpone the time of payment cannot be proved by parol, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 589, providing that the payor in a note may plead and prove want or failure or partial failure of consideration while the same remains in the possession of the original payee or when it shall have been transferred after maturity or with actual notice of the defense.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2043, 2044; Dec. Dig. &wkey;441(ll).]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by the Chase Furniture Company against J. W.’ Hendrick. From a judgment for idaintiff, defendant appeals.
    Affirmed.
    Morris & Pope, of Dallas, for appellant. Seay & Seay, of Dallas, for appellee.
   RASBURY, J.

Appellee sued appellant for the principal, interest, and attorney’s fees upon two promissory notes executed by appellant to appellee and payable January 2, 1914, one for $200, due April 20, 1914, and one for $681.25, due May 20, 1914. Suit was commenced July 11, 1914, alleging both notes to be due and unpaid.* After service of citation appellant filed answer, admitting the execution of the notes, the genuineness of the debt, the correctness of the amount, and that they were due according to their terms and unpaid, but urging as a defense thereto, in substance, the following facts: Prior to the execution of the notes sued on appellant was indebted to appellee in the sum of $1,081.25 on open account. At that time appellee requested appellant to merge the indebtedness into notes, representing that it would be convenient to have it in that form, and suggesting the execution of the notes described and two others each for $100 and maturing before either of the notes sued on. Appellant informed appellee that due to financial conditions then existing he did not believe he could pay them, in the order and amount suggested, but that he would for the convenience of ap-pellee execute them as suggested if assured of reasonable extension. Thereupon appellee and appellant mutually agreed that appellant should execute the notes sued upon and the two others for $100 each, and that appellee should upon payment of the two $100 notes extend the third note for $200, and that, when it was paid, the fourth note for $081.25 should be extended by ’appellant executing a series of $200 notes covering same, which renewals were also to be extended -from time to time upon payment of one of them. Relying upon the agreement so made, appellant executed the notes described and paid the first two $100 notes. Appellee, • however, refused to observe the agreement and make the extensions, but filed suit upon the notes remaining unpaid. The representations made by appel-lee were made for the purpose of deceiving appellee and to induce him to execute said notes, and did in that respect deceive him. To the sufficiency of the facts so related as constituting a defense to the suit the trial judge sustained a general demurrer. The action of the court in that respect is the sole issue presented on appeal. We conclude that the demurrer was properly sustained. The facts alleged by appellant were inconsistent with the written contract, since the effect thereof was to establish that the notes sued upon were to be paid at a time other than that specified therein, and hence would have been in violation of. the well-settled rule that written contracts may not be varied, contradicted, or added to by parol evidence. As said in Coverdill v. Seymour, 94 Tex. 1, 57 S. W. 37:

“It is sometimes the case that the writing represents only a part of the contract, the other parts being expressed orally; and in such cases those parts not reduced to writing which are consistent with the writing may be shown. But this rule has no application, for the reason that the stipulations of the parties about the matter in controversy were put- in writing, and the effort is to show an inconsistent agreement.”

All that is said in the case cited is true with reference to the instant case, since the parties did put in writing that which appellant sought to contradict or vary. On the question of agreements to renew or extend promissory notes at maturity an accepted authority says:

“If [made] contemporaneous with the execution of the instrument, such agreement would not be binding, unless in writing, for the reason that it would contradict the terms of a written contract, and parol evidence for that purpose is inadmissible.” 1 Daniel, Neg. Ins. (6th Ed.) 213.

Another and recent authority states the rule to be that: ments and vary their legal effect.” 3 R. O. L. 910, § 98.

“When notes are payable unconditionally and at a time certain, it is incompetent to prove by parol testimony a promise by the payee, contemporaneous with or antecedent to the execution of the notes, stipulating for a postponement of the time of payment, as such evidence would contradict the terms of the written instru-

In the notes to American Gas & Ventilating Mach. Co. v. Wood, 43 L. R. A. 449, will be found on page 456 numerous citations on the question of contradicting the provisions of a promissory note as to time of payment, a consideration of which will show the rule stated to be general and uniform. It is provided by article 5S9, Vernon’s Sayles’ Stats., that the payor in a note may plead and prove want or failure or partial failure of consideration while the same remains in the possession of the original payee or when it shall have been transferred or assigned after maturity or may prove actual knowledge of such defense, etc. It cannot be said, however, that a contemporaneous oral agreement to extend payment at maturity is a failure of consideration within the common meaning of that term so as to bring the parol agreement to postpone payment within the statute, and thereby avoid the general rule with reference to contradicting the provisions of written contracts by parol evidence. The consideration is undisputed and admitted and was both valuable and legal.

Eor the reasons stated, the Judgment is affirmed.
      <S&wkey;For other oases see sam? 1¿opic and f$EY-NUMBí¡R in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    CELLI & DEL PAPA v. GALVESTON BREWING CO.
    (No. 6977.)
    (Court of Civil Appeals of Texas. Galveston.
    March 30, 1916.)
    1. LANDLORD AND TENANT <&wkey;134(2) — AGREEMENTS as to Use of Property.
    The right of the owner of premises to agree with his tenants as to the use to which the leased premises shall be put is one of the inherent rights incident to the ownership of property, and is only restricted to the extent of forbidding any agreement to use the property for an unlawful purpose.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. § 483; Dec. Dig. <&wkey;> 134(2).]
    2. Landlord and Tenant <@=^134(2) — Agreement as to Use of Premises.
    When premises are leased to he used as a place for conducting a business, the owner can stipulate the character of lawful business which is to be carried on, and, if the business is a mercantile one, the character or specific kinds of merchandise that may or may not be sold on the premises, and a brewery, leasing premises for saloon use, may stipulate that the tenants shall not buy beer of a competitor.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 483; Dec. Dig. c&wkey;>134(2).]
    3. Monopolies <&wkey;12(2) — -Agreement as to Use of Premises — Statute.
    It was not the purpose of the anti-trust statute (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796) to prohibit or restrict the right of the owner of leased premises to stipulate the character of business which shall be carried on and the kinds of merchandise that may be sold, and a brewery leasing premises for saloon use may stipulate that the tenants shall not buy beer of its competitor.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <§==>12(2).]
    4. Monopolies <&wkey;12(2) — Conspiracy in Restraint of Trade — Statute.
    The act of a brewing company in demanding of tenants of its saloon premises that they cease purchasing beer and other liquors from a competitor of the brewery under penalty of not having their leases renewed was not a violation of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7798, defining and prohibiting conspiracies in restraint of trade.
    [Ed. Note. — Eor other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. <®=>12(2).]
    Appeal from District Court, Galveston County; Robt. ,G- Street, Judge.
    Suit by Frank Celli and O. Del Papa, composing the firm of Celli & Del Papa, against the Galveston Brewing Company. Prom a Judgment for defendant, plaintiffs appeal.
    Affirmed.
    Lewis Fisher, Marsene Johnson', Elmo Johnson, and Roy Johnson, all of Galveston, for appellants. James B. & Charles J. Stubbs and Marion J. Levy, all of Galveston, for ap-pellee.
   PLEASANTS, C. J.

This suit was brought by appellants, Frank Celli and O. Del Papa, composing the firm of Celli & Del Papa, against the appellee to recover damages in the sum of $20,000 — $9,000 actual and $11,-000 exemplary damages.

Plaintiffs’ petition alleges, in substance, that during the months of June, July, and August, 1913, and for some time prior thereto, they were and still are engaged in the wholesale liquor business in the county of Galveston, and as such dealers handled and sold at wholesale spirituous, vinous and malt liquors, and that at said time the Galveston Brewing Company was and still is engaged in the manufacture and sale of beer at wholesale in the city of Galveston. The cause of action is set out in the petition as follows:

“And plaintiffs further allege that continuously and almost daily in the months of June, July, and August, 1913, in said county of Galveston, state of Texas, the defendant corporation did unlawfully, willfully, maliciously, and with express intent to injure the business and profits of plaintiffs induce, persuade, threaten, and coerce A. Guisti, D, Guisti, A. B. Coleman, A. Del Papa, Albert Lasson, Ugo Blanche, A. Martini, F. Paganueci, A. Mangiapana, G. Del Papa, A. Mcnieuci, H. Marcella, N. S. Patrick, and many other persons to make, enter into, maintain, and execute and carry out, and attempt to execute and attempt to carry out, a certain obligation and agreement to prevent and lessen competition in the sale and purchase of a certain commodity and merchandise, to wit, beer, in said county of Galveston.
“And plaintiffs further allege that said corporation' did unlawfully, willfully, maliciously, and with the express intent to injure the business and profits of plaintiffs, continually and almost daily, in said months of June, July, and August, 1913, induce and did persuade and did coerce and did threaten and did conspire with and did cause the persons named in the preceding paragraph, and many others, to make, enter into, maintain, execute, and carry out an obligation and an agreement by which the parties thereto did bind themselves not to buy or sell any of the spirituous, vinous, or malt liquors handled and kept for sale by the plaintiffs, and did by said unlawful and malicious conduct preclude a free and unrestricted competition among themselves and others, in the sale and purchase of the said articles of merchandise, kept in stock and offered for sale by said plaintiffs, especially a certain article, commodity, and liquid product known as Cook’s beer, the same being lager beer, and the same being offered on the market for sale by the said plaintiffs during said months.
“And plaintiffs further allege that continuously and almost daily during said 'months of June, July, and August, 1913, the defendant corporation unlawfully, willfully, and maliciously,_ and with the express intent to injure the business and profits of plaintiffs, did induce, did persuade, and did coerce the persons named in paragraph 2 of this petition, and many other persons, to boycott, and to agree to boycott and to refuse and to agree to refuse to buy from plaintiff, any of said legitimate merchandise, to wit, the said Cook’s beer, and any of the other liquors and merchandise kept in stock for sale by said plaintiffs during said months.
“And plaintiffs further allege that at the time of the beginning of said unlawful and said malicious acts and conspiracies on the part of the defendant corporation with the persons named in paragraph 2 of this petition, and with many other persons, the said plaintiffs were engaged in selling at wholesale, a certain commodity known as Cook’s beer, the same being lager beer, and were in the months of June and July realizing a profit from the sale of said beer in the approximate sum of $350 per month, and that on account of said unlawful and malicious conduct of the defendant corporation in inducing, threatening and persuading the said persons named in paragraph 2 of this petition, and many others, to boycott and to refuse to buy said beer from these plaintiffs, and to refuse to handle said beer in any way, the plaintiffs’ business in the sale of said beer depreciated to such an extent in the month of August, and continually during all of said months from said month of August up to the date of filing of this petition to the extent of $350 per month.”

These allegations are followed by allegations of the actual loss sustained by plaintiffs in the decreased profits derived from their business by reason of the alleged wrongful and illegal acts of the defendant before alleged, and by prayer for the recovery of actual and exemplary damages in the sums before stated.

The defendant answered by general demurrer, special exceptions and general denial, and the following special plea:

“Defendant alleges the truth to be that plaintiffs endeavored to deprive defendant of the patronage of its customers, being those named by plaintiffs in their petition, and others, and to that end sold or endeavored to sell to defendant’s said customers beer other than that manufactured by defendant, thus seeking to supplant defendant and destroy its business with its s&id customers; that defendant thereupon endeavored to retain the patronage of its_ customers as against the aggressions of plaintiffs, and this it is ready to verify.”

The demurrer and exceptions were overruled, and the cause proceeded to trial with a jury. After hearing the evidence the trial judge, on motion of defendant, instructed the jury to return a verdict in defendant’s favor, and upon the return of such verdict judgment was rendered in accordance therewith.

The only assignments of error presented in appellants’ brief assail the action of the court in instructing the jury to return a verdict for the defendant. The contentions under these assignments are that the undisputed evidence shows that defendant did, as alleged in the petition, “unlawfully, willfully, and maliciously * * * induce, persuade, and threaten the persons named in the petition, and many others, to boycott and to refuse to buy from plaintiffs any of the merchandise offered for sale by plaintiffs, and did enter into and cause to be made a conspiracy with the persons named in plaintiffs’ petition to boycott these plaintiffs and to refuse to buy from these plaintiffs,” and that such conduct on the part of the defendant was in violation of the anti-trust laws of this state, and rendered defendant liable for the damages thereby caused the plaintiffs.

The evidence shows that each of the persons named in plaintiffs’ petition was a tenant of defendant engaged in the retail liquor business in Galveston county. Each of said persons during the months named in the petition purchased and sold beer manufactured by defendant, and also handled in their business other kinds of beer, among which was Cook’s beer, which was sold by plaintiffs. During the months named each of said persons was notified by the defendant, through its general manager, that he must quit selling Cook’s beer, and several of said persons were told that, unless they stopped selling said beer, and also stopped buying liquors of any kind from plaintiffs, defendant would not renew the lease of the premises upon which they conducted their business. Because of the fear on the part of each of said persons that he would not be permitted to re-lease the premises on which his business was conducted at the expiration of his existing lease, he unwillingly agreed to quit selling Cook’s beer, and did stop selling it. The profits of plaintiffs’ business were largely decreased by reason of the compliance of the persons named in the petition with the demand of the defendant to cease selling Cook’s beer and quit buying liquors from plaintiffs.

The following testimony of A. Del Papa, one of the “conspirators” named in the petition, is a sample of the testimony introduced by the plaintiffs, and which was uncontra-dicted:

“I am not related to Omera Del Papa. I am engaged in the saloon business, and was in June and July of 1913. I buy my beer from Galveston Brewing, Anheuser Busch, and Schlitz. I bought que case from Celli & Del Papa. I had a talk with Mr. Stein about Celli & Del Papa. He told me to quit Celli & Del Papa, and would have to quit selling Cook’s beer. I agreed with him to stop selling it. I told him I would stop it because I was scared of them; scared they would put me out of business — the Galveston Brewery. I was scared because he had a lease on the house, and I was afraid somebody would put me out of business; that I had better quit. 1 was afraid Stein would put me out of business. I was in Mr. Stein’s office when he talked to me about quitting Celli & Del Papa. He phoned me to come over, and I went. He told me I bad to quit selling Cook’s beer, and I told him ‘All right.’ I sell what I had and I would not buy any more. I have not bought any more since because he told me I could not. He told me I would have to stop. I told him I would stop. X have had another talk with Mr. Stein since. He called me to his office and told me I had to quit buying whisky and buy nothing else from Celli & Del Papa. He told me if I didn’t stop he would put somebody else in the business at my place. I quit them for a while because I thought he would put somebody else in my place. I rent from month to month. I have no lease on the place. I don’t pay rent from Galveston Brewery. I don’t know if Galveston Brewery have a right to say who shall keep or occupy that building. Mr. Stein told me not to buy any more beer from Celli & Del Papa. X had bought one barrel. He talked to me a second time, and said I had to quit buying whisky, and not to buy anything else from Celli & Del Papa. I told him if everybody quit I would quit myself. Mr. Stein told me if I didn’t quit buying from Celli & Del Papa he would put somebody else in the place. I kept on buying whisky from Celli & Del Papa. Mr. Stein asked me not to buy from Celli & Del Papa as long as they were fighting him—as long as Celli & Del Papa were selling beer to his tenants.”

Plaintiffs did not commence the sale of Cook’s beer until June, 1913.' The demands made by the defendant upon their tenants to cease handling Cook’s beer were made in the months of June and July, 1913.

It is perfectly clear from all the evidence that the premises leased by the defendant to the persons named in plaintiffs’ petition, and with whom defendant is alleged to have conspired to injure and boycott the business of plaintiffs, were purchased or leased by defendant for the purpose of furthering the sale of the beer manufactured by it, and that the purpose and effect of the agreements between defendant and said persons to whom it leased said premises was to prevent the sale on said premises of the beer handled by plaintiffs and which was not manufactured by defendant.-

The right of the owner of premises to agree with his tenants as to the use to which the leased premises shall be put is one of the inherent rights incident to the ownership of property, and is only restricted to the extent of forbidding any agreement to use the property for an unlawful purpose.

When premises are leased to be used as a place for conducting a business, the owner can stipulate the character of lawful business which is to be carried on, and, if the business is a mercantile one, the character or specific kinds of merchandise that may or may not be sold on the premises.

We do not think it was the purpose or intent of our anti-trust statute to prohibit or restrict this right of the owner of property, and the exercise of such right by the owner through agreement with his tenant cannot be held a violation of the provisions of article 7796, Vernon’s Sayles’ Civil Statutes, prohibiting “combinations of capital, skill of acts by two or more persons to create, or which may tend to create, restrictions in trade or commerce.” In the case of Railway Co. v. State, 99 Tex. 34, 87 S. W. 336, 70 L. R. A. 950, our Supreme Court held that a contract between a railroad and a sleeping car company that only sleeping cars manufactured by said company would be operated over said railroad was not violative of the provisions of the anti-trust statute, and in Lewis v. Railway Co., 36 Tex. Civ. App. 48, 81 S. W. 111, the same ruling was made in regard to a contract by which a railroad agreed to give to a transfer company the exclusive right to solicit patronage on its trains. In the case of Redland Fruit Co. v. Sargent, 51 Tex. Civ. App. 619, 113 S. W. 331, it is held that a provision in a contract of lease of premises as a place for the sale of merchandise that intoxicating liquors should not be sold on the premises was valid.

It seems to us that, if the owner of the leased premises can stipulate that no beer can be sold thereon (and that the owner has such right cannot be questioned), it necessarily follows that he can stipulate that only a certain kind of beer can be sold thereon. This is the holding in the case of Brewery Co. v. Nielsen, 77 Neb. 872, 110 N. W. 747, 8 L. R. A. (N. S.) 497, in which the Supreme Court of Nebraska say:

“It would have been perfectly competent for the parties to stipulate that no beer whatever should be sold on the premises. It was equally competent for them to provide that no beer, except of a particular kind or quality, should be sold thereon.”

Appellants’ contention that the act of defendant in demanding of the persons named in the petition that they cease purchasing beer and other liquors from plaintiffs under penalty of not having their leases renewed was in violation of article 7798 of the statutes above cited, defining and prohibiting conspiracies against trade, is, we think, just as untenable' as the contention that such act on the part of defendant was violative of article 7796, before quoted.

The acts of defendant refusing to permit his tenants to sell plaintiffs beer upon the premises leased by him to said tenants not being unlawful or wrongful, plaintiffs were not entitled to recover damages for any loss in business they may have sustained by reason of such acts of defendant, and the trial court properly instructed the jury to return a verdict in defendant’s favor.

It follows from these. conclusions that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      <@=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    DOWELL v. RETTIG et al.
    (No. 7036.)
    (Court of Civil Appeals of Texas. Galveston.
    April 14. 1916.
    Rehearing Denied May 18, 1916.)
    1. Appeal and Error <&wkey;>46 — Appellate Jurisdiction — Amount in Controversy..
    The Court of Civil Appeals has no jurisdiction to entertain an appeal in any case where the amount in controversy does not exceed $100, exclusive of interest.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 198-201; Dec. Dig. &wkey; 46.]
    2. Justices of the Peace <&wkey;174(8) — Appeal —Trial De Novo — Pleading.
    On appeal to county court a plaintiff, by amending Ms pleadings, may amplify or enlarge the cause of action asserted in justice court, but cannot set up a new cause of action.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 670; Dec. Dig. <i&wkey; 174(8).]
    .8. Justices of the Peace &wkey;>174(8) — Appeal —Trial De Novo — Pleading.
    On appeal by plaintiff from justice court an amendment to his complaint alleging false and malicious defense in justice court entitling him to additional damages is demurrable as being the assertion of a new cause of action.
    [Ed. Note. — For other eases, see Justices of the Peace, Cent. Dig. § 670; Dec. Dig. <i&wkey; 174(8).]
    Appeal from Harris County Court; C. C. Wren, Judge.
    Action by John Dowell against W. E. Ret-tig and others. Defendant appealed to county court from a judgment for plaintiff in justice court, and from a judgment in that court for defendant on trial de novo, plaintiff appeals.
    Appeal dismissed.
    John Dowell, of Houston, in pro. per. D. E. Simmons, of Houston, for appellees.
   McMEANS, J.

John Dowell brought this suit in the justice’s court against W. E. Ret-tig and wife as principals, and H. A. Stod-dard as guarantor, to recover $72.50 alleged to have been due by Rettig and wife to Stoddard as commissions for the sale of certain personal property, and which account was sold to the plaintiff by Stoddard, the latter guaranteeing the payment of the same. Upon a trial in the justice court the plajntiff recovered judgment for the amount sued for against Rettig and against Stoddard on his guaranty, and judgment was rendered in favor of Mrs. Rettig. The defendant Rettig .appealed to the county court at law of Harris county, and upon a trial de novo in that .court before a jury a judgment was rendered in his favor. From that judgment the plaintiff, John Dowell, has appealed.

This court has no jurisdiction to entertain an appeal in any case where the amount in controversy does not exceed $100, exclusive of interest. Recognizing this fact the plaintiff, appellant here, to sustain his appeal relies upon his pleading after the case had reached the county court, of an additional cause of action to that asserted in the justice court for actual and exemplary damages. The pleading is as follows:

“And plaintiff further replying says that defendant W. E. Rettig’s defense in this case is false and fictitious and the same was willfully and maliciously made to delay this case and to put plaintiff to all the expense he could; that plaintiff has attended court some 25 days, of the value of $1 per day and damages in this sum, for which he sues; that because it was willfully and maliciously done and perpetrated on plaintiff’s gross offense and injustice he asks as exemplary damages $50 and for which he sues.”

A general demurrer to this pleading was sustained by the court, and of which appellant makes no complaint in an'y assignment of error presented in his brief.

There is no question of the right of a plaintiff on appeal to the county court to amplify or enlarge the cause of action asserted by him in the justice court by an amend■ment of his pleadings, but while this is true, it is also unquestionably the law that the plaintiff cannot by amendment or otherwise set up a cause of action in the county court that was not asserted by him in the justice court. Blanton v. Langston, 60 Tex. 149; Wall v. Melton, 94 S. W. 358; Downtain v. Connellee, 2 Tex. Civ. App. 95, 21 S. W. 56.

That the damages pleaded by appellant in the county court was not an amplification or enlargement of the cause of action asserted in the justice court, viz., for the recovery of commissions for the sale of personal property, is apparent. The court by sustaining the general demurrer to the claim for damages very properly struck the newly asserted cause of action from the case, thus leaving, as the only question to be determined, the plaintiff’s right to recover $72.-50 upon the original cause of action asserted by him. This being true, the amount in controversy was not sufficiently large to confer jurisdiction upon this court to revise the judgment of the county court. Because of the want of jurisdiction of this court the appeal is dismissed.

Dismissed.
      <g=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    GOODMAN et al. v. SCHWIND et al.

    (No. 51.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 16, 1916.
    Rehearing Denied April 6, 1916.)
    1. Courts <&wkey;247(3) — Jurisdiction os' District Court.
    The district court of a county had only appellate jurisdiction to revise, declare void, or set aside orders and decrees of the county court, sitting in probate, relative to the sale of land of minors on their guardian’s application, and had no authority to consider the facts of innocent purchasers, question of title, etc.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 759, 760; Dec. Dig. &wkey;247(3).]
    2. Appeal and Error &wkey;>20 — Jurisdiction or Trial Court.
    Where the trial court has no jurisdiction, neither has the appellate court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. i&wkey;>20; Courts, Cent. Dig. § 489.]
    3. Clerks oe Courts &wkey;>3 — Disqualification — Appointment Pro Tempore — Statute.
    Acts 20th Leg. c. 109 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1745, 1746), touching disqualification of clerks of the county courts ivhen a party to any proceeding, and the appointment of clerks pro tempore, relates to county clerks both in their capacity of county clerks and their capacity of probate clerks.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 4-7; Dec. Dig. <&wkey;>3.]
    4. Guardian and Ward <&wkey;90 — Sale of Wards’ Realty- — Void Orders — Statute.
    Whore the county court, sitting in probate, made orders relative to the sale of wards’ realty at a time after their guardian, the applicant, had been elected and was clerk of the court, no clerk pro tem. having been appointed pursuant to Acts of 1887, p. 102, requiring such appointment when the clerk is a party, such orders were void.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 349-355; Dec. Dig. <&wkey;> 90.]
    5. Courts <&wkey;202 (5) — Probate Courts — Sale of Realty — Appointment of Clerk Pro Tempore — Inference.
    In suit to declare void orders of a county court, sitting in probate, touching the sale of the realty of wards on application of their guardian who was, at the time, clerk of the court, the district court could not infer from the mere silence of the record of the county court that a clerk pro tempore was appointed as required by Acts of 1887, p. 102, when the clerk is a party.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 486; Dec. Dig. <&wkey;202(5).]
    Error from District Court, Orange County ; A. E. Davis, Judge.
    Suit by Charles R. Goodman and others against William F. Schwind and others. To review a judgment for defendants, plaintiffs bring error.
    Judgment reversed, and judgment rendered declaring orders of the county court complained of void.
    J. T. Adams, of Orange, and W. O. Huggins, of Houston, for plaintiffs in error. G'eo. E. Holland, of Orange, E. E. Townes, of Beaumont, L. A. Carlton and E. W. Townes, both of Houston, W. W. King, of San Antonio, and Gaines & Corbett, of Bay City, for defendants in error.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

On the 13th day of March, 1913, Charles Reviere Goodman, Josiah Tray-lor Goodman, John Wrillard Goodman, a minor, Leeland Keith Goodman, a minor, and Lawrence Hart Goodman, a minor, and John W. Hart, guardian of said minors, as plaintiffs, filed in the district court of Orange county, Tex., their original petition complaining of Schwind & Maher, a partnership composed of William F. Schwind and John G. Maher, William F. Schwind and John O. Maher, W. S. Stark, Leo O. Stark, Flora B. Williamson, Layne & Bowler, a partnership composed of M. E. Layne and T. E. Bowler, and M. E. Layne and T. E. Bowler, E. S. Allison and Levi Paul, T. P. Gillespie, William Williamson, Carter C. Williamson, G. A. Sales-bnry, Frederick Schmidt, Henning- Schmidt, F. D. Milius, Albert Fischer, Otto Risch, H. S. Willrodt, Christ Polenz, H. P. Drought & Co., composed of H. P. Drought alone, and complaining of Patrick Henry Drought, and of Patrick Henry Drought & Co., a firm composed of Patrick Henry Drought alone, and of A. H. Worden and also complaining, of certain decrees and orders purporting to have been made in the county court of Orange county, Tex., in cause No. 177, styled “Guardianship of Charles Reviere Goodman, Josiah Traylor Goodman, John Willard Goodman, Leeland Keith Goodman, and Lawrence Hart Goodman.”

The orders complained of consisted of a decree entered on the 3d day of February, 1903, upon the application of C. L. Goodman, guardian, ordering said Goodman to sell certain land; also an order entered on the 10th day of February, 1903, upon the application and report of G. L. Goodman, guardian, confirming and approving the sale of the land; also an order entered on the 23d day of April, 1904, upon the application and report of O. L. Goodman, guardian, to the effect that George E. ’Williams had not complied with the terms of sale but was ready to comply with said sale as to a part of the land described, and approving and granting said application, and ordering the transfer of a part of the land described by the guardian, to the said Williamson, and confirming and approving the sale of same; also complaining, of an order purporting to have been made and entered on the 9th day of April, 1907, ordering said guardian to convey the balance of the land not included in the foregoing order to said George B. Williamson, and purporting to approve and confirm the conveyance as to said remainder of the land. - They alleged that Charles Reviere Goodman and Josiali Tray-lor Goodman are now of lawful age, but obtained their majority within the last two years next before the filing of the petition, and that the remainder of the plaintiffs are minors, and John W. Hart is the legally •qualified and acting guardian for the es’tate of said minors. They say that, prior to the year 1003, they were the owners of certain described land, and that O. L. Goodman qualified as guardian of the estate of plaintiffs, and continued to act as such until after the year 1010; that the orders made were invalid, and were insufficient to authorize the guardian to sell said land; that there was no necessity for a sale of said land; that the orders were not entered at a regular term of the county court of Orange county, and that when said orders were entered, and during the pendency of same, the court was not authorized to enter the orders, for the reasons that C. L. Goodman was at the time guardian of the estate of the plaintiffs, and also attempting to act as clerk of said probate court; that he issued all citations in relation thereto, and entered all orders and decrees as clerk of said court, and that he was in every way performing the duties of clerk of said court, and he being a party to said proceeding relating to said orders and decrees, as guardian of the estate of the plaintiffs, and that he was disqualified by law to act as clerk of said county court in the premises, and that no clerk pro tempore was appointed to act as clerk of said court, with reference to said proceedings, and that none acted as such, and that the said C. D. Goodman, purporting to act as guardian of the estate of the plaintiffs, but without authority of law, on or about the 1st day of May, 1904, and on or about the 30th day of April, 1907, executed deeds to the said land, purporting to convey the title of plaintiffs to one George B. Williamson, and afterwards, on the 8th day of December, 1909, purporting to act as said guardian, he executed in favor of said George Williamson releases of vendor’s liens reserved to secure the deferred payment as a part of the consideration for the execution of said deed; that the said Williamson afterwards executed various deeds and mortgages conveying and incumbering the title to said land, and that all the remaining defendants in the suit appear, claiming some interest and equity in said land; and their petition further alleged that $5,000 of the sum received by the said G. L. Goodman, guardian, was applied by the guardian for the benefit of plaintiffs, but that they did not receive the balance of same. Plaintiffs prayed for a writ of certiorari to the county court of Orange county, Tex., to the end that said orders might be revised and set aside, and they prayed that upon a hearing the court determine to whom the proceeds received by plaintiffs from the sale of the land be returned, and what amount to each, respectively, and tendered into court the said sum of $5,000.

Defendants E. S. Allison and Levi Paul answered by general demurrer and general denial. T. P. Gillespie filed a general demurrer and general denial, and prayed that Carter O. Williamson, Plora E. Williamson, Bell Williamson, Maud Williamson, and Byron Williamson be made parties defendant upon their warranties of title, and in the event the plaintiffs should recover any judgment against him, then he prayed judgment in favor of E. S. Allison and Levi Paul, his immediate vendors, and .judgment also against Plora E. Williamson, Carter G. Williamson, Bell Williamson, and Maud and Byron Williamson.

Defendants, who are appellees, Schwind and Maher answered by general demurrer, special exception that none of the defendants therein named were parties to the probate proceedings in which the orders sought to be revised were entered, and also for the reason that it appears that the plaintiffs seek, in a proceeding which is appellate in its nature, to have the court determine the rights of the parties who were not parties to the proceeding in the court below, and say it was a misjoinder of causes of action; and, by further exception, that by the petition the guardian appears to have received from the sale of land the sum of $21,071.91, and which plaintiffs do not offer to refund in the event the orders of the probate court of Orange county, made in the said guardianship proceedings, were revised and set aside; and they also answered by general denial and special answer setting up the fact that O. L. Goodman was duly qualified and acting guardian of the estate Of the minors, who are plaintiffs in this cause, and, as such guardian, made application to the probate court of Orange county to sell the land set out and deseiibed in the plaintiffs’ petition, which application was granted by an order duly entered on the 3d day of February, 1903, and that, acting under said orders, said Goodman, guardian, negotiated the sale of said land to said George E. Williamson for the sum' of $20,807.50, and that the sale was reported to the court by the said guardian, after due notice being given, as required by law, was confirmed by an order duly entered by said probate court on the 10th day of February, 1903; and that, acting under said order and further orders made by said court on the 23d day of April, 1904, touching the sale of said land, said guardian, on May 1, 1904, conveyed to George E. Williamson, 1,564 acres of land for the sum of $11,339, and that afterwards, on the 9th day of April, 1907, the said guardian, acting under the orders of said county court of date February 10, 1903, confirming his application for authority to sell said land, and an additional order of date April 7, 1907, conveyed to the said George E. Williamson the balance of said land, to wit, 1,342.74 acres, for the sum of $9,722.90, and that the orders referred to, with the exception of the order dated April 9, 1907, were included in the record, of the probate proceedings in the county court of Orange county, -Tex.; and they further answered and set up that they relied upon the recitals contained in the orders, and that they were not aware of any irregularities, and believed that the orders made by the court and confirming the sale were true. They further said that they had paid the entire purchase price, and, by reason of the premises, George E. Williamson was an innocent purchaser, and, as such, became vested with the title to said property, notwithstanding any irregularities which may have existed or any steps taken by said guardian to procure said sale. That the price paid for the land was the full market value of said property ; that the said George E. Williamson, at the time of the conveyances to the other defendants, warranted the title to said prop-ertj>-, and that the other defendants now owning said land relied upon the orders above referred to, made by the county court, confirming the sale of the land, and that they believed the recitals contained therein to be true; that they had no knowledge of their irregularties complained of, at the time of the purchase; that they paid a valuable consideration for the property; and they and each of them were innocent purchasers.

Plaintiffs amended the original petition, and said that the order purporting to have been made on the 9th day of April, 1907, was in fact never made or entered, and plaintiffs further complain of the orders, because they were not signed or in any manner authenticated by the judge or clerk, nor were the minutes for the respective terms, any of them, signed or authenticated. They dismissed as to O. R. Goodman, who was discovered to be more than 23 years of age when the original petition was filed; and, in addition to the relief prayed for in the original petition, they asked for the cancellation of the deed from the guardian to- Williamson.

Tile transcript of the county clerk of Orange county, in response to the writ of certiorari, was duly returned and filed in the district court of Orange county. Charles Reviere Goodman took a nonsuit, and was dismissed from the suit without prejudice. On the 1st day of Hay, 1915, the cause was tried by the court without a jury, and judgment rendered for the appellees, to which appellants excepted and gave notice of appeal. They filed a motion for the trial court to file findings of fact and conclusions of law, and the court filed its reasons for judgment. The case has been transferred legally from the Court of Civil Appeals at Galveston to this court.

Before entering upon a discussion of the case, it will, perhaps, be well to set out the orders in full. On the 3d day of February, 1903, the court ordered' the sale, and its order reads as follows:

“On-this 3d day of February, 1903, came on to be heard the application of C. L. Goodman, guardian of the estates of said minors, to wit: Charles Reviere Goodman, Josiah Traylor Goodman, John Willard Goodman, Leland Keith Goodman, and Lawrence Hart Goodman, asking for an order to sell the following described lands, which belong to the estate of said minors, at private sale, to wit: All that certain tract or parcel of land described as follows: Beginning at the upper corner of a 3,003-acre tract owned by C. & R. K. Traylor, a post on the south bank of East Caranchua creek; thence south 45 E. with the upper line of said tract 10,744 varas to its upper back corner, a stake marked 1 on the back line of the Traylor’s pasture 82 varas N. 45 E. from the center of Reed’s creek; thence N. 45i B. with the back line of said pasture 1,550 varas to a stake marked 2; thence N. 45 W. 9,816 varas to a stake on the S. bank of E. Caranchua creek from which a post oak 12 in. marked X bears S. 25 E. 18% varas; thence down said creek with its meanders to the place of beginning, comprising within the aforesaid boundaries 2,870 acres, said land being situated on the east side of East Caranchua creek and being lot No. 1 of the partition of the estate of J. C. Traylor, deceased, and awarded by commissioners .of partition of said estate, appointed by tbe district court of Jackson county, to Mrs. R. B. Goodman; said above-described tract being composed of several tracts mentioned in the above-recited decree, those tracts not mentioned therein as being in Jackson county being situated in Matagorda county, Tex.
“And it appearing to the court that notice of said application had been given as required by law, and that a necessity exists for the sale of said lands and that, there being no objection filed to said sale, it is ordered by the court that said application be and is hereby granted, and that said guardian, O. L. Goodman, is hereby authorized to sell said above-described real estate at private sale, either for cash or for part cash and balance on time as ho shall deem best for the interest of the estate of the said minors; and he is required to make report to this court of his action in the premises.”

The guardian reported tbe sale of the land to George E. Williamson at $7.25 per acre. Tbe court, by its order entered on tbe 10th day of February, 1903, approved tbe sale and directed a deed to be made. This order reads as follows:

“This day came on to be heard in the guardianship of Charles Reviere Goodman, Josiah Traylor Goodman, John Willard Goodman, Leland Keith Goodman, and Lawrence Hart Goodman, minors, the report of O. L. Goodman, guardian of said minors, of the sale of the tracts of lands hereinafter described made in obedience to the order of this court, made and entered on the 3d day of February, A. D. 1903. And it appearing to the court that said report of sale has been filed and docketed in the manner, and for the time, required by law, and it further appearing upon examination that the sale was fairly made, and in conformity with law, and that said lands brought a fair price, and it further appearing that George B. Williamson became the purchaser of said land at private sale for the sum of $20,807.50, payable one-third in cash and the balance on a credit of on or before one, two, three and four years at 7% inteiest per annum to be secured as the law directs. That said sale ought to be confirmed, and that said land is described as follows, to wit: All that certain tract or parcel of land described as follows: Beginning on the upper comer of a 3,003-acre tract owned by O. T. and R. K. Tray-lor a post on the south bank of East Caranchua creek; thence S. 45 E. with the upper line of said tract, 10,744 varas to its upper back corner, a stake marked 1 on the back line of the Traylor pasture, 82 varas N. 45 E. from the center of Reed’s creek; thence N. 45 E. with the back line of said pasture 1,550 varas to a stake marked 2; thence N. 45 W. 9,816 varas to a stake on the south bank of B. Oaranchua creek from which a post oak 12 in. mkd. X brs. S. 25 E. 18% vrs.; thence down said creek with its meanders to the place of beginning, comprising within the aforesaid boundaries 2,-870 acres, said land being situated on the east side of East Caranchua creek and being lot No. 1 of the partition of the estate of J. C. Traylor, deceased, and awarded by the commissioners of partition of said estate, appointed by the district court of Jackson county, to Mrs. R. B. Goodman; said above-described tract being composed of several tracts mentioned in the above-recited decree, those tracts not mentioned therein as being in Jackson county being situated in Matagorda county, Tex.
“It is therefore ordered, adjudged, and decreed by the court that the said sale be, and the same is, in all respects approved and confirmed, and that the said report of sale be recorded by the clerk. And it is further ordered that the said O. R. Goodman, guardian as aforesaid, make a proper conveyance of the said land to the said George E. Williamson upon his compliance with the said terms of sale.”

On April 23, 1904, O. L. Goodman, guardian, made the following application:

“In this cause comes O. R. Goodman, guardian of the persons and estates of the aforesaid minors, and respectively shows the court that at a regular term of this court, on the 3d day of February, 1903, this court, upon application this guardian, ordered the sale, at private sale, by this guardian, of 2,870 acres of land, belonging to the estates of said minors, as is fully shown by said decree of record in volume F, pages 533 and 584, of the minutes of said court. That this guardian proceeded under said order, and sold said land to Geo. B. Williamson for the sum of $7.25 per acre, or a total sum of $20,807.50, and made proper report of said sale to this court, which was on the 10th day of February, 1903, in all things approved and confirmed by this court, and this guardian ordered to make deeds to said land, to the said purchaser thereof, upon his complying with the terms of said sale, all of which is shown by said last-named order, which is of record in the aforesaid volume F, on pages 534 and 535. This guardian now comes and reports to the court that the said Geo. E. Williamson, purchaser aforesaid of said land, has not yet complied with the terms of said sale, but is now ready and willing to comply with the terms of said sale as to 1,-564 acres of said land, as follows: 381 acres of the Patrick Green survey, Abs. 25; 238 acres of the John Norman survey, Abs. 367 ; 95 acres of the John M. Norman survey, Abs. 368; 509 acres of the R. Rawder survey, Abs. 350, the last three pieces being situated in Matagorda county, Tex.; as to the remainder of said land, there has been some question raised as to the title, and said purchaser is not yet ready to take same. That the said 1,564 acres of said land is of average value with the whole of the land ordered to be sold, and the sale thereof will in no way affect the sale or value of the remainder of the land.
“Wherefore this guardian asks that he be authorized to proceed and make deed to said 1,-564 acres of land, to the said Geo. E. Williamson, separate from the remainder thereof, upon his complying with the terms of said sale, and further prays for such further orders of the court as may be necessary and proper under the premises.
“(Signed) O. R. Goodman, Guardian.
“Sworn and subscribed to before me this 23d day of April, A. D. 1904.
“(Signed) W. J. Wingate, Judge, Orange County, Tex.
“Examined in open court, and application granted this 23d day of April, A. D. 1904.
“(Signed) W. J. Wingate, Gounty Judge.”

The court entered up a formal judgment granting this application, which is as follows:

“In the matters of the aforesaid guardianship, on this 23d day of April, 1904, came O. R. Goodman, guardian of the persons and estates of the aforesaid minors, and under oath made written report to the court that Geo. E. Williamson, to whom the sale of 2,870 acres of land belonging to the estates of said minors was confirmed by this court, on the 10th day of February, 1903, and conveyance ordered to be made by said guardian, upon the compliance with the terms of said sale by said Williamson, had not yet complied with the terms of said sale, but was ready and willing to comply with the terms of said sale as to the following portions of said land, to wit: 381 acres of the Patrick Green survey, Abs. 25; 238 acres of the John M. Norman survey, Abs. 248; 88 acres of the John M. Norman survey, Abs.-, all the above being situated in Jackson county, Tex.; also 253 acres of the John M. Norman survey, Abs. 367; 95 acres of the John M. Norman survey, Abs. 368; 509 acres of the R. Rawder survey, Abs. 350, the last three pieces being in Matagorda county, Tex. And said guardian applies and prays for authority to make conveyance to said Williamson to the aforesaid portions of said land, separate from the remainder thereof, upon the said Williamson complying with the terms of such sale as to such portions of said land. And said report and application having been heard and considered 4>y the court, and it being made to appear to the court that said part of said land is of average value with the whole of said land, and that it will not affect the sale or value of the remainder of said land to sell and convey the aforesaid portion thereof separately.
“It is therefore ordered by the court that said application be and the same is hereby granted, and the aforesaid guardian is hereby ordered and authorized to make to said Geo. E. Williamson a proper conveyance to and for the above-described parts of said land as per terms of said sale, and otherwise complying with the terms thereof.”

Pursuant to these orders Goodman, guardian, made a deed' conveying to Williamson all the land except the Newell tract, which deed bears date May 1, 1904. The title to the Newell tract was cleared up, and thereupon Goodman, guardian, executed a deed in which was copied, an order which purported to be a new or additional order made by the county court of Orange county, bearing date April 7, 1907, the order therein contained being as follows:

“In the matter of the guardianship of Charles Reviere Goodman, Josiah Traylor Goodman, John Willard Goodman, Reland Keith Goodman, and Rawrence Hart Goodman. No. 177. Pending in the county court of Orange county, Tex., April term, A. I>. 1907.
“In the matter of the aforesaid guardianship, on this 9th day of April, A. D, 1907, came O. R. Goodman, guardian of the persons and estates of the aforesaid minors, and reports to the court that George E. Williamson, to whom the sale of the 2,870 acres of land belonging to the estates of said minors was confirmed by the court on the 10th day of February, 1903, and conveyance ordered to be made by said guardian, upon the compliance with the terms of said sale by said George B. Williamson; that said George E. Williamson has not yet complied with the terms of said sale in full, on account of a cloud in the title to 1,342.74 acres of the J. D. Newell league of land in Jackson county, Tex., but that said cloud to the title to said 1,342.74 acres of the J. D. Newell league has been removed, and the said George E. Williamson is now ready and willing to comply with the terms of said sale as to said 1,342.74 acres of said land. And said guardian applies and prays for authority to make conveyance to said George E. Williamson, to the aforesaid portion of said land, upon the said Williamson complying with the terms of said sale as to such portion of said land, and said report having been heard and considered by the court and it being made to appear to the court that the sale under the order of the court on February 10th, 1903, has been pending during the removal of the cloud that affected the title to said land, which cloud has now been removed ; that the said George E. Williamson is now ready and willing to comply with the terms in full of said sale.
“It is therefore ordered by the court that said application be, and the same is, here granted and the aforesaid guardian is hereby ordered and authorized to make to said George E. Williamson a proper conveyance to and for the above-described part of said land as per the terms of said sale, and otherwise complying with the terms thereof.”

The minutes of the probate court of Orange county do not show that the last-named order was ever made or entered. Goodman, the guardian, was elected clerk of the county court of Orange county, Tex., during the year 1902. Prior to the time he assumed the duties of his office, in, to wit, November, 1902, application had been made, and he had been duly appointed and qualified as guardian of the estate of said minors. There is no testimony, direct or remote, circumstantial or inferential, that a clerk pro tempore was appointed and qualified at any time during the period covered by the orders complained of.

The district court of Orange county had only appellate jurisdiction to revise, to declare void, or set aside the particular orders and decrees complained of, and had no power or authority to act in the matter otherwise. Matters have been attempted to be injected in this proceeding in the district court, such as the fact of innocent purchasers, question of title, etc., which, according to our view, the court could not, and was without authority to, pass upon.

As early as the case of Wadsworth v. Chick, reported in 55 Tex. 241, it was held, among other things, that the probate court had no jurisdiction over contests for the estate of a decedent between the administrator and one claiming by virtue of a gift causa mortis; and the district court would acquire no jurisdiction by an appeal prosecuted by the administrator from a judgment rendered against him, and in favor of the claimant; that the probate court had neither constitutional nor statutory jurisdiction oVer such cases, and its powers and machinery are wholly inadequate to try and determine such contested issues. That court not having original jurisdiction, it would, by a familiar principle, follow that jurisdiction could not be invoked by appeal to the district court. Baker v. Chisholm, 3 Tex. 157; Davis v. Stewart, 4 Tex. 223; Able v. Bloomfield, 6 Tex. 263; Horan v. Wahrenberger, 9 Tex. 317, 58 Am. Dec. 145; Neil v. State, 43 Tex. 91.

In the case of Buchanan et al. v. Bilger et al., 64 Tex. 589, Chief Justice Willie of the Supreme Court used the following language:

“It is now the well-settled doctrine of this court that the district court has no original jurisdiction to revise and correct the proceedings, orders, and decrees of the county court sitting in matters of probate. Its jurisdiction in this respect is entirely appellate, and to be exercised by means of an appeal or the writ of certiorari as provided in our Revised Statutes. Franks v. Chapman, 69 Tex. 46.”

In the case of Micrs v. Betterton et al., 18 Tex. Civ. App. 430, 45 S. W. 430, it is held that the county court has not jurisdiction of the issue of title raised by the defense in motion to compel the administratrix to place land on the inventory of the estate; that the land, though conveyed to deceased, her husband, was paid for out of her separate means, and was her separate estate; and that the district court, while it has jurisdiction in-original proceedings to determine title to land, has not jurisdiction to do so on cer-tiorari to review the action of the county court in compelling the administratrix to place such land on the inventory, where to do so it was obliged to determine the issue of title, which was outside its jurisdiction; and the court, in passing upon said case, used the following language:

“But the county court had no jurisdiction to try or determine the title to land; and, upon such defense coming into the motion, it should have dismissed the motion for want of jurisdiction. And the district court had no more jurisdiction in this appellate proceeding by certiorari to pass upon the title to the land Sian the county court had in the first instance. And we are likewise, and for the same reason, without jurisdiction to adjudicate the question of title raised in the pleadings. We can only hold that the order of the county court of July 19, 1894, compelling the administratrix to place said land upon the inventory of the estate, is void, as well as are the orders of said court of July 2, 1895, and of July 29, 1895, each requiring and directing the sale thereof, and that they be, and hereby are, set aside, and for naught held.”

In the case of McColpin et al. v. McColpin’s Estate, 75 S. W. 824, it was held that the district court, trying a probate case appealed from the county court, has no jurisdiction to try a question of title founded on an alleged contract for adoption and heirship made with deceased on behalf of the purchaser by an orphan home society.

In the case of Williams v. Steele, 101 Tex. 382, 108 S. W. 155, the Supreme Court uses the following languagé:

“The orders of the county judge made in this estate constitute ‘proceedings of the county court,’ which the district court may review by certiorari. The fact that a proceeding is void does not prevent the district court from exercising its appellate jurisdiction. It is true that, when the court in which a judgment has been rendered has not jurisdiction, the appellate court has not power to do that which the trial court could not do; but it has authority and jurisdiction over the void proceeding's to declare their invalidity and set them aside” (citing Roy v. Whitaker, 50 S. W. 498; Gray v. Maddox, 5 Tex. 528; Aycock v. Williams, 18 Tex. 397).

It is held in Hallam v. Moore, 126 S. W. 908, that neither the parties themselves nor the district court could, after appeal to such court from a judgment of the county court in a suit involving matters purely of probate, convert such suit into one of trespass to try title, and that the district court’s jurisdiction being only appellate was not extensible beyond that of the county court. The court says:

“It must remain in the district court the same suit that it was in the county court; for the district court’s jurisdiction in the matter is only appellate, and cannot be extended beyond that of the county court. The error of consolidating the probate case with the cases of trespass to try title had its origin in the county court’s allowing appellees in this case to appear in the county court and contest the administration of the administrator to distribute the fund on hand. Their claim to the land, as purchasers of one of the distributees or devisees pending the administration, did not entitle them to intervene or interfere in the matter; for they were in no wav interested in the estate or connected therewith, and had no right to make themselves parties to the administration, or in any way meddle therewith. * * * The assertion of their claim would be a matter between them and Mrs. Aller-dyee, to be fought out between them in a court having jurisdiction of the matter.”

We believe, from the above and numerous other authorities that the action of the district court, in considering matters other than the validity of the orders complained of, was unwarranted; and nothing will he considered by this court save and except the validity of the orders made and entered in the probate court, and upon which it was the duty of the district court in this proceeding solely to have passed upon. The effect of the holding of this court, with reference to the validity of the orders.made in the probate court, is a matter about which this court is not concerned. We conceive, as above said, that it is our duty alone, as the district court should have done, to pass upon the' said orders so made in the probate court in the guardianship proceeding.

Appellants challenge, in their first assignment of error, the holding of the lower court “that the provisions relating to the disqualification of the clerk and the appointment of a clerk pro tempore related to county clerks in their capacity of county clerks as distinguishable from the capacity of probate clerks.” We can see no reason for any such distinguishment. The law is plain; and, when the Legislature, by the act of 1887 pertaining to the appointment of a county clerk pro tempore, used the language which, in our judgment, could only mean what the words in thejr ordinary signification import, we are of opinion that we are not permitted to ignore the plain, unambiguous meaning of the statute. The act is as follows:

“County Clerk Px-o Tem.; Appointed, When. In all cases wherein any county clerk in this state is, or shall hereafter be, a party to any pending or proposed suit, motion, or proceeding in his court, the county judge in whose court the same may be pending or proposed shall, either in term time or in vacation, on application of any person interested, or of his own motion, appoint a elei’k pro tempore for the purposes of such suit, motion, or proceeding.” (Acts of 1887, p. 102).
“County Clerk Pro Tem.; To Qualify and Give Bond. Any person so appointed clei-k shall take the oath to faithfully and impartially perform the duties of such appointment, and shall also enter into 'bond, payable to the State of Texas, with one or more good and sufficient sureties, in such amoxxnt as may be requii’ed by the judge, to be approved by him, and conditioned for the faithful pei-formance of his duties under such appointment. The person so appointed shall perform all the duties required by law of the clerk in the particular suit, motion, or proceeding in which he may be appointed.” (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1745, 1746.)

Without going into further details, we sustain the first assignment of error.

By their second assignment of error, appellants challenge the action of the lower court in holding that the disqualification of the clerk would not render the proceedings void. Goodman was county clerk in February, 1903, and at all times when the orders complained of were entered in the probate court. We are unable to understand by what process of reasoning the court could infer, by the silence of the record, that thex-e had been, in fact, a clerk pro tempore appointed. There is, as said before, no testimony of any kind from which such an inference could be drawn, and the mere silence of the record would not indicate, to our minds, that such clerk pro tempore had been appointed, but would indicate that such appointment had not been, made. No effort was made to show any circumstance that would even tend to indicate such an appointment was made; but the fact appears of record that Goodman, the guardian, was acting as clerk at the time the orders were made, and entered the orders and decrees in which he was interested as guardian. Evidently, the Legislature intended, for many good and sufficient reasons, that a clerk should not act in any manner, as clerk, in which he was a party to any pending or proposed suit, motion, .or proceeding in his court.

It is true that the probate court of Orange county, Tex., had acquired jurisdiction of the estate, the guardian having been appointed and qualified as such before Goodman became clerk of said court; but we are at a loss to understand how the probate court of Orange county could exercise jurisdiction theretofore obtained, and make and enter orders concerning an estate, with no legally qualified or acting clerk of said court.; the clerk at that time being interested as guardian, and being a party to said proceeding. Therefore we are of opinion that the orders complained of were void on this account. The second assignment of error is, therefore, sustained, which, as we view it, practically disposes of this case.

From what has been said above, it follows that the action of the lower court in presuming that a clerk pro tempore was appointed to enter orders was unwarranted. It would serve no good purpose for us to elaborate upon what has been said, and to follow counsel in their various propositions and counter propositions, which could only result in the discussion of academic questions, not proper or useful in the adjudication of this case. As said before, many of the various questions should not have been either raised or passed upon by the lower court, because not germane to the solution of any real issue raised in passing upon the validity of the orders of the probate court, and the question of title or innocent purchaser, of the effect of our holding that the orders made in the probate court were void, of whether the purchaser was not compelled to go behind the order of sale, etc. — these things could not be litigated in the district court in this proceeding, but, as said above, the inquiry should have been confined to the question of whether the orders made by the probate court were void, or whether'.they were voidable, whether they were mere irregularities, or whether the defect was fatal to said orders.

The other questions raised on this appeal, with reference to the validity of the orders, to the effect that it was not shown that it was necessary for the sale of the land to be made, or whether the purported order recited in the deed of 1907 was ever entered, or whether the court was permitted to consummate the sale under previous orders, without an additional order — these things we deem it not essential to pass upon, but, as indicated above, rest our decision as to the validity of the orders upon the fact alone that the guardian, at the time these orders and applications and decrees and judgments were entered, was the clerk of the county court of Orange county, Tex., and that no clerk pro tempore was appointed, and that the court, with reference to these matters, could not exercise its jurisdiction in the making and entering of said orders, and that the same are void and without force and effect. So believing, we hold the action of the lower court was error, and that the judgment of that court should have been that the orders complained of are void, and that it shall be so certified to the county court of Orange county, Tex., for observance.

The judgment of the lower court is therefore reversed, and judgment is here rendered declaring said orders complained of void. It is so ordered.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    McDANIEL v. STATE.
    (No. 4047.)
    (Court of Criminal Appeals of Texas.
    May 3, 1916.
    Rehearing Denied May 31, 1916.)
    1. Criminal Law <&wkey;1106(l) — Appeal and Error — Transcript—Statute.
    Under Code Cr. Proc. 1911, art. 931, making it the duty of the clerk of court to forward the transcript to the Court of Criminal Appeals, there is no duty upon the defendant or his counsel to forward the transcript, although the clerk relies on the defendant’s attorneys to do so.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2890; Dec. Dig. <&wkey;1106(l).]
    2. Embezzlement <&wkey;44(5) — Evidence—Sufficiency.
    In a prosecution for embezzlement, where horses were delivered to defendant to be sold, there being a conflict in evidence as to whether or not defendant purchased the stock, evidence held to justify a verdict that' defendant acted as agent in handling the stock.
    . [Ed. Note. — For other cases, see' Embezzlement, Cent. Dig. § 70; Dec. Dig. <&wkey;44(5).]
    3. Criminal Law <&wkey; 112(4) — Venue — Statute.
    Under Code Cr. Proc. 1911, art. 251,. providing that one charged with embezzlement may be prosecuted in the county in which he came into possession of the property, where a bill of lading of a shipment of horses, consigned to a firm of which he was a member, was delivered to the defendant in Coleman county, there was a delivery, and he came into possession of the stock, sufficiently to give Coleman county jurisdiction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 236; Dec. Dig. <&wkey;>112(4).]
    4. Criminal Law <&wkey;371(2) — Evidence—Other Offenses.
    In a prosecution for embezzlement of horses delivered to defendant for sale, where defendant contended that he delivered the horses in payment of his own debt under an honest belief that he had a right to do so and with no intent to defraud, evidence introduced by state that he had sold other horses received at the same time and place, and had appropriated the money and property received to his own use, was admissible as tending to show his intent in the transaction charged.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830, 831; Dec. Dig. <§=> 371(2).]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    W. L. McDaniel was convicted of embezzlement, and he appeals.
    Affirmed.
    J. B. Bisland, of Orange, for appellant. Critz & Woodward, of Coleman, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant ,was convicted of embezzlement, and his punishment assessed at two years’ confinement in the state penitentiary.

The state has moved to dismiss the appeal because of the delay in filing the transcript in this court. Article 931, Code of Criminal Procedure, makes it the duty of the clerk of the court to forward the transcript to this court, and there is no duty, as in'civil cases, devolving upon defendant or his counsel. If the clerk relied on appellant’s attorneys to forward the transcript, he had no right to do so under the law. It being the duty of the various clerks of the different courts to promptly forward the transcripts to this court, under the circumstances here shown we do not feel we are authorized to dismiss the case from the docket.

Appellant’s counsel, in their argument in this court, conceded that, viewed in the light of the hearing had on the motion for new •trial, and the court’s qualification of the bill, there was no error in overruling the third application for a continuance, therefore we will not discuss that bill.

In the presentation of the case to this court reliance seemed to be chiefly placed in the .proposition, raised in various ways, that the district court of Coleman county had no jurisdiction over the offense — that appellant came into possession of the property in Bra-zoria county, and if he embezzled the property it was in that county. There is no question in this case the embezzlement took place in Brazoria county, if under the evidence appellant was guilty of embezzling the property ; but article 251 of the Code of- Criminal Procedure provides that one charged with embezzlement may be prosecuted in the county in which he came into possession of the property. Cohen v. State, 20 Tex. App. 228; Brown v. State, 23 Tex. App. 217, 4 S. W. 588; Burk v. State, 50 Tex. Cr. R. 187, 95 S. W. 1064; Cole v. State, 16 Tex. App. 409; O’Marrow v. State, 147 S. W. 252; Poteet v. State, 69 Tex. Cr. R. 322, 153 S. W. 863.

Appellant’s contention is that he did not receive the property in Coleman county, but came into possession of it in Brazoria county, and, if his contention is correct, Coleman county would not have venue of this offense. The evidence shows, without controversy, appellant, who lived in Brazoria county, and Weldon Winn, who lived in Coleman county, formed a partnership for the growing and sale of hogs. Mr. Winn shipped the hogs from Coleman county to appellant in Brazoria county, where the business was carried on under the name of Winn-McDaniel Hog Company at Alvin, Tex. During the time of the continuance of this partnership Mr. Winn had a jack, stallion, and some other horses he desired to sell, and wrote appellant in regard to selling the stock for him. After correspondence, appellant went to Coleman county to see the stock, and while there the trade was made whereby the stock were to be delivered to appellant in either one county or the other — the contentions varying, also the terms upon which appellant was to receive the stock. Appellant’s contention is that the stock-were sold to him by Winn at a named price, wholly on a credit, and were to be delivered by Winn to him in Bra-zoria county. Mr. Winn’s contention is that the stock were delivered to appellant in Coleman county as his agent; appellant to pay the freight on the stock, and to receive as compensation for his services all sums for which he should sell the stock over and above a named price. If the title to the stock passed to appellant, he would not be guilty of embezzlement; but the testimony offered by the state would show that the title ,was in no event to pass to appellant, and he came into possession of the stock as agent, to sell on commission. This issue was submitted to the jury, the court instructing the jury:

“Xou are instructed in this case that if you believe from the evidence that the defendant bought the stock in controversy from Weldon Winn, or have a reasonable doubt thereof, you will acquit the defendant.”

In bringing in a verdict of guilty, the jury necessarily found appellant did not purchase the stock, and there is evidence in the record authorizing them to so find, and find that appellant was acting as agent in handling the stock. On the issue of whether or not he received the stock in Coleman county, the evidence for the state ¿nd defendant is conflicting. Appellant testified that, whether he purchased the stock or received them as agent for the owner, the owner was to deliver the stock to him at Alvin, in Brazoria county. ' He admits he paid the freight charges, but says he was to be reimbursed by Mr. Winn. The state’s testim'ony is that, after looking at the stock, appellant went to Santa Anna and found out what the freight charges would be; that he agreed to take the stock and sell them at prices named by the owners, he to receive all sums over the amounts named to reimburse himself in the freight charges paid, and as pay for his services. All the parties were along when the stock were driven from the range to Santa Anna to be loaded on the cars.- The state’s testimony is that appellant assisted and superintended the loading of the stock. Appellant’s contention is that Mr. Winn and his employés loaded the stodk, and he had nothing to do with it. While there is some conflict, yet it may be said to be shown that Mr. Winn went to the agent and secured the bill of lading; it reading that Weldon Winn was the consignor, and the Winn-McDaniel Hog Company consignee. It is shown beyond question that the bill of lading was delivered to appellant at Santa Anna in Coleman county. He so testified, and that he used it as a pass on the railfload back to Alvin, Did the delivery of the bill of lading to appellant constitute a receiving or delivering of the stock to him? He was a member of the firm to whom the stock were consigned, and from the moment he.came into possession of the bill of lading he came into possession of the stock. If the stock had been injured or killed in the railroad yards, he could have maintained suit on the bill of lading; it having been delivered.

Appellant contends that a delivery of the biU of lading did not constitute a receiving of the stock by him, although he admits the freight charges were to be paid by him; but this court has held that such delivery was a receiving of the property by him. In the case of Cohen v. State, 20 Tex. App. 228, this identical question was passed on by this court in a well-considered opinion by Judge White. In that case Cohen had never had the goods in his manual possession, but the goods were placed on the train by his principal, and the check therefor delivered to him in Galveston. The court said:

“It is insisted that, if any offense was committed by appellant, it was not committed in Galveston county, and that hence the criminal district court of said county had no jurisdiction to try and determine the same. The position assumed is that the goods were not actually delivered by the firm to defendant, and that they did not come into his possession as agent in Galveston county; that the delivery and possession in said county was only constructive, if a delivery to him of the checks for the trunks at Luling, their destination, could in any manner be called a delivery and possession of the property; that Luling was the point in fact at which the trunks were to be delivered and his possession and agency to commence. Upon this point the learned trial 'judge instructed the jury: ‘If the property was actually delivered into his possession, or if it was shipped by his direction or with his knowledge and approval to another point by rail, where the defendant himself in his agency and employment was going, and checks taken therefor and delivered to him in Galveston by virtue of which defendant controlled the possession of the property, it is alike in legal effect, and no further act was necessary to make complete in him the possession and authority to control the property for the purposes of his agency and employment,’ etc. This was a correct statement of the law of the case. There can be no question, in our opinion, that defendant’s possession and control of the goods was complete, under the circumstances stated, in Galveston county. By selling the checks for the trunks to a third party in Galveston, he certainly could have transferred the title and right to said third party to receive and demand possession of them at Luling; and we imagine that the checks would have entitled him to demand possession of the trunks in Galveston before they were shipped to Luling. We are of opinion the venue of the offense was properly laid in Galveston county. The property came into his possession in Galveston county as agent of the firm.”

So in this case, when the bill of lading was delivered to him, he was the consignee named in the bill; he came into possession of the animals, and Coleman county had venue of the case. Eor other authorities so holding, see Branch’s Penal Code, vol. 2, p. 1408.

We have discussed the case as though appellant received the two horses, which he is charged to have embezzled in this indictment, from Mr. Winn, as that was his contention. The state’s case, though, is that appellant received the two animals from W. L. Swann, under an agency to disp'ose of them for Mr. Swann. Mr. Swann and Mr. Winn both so testify, while appellant alone contends that Winn bought the animals from Swann and let him have them. This issue was also submitted to the jury, and they found against appellant.

Appellant objected to any testimony as to what he did with any of the other animals he received at the same time and place. The question was in this case as to whether appellant had any criminal intent in delivering the animals received from Swann to John M. Moore in payment of his (appellant’s) debt to the King-Heins Lumber Company. Appellant was contending that he sold the horses under an honest belief he had the right to do so, with no intent to defraud Swann. That he had sold other horses received at the same time and place and under the same circumstances, and had appropriated the money and prop.erty received to his. own use and benefit, was admissible as tending to show his intent in the transaction charged, and the testimony was ¿o limited in the court’s charge. Long v. State, 11 Tex. App. 387; McCall v. State, 14 Tex. App. 362; Harwell v. State, 22 Tex. App. 253, 2 S. W. 606; Kelley v. State, 31 Tex. Or. R. 211, 20 S. W. 365; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376; Stanfield v. State, 43 Tex. Cr. R. 12, 62 S. W. 917; Lynne v. State, 53 Tex. Cr. R. 377, 111 S. W. 729.

There are other questions in the record, •but they are not discussed in the brief filed by appellant’s counsel, nor in his oral argument before this court. We have reviewed each of them, however, and hold that none 'of them present error.

The judgment is affirmed.
      ®=For other oases see same topic and KEY-NUMDElt in all Key-Numbered Digests and Indexes


text:
    TURNER v. STATE.
    (No. 4036.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.
    On. Motion for Rehearing, May 3, 1916. Rehearing Denied May 31, 1916.)
    1. Criminal Law &wkey;1099(10) — Appeal and Error — Record — Statement op Eaots — Signing.
    To be of any validity whatever, the statement of facts must be approved and signed by the trial judge.
    [Ed. Note. — For other cases, see Criminal Í699(ionnt' Dis‘ § 2873; Dec- r)is' ^
    2. Criminal Law &wkey;1144(14) — Appeal and Error — Review—Presumption.
    In the absence of a statement of facts, if the charge of the court 'below is applicable to any state of facts that might have been proven under the indictment, the Court of Criminal Appeals will presume the trial court1 submitted to the jury the law, and all the lawi applicable to the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032; Dec. Dig. ;&wkey;1144(14); Jury, Cent. Dig. §§ 306, 330, 347,
    On Motion for Rehearing.
    3. Homicide <&wkey;292(4) — Assault to Murder —Instruction.
    Upon trial for assault to murder, where accused did not know at the time that the alleged assaulted persons were officers or intending to arrest him, it was not error to refuse a special charge as to the illegality of the attempted arrest or warrant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 600; Dec. Dig. <§=292(4).]
    • 4. Homicide <&wkey;310(2) — Assault to Murder — Instruction.
    In such case, where appellant used a rifle at close range, claiming the assaulted persons menaced him with a gun, a charge on the issue of aggravated assault was not required.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 658; Dec. Dig. &wkey;310(2).]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Sanford Turner was convicted of assault to murder, and appeals.
    Affirmed.
    E. T. Simmang, of Giddings, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at ten years’ confinement in the state penitentiary.

The only bills of exception in the record complain of the action of the court in failing to give several special charges requested by appellant. There is with the record what purports to be a statement of the evidence had on the trial of the case, but it does not show to have ever been presented to the trial judge, and it is not approved nor signed by him. To be of any validity whatever, the statement of facts must be approved and signed by the trial judge. Lawrence v. State, 7 Tex. App. 192;. Bennett v. State, 16 Tex. App. 236; Johnson v. State, 29 Tex. 492; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; and cases cited under section 1169, White’s Ann. C. C. P. With no statement of the evidence we are authorized to consider, we cannot pass upon whether the special charges should have been given; for, in the absence of a statement of facts, if the charge is applicable to any state of facts that might be proven under the indictment, this court must presume the trial court submitted to the jury the law, and all the law, applicable to the testimony. Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004, and cases cited under section 1170, White’s Ann. C. C. P.

The judgment is affirmed.

On Motion for Rehearing.

On a former day of this term this case was affirmed, without passing on the merits. Since that time the clerk has sent to this court a statement of facts, approved by the trial judge, and states it was by mistake on his part this statement did not accompany the record originally; and under the circumstances appellant is entitled to have it considered.

The evidence would show without dispute that a complaint was filed in the county court by Wash Austin charging appellant with tearing down Austin’s fence. A warrant was issued and placed in the hands of Constable John Wegenhoft, who got A. M. Reed to go with him, and they went to appellant’s place to arrest Mm on tMs warrant. Arriving at appellant’s lióme, they inquired of his sister for him, and were told that appellant was in the field at work, giving directions. From this point there is a sharp conflict in the testimony. The state’s case, as sworn to by Wegenhoft and Reed, is that, when they came in sight and near appellant, he dropped his plow lines and made for a Winchester rifle that was leaning against a’ tree; that Wegen-hoft called to him: “Sanford, don’t pick up that gun.” Appellant paid no attention to the remark, but grabbed his gun and shot at Wegenhoft. The constable and Mr. Reed say they dodged in the bushes, when appellant shot again; that they then returned the shots. Mr. Reed and appellant both received wounds on this occasion.

Appellant’s contention is, and in it he is supported by his sister, Annie Turner, that when he saw Wegenhoft and Reed approaching he did not recognize them, and when they got near to him, and before he turned his plow loose, one of them threw a gun in shooting position, and said, “Oh, yes, old negro, we have got you now;” that he ducked between his plow handles and ran for his rifle; that before he got to his rifle they shot at him, and fired at him a second time before he shot his rifle. Thus it is seen there is a direct conflict in the testimony.

Appellant excepted to the court’s charge in two particulars, and the court gave two of appellant’s requested charges, covering the matters complained of in the exception to the charge. There was no exception to the charge on the ground that it did not submit aggravated assault, but a number of special charges were requested on the issue of aggravated assault, and it is to the failure to give these charges and each of them the bills of exception were reserved.

Appellant contends that the court should have instructed the jury that the attempted arrest was illegal, as no information had been filed when the warrant was issued. We think the court was correct in holding that it was immaterial whether the warrant was legally or illegally issued. The constable never got to the point where he attempted to make any arrest, according to the testimony of both the state and the defendant. According to the state’s testimony, when the officer got in good view, appellant made for his rifle before the officer spoke to him or attempted to make any arrest, and when the officer did speak, he said, “Sanford, don’t pick up that gun,” when appellant picked it up and at once shot. If appellant had waited a few minutes until the officer got to him, doubtless he would have attempted to make an arrest, and then the issue sought to be raised by appellant in his special charges might be in the case. According to the defendant’s testimony, he did not know the two men were officers, and they said and did nothing to apprise him of that fact, or that they were coming to arrest him, but that they instead threw a gun in shooting position and said, “Oh, yes, old negro, we have go you now,” and he thought they intended to kill him. There was no attempted arrest, and no resistance of an attempted arrest, nor could it, nor did it so appear to defendant according to his own testimony. He swears most positively he did not know the men were officers, and they said or did nothing to apprise him of that fact, or that they were approaching him to effect an arrest. He says he thought they were men hunting. As there is no resisting an .officer, attempting to illegally make an arrest, and appellant used a Winchester rifle at close range, the issue of aggravated assault is not in the case. The court fully presented self-defense in his main charge and in the special charges given at the request of appellant. The evidence only raises the issues of assault to murder and self-defense, and, these issues being fully and properly presented, the judgment should be affirmed.

The motion for rehearing is granted in order that the case might be heard on its merits, but the judgment is again affirmed.
      <@=s>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    MEDLOCK v. STATE.
    (No. 4076.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.)
    1. Criminal Law &wkey;>1102 — Statement oe Facts — Striking Out.
    A statement of facts filed by appellant long after the time authorized by law must be stricken out on motion of the Attorney General.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. <&wkey;1102.]
    2. Criminal Law &wkey;202(3) — Former Jeopardy — Identity oe Oeeenses — Liquor Laws.
    . In a prosecution for a misdemeanor in violating the prohibition liquor law in making a single sale of intoxicating liquor to a person named, a plea that defendant had been tried and convicted for unlawfully engaging in the business of selling intoxicating liquors in prohibition territory, partly on the testimony of the witness to whom the single sale was alleged to have been made,was not good as'a plea of former jeopardy, since the offenses were separate and distinct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. &wkey;202(3).j
    Appeal from Gregg County Court; J. H. McIIaney, Judge.
    Charlie Medlock was convicted of violation of the prohibition law, and he appeals.
    Affirmed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for a violation of the prohibition liquor law in making a single sale of intoxicating liquor to one Lee — a misdemeanor.

There is in the record a statement of facts, but filed long after the time authorized by law. The Assistant Attorney General's motion to strike it out on that account must be sustained, but it is very brief, and we have read it. Even if it had been filed in time, the evidence would clearly justify the conviction.

In addition to denying the sale, appellant pleaded former jeopardy in that he was before then tried and convicted for unlawfully engaging in the business of selling intoxicating liquors in prohibition, territory. It seems the basis for his claim of former jeopardy was that said Lee, who testified against him in his former conviction, also testified in this case, and that it was this witness to whom a single sale was alleged herein and upon whose testimony he was convicted of this misdemeanor. This question has repeatedly been decided against appellant by this court. The two offenses are separate and distinct, and neither is former jeopardy of the other. Robinson v. State, 66 Tex. Cr. R. 392, 147 S. W. 245; Wilson v. State, 69 Tex. Cr. R. 567, 154 S. W. 571; Barnes v. State, 185 S. W. 2, recently decided, but not yet officially reported.

The judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes