author: MOURSUND, J.

text:
    WILLIAMS et al. v. WATT et al.
    (No. 5348.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 18, 1914.
    Rehearing Denied Dec. 9, 1914.)
    1. Corporations (§ 556) — Rights or Stockholders — Receivers.
    Under Rev. St. 1911, art. 2128, providing that where a corporation is insolvent, or is in imminent danger of insolvency, a receiver may be appointed, a stockholder of a corporation is not entitled to the appointment of a receiver on the ground that it is insolvent, or in imminent danger of insolvency, unless he has cause of action against the corporation independent of his interest as a stockholder.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2219-2226; Dec. Dig. § 556.]
    2. Corporations (§ 553*) — Stockholders — Rights oh — Receivers.
    Courts of equity will not appoint a receiver of a corporation at the suit of a stockholder on the ground of fraud, mismanagement, etc., on the part of the corporate authorities, but will merely enjoin or forbid the wrong complained of.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2201-2216; Dee. Dig. § 553.]
    3. Receivers _(§ 35) — Appointment—Notice.
    While notice of an application for the appointment of a receiver is not required by statute, notice should be given, save in case of emergency.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 54-60; Dec. Dig. § 35.]
    4. Receivers (§ 35) — Vacation of Appointment — Notice.
    Though a petition did not warrant the appointment of a receiver without notice, such appointment will not be vacated on appeal for that reason, where an answer was filed.
    [Ed. Note. — Eor other cases, see Receivers, Cent. Dig. §§ 54-60; Dec. Dig. § 35.]
    5. Appeal and Error (§ 101) — Decisions Appealable.
    No appeal can be taken from an order denying a motion to vacate the appointment of a receiver, but the appeal must be from the order making the appointment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 681-687; Dec. Dig. § 101.]
    6. Injunction (§ 27) — Enjoining Receiver —Grounds for.
    That a receiver is unfit, or is not properly discharging the duties of his office, is no ground for enjoining him from acting, or enjoining parties on whose petition he was appointed from further prosecuting their suit, for the surety on the receiver’s bond is liable for any misconduct.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    7: Injunction (§ 27) — Enjoining Receiver.
    That a receiver was surety upon the cost bond of the plaintiff, at whose suit he was appointed, and that such plaintiff was indebted to the corporation for which a receiver was ordered, is no ground for enjoining the receiver from acting; the court never having been asked to remove him nor to order him to sue plaintiff.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    8.Injunction (§ 27) — Enjoining Receiver.
    That a receiver is selling property of a corporation to himself is no ground for enjoining him from continuing to act, for his bond will protect those injured.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    9. Injunction (§ 27) — Enjoining Receiver.
    Where a receiver of the assets of a corporation was ordered by the -court to sell them, he will not be enjoined from selling because the assets may be sacrificed.
    [Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    10. Injunction (§ 27) — Enjoining Receiver —Grounds for.
    Where a receiver of a corporation was appointed, the fact that the trial court refused to hear the plea in abatement of those objecting to the appointment until he tried the case upon the merits is no ground for enjoining the receiver from acting, and those who instituted the receivership suit from continuing to prosecute it.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    11. Injunction (§ 128)r-RECEiVERSHip Proceedings — Evidence.
    In a suit where it was sought to enjoin a receiver, appointed at the suit of stockholders of a corporation, from continuing to act, and the stockholders from prosecuting their suit, evidence held insufficient to show that the stockholders were guilty of such fraud in procuring their stock that the receivership should be set aside.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 278; Dec. Dig. § 128.]
    12. Injunction (§ 7) — Scope of Remedy.
    Where a party could have procured relief 'by appeal from an order of which he complained, he is not entitled to an injunction to give him the same relief.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. § 7.]
    13. Injunction (§ ’27) — Right to Enjoin Receiver.
    That a receiver of a corporation is conducting the business at a loss, while it had been before conducted at a profit, is no ground for enjoining him from continuing to act as such.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 50, 51, 53; Dec. Dig. § 27.]
    14. Injunction (§ 152) — Temporary Injunction — Orders.
    It is proper, upon the hearing for a temporary injunction to restrain a receiver from acting, to refuse to restrain the parties at whose suit he was appointed from continuing to prosecute their suit.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. § 152.]
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Action by J. A. Williams and others against R. F. Watt and others. From an order denying a temporary injunction, plaintiffs appeal.
    Affirmed.
    T. Wesley Hook, of Kingsville, for appellants. Pope & Sutherland, of Corpus Christi, and Pollard & Crenshaw, of Kingsville, for appellees.

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

   MOURSUND, J.

This is an appeal from an order made by Hon. W. B. Hopkins, judge of the Twenty-Eighth judicial district, refusing to grant a temporary injunction. The injunction was applied for by J. A. Williams, the Kingsville Planing Mill & Manufacturing Company, a Texas corporation, and about 15 other persons and companies, and it was alleged that plaintiffs comprise all the stockholders of said corporation, except Don Payne and E. M. Crawford, two of the defendants, and comprise the holders of eight-tenths of the liabilities of said corporation, exclusive of what is due stockholders for their stock.1 The petition is long, and, together with the exhibits attached thereto, comprises about 160 pages of typewritten matter. It was alleged that on February 21, 1914, upon the petition of Don Payne and E. M. Crawford, a copy of which was attached as an exhibit, and without notice to plaintiffs, R. F. Watt was appointed receiver for said corporation; that on March 4, 1914, said J. A. Williams and the said corporation, through their then counsel, Judge Reese, prepared a motion to vacate said receivership proceedings, and sought a hearing upon the same, but the judge did not grant a hearing until the district court met in Kleberg county on May 19, 1914, when he granted a hearing upon an amendment to said motion and overruled it; that evidence was introduced upon said hearing, a copy of which was attached as an exhibit, as well as copies of the motion and answer thereto.

It was further alleged that the said evidence showed the following: (a) That the stock issued to Payne and Crawford had been issued without their having paid anything into the corporate funds, and consequently they were not stockholders, and not entitled to maintain a stockholders’ action for a receiver for said corporation; (b) that neither of said stockholders had a cause of action against Williams, or any one else, other than that they wished the said corporation’s affairs wound up, and the appointment of a receiver for such reason only was not justified at the instance of a stockholder; (c) that no creditor has asked for the receivership, but eight-tenths of the creditors opposed the same, and the assets of said corporation, if sold, would just pay the creditors, and there would be nothing left for the stockholders, and the latter, therefore, had no real interest in the proceeding; (d) that the receiver was an interested party, because he was one of the bondsmen on the cost bond filed in the proceeding for a receiver, and said receiver will probably be called upon to páy such costs; (e) that one of the bondsmen of the receiver had withdrawn from the bond; (f) that the receiver had been appointed on a petition false as to all material allegations.

It was further alleged that thereafter both parties announced ready on these petitioners’ plea in abatement and demurrers to the petition for said receivership, and, a jury being demanded, the court refused to hear said plea, but that it should have been granted because said evidence showed: (a) That Payne and Crawford had stock issued to them without paying therefor, and the same should be canceled, and then they could not maintain a stockholders’ action for receivership proceedings, and, not being 25 per cent of the creditors, could not maintain a creditors’ action therefor; (b) that Payne and Crawford had no interest in the property of the corporation now, and therefore could not maintain an action for a receiver for it against the opposition of eight-tenths of the creditors thereof.

It is further averred that the demurrers were overruled, but should have been granted; that the court, after announcing that the cause had been continued, fixed the receiver’s salary at $100 per month, without giving petitioners an opportunity to object; that the receiver was given notice of the withdrawal of one of his bondsmen; that the receiver is selling the assets of the company, consisting of a stock of lumber, in order to pay his salary, and is hiring a man to run the mill of the company, paying him $4 per day, and is selling lumber to himself for 21 per cent, less than it is worth, and is constantly depleting the assets of the corporation to pay his salary and the other running expenses of the business; that the mill does not pay running expenses and the receiver is running same at a loss of $150 per month, and the receiver’s salary should be but $25 per month as mere custodian of the property, as many other receivers could be procured for that amount; that the action being prosecuted by Payne and Crawford is maintained for the sole purpose of forcing plaintiff to buy them out; that their stock is worthless; that they will not submit any “give or take proposition,” nor accept such a proposition made by plaintiffs, to the effect that plaintiffs will pay all the creditors if the assets of the corporation are turned over to them, or will turn over the assets to Payne and Crawford if they will pay all the creditors; that plaintiffs have no adequate remedy at law; that the time for appealing from the order appointing the receiver expired without any appeal being taken, and plaintiffs believe no appeal will- lie from the order overruling the motion to vacate the receivership; that there are 8 civil cases on the docket of the district court of Kleberg county ahead of this case, and there are 15 criminal cases on said docket; that said court holds but one week every six months; that it will take a week to try this case, and the court will not take up the plea in abatement until he tries the case; that the assets of the corporation are constantly being depleted ; that the total assets of the corporation consist of about $1,500 worth of machinery and “some $3,000” worth of lumber, material, etc., and a drain upon the same of $250 per month on account of the receivership will soon deplete such assets; that the liabilities amount to just about the same sum of money, but if the assets were sold during this time of money stringency plaintiffs could not raise sufficient money to bid them up to their face value, and besides such purchase would amount to a recognition of the receivership, but the assets, with careful handling and with the line of business and credit the corporation had built up, would hare been worth more than the said sum, and to a degree the result is still obtainable if the property of the corporation is turned back to it; that the evidence adduced upon the hearing of the motion to vacate shows that plaintiff Williams, while manager of the corporation, conducted the business in a manner so satisfactory to the creditors that none of them have ever concurred in the application for a receiver, and enhanced the •assets to the extent of $1,000, comparing same with the liabilities, and had an active business and a nice line of credit; that the property should be turned back to the corporation, because the receiver is unable to conduct the business successfully, and in fact is running same at a loss of about $150 per month. Plaintiffs prayed that Watt be restrained from acting longer as receiver, that Payne and Crawford be restrained from further prosecuting their suit for a receiver for said corporation, that the sheriff deliver the property of the corporation back to it, that the stock issued to Payne and Crawford be canceled, and for general relief.

Defendants answered, but their answer was not verified as required by law. Plaintiffs excepted to the sufficiency of the verification, but the court overruled such exception.

In this state a court of equity has no power to appoint a receiver of a corporation ancillary to a stockholder’s suit to wind up its affairs. Article 2128, Statutes of 1911, does not entitle a stockholder to the appointment of a receiver for the corporation upon the ground of insolvency, or imminent danger of insolvency, alone; but a stockholder urging such ground must, in addition thereto, show that he has a cause of action against the corporation independently of the receivership, and that his interest as such stockholder' requires the appointment to be made. People’s Investment Co. v. Crawford, 45 S. W. 738; Farwell v. Babcock, 27 Tex. Civ. App. 162, 65 S. W. 509; Iron Co. v. Blevens, 12 Tex. Civ. App. 410, 34 S. W. 828. In said case of People’s Investment Co. v. Crawford, the. court held further:

■ “Courts of equity, by virtue of their general equitable jurisdiction, will not appoint a receiv-. er of a corporation, and assume control and mandgement of its affairs, at the suit of a stockholder alleging fraud, mismanagement, and collusion on the part of the corporate authorities, or ultra vires acts of the directors or of the corporation itself, but in such cases will limit the redress granted to the specific wrongs eharg-'cd, and will go no further than to enjoin or forbid the misconduct complained of. Land Co. v. Blevens, 12 Tex. Civ. App. 410, 34 S. W. 832-834; Hugh, Rec. § 288; 2 Cook, Stock. Stockh. & Corp. Law, §§ 746, 747, and 863, at page 1414; Mor. Priv. Corp. § 281.”

1 The petition for receiver in this case alleges certain irregularities on the part of the’ officers in control of the corporation with respect to .the holding of meetings and conduct of the affairs of the corporation. Such acts, under the authorities cited, did not entitle Payne and Crawford to have a receivership instituted. Payne alleged in one part of his petition that the capital stock of the corporation, amounting to $15,000, was fully paid up; further on he alleges that $5,000 thereof has not been paid for, and that he and Crawford and Huber, who owned all the stock, made a contract with appellant Williams to transfer Williams $8,000 worth of their stock if he would pay the $5,000 into the corporation in lumber, and that Williams breached the contract and only paid in $1,000 worth of lumber. The corporation is in no manner liable to them by reason of their sale of stock to Williams. It was further alleged that the corporation had for a valuable consideration assumed the payment of a note upon which there was due $3,640, signed .by Payne and Crawford, which was past due and unpaid, and a note for $316, signed by Payne, which had not matured. As Payne and Crawford were contracting with Williams. to pay $5,000 to .the corporation, the unpaid portion of the stock, it is apparent they owed that amount to the corporation, and could not be injured by having to pay the sums above mentioned for the corporation. The petition further shows that the corporation had property of the probable value of $9,500, and debts of about $6,656; but no importance is attached to the fact that Payne and Crawford owed it $5,000 for stock. There were • no allegations that Payne or Crawford paid out anything for the corporation, or that it is indebted to either of .them in any amount.

The court entered an order without notice to the corporation or other defendants appointing a receiver. While the statute does not require notice of such applications, our courts have uniformly held that notice .thereof should be given, except in cases of emergency. Webb v. Allen, 15 Tex. Civ. App. 605, 40 S. W. 342; Cotton v. Rand, 92 S. W. 266; Haywood v. Scarborough, 41 Tex. Civ. App. 443, 92 S. W. 815; Sachs v. Goldberg, 135 S. W. 600. In this case the petition failed to allege facts going to show that plaintiffs would probably suffer irreparable loss if the appointment had been delayed. Security Land Co. v. S. T. Development Co., 142 S. W. 1191. ■ It has, however, been held that when an appeal is taken, and it appears that an answer was filed, the same will be considered by the appellate court, and the order will not be reversed for want of notice. Smith v. Lamon, 143 S. W. 304. In this case no appeal was taken from the order appointing the receiver. The petition in this injunction case shows that á motion to vacate said appointment was prepared about 11 days after such order was made, but that the then attorney for appellants was unable to get the court to grant a hearing thereon. Instead of appealing from the order granting the receivership, appellants, by their present counsel, prepared an amended motion to vacate the same, which was overruled several months áfter the order was made granting the receivership. Upon the hearing of said motion evidence was introduced as follows:

The affidavit, attached to the charter of the corporation, showed that Payne and Crawford each subscribed for $7,000 of the capital stock and Huber $1,000; that they turned over their interests in a planing mill business, which they swore had a net value of $9,000, and that paid-up capital stock amounting to 90 shares was to be issued therefor, of which Crawford was to receive 46 shares, Payne 38 shares, and Huber 6 shares. This affidavit stated the value of the machinery at $5,000, and the lots at $3,000. The uncontra-dicted testimony was that the machinery was worth about $1,500 installed, while witnesses disagreed as to the value of the lots, one placing such value at $1,200 to $1,500, while another estimated the value at $850. It was proved that the note for $3,500, signed by Payne and Crawford, mentioned in the petition for receivership, was secured by deed of trust upon the house and lots recited in affidavit to the charter to be the property or the corporation. There was a prior lien against the lots of $675, and the holder of the $3,500 note proposed to take the property for his debt and assume payment of the $675 note; the two claims aggregating about $4,-500. This proposition was agreed to and accepted by all parties; it being authorized by an order entered by the court. By means of said deal Payne and Crawford became relieved of all liability upon the note for $3,-500 mentioned in his petition.

Attorney for appellants testified that he owned the $316 note mentioned in said petition for receivership, and had sued to foreclose same, and that he was willing to take the machinery securing same in cancellation of the note, so that there should be no liability thereon upon the part of Payne. Payne admitted that said note was secured by about one-third or one-fourth of the machinery, worth $5,000 according to his affidavit'attached to the charter. Williams testified that Payne, Crawford, and Huber own the stock; that the indebtedness of the corporation was about $7,000 when Payne left, and at the time application for receiver was filed about $9,000, but had about $3,000 more stock and lumber on hand. He admitted the business was in a failing condition when he took charge. He testified that, when they took- stock after he went into the business, he told Payne and' Crawford, there was only $2,000 more assets than liabilities, that they had put in $1,000 and he $1,000, that he wanted his money back, and offered to take it in lumber, but they refused to do so.

Minutes of a meeting of stockholders held August 28, 1913, showed that for certain indebtedness owing by Payne and 1 Crawford they transferred- to the corporation $1,000 worth of its . stock held by them;, Payne transferring to amount of $850, and Crawford to the amount of $150. These shares were then .issued proportionately among all stockholders, as follows: J. A. Williams, 5 shares; Crawford, 2% shares; Payne, 2 shares; and Huber, % share. J. A. Williams was elected president, Payne first vice president, It. S. Williams second vice president, S. S. Williams secretary, and Crawford treasurer, and said parties were elected directors. These minutes were signed by Crawford. Payne admitted his presence at the meeting, but said he was not in the room when the officers were elected. Minutes of a meeting of directors held September 30, 1913, show that J. A. Williams acted as chairman and S. S. Williams as secretary, and Payne was present.

Upon this hearing no attention appears to have been paid to the fact that Payne was liable to the corporation for $3,200 for his stock subscription and Crawford for $2,400. It appears from Payne’s own testimony that at the time of the stockholders’ meeting Wil-' liams held $8,000 stock, Payne $2,350, and Crawford about $3,800. As Huber held $1,-000 worth, it is evident that all the $15,000 stock was issued. The hearing developed the further fact that all the indebtedness of the corporation for which Payne and Crawford were liable had been adjusted, and that the $316 note described in their petition was amply secured by lien upon machinery. But the court refused to vacate the receivership, evidently upon the theory that the corporation was insolvent, or in imminent danger of insolvency, and that such condition was alone sufficient to justify the receivership; and, in justice to the court, it is to be noted that the fight waged for. the vacation of the receivership appears to have been based upon the theory that Payne and Crawford should be held not to have paid anything for their stock, and it should therefore be held that the order for a receiver was procured fraudulently. The court refused to vacate the receivership. The next step taken by attorney for the appellants herein was to present a plea in abatement upon the theory that Payne and Crawford were not entitled to any stock in the corporation, and were therefore not entitled to sue. The court declined' to submit this plea to a jury until he was. ready to try the main ease, and such refusal, together with the condition of the docket, is relied upon by appellants as a part of the grounds upon which they asked for an injunction.

The question before us upon this appeal is not whether the court erred in holding the petition sufficient to authorize the appointment of a receiver, nor whether the court should have vacated the order upon hearing the motion to vacate same. No appeal was taken from the first order, and none could be taken from the one refusing to vacate, the receivership. . The only question is whether the record shows appellants to be entitled to relief by injunction as prayed for. We will take up the allegations, from the standpoint of their sufficiency as grounds for relief by injunction, bearing in mind that the exhibits are made part of the petition.

1. The allegations directed at the fitness of the receiver to discharge the duties of his office, and his manner of discharging same, must be disregarded, because such matters furnish no ground for an injunction. The surety upon the receiver’s bond is not released. While the propriety of appointing a receiver who is surety upon the cost bond of plaintiff, who appears to owe the corporation, may be seriously doubted, such fact furnishes no ground for injunction. The court was never asked to remove the receiver, nor to order him to sue Payne and Crawford, nor to return an inventory into court, nor to cease selling to himself, and besides, if he sells to himself, his bond will protect those interested in the property from such unlawful acts.

2. No injunction was prayed for to restrain the receiver from selling the property of the corporation, and if there had been such a prayer it should be denied, because it appears from the exhibits attached to the petition that the court had ordered such sale. Under such circumstances an application should be made to the court for an order setting aside the order of sale. Beach on Receivers, § 745, page 795; High on Receivers, § 196.

3. The refusal of the court to hear the plea in abatement until he gets ready to try the case upon the merits is no ground for injunction.

4. Payne and Crawford, according to •the admission in the petition for injunction, and according to the' evidence contained in Exhibit B, were stockholders in the corporation. The record fails to disclose any Such fraud on their part as would authorize a suit to set aside the order appointing the receiver. ' Even if they had not paid value for any part of the stock held by . them, we are not prepared to say that such fact would show a fraud authorizing the setting aside of the order appointing the receiver; but it is unnecessary to pass upon that point, as the evidence fails to sustain appellants’ contention to that effect. Appellants have figured the matter out to their own saisfaction, and made an exhibit showing their theory; but, in order to arrive at the result, they took the least valuation of the lots testified to, instead of the highest, and took a* statement furnished by Crawford to Williams as to the value of the house. It is not shown that said statement was in any way an admission, even so far as Payne was concerned. The statement was furnished Williams by Crawford on August 5th, the year not being stated, but it is evident that it was in 1913, and just three

days before the charter was filed. We realize that the testimony shows that the property was turned over to the corporation at a greatly inflated value, but it does not show that the liabilities exceeded the actual value of the business.

5. If it be conceded that the allegation, to the effect that neither Payne nor Crawford has a cause of action against the corporation, other than that they want the corporate affairs wound up, is sustained by the allegations of the petition for the appointment of a receiver, nevertheless the fact remains that, no appeal was taken from the order appointing such receiver. It is well settled that, when a party has had an opportunity to avail himself of a legal remedy by an appeal and has neglected to make use of it, relief by injunction should be denied him. G., H. & S. A. Ry. Co. v. Ware, 74 Tex. 49, 11 S. W. 918; Kansas City Life Insurance Co. v. Warbington, 113 S. W. 988.

6. The allegation to the effect that the receiver is conducting the business at a loss of about $150 per month, and that Williams, while in charge of the business, conducted the same in a successful manner, constitutes no ground for granting the injunction prayed for.

7. To restrain Payne and Crawford from further prosecuting their suit would be equivalent to requiring them to dismiss the case. We do not think the court erred in refusing to do this upon the hearing for a temporary injunction. Courchesne v. Santa FS Fuel Co., 155 S. W. 684. If the court found that a fraud had been practiced upon him in procuring the appointment of a receiver, or that for any other reason the receivership should be vacated, it was within his power to grant the necessary relief, without using the remedy of a temporary injunction. We do not know upon what theory of the law he considered the petition sufficient to justify the appointment of a receiver; but as no appeal was taken from his order, and the law permits none from his refusal to vacate the same, he cannot be required to revise his ruling by means of a temporary injunction, which would require the dismissal of the case and the vacation of the receivership. We conclude that the court did not err in refusing to grant the temporary injunction prayed for.

The judgment is affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    HOOPER et al. v. LOTTMAN et al.
    (No. 364.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 19, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Covenants (§ 77) — Restrictive Covenants — Right to Enforce.
    Whether a person, not a party to a restrictive covenant, may enforce it depends upon the intention of the parties making the covenant.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 77-89; Dec. Dig. § 77.]

      2. Covenants (§ 21) — Restrictive Covenants — Intention oe Parties.
    The intention of the parties to a covenant restricting the nse of land is to be ascertained from the deed itself, construed in connection with the circumstances existing at the time of execution.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 20; Dec. Dig. § 21.]
    S.Covenants (§ 79) — Restrictive Covenants— Enforceability.
    Where the owner of a tract of land, intended to be sold for residence purposes, imposed restrictive covenants, calculated to preserve the residential character of the property, in the deeds to the several grantees, the restriction is for' the benefit of all of the lots, and individual lot owners may enforce compliance with the covenant.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig.-§§ 78-82; Dec. Dig. § 79.]
    4. Covenants (§ 84) — Restrictive Covenants — Enforcement — Persons Against Whom.
    A covenant restricting the use of lots which were part of a tract divided and sold for residence purposes may be enforced against the grantee of an original purchaser, where he bought with actual or constructive knowledge of the purpose of the covenant, to benefit all of the lots.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 90-92; Dec. Dig. § 84.]
    5. Covenants (§ 79) — Restrictive Covenants— Enforceability.’
    While uniformity in the restrictions imposed upon the several lots in a residential district is one of the strongest .proofs’ of the existence of a building scheme,' it is evidentiary only, and the fact that covenants prohibiting purchasers from building stables within certain distances of the streets varied with the various lots does not render such covenants unenforceable by individual purchasers.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 78-82; Dec. Dig. § 79.]
    6. Covenants (§ 74) — Restrictive Covenants — Enforceability.
    That a covenant restricting the use of lots in a residence subdivision was omitted in conveyances of land to a water company will not prevent purchasers from enforcing the covenant; the furnishing of water to persons living in the district being an absolute necessity, and the necessary use of land by a water company being inconsistent with covenants applicable to residence property.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 73; Dee. Dig. § 74.]
    7. Injunction (§ 113) — Right to — Delay.
    Persons desirous of enforcing a covenant restricting the use of land will not be denied an injunction for that purpose, where they made protest upon discovering it was'about to be violated, and instituted suit as soon as the protests were shown to be unavailing.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 198-201; Dee. Dig. § 113.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by J. O. Hooper and another against H. W. Lottman and others. From a judgment for defendants, plaintiffs appeal.
    Reversed and remanded.
    Sam, Bradley & Fogle, of Houston, for appellants. Ellis P. Collins and S. H. Brashear, both of Houston, for appellees.

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

   HIGGINS, J.

J. C. Hooper and the Hyde Park Water Company, a corporation, brought this suit ¿gainst H. W. Lottman and Norbert Lottman, owners of the east half of lot 3 in block 19 in Hyde Park addition to the city of Houston, and against R. J. Rochow, a contractor and builder, to restrain and enjoin them from erecting, completing, or using a barn upon said premises within a distance of 60 feet from Fairview avenue.

Hooper resided and owned property in the Hyde Park addition, and the Hyde Park Wa- ' ter Company owned the west half of said lot 3 and other property therein. The Hyde Park Improvement Company, a corporation, was the common grantor of the plaintiffs and Lottmans. Said company was the owner of the Hyde Park addition to the city of Houston, and subdivided and laid same out in lots, blocks, and streets. The company, having disposed of all its holdings, was dissolved and is no longer in existence. The addition was designed and intended by the company to be an exclusively residential district, and in furtherance of this design a resolution was adopted by its board of directors, providing certain building restrictive clauses should be contained in the deeds to property sold by the company. One of the restrictive clauses reads: “No barn or building of similar nature shall be erected closer than-feet to any street.” Not more than two deeds to purchasers were executed without this restrictive clause. The blank space was filled in differently in the various deeds, so that there was not absolute uniformity in the distances from streets within which the prohibited class of buildings might be erected. The deed the Lottmans claimed under stipulated that the prohibited buildings should not be erected closer than 60 feet to the street.

There has been much judicial writing upon - the subject of restrictive covenants of the land here considered, and as may be anticipated, from the very nature of the topic, the cases abound in fine and subtle distinctions. Many of the decisions upon this branch of the law appear to be in hopeless conflict, but are usually reconcilable when the facts peculiar to each are understood. ■ In fact, the courts seem to have had no special difficulty in ascertaining and declaring the controlling general principles of the law, but, in their application to concrete facts, it may well be said that the decisions are in hopeless conflict and confusion, and individual cases are without value as precedents, except as general principles are recognized and declared. No attempt will therefore be made to analyze the decisions, as applied to the various state of facts upon which they are based.

Whether a person not a party to a restrictive covenant has the right to enforce it depends upon the intention of the parties in imposing it. This .intention is to be as-, certained from the language of the deed itself, construed in connection with the circumstances existing at the time it was executed. The vendor’s object in imposing the restrictions must in general be gathered from all the circumstances of the case, including the nature of the restrictions. If the general observance of the restriction is in fact calculated to enhance the values of the several lots offered for sale, it is an easy inference that the vendor intended the restriction for the benefit of all the lots. The most familiar cases in which courts of equity have upheld the right of owners of land to enforce covenants to which they were not parties are those in which it has appeared that a general building scheme or plan for the development of a tract of land has been adopted, designed to make it more attractive for residential purposes by reason of certain restrictions .to be imposed on each of the separate lots sold. This forms an inducement to each purchaser to buy, and it may be assumed that he pays an enhanced price for the property purchased. The agreement therefore enters into and becomes a part of the consideration. The buyer submits to a burden upon his own land because of the fact that a like burden imposed on his neighbor’s lot will be beneficial to both lots. The covenant or agreement between the original owner and each purchaser is therefore mutual. The equity in this particular class of action is dependent as much on the existence of the general scheme of improvement or development as on the covenant, and restrictions which contemplate a general building plan for the common benefit of purchasers of lots are recognized and enforced by courts of equity at the instance of the original grantor or subsequent purchasers.' So the general rule may be safely stated to be that where there is a general plan or scheme adopted by the owner of a tract, for the development and improvement of the property by which it is divided into streets and lots, and which contemplates a restriction as to the uses to which lots may be put, or the character and location of improvements thereon, to be secured by a covenant embodying the restriction to be inserted in the deeds to purchasers, and it appears from the language of the deed itself, construed in the light of the surrounding circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject thereto, and to have the benefit thereof, and such covenants are inserted in all the deeds for lots sold in pursuance of the plan, a purchaser and his assigns may enforce the covenant against any other purchaser, and his assigns, if he has bought with actual or constructive knowledge of the scheme, and the covenant was part of the subject-matter of his purchase. DeGray v. Monmouth Beach Club House Co., 50 N. J. Eq. 829, 24 Atl. 388; Hano v. Bigelow, 155 Mass. 341, 29 N. E. 628.

The facts in the case at bar bring it with-

in the scope of the general rules stated, and we will but briefly advert to the contentions made by appellees in support of the judgment rendered in their favor.

It is asserted, first, that a general plan of improvement is not shown because the restrictions in some deeds vary as to the distance from streets within which barns and similar buildings may be erected; also that in two instances deeds to lots were made without restrictions.

Uniformity in the restrictions imposed on the lots is one of the strongest proofs of the existence of a building scheme. It is an evidentiary matter only, however, and any deviation from uniformity, as to restrictions imposed on any of the grantees, is often seized upon, as a defense to an action to enforce the covenant, on the theory that a general plan of improvement is not shown. There may, however, be departures from the usuál restrictions in individual cases without destroying the integrity of the scheme of development as a whole. A want of absolute uniformity for reasons readily apparent does not militate against the view that the restrictions in the deed were in pursuance of a general scheme for improvement of the property. Coates v. Cullingford, 147 App. Div. 39, 131 N. Y. Supp. 700; Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369. And although some of the lots may have written restrictions imposed upon them and others may not, yet if the general plan has been maintained from its inception, without material departure therefrom, and if it has been understood and relied upon by those concerned, it is binding and enforceable inter sese. Allen v. Detroit, 167 Mich. 464, 133 N. W. 317, 36 L. R. A. (N. S.) 890.

So it would seem that absolute uniformity in the establishment of the building line, as well as the fact that in two instances lots were sold without any restrictions, does not necessarily destroy the general plan or scheme of improvement. In this connection stress is laid upon the fact that the west half of lot 3 was also conveyed by the Ilyde Park Improvement Company to the Hyde Park Water Company, plaintiff, without any restrictions. It seems that the latter company was wholly subsidiary to the former, having the same officers and stockholders, and was formed for the purpose of supplying water to the addition. The property of the water company was conveyed to it by the improvement company in consideration of stock issues by the water company and prorated among the stockholders of the improvement company in proportion to the stock owned by them. The business of the water company was to furnish an absolute' necessity to the inhabitants of the addition, and the necessary use of its real estate was inconsistent with restrictions thereon of the nature imposed upon that sold to private individuals, and the fact that this land was conveyed to the water company without restriction does not at all militate against the consistency of a general plan of improvement by the imposition of building restrictions upon other lots sold and conveyed.

We think, too, there is no merit in the view that Hooper is estopped to complain by reason of the construction of improvements upon property owned by him in violation of the restriction. The evidence discloses that his building was not a barn or of a similar nature. But, if Hooper should be estopped, there is no estoppel whatever against the water company, his coplaintiff. Nor are the parties precluded from asserting their rights by delay in pursuing same. Complaint was made to the Lottmans as soon as it was discovered that they were about to violate the restriction, and legal action was taken as soon as it was discovered protests were unavailing, and that they were determined to violate the covenant in their grantor’s deed. Nothing more was required of the plaintiffs to protect their rights.

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


author: HALL, J.

text:
    MONTGOMERY v. BOYD.
    (No. 668.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 14, 1914.
    Rehearing Denied Dec. 5, 1914.)
    1. Principal and Surety (§ 116) — Release of One Surety — Effect.
    The discharge of one of several sureties on a joint and several obligation does not release the others from liability for the released surety’s portion of the debt.
    [Ed. Note. — For other eases, see Principal and Surety, Cent. Dig. §§ 269-2S2; Dec. Dig. § 116.]
    2. Principal and Surety (§ 116) — Discharge of Cosurety by Limitations — Effect.
    One surety on'a joint and several obligation is not discharged because the creditor permits the cause of action against his cosurety to become barred by limitations, but is liable for the whole debt.
    TEd. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 269-282; Dec. Dig. § 116.]
    Appeal from Floyd County Court; Arthur B. Duncan, Judge.
    Action by R. M. Boyd against W. T. Montgomery. From judgment for plaintiff, defendant appeals.
    Affirmed.
    A. P. McKinnon, of Floydada (C. S. Williams, of Plainview, of counsel), for appellant. Chas. H. Yeale, of Floydada, for ap-pellee.

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

   HALL, J.

This is an appeal from the county court of Floyd county. On the 24th day of May, 1908, Tom P. Steen, as principal, and E. C. Henry an'd appellant, as sureties, executed and delivered to appellee a note in the sum of $400, due one year after date. Upon the maturity of this note, the note sued upon was executed by Steen, as principal, and appellant, as surety. Henry refused to sign the renewal note. Appellant did not know of this fact until two years thereafter. After the execution of the note sued on, and prior to the institution of the suit, at a time not shown by the record, the original note, together with the renewal note, was sent to appellee. Thereafter appellee sent both notes to his agent at Floydada, with instructions to collect only one of them, and at a time not shown by the record the agent delivered to Steen the original note. Appellant inter-pleaded Henry. Upon a trial before the court without a jury, Henry’s plea of limitation was sustained, and the court rendered judgment in favor of appellee, Boyd, against Steen and Montgomery, jointly and severally, for the full amount of the debt and costs.

The controversy is presented for review upon two assignments of error, raising the same question, viz.: That the court erred in rendering judgment against appellant for the entire debt sued upon. The proposition is urged under these assignments that, when the obligation of the sureties is joint and several, discharge of one of them does not release the others from payment of their proportion of the claim, and that the surety not released is liable for only his pro rata share of the debt. This proposition cannot be sustained, and the authorities cited by appellant are against his contention, if, indeed, they are on the point presented for consideration.

The real question presented by the pleadings and evidence is: Is one surety discharged because a cause of action against his cosurety is permitted by the creditor to become barred by limitation? It is said in Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056, 4 L. R. A. (N. S.) 666, 110 Am. St. Rep. 946, 5 Ann. Cas. 435:

“It is suggested by counsel that appellant was released by laches of the holder of the note and mortgage, in that he did not proceed with diligence to collect the indebtedness after the same became due. The conclusive answer to that is, as counsel for respondent suggests, the payee of an instrument having a principal obligor and surety owes no duty of active vigilance to the latter to enforce collection of the indebtedness. The way is open to the surety at any time after default of his principal to pay the debt and reimburse himself by enforcing the obligation of such principal and the cosureties, if there be such. Harris v. Newell, 42 Wis. 687; Updike v. Lane, 78 Va. 132; Alexander v. Byrd, 85 Va. 690 [8 S. E. 577], ‘The surety has no right to say that he is discharged from his debt, * * * if all he rests upon is the passive conduct of the creditor in not suing. He must use diligence, and take such effectual means as will enable him to call on the creditor either to sue, or to give him (the surety) the means of suing/ Lord Eldon in Eyrie v. Everett, 2 Russ. Ch. 381. So, as it is said, the duty of activity is imposed by law on the surety to protect himself rather than on the creditor to protect him.”

In People v. Whittemore, 253 Ill. 378, 97 N. E. 683, the court said:

“Finally, it is claimed that neglecting to file claims against the estates of Jones and Tracy released appellants to the extent that those estates should contribute to discharge the liability of the bonds. If the claim had been filed against either of those estates, it would have been paid in full, and the estate paying it would have been compelled to resort to Whittemore in his lifetime or his estate after bis death. No authority for the position of counsel'is cited by them, and the settled rule is that a surety is never discharged because a cause of action, either against the principal or a surety, is barred 'by the statute of limitations. The estate of Whittemore was not released by the fact that the statute of -limitations barred the claim against the other estates.”

Levy, Justice, in First National Bank v. Rusk Pure Ice Co., 136 S. W. 89, said:

“And it-is also the well-known rule that ordinarily the payee in the note, in order to preserve his rights against the surety,, is not bound to active diligence, and if he only remains passive his rights are unimpaired. It is not contended that there was any agreement expressly stipulating that the note sued on should be extended for any definite time.”

Under such conditions the surety is not only not released, but he is liable for the whole debt. Camp v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Davis’ Adm’r v. Auxier, (Ky.) 41 S. W. 767; Staples v. Gokey, 34 Hun (N. Y.) 289; Martin v. Frantz, 127 Pa. 389, 18 Atl. 20, 14 Am. St. Rep. 869; McVean v. Scott, 46 Barb. (N. Y.) 379. National Bank of Commerce v. Gilvin, 152 S. W. 652.

The judgment is affirmed.


author: CARL, J.

text:
    J. D. FIELDS & CO. v. ALLISON.
    (No. 5340.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 4, 1914.
    Rehearing Denied Dec. 9, 1914.)
    1. Pleading (§ 293) — 'Verification—Plea in Abatement.
    In trespass to try title by a partnership in which the petition alleged that the title to two of the three surveys involved was in one of the partners and that title to the other survey was in the other partner, it was not necessary that a plea in abatement for misjoinder of parties and causes of action should be sworn to, as the matters called to the court’s attention were apparent from the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 882-S84; Dec. Dig. § 293.]
    2. Abatement and Revival (§ 81) — Pleas in Abatement — Time for Filing.
    Rev. St. 1911, art. 1909, providing that pleas shall be filed in the due order of pleading and heard and determined in such order under the direction of the court, does not prescribe a cast-iron rule, and the court may, in its discretion, hear exceptions before trying a plea in abatement, and a party who under such circumstances submits exceptions before submitting a plea in abatement does not waive his plea.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 10, 22, 175-177, 225, 499-504, 506; Dec. Dig. § 81.]
    3. Appeal and Erkob (§ '1039[ — Harmless Error — Rulings on Pleadings.
    Where, in trespass to try title by a partnership composed of J. and W., it was alleged that J. held the legal title to two of the surveys involved and W. the title to the third and a plea in abatement for misjoinder of parties and causes was sustained, but J. was permitted to proceed as plaintiff for the recovery of the surveys to which he claimed title, the sustaining of the plea, if prejudicial at all, was prejudicial only to the partnership and W., and was harmless as to J. individually.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.]
    4. Adverse Possession (§ 19) — Statutory
    Provisions — Application.
    Under Rev. St. 1911, art. 5678, providing that possession of land belonging to another by a person owning or claiming 5,000 acres or more inclosed by a fence in connection therewith or adjoining thereto shall not be the peaceable and adverse possession contemplated by article 5675, requiring actions for the recovery of lands against one in peaceable and adverse possession to be brought within ten years, unless such land so belonging to another shall be segregated and separated by a substantial fence from such lands connected therewith or thereto adjoining, or unless one-tenth thereof shall be cultivated and used for agricultural purposes or used for manufacturing purposes, or unless there be actual possession thereof, the ten-year statute of limitations had no application to a dispute concerning the boundary of certain surveys embraced in a pasture containing over 5,000 acres upon which there were no improvements except a fence around it.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.

    For other definitions, see Words and Phrases, Second Series, Peaceable and Adverse Possession.]
    5. Adverse Possession (§ 68) — Boundaries
    —Statutes of Limitation.
    The three and five year statutes of limitation had no application to a boundary dispute, where plaintiff only claimed the land paid for by him and claimed up to a fence only because he thought his deeds embraced the land up to the fence.
    [Ed. Note. — For other eases, see Adverse Possession, Gent. Dig. §§ 387-393; Dec. Dig. §
    6. Trial (§ 350) — Verdict—Special Issues —Location of Boundaries.
    In trespass to try title involving a boundary dispute, the court, in addition to submitting an issue as to whether a certain fence was on the true boundary line, should have submitted an issue as to where the true boundary was, if not at the fence, as, the jury having found that the fence was not on the line, an officer executing a writ of restitution would have nothing to guide him.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 828-833; Dee. Dig. § 350.]
    7. Trial (§ 260) — Instruction Oovered by Special Issues Submitted.
    In trespass to try title, an instruction embraced in and covered by the special issues submitted was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    8. Trial (§ 350) — Special Issues — Matters Not in Dispute.
    In trespass to try title involving a boundary dispute, where t_ie question in issue was whether a fence was on the boundary line and there was no dispute as to the existence of such fence or how long it had been there, the court Pioperly refused to submit issues as to these matters.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.]

      9. Tebspass to Try Title (§ 38) — Burden ox Proof— í'Prisia Facie Case.”
    In trespass to try title involving a boundary dispute, in which it appeared that by reason of the size of plaintiff’s inclosure and the lack of improvements he had not acquired title by limitation, though proof of a possessory title in plaintiff made a “prima facie case,” which is such established facts as the law recognizes as sufficient to overcome the inertia of the court and to authorize affirmative action by the court in the absence of evidence on the other side, it did not change the burden of proof, and, evidence having been introduced in rebuttal, the burden was on plaintiff to prove a legal title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dee. Dig. § 38.

    For other definitions, see Words and Phrases, First and Second Series, Prima Facie Case.
    10. Costs (§ 32) — Trespass to Try Title-Boundary Dispute.
    Where, in trespass to try title to certain surveys which plaintiff alleged were separated from defendant’s land by a fence, defendant admitted plaintiff’s title to such surveys, but denied that the fence was on the boundary thereof, and the jury found that the fence was not on the true boundary, costs were properly taxed to plaintiff.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. § 32.]
    Appeal from District Court, Sutton County; J. W. Timmins, Judge.
    Action by J. D. Fields & Co. against George S. Allison, which after a plea in abatement had been sustained, proceeded in the name of J. D. Fields as plaintiff. From a judgment in his favor for insufficient relief, Fields appeals.
    Reversed and remanded. •
    Hill, Lee & Hill, of San Angelo, for appellant.

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

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

   CARL, J.

J. D. Fields & Co., a firm composed of J. D. Fields and W. J. Fields, brought suit for damages against George S. Allison and J. T. Owens and also for an injunction. The suit originally was in the name of the partnership, and it was alleged that said partnership was engaged in the. ranch business in Sutton county, Tex., owning a large body of land, and that the legal and equitable title to surveys 59 and 61, block B, H.. E. & W. T. Ry. Co., was in J. D. Fields, and that the legal and equitable title to survey 60, block B, H. E. & W. T. Ry. Co., was in W. J. Fields, and that said surveys, together with a large number of other surveys which they were the legal and equitable owners of, were inclosed by a good fence made of post and wire which surrounded their said pasture, and which separated it from all other lands from any one else adjoining their said pasture, and that plaintiffs were the owners of and had been in possession of all the lands within their said inclosure for.more than 20 years; that the fence inclosing said pasture of plaintiffs was constructed in the year 1889; and that said fence had been continuously used by plaintiffs where the same is now located and situated since the year 1889, and that the defendants had cut and torn down said fence on the north line of said surveys 59, 60, and 61 and was removing same.

“In the seventeenth, eighteenth, and nineteenth paragraphs of said amended original petition, plaintiffs pleaded the statutes of five and ten years’ limitation as to Surveys 59, 60, and 61, and in each and all of said subdivisions it is alleged that the legal and equitable title to said survey 60 wás in W. J. Fields, ‘said lands being held, owned, used, and occupied by said firm and partnership of J. D. Fields & Co.’; the field notes of the outside lines of said three surveys being set out by metes and bounds, giving specifically a marked corner for the beginning corner. Plaintiffs prayed that the injunction heretofore granted be made perpetual and for title and possession of said lands. On March 30, 1914, the defendant George 8. Allison answered by demurrers and answer. In the last paragraph of said answer said defendant denies all of the allegations in plaintiffs’ petition, except that J. D. Fields has the legal title to surveys 59 and 61 and W. J. Fields has the legal title to survey 60 wherever they may be located. On March 31, 1914, the defendant Allison filed a ,plea in abatement, alleging that the pleadings of plaintiff, as amended, had changed the cause of action and was seeking to recover two sections of land for J. D. Fields and one section for W. J. Fields, said plea in abatement setting^ up a misjoinder of parties and causes of action, which plea in abatement was sustained by the court as to the recovery of sections 59, 60, and 61 in the same suit. After said plea in abatement had been by the court sustained, it was ordered that the cause proceed in the name of J. D. Fields for the recovery of surveys 59 and 61, and it was agreed in open court that J. D. Fields could proceed as plaintiff without filing new pleadings as to surveys 59 and 61. Plaintiff J. D. Fields thereupon in open court dismissed said cause of action as to defendant J. T. Owens. The cause resolved itself into a boundary suit involving the north boundary line of surveys 59 and 61.”

The court submitted but one issue to the jury, and it was as follows:

“Gentlemen of the jury, you will return a plain answer in writing to the following ques-i tion: Do you find from a preponderance of the testimony that the line of fence separating the' pasture of plaintiff J. D. Fields on the south from the pasture of defendant G. S. Allison on the north is located upon the true and correct boundary line of surveys 59 and 61, belonging to plaintiff J. D. Fields?
“To the above question we answer: . “. Foreman.
“The jury are the exclusive judges of the credibility of the weight to be given to their testimony.”

To this, the jury answered “No,” and upon this verdict the court rendered judgment that J. D. Fields recover of George S. Allison (Owens having been dismissed) sections 59 and 61, and that plaintiffs have judgment for title and possession of said lands, and that a writ of restitution issue in favor of plaintiff against defendant for said lands. And it is further provided in said judgment that Allison recover as against Fields all costs of the suit. J. D. Fields alone has perfected his appeal.

The first assignment of error complains of the action of the court in sustaining the plea in abatement filed March 31, 1914, because it is said the same came too late, the partios having announced ready for trial before same was presented and acted upon by the court, and because said plea was not verified. It was not essential that the motion be sworn to, because the matters called to the court’s attention were apparent from the pleadings. Compton v. Stage Co., 25 Tex. Supp. 67. Article 1909 of |he Revised Statutes reads:

. “Pleas shall be filed in the due order of pleading, and shall be heard and determined in such order under the direction of the court.”

In the language of Judge Brown, 91 Tex. 86:

“The statute does not prescribe a cast-iron rule upon this subject, but the court may, in its discretion, as it did in this case, hear the exceptions before trying the plea in abatement, which involves a question of fact; and the party who under such circumstances, submits exceptions before he submits a plea in abatement will not be held to have waived his plea” (citing Trawick v. Martin-Brown Co., 74 Tex. 522, 12 g. W. 216; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 961).

But W. J. Fields and J. D. Fields & Co. are not appealing, and we do not see how J. D. Fields has been injured individually by the court’s ruling. The undisputed evidence shows that title to sections 59 and 61 was in him, and that title to section 60 was in W. J. Fields. If any one was injured by this holding it was J. D. Fields & Co. or W. J. Fields, or both, and they do not prosecute an appeal. This assignment is overruled.

The court did not err in refusing to submit the ten-year statute of limitation, because it was admitted that the Fields’ pasture, bounded on the north by the fence in dispute, contained over 5,000 acres, and there are no improvements on the land except the fence around it. This being true, this case .would fall within the exception stated in article 5678 of the Revised Statutes. Black v. Bremen, 45 Tex. Civ. App. 473, 101 S. W. 537; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265. Neither would the three and five year statutes of limitation apply, because this is a boundary suit and Fields does not claim any land called for in Allison’s deed. He says he only claims what he paid for, and he claims what is under his fence because he thinks his deeds for sections 59 and 61 embrace same. In other words, he believes his fence is on the line. Alexander v. Newton, 11 Tex. Civ. App. 618, 33 S. W. 305; Mooring v. Campbell, 47 Tex. 39. The second assignment is overruled.

We do not .think the court erred in refusing the charges complained of in the third assignment, since the same merely deal with evidence which would tend to establish the true line. Certainly the first two are such, and the third might be said to be covered by the issue submitted; and the jury found that the fence is not on the line. There is no more reason to single out the Dod survey and charge as to whether it, is correct than there is as to whether the Vickery or Saunders surveys are correct. But we do think the court should have submitted to' the jury the further issue, viz: If the fence is not on the true boundary of sections 59 and 61, then where is such true boundary with reference to the fence? The finding made establishes nothing except that .the fence is not on the true boundary line. Then where is it? Upon that important matter we are left to .take our choice from the ideas of the other surveyors. Nothing is settled by .this suit, for when the officer goes with his writ of restitution he has absolutely nothing to guide him. The only thing he would know is that the fence is not where it should be, but where he is to put it is more than we can tell. Since we shall reverse the case, we merely make these observations, feeling sure that the trial court will deal with the subject properly upon another trial.

The fourth assignment is overruled because the fact .that the fence along sections 59 and 61 was placed there about 1889 and has been there since is established by the undisputed evidence. The fifth clause in this requested charge was properly, refused, because it is embraced in and covered by the issue submitted. As to whether the fence is there and how long it has been there was not an issue, because no one disputes these facts. As to whether it is on the true line is another matter, and that was submitted, and the jury found that it is not on the line. That which was in dispute was submitted, and there is no necessity of submitting matters about which there is no controversy.

This is a trespass to try title suit which resolved itself into a boundary dispute. The plaintiff alleged that he was in peaceable and adverse possession of all of the lands in his inclosure (which included sections 59 and 61, the north boundary of which is involved herein), and, further, that the fence upon the north side of .the pasture is on the north line of said surveys 59 and 61. The defendant Allison denied that the fence is on the north line, and joined issue as to whether the plaintiff had acquired title by limitation to that part of sections 10, 8, and 5 which might be south of the fence. The appellant insist? that, in view of the fact that he had the land under fence and showed a possessory title, the court should have instructed the jury that the burden of showing that .the true line is inside appellant’s fence was on the appellee.

This is not to be confused with title by limitation to this strip of land, for we have seen that appellant had none, under the facts proven; but since appellant showed that he had so had the land fenced and had possession thereof since 1889, would the prima facie case made upon showing such posses-sory .title shift the burden of proof to the other party to show title in himself to the disputed strip of land? Appellant insists that the burden would so shift, and bases his contention on Watkins v. Smith, 91 Tex. 591, 45 S. W. 560, and cases therein cited. In that case Judge Gaines says:

“We are thus brought to the question whether, under the established facts of this case, the plaintiff was entitled to recover by reason of his possession of the premises at the time of defendant’s entry. In Keys v. Mason, 44 Tex. 140, Chief Justice Moore says: ‘It is true the possession of the defendant entitles him to a judgment against the plaintiff, unless the latter shows a prima facie title. He does this when he deraigns title from the sovereignty of the soil down to himself, or if he shows title out of. the government and subsequent possession for sufficient length of time to toll the right of entry, or merely a prior possession to that under which the defendant claims with a regular chain of title connecting himself with such possession,’ etc. The remark as to prior possession was made merely by way of argument, and is a dictum, but it is in our opinion a correct statement of the rule. The rule there announced has been frequently applied in this court. House v. Reavis, 89 Tex. 626 [35 S. W. 1063]; Duren v. Strong, 53 Tex. 379; Caplen v. Drew, 54 Tex. 493; Parker v. Railway, 71 Tex. 133 [8 S. W. 541]; Pacific Express Co. v. Dunn, 81 Tex. 85 [10 S. W. 792]; Linard v. Crossland, 10 Tex. 462 [60 Am. Dec. 213]. But it is ingeniously argued that the rule is not applicable to a case where the defendant enters without actual force under a claim of right, for the reason that one who takes possession under claim and color of title cannot be deemed a naked trespasser. It is true that the proposition is most usually announced under the form that prior possession is prima facie evidence of title against a naked trespasser or a mere intruder. But we have been cited to no case, nor have we found any, in which it has been decided that possession is not evidence of title against any wrongdoer. It is not a rule of property. It is a mere rule of evidence, and is founded upon the principle that since ownership is a usual concomitant of possession, it is a reasonable prima facie inference that the possessor of property is the owner of such property.”

So it may be taken as the established law of this state that when one presents and proves a possessory title to land, he would be entitled to recover on the strength of the prima facie case so made out. Burke v. Braumiller, 150 S. W. 206; Adels v. Joseph, 148 S. W. 1154; Teagarden v. Patten, 48 Tex. Civ. App. 571, 107 S. W. 912; Austin v. Land Co., 107 S. W. 1142; Mumme v. McCloskey, 28 Tex. Civ. App. 83, 66 S. W. 853; Lockett v. Glenn (Sup.) 65 S. W. 482.

The law of this state places the burden of proof, in trespass to try title, on the party asserting ownership or on the plaintiff, and if we were to hold that mere proof of possession would make out such a case as to shift the burden of proving title on the other party, it virtually would be abrogating the statute. All any one having possession of land would be required to do would be to show that fact and then, although plaintiff himself, he would shift the burden to the other party. This was never the purpose of our law.

A prima facie case is such established facts as the law recognizes as being sufficient to overcome the inertia of the court and to authorize affirmative action by the court, in the absence of evidence on the other side. Such a case, and only such a case, is made by proof of possession. In Chamberlayne, Mod. Law of Evidence, vol. 2, p. 1173, § 992, it is said that:

“A ruling that such prima facie case has been made out has several important consequences: (1) It shifts the burden of evidence, etc.”

But in the first part of the section just quoted the author’s meaning is made plain. In speaking of a prima facie case, it is said:

“In other words, it covers a presentation of evidence such as will warrant the judge, in case of a proposition or fact within his function, in announcing as a matter of administration that, until further evidence is produced, he will regard the fact as established, or, in case of a proposition within the decision of the jury, in ruling that, in the absence of further evidence, the jury would be warranted as a matter of reason, i. e., of law, in feeling that their own inertia had been overcome and deciding in accordance with the case submitted.”

But “when evidence is introduced to rebut the prima facie case so made by proof of possession, the assumption of law is functus officio and drops out of sight.” 16 Oye. p. 1073. The inference of fact which has been assumed to be correct continues to have its legal weight in the case made, but no more. The gist of the whole matter seems to be that while certain facts may, when uncontested, establish a prima- facie case, still the very moment rebutting testimony is introduced, the prima facie case so made is destroyed, and the facts which went to establish the same are only, of value in so far as they may have probative force along with other facts upon the trial of the case. And the original party having the burden of proof would still have that burden. So that, while appellant’s proof of possession made out a prima facie case of ownership in him, and in the absence of rebutting evidence would have justified the court in rendering judgment for him, still when such rebutting evidence was introduced, he had the same burden of proof as to legal title that he had before such prima facie case was made out by proof of occupancy and possession. The burden of proof did not shift.

The fifth and sixth assignments are overruled.

The seventh assignment is overruled because-the court’s charge was correct as far as it went; but, in the view we take of the case, it did not go far enough, and did not cover the case being tried. The court should give a charge sufficiently comprehensive to embrace the whole case, and, as given, the charge in this case only covers one side of the case. The objection is that the charge is incorrect. We do not think so, but it is incomplete, an error of omission rather than one of commission.

The ninth assignment is sustained.

“The verdict rendered in this case settled nothing', and was wholly insufficient as the basis of a judgment which would settle the boundary issue.” Government Hill Co. v. Mundy, 165 S. W. 80.

There was no error in taxing the costs against appellant, because in his pleadings the defendant admitted that appellant owned sections 59 and 61, which is equivalent to a disclaimer of any interest in these surveys on part of appellee. And if Allison in fact owned a strip of land inside Melds’ fence and the jury intended to give it to him, that is a recovery by him which would carry with it the costs. Appellant was properly taxed with the costs, and the tenth assignment is overruled.

The judgment is reversed, and the cause remanded.


text:
    GALVESTON DRY GOODS CO. v. MITCHELL et al.
    (No. 5333.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 25, 1914.)
    Venue (§ 22s’) — Privilege—County op Domicile — Joinder op Parties and Causes.
    Defendant W., who alone owed plaintiff on a note, not being a necessary party to the sole canse of action asserted against defendant G. for money which had come into its hands for the benefit of plaintiff, though it had received it by virtue of an arrangement with W. that it should pay it to plaintiff, joinder of W. as defendant did not deprive G. of right to assert its privilege of being sued in the county of its domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.]
    Appeal from Hidalgo County Court; James H. Edwards, Judge.
    Action by the Planters’ State Guaranty Bank against T. W. Mitchell and another. Judgment for plaintiff, and defendant Galveston Dry Goods Company appeals.
    Affirmed in part, and in part reversed, with instructions.
    Claude Pollard and E. H. Crenshaw, Jr., both of Kingsville, and I. Lovenberg, Jr., of Galveston, for appellant. Robt. J. Smith, of Mercedes, for appellees.

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

   MOURSUND, J.

The Planters’ State Guaranty Bank sued T. W. Mitchell and the Galveston Dry Goods Company, alleging: That May 20, 1913, said Mitchell executed and delivered to E. R. Edwards his promissory note for $214.30, which was on the same day, for a valuable consideration, sold and transferred to plaintiff; that subsequently, in the year 1913, the Galveston Dry Goods Company collected $3,000 upon a fire insurance policy in favor of said Mitchell, upon the promise and agreement of said company to distribute said sum pro rata among certain creditors of said Mitchell; that plaintiff was designated as one of said creditors under the description “Mercedes Bank,” or “the bank at Mercedes,” and plaintiff was thereupon immediately notified by Mitchell of said arrangement, and plaintiff thereupon acquiesced in said arrangement and agreed thereto, it being understood and agreed that claims aggregating $3,900 should share in such distribution, each to the extent of 80 per cent, of its amount; that said company, in disregard of such agreement and arrangement, distributed said fund without paying plaintiff anything, or at least so advised plaintiff, and now refuses to account to .plaintiff for any part thereof. Plaintiff prayed that it have judgment for its debt, interest, and attorney’s fees.

Mitchell answered, by alleging the same agreement with the Galveston Dry Goods Company set up by plaintiff; that plaintiff had agreed to such arrangement, and to accept its proportionate part of its debt in full settlement of its claim against Mitchell; that said company had informed him that it had distributed the fund as agreed; and he therefore averred that plaintiff had been paid by said company 80 per cent, of its claim. He prayed that plaintiff take nothing by its suit.

The Galveston Dry Goods Company filed a plea of privilege to be sued in Galveston county. Its answer consisted of a general demurrer, two special exceptions, and denials sufficient to put in issue all allegations in the petition except that it collected the $3,000 and greed to distribute pro rata among certain creditors of Mitchell. It specially denied that plaintiff was designated as one of said creditors, either by its proper name, or as the Mercedes Bank, or as the bank at Mercedes, and that it was directed by Mitchell to pay any part of said sum to plaintiff, and alleged that it distributed the fund among the creditors listed by Mitchell, with the exception of one creditor, William D. Cleveland & Sons, who refused to accept their pro rata, amounting to $201.05, and thereupon it paid said sum to Mitchell.

The plea of privilege and exceptions were overruled, and upon a trial before the court judgment was rendered in favor of plaintiff against both defendants for $177.15. The Galveston Dry Goods Company appealed.

It is contended that the plea of privilege should have been sustained; also that special exceptions should have been sustained, which set up that the petition shows a mis-joinder of parties and causes of action, in that the cause of action by plaintiff against Mitchell is wholly severable and distinct from and independent of the cause of action as alleged against the company, and that therefore the county court of Hidalgo county did not have jurisdiction to try said cause as between plaintiff and the company, a resident of Galveston county.

The only cause of action which the bank had against Mitchell was that upon the promissory note. The Galveston Dry Goods Company was not responsible as a maker, indorser, or guarantor of the promissory note. The cause of action asserted against the Galveston Dry Goods Company was for money which had come into its hands for the benefit of the bank. It had received this money by virtue of an arrangement with Mitchell; but, in order to recover, it was only necessary for the bank to show that the Dry Goods Company had received a sum of money upon the agreement to pay the same to the bank. Mitchell was not a necessary party to a suit of that kind.

We therefore conclude that, upon the cause, of action asserted against the Galveston Dry Goods ■ Company, the latter was entitled to be sued in the county of its domicile; it having been shown that the dry goods company was a corporation whose principal office was situated in G.alveston county, Tex., that it had no agent or representative in Hidalgo county, that the cause of action did not arise in Hidalgo county, and that it had not promised to pay the money in said county. The privilege ■ to be sued in the county of the domicile is a valuable one, and litigants cannot be deprived thereof by the joinder of causes of action which are separate'and distinct. Thomas v. Walsh, 44 Tex. 160; McDaniel v. Chinski, 23 Tex. Civ. App. 504, 57 S. W. 922; Williams v. Robinson, 63 Tex. 576; First State Bank of Flatonia v. Valenta et al., 33 Tex. Civ. App. 108, 75 S. W. 1087; Hartford Fire Ins. Co. v. City of Houston, 102 Tex. 317, 116 S. W. 36; Behrens Drug Co. v. Hamilton, 45 S. W. 622; Lumpkin v. Blewitt, 111 S. W. 1072; Moorhouse v. King County Land & Cattle Co. et al., 139 S. W. 883; Stephens v. First Nat Bank, 146 S. W. 620; Ft. Worth Horse & Mule Market v. Smith, 149 S. W. 200.

As between the bank and the defendant Mitchell, the judgment appealed from is affirmed ; but as between the bank and the Galveston Dry Goods Company, it is reversed, with instructions to sustain the plea of privilege and dismiss that part of the case.

Affirmed in part, and in part reversed, with instructions.


text:
    SOTO et al. v. STATE.
    (No. 411.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 25, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. Intoxicating Liquors (§ 274) — Disorderly House — Nuisance—Abatement—What Constitutes — Illegal Sale of Liquor.
    Pen. Code 1911, art. 496, defines a “disorderly house” as one where spirituous, vinous, or malt liquors are sold or kept for sale, without a license. Article 503 provides that habitual, actual, threatened, or contemplated use of any premises to keep a disorderly house shall be enjoined. Held, that a petition alleging defendants’ possession and control of a house commonly known as the “Urqka Club and Socorro Mutua Mexicana,” and that defendants were habitually using the premises as a disorderly house, and contemplate continuing such use in that therein spirituous, vinous, and malt liquors were sold in quantities of one gallon and less, to be drunk on the premises, and so kept for sale without a license to retail such liquor, and that there was no person or corporation having a license under the law to retail liquor cm the premises, was sufficient to justify an injunction against the maintenance of the place.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 410; Dec. Dig. § 274.

    For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]
    2. Pleading (§ 35) — Surplusage.
    ■ Where suit was instituted in the name of the state to enjoin the keeping of an alleged disorderly house, used for the sale of liquors, against three persons as individuals, averments of the petition that the alleged house was known as the “Ureka Club and Socorro Mutua Mexi-cana” were superfluous, and did not show that defendants were dispensing liquor to members of a bona fide club under circumstances dispensing with the necessity of a license.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. § 35.]
    3. Intoxicating Liquors (§ 260) — Wrongful Sale — Clubs — “Person Engaged in Selling Liquor.”
    While a bona fide club situated in a district where liquor may lawfully be sold, organized for purposes sanctioned by law, and selling liquor to its members, and not to the public as a mere incident to its organization and without profit, is not engaged in the occupation or business ot selling intoxicating liquors, under the laws of the state, and cannot be enjoined under Penal Code 1911, arts. 496, 503, providing for injunction against houses where liquor is illegally sold as disorderly houses, yet such protection does not extend to clubs not organized in good faith for purposes authorized by law but merely as a subterfuge to evade the law.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 399; Dec. Dig. § 260.]
    4. Intoxicating Liquors (§ 274) — Nuisance —Preliminary Injunction — Prayer.
    Where, in a suit to enjoin a liquor nuisance as a disorderly house, the petition prayed an injunction restraining defendants from using the premises to sell spirituous, etc., liquors, and from keeping for sale therein such liquors and from selling the same on the premises, it was sufficient to justify the issuance of a preliminary injunction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 410; Dec. Dig. § 274.]
    5. Injunction (§ 143) — Preliminary Injunction — Ex Parte Issuance — Restraining Order.
    A preliminary injunction should not ordinarily be granted without notice; the status quo being maintained in the meantime by the issuance of a restraining order.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 315; Dec. Dig. § 143.]
    6. Intoxicating Liquors (§ 274) — Nuisance —Injunction—Petition—Verification.
    Under Pen. Code 1911, art. 505, providing that the procedure to enjoin the maintenance of a liquor nuisance as a disorderly house shall be the same as in other suits for injunction, as near as may be, except that the petition need not be verified, a verified petition is not necessary to a preliminary injunction in such cases.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 410; Dec. Dig. § 274.]
    7. Intoxicating Liquors (§ 277) — Wrongful' Sale — Injunction — “Disorderly House.”
    Under Pen. Code 1911, art. 496, defining a “disorderly house” to be any house in which liquors are sold or kept for sale without a license, and article 503, providing that the habitual use of premises for the keeping of a disorderly house shall be enjoined, etc., an injunction restraining- defendants from selling or keeping for sale spirituous, etc., liquors on the premises, was too broad; the court being only authorized to restrain defendants’ use of the house for the sale of liquor without a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig.' § 413; Dec. Dig. § 277.]
    8. Costs (§ 23S) — Costs of Appeai^Successful Pakty — Modification of Judgment.
    While ordinarily, on the reformation and affirmance of a judgment on appeal, the costs are taxed against the appellee, yet they may be taxed against the appellant for cause, and will bo so taxed where the objectionable feature would doubtless have been corrected by the trial court had its attention been called thereto.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Suit by the State against Miguel Soto and others. Decree for complainant, and defendants appeal.
    Reformed and affirmed.
    Coldwell & Sweeney, of El Paso, for appellant. W. W. Bridget's, of El Paso, Dist. Atty., for the State.

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

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

   HIGGINS, J.

The state of Texas by its

district attorney filed suit against Miguel Soto, R. Salazar, and A. P. Brunswick, alleging: That they were in possession and control of a house in the city of El Paso, the said place being commonly known as the “Ureka Club and Socorro Mutua Mexicana,” which purports to have its headquarters and place of business in said house. That defendants have been habitually using said premises as a disorderly house, and threaten and contemplate continuing to so use same; that said premises is a disorderly house in this: That therein spirituous, vinous, and malt liquors were sold in quantities of one gallon and less to be drunk on the premises and so kept for sale, without defendants having first obtained a license under the laws of this state to retail such liquors, and there is no person or corporation having a license under the law to retail liquor on said premises. An injunction was prayed restraining .defendants from using said premises for the purpose of selling spirituous, vinous, or malt liquors and from keeping for sale therein such liquors and from selling same on said premises. Upon an ex parte hearing a temporary injunction was ordered issued in all things as prayed for, such injunction to be subject to the further order of the court. From this order this appeal is prosecuted.

Article 496, Penal Code, defines a “disorderly house” to be “any house in which spirituous, vinous or malt liquors are sold or kept for sale, without first' having obtained a license under the laws o'f this state to retail such liquors.” Article 503, Penal Code, provides that:

“The habitual, actual, threatened or contemplated use of any premises, place, building or part thereof, for the purpose of keeping * * * a disorderly house, shall be enjoined at the suit of either the state or any citizen thereof.”

And- by article 505 of the Penal Code it is provided that the procedure in such cases shall be the same as in other suits for injunction, as near as may be, except that the petition need not be verified.

The facts alleged relating to the past and threatened and contemplated use of the house plainly show that such use is for purposes which bring it clearly within the definition of a disorderly house as defined above.

There are no facts stated in the petition from which it might be reasonably deduced— under other supposable facts connected with the subject — that the defendants were dispensing liquors to members of a bona fide club under circumstances. which dispensed with the necessity of a license.

The suit is against Soto, Salazar, and Brunswick as individuals, and the averments that the alleged disorderly house is known as-the Ureka Club and Socorro Mutua Mexicana, etc., are wholly superfluous. In this connection, it may be remarked that while a bona fide club, situated in a precinct, city, or-town where liquor may be lawfully sold, organized for xourposes permitted and sanctioned by law, and which, as a mere incident to-its organization and without profit, furnished liquor to its members and not to the public generally, is not a person, under the laws of this state, engaged in the occupation or business of selling intoxicating liquors and cannot be enjoined under the provisions of the law here considered, but in respect to clubs not organized in good faith for purposes authorized by law, but merely as shifts, shields, or subterfuges, such sales would not be permitted, and under such circumstances they would and should be held to be disorderly houses and as such may be enjoined. State of Texas v. Duke, 104 Tex. 355, 137 S. W. 654, 138 S. W. 385; Adams v. State, (Cr. App.) 145 S. W. 940.

The allegations of the petition are not subject to the objection that they lack the directness, certainty, and particularity required in petitions for injunction.

The fifth assignment complains of the-issuance of a preliminary injunction upon the ground that it was not prayed for. The prayer in this respect was not as certain as it should have been, but, considered as a whole, it sufficiently appears that a preliminary injunction was being sought.

Error is also assigned to the action of the court in granting the injunction without notice to the defendants. This was a matter within the discretion of the trial court, and, no abuse of this discretion being apparent, its. action in so doing, is not reversible. Commissioners, etc., v. Nichols, 142 S. W. 37; Holbein v. De La Garza, 126 S. W. 42.

In this connection, howevex-, it is desired to express our disapproval of the practice of granting temporary injunctions without notice.

In Holbein v. De La Garza, 126 S. W. 42, it is said:

“As to the issuance of the prohibitory injunction without notice, much must be left 'to the sound discretion of the judge. Article 2994, Revised Statutes [1895], provides: ‘Upon application for any writ of injunction, if it appears to the judge that delay will not prove injurious to either party and that justice may be subserved thereby, he may cause notice of such application to be served upon the opposite party, his agent or attorney, in such manner as he may direct, and fix a time and place for the hearing' of such application.’ The petition in this case, we think, discloses no reason why notice should not have been given before the issuance of a writ so sweeping in its character as was ordered in this case. ‘Audi alteran partem’ is one of the maxims of the old civil law, and the doctrine that a man should not be condemned without a hearing is not only the instinct of justice, but this spirit breathes through the whole system of common law and specially through 'our system of equity, as distinguished from law, which seeks to temper the harshness of the common' law and bring it more in harmony with the principles of abstract justice. It is rarely, under our equity procedure in regard to the issuance' of injunctions, that it becomes necessary to issue a temporary writ of injunction, even a merely prohibitory writ, without a hearing. If it appears necessary from the allegations of the petition that a defendant be stopped at once and without the delay necessary to give notice and an opportunity to be heard, a temporary restraining order may in all cases be issued compelling immediate cessation of the threatened injury until such time as may be reasonably required to allow the defendant to present his side of the case, which may change the whole aspect of the controversy. If it be said, in answer, that a defendant may obviate this difficulty by a motion to dissolve, wherein he may fully present his objections to the issuance of the writ, the reply is apt and conclusive that, under the peculiar rule adopted by the Legislature allowing appeals from an order granting a temporary injunction, but not to an order refusing to vacate on motion to dissolve, a defendant would ordinarily lose, by lapse of time, his right to appeal from'the order granting an injunction if he delayed until his motion to> dissolve could be heard. It is, we think, a serious omission in the law on this subject that no appeal is given from an order overruling a motion to dissolve.”

Again, in Holman v. Cowden, 158 S. W. 571, it is said:

“Appellant also makes objection to the order granting the injunction, on the ground that it was granted without notice. . As we have taken occasion to say several times, while the district judge had the power to grant an injunction without notice to the other party, it is only in the rarest cases that it is proper to do so. In every conceivable case, no matter how pressing the emergency, a temporary restraining order (well known in our practice as distinguished from a temporary injunction), restraining the defendant and preserving the status until such time as the application for temporary injunction can be heard after notice to the defendant, is all that is necessary. In this way both parties can bo heard before passing upon the application, and many times a serious mistake avoided. In addition, in case of an appeal, the appellate court will have something more before it than the naked ex parte allegations of the petition. There can be no possible objection to the course here suggested; and, in the interest of justice, it is earnestly to be desired that trial judges would adopt this course.”

We concur in the remarks quoted and trust the trial judges in this Supreme Judicial District will observe the rule of practice there clearly shown to be proper and desirable. It will accord much better with the spirit of our jurisprudence, which contemplates an opportunity to be heard before determining one’s rights. Serious mistakes will often be avoided, and no doubt many appeals from the issuance of. preliminary injunction will be obviated. The great number of appeals, from orders of this nature is in large measure due, we think, to the prac: tice of making such orders upon ex parte hearing. The distinction between a temporary injunction and a restraining order, effective only pending notice and hearing, of the application for a temporary injunction, is clearly stated in Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14. See, also, upon the subject, Hartzog v. Seegar Coal Co., 163 S. W. 1055; McWilliams v. Commissioners, etc., 153 S. W. 368; Ex parte Zuccaro (Sup.) 163 S. W. 579; Cole v. Forto, 155 S. W. 350.

The Ureka Club and Socorro Mutua Mexi-cana are not necessary parties. As pointed out above, the averments in regard thereto may all be regarded as surplusage.

Under article 505, above noted, it was not necessary that the petition in this case should be verified in order to authorize the issuance of a preliminary injunction.

What has been said disposes of' all assignments, except the tenth, which is to' the effect that the court erred in enjoining defendants from selling or keeping for sale spirituous, vinous, and malt liquors on the premises, because under "the law-an injunction was only authorized to restrain the keeping of a disorderly house, i. e., a house for the sale of liquor without a license; whereas, the injunction actually issued restrains the defendants from using the premises for selling liquor even if they had or should procure a license.

An inspection of the judge’s fiat and injunction issued thereon discloses that it is subject to the further order of the court, and, if it should be brought to the attention of the lower court that defendants had a license, the injunction would doubtless be dissolved. It is perhaps true, however, that the injunction granted is too broad and comprehensive in its scope, and the order of the lower court will therefore be reformed so as to meet the objection noted.

Ordinarily, upon the reformation and affirmance of a judgment, the costs are taxed against the appellee. Brown v. Montgomery, 19 Tex. Civ. App. 548, 47 S. W. 1803; Clark v. Cyclone, etc., 22 Tex. Civ. App. 41, 54 S. W. 392. But for cause, the same may be taxed against the appellants, and, had this objectionable feature of the order been of any importance to appellants’ rights, the lower court would doubtless have corrected it, if its attention had been directed thereto. This appellants have not done. The costs will therefore be taxed against them. See cases cited 4 Eney. Dig. of Texas Reports, pp. 1017, 1018.

Reformed and affirmed.