author: PHILLIPS, C. J.

text:
    STATE v. HOFFMAN.
    (No. 3006.)
    (Supreme Court of Texas.
    March 20, 1918.)
    1. Taxation <&wkey;527½ — Refusal to Pat —• Penalty — Tendee.
    Where taxes are separable, a citizen, to escape the penalties for nonpayment of valid taxes, need not tender a tax which is invalid, but it is sufficient to tender taxes legally due.
    2. Taxation <&wkey;527 — Tender—Payment.
    Where a taxpayer refused to pay an illegal item, but tendered payment of those taxes validly due, it is necessary to keep the tender good that the money be paid into the registry of the court.
    3. Appeal and Eeeoe <&wkey;934(l) — Review — PRESUMPTIONS.
    Where, in an action by the state to recover taxes with penalties, the judgment which denied penalties recited that the amount of the taxes sued for was tendered in open court on trial, it will, in the absence of evidence to the contrary, be presumed that a tender made before accrual of penalties was kept good by payment of the amount into the registry of the court.
    4. Taxation <&wkey;514 — Lien—Extinction.'
    Where a taxpayer tendered those taxes due and kept his tender good, the lien therefor was discharged, and in a suit to collect taxes could not be foreclosed.
    5. Taxation <&wkey;840 — Penalties—1Tendee.
    Where a taxpayer tendered a portion of the taxes assessed, but refused to pay a particular tax on the ground that it was invalid, he need not, to defeat recovery of penalties, having kept his tender good show, in an action to recover the amount of the taxes tendered with penalties and interest, that the tax which he refused to pay was not validly imposed.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Suit by the State of Texas against Charles Hoffman for taxes with penalties, interest, and foreclosure of tax lien. A judgment for the taxes alone was on appeal by the state affirmed by the Court of Civil Appeals (190 S. W. 1163), and the State brings error.
    Affirmed.
    J. F. Clarkson, of San Diego, and Hicks, Hicks, Teagarden & Dickson, all of San Antonio, for the State. Dougherty & Dougherty and G. C. Robinson, all of Beeville, for defendant in error.
   PHILLIPS, C. J.

This was a proceeding by the State to recover of the defendant Hoffman state and county taxes for the year 1913, with penalties and interest and foreclosure of the tax lien upon certain real estate. There was no dispute as to the taxes. Judgment therefor was rendered for the State. The real controversy is whether the State was entitled to the penalties, interest and costs, and a foreclosure of the lien, as to which its prayer was denied. The case is here upon a writ of error allowed by the Committee of Courts of Civil Appeals Judges, the judgment of the trial court having been affirmed by the Court of Civil Appeals for the Fourth District.

" The full amount of the taxes for which the State has brought this suit was, according to the agreed statement of facts, legally tendered by Hoffman to the county tax collector on January 28, 1914. This was before the time fixed by law for the accrual of any penalty for their non-payment. Hoffman’s tender did not include a tax of twenty cents upon the hundred dollar valuation that had been levied for court house and jail purposes. The validity of that tax was denied by him, and for that reason he declined to pay it. His tender was refused by the collector because it did not embrace the amount of that tax. Exclusive of that amount, it covered all taxes due by him. This being the situation, Hoffman and other citizens in the same attitude, on January -30, 1914, presented to the District Judge their petition for an injunction to restrain the collector from attempting to collect the court house and jail tax, because of its invalidity, and directing that he accept from the plaintiffs- the amount of their taxes less that tax. A preliminary injunction to such effect was granted on the same day. The required bond was duly filed. The writ issued and was served on the collector on January 31st. That injunction is still in force, a motion to dissolve having been later heard and denied. On February 2nd, the intervening day being Sunday, Hoffman made a second tender of his taxes to the collector, in the same amount as the first. It was refused by the collector because it did not include the amount of the penalty. Later, Hoffman and others obtained an injunction restraining the county attorney from prosecuting suits for the court house and jail tax until its validity was determined in the suit against the tax collector which appears to be still pending. On final hearing that injunction was perpetuated, with no ap-lieal taken from either the preliminary or final order.

Hoffman was under no obligation to pay the court house and -jail tax if it was an illegal tax. The property of the citizen is subject to only valid taxation, and it is his right to resist that which is invalid. He is not required to pay the tax and be then put to a suit or compelled to resort to the political authority to recover it if adjudged illegal. The law affords him a more direct remedy. Where the taxes are separable, it is to properly tender the taxes admittedly due and then by appropriate proceeding present for the determination of the courts the validity of the tax assailed. Blanc v. Meyer, 59 Tex. 89; Land & Cattle Company v. Board, Tax Collector, SO Tex. 489, 16 S. W. 312. That is the course Hoffman was entitled to pursue and which he did pursue. Equity will not lend its aid in such a proceeding unless this proffer of the undisputed taxes has been made. But when under the sanction of this equitable rule a man has offered to pay and has attempted to pay before default day his taxes concededly due and keeps his tender good, it is opposed to all sense of justice to inflict a penalty upon him as for default in their payment. There can be no penalty without a default. There was no default here, because within the legal period Hoffman sought to pay the full amount for which he is here sued by making a legal tender to the collector. Having once made such a tender it was unnecessary for him to repeat it. For the tender to be available as a bar to the recovery of the penalty, interest and costs it was only required that he keep it good.

To keep the tender good in an action likd this, it was necessary that the money be paid into the registry of the court. Brock v. Jones, 16 Tex. 461; Tooke v. Bonds, 29 Tex. 420; Hunt on Tender, § 481. It is urged by the State that this was not done, but such is not shown by the record. The judgment of the court recites that the amount of the taxes sued for was tendered by the defendant in open court on the trial. In the absence of a contrary showing by the record we will presume in favor of the judgment that the tender was maintained.

With this true, the lien upon the property for the taxes stood discharged, and the court properly refused to foreclose it.

The ■ writ' of error was granted upon the theory that it was the duty of the collector to refuse Hoffman’s tender of January 28th because it did not include the court house and jail tax which had not then been enjoined, and for that tender to be available here it was incumbent upon -Hoffman to show in this proceeding the illegality of that tax. But Hoffman is not here sued for that tax. That tax is not in issue. The State is here making no claim for it. The penalty it here seeks to impose is not for any default in its payment, but for an alleged default in the payment of the taxes legally tendered by Hoffman before under the law they were delinquent. With the court house and jail tax itself not in issue, Hoffman was not .called on here to contest it, or try out the question of its validity in order to defend against a penalty upon other taxes for which alone he is here sued. True, the collector was not required at the time of the tender to accept less than the full amount of the taxes assessed. But the infliction of a penalty for the non-payment of the taxes in issue here which were legally tendered before default day, is another matter.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       4&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    MORGAN v. STATE.
    (No. 4689.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    On Motion for Rehearing, March 20, 1918.)
    1. Forgery <&wkey;44(3) — Passing of Forged Instrument-Evidence — Sufficiency.
    Evidence held to sustain conviction of passing forged check.
    2. Criminal Law &wkey;>1141(2) — Appeaj>-Pee-sumptions — Bills of Exception.
    There is a presumption that the lower court ruled correctly and bills of exception must neg--ative this and show a material error.
    3. Forgery <&wkey;37 — Prosecution — Evidence —Rejection.
    In a prosecution for passing a forged check, where the prosecuting witness whose name appeared thereon denied its authenticity, evidence that he occasionally gambled for money was properly rejected, where no effort was made to show that the check in question was the result of such a transaction.
    4. Criminal Law <&wkey; 1170(2) — Harmless Error — Evidence—Exclusion.
    Where it was a proven fact that the signature of the prosecuting witness was not alike to all documents bearing his admitted signature, accused cannot complain that he was not allowed to require the prosecuting witness to point out the particulars of dissimilarity between his signature on the various papers that were before the jury and an affidavit.
    5. Criminal Law &wkey;>1169(9) — Appeal — Harmless Error.
    Testimony by a banker with whom the check was deposited by defendant and who honored defendant’s cheeks drawn on such deposit that he would not have given defendant the money was harmless, though erroneous.
    6. Forgery &wkey;?40 — Evidence — Admissibility.
    In a prosecution for passing forged check which purported to be made in favor of one E., then transferred to another, and by him transferred to accused, testimony by E. that the check was not given to him or indorsed by him was admissible.
    7. Forgery <&wkey;43 — Evidence — Admissibility.
    Where it appeared in a general way that defendant was insolvent, evidence that neither the prosecuting witness whoes name appeared on the check nor the bank which gave defendant credit on account of the deposit of the check had instituted a civil suit against him was properly excluded.
    8. Criminal Law <&wkey;413(l) — Evidence — Self-Serving Declarations.
    In a prosecution for passing a forged instrument which defendant claimed he received as compensation for his sale of a leasehold, evidence that he told a third person that he had sold the lease was properly excluded, being a self-serving declaration.
    9. Criminal Law <&wkey;1169 (9) — Harmless Error-Opinion Evidence.
    That defendant’s witness, after testifying to his familiarity with the signature of the prosecuting witness, and that the signature in question was that of the prosecuting witness, testified on cross-examination that it appeared as if it was an imitation of the genuine signature, was not error.
    10. Forgery &wkey;>42 — Evidence — Admissibility.
    In a prosecution for passing a forged check which defendant claimed he received as a consideration for his assignment of a lease, testimony that a witness told defendant he had no right to sublease the land was proper, tending to show that the lease alleged to have been transferred was of little value.
    11. Criminal Law <&wkey;683(l) — Evidence in Rebuttal.
    In a prosecution for passing a.forged instrument, where defendant gave testimony as to his financial resources, evidence as to the status of his account with a grocer was properly received in rebuttal.
    12. Forgery &wkey;>29(5) — Indictment—Name oe Person Defrauded.
    An indictment charging the passage of a forged instrument need not state the name of the person defrauded.'
    13. Criminal Daw <&wkey;938(3) — New Trial — Newly Discovered Evidence.
    Where, in a prosecution for passing a forged check, defendant claimed .to have received it in consideration for his assignment of a lease, and testified that the transaction occurred at a meeting with the assignee, alleged newly .discovered testimony that defendant’s brother-in-law was present and familiar with the transaction is no ground for new trial, for defendant must have known it at the time of trial, and, if true, would doubtless have produced the brother-in-law.
    14. Criminal Law <&wkey;944 — New Trial — Newly Discovered Evidence.
    In a prosecution for passing a forged check which defendant claimed he received as consideration for his assignment of a lease, and that, the check being for a sum greater than the amount agreed upon, he paid the assignee the difference in money, alleged newly discovered testimony that defendant’s wife saw him writing the transfer of the lease, and thereafter found that a considerable sum of money was missing from his pockets, is no ground for a new trial.
    On Motion for Rehearing.
    15. Forgery i&wkey;41 — Evidence—Admissibility.
    In a prosecution for passing a forged instrument, defendant’s possession of the forged instrument is evidence against him.
    16. Forgery <&wkey;42 — Prosecution—Incriminating Evidence.
    In a prosecution for passing a forged check, that defendant was familiar with the signature of the prosecuting witness whose name was appended to the check, and that he claimed to have received it in consideration of his assignment of a lease, but was unable at the trial to produce the assignee, were circumstances to be considered by the jury.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    James Benton Morgan was- convicted of passing a forged instrument, and he appeals.
    Affirmed.
    W. M. Pierson and H. Bascom Thomas, both of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for passing a forged instrument, viz. a check for $431 drawn in favor of Roy Evans December 28, 1916, on the National Bank of Commerce of Dallas, signed Paul Agnew.

The facts show that this check, indorsed Paul Agnew, Roy Evans, and Benton Morgan, was deposited by the appellant to his own credit in the National Bank of Commerce at Dallas on January 3, 1917; that he had not previously had au account with said bank; that during the month of January he drew checks against the account, on which he had made no further deposits, which checks left to his credit about $2. Paul Agnew was a merchant in Dallas, had an account with the bank mentioned, and when his bank book was balanced _ about the first of February, 1917, he found his balance short, and, going over his cheeks, declared the one in question a forgery, and caused the arrest of appellant. He declared that he did not sign the check nor authorize its making, and the state introduced a number of checks and other documents bearing his admitted signature and' these were' used for comparison -of handwriting by experts and by others familiar with his signature. Appellant had a lease upon a certain tract of land,, and claims to have sold his lease to Roy Evans for the sum of $350, taking the check in payment and giving to Evans $81 in money, the difference between the purchase price of the lease and the amount of the check: He had rented a dwelling house from Paul Agnew for several mouths prior to the time of the transaction, and had received receipts for the rent from Paul Agnew which were signed by him, and which were also1 introduced in evidence. He also introduced documents'bearing his signature and written in Ms handwriting, among them the checks that he drew against his account at the bank mentioned, and these were used ior comparison by experts and by others familiar with his handwriting. He claimed to have had the transaction involving the sale of the lease at a certain place in Dallas; that he had previously met Evans on two occasions and had made an appointment to make the trade, and that, pursuant to the arrangement, he and Evans met at a certain drug store for the purpose of closing the transaction, and that soon after this meeting it was closed in the manner stated. The evidence of the experts and others with reference to handwriting was conflicting. The signature on the questioned check closely resembled that of the purported maker, Paul Agnew. An inquiry into the financial resources and transactions of appellant was made, and there was testimony as to the value of the lease which he claimed to have sold to Evans. He was unable to locate Evans at the trial, though he claimed to have made considerable effort to do so.

The indictment charged forgery, and also charged the passing of the forged instrument. Both issues were submitted to the jury, and the finding against appellant was upon that of passing. The sufficiency of the evidence to sustain the verdict is attacked, but, without making a review of it further than the above statement, we think it was sufficient to support the verdict. Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926; Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 954.

A number of bills of exception complaining of alleged errors upon the trial are found in the record. Most of them relate to the admission or rejection of testimony. As presented, they fail to make clear the relevancy of the various matters to which they relate, and are subject to the-criticism that they are not sumcient fully to manifest the supposed error. Branch’s Ann. P. C. § 207, p. 131, and cases cited. The legal presumption is that the court ruled correctly, and the bills of exception must negative this, and show that a material error was committed. Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; Moore v. State, 7 Tex. App. 20; and other cases cited in Branch’s Ann. P. G. p. 132. We have examined them, however, in connection with the statement of facts and the qualifications made by the trial judge.

One bill complains of the refusal of the court to permit proof that the prosecuting witness, Agnew, occasionally gambled for money. The judge in qualifying the bill says that no effort was made to show that the check in question was the result of such a transaction.

Another bill complains that he was denied the privilege of requiring the prosecuting witness to point out the particulars of the dissimilarity between his signature on | the various papers that were before the jury and his signature to an affidavit which he had made. Appellant had proved by him that there was such dissimilarity, and it was a proven fact that the signature of the prosecuting witness was not alike to all of the documents bearing his admitted signature.

The banker who received the check from appellant was asked by the state if he would have given the money to the appellant, and to this he gave a negative answer. This was in the nature of a conclusion and not admissible, but not so harmful as to affect appellant’s rights; it being admitted that the witness placed the amount of the check to appellant’s credit and paid his checks for it.

The state produced a witness by the name of Roy Hubbard Evans, who testified that the check in question was not given to him nor indorsed by him. This, we think, wras proper as a circumstance bearing upon the issues in the case. The check purported to be made in favor of Roy Evans. Appellant claimed to have gotten it from Roy Evans, and it bore that indorsement.

The failure to permit the appellant to prove that no civil suit had been brought against him on account of the check is not shown tp have been harmful or material error. We are unable to discern any testimony in the record which would have made it so. It is not disputed that the purported maker of the check repudiated it and caused appellant’s arrest as soon as he discovered it, and it is not shown that he or the bank would have profited by a civil suit; on the contrary, in a general way, it appears that appellant was insolvent.

The offer by appellant to prove that he had had a conversation with a witness named Miller, telling Miller that he had sold the lease to Roy Evans for $350, was an offer to prove a self-serving statement, and its rejection was not error. Vernon’s C. C. P. p. 636, note 86, and cases cited.

The receipt of the testimony of the witness Sawyer to the effect that the signature examined by him looked like an imitation of Agnew’s signature is not, as disclosed by the bill of exceptions, shown to have been error. Rooking to the statement of facts, it appears that Sawyer was introduced by the defendant, and by him was shown to be familiar -with the signature of Agnew, and, after stating that in his opinion the signature to the check was that of Mr. Agnew, he testified on cross-examination that there was a difference in Some of the letters from Agnew’s signature as he knew it, and said:

“To tell you the truth, I wouldn’t swear to that being Paul Agnew’s signature. It looks like somebody was trying to imitate his signature in that respect. It looks like his signature.”

The bill complaining of the admission of evidence that the witness had told appel-Iant that he did not have a right to sublease the land which he claims to have transferred to Evans shows no error. It was proper for the state to prove that the lease of the land which appellant claims to have transferred to Evans was of little value. It was a relevant circumstance as bearing upon appellant’s good faith in taking the check, and the truth of his statement that he had sold the lease for $350. This complaint cannot be sustained.

The complaint of the admission of th'e status of appellant’s account with a grocery merchant was proper as rebutting appellant’s testimony in regard to Ms financial resources.

The proposition that it was requisite that the indictment should state the name of the person to be defrauded is not sound. Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; Allen v. State, 44 Tex. Cr. R. 63, 68 S. W. 2S6, 100 Am. St. Rep. 839; Yernon’s C. C. P. art. 454, note 7, and cases listed.

Appellant in his motion for a new trial claims that he had discovered new evidence in two particulars: First, that his brother-in-law, Hamilton, was present and saw him meet Evans and discuss the matter of the purchase and sale of the lease. It appears from the affidavit that Hamilton’s testimony would be to the effect that he was present with' appellant at the time that he had the transaction with Evans; that he had left Dallas on the same day, and had not talked with appellant until after his conviction. Appellant testified that he had made diligent search for Evans, and was closely cross-examined as to his meeting with him and as to persons who had seen them together. If Hamilton was there, appellant’s knowledge of it at the time of the trial is certain. The record negatives the idea that the evidence was newly discovered, and his failure to produce Hamilton at the trial sustains the trial court’s theory that it was not probably true. Branch’s Ann. P. C. p. 126, § 198.

The other newly discovered evidence was that of the wife of appellant, who would have testified that she had learned from appellant that he was about to make the trade, saw him while he was writing the transfer of the lease, and that thereafter had examined his pockets and found that the four $20 bills which he previously had were missing. The relevancy of this testimony was to corroborate appellant in His testimony that in closing the trade with Evans he had given Evans four $20 bills and a $1 bill. We think the trial court’s conclusion that this was not available as newly discovered evidence and was not probably true is sustained by the record. Branch’s Ann. P. C. p. 128, § 200, and cases cited.

Finding the evidence sufficient, and no reversible error committed in the trial of the case, the judgment of the lower court is affirmed.

On Motion for Rehearing.

We have carefully reconsidered the-record in connection with appellant’s motion for rehearing. Without reiterating the statement of the evidence, we are unable to reach any other conclusion with reference to the sufficiency of the circumstantial evidence to show appellant’s knowledge of the forgery. His possession in passing the forged check was a circumstance against him. Fischl v. State, 54 Tex. Or. R. 57, 111 S. W. 410; Gaut v. state, 49 Tex. Cr. R. 495, 94 S. W. 1034; Wharton’s Orim. Law, § 931; Jackson v. State, 193 S. W. 302.

Other evidence connecting appellant with the transaction, in our judgment, brings it well within the rule permitting the conviction upon circumstantial evidence. See Cyc. vol. 19, p. 1414. The absence of th'e payee in the check, the circumstances under which the alleged indorsement by Evans was made, and the delivery of the check to appellant, the-advantage he derived from the transaction, his opportunities for familiarity with th'e handwriting and business habits of the purported maker of the instrument, are all circumstances which the jury was authorized to take into consideration in reaching the conclusion as to appellant’s guilty knowledge in passing the instrument. Cyc. vol. 19, p. 1421, subd. “b,” and cases cited.

We do not think the matters of evidence-referred to in th'e bills of exception, and' which are discussed in the original opinion,, would be the basis for error if properly presented for review. As presented in the bills, we are clearly of the opinion that none of them overcome the legal presumption in favor of the correctness of the rulings of the triál court. This is necessary. Moore v. State, 7 Tex. App. 20; Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Ortiz v. State, 68 Tex. Cr. R. 524, 151 S. W. 1058; Anderson v. State, 70 Tex. Cr. R. 594, 157 S. W. 1197; Zweig v. State, 74 Tex. Cr. R. 306, 171 S. W.'751.

The motion is overruled.

PRENDERGAST, J., absent.
      cgraoFor other capes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHENAULT v. STATE.
    (No. 4795.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    1. Criminal Law &wkey;>943 — New Teial — Newly Discoveeed Evidence.
    Where testimony relied on for conviction-was that of a confessed accomplice and another witness under indictment for several felonies, a new trial should have been granted for newly discovered evidence, directly contradicting the testimony of the accomplice material to the case.
    2. Criminal Law <&wkey;359 — Confession of Third Party — Admissibility.
    Where the identity of the offender is in issue, or his connection with the offense controverted, it is generally permissible to introduce evidence of acts and declarations of third parties which tend to show that they, and not accused, committed the offense.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    John Chenault was convicted of burglary, and appeals.
    Reversed and remanded.
    Ratliff & Spencer, of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of burglary.

The evidence shows that the smoke house of Mrs. Annie MeCfight was burglarized and certain meat stolen. John Hayse confessed that he committed the crime, and testified that his coprincipals were appellant and one Jackson. The corroboration relied upon was the testimony of a witness by the name of Stevens to a conversation of the latter with appellant, in which he confessed that he was connected with the offense. .Both the witness Playse and the witness Stevens admitted in their cross-examination that they were under indictment for a number of felonies, and also Hayse admitted the commission of other offenses involving ■ moral turpitude. Each testified that they had no promise of immunity, but that they were encouraged to»entertain hope of leniency from their conversation with the prosecuting officers.

In connection with the motion for new trial it was shown that since the giving of his testimony the witness Stevens had pleaded guilty to eight cases of burglary and the witness Hayse to nine cases of burglary; that the punishment assessed against Stevens in each case was five years’ confinement, in the penitentiary, and that against Hayse in each case was two years’ confinement in the penitentiary, and that the sentences of each of them had been suspended in all said cases. Just how this was accomplished was not explained and not easy to divine, inasmuch as the suspended sentence law contemplates that, when one is-convicted of a felony, he shall not in another case have the benefit of a suspended sentence. In connection with the motion for new, trial appellant produced affidavits of three witnesses upon whom he relied as furnishing newly discovered evidence entitling him to a new trial. One of these witnesses testified that some time before the trial of appellant the witness Hayse had, in conversation with him, stated that he and a party by the name of Chastain had stolen the widow McCright’s meat, and that no one but himself and Chastain were connected with it. This witness stated that he did not disclose these facts until after the conviction of the appellant Chenault and his codefendant Jackson, and indicated that he then disclosed it because of his surprise that they were charged and convicted of the offense which Hayse had told him had been committed by him and Chastain.

Substantially the same testimony was given by two - other witnesses whose affidavits were produced and used in the hearing of the motion for new trial. There is nothing to throw suspicion upon the testimony of these witnesses, and in fact the truth of their statements is not controverted. Nor is there anything in the record to suggest the lack of diligence in securing this testimony. It is newly discovered, and while it would be usable to impeach the witness Hayse, it does not acquire its materiality solely as impeaching testimony. It comes' within the principle which influenced the decision in Piper v. State, 57 Tex. Or. R. 605, 124 S. W. 661, and is directly in line with the case of Taylor v. State, 49 S. W. 389, where the ruling was that, where the reliance was upon the testimony of a confessed accomplice supported by ■weak corroboration, newly discovered evidence of contradictory statements material to the case and made by an accomplice would require a reversal.

The appellant denied any connection with the offense. In a case where the identity of the offender is in issue or the connection of the accused with the offense is controverted, it is generally admissible to introduce evidence of the acts and declarations of third parties which tend to show that they and not the accused committed the offense. Under this rule, the confession of another has been held admissible. Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699. Other cases in point are Jemison v. State, 43 Tex. Cr. R. 456, 66 S. W. 842; Manuel v. State, 48 Tex. Cr. R. 542, 89 S. W. 645 ; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; Pace v. State, 61 Tex. Cr. R. 438, 135 S. W. 379. See, also, cases in Branch’s Ann. P. C. p. 129.

The appellant, we think, showed himself entitled to a new trial, and the court erred in refusing it.

For which reason the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J., absent.
      tfe^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J,

text:
    JACKSON v. STATE.
    (No. 4787.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.)
    Appeal from District Court,' Wise County ; P. O. McKinsey, Judge.
    John Jackson was convicted of burglary, and appeals.
    Reversed and - remanded.
    R. E. Carswell and Ratliff & Spencer, all of Decatur, for appellant. M. W. Burch, Co. Atty., of Decatur, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J,

This is a companion case to Chenault v. State, 201 S. W. 657, this day reversed and remanded. The facts are practically the sanie, as are the witnesses. It was the alleged burglary of the same house which the accomplice Hayse testified he and Chenault burglarized, and appellant was criminally connected with the burglary, though not actually present. The facts, so far as they bear upon the decision of the case, are sufficiently stated in the Che-nault opinion. Following that case, this judgment will be reversed and the cause remanded.

PRENDERGAST, J., absent.


author: RASBURY, J.

text:
    WOODSON et al. v. STANLEY et al.
    (No. 8052.)
    (Court of Civil Appeals of Texas. Dallas.
    March 2, 1918.)
    1. Schools and School Districts &wkey;>68 — Higi-i School — Selection oe Site.
    Under Acts 34th Leg. e. 36, amending Acts 32d Leg. c. 26 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2749a-2749i, 2849b, 2849bb), which declares in section 2 (article 2749a) that the general management and control of public schools in each county is vested in the county trustees and in sections 3, 4, and 5 (articles 2749b, 2749c, 2849b), authorizes the trustees to classify the schools into elementary and high schools for the purpose of promoting the efficiency of the elementary schools and establishing high schools at convenient places, the trustees being given authority formerly exercised by the county commissioners’ court the county trustees must, all acts in conflict having been repealed by section 15 (article 2749Í), be deemed alone to Have authority to establish a high school; consequently the district trustees cannot select the site for such school.
    2. Schools and School Districts <&wkey;68 — Public Schools — Trustees—Statutes—Repeal.
    Although Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2824, providing for the election of district trustees, declares that the trustees shall determine h'ow many schools shall be maintained in their district and at what points they shall be located, such statute must, in view of the power to locate high schools conferred on county trustees by Acts 34th Leg. c. 36, amending Acts 32d Leg. c. 26, be deemed to apply only to elementary schools; section 15 of the later act (Vernon’s Ann. Civ. St. Supp. 1918, art. 27491), repealing all acts in conflict.
    Appeal from District Court, Hill County; I-Iorton B. Porter, Judge.
    Suit by A. M. Woodson and others against A. M. Stanley and others, Trustees of Common School District No. 123. From a decree enjoining defendants from locating a high school in the district at a specified point, defendants appeal.
    Affirmed.
    M. S. Wood, of Itasca, and Wear & Frazier, of Hillsboro, for appellants. Shurtleff & Cummings, of Waco, for appellees.
   RASBURY, J.

This is an appeal from-the judgment of the lower court permanently enjoining appellants, who are trustees of a common school district in Hill county, known as school district No. 123,. from locating a high school in said district at a point known as Lee Summit site. The record discloses without dispute that appellants were at the time the controversy arose trustees for said school district No. 123, which was created by merging two contiguous common school districts, one known as Hodge school district, and one known as Lenity school district. After the consolidation bonds were authorized and issued for the purpose of building and erecting a high school in the new district. At a mass meeting of the citizens of the consolidated district called by the county superintendent, presumably to ascertain public sentiment, what was designated as the McDuff tract was selected or recommended by the meeting. Afterwards -the trustees who were appointed subsequent to the mass meeting selected what was designated as the Lee Summit site. Thereupon this proceeding was commenced with the result stated, the court basing its judgment on the finding that the site selected was not the most convenient situs for a majority of the patrons nor the geographical or population center of the district.

Several issues are presented by counsel, but, as we view the case, one only need be considered, which is; Is the power to select the location of rural high schools lodged with the board of county trustees or with the board of district trustees? It was assumed by the patrons of the school in the mass meeting, and by the county and district school trustees and court and counsel below, that the district trustees had such authority, and the point stated is for the first time presented in this court Concerning that function it is provided by chapter 36, Acts 34th Leg. 1945,, p. 68, which amends chapter 26, Acts1 32d Leg. 1911, now title 48, cc. 11a, 15a, Vernon’s Ann. Civ. St. Supp. 1918, in section 2 thereof, that “the general management and control of the public schools” in each county in the state is vested in the county trustees. By section 3 such trustees are required to classify the schools of the county into elementary and high schools, in accordance with the regulations prescribed by the state superintendent, for the purpose of promoting the efficiency of the elementary schools and of establishing high schools at convenient and suitable places. In classifying the schools and in establishing high schools the county trustees are required to confer and advise with the county superintendent and the district trustees and give due regard to schools already located and the distribution of population, etc. By ¡Section 4, after conferring on county trustees certain authority formerly exercised by the county commissioners’ court, it is made the duty of the county school trustees to call an annual meeting of the district trustees, whereat the county and district trustees shall jointly consider “questions dealing with the location of high schools * * * and the county school trustees shall be guided in their action by the result of the deliberation of such meeting, not inconsistent with law.” Vernon’s Ann. Giv. St. Supp. 1918, art. 2749c. Other meetings may be called by the county trustees when deemed necessary. The county trustees may consolidate two or more common school districts in order that a high school may be established therein, upon petition of a majority of the qualified electors at interest in the districts proposed to be consolidated. By section 5 high schools of the first, second, and third class are defined. By section 15 all laws or parts of laws in conflict with the act are repealed. We are unable to deduce from the provisions quoted anything other than that they evidence the intention of the Legislature to authorize the county trustees to establish and locate every rural high school in the county, whether in single or consolidated school districts. While the language used is not as clear and direct as might he desired, at the same time it imports nothing less when it confers the authority to establish and locate such schools. What induced the Legislature to place the authority where it did is more or less a matter of speculation, and not altogether important. At the same time it can be said with reason that after the annual meeting between the county and district trustees provided for by the act, the former, representing in the broad sense the entire county, would be better qualified to act for the general best interests of the several districts of the county and the patrons and scholars who desired high school facilities. In any event, whatever may have been the thought of the Legislature, it is1 certaih, we believe, that the power is lodged as stated, since any other construction would be to hold the language used entirely meaningless.

It is true, as argued by counsel, that article 2824, Vernon’s Sayles’ Civ. Stats., which is part of chapter 15, authorizing the creation of school districts, the election of trustees and defining their rights and duties, etc., and which was amended by the acts first quoted, provides that such “trustees shall determine how many schools shall be maintained in their school district, and at what points they shall be located.” That provision, however, necessarily has reference at least since the last enactment to the elementary schools in the district. For, if prior to the last act the district trustees had authority to locate high schools in their district, it was repealed by the express provisions of the later act. No other conclusion, it occurs to us, can be reached consistent with both en-' actments. Such conclusion renders unnecessary a determination of the other issues involved in the appeal. W'e further conclude that the proper disposition of the case is an affirmance. But neither such affirmance nor the action of the trial court is to be in any manner conclusive on the county trustees in the exercise of the discretion vested in them by law.

Affirmed.

       <S&wkey;For other eases see same topic and KÉY-NUMBER. in all. KeyJNumbered Digests and Indexes

      <S=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    McAllen v. BROWNSVILLE MASONIC TEMPLE ASS’N.
    (No. 6033.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 16, 1918.
    Rehearing Denied March 13, 1918.)
    Mortgages <&wkey;338 — Foreclosure by Power —Restraining Exercise — Petition — In-terpleader.
    Petition to restrain sale under power in mortgage given by plaintiff to defendant’s deceased husband, based on the theory that plaintiff was ready to pay, but did not desire to pay to defendant, because it was doubted that she had authority to give valid releases, is insufficient, it, while alleging she was executrix, and that assignments from deceased to her of the secured notes had been recorded, stating onÉ information and belief that they were obtained by duress and while deceased was mentally incapable, and that they were merely transferred to her in trust, and that action in which the plaintiff therein claimed to own the notes had been brought against her, and that another had been appointed guardian for her infant children, who it was alleged on information and belief owned four-fifths of the amount of the notes, it not being alleged that she would not give releases as executrix, trustee and individual, and there being an adequate remedy by inter-pleader, with payment of the money into court.
    Appeal from District Court, Cameron County ; W. B. Hopkins, Judge.
    Suit by the Brownsville Masonic Temple Association against Margaret R. McAllen. Prom an order granting temporary injunction, defendant appeals.
    Order set aside, and cause remanded.
    Canales & Dancy, of Brownsville, for appellant. E. K. Goodrich and Jas. A. Graham, both of Brownsville, for appellee.
   PLY, C. J.

This is a suit for injunction to restrain the sale of certain property under a deed of trust, and this appeal was perfected from an interlocutory order granting a temporary injunction restraining appellant “from making sale of the above-described property on the first Tuesday in December, 1917, as you have advertised to do,” and further providing:

“You are hereby directed to refrain from further asserting and attempting to exercise ownership of and from further attempting to collect in any manner, other than through some judicial proceeding in some court having jurisdiction of such matters, said note above referred to, or either of them, and from in any way attempting to enforce the lien securing the payment of said notes, except in some court authorized by law to entertain jurisdiction of such a proceeding, until the matters involved in this suit shall have been finally settled by final judgment herein.”

That order was obtained without notice to appellant, and is based upon a petition alleging, in substance, that appellee had executed two promissory notes to James B. McAllen, one for $6,000, and one for $600, and gave as security therefor certain mortgages on what is known as the “old courthouse property” in Brownsville, Tex., the first of said notes being dated June 29, 1914, and the second October 9, 1914. Copies of the mortgages were attached, and gave the power of sale to the trustee named therein under certain conditions. It was admitted that the notes were due and unpaid. It was alleged that James B. McAllen died on November 18, 1916, leaving a duly and legally executed will in full force and effect which disposed of his entire estate; that appellant, his surviving wife, had procured the probate of the will, and was appointed executrix as provided in the will; that appellant had placed on record assignments to her of the two notes executed by ap-pellee, and said assignments are attacked on the ground that they were procured from hex-husband while he was under duress and mentally incapable of executing the same; and that they were never delivered by him and were not intended as assignments, but that the property was merely transferred in trust to hei-. The charge as to duress and incapability was made upon information and belief. It was also alleged that in a certain suit, styled Cleofas Guarjardo De McAllen v. Margaret R. McAllen, it was claimed that the plaintiff owned the two notes in controversy; that A. Wayne Wood had been' appointed temporary guardian of the estate of certain minor children of appellant and her deceased husband; that in a certain suit filed by appellant she sought to set aside the appointment of Wood as guardian and sought the appointment for herself; that said suit was tried, and the appointment of Wood confirmed, and the cause had been appealed. The following was alleged:

“That since the conditions hereinbefore alleged arose and have b'ecn in existence the plaintiff herein has been ready, willing, and able to pay off and satisfy said indebtedness in full, conditioned only that some person or persons legally authorized so to do upon the payment of said debt execute and deliver to this plaintiff a proper release, releasing the property described in said mortgages copies of which are hereto attached as exhibits fi-om the liens therein created, but as a result of the conditions hereinbefore set out, in the judgment and opinion of plaintiff herein there could be no certainty as to who was authorized to execute such release and as to who was in fact the owner of the notes copies of which are hereto attached, and plaintiff has on mox-e than one occasion offered and proposed to pay off and satisfy said indebtedness upon the execution and delivery to it of pi-oper releases, releasing the liens on its property created by said mortgages, and it here now alleges and would show to this court that as soon as, or within a short time thereafter, as it may legally be decided. or settled as to who is the owner of the notes due and owing by it, and as to who is the owner of the liens upon its property securing the payment of said notes, it will be ready, willing, and able, and hex-e now offers and proposes, to pay off and satisfy said notes upon the execution and delivery to it of proper releases, releasing its property from the liens securing the payment of said notes.”

It was alleged upon information and belief that the minors owned four-fifths of the amount of the notes, and that the temporary guardian alone could execute a valid release of the liens on appellee’s property; that appellant had advertised the property for sale on the first Tuesday in December, 1917, and it was asked that she be restrained from making such sale.

It is not alleged that the suit of Cleofas Guarjardo De McAllen et al. v. Margaret R. McAllen had any merit or justice in it, and while it was alleged that appellant was made a trustee by the assignment of the notes to her, there is no direct allegation that she had x-epudiated the trust, nor that she would not as executrix, trustee, and in her individual capacity execute receipts for the money and give releases for the liens, if the money had been paid to her. She was the duly appointed executrix of the last will and testament of her deceased husband, and there is no allegation to the effect that she was not required to and did not give an ample bond as executrix which would protect the minors in all property owned by them under their father’s will. The allegations do not attempt to state that appellant was not ready and willing to' execute the releases of the liens in her capacity of executrix or in any and all capacities in which she might be acting or authorized’ to act. If, as alleged by appellee, th'e assignments were made to appellant in trust for her children, it would seem that she, as trustee, would have the authority to accept the money due on the notes and execute releases of the liens. It is certain that as trustee she would be authorized to collect the amount due on th'e notes, and it would follow that as trustee she would be empowered to execute the necessary releases of liens by which the debts were secured. It must be presumed that she would have given the releases as trustee, as executrix, or as an individual, or in all three capacities.

' If she had collected the money as an individual and had given releases as an individual, we believe that the releases would have been binding as against the estate she represented, but, if not, there is no allegation that she refused to execute the releases as the executrix or trustee. In one of those capacities she had legal control of the estate, with power to make collections and give all necessary receipts, releases, or ac-quittances.

The remedy by injunction is exclusively one in equity, and in a petition seeking the remedy the pleader can leave nothing to inference, but the facts must be fully and clearly stated upon which the writ is sought. Not only must the petition state every fact affirmatively necessary to obtain the relief, but must negative every inferable defense that might arise from the facts stated. Applying these rules to the allegations as to th'e suit that was alleged to be pending against appellant by Cleofas Guarjardo De McAllen presents no basis whatever for the issuance of a writ of injunction. The fact that some person has sued an executrix and claims the property of the estate could furnish no ground for a refusal to pay debts due the estate, and especially so when there is no allegation as to the suit being well founded. Indeed, the only ground, it seems, upon which the allegation as to the suit rested is that therein appellant claimed the notes as her property.

The executrix of the estate was alone authorized to collect the debts due the estate, and the appointment of a temporary guardian of the estate of the children would not impair or destroy her right to collect the debts. It is made the duty of the executor to use diligence to collect the debts due the estate, and he is made liable on his bond, if such diligence is not used. Rev. Stats, art. S353. Tire statute contemplates and provides for the appointment of guardians for minors, while an estate is being administered by an executor or administrator, and he can no more interfere with the administration than can any one else interested in the estate. Article 3354. The executrix of the McAllen estate had full authority to collect debts due the estate, and would be liable for any misappropriation of the funds, but her right to collect'would not be impaired by an intended misappropriation. The presumption under the allegations is that she had given a bond as executrix, but, if she has not, the guardian of the minors,or any other party interested in the estate may require her to execute a bond. Articles 3364-336T. Suits instituted or that may probably be instituted by any one against the executrix of the estate can be of no consequence to appellee, if it pays its debt to the executrix and obtains her receipt therefor, and there is no equity in granting an injunction against appellant on those grounds.

The theory upon which this suit was instituted was that appellee did not desire to pay the money to appellant because it was doubted that She had authority to give valid releases of the liens on appellee’s property. It was admitted that the debts were just, due, and unpaid, but, while asserting willingness, readiness, and ability to pay the debt, no interpleader of contesting parties was filed nor money tendered into court. Under the operation of the injunction the money could not be collected, appellant could not exercise ownership over the notes except as directed in the writ, nor endeavor .to enforce the contract liens except in the manner-prescribed until this suit shall finally terminate. If nothing but protection was desired, it .could have been obtained by depositing the money in court for the court to determine to whom, it belonged. Appellee owed the money, the estate was entitled to it, and appellee should not have interposed any obstacles to its collection.

When doubt exists in the mind of a debtor or bailee of property as to whom the debt is due or the property belongs, he may by inter-pleader bring all parties into court and have a determination of the matter of ownership. However, in such case the plaintiff must bring or pay, or offer' to bring or pay, the entire thing, fund, or money in controversy into court, and a failure to do so renders the bill demurrable. Pomeroy’s Eq. Jur. § 1328; Zachary v. Gregory, 32 Tex. 452; Joyce, Inj. § 564. An expression of willingness to pay under certain circumstances is not an offer to bring or pay the money into court.

As executrix of the estate of her deceased husband appellant was authorized to collect the debts due the estate, and was authorized to collect by notice and sale as contracted for in the deeds of trust. She held the notes, and she alone was authorized to collect them. She was not seeking, as asserted by appellee, to convert the property of the estate into money, but Svas seeking to' perform the duties required of her by law in the collection of the debts justly due the-estate.

The order granting the injunction is set aside, and the cause remanded.


author: LANE, J.

text:
    LUHNING et ux. v. SCOTT et al.
    (No. 7511.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 11, 1918.)
    1. Courts <&wkey;169(l) — Jurisdiction of County Court to Issue Writ.
    The county court has no jurisdiction to issue writ of injunction except where the amount in controversy exceeds $200, and does not exceed $1,000, in value, exclusive of interest.
    2. Courts &wkey;?247(ll) — Jurisdiction of Court of Civil Appeals — Lack of Jurisdiction in County Court.
    "Where it appears from the face of the petition for injunction in the county court that such ■court had no jurisdiction over the subject-matter of the suit, the Court of Civil Appeals has no jurisdiction over the appeal from the judgment rendered by the county court.
    Appeal from Galveston Oountty Court ; Geo. E. Mann, Judge.
    Suit by F. B. Luhning and wife against J. S. Scott and another. From decree for defendants, plaintiffs appeal.
    Appeal dismissed for want of jurisdiction.
    Aubrey Fuller, of Galveston, for appellants.
   LANE, J.

This appeal is from an order of Hon. George E. Mann, judge of the county court of Galveston county, refusing to grant an injunction restraining appellees, J. S. Scott and G. E. Symms, justice of the peace and constable, respectively, from collecting certain judgments rendered in justice court of precinct No. 6 for Galveston county in favor of four parties not parties -to this cause, and to require defendants to release a certain garnishment served upon the Dickinson State Bank.

The petition for injunction was filed by appellants, and alleged that J. S. Scott and G. B. Symms, appellees, were justice of the peace and constable, respectively, of precinct No. 6 of Galveston county; that one Hymond .Xiork filed suit in said justice court upon an account for wages for -the sum of $15.80; that I. Flannell and O. O. Lewis filed suit in said court upon an account for wages for the sum of $15.75; that Sid Phillips and H. Howard, Jr., filed suit in said court upon an account for wages for the sum of $17.50, and that H. Howard filed suit in said court upon an account for wages for the sum of $14.00; that all of said suits were against appellant F. B. Luhning, and were all pending in said court at the same time; that the services for which the several plaintiffs sued were rendered for Buck Harvey & Co., and -that appellant F. B. Luhning had agreed to advance to Buck Harvey & Oo. sufficient funds to pay said laborers for operating certain hay machinery sold by Luhning to Buck Harvey & Co. for two weeks; that Luhning had never contracted to pay said claims; that all of said demands grew out of the same contract or transaction; that when the first of said suits was called for trial plaintiff Luhning moved the court to consolidate all of said suits; that said J. S. Scott, justice of the peace, refused to consolidate said suits, and without hearing evidence in support of the several causes of action rendered several judgments for the amounts sued for, each of which was for a sum less than $20, and therefore could not be -appealed from.

Upon hearing of the petition for injunction the judge of the county court rendered the following judgment:

“Be it remembered that on the 9th day of April, 1917, the above numbered and entitled cause came on to be heard, and the plaintiffs appearing in person and by attorneys, and the defendants or either of them having failed to appear, either in person or hy attorney, and having failed to file an answer to the petition of plaintiffs, and plaintiffs having announced ready for trial, and the court after hearing the evidence and argument of counsel is of the opinion that the law and the facts are in favor of the defendants, and the court having filed findings of fact and conclusions of law, it is therefore ordered, adjudged, and decreed that the application for injunction in all things be refused. To which order, judgment, and decree plaintiffs in open court duly excepted, and gave notice of appeal to the First Supreme Judicial District of Texas, at Galveston, Tex. -
“It is further ordered that execution issue for the use of the officers of court against each party hereto for the costs by it or them respectively incurred. G. E. Mann, Judge.”

The conclusions of law filed by the trial court were as follows:

“The justice of the peace was not required by law to consolidate said cases for the reason that there were several different plaintiffs claiming for different amounts against defendants.
“That the county court is without authority of law to enjoin the collection of a judgment rendered by a justice of the peace where the judgment is not void upon its face.”

The appellants assign the action of the county judge in refusing to grant the injunction prayed for as error.

The county court has no jurisdiction to issue a writ of injunction except where the amount in controversy exceeds $200, and does not exceed $1,000, in value, exclusive of interest. Therefore, as it appears from the face of the petition for injunction in this cause that the trial court had no jurisdiction over the subject-matter of the suit, this court has no jurisdiction over the appeal from the judgment there rendered.

In the case of De Witt County v. Wisch-kemper, 95 Tex. 435, 67 S. W. 882, the court said:

“By section 1§, art. 5, of the Constitution of this state, the jurisdiction of county courts Is thus defined: ‘They shall have exclusive jurisdiction in all civil cases when the matter in controversy shall exceed in value $200.00 and not exceed $500.00, exclusive of interest, and concurrent jurisdiction with the district court when the matter in controversy shall exceed $500.00 and not exceed $1,000.00, exclusive of interest; ⅜ ⅜ ⅜ all(j county court or judge thereof shall have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court.’ In the cases of Dean v. State, 88 Tex. 296 [30 S W. 1047, 31 S. W. 185], and Johnson v. Hans-com, 90 Tex. 321 [37 S. W. 601, 38 S. W. 761], this court held that the power of the county court to issue writs of mandamus under the section of the Constitution above quoted was limited to cases exceeding $200 and not exceeding $1,000. The same rule is applicable to writs of injunction, which can only be issued by the county courts where the matter in controversy exceeds $200, and does not exceed $1,000, in value. In this case no value of the subject of the suit is alleged; therefore the application for the writ of injunction does not bring the case within the terms of the Constitution, and the county court had no jurisdiction to issue the writ of injunction upon the facts stated. The plea in re-convention cannot aid the petition on the question of jurisdiction to grant the writ.”

The appeal is dismissed for want of jurisdiction to hear and determine the same.
      <§=aFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    HOUSTON & T. C. R. CO. v. AYCOCK.
    (No. 1299.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1918.)
    1. Justices pe the Peace <&wkey;164(3) — Appeal —1Transcript—Making and Piling.
    Although, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2396, upon granting appeal to county court, the justice shall immediately make and transmit a transcript, and under article 2395 appeal is perfected upon filing bond, appellant must cause transcript to be filed as required by article 2397.
    2. Justices oe the Peace >&wkey;16G(2) — Appeal —Dismissal—Negligence oe Appellants.
    On failure of justice of the peace to make and transmit a transcript upon appeal to the county court, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2396, and within time required by article 2397, appellant must compel the same by mandamus, failure to do which for several subsequent terms is negligence justifying dismissal.
    3. Justices oe the Peace <&wkey;i6G(3) — Appeal — Dismissal oe Appeal — Motion to Dismiss-Time eor Filing.
    On appeal from a. justice of the peace to the county court the appellee cannot file a motion to dismiss until the transcript has been filed.
    4. Justices oe the Peace <&wkey;166(2) — Appeal —Dismissal—Delayed Transcript.
    Failure to file appeal transcript from justice with county court within time prescribed in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2397, will not always be ground for dismissal, since article 2400 provides mode of procedure in district and county courts shall control in justice’s court, unless procedure is otherwise prescribed, where for good cause more than 90 days may be allowed.
    Appeal from Collin County Court; R. L. Moulden, Judge.
    Action for conversion by A. J. Aycock against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appealed to the county court. From a judgment dismissing the appeal, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and G. R. Smith, of McKinney, for appellant. Wallace Hughston, of McKinney, for appellee.
   HALL, J.

The following statement of the nature and result of the suit is adopted from appellant’s brief:

“This suit was filed in the justice court, precinct No. 1, Collin county, on the 8th day of September, 1914, being- a suit for $165, for the alleged conversion of a horse and buggy shipped by appellee from McKinney, Tex., to Denison, Tex. The case was tried before T. Hughston Beverly, justice of the peace, on January 4, 1915, which resulted in judgment for appellee for the full amount sued for, to wit, $165, from which judgment appellant gave notice of appeal to the county court of Collin county, Tex., on the 13th day of January, 1915, and filed the appeal bond, which was approved and filed on that date, and the justice of the peace was requested by attorney for appellant to make out and forward the transcript to the county court of Collin county, Tex. The justice of the peace neglected to make out and file the transcript and the original papers in the county court of Collin county, Tex., to the next succeeding term of the county court, and neglected for several subsequent terms to file the papers in the coufity court, though requested to do so at each subsequent term by the attorney for appellant, and promised to do so at once at each subsequent term of the court, stating that he had merely overlooked the matter. Mr. Beverly, justice of the peace who tried the case, resigned his office the latter part of July, 1916, and Hon. T. C. Andrews was appointed justice of the peace in his place. Said T. C. Andrews, justice of the peace, immediately upon request of appellant’s attorney, made out a transcript of the case and filed the transcript with the original papers in the case in the,county court on the 2d day of August, 1916, but made a clerical error in his certificate of the transcript, in which he used the name of Hughston Beverly, the former justice of the peace, in the body of the certificate. On the 7th day of November, 1916, appellee filed a motion to dismiss the appeal in the case because: First, no correct transcript of the record in the justice court was filed in the case; and, second, because the transcript filed herein was too late, in this: That the judgment was rendered in the justice court on January 4, 1915, and the transcript was not filed in the county court until the 2d day of August, 1916. After the filing of said motion and before a judgment was entered thereon, to wit, the 19th day of January, 1917, appellant had prepared a correct transcript which was filed in the county court on the 19th day of January, 1917. On April 7, 1917, after the corrected transcript had been filed in the county court, the court passed upon the motion heretofore filed to dismiss said appeal, and sustained the motion to dismiss the appeal, to which action of the court appellant excepted, and gave notice of appeal to the Court of Civil Appeals.”

Under the first assignment of error it is insisted that the court erred in dismissing the appeal, because the motion to dismiss was not filed in time. The same contention is made under the second assignment.

By the third assignment appellant urges the proposition that plaintiff, Aycock, waived the filing of the transcript and papers at the first or second term of the county court after the trial in the justice court, and urges the further proposition under the third assignment that the findings of fact by the court show that the appellant used due diligence to have the transcript and papers sent up. Vernon’s Sayles’ Civil Statutes, art. 2396, provides that when an appeal has been granted from the justice court to the county court it shall be the duty of the justice who made the order immediately to make out a transcript of the entries on his docket and after certifying thereto officially to transmit the same to the clerk of the county court of his county. It is provided by article 2395, Id., that the appeal is perfected when the party aggrieved by the judgment in the justice court files his appeal bond, or affidavit in lieu thereof. The Supreme Court, in Wells v. Driskell, 105 Tex. 77, 80, 145 S. W. 333, 335, approves the holding of the Court of Civil Appeals in Patty v. Miller, 5 Tex. Civ. App. 308, 24 S. W. 330, that the purpose of the transcript from the justice court is to show, not to give, jurisdiction, to the county court. In that case the Supreme Court further said:

“We do not wish to be understood as holding that it is only necessary in case of an appeal from justice courts to file an appeal bond and send up that with the original papers without a proper transcript of the proceedings.”'

Judge Reese, in Cariker v. Dill, 140 S. W. 843, says it is clearly the duty of the person prosecuting such an appeal to see that the transcript is sent up in accordance with statutory requirements. While there is a lack of harmony in the decisions upon this question, the better rule seems to be that announced by Judge Reese in the Cariker Case. Plaintiff, Aycock, had obtained a judgment against the appellant herein with which he was satisfied. Appellant being the party aggrieved filed its appeal bond, which under the statute vested jurisdiction in the county court. It then became the duty of appellant to have the justice of the peace transmit the transcript of his docket and the original papers, if practicable, to the clerk of the county court, on or before the first day of the next term of such court, and, if not practicable, then to transmit them on or before the first day of the second term thereof, as required by article 2397. In the event the justice should fail to comply with these statutory requirements on or before the first day of the second term of the county court, appellant had the right, and it became its duty, to mandamus the justice of the peace and enforce the performance of the statutory requirement. Appellant, however, waited for more than 18 months, and never resorted to mandamus proceedings. We think this is such a degree of negligence as warranted the court in dismissing the appeal. Until the case was filed in the county court and docketed no motion to dismiss could have been made by Aycock, and although it is intimated in some of the earlier cases by the Civil Court of Appeals that a failure to file the motion forthwith would constitute a waiver of the right to dismiss, we cannot assent to such a rule. We do not wish to be understood as holding that a failure to file the transcript and papers with the clerk of the county court on or before the first day of the second term after appeal is perfected will in all cases be ground for dismissing the appeal. It is provided by article 2400, Vernon’s Sayles’ Civil Statutes, that whenever the mode of proceeding in any particular case or matter is not prescribed by the provisions of the title relating to justice courts, the same shall be governed by the provisions of the title relating to the mode of proceeding in the district and county courts in civil cases in so far as the same are applicable. The rule is that in appeals from the district and county courts transcripts must be filed in the Court of Appeals within 90 days, yet the appellate courts of the state have uniformly permitted transcripts to be filed after the expiration of the 90-day period when good excuse is shown for such delay. The only excuse offered in the instant case by appellant for failing to mandamus the justice of. the peace is that he promised from time to time to make the transcript and transmit it to the county clerk. This is not sufficient after the lapse of reasonable time.

The judgment is therefore affirmed.
      cg^sPor other oases see saíne topio and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HUDSON v. SALLEY et al.
    (No. 7493.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 5, 1918.)
    1. Landlord and Tenant <&wkey;139(5) — Agreement for Water — Sufficiency of Evidence.
    Evidence held sufficient to support finding that lessor agreed to furnish the lessee necessary water for irrigating' rice crop.
    2. Appeal and Error <&wkey;1001(l) — Review— Findings of Fact.
    There being sufficient evidence to support the jury’s findings, they cannot be disturbed on appeal.
    3. Trial <&wkey;260(l) — - Submission of Issues— Repetition.
    There was no error in refusing to submit requested issues to the jury, the substance of them being submitted by the main charge, and being answered by the jury.
    4. Appeal and Error <&wkey;742(6) — Assignments of Error — Proposition and Statement.
    An assignment of error, in terms merely that judgment allowed plaintiffs interest to which they were not entitled, not being sufficient in itself to explain why they were not entitled to interest, and not being followed by proposition or statement, as required by Courts of Civil Appeals rule 31 (142 S. W. xiii), will not be considered.
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Action, by S. H. Salley and another against C. M. Hudson and another, with cross-action by Hudson. From an adverse judgment, Hudson appeals.
    Affirmed.
    Gaines & Gorbett, of Bay City, for appellant. Thos. H. Lewis, W. O. Foulks, and W. 0. Carpenter, all of Bay City, for appellees.
   LANE, J.

Appellees, S. H. Salley and A. M. Reed, instituted suit in the district court oí Matagorda county against appellant, O. M. Hudson, and the Markham Warehouse & Elevator Company. They alleged in their petition that they entered into a verbal contract with defendant C. M. Hudson hy the terms of which Hudson leased to them, for the year 1916, 270 acres of land situated on the west side and 185 acres of land situated on the east side of Trespalacios creek in Matagorda county; that by such contract Hudson agreed to furnish to them, Salley and Reed, all necessary seed rice to plant said land and to furnish, at his expense, all necessary and needful water to properly irrigate said rice, when the same was ready for water, and to continue to furnish such needful and necessary water in sufficient amount to grow and cause to grow and mature an average crop of rice under normal conditions upon said land; that by the terms of said contract plaintiffs, Salley.and Reed, agreed to plant said two tracts of land to rice and to give it necessary and proper attention, to harvest and sack the same, and deliver to defendant Hudson one-half of said crops; that it was further agreed that Hudson was to pay them, Salley and Reed, 10 cents for each sack of rice threshed by them which belonged to Hudson, 12 cents per sack for hauling same from the farm to the warehouse, and 18 cents for each sack furnished by them to said Hudson’s one-half of said l’ice crop; that the said Hudson employed plaintiffs, Salley and Reed, to construct three-fourths of a mile of levee on said land on the west side of said creek, and promised to pay them therefor the sum of $12; to construct a lateral on the east side tract for which he promised to pay them the sum of $6; that plaintiffs fully performed their part of said contract, and did furnish and provide at their own cost and expense 1,301 sacks for sacking said number of sacks of rice belonging to said Hudson; that they did actually thresh for him 1,301 sacks of rice, and that they did actually haul from the field to the warehouse 280 sacks of his rice, whereby he became bound, promised, and obligated to pay plaintiffs the respective sums of $169.13 for sacks, $130.10 for threshing and $33.69 for hauling as aforesaid, $12 for constructing levee, and $6 for constructing lateral — a total sum of $350.83.

Plaintiffs further alleged that Hudson failed to furnish all necessary and needful water to properly irrigate said crop of rice, when the same was ready for and needing water, and continue to so furnish such water as he had contracted to do, and that by reason of such failure said land did not grow and mature an average crop of rice, to their damage in the further net sum of $4,-830.

They further alleged that they raised, harvested, sacked, and delivered to the Markham Warehouse & Elevator Company for the joint account of themselves and Hudson, in the-proportion of one-half for themselves and the other one-half for Hudson, 2,632 sacks of rice, their one-half of the same being of the value of $5,264. Their prayer was for judgment against C. M. Hudson for the several amounts hereinbefore set out due them as damages caused by the failure of Pludson to furnish them with sufficient water to mature their crop, and for the several amounts due them by Pludson incident to and connected with the growing, harvesting, sacking, and hauling said rice crop, and for judgment jointly against both Hudson and the Markham Warehouse & Elevator Company for $5,264, the value of their one-half of said rice stored in said warehouse.

While the above-mentioned suit was pending in the trial court, appellant, O. M. Hudson, instituted suit in the same court against appellees, Salley and Reed, to recover the principal sum due upon certain promissory notes executed and delivered by Salley and Reed to him aggregating $2,770, to recover upon an open account due him by Salley and Reed, for interest due upon both sums, and for attorney’s fees. It was shown by the petition that the money and things in payment for which said notes were given and accounts were due were furnished by Hudson to Salley and Reed to enable them to make a crop of rice on his lands herein-before described for the year 1915, which were rented by him to Salley and Reed for that year. The trial court consolidated said two suits, and they were tried as one suit.

After said suits were consolidated Salley and Reed filed an answer to Hudson’s cross-action, and admitted that they were justly indebted to him for the sums alleged by him to be due, except in so far as they might be offset by plaintiffs’ demands against Hudson.

C. M. Hudson, answering the allegations of the petition of Salley and Reed, denied that he had contracted and agreed to furnish water to irrigate the rice crop on the 185-acre tract; denied that 'Salley and Reed had suffered any loss whatever by reason of failure on his part to perform the terms of the rental contract entered into between him and Salley and Reed.

The rice raised, harvested, and stored in the warehouse-was sold, and the proceeds thereof were deposited in court to be disposed of by the court by the judgment in said cause.

The cause was tried before a jury upon special issues submitted, to which they answered substantially as follows:

(1) “It Was the understanding between the parties, Hudson, Salley, and Reed, that O. M. Hudson was to furnish water from the said A. J. Harty or Northern Canal and be responsible to Salley and Reed in the event the said A. J. Harty or Northern Canal should fail to give the rice sufficient water to properly irrigate the same.”
(2) The crop of rice of Salley and Reed grown on the 185-acre tract on the east side. of the creek was damaged by reason of the failure of A. J. Harty or the Northern Canal to furnish sufficient water to properly irrigate the same after Salley and Reed were ready for and demanded water for said rice crop.
(3) Had said rice crop on said 185-acre tract been properly watered and at the time water was demanded by Salley and Reed, it would have produced six sacks per acre.
(4) To cut, shock, thresh, furnish sacks, to sack, sew, and place the rice grown on the 185 acres in the warehouse would cost 80 cents per sack.
(5) Salley and Reed failed to make an average crop of rice on the TO acres of the 270 acres on the west side of the creek for the year 1915.
(6) An average crop on the 70 acres during the year 1915 would have been five sacks per acre:
(7) There were 14 acres of the 270-acre tract which made no crop because the crop on the same was destroyed by grass worms after Sal-ley and Reed had said crop ready to receive water and before water was furnished to irrigate the same by Hudson or his agents.
(8) That had Hudson furnished Salley and Reed sufficient water at the proper time, after demand therefor, they, Salley and Reed, would have made 280 sacks of rice on the 70 acres not properly watered.
(9) To cut, shock, thresh, furnish sacks, sack, sew, and place the rice grown on said 270-acre tract in the warehouse would cost 80 cents per sack.
(10) O. M. Hudson was to bear one-half of the expense incurred for threshing and sacking the rice grown by Salley and Reed upon the two tracts of land.
To special issues Nos. 4, 5, and 6, submitted to them at the request of appellant, they answered in substance as follows:
(4) Six sacks of rice was an average yield on land of the kind and condition of the 185-acre tract during the year 1915.
(5) Salley and Reed did not make an average crop of rice on the 270 acres of land on the west side of the creek.
(6) If the worms had not eaten up the rice growing on about 70 acres of the 270-acre tract, it would not have made an average crop of rice.

Upon the evidence and findings of the jury to the issues submitted to them, the court rendered the following judgment:

“Taking into consideration- the amounts submitted by plaintiffs to be due defendant O. M. Hudson, on his cause of action, consisting of notes and open accounts, the court does find that the plaintiffs, S. H. Salley and A. M. Reed, are entitled to recover of and from the defendant O. M. Hudson $1,811.84, being the amount for Salley and Reed after said plaintiffs appeared in court and first offered to and did enter a remittitur of $234.76, being the difference in the amount found by the jury and the amount alleged and proved in the petition for cutting, shocking, threshing, furnishing sacks, sacking, sewing the same, and placing the same in the warehouse chargeable against said Hudson, as damages for breach of contract to furnish plaintiff water as alleged in their petition, and the court further finds that the said O. M. Hudson is entitled to recover of and from the said S. H. Salley and A. 3VÍ. Reed, the sum of $4,237.61, being the amount of principal, interest, and attorney’s fees on the notes and the principal and interest on the accounts described in the said Hudson’s pleading, and the court, striking a balance between the two findings, finds the balance in said Hudson’s favor to be $2,425.77, and does here now render judgment against the said S. H. Salley and A. M. Reed for said sum together with a foreclosure of the landlord’s lien against the proceeds of the sale of said rice deposited in and now remaining in the registry of this court.
“It is ordered, adjudged, and decreed that the clerk of this court do pay over to the said C. M. Hudson said sum less the costs hereafter adjudged against him, and that the balance of said fund at this date be paid to .said Salley 'and Reed, less the cost adjudged hereinafter against them, with interest at the rate of 6 per cent, per annum until paid, for which execution may issue in favor of Salley and Reed against C. M. Hudson.
“It is further adjudged, and decreed that the costs be paid by the parties as follows, to wit: That Salley and Reed pay all costs in both cases .up to the adjournment of this court at its June term, A. D. 1916, and that the parties pay the cost accruing since that time in equal proportions.”

From this judgment C. M. Hudson has appealed.

By the first assignment it is in substance insisted that the-trial court erred in not instructing a verdict for appellant:

(1) Because the undisputed evidence shows that the contract for water for the irrigation of the crop of Salley and Reed on the 185-acre tract on the east side of the creek was between Salley and Reed and A. J. Harty, or A. J. Harty for the Northern Canal Company, and not between Salley and Reed and appellant, and therefore appellant was not liable to Salley and Reed for any damages they may have suffered by reason of the fáil-ure of A. J. Harty or the Northern Canal Company to furnish sufficient water to irrigate their said rice crop on the 185-acre tract.
(2) Because there was no evidence showing that appellant had in any manner breached his contract with Salley and Reed, that the undisputed evidence shows that the crop of the appellees, Salley and Reed, on the 270-aere tract on the west side of the creek was well watered, and that that portion of same not destroyed by grass worms produced more than an average yield, and that the destruction of a portion of said crop by grass worms was not due to any act or omission of duty on the part of appellant.

We overrule both contentions. There is ample evidence tending to show that appellant contracted with Salley and Reed to furnish them the land, the two tracts, the 185 acres on the east side of the creek and 270 acres on the west side of said creek, upon which they were to plant a crop of rice in 1915; that appellant was also to furnish all the seed rice necessary to plant such crop and to furnish all necessary and needful water to properly irrigate said rice crop on both tracts when the same was ready for water, and to continue to furnish such necessary water in sufficient quantity to grow and mature the rice crop of appellees.

There appears in the statement of facts a contract jointly executed by the Northern Oa-nal Company and appellant, O. M. Hudson, of date May 4, 1915, by the terms of which the canal company agreed to furnish O. M. Hudson all necessary water to irrigate and mature the rice crop to be planted on the tract known as the 185 tract, on the east side of the creek, for a consideration of one-fifth of all the rice grown on said land. The mention of the names of the contracting parties and the general phraseology of this contract refutes the contention of appellant that Sal-ley and Reed had contracted with Harty or the canal company to furnish them any water to irrigate their crop to be planted on said 185-acre tract, and tends to sustain the contention of Salley and Reed.

S. I-I. Salley testified that appellant told him that, if he could get Mr. Harty (for the canal company) to water the 185-acre tract, appellant would lease said land to Salley and Reed for the year 1915, that he went with appellant to see Harty, and, after Harty had agreed with appellant to furnish water for the land, he and his partner, Reed, agreed to farm the land for half of the crop; that appellant agreed to furnish the land, seed, and water for the consideration of the other half of the crop.

The evidence shows that the negotiations mentioned were some time in November, 1914, and that the contract between the canal company and appellant, Hudson, herein-before mentioned, was thereafter, to wit, on the 4th day of May, 1915, executed as a completion of the agreement of Harty to water the 185 acres for Hudson theretofore verbally made, as testified to by S. H. Salley.

We also think there was evidence sufficient to support the conclusion that appellees were not furnished water as soon as their crop was ready to receive the same, and that by reason of the failure of appellant to furnish them water a portion of their crop on the 270-acre tract was eaten up by grass worms, which could have been destroyed by water if it had been timely furnished, and that, had said worms been destroyed, and the water supply continued in sufficient quantity, appel-lees would have made an average crop of rice on said 270 acres, but that such water was not furnished, and .they failed to make ,a crop on about 70 acres of said tract.

The evidence also shows that, had sufficient water been furnished, appellees would have made a crop of 6 sacks of rice per acre on the land known as the 185-acre tract, while as a fact they made 381 sacks only on the entire tract—less than 2 sacks per acre.

Where there is sufficient evidence to support the findings of the jury and the judgment rendered, the appellate court is not at liberty to reverse such judgment.

The third, fourth, and fifth assignments complain of the refusal of the trial court to submit to the jury three special issues, Nos. 1, 2, and 3, requested by appellant, as follows:

(1) “What do you find was the real cause of the failure of the rice crop of the land on the west side of Trespalacios creek?”
(2) “Did C. M. Hudson understand that the Northern Canal Company or A. J. Harty was to furnish water for the irrigation of the 185 acres farmed by S. H. Salley and A. M. Reed, and that they were to take said canal company’s contract for water?”
(3) “Did S. H. Salley and A. M. Reed understand that C. M. Hudson was to furnish water for the 185 acres east of Trespalacios creek?”

The substance of these requested issues was submitted to the jury by the main charge of the court, and were answered by the jury as shown by the answers 1 and 8, hereinbe-fore set out; therefore the court did not err in refusing to submit the requested issues to the jury.

By assignments 6 to 27, inclusive, and assignments 29 and 30, it is insisted that the trial court erred in receiving the answers of the jury to the questions submitted to them, and in rendering judgment thereon, because: (1) 'Such answers were not supported by any evidence; and (2) because the answers to some of the questions were in direct conflict with answers to other questions, and as a whole are conflicting, unintelligible, and insufficient as a basis for the judgment rendered.

We overrule all of these assignments. There was sufficient evidence to support the material answers of the jury. 'Some of the answers to some of the questions submitted were in some immaterial respects conflicting, but, when taken as a whole and in connection with the proven facts, they were sufficient as the basis for the judgment rendered by the court.

Issue No. 12 submitted by the court to the jury was as follows:

“How many sacks of rice would the said Sal-ley and Reed have made on said number of acres had said C. M. Hudson or his agent furnished sufficient water after said demand to properly irrigate the same?”

After the charge of the court' had been read to the jury and they had retired to consider of their verdict, the foreman of the jury made the following inquiry of the court in writing:

“Sir, was the question No. 12 referring to the whole of the west side 270 acres, or the amount we find to be damaged?
“W. M. Boney, Foreman.”

The court answered this question in writing as follows:

“In answer to your question: It refers to that part of the 270 acres that was damaged, if any was damaged. Samuel J. Styles, Judge.”

Appellant by his twenty-eighth assignment insists that these proceedings constituted prejudicial error, but does not assign how the some was prejudicial, or give any reason why such proceedings constituted error. We are unable to conceive of any reason why such proceedings were erroneous, or how they could have injured the rights of appellant. The assignment is overruled.

The thirty-first and last assignment is as follows:

“The court erred in entering the amount of the judgment, for the same is excessive in that it allows Salley and Reed interest to which they are not entitled, and fails to allow Hudson interest to which he is entitled.”

This .assignment is not followed "by either a proposition or statement. By rule SI for the Courts of Civil Appeals (142 S. W. xiii) it is provided that each proposition under an assignment shall be followed by a brief statement, in substance, of such proceedings, or parts thereof, contained in the record, as will be necessary and sufficient to explain and support the proposition. This assignment within itself is not sufficient to explain why Salley and Reed were not entitled to interest, or why Hudson was entitled to interest, nor is there any statement thereunder furnishing such explanation.

For the reasons pointed out, we decline to consider the assignment.

What has been said disposes of all of appellant’s assignments.

We find no error in the trial of the cause; therefore the judgment of the trial court is in all things affirmed.
      <§x=oFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes