text:
    WARE et al. v. BARFIELD et al.
    No. 3904.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 9, 1932.
    Rehearing Denied Dec. 14, 1932.
    Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellants.
    Stone & Guleke and Morgan, Culton, Morgan & Britain, all of Amarillo, for appellees.
   MARTIN, J.

On December 7,1931, the will of Mrs. M. D. Oliver-Eakle, a feme sole, was admitted to probate by the county court of Potter County. In this will R. C. Ware, Wm. C. Perry, Homer A. Callaway, and B. I. Barfield were named as independent executors. Bequests were made to various persons, amounting in value to more than $100,000. The remainder of her estate was placed in trust with the executors above mentioned for her daughter and only child, the appellee herein. Of the bequests named in the will, the following property was devised to the executors: lots of the aggregate value of $50,000 to B. I. Bar-field ; $13,700' in cash to Homer A. Callaway to be used “for purposes known and to be known to him only, together with $1,000.00 additional for expenses.” The will provided further for his appointment as attorney for the executors above mentioned, for which he should be paid suitable compensation. To Wm. C. Perry, another of the executors, she directed that he be retained as manager of the Oliver-Eakle building at a salary not less than that prevailing at the time of her death, during the continuance of the trust. The trust estate created was to last for twenty-one years, at which time it was to go to ap-pellee herein, or to the heirs of her body. The will further provided that the independent executors named above should receive suitable compensation for the services rendered by them, and vested in them full and complete control and management of the estate, without bond, and free from any interference of the probate court. The will further provided: “It is my desire, wish and will that all doubtful questions of construction in the interpretation of this will shall he conclusively determined by my executors and trustees according' to their best judgment without resort to court.”

Thereafter appellee filed a petition for the annulment of said will, charging a Hack of testamentary capacity on the part of Mrs. Oliver-Eakle, the testator, at the time of and prior to the execution of said will and going into detail with respect to same, which we deem unnecessary to here set out. This petition charged that the estate owed'sums at the time of the making of the will and at the time of her death aggregating approximately $400,000, including $24,000 unpaid taxes, and placing the value of said estate at $500,000. It was further alleged that the payment of the indebtedness and the bequests would exhaust the estate and leave appellee without any property. It further pointed out the personal interest of the executors as devisees under the will, substantially as stated above. Further allegations were made in effect showing the necessity for the careful and prudent management of said estate to enable it to pay the indebtedness existing against same.

The petition asked for the appointment of appellee as temporary administratrix of the estate, and contained an appropriate prayer for service of citation upon all adverse parties at interest and for the annulment of the will.

The application for appointment as temporary administratrix came on to be heard by the county court of Potter county on the 24th day of February, 1932, and upon an ex parte hearing appellee herein was so appointed pending the contest of the aforesaid will, by an order that day entered, and her powers being therein specifically defined. The effect of such order was to oust and displace the executors from the management of said estate, who it appears at that time had theretofore duly qualified and were in possession and control of same.

Thereafter appellee duly qualified as temporary administratrix and took possession of the estate.

On February 27, 1932, appellants R. O. Ware, Homer A. 'Callaway, and Wm. C. Perry filed an application with the county court of Potter county for authority to employ attorneys to defend said will and the probate thereof from the attack made upon it by ap-pellee and to contract and agree with said attorneys for a reasonable fee and for a further order authorizing the expenditure of a sum not to exceed $500 for expenses to be incurred in properly preparing for the defense of said will and its probate. This application was granted and the order prayed for entered, from which appellee appealed to'the district court of Potter county, Tex.

Thereafter an order was entered in the county court of Potter county, upon the petition of the same parties, declaring the former appointment of appellee herein as temporary administratrix null and void, from which ap-pellee also appealed to the district court of Potter county, Tex.

These appeals were consolidated and tried as one cause in the district court of Potter county, Tex.

In these matters B. I. Barfield, who is the husband of appellee, did not join.

Upon the trial of these consolidated cases, the district court of Potter county, on the 16th day of April, 1932, entered an order denying in all things the application of appellants for attorneys’ fees and expenses and holding that the original appointment of appellee by the said county court as temporary administra-trix was in all things valid, and ordering her continuance ás such pending the contest herein, and further vacating and declaring null and void the order entered by said court vacating her appointment as such temporary administratrix.

From these orders the three independent executors named above have appealed to this court, assigning as error the action of the district court in each of the two matters pointed out above.

It will be noted that appellants took no appeal directly from the order appointing ap-pellee temporary administratrix, but filed a motion to vacate the same, claiming that her appointment was void, and that the court was without jurisdiction or power to make such appointment while the said executors were acting, after having qualified and taken possession and control of the estate. The question, therefore, presented is not one of the improper use of a power lodged by law with the court, but a lack of any power to act in the premises.

Upon this question a hurried perspective of the law relating to the appointment and duties of the legal representatives of deceased persons in general will, we think, assist us here.

Appellants were independent executors, creatures of the will, and not of the probate court. They were, by the terms of the will, Vested with unbridled authority over the estate. They might do any act respecting it which the court could authorize to be done if the entire estate were under his control or whatever testator could have done in her lifetime, except as restrained by the will itself. Schramm v. Hoch (Tex. Civ. App.) 241 S. W. 1087; Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367; Ewing v. Schultz (Tex. Civ. App.) 220 S. W. 625, 630. Independent executors receive property in trust for the benefit of creditors and devisees. Stephenson v. McFaddin, 42 Tex. 322; Farmers’ & Merchants’ National Bank v. Bell, 31 Tex. Civ. App. 124, 71 S. W. 570, 572. The probate court had nothing to do with their appointment, his only judicial act being to enter the order probating the will, after which it was the ministerial duty of the clerk of his court to issue letters testamentary to the executors named therein. Journeay v. Shook, 105 Tex. 551, 152 S. W. 809. If such executors were sane and twenty-one years of age, it was the mandatory duty of the county judge to .order the probate of the will without inquiring into the other qualifications of the persons named therein as independent executors. Shaffer et al. v. Luby’s Estate et al. (Tex. Civ. App.) 297 S. W. 582; Journeay v. Shook, 105 Tex. 551, 152 S. W. 809. The law in such cases vested the absolute power in the testator to select his own representative; subject only to the qualifications named above. No judicial act of the court is directly involved in their appointment. Not so with the ordinary administrator, whose appointment and duties are under the direct control and supervision of the probate court, the nature of which is too well known to here require a detailed discussion. In this difference is the distinction between some of the cases relied on by appellants and the case at bar, and this distinction is one to be kept in mind in the solution of the question presented. The jurisdiction of the county court of Potter county, in so far as it affected the appointment of appellants, was first invoked in the petition of appellee for appointment as temporary administratrix pending the contest filed by her as to the validity of the will. It is well here to note that no prior judgment of the court respecting such subject-matter had theretofore been entered. If it had the jurisdiction to entertain appellee’s motion and enter judgment thereon, the contention of appellants is without merit. An improper exercise of the power to appoint is not involved in this appeal.

If the county court has the jurisdiction to determine that no valid will has been made, and hence no estate has passed to the executors in trust, but is lacking in the power to preserve the estate pending the determination of this question, then the jurisdiction granted to it by the Constitution in matters of this kind would in some cases become only an empty and sterile one. It may be said in a general way that courts possess inherent powers to enter such orders as will render effective those directly conferred upon them by law. A grant of jurisdiction implies the necessary and usually incidental powers essential to effectuate it. 15 C. J. 810. A regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. 15 C. J. 811. As illustrative of these it has been said that the Supreme Court has inherently the power to preserve the subject-matter of the litigation pending appeal, Finlen v. Heinze, 27 Mont. 107, 69 P. 829, 70 P. 517; Keneweg Co. v. Schilansky, 47 W. Va. 287, 34 S. E. 773; and that courts possessed with the jurisdiction to grant letters testamentary or of administration have the inherent power to grant a limited administration whenever it is necessary for the purposes of justice. McArthur v. Scott, 113 U. S. 399, 5 S. Ct. 652, 28 L. Ed. 1015. Article 5, § 16, of the Constitution, invests the county court with “the general jurisdiction of a probate court.” Article 1956, R. S., provides: “Subject to the limitations stated in this chapter, the county court is authorized to hear and determine any cause which is cognizable by courts, either of law or equity, and to grant any relief which could be granted by said courts, or either of them.”

The above is not intended as a direct holding that the county court has the inherent power to appoint a temporary administrator nor by implication that said power is lacking under the statute, but is rather intended to illustrate what must have been the legislative intent in passing the articles of the statute which we now; quote. .

“Pending a contest relative to the probate of a will, or the granting of letters of administration, the county judge may appoint a temporary administrator, with such limited powers as the circumstances of the case may require; and such appointment may continue in force until the termination of the contest and the appointment of an executor or administrator with full powers.” Article 3378, R. O. S. 1925.

“Any person interested in any will which shall have been probated under the laws of this State may institute suit in the proper court to contest the validity thereof, within four years after such Will shall have been admitted to probate, and not afterward.” Article 5534, R. C. S. 1925.

We think it was intended by the enactment of article 3378, supra, to place beyond controversy the right of a county judge to protect the assets of an estate from dissipation by those in charge thereof who act without responsibility to such judge, pending a contest of the character here noted. If circumstances arise when the estate is without a regular representative responsible to the county court, and it becomes necessary, in the judgment of said court, to preserve the corpus of such estate pending the disposition of a contest involving it, we need to look no further than this article for his authority. Express right is given by article 5534 to “any person interested in any will * * ⅜ to contest the validity thereof, within four years after such will shall have been admitted to probate.” The right to appoint a temporary administrator exists under these articles after the will has been admitted to probate, as well as pending the application to probate. Any other construction would leave a probate court with a jurisdiction to declare a will invalid but without the right to protect the estate for the benefit of those legally entitled to it. As pointed out above, such right is usually implied when necessary to make effective a specific grant of power. Nor is this question affected, as contended by appellants, by the fact that the duly appointed executors had already qualified 'and were acting at the time of the appointment of appellee as temporary administratrix. Their appointment and power to act did not spring from any judgment of the court. Its only act was to give authenticity by an order of probate to the instrument appointing them. We would here have an entirely different question if appellee had been faced prior to-her appointment with a judgment appointing appellants representatives of the estate of this deceased, and which made them directly responsible as such to the probate court.

In the case of Gaines v. First State Bank (Ter. Civ. App.) 28 S.W.(2d) 297, it was held that the district court had the power to appoint a receiver for an estate in the hands .of.an independent executor. This seems to support our view that the appointment of an independent executor under a will could not be given a res adjudicata effect merely because the will had been probated and that such executor might be displaced in an ex parte hearing where the interest of the estate demands it. We find no Texas authority which we are willing to give controlling effect in the disposition of the question presented. Loose expressions occur in some cases, which standing alone might be construed against the conclusion we announce, but an analysis of these will disclose that the exact point here decided was not in the mind of the court at the time, such opinions were written.

The second contention of appellants is that the court erred in refusing to approve a contract to bind the estate for a reasonable attorneys’ fee, which is referred to in the statement of the case. We are of the opinion that the court could not in advance of a hearing on the merits enter such an order. The final determination of this question depends upon many contingencies. ¡Somewhat akin to this question is the one many times before the court of the right and propriety of filing unliquidated claims with administrators and executors.

In the case of Greer’s Estate v. Cooper, 50 S.W.(2d) 345, this court held, in effect, that, since a claim for reasonable attorneys’ fees was unliquidated and contingent, it could not be filed with the executors, and hence its filing was unnecessary; that no judgment could be entered fixing the fee until the services had been performed.

In Hume v. Perry (Tex. Civ. App.) 136 S. W. 594, 596, the court limited the application of the statute regarding claims against estates to those that were “fixed and definite, not contingent or indeterminate, and which are susceptible of verification by affidavit.” See, also, 24 C. J. 330.

The facts and circumstances to he considered in determining the amount of compensation to attorneys in such cases, or whether any at all may be allowed, are many and varied. The character of services rendered, the time, labor, and trouble involved, the character and importance of the litigation, are all proper elements to be considered in determining the amount of same. 3 Amer. & Eng. Ency. of Law, pp. 420, 421. In determining whether any compensation is to be allowed, the fraudulent acts of executors in the pretended execution of a will and in subsequent probate will enter into the matter. Renn v. Samos, 37 Tex. 240; Smith v. Haire, 133 Tenn. 343, 181 S. W. 161, Ann. Cas. 1916D, 529. The good faith of such executors in resisting a contest involving the validity of a will is always to be considered. Rowe v. Dyess (Tex. Com. App.) 213 S. W. 234; 10 A. L. R. 789. The insolvency of the estate has been held to affect the question on the ground that the creditors cannot be interested in such contest. Hamilton v. Shillington, 19 App. D. C. 268. Ordinarily, attorneys’ fees are not recoverable in the absence of a contract, express or implied, or of a statute authorizing same. The only statute we have respecting this particular question bf which we are aware is article 3691, R. O. S., reading as follows: “Executors and administrators shall also be allowed all reasonable expenses necessarily incurred by them in the preservation, safe-keeping and management of the estate, and all reasonable attorney’s fees, that may be necessarily incurred by them in the course of the administration.”

Under the plain language of this statute, the extent of the attorneys’ services to the executors personally, where they .are interested, in contradistinction to services rendered directly for the benefit of the estate, would necessarily have to be considered in making allowance for attorneys’ fees.

The above shows the many future contingencies which will enter into a determination of this question and which make it impossible for the court to enter an order at the present state of the proceedings.

We regard the request for an allowance of expenses as resting upon the same basis and governed by the same rules. A judgment entered now in either of such matters would be premature.

Believing that the district court correctly disposed of the legal issues before it, its judgment is affirmed.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    TAYLOR v. BOYLE.
    No. 8894.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 2, 1932.
    Rehearing Denied Dec. 14, 1932.
    Jno. T. Spann, of Crystal City, for plaintiff in error.
    M. B. Harkey, of Crystal City, for defendant in error.
   SMITH, J.

By this appeal plaintiff in error attacks the validity of a garnishment' proceeding wherein defendant in error impounded certain moneys on deposit with the garnishee, a bank.

It was alleged in the application for the writ that the bank was indebted to plaintiff in error, Taylor, whose account was in the name of “The Taylor Company,” of which Taylor was the sole owner, and the bank answered that it was indebted to Taylor in no amount, but was indebted to the Taylor Company in the sum of $235.56.

In the meantime, however, plaintiff in error replevied the fund in question, under article 4084, R. S. 1925, and took possession thereof under bond, which facts were shown in the garnishee’s answer.

After the garnishee’s answer had been filed, plaintiff in error filed a motion to quash the writ of garnishment, but apparently abandoned the'motion, since the record does not show that it was presented to or acted upon by the court. The record does not show that plaintiff in error took any other steps in limine to protect his rights or preserve his objections to the processes by which his funds were subjected to the payment of the debt established in the main case, and of which he makes no complaint.

We are of the opinion that by his conduct, in not pressing his objections to the writ, and in replevying the impounded fund, and thereby assuming the burdens otherwise resting upon the garnishee, plaintiff in error waived all prior irregularities in the proceeding, and cannot raise those questions, for the first time, in this court, since none of them are jurisdictional. 20 Tex. Jur. p. 852, § 114; Wise & Jackson v. Nott (Tex. Civ. App.) 283 S. W. 1110; Griswold v. Tarbell (Tex. Civ. App.) 242 S. W. 324.

The judgment is affirmed.


author: VAUGHAN, J.

text:
    NANCE v. McCLELLAN et al.
    No. 11037.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1932.
    Rehearing Denied Dec. 10, 1932.

      • Wynne & Wynne, of Wills Point, for appellant.
    Burgess, Burgess, Chrestman & Brundidge and H. A. Bateman, all of Dallas, for appel-lees.
   VAUGHAN, J.

This suit was originally instituted in the court below by Helen White and Ollie Parker, femes sole; thereafter, and before trial, Helen White married one R. P. McClellan; and the plaintiff’s third amended original petition, upon which trial was had, named Mrs. Helen McClellan, joined pro forma by her husband, R. P. McClellan, and Ollie Parker, a feme sole, as plaintiffs, and E. T. Nance, State National Bank of Grand Saline, Tex., and the Texas & Pacific Railway Company as defendants. The parties to this appeal whose interest is actually involved are Mrs. Helen McClellan and Ollie Parker, as appellees, and E. T. Nance, appellant, and the use of the terms “appellant” and “appellees” will refer to said parties as above stated. Appellees, as plaintiffs in the court below, alleged that on or about October 18, 1929, appellant was the owner of a certain tract of land being a lot 50 feet by 100 feet in the town of Grand Saline, Tex., that as an inducement to a sale, represented verbally to said R. P. McClellan that the property immediately in front of and adjoining the lot in question was a public street, ’ approximately 50 feet in width and connecting with Main street in the town of Grand Saline, and lying between the involved lot and the right of way of the Texas & Pacific Railway Company; that, relying upon such representations, said McClellan purchased from appellant an option to buy said lot, paying the sum of $500 therefor, the total purchase price of the lot being $3,000; that on or about October 26, 1929, the appellees (Mrs. Helen McClellan then a feme sole) being interested in the purchase of said lot and the taking over of said option from McClellan for their use and benefit, went to Grand Saline, where appellant repeated’ and made to them the same representations, namely, that there was a public street in front of said lot to the north and adjoining the lot, and, relying thereon, purchased the option agreement from R. P. McClellan for the sum of $500, and entered into a purchase agreement with appellant, whereby they, appellees, agreed to pay the further sum of $1,050 in cash, execute a note for $1,450 payable to the order of appellant, and execute a deed of trust to secure said note; that, in accordance with said contract, the deeds of conveyance, together with appellees’ $1,050 cash, the note for $1,450, and the deed of trust securing same, were, after said deeds had been properly executed, all placed in escrow with the defendant State National Bank of Grand Saline, Tex. Appellees further alleged that, before purchasing said option and entering into the contract for the purchase of said lot with appellant, they informed him that they desired to purchase the lot for the purpose of erecting a hotel thereon, and that the property as a hotel site would be valueless unless there was ingress and egress to the same, and unless the same fronted upon a public street or thoroughfare; that the property north of the lot, which appellant represented to be a public street, was the property of the Texas & Pacific Railway Company; that said lot was entirely without ingress or egress and consequently wholly worthless for the purpose of a hotel site and wholly valueless to appellees; that the representations of appellant were fraudulently made to induce appellees to part with their money and to agree to purchase said property, which they would not have done but for such representations ; that appellees, Helen McClellan and Ollie Parker, contributed equally in making the payments alleged; that they discovered the fraud on or about November 19,1929, and immediately gave notice to appellant of their rescission of said trade and transaction had in reference to said lot, and demanded the return of their money and the cancellation of the note and deed of trust executed by them. Appellees further alleged that appellant had pleaded that the property immediately north of the lot in question had been acquired by the town of Grand Saline for the public as a roadway -by prescription; wherefore they made the Texas & Pacific Railway Company, the record ownet of such property, a party defendant, and prayed that, if the court 'should find that the public had acquired- a right to said property as a public thoroughfare by prescription, such finding and judgment should be binding on the Texas & Pacific Railway Company, and, in addition thereto, prayed that they have judgment against the State National Bank of Grand Saline, Tex., for the sum of $1,050 placed in its hands by appel-lees, against appellant íor an additional sum ■of $500, with interest on the sum of $1,550 at 6 per cent, per annum from October 29, 1929, and that the note for $1,450 and deed of trust be canceled.

Appellant answered by general demurrer, general denial, and special answer to the effect that he made no representations to ap-pellees at all; that they came to the town of Grand Saline, and, after investigating the property themselves, sought him out to purchase same; that there was a street in' front of the lot in question and the street had been opened, used, and enjoyed for more than 40 years by the citizens of the town of Grand Saline, and that, if the street had been closed, it was not caused by, agreed to, nor acquiesced in by appellant; that he did not represent the same to be a street, as it was opened, used, and occupied as a street by the entire citizenship of Grand Saline and Van Zandt county; that appellees did not purchase any option agreement from R. P. McClellan, but that said agreement was purchased by ap-pellees originally, but, by request, was taken in the name of R. P. McClellan. Appellant further alleged that he had in all things carried out the contract to its full terms and conditions, and, by way of cross-action, prayed for judgment against said appellees and the State National Bank of Grand Saline, Tex., for the money, the note, and deed of trust which said bank held in escrow.

The State National Bank of Grand Saline answered by general demurrer, general denial, and, that it had no interest in the subject-matter of the suit, and prayed that it be discharged with its costs. The Texas & Pacific Railway Company answered by filing a misjoinder of causes of action, a misjoinder of parties, a general demurrer, and general denial.

The cause was tried to a jury, which found, in answering special issues (1) that appellant represented to R. P. McClellan, prior to the purchase of the option by McClellan, that there was a public street between the lot in question and the Texas & Pacific Railway Company’s right of way; (2) that R. P. McClellan repeated such representations to ap-pellees prior to their purchase of the option from him; (3) that appellees relied upon such representations of appellant in agreeing to purchase the lot in quéstion; (4) that appellant represented to the appellees, prior to the time they placed the cash, note, and deed of trust in the possession of the State National Bank of Grand Saline, that there was a public street between the lot in question and the right of way of the Texas & Pacific Railway Company; and (5) that appellees relied upon such representations in agreeing to purchase the lot in question. On February 5, 1931, the court below rendered judgment in favor of appellees against appellant and State National Bank of Grand Saline, Tex., for the sum of. $1,050, and against appellant for the additional sum of $500, with interest on the sum of $1,550 from date of judgment at the rate of 6 per cent, per annum, and all costs, and canceling and holding for naught the deed of trust and the note for $1,450.

The trial judge made the following findings which he combined with the findings of the jury in rendering the judgment appealed from, viz.: “(a) That, on the undisputed evidence in the record, there was not a public street in front of the lot in controversy and between said lot and the right-of-way of The Texas and Pacific Railway Company, at or since the time of the negotiations between the plaintiffs and the defendant, E. T. Nance, and that, therefore, the representations of the defendant, E. T. Nance, as found by the Jury, to the effect that at the time of said negotiations there was a public street between said lot and the Texas and Pacific Railway Company’s right-of-way, were false; and that the motion of said plaintiffs for judgment should be and it is hereby in all things sustained, (b) Came on for hearing the motion of the defendant, E. T. Nance, for judgment in his favor, and the court having heard said motion and argument of counsel thereon, and the jury having found that said defendant did make the representations complained of by plaintiffs, and that plaintiffs relied thereon, and the court having found from the undisputed evidence that said representations were false, the court is of the opinion that the motion of said defendant for judgment is not well taken, and the same is hereby in all things overruled, (c) The court finds that there is no evidence in the record entitling plaintiffs to any injunctive or other relief against the defendant, The Texas and Pacific Railway Company, and that said .defendant is entitled on the evidence to go hence without day and recover its costs.”

We have carefully reviewed the statement 'of facts and reached the conclusion that the findings of the jury are amply supported by evidence, and further, that the independent finding of facts by the trial judge was made upon evidence without conflict of any material import, therefore, all of said findings are adopted as part of the material findings of fact by this court.

Appellant urges, as material fundamental error, the failure of appellees to join in this suit Emma Nance, the wife, Charlie Nance, the son, and Bettie Nance, the daughter-in-law of appellant, as defendants. In support of his position, appellant contends that this cause was essentially one to cancel the deeds executed by appellant, his wife Emma Nance, Charlie Nance and wife, Bettie Nance, as well as to cancel the vendors’ lien note given as a part of the purchase price, for the involved lot, the deed of trust executed to secure same, and to recover the part of the purchase money paid on the consideration for said lot. Appellees alleged in their petition on which trial was had that “on or about the 18th day of October, 1929, the defendant, B. T. Nance, was the owner of certain property situated in the town of Grand Saline,” etc., describing the lot in question. Appellant alleged in his answer on which he went to trial “that he was the owner of the property described in plaintiffs’ petition and that he' sold the same to the plaintiffs, made the contract and the deeds * * ⅜ as suggested and requested by the plaintiffs, at and for an agreed consideration.” On the trial of the cause, appellant testified as follows in reference to his acquisition and ownership of the involved lot: “I bought the property from Mrs. Elizabeth Ridgell, my wife was dead at that time, and I have since married my present wife, whose name is Emma, having married her after I purchased this prop* erty, and I didn’t receive a deed from anybody else to this property except Mrs. Ridgell. I think I bought it along in about 1902, about 29 or 80 years age.” The vendors’ lien note for $1,450, which appellees sought to cancel, was by its terms payable to the order of ap* pellant alone; likewise the deed of trust sought to be canceled, correctly described the note which it was given to secure as being payable solely to appellant or his order. The $1,050 in cash and the note for $1,450, part of the consideration contracted to be paid for said lot, and deed o-f trust securing said note, were placed in escrow with the State National Bank of Grand Saline to be held until the deeds conveying said lot to appellees should be executed and delivered by appellant, his wife Emma Nance, Charlie Nance and wife, Bettie Nance, to appellees. The fact that appellant contracted that said Emma Nance, Charlie Nance, and Bettie Nance should join him in the execution of said'deeds did not create in them any interest in the property, but there only arose therefrom the implication that they had some interest in the in-, volved lot. However, as revealed by the evidence, the actual title was vested in appellant and excluded the existence of any interest in the property resting in either Emma Nance, Charlie Nance, or Bettie Nance; therefore, we hold that said last-named persons were not necessary parties to this suit, as it was only necessary for appellees “to join as parties those interested in the contract at the time of suit.” Houts v. Scharbauer, 46 Tex. Civ. App. 605, 103 S. W. 679; Texas Jurisprudence, vol. 7, p. 973. Prom this authority we quote: “Conversely, persons who have no interest, or have parted with their interest, need not be made parties. A person claiming under and in privity with one who is named as defendant need not be made a party to the suit for cancellation, since a judgment against'the defendant binds such a person as effectually as if he had been made a party to the suit.” “Conversely, a person is not a necessary party defendant who has no interest in the subject matter or object of the action; and plaintiff is not required to make parties defendant to his suit so that some matter between defendants and such other parties about which he has no interest may be litigated.” 47 C. J. p. 91. Furthermore the deeds of conveyance had never been delivered to and accepted by appellees, therefore, they were not in position to ask any relief from the court as to said deeds. Wherefore we hold that, under the facts of this case, appellees’ suit was brought only to cancel the note and deed of trust and to recover that part of the purchase price that had been paid by them in cash, and that the seeking of this relief did not involve, as a part of appellees’ cause of action, the cancellation of said undelivered and unaccepted deeds of conveyance; and that appellant’s assignment of fundamental error is without merit.

Appellant presented a general demurrer to appellees’ third amended original petition on the ground that same did not allege any measure of damages, and he complains because same was overruled. Appellees alleged: “That when plaintiffs purchased said option from the said McClellan and when they paid to him the said sum of $500.00 and when they deposited the further sum of $1,050.00 with defendant, State National Bank of Grand Saline, Texas, and when they executed said note and deed of trust, they did so, wholly relying upon the verbal representations of the said E. T. Nance made by him to them immediately preceding their doing of said acts, and relying particularly upon his statement to them that said property faced upon a public street and that said street connected with Main Street in the City of Grand Saline, and but for said representations they would not have considered agreeing to purchase said property and would not have paid out said money and would not have executed said deed of trust and note because, as stated by them to defendant, Nance, they desired to use said property as the site for a hotel and because said property as ’ a hotel site was worthless and valueless unless there was ingress and egress to same and unless the same fronted upon a public street or thoroughfare. That all of said representations of material facts so made by the defendant, E. T. Nance, to the said McClellan and to plaintiffs were false and untrue. That said property does not front upon any public street; in fact, same does not in any way front upon, face upon, connect with or adjoin any character of public street, and that said property north of said 50x100 ft. tract and represented by defendant, Nance, to be a public street is the property of defendant, The Texas and Pacific Railway Company, and is not a public street and was not a public street on the dates in question but is privately owned property. That said 50x100 ft. tract is entirely without ingress or egress over any public street or thoroughfare and is entirely enclosed and surrounded by privately owned property and is wholly worthless and valueless for the purpose of a hotel site, and is wholly worthless and valueless to these plaintiffs.” And further alleged that upon discovery of the fraud they immediately gave notice of rescission and prayed for money judgment only in the sum of the cash paid out by them, and the cancellation of their note and deed of trust. Said petition contained no prayer for any other pecuniary damages on account of the alleged fraud. We think the following pronouncement by our Supreme Court in Kanaman v. Hubbard, 110 Tex. 560, 222 S. W. 151, 152, should rule the Question thus presented, viz.: “It is therefore unnecessary' for us to determine whether a court of equity would not order a rescission for .fraud in the absence of a showing of actual pecuniary loss, for, were the necessity recognized for the showing of such loss to warrant the relief of rescission in equity, certainly any appreciable prejudice, though slight in amount, would be sufficient.” In J. I. Case Threshing Machine Co. v. Webb (Tex. Civ. App.) 181 S. W. 853, 855 (error refused), the defendant, who was sued on a purchase-money note given for an automobile, sought ,to rescind the contract because of false and fraudulent representations inducing the contract. He made no showing whatever that the automobile was worth less than he agreed to pay for it; and it was held: “It is elementary that fraud, in order to be the basis for the recovery of damages, must have resulted in pecuniary injury to the party complaining; but this rule applies generally to only those cases where the injured party is seeking to recover damages from the wrongdoer as indemnity against the injury which he has sustained by reason of the fraud, and has no just application to a case like the present, where the fraud is relied upon as a defense to the enforcement of an executory contract. In eases such as this, if the false representations relate to a material fact, the law implies that the defrauded party has suffered an injury sufficient to defeat a recovery. Kanaman v. Hubbard [Tex. Civ. App.] 160 S. W. 304; Stewart v. Lester, 49 Hun, 58, 1 N. Y. S. 699; MacLaren v. Cochran, 44 Minn. 255, 46 N. W. 408; Smith v. Countryman, 30 N. Y. 655; Brett v. Cooney, 75 Conn. 338, 53 A. 729, 1124; Harlow v. La Brum, 151 N. Y. 278, 45 N. E. S59.” In the case of Loughry v. Cook (Tex. Civ. App.) 263 S. W. 333, 334, we find the following language used: “It is inconceivable that any man would buy'a house and lot with no way to reach or get out of it.” The evidence in the instant case clearly establishes the facts to be that, before signing the contract and putting up their money, note, and deed of trust, the appellees informed appellant they were considering buying the lot for the purpose of erecting a hotel thereon; that they asked in particular about the street in front of the lot; that appellant represented to them that it was a public, dedicated city street; that they would not have agreed to buy the lot except for their reliance upon such representations, and that the representations were false in that the so-called street or roadway was actually upon property owned by the Texas & Pacific Railway Company; and that those who used it as a roadway did so only toy permission of the railway company, which had the right at any time to deny them the use thereof. The evidence further shows that there was no other means of ingress or egress to the lot. We can hardly imagine a case in which the equitable right to rescission could be more clearly established. See also the following authorities in support of the above holdings: Edmonds v. White (Tex. Civ. App.) 247 S. W. 585; Osborn v. Texas Pacific Coal & Oil Co. (Tex. Civ. App.) 229 S. W. 359.

The general rule that a party to be entitled to a rescission on account of fraudulent misrepresentations must make some showing of loss or injury on account thereof is not impaired by the holdings in the above authorities ; nor the recognized proper application of same, as stated in the following authorities, in any respect materially restricted, viz.: Black on Rescission and Cancellation, § 567; Id. §'37: “In order to obtain a rescission of a contract, it is necessary for the complaining party to show that he has suffered actual loss or injury by reason of it, or that he is threatened with substantial loss or injury which will fall upon him if the contract is not annulled. But in the ease of executory contracts, the rule does not mean that the party complaining should have sustained actual loss at the moment of rescinding or filing his bill for rescission, but it is enough to show that such will be the inevitable result if the contract is completed according to its terms. * * ⅜ If damage is shown, the extent of the injury occasioned by the fraud will not be inquired into in a suit to rescind the contract. And the injury need not be accurately measurable in money, tout it is sufficient if it is of a pecuniary nature.” In Pomeroy’s Equity Jurisprudence, vol. 2; § 898, the rule is announced viz.: “If any pecuniary loss is shown to have resulted, the court will not inquire into the extent of the injury; it is sufficient if the party misled has been very , slightly prejudiced, if the amount is at all appreciable.” Said assignment is therefore overruled.

Appellant, by his fourth assignment of error, contends that the trial court erred in permitting R. P. McClellan, Mrs. Helen McClellan, and Miss Ollie Parker to detail conversations had among themselves in Dallas, Tex., in the absence of appellant, repeating statements claimed to have been made by appellant to R. P. McClellan in reference to the location of the involved lot and a street situated immediately in front of said lot and between the right of way of the Texas & Pacific Railway Company. The testimony so objected to we find to be as follows:

The witness McClellan testified: “In the meantime he (Nance) told me about the street being there, said it had been given to Grand Saline as a public street some time before by the T. & P. Railroad, and I asked him how far across and he pointed to a water trough about half-way between the T. & P. track and this property and said the street extended that far, and I asked him how far the T. & P. right-of-way (came) and he said it came to the line with the concrete watering trough which was to one side of this property, on the east side. Mrs. McClellan was with me on that trip and was present when this conversation took place. I don’t know whether Mr. Morris was present then or not, he was in and out all the time. Mr. Nance represented a street there, I guess 90 to 100 feet wide.”

Mrs. McClellan testified as follows: “I was down there with Mr. McClellan when he bought the option, and I heard Mr. Nance say it was a public street, and Miss Parker and I later bought the option from Mr. McClellan. Yes, I heard Mr. McClellan tell Miss Parker that it was a street, that Mr. Nance said it was a public street, that was when we bought the option that he told her that.”

Ollie Parker testified as follows: “It was somewhere between the 18th and 25th of October, 1929, when I first heard about this lot down at Grand Saline. Miss White ’phoned me and I met her over at her home and Mr. McClellan came out after I had been there fifteen or twenty minutes. I was not interested in purchasing any property in Grand Saline until Miss White called me up, and in talking with her she said that Mr. Nance said there was a public street in front of the property, but he didn’t think it would be paved and we wouldn’t be out anything on paving, that it was a street given by the railroad to the city, that it was a good wide street and was a public street. After that conference I came with Mrs. McClellan down to Grand Saline, and Mr. Carmichael, a contractor whom we had spoken-to about the building, and two other men came with us, and while we were on the lot looking at it, Mr. Nance and Mr. Morris came out there to see us. Mrs. McClellan introduced me to Mr. Nance and told him that she and I decided to buy the option from Mr. McClellan and put up a hotel, so Mr. Carmichael then asked Mr. Nance — -'told him that he wanted to look around the property, that he was the one who was going to loan us the money to put up the hotel, he was a contractor, and he walked around, and asked how wide this street was, if it was a public street, and Mr. Nance told him the street extended beyond that watering trough, the watering trough belonged to the city. I had about the same conversation with Mr. Nance that Mr. Carmichael did. I told him the street was muddy and looked like it was in pretty bad condition, and he said Mr. Morris was going to put a team on it in the next week or two, and I asked him the name of the street, and he said, ‘The streets down here don’t have any names.’ ”

This evidence was timely objected' to by appellant on the ground that same was purely hearsay as to him. In. the submission of the special issues, the trial court .treated this testimony as having been offered, not for .the purpose to prove that appellant made the representations as to there being a public street north of the involved lot to McClellan originally, neither that such representations were either true or false, but merely to prove that McClellan faithfully repeated to Ollie Parker what appellant said to him (McClellan) in reference to there be-, ing a public street furnishing means of ingress and egress to and from said lot on the north side thereof. In this respect, it is our opinion that said evidence was not hearsay, but direct evidence. Appellees, by other parts of their testimony, and that of other witnesses, established that appellant did actually make the misrepresentations to McClellan ; that appellant later made the same misrepresentations to Mrs. McClellan and Miss Parker; that such representations were untrue; and that appellees relied thereon to their detriment. However, it was a part of appellees’ case to show that such misrepresentations were made to appellees before they consummated their transaction with R. P. McClellan for the purchase of his option and the payment to him therefor the sum of $500. Although it was shown that ap-pellee Mrs. McClellan was present with R. P. McClellan in Grand Saline when the first misrepresentations were made, nevertheless, it became necessary to show that the same misrepresentations were conveyed to appel-lee Ollie Parker. This was accomplished by the testimony of the persons who were present and heard the misrepresentations conveyed to Ollie Parker. The mere absence of appellant at the time of the conversation had between said three witnesses does not make their testimony in reference thereto hearsay; the appellees had the right to prove, and did prove, not by the testimony of one who said he had heard that R. P. McClellan repeated the representations to ap-pellees, but by those who were present and heard such repetition.

We think the rule applicable to this situation is clearly stated in Wigmore on Evidence, vol. 3, pp. 770, 771: “The theory of the hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extra-judicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. The utterance is then merely not obnoxious tci that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the hearsay rule.”

In 17 Texas Jurisprudence, p. 360, § 122, we find the following: “Evidence may be admissible for one purpose and inadmissible for others, in which case it may and should be admitted. In such circumstances the court may limit the testimony to the proper purpose at the time of its admission, and should, upon proper request, instruct the jury to consider it in the proper connection only. But in the absence of such a request the party objecting to its admission may not complain that the jury may have considered it for other purposes. The foregoing rules apply where evidence is admissible as between certain parties only, or merely for the purpose of impeachment, and also where testimony is admissible which it is proper for the jury to consider only in case they find certain facts to be true.”

Even if appellant’s theory was correct, and the purpose of appellees in offering the testimony complained of was to prove the fact that appellant had made the misrepresentations to McClellan originally, instead of merely the fact that McClellan stated to Miss Parker that he had done so, repeating the statements made by appellant to him, McClellan, the occasion would have available a well known exception to the hearsay rule, because R. P. McClellan, himself, as well as Mrs. McClellan, testified positively that the misrepresentations were made by appellant directly to R. P. McClellan. This exception, and the effect thereof, is well stated in the closing paragraph of section 224, p. 546, vol. 17, Texas Jurisprudence, viz.: “The admissions or declarations are admissible as substantive evidence, and may be proved against the party making them without laying a predicate for their introduction. Testimony as to declarations or admissions of this character is sometimes referred to as an exception to the rule excluding hearsay testimony, but it is not hearsay when given by a witness to whom the statements were made by the party against whose interest the admissions were directly made.”

In the following related matters, appellant urges that the trial court materially erred, viz.: (a) In refusing to submit to the jury the question as to whether or not a street or roadway existed in front of the involved lot, although timely and duly requested by appellant to do so; and (b) in the finding of facts in reference to this issue presented by the pleadings and supported by the evidence, which facts so found were incorporated in the judgment of the court as material to its rendition, viz.: See findings of fact by the court herein set out. This has required the making of a careful search of the statement of facts bearing upon this particular phase of the ease to discover whether or not there was before the court evidence presenting a conflict in the testimony anent the existence, vel non, of a public street immediately in front of the involved lot, at or since the time of the negotiations between appellees and appellant in reference to the acquisition of said lot by ap-pellees. We have carefully examined the testimony of all of the witnesses bearing upon this phase of the case, viz.: W. H. Quinn, W. M. McVeigh, A. M. Morris, J. S. Land, W. P. Gibson, A. E. Adrian, Dr. V. B. Oozby, J. O. Alsup, E. T. Nance, and E. P. Eriedline, and reached the conclusion that there was no real conflict therein as to the condition, the title, and use of the strip of land immediately north of the lot in question, and that the undisputed evidence in reference thereto plainly established that there was actually no public street in front of said lot and no legal right to ingress and egress; and further discloses that there was no controverted issue of fact as to whether the public had acquired a right to a street at that point by prescription, and further that no dedication of such a street had been made by the Texas & Pacific Railway Company to the public, or of the legal title to the tract of. land constituting a part of its right of way immediately in front of the involved lot. Assembling the testimony of the above-named witnesses and' according to that given by each witness'its proper legal effect, we find the following essential facts to have been established thereby and without material conflict therein, viz.: That in the city of Grand Saline the Texas & Pacific Railway Company owned, and had owned since the 9th of May, 1876, in fee simple, its right of way which extended south 200 feet from the center of its main line, which ran east and west; that its fee-simple title to its right of way south of the main line extended to and adjoined the north line of block 27, in which the lot in question was situated; that it also extended to and adjoined the property line (and “gallery”) of the Wright or Commercial Hotel, which adjoined the involved property on the east; 'that no part of this railroad right of way was ever fenced and that no signs prohibiting trespassing were placed thereon; that on the same right of way were located stock-loading pens, cotton-loading platforms, and oil-loading tanks; that it was necessary to keep the right of way open on all sides in order that patrons of the railroad conld conveniently get to these pens, platforms, and tanks; that the city of Grand ' Saline at one time huilt a concrete watering trough near the center of this part of the right of way, which was built for the use of, and was used by, both the patrons of the railroad and the general public, it having been placed there by permission of the railroad company; that those few property owners residing south and southwest of the railroad right of way, and any one else who desired to, were permitted by the railroad company to drive their cars and teams promiscuously across the southern portion of the right of way, “angling across” and into Main street (which runs north and south through the city of Grand Saline), in any manner desired by them, but on no particularly well defined route; that parts of the southernmost part of the right of way were graded and graveled at various times by both the railroad company and the city of Grand Saline; that no move was ever made by the city of Grand Saline or Van Zandt county to condemn any portion of the railroad’s right of way for street purposes under the right of eminent domain, and that no dedication of any part of the right of way was ever made by the railroad company for such purposes; that the street commissioner of the city of Grand Saline recognized that the property belonged exclusively to the railroad company; that the public used it by permission of the railroad company; and that the railroad company had the right at any time to close it up and prohibit further use thereof by the public. That after appellees had given notice to appellant of their rescission of the contract for the purchase of the involved lot, said railroad company built a spur track on its right of way, running east and west and being from SO to 51 feet north of the north property line of the involved lot. We think the above facts clearly establish (a) that there was no public street in front of the lot in question; (b) that no legal right to ingress and egress thereto existed; and (c) that whatever use was made by the public of .that portion of said railway company’s right of way immediately in front of and adjoining the involved lot, was merely a permissive use of a portion of said railway company’s right of way, and that the use of said right of way was not by the general public under a claim of right. Cunningham v. San Saba County, 1 Tex. Civ. App. 480, 20 S. W. 941; Heilbron v. St. Louis Southwestern. Railway Co., 52 Tex. Civ. App. 575, 113 S. W. 610, 979; Bryson v. Abney (Tex. Civ. App.) 171 S. W. 508. This assignment is therefore resolved against appellant’s contention.

Furthermore, we are of the opinion that, even if we could say that there was a controverted issue of fact, as to whether the public had acquired a right to a street in front of the lot in question by prescription, there was no legal obligation on the part of appellees to accept title to the involved lot; the only right to a street furnishing the means of ingress and egress to said lot depending on a limitation title to the tract of land that could alone furnish “the street” in front of it, the validity of that claim of title remaining to be ascertained by judicial determination. This, we think, is sound on the theory that appellees could not be required by appellant, under his contract of sale, to accept a limitation title to the lot itself and therefore could not be required to accept title to the lot, it having been represented to appellees by appellant as an inducement to purchase the involved lot, that a public street was immediately in front of said lot and said railway company’s right of way, the only right of the public in and to such “a street” being based upon limitation or prescription, the validity of which had never been properly adjudicated. Rabinowitz v. Darnall (Tex. Com. App.) 13 S.W.(2d) 73; Wakeland v. Robertson (Tex. Civ. App.) 219 S. W. 842; Moore v. Price, 46 Tex. Civ. App. 304, 103 S. W. 234. We therefore overrule said assignment and proposition based thereon.

All other assignments and propositions not specifically discussed herein have been carefully considered, and finding no reversible error presented thereby, same are overruled, and the judgment of the trial court is in all things affirmed.

Affirmed.


author: LATTIMORE, J.

text:
    Carl C. CALLOWAY, alias Buster Calloway, v. STATE.
    No. 15378.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    John Morison, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

■Conviction for misdemeanor theft; punishment, imprisonment in the county jail for sixty days.

The record is here without statement of facts or bills of exception. In all matters of procedure, the law appears to have been followed.

The judgment will be affirmed.


text:
    Edwardo GARZA v. STATE.
    No. 15409.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    S. B. Carr, of Floresville, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, fifteen years in the penitentiary.

There are no bills of, exception or complaints of procedure in any way. The state made out a rase of murder. Appellant defended on the ground of insanity, 'but, as we understand the .record, most of his witnesses declined to go any further than to testify that appellant was of a low order of mentality. The court submitted the law governing such issue in a manner acceptable to the appellant. The jury had support in the testimony for their conclusion of guilt. No ground appears for our holding them to have exceeded their province in . declining to acquit on the ground of insanity.

The judgment will be affirmed.


text:
    Jess JOHNSON v. STATE.
    No. 15721.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    J. R. Anderson, of San Augustine, and E. J. Conn, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, thirty years in the penitentiary.

We find in this record an affidavit made toy the appellant herein requesting that he be permitted to withdraw his appeal. The request is granted.

The appeal is dismissed.


author: HAWKINS, J.

text:
    Donald NELSON v. STATE.
    No. 15731.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    M. E. Gates, of Huntsville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for robbery; punishment assessed at forty years in the penitentiary.

Appellant has filed in this court his affidavit requesting the court to dismiss his appeal.

In compliance with such request, an order is entered directing the dismissal of this appeal.


text:
    Ross PATTERSON v. STATE.
    No. 15383.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Thomas J. Pitts, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing a narcotic drug; punishment, one year in the penitentiary.

By the terms of chapter 97, Acts of Regular Session, 42d Legislature (Vernon’s Ann. P. C. art. 725a), the possession of any narcotic drug is made a felony, which may be punished by confinement in the penitentiary for a period of years, or by the assessment of a fine. Among those things which are narcotics, morphine is enumerated toy express provision of the statute. In the case before us, it was shown to the satisfaction of the jury that appellant possessed morphine. We find in the record two bills of exception which appear to have been filed too late for consideration. There are no complaints otherwise.

Finding no error in the record, the judgment will toe affirmed.


author: HAWKINS. J.

text:
    Ezra WILLIAMS v. STATE.
    No. 15382.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    See, also, 54 S.W.(2d) 114.
    Benson & Benson and Donald & Donald, all of Bowie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS. J.

Conviction is for possessing intoxicating liquor for tiie purpose of sale; punisliment being one year in the penitentiary.

Appellant has filed in this court his affidavit advising the court that he does not further desire to prosecute his appeal, and requests an immediate dismissal thereof in order that his sentence may become operative.

In compliance with such request, an order of dismissal is entered.


author: WALKER, C. J.

text:
    Sam BAUM v. GLIDDEN COMPANY OF TEXAS.
    No. 2302.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1932.
    Alfred Duperier, of Beaumont, for appellant.
    J. B. Synnott, of Beaumont, for appellee.
   WALKER, C. J.

This case was filed in justice court of Jefferson county by appellee against appellant, and resulted in a judgment by default in favor of appellee. Appellant duly prosecuted his appeal to the county court at law of Jefferson county, where it was tried to a jury in his absence, with judgment again in favor of appellee.

By his appeal, appellant asserts that the trial court erred in refusing to grant his motion for a new trial. His propositions are that his absence was excusable, apd that he had a meritorious defense to appellee’s cause of action. In his brief he makes no statement showing the nature of appellee’s cause of action, nor does he suggest any defense thereto. By the statement in his brief, it appears that he was advised personally of the setting of his case on March 8, 1932, and made no effort to be present. The motion for new trial was properly overruled.

Affirmed.


text:
    N. LEVIN, Appellant, v. Frances H. JEFFERS, Appellee.
    No. 8567.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 23, 1932.
    Rehearing Granted Nov. 23, 1932.
    Eskridge & Groce, of San Antonio, for appellant.
    Lewright & 'Lewright, of San Antonio, for appellee.
    On motion for rehearing.
    For former opinion, see 52 S.W.(2d) 79.
   SMITH, J.

In the trial court the general demurrer was sustained to the petition of N. Levin in an action against Frances H. Jeffers to subject her separate estate to liability upon a contract made by her during coverture. In the original disposition of the case the court affirmed the judgment of dismissal entered upon Levin’s refusal to amend after the demurrer was sustained.

Pending Levin’s motion for rehearing, this court certified the controlling question to the Supreme Court, which held that the trial court erred in sustaining the general demurrer. N. Levin v. Frances H. Jeffers, 52 S. W.(2d) 81. The case is fully stated in the Supreme Court’s opinion.

In deference to that holding, it becomes the duty of this court to grant appellant’s motion for rehearing and reverse and remand. It is so ordered.


author: PALMORE, Justice.

text:
    Lonnie NORTH, Appellant, v. C. B. RUSSELL and Nathaniel "Trap" Helton, Harlan County Jailer, Appellees.
    Court of Appeals of Kentucky.
    March 21, 1975.
    Probable Jurisdiction Noted June 23, 1975.
    See 95 S.Ct. 2652.
    Eugene Goss, Eugene E. Goss, Harlan, Dean Hill Rivkin, Lexington, for appellant.
    Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Frankfort, Wix Unthank, Commonwealth’s Atty., Harlan, for appellees.
   PALMORE, Justice.

This proceeding began with a petition for habeas corpus filed in the Harlan Circuit Court by the appellant, Lonnie North, against the appellees, C. B. Russell, police judge of the City of Lynch, and Nathaniel “Trap” Helton, jailer of Harlan County. North alleged that he was being detained in the county jail pursuant to a judgment of the police court finding him guilty of drunk driving and fixing his punishment at 30 days in jail and a fine of $150. Entitlement to relief by way of habeas corpus was asserted on the theory that because the statute prescribing the qualifications of police judges in fifth and sixth-class cities do not require any legal training or knowledge, and because Judge Russell is a “lay” judge, unlearned in the law, the action or judgment by which North was committed to jail violated his rights of due process and equal protection of the laws under the 14th Amendment and was void.

Though sympathetic to North’s constitutional argument, the trial court relied upon Ditty v. Hampton, Ky., 490 S.W.2d 772 (1973), in denying relief, and the judgment was affirmed by this court in North v. Russell, Ky., 516 S.W.2d 103 (1974). North then appealed to the United States Supreme Court.

In response to a jurisdictional statement and brief filed in the Supreme Court by North the Attorney-General of Kentucky filed a motion to dismiss or affirm in which the following footnote appeared:

“The uncontested facts of this case establish that appellant requested but was denied a jury trial. Under Kentucky law he was entitled to the jury trial he requested. KRS 26.400(4). Further it appears that Judge Russell mistakenly imposed a sentence of imprisonment upon appellant for a first offense of driving while intoxicated, whereas imprisonment is not an authorized punishment for first offenders but can be imposed only upon commission of a subsequent offense. KRS 189.990(10)(a). Accordingly appel-lee must concede that appellant should have been granted the writ of habeas corpus for which he filed. However, appellant has never requested that a Kentucky court grant him relief to which he is entitled under Kentucky law, but has on the contrary consistently demanded that he be granted a writ of habeas corpus on the ground that the Kentucky police court system is in violation of the U.S. Constitution. It is appellee’s position that even should this Court note probable jurisdiction over the constitutional issues which appellant raises, it should nonetheless refrain from deciding the federal questions involved in this case and remand the case to the Kentucky Court of Appeals for that Court’s consideration of whether or not appellant should be granted a writ of habeas corpus solely upon the basis of violations of Kentucky law which occurred in the course of appellant’s trial before the Lynch Police Court.”

On the basis of this footnote the Supreme Court has vacated our judgment in North v. Russell, supra, and remanded the case “for further consideration in light of the position presently asserted by the Commonwealth,” to the utter consternation of the appellant, who of course is interested only in the constitutional issue and vigorously contests the suggestion that he be granted relief on another and less spectacular ground. The result is that we find ourselves performing an unwilling and not altogether felicitous role in a judicial fan dance.

Appellate courts have more to do than deal with errors of which appealing parties make no complaint. It is elementary that errors of which an aggrieved party is perfectly well aware but which he chooses not to bring to the attention of the court are waived. The blunt fact is that this appellant wants only to test the constitutional status of lay judges in criminal cases, whereas the Attorney-General has no appetite for that particular field of battle.

We fully appreciate the absurdity of having a lawsuit — any lawsuit — presided over in this day and age by a person without legal training or experience. Nevertheless, it was our conclusion in Ditty v. Hampton, Ky., 490 S.W.2d 772 (1973), that the federal constitution does not deny the people the right to have it that way if they so desire. Moreover, when this habeas corpus proceeding began and when it was decided in this court there was still time in which the appellant could have secured a trial de novo in the Harlan Circuit Court by the simple expedient of an appeal from the judgment of the Lynch Police Court. KRS 23.032; RCr 12.02-12.06, incl. Cf. Colten v. Kentucky, 407 U.S. 104, 112, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

The constitutional issue was and is the only issue before us, and we have decided it adversely to the appellant. So again, the judgment is affirmed.

All concur.

      . KRS 189.520.

      . KRS 189.990(10)(a).

      . KRS 26.200.

      . Since there is no official record of the proceedings in the Lynch Police Court, the Attorney General’s understanding that the alleged offense was the appellant’s first appears to be an assumption. It is neither alleged nor conceded to be a fact.


author: PER CURIAM.

text:
    DEPARTMENT FOR HUMAN RESOURCES, Commonwealth of Kentucky, Appellants, v. Carl BASHAM et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 23, 1976.
    Lynn T. Mitchell, Dept, for Human Resources, Frankfort, for appellant.
    George P. Gleitz, Bowling Green, for ap-pellees.
   PER CURIAM.

The appellees, Carl Basham and his wife Mary Basham, took into their home an infant child born November 13,1974, upon his release from the hospital. On January 14, 1975, appellees, pursuant to KRS 199.473, filed a written application with the Secretary for Human Resources for permission to receive the child for adoption.

KRS 199.473(1) requires the secretary to cause an investigation to be made of the home and the background of the persons wishing to receive a child for adoption for the purpose of determining the suitability of the applicants to receive a child, taking into account at all times the best interest of the child.

After making his investigation the secretary denied the application in a letter as follows:

"DEPARTMENT FOR HUMAN RESOURCES Commonwealth of Kentucky Frankfort 40601
March 13, 1975"
"Mr. and Mrs. Carl E. Basham
119 W. 13th Street
Bowling Green, Kentucky 42101
Dear Mr. and Mrs. Basham:
This is to notify you, Carl and Mary Basham, that your application for permission to receive Jason Dewayne Wilson, born November 13, 1974, is denied. This decision is based on the knowledge that Jason's mother, Katherine S. York, does not consent to your adopting him and has requested that he be returned to her. We are also concerned about the strong possibility of hostile interference by Jason's mother In your family life in the future, which would not be conducive to the child's adjustment as a member of your family.
If you can not agree with this decision, you may file an appeal to the decision In Warren Circuit Court within ten days of the receipt of this letter.
Please be assured that we have no doubt about your ability to parent a child. Your application to adopt a child through the Department for Human Resources would be welcomed.
Sincerely,
s/s C. Leslie Dawson
Authorized by: C. Leslie Dawson
Secretary for Human Resources
s/s Jerry B. Hissong
Recommended by: Jerry B. Hissong Commissioner Bureau for Social Services
Subscribed and sworn to before me this 19 day of March, 1975.
s/s Darleen T. Dovle-
Notary Public, State At Large
My Commission Expires April 10, 1978"

A timely appeal of the denial of the application was filed in the Warren Circuit Court. The review of circuit court is limited to a determination of whether the secretary acted arbitrarily, unlawfully or in such a manner as to constitute an abuse of discretion. KRS 199.473(2).

At a hearing of the appeal the trial judge refused to hear evidence as to matters upon which the secretary based his denial and held the action of the secretary to be arbitrary and an abuse of discretion as a matter of law for the reason that the denial was shown by the letter to be based upon factors other than the suitability of the appel-lees to receive the child.

The issue before us is whether in making the investigation required by KRS 199.-473(1) the secretary is confined to an investigation of the suitability of the applicants as adoptive parents (appellees were found to be suitable) or whether the secretary may consider other matters which, despite the suitability of the applicants, might adversely affect the adoptive child and not be in its best interest.

KRS 199.473(1) provides that in reaching his decision “the commissioner shall be guided by the ability of the persons wishing to receive the child to give the child a suitable home, and shall at all times consider the best interest of the child from a financial, medical, psychological and psychiatric standpoint.”

The appellees apparently are eminently suitable as adoptive parents but there may be factors with respect to this particular child which would render them unsuitable as adoptive parents for him. KRS 199.473(1) is sufficiently broad to permit a consideration of those factors by the secretary.

The letter of the secretary refers to the strong possibility of hostile interference on the part of the mother. The availability of police protection and injunctive relief may substantially lessen that possibility. In any event the real issue is whether the likelihood of interference by the natural mother is so probable and would be of a nature so detrimental to the welfare of the child and so irremediable that it would not be in the child’s best interest to place him with appel-lees for adoption.

The conclusion reached by the secretary cannot be classified as arbitrary or an abuse of discretion by a reviewing authority without consideration of the evidence upon which the secretary based his decision.

The judgment is reversed for further proceedings in conformity with this opinion.

Full court sitting.

All concur.


text:
    Donald RATLIFF et al., individually, etc., Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Appellee.
    Supreme Court of Kentucky.
    June 25, 1976.
    Rehearing Denied Oct. 1, 1976.
    Charles T. Walters, Winchester, for appellants.
    George F. Rabe, Commissioner of Law, Donald D. Waggener, Asst. Corp. Counsel, Lexington, for appellee.
   PER CURIAM.

Appellants, employees of the United States military installation at Avon, sought to have a license fee ordinance of the Lexington-Fayette Urban County Government declared invalid. The trial court dismissed the complaint because it failed to state a claim upon which relief could be granted.

Appellants admit that an ordinance imposing a license fee is a proper exercise of the constitutional and statutory powers of appellee, and that such a tax may be applied to federal employees. They contend, however, that the ordinance involved in the present case was not legally adopted, and that the ordinance violates appellants’ constitutional rights by taking property without due process of law. The opinion will be concerned only with these two arguments.

Section 15.09 of the charter under which the Lexington-Fayette Urban County Government was formed provided:

“All ordinances and resolutions of the City of Lexington * * * which are not inconsistent with the terms and provisions of this Charter shall be effective as ordinances and resolutions of the Lexington-Fayette Urban County Government until they have been repealed, modified or amended.”

Validity of the proceedings in the forming of the Lexington-Fayette Urban County Government and KRS Chapter 67A, authorizing merger of city and county governments, was upheld in Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974). See also Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972). No case involving the exact issue at hand has been cited by either party, but analogies may be drawn from annexation cases. In Commissioners of Sinking Fund v. Howard, Ky., 248 S.W.2d 340 (1952), it was held that the city had power to annex a federal area so that persons working in the area would come within the terms of the license-tax ordinance. There, as in the present case, employees not originally within the taxing district became subject to the tax upon annexation without a new ordinance being enacted. In 2 McQuillin, Municipal Corporations, section 8.23, pages 599 and 600 (3rd Ed. 1966), it is said:

“It may be provided that upon consolidation the ordinances of both municipalities shall become effective throughout their combined territories, until amended or repealed by the governing body of the consolidated municipality, with the ordinances of the larger of the two former municipalities taking precedence over ordinances of the small, in case of conflict.” See also City of Pittsburgh v. Pennsylvania Railroad, 394 Pa. 58, 145 A.2d 700 (1958).

One factor in favor of upholding the ordinance, that should not be ignored, is that a majority of the voters of Fayette County approved the merger charter, which contained the provision that existing ordinances of the City of Lexington would become effective as ordinances of the urban county government.

Appellants contend that enforcement of the license fee amounts to the taking of property without due process of law. With the enactment of 4 U.S.C.A., section 106, which is part of what is popularly known as the Buck Act, Congress authorized a local taxing district to levy an income tax upon the income of persons working within a federal area. In Howard v. Commissioners of Sinking Fund, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953), the court recognized that the Buck Act gave a municipality the right to levy an income tax on federal employees working on federally owned land on which a naval ordinance plant was located.

We believe there are benefits, substantial and realistic, conferred by the urban county government on the employees at Avon. The installation is surrounded by the taxing district. The employees in going to and from work receive police protection and use roadways built or maintained by the urban county government. The urban county government furnishes the employees, along with other persons, with public facilities. Beautiful landscapes and other esthetic benefits are provided. It might well be inferred that Congress, by passage of the Buck Act, acknowledged that inherent in the privilege of working within a federal enclave, surrounded by an area under the control of a local government, was a benefit sufficient to support a local income tax. See Kiker v. City of Philadelphia, 346 Pa. 624, 31 A.2d 289 (1943), certiorari denied 320 U.S. 741, 64 S.Ct. 41, 88 L.Ed. 439. Also the fact that there are greater benefits bestowed on some employees in the taxing district than on others is not important. Cf. City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245 (1937).

The judgment is affirmed.

All concur except REED, C. J., who concurs in result only.

      . Such was the holding in the recent case, Patrick, et al. v. City of Frankfort, Ky., 535 S.W.2d 88 (Decided May 28, 1976).

      . 4 U.S.C.A., section 110, defines “income tax” as a tax levied with respect to net income, gross income, or gross receipts.


author: PALMORE, Justice. JONES, Justice

text:
    Roger PECK, Appellant, v. J. Norris CONDER, Nelson County Jailer, Appellee.
    Supreme Court of Kentucky.
    Aug. 20, 1976.
    Jack Emory Farley, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., for appel-lee.
   PALMORE, Justice.

This is an appeal from an order of the Nelson Circuit Court entered in a habeas corpus proceeding denying the appellant’s application for a release from the Nelson County jail.

It appears from the record before us that on January 16,1976, Roger Peck, the appellant, was convicted by the Nelson Circuit Court of stealing cattle (KRS 514.030) and was sentenced to six months in jail. On May 12, 1976, the county judge of Nelson County entered an order granting parole to Peck for the remainder of his sentence, “on the following terms and conditions:

“a. Shall report at least once a month to James Graham, the Probation and Parole officer, until July 16, 1976.

“b. Shall not be convicted of any crime or engage in any criminal activity during that period of time.”

Several days following his release from jail pursuant to the order of the county judge the Nelson Circuit Court entered an order directing the rearrest of Peck and declaring the order of the county judge null and void. On the same day the Nelson Circuit Court issued a writ of prohibition against the county judge declaring KRS 439.177 invalid because it “fails to set out any standard for determining whether a defendant should be paroled,” etc. This habeas corpus proceeding followed.

KRS 439.177 and 439.179, which pertain to the release of persons confined in jail, were enacted after this court had held invalid a previous statute authorizing parole of such prisoners for the reason that it provided no means of implementation. See Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), in which it was observed that an unconditional grant of parole amounts to a pardon, thus violating Const. § 77. The current statute, KRS 439.177, remedies this particular deficiency and places all such parolees under supervision of the state correctional authorities and subjects them to its rules and regulations. This status continues until the parolee is recommitted to jail as a parole violator or until he is finally discharged from parole.

Subsection (2) of KRS 439.177 provides that upon the petition of a misdemeanant serving a sentence of 30 days or more the county judge of the county in which he is being held “shall study the record” of the petitioner “and, in his discretion, may:

“(a) Cause additional background or character information to be collected or reduced to writing by the bureau of corrections;

“(b) Conduct hearings on the desirability of granting parole;

“(c) Impose on the parolee such conditions as he sees fit;

“(d) Order the granting of parole;” etc.

While it is true that the statute does not prescribe criteria to which the county judge is restricted in determining whether a person should or should not be placed on parole, our attention has not been drawn to any constitutional inhibition against its being an entirely discretionary matter. The law involved in Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), was not declared void on the ground that there were no specified “terms and conditions” precedent to the granting of parole, but was declared so because there were no terms and conditions applicable after the granting of parole. We find in the arguments in this record no authority for the proposition that a legislative grant of the power to parole must premise it upon specific findings or criteria.

Nor is there any requirement, statutory or otherwise, that the county judge must recite in his order granting parole whether he has studied the petitioner’s record or has done any of the other things the statute authorizes him to do. It is elementary that a formal order issued by an officer whose authority includes the issuance of such orders is presumed to be valid, and therefore supported by whatever the law requires, until it is shown otherwise. So, though it is true as recited in the writ of prohibition issued by the Nelson Circuit Court that the order of the county judge “contains no findings which indicate that the County Judge studied the record of the above named defendant,” the omission is irrelevant for the simple reason that there was no requirement that the order contain such findings. Cf. Commonwealth v. Pineur, Ky., 533 S.W.2d 527, 528 (1976). Moreover, though we need not pass on the question of whether a study of the applicant’s record is mandatory, in that its absence would be fatal to an order granting parole, during the evidentiary hearing conducted by the circuit court in this case there was no showing that the county judge had not studied Peck’s record.

The position of the circuit court as disclosed in colloquy with counsel during the course of the heading was that if KRS 439.177 is valid a county judge may “countermand” the action of a circuit court. This overlooks the fundamental fact that when a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished. What then happens to the prisoner is entirely in the bailiwick of the executive branch of government, and is no business of the courts, including the trial court. In granting parole the county judge acts in an executive capacity, not a judicial capacity. Murphy v. Cranfill, Ky., 416 S.W.2d 363, 365 (1967).

It is the opinion of this court that to the extent that KRS 439.177 provides a procedure under which a county judge, in his capacity as an officer of the executive branch of government, may grant parole privileges to a misdemeanant, it satisfies the objections raised in Murphy v. Cranfill, Ky., 416 S.W.2d 363 (1967), and that the order entered by the county judge of Nelson County granting such privileges to the appellant sufficiently complied with the statute. We express no opinion with respect to the possible invalidity or partial invalidity of the statute on grounds not raised in this case.

The judgment is reversed with directions that the appellant be granted relief pursuant to his petition for habeas corpus.

All concur except JONES, J., who dissents.

JONES, Justice

(dissenting).

Many years ago Sir Edward Coke, in his treatise on the common law, insisted that:

“Reason is the life of the law; nay the common law is nothing but reason * *. The law, which is perfection of reason.”

In the present controversy, a recurring one, the common law is not at issue. A statute pertaining to the parole of misde-meanants is the compelling force that commands the attention of this court. Whether the common law or a statute is involved, a search for the truth by the use of logic and reason should prevail. To strive to seek and not to yield in a search for the efficient administration of justice should be the constant goal of this or any court.

In my view the majority opinion is based neither on logic, reason, nor a valid 'law. For that reason, I dissent.

In order that my reasons for dissent be properly positioned, it is necessary to briefly summarize the pertinent facts.

On January 16, 1976, Roger Peck pled guilty of theft by taking cattle of the value of less than $100.00. The Nelson Circuit Court sentenced Peck to confinement in jail for six months.

Three months and twelve days later, the County Judge of Nelson County paroled Peck “from the balance of his sentence on the following terms and conditions:

a. Shall report at least once a month to James Graham, probation and parole officer, until June 16, 1976.
b. Shall not be convicted of any crime or engage in any criminal activity during that period of time.”

The county judge contended that his authority to parole Peck was contained in the provisions of KRS 439.177. It is noted that neither the trial court nor the Commonwealth’s Attorney were notified of the county judge’s action.

When the trial court learned of the parole order of the county judge, he entered an order prohibiting the county judge from issuing further orders in the proceedings. He also issued a warrant for Peck who was again confined in the Nelson County jail. Peck filed a writ of habeas corpus. A hearing was held before the trial court. The writ was denied. Peck appeals.

The trial court considered the action of the county judge in paroling Peck as a usurpation of his authority. He questioned the validity of KRS 439.177. At the hearing, the trial court said:

“Now it narrows down to this point. I am well aware of that KRS 439.177. It is my opinion that this refers to a misde-meanant who has been placed in custody by the County Judge, not the Circuit Judge. Because — if the County Judge can counterman (sic) of the Circuit Court, he can countermand an order of the Supreme Court of the State of Kentucky. If the Supreme Court of Kentucky can put a man in jail over here, the County Judge could turn him loose.
“Now, if he can do that to me without any notice, it is amazing to me.
“Further, I find that there are no guidelines set down and, as far as I know, there have been no records introduced of any guidelines set down in the County Court to do this.
“Now, I am going to deny the writ of Habeas Corpus; but I will do this since there is a question about this statute — I certainly don’t want to keep this man in custody illegally and I will permit him to make bond.
“But I want it appealed to the Court of Appeals. And if I am wrong — all right, we’ll just turn all the cattle thieves loose that we try, by the County Judge, if he wants to. So if I am compelled to release a cattle thief I want the Supreme Court to tell me so * *

The majority opinion upheld the action of the county judge. In my opinion that action is based on neither reason, logic and a statute that is totally invalid. The majority opinion begs the question when it says:

“We express no opinion with respect to the possible invalidity or partial invalidity of the statute on grounds not raised in this case.”

I am of the opinion that KRS 439.177(1) is invalid. This court has the final authority to determine the constitutional validity of legislative acts. I am of the opinion also that this court is impelled by that responsibility to examine the act before declaring it valid. See Rash v. Louisville and Jefferson County Met. S. District, 309 Ky. 442, 217 S.W.2d 232 at p. 235.

Now, we view the illogical and unintelligible provisions of KRS 439.177(1) which states in part:

“Any misdemeanant, sentenced for a period of thirty (30) days or more, may if sentenced by the police court of a city of the first, second or third class, petition the sentencing court for parole privileges. Any misdemeanant, sentenced by the police court of a city of the fourth, fifth, or sixth class or by any court other than a city of the first three classes, may petition the county judge of the county in which he is held, for parole privileges.”

Other provisions of the statute give the county judge unfettered, carte blanche discretion to parole misdemeanants.

The vice in KRS 439.177 is that it makes an arbitrary distinction between cities of the first three classes and other cities, so that it violates Section 59 of the Constitution prohibiting the enactment of special laws. It comes close to being within the express prohibition against special acts regulating the punishment of crimes and misdemeanors.

A police judge is not an executive officer. Therefore, he is not, nor could he be vested with parole privileges of misdemeanants. Under the statute, who then would have parole privileges of misdemeanants in cities of the first three classes?

I am convinced by reading the county judge’s parole order that no guidelines were followed. The probation and parole officer testified as follows:

“Q Now, then did the County Judge tell you anything different with regard to Mr. Peck’s reporting to you?
“A Well, he said it was up to me and he didn’t have to report unless he wanted to or unless I wished to supervise him.”

The county judge totally ignored KRS 439.550 which deals with the Department of Corrections and Parole. The County Judge of Nelson County in effect granted Peck a pardon. That right is vested exclusively in the Governor of the Commonwealth.

The circumstances presented in this case are comparable to the admiral telling the captain to let a midshipman take the helm.

For a more efficient administration of justice, I would affirm the judgment.

For the reasons stated herein, I dissent.