author: HAWKINS, J. LATTIMORE, J. MORROW, P. J.

text:
    SCHAEFER v. STATE.
    No. 15272.
    Court of Criminal Appeals of Texas.
    June 22, 1932.
    Rehearing Denied Oct. 12, 1932.
    Second Rehearing Denied Oct. 26, 1932.
    Linden & Linden, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

Acting under a search warrant, officers went to appellant’s home and found in a small rock house (called the “dairy house”) near the residence five gallons of peach brandy, two gallons of cherry wine, sixty bottles of “home brew,” caps and a capping machine. A chemist who made an analysis of samples of each kind of the liquor found testified that the peach brandy contained 9.6 per cent, of alcohol by volume, the cherry wine 8.8 per cent., and the home brew 3.4 per cent.

It was appellant’s contention that under the evidence the “dairy house” was a part of the private residence, and that evidence of what was found by the officers was inadmissible by reason of a claimed defective affidavit upon which the search warrant was predicated. Bills of exception preserving the point are brought forward. We find it unnecessary to discuss the matter on account of the evidence which-went into the case from appellant’s wife. She admitted.the presence of the liquor testified to by the officers, saying it was made by her and appellant., She denied that any of it was kept for the purpose of sale, and said the “home brew” was for her own personal use. The jury was pertinently told that appellant could not be convicted if the liquor in question was intended for medicinal purposes or for home consumption. The same evidence which appellant sought to exclude as coining from the officers having gone into the record from appellant’s own witness he is in no position to complain. We cite only a few cases, hut they will he found to collate many others. See McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W. (2d) 54; Machado v. State, 112 Tex. Cr. R. 538, 17 S.W.(2d) 1060; Stone v. State, 113 Tex. Cr. R. 371, 22 S.W.(2d) 140; Rensch v. State (Tex. Cr. App.) 45 S.W.(2d) 209.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files an able motion for rehearing in which he reviews to some extent the authorities deemed by him pertinent. The proposition that the illegal reception of testimony will be of no avail to the accused if it appear from the record that the same or similar testimony was admitted before the jury from other sources without objection has been affirmed by this court almost from its creation. We have no doubt as to the soundness of the proposition. The authorities have been reviewed and discussed so often that we deem it unnecessary to again go over same. In Stone v. State, 113 Tex. Cr. R. 371, 22 S.W.(2d) 140, many of the authorities are collated. There was no dispute of the fact that appellant himself drew out of his wife, while on the witness stand as a witness for him, substantially the same facts as to his possession of the intoxicating liquor in question, as was testified to by the officer whose search was admittedly improper.

The motion for rehearing will be overruled.

On Application to File Second Motion for 'Rehearing.

MORROW, P. J.

Appellant earnestly insists that in the opinions affirming this conviction and overruling the motion for rehearing, this court has by construction annulled the statutory law embraced in article 671, P. C., enacted in 1923. The announcement of this court, speaking through Judge Ramsey, in the ease of Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, decided in 1908, wherein it is said: “It is well settled in this state that the erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to,” cites many previous, cases. Among them is Walker v. State, 17 Tex. App. 16, in which the rule stated is treated as a sound principle of evidence in the opinion written by Judge Hurt. The principle was again affirmed in the opinion of this court written by Judge Hurt in the case of Carlisle v. State, 37 Tex. Cr. R. 108, see page 112, 38 S. W. 991.

Article 671, P. O., reads thus: “Wherever possession or receipt, or possession or receipt for the purpose of sale, is made unlawful by law, proof of possession of mash, or a still or any device for manufacturing intoxicating liquors, or proof of the possession of more than one quart of intoxicating liquors, shall be prima facie evidence of guilt; but the defendant shall have the right to introduce evidence showing the legality of such possession.”

As stated above, the article was enacted in 1923, by section 2e, Acts of 38th Leg., 2d Called Session, p. 54, chap. 22, and was reenacted in the revision of the statutes in 1925.

At the time article 671, supra, was enacted, there* was no statute forbidding the use of evidence obtained in an illegal search. Subsequently, articled 4a and 727a, C. O. P., were passed. The effect of those two articles was to forbid the introduction in evidence, on the objection of the accused, of evidence obtained by means of a search which was illegal. Effect was immediately given to these statutory provisions by decisions of this court refusing to affirm convictions based on evidence obtained in an illegal search where objection to the evidence was properly interposed. See McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54. In other words, if there were no evidence other than that obtained through an illegal search showing a violation of the statutory provisions denouncing the traffic in intoxicating liquors contained in articles 666 and 667, P. O. 1925', and the record show a proper objection to its admission, there would be no basis for the conviction of the accused. If, however, he chose to take the stand himself or to introduce witnesses in his own behalf and make proof that he possessed, transported, or sold intoxicating liquor, the state would be authorized to avail itself of such testimony. This principle has been applied in a great many cases and is deemed in harmony with the general rules of evidence. The statute, 'in stating that the accused might introduce controverting evidence, added nothing to the rules of evidence, but simply recognized such right under a statute which confers upon him accused of crime the right to testify in his own behalf. See article 710, C. C. P.; also, Newton v. State, 98 Tex. Cr. R. 582, 267 S. W. 272.

As stated in the opinion on motion for rehearing, if the evidence of the officers who searched the appellant’s premises was obr tained in an illegal search and therefore not admissible against him, and there was no other evidence against him to support the charge in the indictment, there was no occasion for the appellant to introduce evidence at aíi; but having electéd to put witnesses on" the stand and make proof that he po's-sessed a quantity of intoxicating- liquor above a quart, be thereby rendered harmless the error committed in receiving the testimony of the state to the same effect. As stated in the beginning of this opinion, there -will not be a reversal on appeal for the reception of evidence illegally obtained in case the same facts came, without objection, from the testimony of either the defendant or other witnesses.

For the reasons stated, the request to permit the filing of the second motion for rehearing is denied. ...


source: Caselaw Access Project

author: WALTHALD, J.

license: Public Domain

text:
    TEXAS &. P. RY. CO. v. GIST.
    No. 2713.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    Rehearing Denied Oct. 20, 1932.
    Howard & Jackson, of El Paso, for appellant'.
    Paul Moss, of Odessa, for appellee.
   WALTHALD, J.

This case presents an interstate shipment of cattle. The record shows that on November 26, 1930, through his agent, appellee John M. Gist made a shipment of cattle from Bel-ton, Mo., over the St. Louis & San Francisco Railway and the Texas & Pacific Railway to Midland, Tex. Included in the shipment was one registered bull which, for some unexplained reason, did not reach its destination and for the value of which this suit is brought. The value of the bull is alleged to be $350.

The suit was not brought on a shipment contract but on the carrier’s common-law liability, that is, that the railway company “did not safely carry and so deliver” the one bull, “but in utter disregard of their duty in this respect failed, neglected and refused to safely carry and deliver one of said bulls known and named Stanberry 2nd, of the value of $350.00, to. plaintiff’s damage,” etc.

The appellant answered by a general denial.

On special issues submitted the jury found, in substance, that appellee, through its agent, delivered to the carrier the animal named to be transported as alleged; -that the carriers accepted said bull to be transported safely as alleged; that the bull was not transported and delivered to appellee at Midland, Tex.; the market value of the bull at Midland, Tex., was $350.

Appellant tendered into court $75 in full settlement of the amount of the damages sustained on its failure to deliver the animal at Midland, which amount appellee refused to accept.

Appellant made the contention in the trial court, and makes the same here, that the shipment was made on a written shipment contract in which the shipper declared said bull to be “ordinary live stock” .and thereby secured a lower rate on the shipment, and classed said bull as ordinary live stock under the rules, rates, and regulations on file with the Interstate Commerce Commission, and that under said declared classification the sum of $75 is the maximum amount that the carriers are allowed and required to pay as damages for the loss of said bull.

Appellant submits several propositions in support of its contention against a greater liability than the amount tendered into court, and the failure of the trial court to limit its liability to the amount tendered.

Appellant did not plead an agreement in writing which by its terms or legal effect exempted it from its common-law liability. It pleaded the general denial only. To claim such defense it must plead such contract as it insists was made, otherwise there would be no issue to which such contract would tend to prove or disprove. On August 9, 1916, a proviso was added to the Amendment of March 4, 1915, to the Hepburn Act (49 USCA § 20) tegulating interstate commerce, which proviso gave to the carrier the right, in ease rates were based on value, to limit its liability on certain things, which included the shipment involved here, by securing from the shipper an agreement in writing .fixing or releasing the full value of the animal shipped by declaring the shipment to be “ordinary live stock” and paying a lower freight rate. The provision was enacted solely for the benefit of the carrier. The burden is undoubtedly upon the carrier to bring itself within its terms, and which it can do only by pleading such agreement. While the shipper is charged with knowledge of the provisions of the filed schedule rates, the law does not place upon him the duty to take the initiative. He is not required to plead and prove his ca.use of action and at the same time to plead or prove the defensive matters. The general rule is that the carrier is liable for the full value of the animal under the circumstances shown, and the exception to the rule is found in the said amendment of August 9, 1916, which provides that full value may be avoided by securing from the shipper a release in writing limiting its liability in case of loss to a stipulated amount by classing the shipment as “ordinary live stock” in consideration of a lower rate.

While the trial court submitted to the jury the question as to whether the shipment in question was under a special contract, and whether the animal was shipped as “ordinary live stock,” and the jury found against appellant on each of such issues, appellant insists that having exhibited in court on the trial such contract, and having tendered the maximum amount to be allowed under such contract and regulations, the court should have instructed a verdict in its favor.

Without discussing the probative force of the evidence on the said issues, we hold that the contract for the shipment and the classification of the animal as “ordinary live stock” not having been pleaded by appellant, no issue was before the court which required or justified the admission of evidence on such is-* sues or the submission of such issues, or peremptory instruction in appellant’s favor.

Other questions are presented which are of a kindred nature to that discussed. They do not present error and are overruled.

Finding no reversible error, the case is affirmed.


author: CHRISTIAN, J. CHRISTIAN, J. LATTIMORE, J.

text:
    OLIVARES v. STATE.
    No. 15286.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    State’s Rehearing Granted June 22, 1932.
    Appellant’s Rehearing Denied Oct. 12, 1982.
    E. T. Simmang, Jr., of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Au& tin, for the State.
   CHRISTIAN, J.

The offense is malicious prosecution; the punishment, a fine of $100.

, The complaint recites that affiant has good reason to believe, etc., but omits the phrase “and does believe.” The inclusion of this last-named allegation is statutory. Article 222, subd. 2, C. C. P. Its omission renders the complaint fatally defective. Ward v. State (Tex. Cr. App.) 21 S.W.(2d) 297, and authorities cited.

The complaint is further defective in failing to follow the language of article 1298, Penal Code, defining the offense. This article reads as follows: “Whoever * * * with intent to vex, harass or injure such person, shall institute or cause to be instituted any criminal prosecution against such other person, shall be fined not less than one hundred nor more than one thousand dollars, or be confined in jail not less than one month nor more than one year.”

If appellant instituted the criminal prosecution, there is no averment in the complaint to such effect. If appellant caused the prosecution to be instituted, there is no averment to that effect.

The judgment is reversed, and the pros-' ec-ution ordered dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been exaniined by the judges of the Court of Criminal Appeals and approved by the court.

On State’s Motion for Rehearing.

CHRISTIAN, J.

It is now properly made to appear that the complaint was not correctly copied in the transcript. A supplemental transcript, duly certified, shows that the complaint in fact contained an averment that “affiant has good reason to believe, and does believe,” etc. Further, the complaint contained an allegation to the' effect that appellant caused the criminal prosecution to be instituted. It was because of the omission of the aver-ments to which reference has been made that the judgment was reversed and the prosecution ordered dismissed.

The statement of facts is in question and answer form, embracing colloquies between the judge and counsel, and rulings of the court on the evidence. It was'authenticated by the trial judge on March 21, 1932, and filed in the trial court on the same date. Chapter 34, Acts of the Forty-second Legislature, First Called Session (1931), requiring that the statement of facts be in. narrative form as theretofore demanded by the provisions of article 769, C. C.' P. (Vernon’s Ann. C. C. P. art. 760, subd. 1), and article 2237, Revised Civil Statutes 1925 (Vernon’s Ann. Civ. St. art. 2237, subd, 2a), became effective August 17, 1931. Thus it is seen ’ that the statement of facts was approved approximately seven months after the enactment of chapter 34, requiring that the statement of facts be in narrative form. This court has repeatedly held that, under- the statute, it is not authorized to consider a statement of facts in question and answer form. Ishmael v. State, 100 Tex. Cr. R. 253, 272 S. W. 794, and authorities cited. There are in the record several bills of exception which we are unable to appraise in the absence of a statement of facts.

The state’s motion for rehearing is granted, the judgment of reversal set aside, and the judgment of the trial court affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has b,een eAmined by the judges of the Court of Criminal Appeals- and approved by the court.

On Appellant’s Motion for Rehearing.

LATTIMORE, J.

In his motion appellant' Insists that two of his bills of exception present matters which could be considered by this court even without a statement of facts. The bills in question have been examined. Bill of exception No. 4 complains that the state’s attorney erred in telling the jury that, when a codefendant of appellant told the prosecuting witness that he did his fighting in the courtroom, he meant the fight that is before the jury now. It will appear obvious that, unless in some way we knew what said codefend-ant had stated to the prosecuting witness, and could get some light upon the propriety of said argument, it would be impossible for us to appraise same. The same principle is involved in bill of exception No. 5. This court cannot say that the state’s attorney was in error in telling the jury that the only question for them to decide was whether appellant stole a planter or the prosecuting .witness stole same. The above is the only contention made in the motion, which is overruled. •


author: LATTIMORE, J. HAWKINS, J.

text:
    DUNN et al. v. STATE.
    No. 15136.
    Court of Criminal Appeals of Texas.
    March 30, 1932.
    Rehearing Denied Oct. 12, 1932.
    Haag & Stubbeman, of Midland, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

This is an appeal from a final judgment upon forfeiture of a bail bond.

Mr. Dunn was indicted in Midland county, Tex., for permitting property under his control to be used as a place for gaming; a felony. He made an appearance bond with Hanks and Currie as sureties. On November 25, 1930, the case being called for trial and Dunn failing to appear, his bond was forfeited and a proper judgment nisi was rendered against him and said sureties. In said judgment, among other things, was the following recital :

“And it is ordered; adjudged and decreed by the court that the State of Texas do have and recover' of and from the said C. J. Dunn as principal, the sum of One Thousand and no/ 100 Dollars; and in like manner that the State of Texas do have and recover of and from the said O. E. Hanks and R. J. Currie as sureties, the sum of One Thousand and no/100 Dollars each, and that this judgment will be made final unless good cause be shown at the next term of this court why said defendant did not appear.”

Citations were issued and served on said sureties, who filed what is called defendants’ original answer, which upon examination shows to be merely a request that the court “Give them the rest of the term in which to bring in the principal.” It is also stated therein that said sureties were under the impression tnat Dunn had made another bond, and that hence they were released.

The district court of Midland county holds two terms each year, beginning on the first Mondays in February and September, respectively, and continuing three weeks. The answer above referred to was filed February 2, 1931, but if called to the attention of the court, or action taken thereon, this is not shown. At the September term 1931, of said court, and on October 3d, the judge entered a nunc pro tunc final judgment in said cause as of date February 19, 1931, the recitals of which followed those of the judgment nisi above set out, and further set forth that on said February 19, 1931, said final judgment was rendered, but that same was not then entered upon the minutes, and that same were now entered as of said date.

By proper writ, of error and supersedeas bond, said sureties bring the case to this court upon three propositions, viz.: First, there is a fatal variance between the bond and the judgments nisi and final, in that the bond of the parties bound them for $1,000 “Jointly and severally,” whereas the judgments were rendered against the principal in the sum of $1,000, and against the sureties for $1,000 each. Second, that no valid nunc pro tunc judgments were entered, because no notice was given these sureties of any such intention prior to such entry. Third, the indictment having be.en quashed, the judgment final upon the bond forfeiture was void and of no effect.

Our statutes are unusually plain in telling what should be done in bond forfeiture cases. Article 425, O. O. P. states: “Judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, the amount of money in which they are respectively bound.” Article 427, Id., regarding citation to the sureties, states: “It shall state * * * the amount for which it [the judgment] was taken against each party thereto.” Article 437, Id. recites “Judgment shall be made final against him and his sureties for the amount in which they are respectively bound. * * * Separate executions shall issue against each party for the amount adjudged against him.” Article 435, Id., recites: “The judgment * * * shall not be set aside because of any defect of form; but such defect of form may, at any time, be amended under the direction of the court.”

The books are full of cases on the point involved. In Kiser v. State, 13 Tex. App. 201, Judge Willson said: “The judgment nisi was rendered against the defendants severally for the amount of the bond. In this we think there was no error. They were severally bound under the law, and the law requires that the judgment should be thus rendered against them. (Code Crim. Proc., Arts. 306 and 441.) The final judgment is against them jointly and severally. This is a variance from the judgment nisi, and is not strictly correct ; but, in our opinion, it is immaterial, and not sufficient to vitiate the judgment.”

Practically the same thing is said in Fulton et al. v. State, 14 Tex. App. 34. In Mathena v. State, 15 Tex. App. 461, Judge White writes forcibly, and says: “Now, however, they cannot sever the amount of the obligation, and all must unite in making themselves liable for the full sum for which the principal is bound; and in our opinion they are each bound for that amount, both jointly and severally. They are jointly bound by virtue of the undertaking, but are severally bound because the law fixes their status as that of several, and not joint, obligors.”

The court in its opinion further states that this does not mean that such amount is in any event collectable from each, but that payment by any one of said parties is full and complete settlement and satisfaction for all as far as the state is concerned. This is a correct announcement. In Allee v. State, 28 Tex. App. 531, 13 S. W. 991, this court said: “There is no material variance between the judgment nisi and the citation. The liability of sureties upon a bail-bond or recognizance is several as well as joint, and it is immaterial whether it be stated in the judgment nisi or the citation to be joint or several, or joint and several. Code Crim. Proc. arts. 290, 306; Mathena v. State, 15 Tex. App. 460.”

In Avant v. State, 33 Tex. Cr. R. 312, 26 S. W. 411, Judge Davidson said: “The judgment nisi was entered against the parties severally, and this is assigned as error. There is no merit in the position.”

In Thompson v. State, 34 Tex. Cr. R. 135, 29 S. W. 789, Judge Henderson said: “The judgment nisi was entered against the principal and the sureties for the sum of $500 each. This is complained of by appellants, and in support of their contention they cite Ishmael v. State, 41 Tex. 245. This case, and all others holding the same doctrine, have been overruled. See Kiser v. State, 13 Tex. App. 201.”

, See Trail v. State, 56 Tex. Cr. R. 73, 118 S. W. 714, opinion by Judge Brooks, holding likewise. In General Bonding & Casualty Ins. Co. v. State, 73 Tex. Cr. R. 656, 165 S. W. 615, 618, the judgment nisi sets but as follows: “That the state of Texas do have and recover of and from Henry Jackson, as principal, the sum of fifteen hundred dollars; and in like manner that the State of Texas do have and recover of and from the said General Bonding & Casualty Insurance Co., as sureties, the sum of fifteen hundred dollars each.” This was held correct. Judge Davidson dissented in this case, but upon other grounds. In Stall-ings v. State, 77 Tex. Cr. R. 23, 177 S. W. 132, there is fully set out a bond similar to the one here, in the judgment upon forfeiture of which it is stated that complaint was made “Because it was against the principal for the full amount, and against each of the sureties for the full amount.” This was held a correct recital. Appellants cite on this point two cases: Sanders et al. v. State, 86 Tex. Cr. R. 322, 216 S. W. 870, and Gass et al. v. State, 110 Tex. Cr. R. 238, 8 S.W.(2d) 123. We do not regard the announcement of either upon the point here at issue as sound, and in so far as contrary to what has been so long and so often held otherwise, and to any extent as contrary to what we have here said, same will be overruled. The binding force of an obligation like this bond, resting upon a group jointly and severally, is in nowise affected by a recital in a judgment declaring thereon that it is against each for the full amount. This is what Judge Willson said in the Allee Case, supra.

On the second point advanced by appellants, we find nowhere in the record anything to support their contention that they were not notified of the entry of the nunc pro tunc judgment. No motion for new trial seems to have been made. No testimony appears to have been heard, nor is there any fact statement or agreement made by which we may be able to sée that they are justified in this contention. We accord correctness to the official acts of public officers until same are in some tangible way shown to be wrong. The record being silent upon the question oí notice, we must presume that whatever notice was requisite was given. See § 366, Yol. 15, E. O. L.

In support of their third contention, appellants cite Bell v. State, 79 Tex. Cr. E. 407, 186 S. W. 328. The ease is not in point. In the case before us the final judgment was entered before the indictment was quashed. Not so in the Bell Case, supra. This would in any event make sufficient difference to keep said case from being in point. We will notice this case further presently. Turpin v. State, 86 Tex. Cr. R, 96, 215 S. W. 455; Harris et al. v. State, 103 Tex. Cr. R. 61, 279 S. W. 817; Harrell, alias Pryor, v. State, 22 Tex. App. 692, 3 S. W. 479, and Brown et al. v. State, 6 Tex. App. 188, are also cited by appellants. In different ways, but similar substance, thesé cases rest upon the principle announced in Brown et al. v. State, supra, in which this court said: “Sureties in a bail-bond or recognizance cannot inquire into the sufficiency of an indictment. But unless there was, in fact, an indictment returned into court, the State had no right, in the first place, to require a bond.”

In Harrell’s Case, supra, there was no indictment, for the grand jury was composed of more than twelve men. In the Turpin and Harris Cases, supra, the bond given not only failed to show that the offense charged against the principal was a felony, but affirmatively showed such principal' to be charged by complaint filed in the district court. None of the cases cited uphold appellants. Eevert-ing to the Bell Case, supra, in order that we may be understood and that there may be no conclusion reached that said case goes beyond, or is out of line with, the uniform holdings of this court to the effect that a mere defect in an indictment affords no defense against a forfeited bond, attention is called to the fact that the point in the Bell Case was, like the others herein cited, that the indictment showed on its face to have been returned by a grand jury of a county other than the one in which.in fact it was returned, and that hence such purported indictment was a nullity.

While it is true that the Legislature, in article 436, C. C. P., lays down four causes which will exonerate the accused and his -sureties from liability upon a forfeited bond, and said article states that these causes, “And no other,” will so release them, still this court ■has in so many cases held that when the so-called indictment was not such in law because of some fundamental failure, from which there flowed as a necessary sequence lack of authority to require any bond at all, that in such cases and upon proper showing of such facts,' this court would hold that the parties on such bond, having never been lawfully bound, could-not be held to pay same, and we find ourselves constrained to adhere to the doctrine of these cases. It is not necessary to be here stated, but we observe that the indictment in the case before us is in the exact form as the indictment in Fridge v. State, 90 Tex. Cr. R. 75, 233 S. W. 979, which was upheld by this court.

Being unable to agree with any of the contentions made by the appellants, the judgment will be affirmed.

On Motion for Eehearing.

HAWKINS, J.

Appellants move for a rehearing, insisting only that we did not properly dispose of their point made that they were not notified of the state’s motion to enter judgment nunc pro tunc, prior to such entry. We probably should have discussed this matter at more length, and now do so in the light of appellant’s motion and the authorities cited. We were in error in our original opinion in saying that Midland county has only two terms of district court each year, but this mistake does not affect the disposition of the case.

We first again call attention to the fact that neither by motion for new trial, nor by suit to vacate or set aside the judgment as entered nunc pro tunc, was there any direct attack on said judgment; nor does this record contain any showing by affidavit or otherwise that appellants and their attorneys were not present in court with full knowledge and consenting to such judgment entry, all of which, in the absence of some showing to the contrary, is presumed to be true. £>ecs. 356-375, E. O. L., Vol. 15.

We have carefully examined all of the authorities cited in appellant’s motion, and do not think them to support the contention here made. Conceding that rules of civil statutes and procedure govern, we note that article 2228, Kev. Civ. Stat., cited and relied upon by appellants, relates solely to amendments and changes in judgments theretofore entered, and the same is true of authorities cited by him. There seems to be a fundamental difference between the character of procedure in the instant case, and that referred to in said statute and the authorities cited. In the ease before us we have a judgment which was for the first time entered of record on October 3, 1931, and no complaint being even now made of its absolute correctness in form and substance. There is neither pretense nor assertion that the judgment then entered is variant from, or in any way not, the judgment actually rendered at a prior term on February 19, 1931. There is not a suggestion in the record before us that had appellants been present, if in fact they were not, they would have had any defense, or that they would or could have had a different judgmént entered had they been fully apprised, or had they been present.

How different in principle the statute relied on and the authorities. In the Hamilton Case (Tex. Civ. App.) 225 S. W. 69, which seems to be the leading ease cited by appellants, an agreed judgment had been entered in accordance with a written agreement on file. The plaintiff in the case had left the state. A year or two later, upon a motion held to be without tootice, the judgment was amended and changed, materially altering the rights of the parties, and this, upon the authority of article 2228, supra, was properly held erroneous. Similar states of facts appear in the other authorities cited, each resting upon an effort to subsequently change without notice a prior judgment which had been entered upon a trial. Berry et al. v. State, 101 Tex. Cr. R. 512, 276 S. W. 295; Wilkes et al. v. State, 100 Tex. Cr. R. 577, 272 S. W. 194. In each of the cases the complaint of erroneous procedure was necessarily based upon the fact that, as a result of the action complained of without notice, an injury had resulted. There is no such claim in the instant situation.

The record before us shows that these appellants were cited in January, 1931, to appear at the February term following, and show cause why judgment final should not be entered against them. At no time thereafter did they answer even denying generally their liability. The only answer made at all was one dated of February 2, 1931, .in which they requested that they be given the remainder of that term of court to bring in their principal, and further stating that “they were under the impression” that he had made a new bond to take the place “of the bond entered into by them.” Appellants make no claim that the court granted their request, and thereby misled them to their harm, but for which they could have set up a defense against the judgment which was actually rendered op February 19, 1931, though not entered of record until a subsequent term of court. By their written request for time to produce their principal we have here then their acknowledgment of the execution of such bond, their evidence of the fact that they had been cited to appear, and knew such fact. They were in court and subject to judgment without further notice from the time of the service of the citation upon them in January until judgment was finally entered, and made no effort .to deny liability, or to set up any defense to the day of the actual entry of the judgment in October, 1931. As far as they or their rights are concerned, if the court had entered judgment against them originally, without. further notice, as of the date same was entered at the October term, they had no cause of complaint, and the judgment would have been, binding.

It is appellants’ further contention that under the provisions of article 2291, Tex, Civ. St. (1925), relating generally to motions and notice thereof, they were entitled to notice -of the state’s motion to have judgment nunc pro tunc entered at a subsequent term of the court, and that the agreement on file is sufficient to show affirmatively that no notice was served on them. The present writer is inclined to think the agreement does show that no notice of the state’s motion for entry of the judgment nunc pro tunc was issued or served on appellants. Waiving for the time the fact that appellants do not, except inferentially, deny actual notice and presence in court, and assuming that they in fact had no notice of the entry of the judgment on October 3d, we have the peculiar situation of parties defendant to a suit who had been duly and regularly cited, who have never denied liability, or filed any answer which could be so construed, coming into a court of equity and asking that they be given relief against a judgment of the court having jurisdiction, without any averment that they had at the time the judgment was rendered or entered any defense, and in the face of a record showing that they had none. Equity will not move to an idle accomplishment, nor set aside a judgment just and right under the record, upon a showing such as is here revealed. Brown et al. v. Clippinger, 113 Tex. 364, 256 S. W. 254.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J. MORROW, P. J.

text:
    KNIGHT et al. v. STATE.
    No. 14776.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1932.
    Appeal Reinstated March 30, 1932.
    Rehearing Withdrawn April 23, 1932.

      A. C. Chrisman, of Cleburne, and Mays & Mays, of Fort Worth, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an appeal from a final Judgment up-, on forfeiture of a bail bond.

There is nothing in the record showing that any briefs were filed in the trial court, or that there was a waiver of such filing. In an appeal from a judgment forfeiting a bail bond, the record will not be reviewed, in the absence of a showing that briefs had been filed in the trial court in accordance with the statutory rules on the subject, or that there was a waiver of such filing. Bratton et al. v. State, 109 Tex. Cr. R. 329, 4 S.W.(2d) 562. The state’s attorney before this court moves that the appeal be dismissed. The motion must be sustained.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion to Reinstate Appeal.

LATTIMORE, J.

The defects in the record which led to our dismissal of this appeal at a former day of this term having been corrected, the appeal will be reinstated and considered upon its merits.

In the case of C. J. Dunn et al. v. State, 53 S.W.(2d) 307, tins day decided, we overruled the authority relied upon by the appellants herein, and held, after a discussion of the cases in point, that a judgment nisi in form and substance similar to the one in the case before us, as well as a final judgment to the same effect, was valid. For the reasons given in that case, we are compelled to hold against appellants herein.

The judgment will be affirmed.

Rehearing Withdrawn.

MORROW, P. J.

This is an appeal from final judgment by sureties on forfeiture of bail bond.

Since the affirmance of the case at a former date, appellants have filed a written request, duly verified, asking that their motion for rehearing be withdrawn. The request is granted, and the motion is withdrawn.


author: HALL, C. J.

text:
    WEST AUDIT CO. v. YOAKUM COUNTY.
    No. 3855.
    Court of Civil Appeals of Texas. Amarillo.
    June 29, 1932.
    Rehearing Denied Oct. 5, 1932.
    Lockhart & Brown, of Lubbock, for appellant.
    Bean & Klett, of Lubbock, for appellee.
   HALL, C. J.

This is the second appeal of this case. 35 S.W.(2d) 404, 408.

November 8, 1926, the West Audit Company entered into a written contract with Yoakum county, acting through its commissioners’ court, which provided that the audit company should audit the records of the various officers of said county covering the years 1907 to 1926 and should make a com-píete and detailed statement of the result of such audit. ' Before the plaintiff’s work had been completed, the courthouse of Yoakum county was destroyed by fire, together with all the records of the county and the work sheets and data used by the plaintiff in the performance of the contract.

Upon the former appeal, the Commission of Appeals said that neither the trial court nor this court made any findings upon the issue of implied contract as raised by the evidence and the pleadings or upon what was the reasonable value of the services rendered by the West Audit Company to the county or whether or not the county was benefited by the work so rendered, and “in view of this fact, we think justice would be best sub-served in holding that this case should be reversed and the cause remanded for another trial.”

Upon the second trial the court submitted only two issues, the first being as follows: “Do you find from a preponderance of the evidence that Yoakum County was benefited by the work rendered by the plaintiff in auditing the books and records to the extent they did audit same?"

This was answered in the negative. The second issue inquired as to the reasonable value of the services rendered 'by the West Audit Company and, of course, was not answered. Based upon this verdict, the court rendered judgment that the plaintiff take nothing by its suit.

For a more complete statement of the case, we refer to the former report in (Com. App.) 35 S.W.(2d) 404.

The substance of appellant’s contentions upon this appeal is that, because it had been employed by the county and had partially completed the work at the time of the fire, which destroyed the county records without the fault of either party, and because the results of the partial audit, showing no material discrepancies, had been communicated to the county officials from time to time, there arose an implied contract to pay appellant reasonable compensation for the work done and that without regard to whether the county received any substantial benefit; further, that because of these facts it was at least entitled to a judgment for nominal damages. It is contended in this connection that the court erred in submitting the issue as to the receipt of benefits and should have submitted only the issue of the value of appellant’s services.

The destruction of the subject-matter of the contract by fire was referred to by the Commission of Appeals in its opinion, but the effect thereof, if any, upon the rights of the parties, was not discussed. The quantum meruit feature of the case was not considered upon the first trial, nor was it discussed by this court on appeal, but the Commission of Appeals reversed the judgment and remanded the case for trial upon that theory, saying: “The able and learned trial judge and the eminent associate justice who wrote the opinion for the Court of Civil Appeals made no findings upon the issue of implied contract, as raised by the evidence and the pleadings in this case, or what was the reasonable value of the services rendered by the West Audit Company to Yoakum county, or whether or not the county was benefited by the work so rendered, and this phase of the case does not appear to have been passed upon in reaching the conclusions stated by the two courts. In view of this fact, we think justice would be best subserved in holding that this case should be reversed and the cause remanded for another trial.”

The court further said: “It is further shown by the evidence that in pursuance of the agreement with West Audit Company, several men went to work upon the audit, and that they worked many days. That during the time they were at work they had several conversations with the members of the commissioners’ court of that county and no one protested or objected to the audit being made. That from time to time the officers discussed with the men at work on the audit the condition of the books as they found them. That the condition of the affairs of the various officers, as reflected from the books, was communicated to the members of the commissioners’ court, and they received the benefit of their labor in that respect for Yoakum county. The evidence tends to show that this was of benefit to the county and was received by the officers representing the county.”

As emphasizing the view of the Commission with reference to the materiality of benefits, the .opinion quotes from Page on Contracts, as follows: “The amount which can be recovered by one who has performed in part under a contract which is discharged by impossibility, is generally limited to the value of the property which actually passed to the adversary party by reason of such performance, or to the value of the services of Which the adversary party actually had the benefit.”

We must assume, from the fact that the Commission of Appeals stressed the issue of benefit and ignored the destruction of the subject-matter of the contract as an element affecting the rights of the parties, that the question of benefits was considered the crux of the case. The evidence at the last trial was conflicting upon this issue. The issue of whether the county had accepted the partial audit was not submitted, and was therefore either waived or must be presumed to have been found by the court in support of the judgment. Since the Commission of Appeals has clearly grounded the right of appellant to recover upon the question whether its efforts were beneficial to the county, and because the jury has found upon conflicting testimony that no - benefit was received, we hold that the court did not err in submitting that issue, and the judgment is affirmed.

On Motion for Rehearing.

By additional citation of authorities and argument, the appellant contends that this court erred in not reversing the judgment because the trial court permitted W. H. Hague, county and district clerk, and P. M. Williams, county commissioner when the contract was made with appellant, to testify over appellant’s objection that they had never seen or observed any of the work done by appellant that was of any benefit to the county.

It is conceded that the West Audit Company made no written reports to the county, and Hague testified that while the audit was in progress no one of the auditors suggested any changes that should be made in his record; that he never heard any of them tell the commissioners’ court about anything they had found in the records or anything about the actual condition of the records of the county. He states he asked one of them how they were coming on with the records, or how they found them, and that they just said they were coming along all right. This question was then asked: “Have you ever as District and County Clerk from that day to this observed or seen anything of the work done by this company that has been of any benefit to this county that you know of?”

The appellant objected because the question called for a conclusion and an opinion of the witness. The objection was overruled, and the witness answered that he could not recall anything. The testimony seems to be negative in its character, and, since he had seen no written report and had heard no verbal report, he could not have truthfully answered it otherwise. It was not a conclusion or an opinion, but was the plain statement of a fact, and the only objection which could have been properly urged was as to its weight rather than to its admissibility. No error is shown by the ruling of the court.

Commissioner Williams testified that he had not personally talked with any of the auditors before they commenced work; that he was in and out of the courthouse very little prior to the time the contract was made with appellant; that he had not been furnished with any information, directly or indirectly, as to anything the audit company had found in the records; that he did not remember that the audit company made any report to the commissioners on December 13th as to what they had found in the records, and, after the courthouse burned, none of the auditors undertook to tell the commissioners what they had found in the record or to make a report of their audit. He was then asked this question: “Do you know of your own information that ha's come to you in any way of any act or thing that was done by the West Audit Company or by any of them or any information furnished to any officers of this county that was of any benefit to Yoakum County?”

The same objection which had been urged to the testimony of Hague was interposed and overruled by the court. What we have just said with reference to the testimony of Hague also disposes of the contention with reference to Williams.

We have reviewed the record and the opinion in the light of the motion and argument for rehearing, and, being convinced that a proper judgment has been rendered, the motion is overruled.


author: BARCUS, J.

text:
    CONNALLY v. CITY OF WACO.
    No. 1271.
    Court of Civil Appeals of Texas. Waco.
    Sept. 22, 1932.
    Rehearing Denied Oct. 20, 1932.
    Jos. W. Hale and Ed Burleson, both of Waco, for appellant.
    John McGlasson and Geo. Morrow, both of Waco, for appellee.
   BARCUS, J.

Appellant instituted this suit against ap-pellee to recover damages occasioned by the death of her husband. She alleged that he was hilled in a collision 'between an automobile driven by him and a fire truck driven ■by one of the firemen of the city of Waco while said fire truck was on its way to put out a grass fire; that the fire truck was going west on Colcord and her husband was driving north on Twenty-Fifth street; that there was a boulevard stop sign where Col-cord street intersected Twenty-Fifth street, but there was no boulevard stop sign on Twenty-Fifth street-where it intersected Col-cord street. She alleged that her husband was driving at a careful, ordinary rate of speed, and that the collision was not caused by any act of negligence on his part. She alleged that the fireman driving the fire truck was guilty of gross negligence in a number of respects, naming them; that the fire chief in charge of the firemen in the city of Waco was guilty of gross negligence, in that he had instructed all firemen in going to fires to drive as fast as they could. She alleged that there was growing on private property adjacent to Twenty-Fifth and Colcord streets a hedge which prevented her husband from seeing the firemen or the firemen from seeing her husband as they approached the intersection of said streets. She did not allege that the city had any control over the property on which the hedge was growing. She alleged that the city of Waco and its officers and employees were guilty of acts of gross negligence in instructing and directing the firemen in charge of the fire trucks to drive at a high rate of speed when going to fires and in boulevarding Colcord street where it intersected Twenty-Fifth street and failing to boulevard Twenty-Fifth street where it intersected Colcord, and in failing to require the owner of the property on which the hedge was growing to remove same, and in permitting the firemen in charge of the truck to drive at such a high, dangerous, and reckless-rate of speed.

The trial court sustained a -general demurrer to appellant’s petition, and, she declining to amend, the court dismissed the suit. The sole question therefore for determination is whether in any event the city of Waco is liable for damages which was occasioned by the collision between the fire truck while being driven b-y one of its firemen going to the fire and the car driven by Mr. Oonnally. Regardless of the holding of the courts in some other jurisdictions, the courts in this state have uniformly held that a municipality, in the maintenance of its fire-department, is acting strictly within its governmental function for the general public welfare, and is not liable for the acts of its employees. Barnes v. City of Waco (Tex. Civ. App.) 262 S. W. 1081 (error refused); Adkin-son v. City of Port Arthur (Tex. Civ. App.) 293 8. W. 191 (error refused); Hooper v. City of Childress (Tex. Civ. App.) 34 S.W.(2d) 907. Nothing can be added to what is said by our courts in the authorities cited.

Since appellant' alleges that the injury which caused her husband’s death was occasioned by a collision between his car and a fire truck operated by one of the firemen of appellee while the fireman was going to a fire, appellee is not liable for the injury occasioned thereby, and the trial court properly sustained a general demurrer to her petition.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant in her motion for rehearing insists that this court, in affirming the case at bar, is in direct conflict with the holding of the Court of Civil Appeals at Dallas in the case of Pearce v. Hallum, 30 S.W.(2d) 399, in which cáse the Supreme Court refused a writ of error. We were not unmindful of that case at the time we wrote the original opinion. If Judge Looney, who wrote the opinion in the Pearce v. Hallum Case, intended to hold that a municipal corporation is liable for the death of a person caused by its servants, agents, or employees while engaged in strictly governmental functions, then we are of the opinion that said holding is in direct conflict with the case of Barnes v. City of Waco, 262 S. W. 1081 (error refused) by this court, and Adkinson v. City of Port Arthur (Tex. Civ. App.) 293 S. W. 191 (error refused) by the court at Beaumont, and Hooper v. City of Childress (Tex. Civ. App.) 34 S.W.(2d) 907, by the court at Amarillo. Judge Looney in the Pearce v. Hallum Case did not refer to the provisions of article 4672 which specifically states that article 4671 does not apply unless the deceased, if he had lived, would have had a cause of action which he could have maintained for the injury. When articles 4671 and 4672 of the Revised Statutes áre construed together, we think it was the clear intention of the Legislature not to make municipal corporations liable for the acts of its employees when engaged in strictly governmental -functions. Said articles were readopted in 1925 after the opinion was rendered in the case of Barnes v. City of Waco, supra, .and, under the well-recognized rule of construction, the Legislature must have intended said statutes to be construed as they were in said case. Said statutes as re-enacted in 1925 are in practically the same language as they were under the amendment of 1921.

We have carefully examined appéllant’s motion for rehearing, and same is overruled.


author: HIGGINS, J.

text:
    BLAUGRUND v. MOGEL.
    No. 2716.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 29, 1932.
    Potash & Cameron and Leon Kotosky, all of El Paso, for appellant.
    Leo Jaffe and Eryer & Cunningham, all •of El Paso, for appellee.
   HIGGINS, J.

Appellee, Mogel, brought this suit against appellant, Sigmund Blaugrund, upon certain notes executed by the defendant in favor of appellee. Appellant set up a counterclaim for certain linoleum sold and delivered to Mogel •by the Del Norte Furniture Company, under which name Sigmund and his brother, David Blaugrund, were engaged in business. It was alleged David Blaugrund had assigned his interest in the counterclaim to defendant.

Mdgel answered by general denial, and specially pleaded that the notes were executed and the linoleum sold and delivered to him in •consideration of the release of certain premises in Juarez, Mexico, of which he was then tenant, in favor of David Blaugrund.

In response to a special issue, the jury found in Mogel’s favor with respect to the linoleum sale. Judgment was accordingly rendered in Mogel’s favor for the amount of the notes, and recovery upon the counterclaim was .denied.

The evidence discloses the following facts: Appellant and David Blaugrund are brothers, engaged in business in El Paso under the name of Del Norte Furniture Company. Mogel had a lease upon a house in Juarez which the Blaugrunds wished to lease for the benefit of another brother. David Blaugrund, for himself and as the authorized agent of appellant, negotiated with Mogel for the relinquishment of his lease upon the house in Juarez. Mogel did relinquish such lease, and David Blaugrund leased the house from the owner. In consideration of Mogel’s release, appellant executed the notes sued upon by Mogel. About the same time the linoleum in question was delivered to Mogel by the Del Norte Furniture .Company.

Mogel claims the linoleum was a part of the consideration for the reliquishment of his leasehold. Appellant claims that it was not. This is the only contested issue of fact, and was found in Mogel’s favor. The evidence supports such finding.

Appellant presents this appeal upon three propositions which read:

“1: Sigmund Blaugrund, defendant, would not be bound by any agreement made by David Blaugrund, to give away linoleum as a part of the consideration for alease in Juarez, Mexico, since there is no showing that the alleged agent, David Blaugrund, had actual authority from the defendant, Sigmund Blaugrund, to make such an agreement.”
“2: There are no facts or circumstances existing in connection with- the transaction involving the giving of the linoleum by the alleged-agent which would furnish a basis for holding the defendant liable by the application of the doctrine of apparent authority or estoppel.”
“3: Joe Mogel, plaintiff, in dealing with David Blaugrund, the alleged agent of Sigmund Blaugrund, was chargeable with notice of the extent of the alleged agent’s authority and it was plaintiff’s duty to ascertain whether the alleged agent, David Blaugrund, had authority to give away linoleum in connection with the transaction; plaintiff must suffer the consequences of his failure to make proper inquiry. and use due diligence in ascertaining the authority of the alleged agent.”

The evidence presents no issue as to a gift of the linoleum. According to Mogel’s theory, the linoleum was a part of the consideration for the relinquishment of his lease upon the house in Juarsz. Appellant’s theory is that the sale of the linoleum was.an independent transaction and Mogel was to pay the price charged therefor in thirty or sixty days. Both theories show a sale and not a gift.

Nor is there any issue as to David Blaugrund’s authority. Appellant admits David was authorized to negotiate with ap-pellee for the relinquishment of the lease. As such agent, David Blaugrund had implied authority to agree upon the price to be paid and the manner of payment.

As a partner in the Del Norte Furniture Company, he was the general agent of the firm in all matters within the scope of the partnership business. He was authorized to sell the linoleum for such price and upon such terms as to manner of payment as he saw fit. If in any way he exceeded his actual authority, that, is a matter between the two partners.

The appeal must fail for this further reason: The cross-action is upon contract to recover the purchase price of goods sold and delivered. The finding upon the disputed issue of fact negatives any express promise to pay the amount sued for. No implied promise to pay such amount can be inferred, because the same finding shows that the linoleum was not delivered to and accepted by Mogel under such circumstances as would imply a promise upon his part to pay the sum sued for.

Affirmed.


text:
    ESTELLE UNDERTAKING CO. v. GRAND LODGE COLORED KNIGHTS OF PYTHIAS OF TEXAS.
    No. 1267.
    Court of Civil Appeals of Texas. Waco.
    Sept. 15, 1932.
    Rehearing Denied Oct. 20, 1932.
    R. D. Evans, of Waco, for appellant.
    Allan McDonnell, of Waco, for appellee.
   BARCUS, J.

This suit originated in the justice court. On appeal to the county court same was tried to the court without a jury. The material facts are uncontroverted. Appellee issued a policy of insurance to Palmer Stamps for $500 payable to his five children whp were named as beneficiaries. Palmer Stamps died February 10,1930. On February 11, 1930, the children named as beneficiaries in said insurance policy in writing assigned and transferred to appellant $192.50 of the amount due them therein from appellee, which assignment was promptly filed with appellee, and the named beneficiaries directed appellee to pay said amount to appellant. Appellee refused to pay the $192.50 to appellant, but instead thereof on March 3, 1930, paid the entire $500 due under the policy to the five named beneficiaries, giving each of them $100. Appellant instituted this suit against appel-lee to recover said $192.50. The trial court entered judgment denying appellant any recovery.

Appellee is a fraternal benefit society and the policy of insurance provides that all of the by-laws of the organization shall be a part of said policy. Section 2, article 11, of the by-laws of appellee, provides: “That no subordinate lodge nor any member thereof nor the beneficiary of any member, shall make, execute and deliver any power of attorney directing proceeds, or any portion thereof, of any policy of insurance to be paid to any person, firm or corporation.”

The trial court held that, under and by virtue of said by-laws, the assignment made by the beneficiaries named in the policy to appellant was absolutely void and had no binding force or effect upon appellee. The sole question involved in this appeal is, whether the named beneficiaries in the policy had the right or power to assign a portion of the amount due them thereon after the death of Palmer Stamps prior to the time same was paid to them by the insurance company. If the above-quoted portion of the by-laws is an absolute prohibition against the beneficiaries transferring or assigning any part of the money due them under said policy of insurance, and, if so, if same is a valid and legal prohibition, then the judgment of the trial court should be affirmed ; otherwise it should be reversed and rendered.

The law is well settled that, upon the death of the insured, the named beneficiaries have a vested interest in the policy. 45 O. J. 165, and authorities there cited. It is also well settled that, after the death of the insured, the named beneficiaries may assign their interest. 45 0. J. 68; American Ins. Union v. Allen (Tex. Civ. App.) 192 S. W. 1087. The question, therefore, is, whether the quoted portion of the by-laws prohibits the named beneficiaries under said well-settled principles of law from assigning their interest in said policy after the death of the insured. If appellee’s construction of the quoted by-laws is correct, then we think same is void and has no binding force or effect because it violates sections 19 and 16 of article 1 of the state Constitution, and section 10, article 1 of the Constitution of the United States in that it deprived the named beneficiaries of their property without due process of law by preventing them from disposing of or selling their vested interest in said matured insurance policy. 9 Tex. Jur. 520 and 541. The law in this state is well settled both by statute and the opinions of our courts that a nonnegotiable instrument may be transferred or assigned. Revised Statutes, article 569; 6 Tex. Jur. 679; 5 Tex. Jur. 22; Sands v. Curfman (Tex. Civ. App.) 177 S. W. 161; Carter v. Eames, 44 Tex. 544. One of the cardinal principles of our law as contained in our state and Federal Constitutions is that parties have the right to make any ánd all kinds of contracts for lawful purposes relative to their property, and no legislative body or fraternal order can pass a law that will prevent parties from selling or disposing of their property. Parties have a right to contract with relation to their property as they see fit, provided said contracts are not illegal or do not contravene public policy. 10 Tex. Jur. 16; St. Louis, Southwestern Ry. Co. of Texas v. Griffin, 106 Tex. 477, 171 S. W. 703, L. R. A. 1917B, 1108; St. Louis, B. & M. Ry. Co. v. Booker (Tex. Civ. App.) 5 S.W.(2d) 856 (error refused); Curlee v. Walker, 112 Tex. 40, 244 S. W. 497.

We recognize the rule that a spendthrift trust estate can be created and a fund be placed in the hands of a designated trustee to be used, controlled, and spent as provided by the creator of the spendthrift trust estate. In our opinion, however, the quoted by-law does not create such an estate.

We think the title and fee-simple ownership to the money due under the policy became vested in the named beneficiaries immediately upon the death of the insured, and, if this be true, then any provision contained in the insurance policy which undertook to limit the power of the named beneficiaries to assign any portion of said funds after the title became vested in them, was illegal and unenforceable. Bouldin v. Miller, 87 Tex. 359, 28 S. W. 940; Diamond v. Rotan, 58 Tex. Civ. App. 263, 124 S. W. 196; Laval v. Staffel, 64 Tex. 371. Although the policy by virtue of the quoted by-law was payable alone and only to said named beneficiaries, it did not, under the authorities herein cited, prevent them from assigning any portion thereof to appellant after it had matured. Since the transfer and assignment of the $192.50 to appellant was in writing, properly signed and acknowledged by the named beneficiaries, and gave appellant a power of attorney to collect said sum from appellee and authorized appellee to charge same against them, the named beneficiaries, or deduct same from th'e amount to be paid them under said policy, and since said assignment was filed with appellee and it had actual knowledge thereof at the time it paid the money to the named beneficiaries, said payment to the beneficiaries did not discharge appellee from its duty and obligation to pay appellant said $192.50.

The facts being without dispute and having been fully developed, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant against ap-pellee for $192.50, with interest from. March 3, 1930, the date the company paid said money to the named beneficiaries, at the rate of 6 per cent, per annum, together with all costs of this and the trial courts.


text:
    OAKWOOD STATE BANK v. WORNELL et al.
    No. 1265.
    Court of Civil Appeals of Texas. Waco.
    Sept. 29, 1932.
    Seale & Seale, of Centerville, for appellant.
    P. O. French, of Fairfield, for appellees.
   BARCUS, J.

This suit was instituted by appellant in the justice court against E. L. Wornell for approximately $114, the balance due by him on a note which was originally for $130, and for a foreclosure of a mortgage lien on certain personal property. Appellant sought judgment against W. A. Keils for $34.35, the value of one hale of the mortgaged cotton which it alleged Keils had converted, and sought judgment against L. G. Yarborough for $54.-45, the value of Worrell’s interest in two bales of the mortgaged cotton which it alleged Yarborough had converted. On appeal to the county court, Keils was dismissed from the suit. There was no controversy about the amount Wornell owed on the note, and judgment was rendered for appellant against him for said unpaid balance, together with a foreclosure of the mortgage lien on all the mortgaged property, except the. three bales of cotton purchased by Yarborough and Keils, and judgment, was rendered denying appellant any recovery against L. G. Yarborough.

Appellant’s only assignments of error relate to the action of the trial court in refusing to render judgment in its favor against Yarborough and his bondsmen for the sum of $54.45,' the alleged value of Women’s interest in the two bales of cotton which appellant ■claims was covered by its mortgage and which, it claims Yárborough converted.

This court only has jurisdiction on appeals from the county court where the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs. The only amount in controversy on this appeal is the $54.45. This being true, this court has no jurisdiction, and the cause is dismissed. Brown v. Cates, 99 Tex. 133, 87 S. W. 1149; Harrison v. Ward (Tex. Civ. App.) 34 S.W.(2d) 891.


author: McClendon, j.

text:
    GUTHRIE v. SPECK.
    No. 7848.
    Court of Civil Appeals of Texas. Austin.
    July 14, 1932.
    Rehearing Denied Oct. 5, 1932.

      Wheeler & Fraser and Dan Moody, all of Austin, and Fellbaum & Fellbaum, of San Antonio, for appellant.
   McClendon, j.

Appeal from an interlocutory order granting a temporary injunction in an action to enjoin a proceeding to take a deposition to perpetuate testimony under R. S. art. 3742. The record contains a motion to dissolve ; but as no action was had thereon and the appeal is from the interlocutory order, this motion cannot be considered. Young v. Dudney (Tex., Civ. App.) 140 S. W. 802 (error denied).

The application to take the deposition was not verified. Its recitative portions read: “Now comes George Guthrie, a resident of Bexar County, Texas, and represents that he anticipates the institution of a suit in which he may be interested and desires to perpetuate the testimony of T. J. Jacoby, a witness who resides in the County of Schleicher, State of Texas, to be used in such suit; that such suit could be instituted in the above named court; that Fred Speck of Menard County, Texas, is, and is supposed by him to be interested adversely to him.”

The statutory provisions regarding process and notice were observed, from which it appears that the deposition was to be oral, and not on written interrogatories.

Speck and Jacoby brought this suit to enjoin the proceeding; the material averments of their petition, which was verified, reading:

“Your petitioner avers that Fred Speck has two suits in the district court of Bexar County, Texas, wherein George Guthrie is a party, and that Fred Speck does not live in Schlei-cher county, and never made any obligation to pay anything in Schleicher County, and the only transactions that could possibly be pending between the said George Guthrie and Fred Speck are now pending in the said two' suits in the district court of Bexar County, Texas.
' “That the said George Guthrie and companies that he represents, have sued T. J. Jaco-by in the district court of Bexar County, Texas, and your petitioner believes that said attempt to take the deposition of T. J. Jacoby is but a fishing scheme to find out what the said Jacoby knows concerning either his own, or said Fred Speck suits pending in the Bex-ar County courts.”

Temporary injunction was granted upon this petition, enjoining the proceeding pending hearing on its merits.

The substance of appellant’s contention is: Since the petition for injunction showed on its - face that appellant was attempting to avail himself of a right expressly given by statute, the injunction should not have been granted, in the absence of positive averments founded on appellee’s own knowledge that the proceedings were illegal and not in accordance with law. It was further contended that no irreparable injury was alleged, and there was therefore no ground for injunctive relief.

The case has' not been briefed for appellee.

We have reached the following conclusions which require affirmance of the trial court’s order:

1. The statute contemplates that the 'application to perpetuate testimony show upon its face the general nature of the anticipated suit and the general character of the testimony sought to be perpetuated.

2. The petition for injunction negatived any right on appellant’s part to perpetuate Jacoby’s testimony, and was sufficient to put in issue the bona tides of the proceeding, and to require Guthrie to make a showing of his rights in the premises.

3. The temporary injunction was the only possible means of preserving the status quo pendente lite; and therefore the injunc-tive relief granted was proper.

The pertinent portions of article 3742 read: “When any person may anticipate the institution of a su.it in which he may be interested, and may desire to perpetuate the testimony of a witness to be used in such suit, he, his agent or attorney, may file a written statement in the proper court of the county where such suit could be instituted, representing the fact and the names and residences, if known, of the persons supposed to be interested adversely to said person.”

This article was first enacted in 1848 as section 18 (page 111, Gen. Laws 2nd Leg.) of an act regulating district court proceedings. It was amended in 1874 (chapter 82, p. 103), and has been carried forward into the several codifications. The original act provided that the proceeding be filed “in the court of the county where such suit could be instituted.” This language was changed in the 1874 act to read, “in the District Court, etc.”; and in the 1925 codification to read, “in the proper court of the county where such suit could be instituted.” In all other respects ■the wording of the original act has been continued in subsequent enactments and codifications, with this exception: In the 1925 codification, the application was required to represent “the fact,” whereas in all .previous enactments it was required to represent “the facts.” We attach no significance to this change from plural to singular.

The purpose of this requirement was, we think, to inform the adverse party of the general nature of the anticipated suit in order that he might (1) inform himself as to the necessity or propriety of preserving the testimony; and (2) be in position intelligently to cross-examine the witnesses.

At the time this statute was originally enacted, analogous proceedings of early origin existed both in the civil law and in English jurisprudence. To quote from Sullivan v. Dimmitt, 34 Tex. 123: “The right to take the examination of witnesses before an officer authorized for that purpose, with the view of perpetuating their testimony, was fully recognized and established by the civil law many centuries ago (Domat, Civ. L., 2036); and is still recognized in the English Chancery courts as a practice admissible, and indeed, under certain circumstances, absolutely necessary for the protection and maintenance of the rights of parties. This practice is adopted in nearly, if not quite, every State in the Union (Story’s Eq. Juris., 1505), including the State of Texas (Pas. Dig., 3734), and is and was the law of Mexico at the time of taking the testimony in 1835. The court therefore erred in excluding the testimony of the three witnesses, whose examination was had before the judge of the first instance, in the city of San Antonio.”

The English proceeding was by bill in equity to take depositions in perpetuam rei memoriam. See 18 G. J., p. 609, § 8; 8 R. O. L„ p. 1132, § 3; case note 25 L. R. A. (N. S'.) page 673 et seq. Under the equity practice, the adverse party must be given notice, and thereafter had a specified time within which “to show cause against proceeding to take the depositions, and if sufficient cause is shown against it, the complainant is not allowed to proceed.” Hall v. Stout, 4 Del. Oh. 269. The general requirements of the bill are thus summarized in Booker v. Booker, 20 Ga. 777: “The bill should state every matter which is necessary to entitle the complainants to this remedy, to-wit: their interest; the reason why suit cannot be instituted; the subject matter of the controversy, and the proof they propose to make; the interest or the duty of the defendants to contest the right or title; the ground of necessity for perpetuating the evidence.”

Furthermore: “The application must be made in good faith. The granting of an order for the perpetuation of testimony is improper where it is sought soláty to enable plaintiff to frame the complaint, or to perpetuate testimony as to trivial matters.” 18 C. J., p. 609, sec. 9.

The bill, though amendable, could not be converted into a bill of discovery. Ellice v. Roupell, 32 Beav. 308.

The purpose of our statute was, we think, to substitute a simple legal procedure for the bill in equity, which in. many respects may be regarded as cumbersome and technical; and while many of the requirements of the bill have been eliminated in the statute, we think the requirement that the application should represent the facts was intended to cover the requirement of the bill that it set forth “the subject-matter of the controversy,” at least in general terms, so as to acquaint the adverse party of the nature of the anticipated suit. See Staytou’s Texas Forms (2d Ed.) p. 486.

The application here involved gives no intimation whatever regarding the nature or subject-matter of the anticipated suit. Moreover, the notice was to take the oral deposition of the witness with no suggestion as to the character of questions that would he propounded to him, nor the nature of the evidence sought to he elicited.

The adverse party has the right, we think, to be informed as to the nature of the anticipated suit, in order that he may determine whether there is legal ground to perpetuate the testimony, whether the application is in good faith, and whether the proceeding is merely a “fishing expedition.” This information is essential also in order that he may be prepared to properly cross-examine the witness.

It would be unreasonable, we think, to give the statute a construction that would deprive the adverse party of these valuable and essential rights.

But even if it be conceded that a defect in the application in this regard would not render the proceeding void, it is clear, we think, that the adverse party has the right, before the deposition is taken, to bring in question the good faith of the proceeding, and to require a showing on the applicant’s part as to the nature and subject-matter of the anticipated suit.

The injunction petition clearly and unequivocally put these matters in issue. It, averred that “the only transactions that could possibly be pending between the said George Guthrie and Fred Speck are now pending in said two suits in the District Courts of Bex-ar County, Texas.” This positive verified allegation, if true, negatived the right to perpetuate testimony.

Following this is the further allegation that “petitioner believes that said attempt to take the deposition of T. J. Jacoby is but a fishing scheme to find out what the said Jacoby knows concerning either his own, or said Fred Speck suits.” This averment put in issue the good faith of the proceeding, as one to perpetuate testimony to be used in an anticipated suit. While appellant’s brief does not so state expressly, we infer the objection to this averment to be that it was not made unequivocally, but as a “belief” of “petitioner.” The general rule is that to obtain a temporary injunction, ex parte and without notice, the supporting allegations must be made unequivocally as existing facts, and not merely upon information and belief. State Banking Board v. Smyth (Tex. Civ. App.) 2 S.W.(2d) 536, and authorities there cited. This particular allegation, however, relates to the purpose of appellant in instituting the proceeding, and could hardly ■be within the positive knowledge of Speck. Following the unequivocal above-quoted averment which negatives the right to institute the proceeding, it may be regarded as a deduction therefrom. In any event it was not. essential to the right of Speck to a temporary injunction pending a hearing on the merits.

We think the petition shows grounds for the temporary injunction. Speck, as we have shown, had the right to have determined, before the deposition was taken, the issues raised in his petition. The only way to preserve that right was to enjoin" taking the deposition until those issues were decided on their merits. Without such injunction the deposition would be taken, the issues raised in the injunction petition would become moot, and Speck’s rights therein would be destroyed. Appellant will be afforded ample opportunity to contest the allegations of the injunction petition in the hearing upon the merits, and whatever may be his rights, as shown therein, will be projected by the final decree.

The order appealed from is affirmed.


author: JACKSON, J.

text:
    JEFFERIES v. SHEPARD.
    No. 3875.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    Rehearing Denied Oct. 19, 1932.

      P. B. Randolph, of Plainview, for appellant.
    Griffin & Sharp, of Plainview, for appellee.
   JACKSON, J.

T. C. Shepard, plaintiff, filed suit in the justice court of precinct Ño. 1, Hale county, Tex., against Earl Jefferies, defendant, on a promissory note for the sum of $98.61, signed “Plains Motor Co., by Earl Jefferies,” and alleged that the defendant signed the note in the corporate name either by mistake or fraud. The plaintiff in the alternative set up an itemized account against the defendant for the same debt.

The defendant in due time filed his plea of privilege, asking that the case be transferred to precinct No. 6 in Smith county, Tex., the precinct and county of his residence.

The plaintiff filed his controverting affidavit, stating that his suit was on a promissory note payable in Plainview, Tex.; that the defendant is liable thereon because of his mistake or fraud in the execution thereof and the note should be reformed and enforced against him; that about the 5th of September, 1929, the defendant was the manager of the Plains Motor Company, a corporation which was insolvent, and on said date purchased from plaintiff certain automobile accessories for himself, on his personal liability, and that such accessories were charged to the personal account of the defendant; that about the 18th of March, 1931, the defendant proposed to give, and the plaintiff agreed to accept, the note of the defendant binding him personally to pay the account; that plaintiff’s bookkeeper called on the defendant,.who executed and delivered a promissory note for the amount of the debt, but executed it “Plains Motor Co., by Earl Jefferies”; that the defendant executed the note in the name of the corporation rather than in his own name by mistake or fraudulently for the purpose of defeating the plaintiff’s debt; that, by reason thereof, the defendant is liable and promised to pay the plaintiff the amount specified in the note, and the note should, be reformed so as to make the defendant liable thereon. The plaintiff also alleged his alternative claim on his account, and in substance repeated the allegations of his petition and made it a part of his controverting plea.

On September 26, 1931, at, the August term of the justice court, the plea of privilege was overruled. On September 28, two days later, at the September term of the justice court, judgment was rendered by default against the defendant on a liquidated claim for the sum sued for. Thereafter, on October 5th, the defendant filed his proper bond, appealing to the county court from the action of the justice of the peace in' overruling his plea of privilege on September 26th and from the judgment rendered against him on the merits by default on September 28th.

In county court the plaintiff, T. C. Shepard, moved that the defendant’s plea of privilege be dismissed, as he had not prosecuted his appeal from the ruling of the court thereon un-. til after judgment had been rendered on the merits at a subsequent term of the justice court. The court refused to sustain this motion, but overruled the plea of privilege, from which order this appeal is prosecuted.

The appellee in this court undertakes to sustain the action of the trial court ¿n overruling the plea of privilege because of the alleged fraud of the appellant in executing the note in the name of the corporation instead of in his own name.

Article 2390, R. O. S., does not fix the venue against a nonresident in the justice 'court on account of fraud committed in his precinct or county. Neal v. Barbee (Tex. Civ. App.) 185 S. W. 1059.

In addition to this, however, the appel-lee’s cause of action, as disclosed by this record, is not based upon fraud. He seeks to recover on a note executed by the appellant in the name of a corporation, or in the alternative on an itemized account for certain merchandise sold and delivered by the appel-lee to appellant. The allegation that the appellant fraudulently signed the note sued on in the name of the corporation instéad of in his own name is but incidental to appellee’s cause of action. Beale v. Cherryhomes et al. (Tex. Civ. App.) 21 S.W.(2d) 65.

Appellee’s contention that appellant had waived his plea of privilege by failing to appeal from the action of the court thereon until after the court had rendered judgment on the merits at a subsequent term is not tenable. The record discloses that the plea of privilege was overruled on September 26th, the last day of the August term of the justice court; that on the 28th of September, two days later, at the September term of the justice court, judgment was rendered against appellant by default on the merits of the case. The appellant was not present on September ■28th, did not consent to the judgment by default, and in no way participated therein. However, after his plea of privilege was overruled, there was nothing he could do to prevent a trial of the case on the merits, either at the August or September term of the court, as the overruling of a plea of privilege does not suspend the right of the court to hear and •determine the case on its merits. Allen v. Woodward, District Judge, 111 Tex. 457, 239 S. W. 602, 22 A. L. R. 1253; Martin v. Mc-Kean & McNeal (Tex. Com. App.) 257 S. W. 241; Grogan-Cochran Lumber Co. v. Mc-Whorter (Tex. Civ. App.) 15 S.W.(2d) 126.

The appellant, within the time prescribed by law, filed in the justice court his bond appealing both from the action of the justice of the peace in overruling his plea of privilege and from the default judgment rendered, against him in the justice court on the merits.

The judgment is reversed, and the cause remanded.


author: JONES, O. J.

text:
    CARRELL v. LAIRD.
    No. 11036.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 17, 1932.
    Rehearing Denied Oct. 15, 1932.
    J. E. Newberry and J. J. Fagan, both of Dallas, for appellant.
    E. G. Senter, of Dallas, for appellee.
   JONES, O. J.

In a suit in a district court of Dallas county, appellee A. S. Laird, for himself and as assignee of the claims of others, recovered judgment against appellant J. T. Carrell and others, who made no answer to the suit in the lower court, and have not complained of the judgment in this court, for the breach of two rental contracts. The verdict was the result of peremptory instruction by the court. The verdict and judgment based thereon is for the sum of $1,408.80, with interest at the rate of 6 per cent, per annum from January 1, 1928. The appeal is duly perfected to this court.

The lease contracts for the rent of a building on Jackson street, used as a garage, were made between the owners and Jess Hassell, who was a defendant in the case below, and was for the space of three years, running from May 15, 1925 to May 15, 1928. On May 27, 1926, Jess Hassell assigned this lease, under a provision of the contract in reference to assignment, to appellant, who assumed the outstanding obligations in the lease contracts. After operating the garage for some seven months appellant assigned the lease to R. L. Smith, also a defendant in the court below, who made a like assumption of the lease contracts. The breach of the contracts for the nonpayment of rentals occurred under Smith. In the assignment of the lease from Hassell to appellant, it is specifically stated in the written agreement by the owners to such assignment that Hassell would not be released from his liability under the contracts, and it was also stated in the same manner in the assignment by appellant to Smith that Hassell and appellant would not be released from their obligation.

The amount of rent due under these contracts is not in dispute, and the only defense that raises a question about appellant’s right to have) any issue submitted to the jury is on appellant’s allegation that, unknown to him, Hassell, during his possession of the property, had turned the premises into a bootlegging joint for the illicit sale of intoxicating liquor, and that this was known to the owners of the building when they executed the leases in question. There is ample evidence in the record that bootlegging was carried on at the garage during the incumbency of Hassell, but there is not any evidence raising the issue that this fact was known to the owners of the building. In fact, the evidence conclusively shows that it was not so known.

We are therefore of the conclusion that the court did not err in giving the peremptory instruction. Because .of the evidence in reference to the illicit sale of intoxicating liquors at this place during the time that Has-sell operated the garage, though we hold appellant is mistaken in its potency, we are of the opinion that this court would not be authorized to assess the 10 per cent, damages insisted upon by appellee, and we overrule this contention.

The judgment of the lower court is affirmed.

Affirmed.