author: FUNDERBURK, Justice.

text:
    WEST TEXAS CONST. CO. v. DOSS et ux.
    No. 1093.
    Court of Civil Appeals of Texas. Eastland.
    May 6, 1932.
    Rehearing Denied May 5, 1933.

      Goggans & Ritchie, of Dallas, and James H. Beall, Jr., of Sweetwater, for appellant.
    Thomas R. Smith, L. W. Sandusky, and R. H. Ratliff, all of Colorado, Tex., for appel-lees.
   FUNDERBURK, Justice.

West Texas Construction Company sued J. L. Doss and wife upon two paving certificates. One was for $928.06, representing an assessment against lots 7, 8, and S. 35 feet of lot 9, block 78, and the other for $687.45, representing an assessment against lots 11 and 12, block 78, in the city of Colorado, Tex. The paving was done and the certificates issued under authority.of chapter 106, p. 489, Acts First Called Session, 40th Legislature 1927 (Vernon’s Ann. Civ. St. art. 1105b). The city of Colorado had, previously to the enactment of said law, by a vote of the people, adopted the provisions of R. S. 1911, arts. 1006 to 1014, inclusive (R. S. 1925, arts. 1086 to 1095, inclusive). The trial judge before whom the case was tried without a jury upon request filed findings of fact and conclusions of law, which, so far as material to be stated, were (1) that the former ordinance adopting the provisions of the general paving law (that is, R. S. 1925, arts. 1086 to 1095) had never been repealed, amended, or modified, and had at all times since April 9, 1923, been in full force and effect; (2) that no action had ever been taken by the city council by ordinance, resolution, or otherwise “shown of record in the minutes of the proceedings” of said city council in any manner adoptirig the provisions of chapter 106, Acts 1927 of the First Called Session of the 40th Legislature; (3) that there was no evidence of any assessment in any amount “.shown of record in the proceedings of the city council of said city of Colorado against the defendants J. L. Doss and wife or either of them for the cost of the improvement of Hickory Street in said city of Colorado, or any part thereof abutting upon the property of the said defendants described in plaintiff’s petition.”. The court’s conclusions of law based upon the above findings were, in effect (1) that said chapter 106, Acts 40th Legislature, never having been adopted by the governing body of said city, was not in force when such proceedings were had, and that the proceedings herein recited to have been held under the provisions of said chapter 106, Acts 1927, were without authority of law, and were null and void; (2) that, there being no assessment in any amount shown of record against the defendants or their property for the improvements made, there were no valid assessments ever levied against the defendants or their property, and no liability created. In accordance with these conclusions of fact and law, the court gave judgment for the defendants, from which the plaintiff has appealed.

If the provisions of chapter 106, Acts 1927, were applicable to the city of Colorado, and the assessments represented by the paving certificates were -not shown to be void, the plaintiff should have had judgment against the defendant J. D. Doss for the principal amount of said certificates with interest, attorneys’ fees, and costs.

'Said chapter 106, Acts First Called Session of the Legislature, 1927, p. 489, in terms applies to “cities, towns and villages incorporated under either general or special law, including those operating under special charter, or amendments of charter adopted pursuant to the Home Rule provisions of the Constitution.” Section 1 (Vernon’s Ann. Civ. St. art. 1105b, § 1). Said act also provides (in section 15 [Vernon’s Ann. Civ. St. art. 1105b note]) that same shall not repeal any law “general or special or charter provision already in existence, but powers, terms and provisions hereof shall exist as alternative powers, terms and provisions of all other laws and charter provisions in any wise relating to the same subject matter.” It also provides (same section): “And specifically this Act shall not repeal Article 1086 to 1096, inclusive, and Articles 1104 and 1105, of the Revised Civil Statutes of the State of Texas, of 1925, but the law as embraced in said Articles shall and does remain in full force and effect, provided the terms, powers, and provisions of this Act shall not apply in any city not having more than one thousand inhabitants.” From the reading of the act itself it is clear that, if the Legislature had the power to enact a law different from but covering the same subject-matter as a preexisting law, and therein provide that the former law shall not be repealed, but' the powers, terms, and provisions of the later law shall exist as alternative powers, terms, and provisions of the previous laws, which is the same thing as to say that, if the Legislature had the power to make two different laws relating to the same subject-matter cumulative one of the other, then it has certainly done so in the enactment of said chapter 106, Acts 1927. We assume the existence of such power, since it is not argued to the contrary.

Chapter 106, Acts 1927, unlike chapter 9, title 28, R. S. 1925, as provided in article 1104, is not required to be adopted by an election. Neither is there any requirement that it be adopted by any formal resolution or ordinance. A proceeding by a city to which it is applicable in accordance with its provisions is itself a sufficient appropriation' and adoption of the “powers, terms and provisions” of the act. In so far, therefore, as the judgment is dependent for support upon the conclusion that the provisions of said chapter 106 were not available to said city, it must, we think, be held to be erroneous.

The city, through its city council, having the power to make the assessments and issue the paving certificates and to make the recitals therein, such recitals “that all proceedings with reference to making such improvements have been regularly had in compliance with the law and the terms of this certificate and that all prerequisites to the fixing of the assessment lien against the herein described property and the personal liability of the owners thereof have been performed,” etc., are to be regarded as prima facie true. The certificates themselves were prima facie evidence of their validity and therefore of the validity of the assessments which they represented. Dillon v. Whitley (Tex. Civ. App.) 210 S. W. 829; Holt v. Uvalde Co. (Tex. Civ. App.) 258 S. W. 285; Watland v. L. E. Whitham & Co. (Tex. Civ. App.) 261 S. W. 387; McCarthy v. City of Denison (Tex. Civ. App.) 262 S. W. 830; Massie v. City of Ft. Worth (Tex. Civ. App.) 262 S. W. 837; Baldwin v. Morton (Tex. Civ. App.) 19 S.W.(2d) 948; Thompson v. Thurber Brick Co. (Tex. Civ. App.) 42 S.W.(2d) 93.

The burden was thus cast upon the defendants to show the invalidity, if any, of the assessments. All the testimony on the subject was introduced by the plaintiff, and the question is, therefore, Does the evidence show that the assessments were void? In the ordinance as recorded in the minutes of the city council in paragraph No. Ill, where there should have been shown the several parcels of property assessed, the names of the owners where known, the sums of money assessed against each piece of property, etc., there was a blank space with the following notation: “(1-Iere insert complete copy of the engineer’s rolls or statements as corrected.)” Plaintiff offered in evidence a purported ordinance of the same date and title signed by the mayor and attested by the city secretary under seal of the city, which had attached to it by two “gem clips” six pages at the bottom of the corresponding paragraph III entitled ' “Colorado Paving Assessment Roll.” There was evidence to show that this document was brought to court directly from the city secretary’s office, and that the signatures thereto were those of the mayor and city secretary. Counsel for defendant admitted in open court that the document was the original ordinance, hut would not admit that the six sheets attached were a part of the same. However, there was no proof tending to show that same were not a part of the ordinance. We are of opinion that the action of the court in admitting the ordinance was correct, and that the ordinance thus admitted not only fails to show that the assessments were invalid, hut affirmatively shows that they were valid.

R. g. 1925, art. 997, provides that ordinances approved hy the mayor shall be signed by him and be “placed, [italics ours] in the office of the city secretary.” The ordinance in question was not one imposing any penalty, fine, or forfeiture. City of Lampasas v. Huling (Tex. Civ. App.) 209 S. W. 213. It therefore took effect without any publication from the time of its passage, R. S. 1925, art. 1013. We have been referred to no statute, nor have we found any, which provides that an ordinance shall be recorded upon the minutes as a prerequisite to its becoming effective.

The original ordinance does not vary or contradict the Teeord of it, since the record on its face was incomplete and' showed that a part of the ordinance was omitted. The rule is applicable, we think, stated by Judge Dillon, as follows: “A distinction has sometimes been drawn between evidence to contradict facts stated on the record and evidence to show facts omitted to be stated upon the record. Parol evidence of the latter kind is receivable unless the law expressly and imperatively requires all matters to appear of record and makes the record the only evidence.” 2 Dillon on Municipal Corporations, § 557. Much more certainly, we think, would the original ordinance be admissible to supply mere omissions indicated in the record itself.

The general rule with reference'to the recording of ordinances is stated by Dillon as follows: “Statutory and charter provisions that ordinances shall be recorded, signed by the presiding officer and attested by the clerk, are directory only in their nature, and a failure to observe them will not invalidate an ordinance or prevent its taking immediate effect.” 2 Dillon on Municipal Corporations, § 607. “Within this principle also,” says the same authority, “it has been held that the validity of an ordinance is not affected by the omission of the clerk to copy it into the record, or by the fact that it was not correctly copied into the record.” Id. The rule is stated in 43 Corpus Juris, p. 539, § 873, as follows: “Unless so provided by charter or general statute it is not essential to the validity of ordinances or resolutions that they should be recorded. * * * But generally charters and statutes providing for the recording of ordinances and resolutions contain no provision that they shall not be in force until recorded and it has very generally been held that in these circumstances the provisions are merely directory and that a noncompliance therewith does not invalidate the ordinance or resolution.” The same authority goes on to say: “So where a city council keeps separate minute books in one of which ordinances are entered, an undated and unsigned paper purporting to be an ordinance found posted in the ordinance book, providing for street paving and referring to a certain contract, is sufficiently identified as a city ordinance by a minute in the other record book showing passage of such ordinance.” 43 O. J. p. 539, § 838. In First National Bank v. Randall, 1 White & W. Civ. Cas. Ct. App. § 973, it was said that a city by an, irregular mode of keeping its records cannot be absolved from the Consequences of its acts or the obligation of its contracts, or from being responsible for the legal acts of its officers. In Hutcheson v. Storrie (Tex. Civ. App.) 48 S. W. 785, it seems to have been held that a resolution with unexplained inter-lineations was admissible. There was no question of recording, but it would'seem that it was the original resolution that was offered. In Bennison v. City of Galveston, 18 Tex. Civ. App. 20, 44 S. W. 613, 615, there was considered an ordinance which required the city collector to enter assessments for street improvements in a book to be kept for that purpose. This was not done. The court said: “We do not think that the entry of the assessment in the book was a condition precedent to the liability. The preceding provisions of the charter show, in our opinion, that the liability aróse upon the making of the assessment, based upon the roll required by those provisions, and that the entry in the book was required merely for purposes of convenience and the preservation of evidence.” We therefore believe that the court also erred in holding that the assessments were invalid.

There was evidence, however, to overcome the prima facie existence and validity of a lien, in that it was shown that the property was the homestead of Doss and wife and they had created no voluntary lien.

We accordingly conclude that the judgment of the court below, in so far as it refused to declare and foreclose a lien on the land, and in so far as affected the defendant Mrs. L. Doss, should be affirmed; but, in so far as it refused to award a personal recovery in favor of the plaintiff against the defendant J. L. Doss, should be reversed and judgment here rendered for plaintiff against the latter for the amount of said paving certificates, interest, and attorneys’ fees as prayed for, all of which is accordingly so ordered.


source: Caselaw Access Project

author: HICKMAN, Chief Justice.

license: Public Domain

text:
    AVIATION CREDIT CORPORATION OF NEW YORK v. UNIVERSITY AERIAL SERVICE CORPORATION.

    No. 1047.
    Court of Civil Appeals of Texas. Eastland.
    March 17, 1933.
    Rehearing Denied April 21, 1933.

      William H. Russell, of San Antonio, and Martin, Shipman & Winters, of Abilene, for appellant.
    Kirby, King & Overshiner, of Abilene, for appellee.

       Writ of error granted.

   HICKMAN, Chief Justice.

The appellee instituted this suit for the purpose of recovering double the amount of usurious interest alleged to have been paid to appellant under a contract. In due time appellant filed its plea of privilege to be sued in Bexar county, to which appellee filed exceptions as to its sufficiency, and also- a controverting plea. Notice of the controverting plea was not served upon appellant or its attorneys. Later in the same term, without notice to appellant, appellee presented its exceptions, which were by the court sustained, and an order was entered striking the plea of privilege from the record. At the institution of its suit appellee caused a writ of attachment to issue and be levied upon two airplanes belonging to appellant and situated in San Antonio. These airplanes were repossessed under a replevy bond executed by appellant as principal and the United States Fidelity & Guaranty Company as surety. When the trial court sustained the exceptions to the plea of privilege, appellee announced ready for trial on the merits-; whereupon the court heard the evidence and rendered judgment by default against appellant as principal and the surety on its replevy bond, jointly and severally, for the sum of $2,935.60, it being double the amount of the usurious interest which the court found appellee paid to appellant. Appellant learned of the rendition of this judgment in a short time after it had been entered, and during the same term of court, and immediately filed a motion for new trial, and later filed an amended motion, which was overruled, and this appeal was prosecuted.

The first question for determination relates to the jurisdiction of the trial court to hear and determine the cause. The suit is authorized by, and was prosecuted by, virtue of the terms of article 5073, R. S. 1925. This article provides for the recovery of double the amount of usurious interest paid, and then provides; “Such action shall be instituted in any court of this State having jurisdiction thereof, in the county of the defendant’s residence, or in the county where such usurious interest shall have been received or collected, or where said contract has been entered into, or where the parties who paid the usurious interest resided when such contract was made.” The appellant is a New York Corporation, and has no domicile in Taylor county, where the suit was instituted. The appellee, a Texas corporation, has its domicile in Travis county, where the usurious interest was paid. The contract was made by correspondence through the mail. If the statute above quoted is not a venue statute, hut is jurisdictional, the trial court was not empowered to hear and determine this cause, and the appeal would confer no authority upon this court other than to dismiss the case.

We have before us a copy of the opinion of the Supreme Court in Alpha Petroleum Co. v. Terrell, 59 S.W.(2d) 364, released on February 13, 1933, not yet reported [in State Reports]. We have carefully considered the question in the light of that opinion, and the authorities cited, and in our consideration have had the benefit of supplemental briefs by the attorneys for each litigant. Our conclusion is that article 5073 is a venue statute. All doubt on this question was removed from our minds! when our attention was called to the history of the article. The first legislative act providing for the recovery of double the amount of usurious interest paid as a penalty will be found in the Revised Statutes of 1895, as article 3106. That article did not name the counties in which the suit might be instituted. Under that statute it was held that, since the action was one in the nature of an action of debt, the suit to recover same must be brought in the county of defendant’s residence. Wartman v. Empire Loan Co., 45 Tex. Civ. App. 469, 101 S. W. 499. The statute was amended by the Thirtieth Legislature by an act approved April 18,1907, c. 143 (Gammel’s Laws, vol. 13, p. 277). This amended law is the same as our present article 5073. The caption and emergency clause of the amendment of 1907 make plain the legislative intent. The caption is as follows; “An Act amending Art. 3106, Title 59, of the Revised Statutes of the State .of Texas, 1895, and prescribing the pains and penalties for the collection of usurious interest, and fixing the verme of suits for the recovery of same, and declaring an emergency.” (Italics ours.)

The emergency clause is as follows: “The fact that many persons in this state are now engaged in lending money to poor people and exacting promissory notes secured by chattel mortgages therefor, payable in- the county of the residence of the payee, and that large sums of money are being collected as usurious interest thereon, and that the persons payifig such usurious interest are in most instances compelled to go to a distant county to maintain suits for the recovery of the penalty prescribed for the collection of usurious interest, which practically defeats the purposes of the. law, and the fact that the pains and penalties now prescribed by law for the collection of .usurious interest are inadequate, creates an emergency. * * * ”

A consideration of the caption and emergency clause leads us readily to the conclusion that it was the clear intent of -the Legislature to make this a venue statute and not one of jurisdiction.

The trial court did not err in sustaining the exceptions to appellant’s plea of privilege. It alleged therein that it was domiciled in, and a resident of, New York State. Nowhere did it allege that it also had a domicile in, or was a resident of, the state of Texas. Venue was sought to be transferred to Bexar county on an allegation that appellant had an agent in that county in the person of James B. Stafford. Article 1996, R. S. 1925, provides: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases. * * *” Follow then certain exceptions not necessary here to mention. Article 2007, R. S. 1925, provides: “A plea of privilege to be sued in the county of one’s residence shall be sufficient if * * * shall state the county of his residence at the time of such plea.” These statutes, by their express terms, are available only to inhabitants of this state, and the only county to which a cause could be transferred upon a plea of privilege is the county in this state of defendant’s residence or domicile. There is no statutory authority for transferring a cause by plea of privilege to the county where the defendant has 'an agent merely, but the whole legislation has to do with the right of a defendant to be sued in the county in which he has his'domicile and to protect that right by having cases transferred to that county. This does not at all mean that a foreign corporation could not avail itself of the benefits of these statutes, provided it had established its domicile in this state. For the purpose of venue a party may have more than one residence or domicile, and, notwithstanding the appellant had its domicile in the state: of New York, it might have also had one in Texas, but the plea of privilege wholly failed to allege any domicile in Texas, and that omission rendered it fatally defective. This question was before the Fort Worth court in Holcomb v. Williams (Tex. Civ. App.) 194 S. W. 631, 632, and was disposed of in the opinion by Chief Justice Conner in this language: “Evidently the general rule can have no application in this case, for by its terms it is applicable only to inhabitants of this state. Ap-pellee, being an inhabitant of the state of Illinois, does not come within the purview of the general rule.”

The next question presented relates to the power of the trial court to render a personal judgment against appellant, a nonresident, after striking its plea of privilege from the, record. We agree with appellant’s contention that the effect of striking its plea of privilege from the record was to leave the case in the same situation as it would have been had the plea never been filed. Appellant was duly served with a statutory notice to nonresidents. By filing its plea of privilege it entered its appearance. Texas Employers’ Insurance Association v. Evans (Tex. Civ. App.) 2 S.W.(2d) 566, and authorities there cited. This plea was stricken from the record. Absent a replevy bond, it is clear to our minds that the court would have been without power to render a personal judgment against appellant, but its judgment should have been one establishing the amount of appellee’s claim and ordering a foreclosure of its attachment lien upon the two airplanes against which attachment was run. The estimated value of these planes exceeded the amount of appellee’s claim. The replevy bond was in an amount equal to their estimated value. If the filing of a replevy bond by a nonresident who has been served but has filed no answer does not authorize the trial court to render a personal judgment for an amount not exceeding the value of the property replevied, then the plaintiff must lose his rights, because he has not the power to compel the defendant to make a personal appearance. It is the settled law of this state that the filing of a replevy bond is not such an appearance by the defendant as authorizes judgment by default against it and its surety, without the service of process personally, or by publication. American Surety Co. v. Stebbins, Lawson & Spraggins Co., 107 Tex. 413, 180 S. W. 101, 104, L. R. A. 1916F, 583.

In the case last cited there had been no character of service upon the defendant, and it was held that the court was without power to render judgment, but the question involved in the situation presented in this case is not overlooked. We quote from that opinion as follows: “It is urged that, unless the filing of a replevy bond be given the force of an appearance by the defendant, a nonresident debtor, simply by replevying his attached property, may defeat the power of the court to subject it to the judgment, since no personal judgment may be validly rendered against a nonresident. * * * Our view is that, in a case of the attachment of the property of a nonresident, the right of the court to subject the property to the judgment in virtue of its seizure renders equally clear its authority to proceed against the bond as the equivalent of the property, to the extent of its value. If the result is the rendition of a personal judgment on the bond against a nonresident, it is in our opinion lawfully rendered, because of the undoubted right of the court under the statute, unaffected by any question concerning the residence of the defendant, to deal with the bond as it would with the property, and enforce it as the substitute for the property. It is unnecessary to determine this question. If there is any doubt as to the authority of the court to render judgment on the bond against a nonresident defendant, there can be none as to its right in such a case to render judgment against the sureties and thus enforce the bond.”

Undoubtedly the court was authorized to render a personal judgment against the surety, and no reason can be perceived for denying it an equal right against the principal. Liability upon the bond existed as a matter of law when the court determined appellant’s liability upon the cause of action. The court had the right to determine the liability on the cause of action, because the appellant had been properly served with notice. We think it must follow that, since the bond stood in place of the property, the court had the right to render personal judgment against appellant and its surety thereon.

It is claimed that there was no evidence of the value of the attached property. The record disclosed that the sheriff estimated the value at $5,000. This is some evidence. Article 302, R. S. 1925; Wells v. Cloud (Tex. Civ. App.) 202 S. W. 331; Rosser v. HalE (Tex. Civ. App.) 235 S. W. 968.

The assignment challenging the sufficiency of the evidence to support the judgment rendered is overruled. The evidence was general in its nature, and did not disclose the details of the transaction with that particularity that it would have done had the appellant not made default. But that was not required. Evidence is not required when default is made except where the cause of action is unliquidated, and then only as to the damages. A default operates as an admission of every material allegation of the petition which is properly pleaded. Gamel v. City National Bank (Tex. Com. App.) 258 S. W. 1043; Martin v. Lee County State Bank (Tex. Civ. App.) 265 S. W. 1057; Citizens’ Bank v. Brandau (Tex. Civ. App.) 1 S.W.(2d) 466; Milford v. Culpepper (Tex. Civ. App.) 40 S.W.(2d) 163; freeman on Judgments, § 1281.

The fact that appellant is a nonresident does not affect this rule. It was personally served with notice, and article 2038, R. S. 1925, provides: “A defendant served with such notice shall be required to appear and answer in the same manner and under the same penalties as if he had been personally served with a citation within this State.” Wilson v. National Bank of Cleburne, 27 Tex. Civ. App. 54, 63 S. W. 1067.

The petition alleged all facts necessary to recover, and the evidence was sufficient to establish the amount of the damages. Nothing more was required even if it be considered . that the action, was for unliquidated damages, a question which we are not called upon to determine.

In its motion for a new trial appellant alleged facts designed to establish that its failure to file an answer on the merits was not due to the neglect of its attorney, but that it was due to the actions of one of the attorneys for appellee in misleading its attorney. We shall not set out these allegations in this opinion, because they become immaterial in view of our holding that no meritorious defense was alleged. It is the settled law that the duty devolved upon appellant, not only to exonerate itself from negligence in failing to file an answer, but to allege a meritorious defense to appellee’s cause of action. Freeman v. Miller, 53 Tex. 377; Keller v. Young (Tex. Civ. App.) 186 S. W. 405; Green v. Cammack (Tex. Civ. App.) 248 S. W. 739.

The allegations designed to show a meritorious defense were as follows:

“That on or about October 23rd, 1929, this defendant drew time drafts on the plaintiff in the sum of $5432.00 and $4126.00 respectively, which were thereafter accepted by the plaintiff herein, and that on or about August 14th, 1930, the plaintiff’s obligations to this defendant having been reduced to $3960.00 and $3007.86 respectively, this defendant drew new time drafts on the plaintiff for such amounts which were by the plaintiff accepted on or about August 25th, 1930, and payable at three months’ sight to the order of this defendant and that thereafter on or about November 14th, 1930, such obligations having been reduced to the sums of $3564.00 and $2707.08 respectively, this defendant drew new time drafts on the plaintiff for such amounts which were by the plaintiff accepted on January 6th, 1931, payable at three months’ sight, to the order of this defendant, and that such drafts provided for interest after maturity at the highest legal rate and 15% collection charges, so that during all of such times the plaintiff herein was justly indebted to this defendant in the amounts shown, being largely in excess of the amount claimed by the plaintiff to have been paid by it as usurious interest and even if such usurious interest was in fact paid, which is not admitted, the same should have been, and under the law, is thereby applied to the principal and in this connection, this defendant shows that plaintiff is still justly indebted to it in said last mentioned sums, as evidenced by said written obligations.
“This defendant shows that the first mentioned time drafts have been returned to the plaintiff and are in its possession, and the plaintiff is here now notified to produce the same upon trial hereof or secondary evidence thereof and of their contents will be offered.
“Defendant further shows that such written obligations are payable and therefore performable in New York State and governed by the laws of that forum and that under such laws action for usury is barred within one year from payment and limited to amount above legal rate and that plaintiff being a corporation may not recover any usurious interest.”
The fact that appellee had not paid all of the principal of its obligation to appellant, is no defense to a suit of this nature. The law does not apply payments to the principal which were made and received as interest. It will make such application only in the absence of an agreement that the payments were made as interest. Rosetti v. Lozano, 96 Tex. 57, 70 S. W. 204; Stout v. Bank, 69 Tex. 389, 8 S. W. 808; Alston v. Greene (Tex. Civ. App.) 43 S.W.(2d) 478.

Nor is a" meritorious defense alleged by tlie allegation that the laws of the state of New York govern the transaction. The motion does not allege that the contract upon which usurious interest was paid was performable in the state of New York. It merely alleges “that such written obligations are payable, and therefore performable in New York State.” The written obligations referred to are the time drafts mentioned in the motion, which were affirmatively alleged not to have been paid. An allegation that certain unpaid time drafts were payable in New York falls far short of amounting to an allegation that the contract upon which the usurious interest had been paid was performable in New York. It therefore becomes unnecessary to consider the interesting question of whether the laws of New York would govern the transaction.

It is our conclusion that appellant’s motion alleged no meritorious defense to the cause of action asserted by the appellee, and that therefore the trial court did not err in overruling it.

What has been written above disposes of every material question presented in appellant’s brief. Since each contention has been overruled, it follows that the judgment of the trial court'should be affirmed.

On Rehearing.

Both appellants, Aviation Credit Corporation and United States Fidelity & Guaranty Company, have filed motions for rehearing, which have received careful consideration. It is urged by the former that the effect of striking the plea of privilege was to “deprive the trial court of the right to proceed further, and leave the case not only in the same situation as it would have been had the plea never been filed, but in the same situation as it would have been had the notice never been served on this appellant.” If that contention is correct, it follows that appellant is in the same situation as that involved in American Surety Co. v. Stebbins, Lawson & Spraggins Co., 107 Tex. 413, 180 S. W. 101, L. R. A. 1916F, 583, and the court was without authority to render -a personal judgment against either the principal or the surety. The leading case relied upon in support of the contention that the effect of striking the plea of privilege was to recall the personal notice theretofore served is Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914. We do not think the case is authority for the contention. That case was an action instituted against a citizen of Virginia under an act of Congress passed during the Civil War “to suppress insurrection, to punish treason and .’rebellion, to seize and confiscate the property of rebels, and for other purposes.” Monition and notice were issued and published, in -response to which the owner made appearance to contest the proceeding, but his answer was stricken and his right to appear denied. It is small wonder that the Supreme Court used strong language in disposing of the question. But that is not the situation in the instant case. Appellant was not refused the right to file an answer. It had the unquestioned right to do so, and could have filed an answer on the merits subject to its plea of privilege, thus preventing the rendition of a default judgment against it. It did not choose to do so, but rather chose to file a plea of privilege, which, in our opinion, was insufficient to present any question for decision. The court properly sustained demurrers to this plea and proceeded to hear the case on its merits in the absence of any answer filed. That portion of the decree 'striking the plea from the record added nothing thereto.

This question was presented in the cases of Western Mutual Fire Ins. Co. v. Childress (Tex. Civ. App.) 238 S. W. 348, and Luse v. Curry (Tex. Civ. App.) 261 S. W. 195, 196. In the latter case it was disposed of in this language: “As to the proposition that the court erred in hearing the case on its merits, after striking out the plea of privilege, there was no other course to pursue, for the reason that the case then stood as if no plea had been filed; and, no answer to the merits having been filed, judgment by default was proper.”

On the question of whether a meritorious defense was alleged, the surety company makes the suggestion that, in view of the fact that appellee’s counsel misled appellants’ counsel, this court should “not require much of a showing of meritorious defense for a refusal to sanction such-unconscionable acts.” We -held that the allegations made no showing. Evidently that was the holding of the trial court, for he refused to hear any evidence in support of the motion. Our duty is to support that ruling, unless error is shown. We would gladly give appellant the benefit of all reasonable intendments, but a meritorious defense must be alleged. If none was alleged, there is no ground for liberality.

It is suggested that there is no positive testimony as to the amount of usurious interest paid. It is true that the only witness who testified stated that he thought, according to his papers, he paid appellants $1,467.-80. The trial court was not satisfied with this testimony, and before ruling on the case propounded this interrogatory: “You paid this amount of money that you stated at the rate of 1% per month in advance?” To which the witness answered “Yes.” We think that testimony sufficiently definite.

It is recognized that difficult questions are presented in this case, but we have given each one a careful consideration and reconsideration, and the opinion heretofore rendered reflects our conclusions on the law governing the several questions.

Both motions for rehearing will therefore be overruled.


author: WALKER, Chief Justice.

text:
    AMBERSON v. PARAMOUNT FAMOUS LASKY CORPORATION.
    No. 2347.
    Court of Civil Appeals of Texas. Beaumont.
    April 20, 1933.
    Davies & Davies, of 'San Antonio, for appellant
    Dwyer & Groce, of San Antonio, for appel-lee.
   WALKER, Chief Justice.

On the 5th day of December, 1929, appellant, Joe Amberson, under the name of Union Bus Lines, was doing business as a common carrier operating a bus line between San Antonio and San Angelo, Tex. On that day ap-pellee, Paramount Famous Lasky Corporation, delivered to him for shipment two boxes of films, one to be delivered at Eden and the other at Mason, two' points on his established bus route. A short distance out of San Antonio, and before either of the boxes was delivered, one of them exploded, thereby burning appellant’s bus. This suit was by appellant against appellee to recover the value of the bus, on allegations “that the burning of said bus was directly and proximately caused through the gross carelessness and negligence of the defendant Company in failing to properly pack the films which they shipped and consigned through this plaintiff, and in failing to have a proper lock and fastener upon said smaller film box, and the failure and negligence on the part of said defendant Company to pack said films in said boxes, both inside and outside, in a safe manner for transportation.” Appellee specially answered that the burning of the bus was the result of an unavoidable accident and of appellant’s contributory negligence. Judgment was for appellee on the jury’s verdict that: (a) The fire on the bus was not the result of an unavoidable accident; (b) the lock on the small box of films was defective when.delivered by appellee to appellant and accepted by appellant for shipment to Mason on the 0th of December, 1929; appellee was guilty of negligence in tendering the box to appellant in a defective condition, and suelii negligence was a proximate cause of the burning' of the bus; (c) the films were properly packed; (d) at the time appellant’s driver loaded the films on the bus, the lock or fastening on the small box was in a defective condition, which fact he knew at the time he loaded the box on the bus; the driver was guilty of negligence “in hauling said films while the lock was in such defective condition,” and such negligence proximately contributed “to cause the fire”; (e) the bus was damaged $2,500.

Opinion.

The evidence supports the jury’s verdict convicting the bus driver of contributory negligence. On this issue he testified: “My name is Bob Downs. In December, 1929, I was working for Joe Amberson, driving a bus for him. I drove the bus on December 5th, 1929, that burned up. I handled some films that day, two boxes of them. I do not know the exact size of them, pretty good sized boxes. These boxes here shown me compare with the size of those I handled. I first saw those boxes laying on a run-way at the Bus Station by my bus. I loaded them. I picked up one and put it in and when I picked up the second one it came open. It was the small box that came open. I fastened it the best I could. I put that washer through the slot in the hasp and turned it loose and it fell to the bottom. I did not try to turn the washer in any way. I then carried it into the bus. I put the large box near the center of the bus. I put the small one at the right corner, on the back seat. When I got out about nine or ten miles from San Antonio there was an explosion. It came from the rear of the bus, it looked like it was about Middleways. I looked back quickly and saw the lid of the small box fly open, back against the seat. The top of the bus flew up and settled down, I should judge it went about two feet. When the explosion occurred it blew the wind shield out, and then I jumped. When the explosion occurred and I looked around the flame hit my side of the bus and the wind shield was blown out forward.” He testified further that the films were loose in the box, that he had been a bus driver for five or six years prior to the date the bus was burned, that during that time he had handled many boxes of films, that some of the boxes of films had the “caution label on them,” and that he knew that the “caution appeared on the yellow label.” The evidence would have supported a finding that the' caution labels on these two boxes were marked out with a lead pencil, but the jury could have found against that conclusion. ' However, the driver was as fully advised of the nature of the film boxes as if the caution sign had been printed on them. No point is made against the finding that the condition of the lock on the small box was ■ negligence on the part of appellee and a proximate cause of the burning of the bus. In fact, that was the very allegation of the petition upon which appellant based his cause of action. It thus appears that the driver had actual knowledge of the condition which caused the explosion and fire and with this knowledge accepted the shipment. If it constituted negligence to tender for shipment the small box with the defective lock, then, under the testimony of the driver, as summarized above, the issue of negligence was raised against him in accepting and transporting the box in its defective condition. Appellee assigns error against the refusal of the court to grant him a new trial on the ground of newly discovered evidence. We do* not review the evidence on this issue because it clearly appeared that appellant exercised no diligence to secure this evidence prior to the trial. The least diligence on his part would have made this evidence available to him.

Appellant’s complaint of misconduct of the jury is without merit, since it is shown only by certain affidavits of the jurors attached to his motion for new trial. Such affidavits must be construed merely as pleading and cannot be considered as evidence to establish the truth of the facts alleged. Adams v. Stark (Tex. Civ. App.) 280 S. W. 1074; Harris v. Smith (Tex. Com. App.) 265 S. W. 546; Dancy v. Peyton (Tex. Civ. App.) 282 S. W. 819; Ill. Cent. Ry. Co. v. West (Ky.) 60 S. W. 290, 22 Ky. Law Rep. 1387.

Counsel for appellee did not commit reversible error in telling the jury to answer “yes” to issues of discovered' peril and contributory negligence. In no way did this argument or request inform the jury of the legal effect of their answers to these questions. Dallas Ry. & Terminal Co. v. Bankston (Tex. Com. App.) 51 S.W.(2d) 304; Ineeda Laundry v. Newton (Tex. Civ. App.) 33 S.W.(2d) 208; Marine B. & T. Co. v. Epley (Tex. Civ. App.) 10 S.W.(2d) 739.

Appellant had certain exceptions against the submission of the issue of unavoidable accident, which were rendered immaterial by the fact that the issue was found in his favor. He also had certain exceptions against the submission of the issue of negligence under his allegations that the films were improperly packed. However, as the jury convicted him of contributory negligence in accepting the films for shipment, this issue became immaterial.

The court refused to submit to the jury the following issues requested by appellant and which had support in his pleading and evidence:

“Did the Company have a rule, after June 1st, 1928, that they would not ship films except at the risk of the shipper ?”
“Was the said rule, if any, conveyed to, and called to the attention of the defendant, or its agents?”
“If you have answered the above question (special issue No. 8) in the affirmative, then answer the following question: Did the said Company, the defendant, accept said rule and agree that the said films should be shipped at its risk?”

The refusal of these issues was not error because agreements, rules, or regulations made by common carriers within this state limiting their common-law liability or contracting against the consequences of their negligence are void. Article 883, Rev. St. 1925, provides: “Railroad companies and other common carriers of goods, wares and merchandise, for hire, within this State, on land, or in boats or vessels on the waters entirely within this State, shall not limit or restrict their liability as it exists at common law, by any general or special notice, .or by inserting exceptions in the bill of lading or memorandum given upon the receipt of the goods for transportation, or in any other manner whatever. No special agreement made in contravention of this article shall be valid. (Act Dec. 4,1863, p. 7; G. L. Vol. 5, p. 661.)” Pac. Exp. Co. v. Hertzberg, 17 Tex. Civ. App. 100, 42 S. W. 795; G., C. & S. F. Ry. Co. v. Boger (Tex. Civ. App.) 169 S. W. 1093; Am. Ry. Express Co. v. Santa Anna Gas Co. (Tex. Civ. App.) 250 S. W. 271; Head v. Pacific Express Co., 60 Tex. Civ. App. 169, 126 S. W. 682.

It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.


author: MARTIN, Justice.'

text:
    ZELLO v. GLOVER.
    No. 4011.
    Court of Civil Appeals of Texas. Amarillo.
    April 26, 1933.
    Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for appellant.
    W. M. Lewright, of Pampa, for appellee.
   MARTIN, Justice.'

A complaint was filed against appellant by appellee in justice court charging him with cattle theft. He gave bond in the sum of $1,-000 for his personal appearance before the district court of Gray county then in session, to answer said charge. The grand jury at that term of court investigated this charge and “no billed” appellant. He thereupon filed this, a malicious prosecution suit, against ap-pellee.

A general demurrer was sustained to his petition, and the action of the trial court in this respect is the only alleged error presented for review.

Appellee has filed no brief. Appellant asserts that the demurrer was sustained upon the belief by the trial court that a “no bill” by a grand jury was not such final termination of the prosecution in favor of the accused as would entitle him to maintain a malicious prosecution suit, since he could be thereafter prosecuted. Otherwise stated, that nothing less than a “termination” which prevented a future prosecution would meet the demand of the law.

Appellant in respect to this particular matter alleged that the grand jury of Gray county returned no bill of indictment against him and that he was fuljy discharged and released from said charge, complaint, and accusation ; that his bondsmen and sureties upon his bail bond were likewise released; that no witness or witnesses ever testified that he was guilty of the offense charged against him; and that the accusation made against him by appellee was done maliciously and without probable cause.

This petition does not specifically allege that the trial court did not continue the prosecution against him until the next term of court, but, since we must indulge every reasonable intendment in favor of the pleadings as against a general demurrer, we think the allegations, the substance of which we have already stated, sufficiently showed that the prosecution ended with the discharge of the accused.

It is stated that the trial court was largely-influenced by some of the language in Von Koehring v. Witte, 15 Tex. Civ. App. 646, 40 S. W. 63, 64. The facts of that case clearly distinguish it from the present one. It is therein stated that a federal grand jury, after once failing to indict “at the subsequent term, in November, upon the same papers,” returned an indictment, and it appears that such indictment was pending at the time of the trial of the malicious prosecution suit. Plainly the facts of that case demanded the disposition made of it by the San Antonio court, and the language in the opinion to the effect that the prosecution must be disposed of in such a manner that it cannot be revived was not necessary to a decision of the question presented. Presumably the prosecution was continued in the federal court, probably under some provision similar .to our Texas statute, to which we shall presently advert. Otherwise the indictment could not'have been subsequently found, as stated therein, “upon the same papers.”

It may be stated generally that the plaintiff, in order to maintain a.suit for malicious prosecution, must show: (1) That there was a prosecution; (2) that it was malicious; (3) that it was without probable cause; and (4) that the prosecution is at an end and has terminated favorably to the accused. Glasgow v. Owen, 69 Tex. 167, 6 S. W. 527.

What constitutes a favorable termination to a prosecution is the question that we must answer on this appeal. The rule is stated, and we think correctly so, in 38 C. J. page 443, as follows: “A failure or refusal of the grand jury to indict, followed by the discharge of the accused, is in general a sufficient termination of the proceedings, although there may be no formal order of discharge by the court.”

What is a “final termination” of the prosecution has recently been discussed by the Fort Worth court in the case of Rust v. Page (Tex. Civ. App.) 52 S.W.(2d) 937, 941. It is there stated: “It is manifest that the order of the county court dismissing the criminal case against Mrs. Frankie Page was a final termination of the prosecution that had been initiated by the appellant E. A. Rust. A new complaint and information would have been necessary to a further prosecution for the same offense, even though it could be said that the order made by the county court after hearing the evidence would not have been a bar to another prosecution on the defense of former jeopardy. The following decisions amply support this conclusion: Porter v. Martyn (Tex. Civ. App.) 32 S. W. 731, writ refused; Rogers v. Mullins, 26 Tex. Civ. App. 250, 63 S. W. 897; Graves v. Scott, 104 Va. 372, 51 S. E. 821, 2 L. R. A. (N. S.) 927, 113 Am. St. Rep. 1043, 7 Ann. Cas. 480; Comisky v. Breen, 7 Ill. App. 369; Moyle v. Drake, 141 Mass. 238, 6 N. E. 520; Robbins v. Robbins, 133 N. Y. 597, 30 N. E. 977; Equitable Life Assur. Soc. v. Lester (Tex. Civ. App.) 110 S. W. 499; Graves v. Dawson, 130 Mass. 78, 39 Am. Rep. 429; Suhre v. Kott (Tex. Civ. App.) 193 S. W. 417.”

These quotations, we think, make a reversal of this case imperative, but, because it appears original in its facts, we lengthen this opinion to discuss briefly certain phases of the Texas law which seems to bear upon the solution of this question, and which we do not find has been heretofore adverted to in decisions upon the subject.

A portion of article 436, C. C. P., is as follows:

“The following causes, and no other, will exonerate the defendant and his sureties from liability upon the forfeiture taken:
“4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution’has not been continued by order of the court.”

It has been definitely settled that the fact of a complaint having been filed against a witness charging him with a felony cannot be introduced to affect his credibility where sufficient time has elapsed for an indictment and none has been presented against him. Redding v. State, 95 Tex. Cr. R. 641, 255 S. W. 430, 431; Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105.

Judge Ramsey, in the case of Headly v. State, 58 Tex. Cr. R. 185, 125 S. W. 27, 28, uses this language: “If such accused was not then indicted, it would be assumed and presumed that no violation of law had been committed by him.”

It follows by necessary implication from the above, we think, that an accused against whom no indictment has been returned and no continuance of his case ordered is exonerated and restitution made for the wrong done him as completely as the criminal courts may voluntarily do it. He has been absolved of all guilt and its consequences. That particular prosecution is at an end. Not only may he not be arrested again upon the same complaint, but it cannot even be referred to against him as an impeaching circumstance affecting his credibility. If no subsequent prosecution is commenced, it is thereafter “assumed and presumed that no violation of law had been committed by him.”

But suppose we had neither precedent nor statute. Let us examine for a moment the question as a purely original one. A wantonly and falsely charges B with a heinous crime and procures his arrest and incarceration. A has no evidence whatever of guilt and produces none before the grand jury. That body cannot indict B without violating its oath and prostituting itself. It completely exonerates B and discharges him from prison. B of course is powerless to compel the state to indict and try him so that he may be finally acquitted and thus secure the character of “termination” of prosecution which it is intimated is necessary in some of the decisions in order to get redress in a malicious prosecution suit. AVe are not able to believe that an enlightened and humane jurisprudence would deny B all redress against A because he had failed to do that which it was humanly impossible for him to accomplish. It seems clear to us that there is but one answer that can be made to. this question, whether it be decided upon precedent or legal principle. Protection of human rights has been the pride and glory of Anglo-Saxon jurisprudence. Its exaltation and guardianship of these through the centuries point the way to the solution of this question, if we had no other. • As pointed out before, the criminal courts in such cases do all in their power to right the wrong, if any, done the accused under such circumstances. We cannot believe the civil courts ought to do less, when they are properly eall: ed upon.

The judgment will be .reversed, and the cause remanded.


author: SMITH, Justice.

text:
    WELCH v. SILVERS et al.
    No. 9057.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    Rehearing Denied May 10, 1933.
    Morriss & Morriss, of San Antonio, for appellant.
    Ditzler H. Jones, of Uvalde, and J. E. Eriestman, of Leakey, for appellees.
   SMITH, Justice.

Prior to her marriage to her present husband, Rosa Silvers, then Rosa Priest, a widow, and her three brothers and sisters, inherited a section of "640 acres of land 'in Real county, which was conveyed so that Rosa Silvers took title to 160 acres thereof. She and her children by her first marriage occupied the land as the family homestead.

In 1917 Rosa Priest married Zeno Silvers and with him and her children continued for the time to make their home on said land.

In 1918, however, the Silvers; husband and wife, purchased from R. D. Harper a 1,280-acre place in a distant part of Real county, for the avowed purpose of making their permanent home thereon. In part consideration for the new place the Silvers executed to Harper three notes, for an aggregate sum of $1,000, and to secure the payment of said notes further executed their deed of trust upon the 160-acre tract theretofore constituting their homestead. As a condition to this transac-' tion the Silvers solemnly executed and acknowledged a relinquishment of their homestead claim upon the 160-acre tract and an express designation of a particular 200-acre parcel of the 1,280 acres as their new homestead. In this instrument pf relinquishment and designation the Silvers declared that “we ⅜ ⅜ ⅜ are desirous of obtaining a place of convenience, comfort and proportions for us a permanent home and in fact we have found such a place, being one that suits our purpose in every respect, * ⅜ * (describing the new place) and we have made application on or about August 1st, 1918, to R. D.. Harper, the owner of said land, for its purchase, he requiring a cash payment of $1000.-00 and we not having such cash payment, executed our promissory notes to said Harper » ⅞: * which said notes are to be accepted by said Harper for such cash payment on said 12S0 acres of land only on conditions that the payment of the same be secured in part by a mortgage lien on the following described tract of land owned by us, to-wit: —160 acres * * * Tract of land of 160 acres is not our homestead nor any part of same, we not residing on same nor claiming same nor any part thereof as our homestead but we now have a homestead conveyed to us, this day before the signing and execution of these presents, by the said R. D. Harper, containing 1280 acres of land first above described out of which we hereby set apart and designate specifically 200 acres in a square * ⅜ * and which 1280 acres and our homestead of 200 acres thereof we could not have obtained without first having agreed to encumber our 160 acres above described to secure in part the above described three promissory notes * * * the said R. D. Harper accepts this instrument containing the statements made by us therein in good faith, relying upon the truthfullness of the representations therein made.”

The Silvers thereupon moved out of their old homestead, thus abandoned, and into their new home thus acquired and designated and made their home therein for all purposes for the ensuing four years, when, in 1922, they reconveyed 853 acres of the 1,280-acre tract, including their home 200 acres, to Harper (having in the interim sold to another the remaining 426 acres of the 1,280) who thereupon released the Silvers from their indebtedness to him.

The Silvers did not thereupon return to or take any steps to reassert a homestead claim upon the 160-acre tract, nor had they ever done so up to the time tbe cause of action here sued on arose. Instead, they moved about from one place to another, near the Harper 1,280 acres, during the ensuing year; in 1923 they leased another place in the same vicinity, remaining thereon for three years; •then they moved to another nearby place which they have occupied as their home for the last six years, and still so occupy it.

In December, 1930, appellant, D. B. Welch, obtained judgment against Mr. and Mrs. Silvers for $435, upon which execution was issued, and the 160-acre tract involved was levied upon and sold at sheriff’s sale, and thereupon conveyed to Welch. The Silvers thereupon brought this action against Welch to recover title and remove cloud therefrom, and recovered as prayed for. Welch has appealed.

Appellees assail appellant’s claim of ownership upon the grounds that (a) the judgment under which he claims ‘‘insofar as it was against appellee Rosa Silvers, a married woman, was void, in that the petition in that cause did not specifically allege that the suit was for necessaries furnished her, nor for tort committed by her, etc., and the judgment could not, therefore, support the sale thereunder of the property in question, it having been her separate property and (b) because the property at time of levy and sale was the homestead of appellees.”

We conclude that appellees’ claim of homestead is untenable in the face of the undisputed record. Appellees clearly, unmistakably, completely abandoned the 160-acre tract as a homestead, both by express relinquishment, deliberately and solemnly executed, acknowledged, recorded, as well as by physical abandonment of the old and selection, adoption, possession, and occupancy of the new.

By this process the abandonment was absolute, and the place was thereby completely divested of its homestead character, and by the same process the new place was invested with that character.

In this situation the old place could not be restored to the status and given the renewed character of a homestead except by overt acts of the Silvers coupled with and in pursuance and manifestation of an intention on their part to make it their permanent homestead.

The Silvers did nothing to manifest such intention, if any they had. They made their home on the Harper place for four years: they made their temporary home in several different places in the Harper neighborhood during the next year ; then in one place nearby during the ensuing three years; then in still another nearby place during the next six years, down to the moment of the trial. These several places were located in a distant part of the county from the 160-acre place.

If their hearts yearned for the old place, they did nothing to manifest it. If they had any degree of intention to ever again make their home there, they gave no expression to such intention by word or deed or otherwise. There was nothing to prevent them from carrying out such intention, if any such they had, for they owned the place, free of incumbrance or other obstacle to their return, and they owned no other place. Fifteen years have passed, with still no manifestation of such intention, except that on the day the place was sold under the hammer, after failing that morning to negotiate a postponement, appellees executed and filed for record a redesignation of the 160-aere tract as their homestead. This act, coming at that moment under those conditions, had the effect of negativing rather than supporting the •homestead claim.

Appellees have not pressed their claim that the judgment against Rosa Silvers was void because of the insufficiency of the pleadings to subject her, a married woman, or her separate property, to said judgment. Appellees have apparently retreated from that position in the face of the defense that the same is a collateral attack upon a judgment not void, but only voidable at its worst.

The judgment is reversed and judgment will be here rendered that appellees take nothing of appellant in this suit, and that appellant go hence with his costs.


author: FLY, Chief Justice.

text:
    GARCIA et al. v. RENDON.
    No. 9055.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1933.
    Rehearing Denied May 10, 1933.
    Charles T. Haltom, of San Antonio, for appellants.
    G. Woodson Morris and Martin S. Tudyk, both of San Antonio, for appellee.
   FLY, Chief Justice.

The suit forming the basis of this appeal is for $198 and originated in the justice’s court, where Josefa Garcia and her husband sued Jose Rendon for the sum mentioned. In the justice’s court judgment was rendered for the plaintiffs, and the cause was appealed by the defendant to the county court, where the tables were turned, and appellee, who was the defendant, won a judgment that appellants take nothing by their suit. They have perfected this appeal.

The father of Josefa Garcia died, leaving a policy on his life in the sum of $32S, $200 of which was assigned by Josefa Garcia to Ren-don to pay the funeral expenses of the father.

The four propositions are overruled. The record filed in the county court failed to show the oral pleadings made by the defendant in the justice’s court, but contained a written general demurrer and general denial, and it is contended that no oral pleadings by appellee should have been permitted in the county court on appeal. We know of no law requiring the pleadings on appeal from a justice’s court to be the same in the county court on appeal as in the justice’s court. The statute cited does not prescribe any such rule. It provides a rule for written pleadings setting up a cause of action or a set-off, and confines the pleadings on appeal to matters pleaded in the justice’s court. Oral pleadings are not mentioned. If the oral plea made by appel-lee was not pleaded in the justice’s court, appellant should have shown it. The mere fact that the justice of the peace did not note the oral pleadings did not prove that they were not made. Steinberg & Co. v. Jameson (Tex. Civ. App.) 55 S.W.(2d) 579.

The judgment is affirmed.


text:
    CITY OF SAN ANTONIO et al. v. FRIZZELL.
    No. 2348.
    Court of Civil Appeals of Texas. Beaumont.
    May 3, 1933.
    Rehearing Denied May 10, 1933.

      Jack Davis, W. C. Davis, T. D. Cobbs, Jr., and C. K. Quin, all of San Antonio, for appellants.
    C. A. Davies and Joe Burkett, both of Sari Antonio, for appellee.
   WALKER, Chief Justice.

In February, 1923, appellee, J. D. Frizzell, owned and was operating a barbershop at 504 Navarro street, San Antonio, for which he was phying a monthly rental of $140 and his lease had more than three years to run. Appellant city of San Antonio decided to appropriate and use this property in a program for widening its streets. In adjusting appel-lee’s claim for damages, appellant agreed by ordinance to move appellee’s barbershop to a new location, to be selected by him, and to install it under his direction, all without any cost to appellee and to compensate him for any damage that might be done his furniture and fixtures in moving and installing them, and for further compensation to appellee appellant agreed to make him the following payments: “Should the moving and installing not exceed one week of seven days, then he is to receive Two Thousand ($2,000.00) Dollars for such lost time and the business that will be lost by virtue of said move, and a proportionate amount should it require a longer time in making said move and installation, the time allowed or to be allowed for the making of such move and installing said shop, not to exceed fifteen (15) days. Said payment also to cover the relinquishment of the leasehold rights of said J. D. Frizzell.”

. Appellant undertook the duty of moving and installing appellee’s barbershop and accomplished the task in eleven days. The sum of $2,000 was paid appellee under this agreement by warrant, which he accepted and indorsed. This warrant contained the following clause: “This amount is accepted in full satisfaction of all claims against the city incident to the contract or labor and material furnished thereunder.”

Appellee’s average return from his barbershop before moving was about $300 a month, and in his new location from $150 to $175 a month. He had to pay $250 a month rent for the new location. At the time this contract was made appellant’s charter contained the following provisions. Section 40: “Any debt hereafter contracted by any officer of the Oity, or by any person on account of the Oity, the payment of which has not been previously provided for by ordinance duly adopted by the Oity Council, shall be absolutely null and void and uncollectible at law or in equity, and it shall be the duty of the City Attorney to plead this statute to defeat the collection or enforcement of any such claim or debt.”

And section 20, winch in part provided: “Provided, no contract on the part of the City shall be made or authorized, nor any money appropriated from the funds of the City * * * otherwise than by ordinance.”

This suit was by appellee against appellant, to recover the “proportionate amount” provided by the contract for the four extra days required to move the barbershop. In defense appellant pleaded general denial, the provisions of the charter quoted above, and raised the issue that the provision for extra time beyond the one week was a stipulation for a penalty and not for liquidated damages. Upon trial to the court without a jury judgment was rendered in favor of appellee against appellant for $1,132.84, “for a four days overage in moving of said barbershop” with interest thereon at the rate of 6 per cent, per annum from the 15th day of June, 1923, and for $35.-30 damage to fixtures “upon which said amount plaintiff shall not be allowed any interest.”

We cannot agree with appellant that the provision of the contract by which appellant was to pay appellee “a proportionate amount” of $2,000 for the time beyond one week required to move the barbershop amounted to a penalty. It was clearly provided in the contract that the payment, not only of the original $2,000', but of the proportionate amount, -was to cover the relinquishment of appellee’s freehold rights, as well as his other damages. The issue was raised, as appears from the statement above, that appel-lee lost in revenue more than $100 a month and in rent more than $100 a month for a period of more than three years. It thus appears that the jury could have found that ap-pellee’s actual damage far exceeded tlie compensation allowed him by the contract.

The indorsement upon the warrant, tendered appellee in payment of the first $2,000, did not amount to a release of liis claim for the “four days overage” found in his favor by the trial court. This indorsement merely referred to that provision of the contract whereby appellee was to have $2,000 for the first week of seven days. If the language of the indorsement does not compel that construction, then at least it was ambiguous and the evidence was clearly to the effect that the $2,000 warrant was tendered by appellant and accepted by appellee merely in discharge of the $2,000 item.

The charter provisions pleaded by appellant have nothing to do with obligations of the character involved in this litigation. Sluder v. City of San Antonio (Tex. Com. App.) 2 S.W.(2d) 841.

In moving and installing the barbershop, appellant had to make certain alterations in the building selected by appellee. There is no merit in the contention that appellant was not liable for the time necessary to make these repairs and alterations. The contract specially provided that the barbershop should be “installed in new quarters of his (appellee’s) selection at no expense to him.”

Eor the reasons stated the judgment of the lower court is in all things affirmed.


author: BAUGH, Justice.

text:
    LOVELESS et al. v. TEMPLE TRUST CO.
    No. 7823.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1933.
    Dibrell & Starnes, of Coleman, for appellants.
    Jho. B. Daniel, of Temple, and Oritz & Woodward, of Coleman, for appellee.
   BAUGH, Justice.

This appeal is from a judgment of the district court in favor of appellee upon the last three of a series of eight notes, together with foreclosure of deed of trust given to secure their payment, all executed by E. O. Brusen-han and wife in November, 1924. Brusenhan and wife were not made parties to the suit.

The record discloses that after the execution of said notes and deed of trust Brusen-han and wife conveyed the land in question, situated in Coleman, county, Tex., to H. A. Loveless, in August, 1926, who assumed the payment of the balance due on said series of notes; that in March, 1927, Loveless and wife conveyed the property to Mrs. Martin Sander-son, who as part consideration therefor assumed the payment of the last six of said notes; that Mrs. Sanderson in Séptember, 1927, conveyed said lands to Geo. Lusk, who as part consideration therefor assumed the payment of these same notes; that in April, 1928, Lusk and wife conveyed said land to W. E. Haney, who as part consideration therefor assumed the payment of the last five of said notes. Two other defendants, who are appellants here, were alleged to be claiming some sort of interest in said land, inferior to tlie lion asserted by the appellee. The judgment for the debt and for foreclosure of ap-pellee’s lien was against only the subsequent purchasers, who had assumed payment of the notes.

But two propositions are presented on this appeal. The first is that the original makers of the notes and deed of trust are necessary parties to this suit. This contention is not sustained. After sale and conveyance of the property by the original owners, ana assumption of the debt by the grantees, tht> grantees became the principal obligors therein and the original makers only sureties. As such they were not necessary parties to a suit brought by the. holder of the notes and lien. Sewell v. Spitzer (Tex. Com. App.) 234 S. W. 1083; Hartfield v. Greber (Tex. Com. App.) 207 S. W. 85; 41 Corpus Juris 737; 50 Corpus Juris 26.

The second proposition of appellants is that there being no proof of the execution by Brusenhan and wife of the notes and deed of trust introduced in evidence, there was no evidence to support the verdict and the judgment. This proposition is likewise not sustained. The line of authorities cited by appellants relating to private instruments between the parties has no application to the facts of this case. The cause of action itself was based upon the instruments executed, and still in tlie hands of the original payee. They were introduced in evidence. It was not necessary to prove their execution, unless execution thereof by the makers was denied under oath as provided in the statute. This is by virtue of the provisions of the statute itself. No such verified denial was made in this case. See art. 3734, R. S. 1925; Abeel v. Weil, 115 Tex. 490, 283 S. W. 769; 17 Tex. Jur. 693.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


author: HIGGINS, Justice.

text:
    HICKS v. DUNLAP.
    No. 2820.
    Court of Civil Appeals of Texas. El Paso.
    April 27, 1933.
    Rehearing Denied May 11, 1933.
    Lem Wray, of Waxahachie, for appellant.
    A. D. Gray, of Waxahachie, and A. R. Stout, of Ennis, for appellee.
   HIGGINS, Justice.

This is a suit by Hicks against Mrs. Anna J. Dunlap to recover damages for an alleged wrongful breach of a contract of employment. It was allegfed that defendant employed plaintiff for the term of one year beginning September 1, 1925, and discharged him on June 1, 1926.

Upon special issues the jury found:

1. Mrs. Dunlap employed Hicks for the term of one year at a salary of $100 per month.

2. Hicks represented prior to such employment that he was a skilled horticulturist and experienced grower of hot house plants.

3. Mrs. Dunlap relied upon such representations.

4. Such representations were not false and untrue.

5. The other help and employees of Mrs. Dunlap were prevented from performing competent and efficient service on account of the action and conduct of Hicks.

6. Mrs. Dunlap did not suffer a loss of business and profit on account of complaints made to her customers by Hicks.

7. Hicks did not perform his services in a competent and efficient manner.

8. Mrs. Dunlap was unable to have her other employees work with Hicks in a reasonable and efficient manner on account of the action and conduct of Hicks with said employees.

9. By the use of reasonable diligence Hicks could have earned from other employment, during June, July, and August, 1926, the sum of $90.

At the request of plaintiff the court submitted his special issue No. 2, which reads: “Do you find and believe, from a preponderance of the testimony, that the defendant, on or about June 1st, A. D. 1926, breached the terms of such contract, if any with plaintiff, by discharging him from her employment?” This was answered “Yes.”

The questions presented by the first two propositions cannot be reviewed in the absence of a statement of facts.

By the third and fourth propositions it is asserted that, upon the answer to plaintiff’s requested issue No. 2, he was entitled to judgment; and, in any event, such finding was contradictory of findings 5, 7, and 8, and for that reason a mistrial should have been entered and a new trial granted.

It is true the defendant breached the contract in the sense that she discharged the plaintiff before the expiration of the year, but said findings 5, 7, and 8 show she had the right to do so. 18 R. C. L. 518; 39 C. J. 83; 1 Labatt on Master & Servant, 912; United O. & R. Co. v. Grey, 47 Tex. Civ. App. 10, 102 S. W. 984.

The breach of her contract was therefore not a wrongful one and she incurred no liability in so doing. Johnson v. Van Winkle G. & M. Co., 130 N. C. 441, 41 S. E. 882.

For this reason plaintiff was not entitled to judgment upon the finding made in response to the issue requested by him.

Nor are the findings contradictory. Findings 5, 7, and 8 simply establish the right of defendant to discharge the plaintiff, and that her breach of the contract of employment was not wrongful.

As to the suggestion of condonation and waiver by the defendant, there is no pleading raising such an issue, and, in the absence of a statement of facts, it cannot be determined whether such an issue was raised by the evidence.

Affirmed;


text:
    TEXAS EMPLOYERS’ INS. ASS’N v. EDWARDS.
    No. 2817.
    Court of Civil Appeals of Texas. El Paso.
    April 20, 1933.
    James P. Swift, of Dallas, and Woodward & Coffee, of Big Spring, for appellant.
    J. B. Cotten, of Crane, and Henry Russell and Hill D. Hudson, both of Pecos, for ap-pellee.
   HIGGINS, Justice.

This suit is to set aside a ruling of the Industrial Accident Board. Judgment was rendered in appellee’s favor for lump sum settlement in the sum of $5,347.89, as compensation for injuries alleged to have been sustained by him in Winkler county on September 16, 1931, while an employee of the Stanolind Oil & Gas Company.

The question of appellee’s average weekly wage was submitted under subdivision 1 of section 1, art. 8309, R. S.

Appellant presents the contention that the evidence was insufficient to show appellee’s average weekly wage under this or any other subdivision of said section as a basis for the award of compensation.

Appellee concedes the evidence is insufficient to establish his average weekly wage under that subdivision, but contends the evidence is sufficient to show such wage under subdivision 2, and the judgment should, for this reason, be sustained. As to the sufficiency of the evidence to sustain the judgment under subdivision 2 we need not inquire. The judgment is based upon a finding of the average weekly wage under subdivision 1, and it cannot be sustained even if there is sufficient evidence to show such wage under subdivision 2. Appellee waived his right of recovery under subdivision 2 by failing to request the submission of his average weekly wage under that subdivision. For this reason no finding by the court, under subdivision 2, can be implied in support of the judgment. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.(2d) 591.

The refusal to exclude the X-ray pictures referred to in the sixth proposition presents no error. The objection urged against their admission in evidence is a matter which should have been raised by motion to suppress, as provided by article 3765, R. S.

Upon direct examination, appellee testified he had received some payments of compensation. The amount of sueli payments was not shown. Appellant presents the point that, since plaintiff’s own testimony shows he had received some payments, it was incumbent upon him to go farther with the evidence and show the amount received, and, in the absence thereof, it was impossible for the court to determine the amount of the judgment to which he was entitled.

‘ Payment is affirmative defensive matter which must be pleaded by the defendant. In the absence of pleading by defendant raising the defense, the matter referred to was not in issue, and presents no error. Hander v. Baade, 16 Tex. Civ. App. 119, 40 S. W. 422.

•Reversed and remanded.


text:
    HOUGH v. GRAPOTTE.
    No. 9045.
    Court of Civil Appeals of Texas. San Antonio.
    April 12, 1933.
    Rehearing Denied May 10, 1933.
    Dodson & Ezell, of San Antonio, for appellant.
    Arnold & Cozby, of San Antonio, for ap-pellee.
   FLY, Chief Justice.

This suit was instituted by Edward J. Hough, executor of the estate of George L. Galbraith, deceased, against appellee, Marie Grapotte, to recover certain tracts of land in Bexar county. It was alleged that appellant was duly appointed executor .of the estate of Galbraith in Kossuth county, Iowa, that the will of said G.albraith was probated both in the Iowa county and in Bexar county, Tex. The action was one of trespass to try title to land in Bexar county. The cause was submitted to a jury on special issues and upon the responses of the jury judgment was rendered in favor of appellee for one-half of the tracts of land described in the petition. The jury found, that at the date of the purchase of each tract of land George L. Galbraith was domiciled in the state of Texas and was not a citizen of Iowa, and that the lands were not paid for out of funds derived from the personal earnings, profits, and interest on moneys invested by Galbraith, which he accumulated while he was domiciled in Iowa, prior to the time he established his domicile in Texas.

It was alleged that the money which paid for the lands in Texas was acquired by Galbraith in Iowa, and was, under the laws of that state, the separate estate of said Galbraith, that the rule as to community estate does not exist in Iowa. It is the claim of appellee that she is the legal owner of the land through a bequest made to her by her sister, Mrs. Galbraith, in her will duly probated in Bexar county, after her death and after the lands had been purchased in the name of her husband. In other words, she claimed that the laws of Texas prevailed as to the lands, which became community property when purchased with funds earned by the husband while the marital -state ex-istéd.

The case was tried upon the theory that money earned by the husband in Iowa was his separate property, and when he brought that money to Texas and bought land the land was his separate estate, unless at the time of the purchase the husband had fixed his domicile in Texas. That theory is supported by the case of Mayor v. Breeding, 24 S.W.(2d) 542, decided by Associate Justice Smith for this court, and in which a writ was refused by the Supreme Court.

The court clearly defined the word “domicile” and also gave special instructions asked by appellant, which undoubtedly made the whole definition one that was satisfactory to appellant. The first six propositions assail the manner in which the issue of domicile was presented to the jury. It is apparent from -the brief, as well as from issues requested by appellant, that the elements constituting domicile should not have been written into each issue, instead of giving a proper definition of domicile and tlien asking the jury to find whether Galbraith’s domicile was in Texas. We hold that the issue as to domicile was properly presented and overrule the first six propositions.

The seventh proposition is overruled. The issue as to domicile did not indicate anything as to the evidence to the jury and was not on the weight of the testimony.

The eighth and ninth propositions are overruled. The postal card and letter and the statements of the wife as to domicile were material. No other objection was urged. Any evidence tending to show domicile was material and the evidence objected to tended to throw' light on the question. It may be that in Iowa a. woman could not tell where she and her husband had their domicile, but we believe in Texas she could testify to that fact as well as the husband. There is no reason why she should not have known 'where she permanently lived or was domiciled.

The tenth proposition is untenable and is overruled.

The eleventh proposition is too farfetched to present any error. It was not error to permit counsel to tell the jury what the law of Texas is as to the rights of the wife in the property earned during the marriage relation.

The judgment is affirmed.


text:
    REASONOVER v. REASONOVER.
    No. 8552.
    Court of Civil Appeals of Texas. San Antonio.
    April 26, 1933.
    A. B. Crane, of Raymondville, for appellant.
    W. H. Crowell, of Shelbyville, Tenn., and Jesse G. Foster, of Raymondville, for appel-lee.
   SMITH, Justice.

The appeal is from a judgment of divorce and adjustment of property rights between Edna Reasonover and B. L. Reasonover. The latter has prosecuted the appeal. No complaint is made of the divorce decree; that does not seem to matter. But the property division has evoked a bitter contest. The couple had been married ten years. They had and have no children.

The trial court awarded to the wife all the household effects, as well as other property, including the community homestead, the title to which in toto was specifically divested out of appellant and absolutely into appellee in fee simple. The result was that nearly all the community estate was awarded to the wife, free of incumbrance, while only a small portion was awarded to appellant, and that was so incumbered as to render it of but little net value. In addition appellant was penalized for a $250 fee to be paid appellee’s counsel.

Appellant raised the question of the jurisdiction of the trial court to hear and determine this cause. The question was certified to the Supreme Court and by that court answered adversely to appellant on March 22, 1933, R. L. Reasonover v. Edna Reasonover, 58 S.W.(2d) 817.

The record shows that both parties, from the time of their marriage, worked, separately or together, in accumulating the community estate, and at the time of the trial each was employed and was maintaining herself and himself. Both are healthy and unincum-bered, equally able to take care of themselves, and, while the trial court was not required to divide the estate equally between the two, the record does not seem to present any reason for the apparently harsh discrimination in favor of appellee against appellant in -apportioning the community estate. Neither party seemed to possess any separate estate.

Appellant’s second proposition must be sustained to the effect that the court exceeded its power in divesting appellant of title to his estate in the homestead and investing the whole title thereto in appellee. Under a proper state of facts the court would have the power to decree the use of the homestead, or even a life estate therein, in appellee, or to order its partition, or its sale and a division of the proceeds. Bnt it had not the power to divest appellant of his title in community realty, to wit, the homestead, in this case. 15 Tex. Jur. p. 584, § 108; Speer’s Law of Marital Rights, § 555; article 4638, R. S. 1925; Tiemann v. Tiemann, 34 Tex. 523; Long v. Long, 29 Tex. Civ. App. 536, 69 S. W. 428.

Other questions are sought to he raised in the case, but they are not likely to arise upon another trial, and therefore need not be discussed here. •

The decree of divorce will be affirmed, but in all other respects the judgment will be reversed and the cause remanded, at the cost of appellee.

Affirmed.in part; reversed and remanded in part.


author: O’QUINN, Justice.

text:
    PERRY et al. v. DE BORD et ux.
    No. 2363.
    Court of Civil Appeals of Texas. Beaumont.
    April 13, 1933.
    Spencer, Rogers, Lewis & Slatton and C. L. Bell, all of San Antonio, for appellants.
    Jas. A. King, of Austin, and Thos. B. Smiley, of Karnes City, for appellees.
   O’QUINN, Justice.

This appeal was taken from a judgment of the district court of Karnes county, to the Fourth Court of Civil Appeals at San Antonio, and filed on the docket of that court on September 5, 1931, and was by the Supreme Court duly transferred from said Court of Civil Appeals to this, the Ninth Court of Civil Appeals, aiid was duly filed on the docket of this court on August 1, 1932, and was by this court, on December 20, 1932, set for submission on February 20, 1933.

The case is before us without briefs by either party, and no excuse is shown why briefs have not been filed. It is well settled that the failure of the parties to an appeal, without good cause being shown, to file briefs in accordance with the statute (Rev. St. 1925, art. 2283) and the rules prescribed by the Supreme Court, authorizes the Court of Civil Appeals to dismiss the appeal without searching the record for fundamental error. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.(2d) 811; United States Fidelity & Guaranty Co. v. Hardy (Tex. Civ. App.) 24 S.W.(2d) 462 (writ dismissed); Ferguson v. Harris County (Tex. Civ. App.) 42 S.W.(2d) 297; Yuba Oil Co. v. Williams (Tex. Civ. App.) 50 S.W.(2d) 416.

The appeal is dismissed.


author: BLAIR, Justice.

text:
    FIRE PROTECTION CO. OF AMERICA v. STATE.
    No. 7939.
    Court of Civil Appeals of Texas. Austin.
    March 29, 1933.
    Rehearing Denied April 19, 1933.

      Andrews, Streetman, Logue & Mobley and Daffan Gilmer, all of Houston, for appellant.
    James V. Allred, Atty. Gen., and Sidney Benbow, Asst. Atty. Gen., for the State.
   BLAIR, Justice.

This appeal is from an order overruling appellant’s motion to vacate an order appointing a receiver to take charge of the properties and wind up the affairs and business transacted in this state by appellant, a Delaware corporation. The receivership arose as follows: A suit was filed by the Attorney General at the instance and reguest of the board of insurance commissioners of Texas, the petition alleging that appellant, a Delaware corporation, had obtained a permit to engage in the fire insurance business in Texas, which permit expired in October, 1931; that while its permit was in force, it had written many policies of insurance; that it had not renewed its permit and had abandoned its insurance business; that it was hopelessly insolvent; that it had many outstanding obligations in the state of Texas, which it was not attempting to discharge; that it had attempted to release obligations owing to it by other associations, partnerships, or corporations, whose officers were also officers of appellant, in fraud of the rights of creditors and policyholders of appellant. That appellant had never written insurance except in Texas and had abandoned any purpose of writing insurance, and was making no effort to preserve its properties or discharge its obligations; that it had numerous outstanding policies of insurance in this state which it had- attempted to rein-sure .with a certain company, but had not paid the reinsurance premiums, and for that reason the. reinsurance company was about to cancel all of said policies, to the damage of the policyholders in this state.

Upon these allegations of fact which were duly sworn to, appellee prayed for the appointment of a receiver to take charge of the affairs and property of appellant within this state, for the purpose of protecting the rights- and interest of the creditors and policyholders of appellant in this state. The receiver was appointed after notice and hearing.

Appellant contends that the trial court erred in overruling its motion to vacate the receivership upon the following grounds:

1. That since appellant is a foreign corporation without a permit to do business in Texas, the Attorney General had no authority to institute this suit in the nature of guo .warranto proceedings against appellant, and that such proceedings cannot support the order of the court appointing the receiver of such foreign corporation. This contention is not sustained.

The nature and main purpose of the Attorney General’s suit was to wind up the business affairs and subject the properties to the discharge of the corporation’s obligations contracted while it had a legal permit to transact the business and incur the obligations. By obtaining its permit to-do business in Texas, appellant necessarily subjected its business transactions and obligations to the jurisdiction of the courts, and manifestly appellant cannot oust that jurisdiction of the courts by merely refusing to renew its permit, thereby rendering itself a foreign corporation without a permit to do business in Texas.

2. That the appointment of a receiver is essentially ancillary to a substantial cause of action in favor of the party seeking the receivership, and is not available here where no such cause of 'action is made to appear, or where no redress independent of the receivership is prayed, or where the interest of complainant did not imperatively require the receivership to effectuate the relief sought by the suit out of which the receivership issued. This contention is not sustained.

There is no dispute as to the rule of law announced by the many authorities cited by appellant to the effect that while the appointment “of a receiver may be a part of the relief asked, such appointment is hot final relief, nor is it the end or object of litigation ; it is merely an ancillary, auxiliary, incidental and provisional remedy, allowable only in, or in connection with, an action pending for some other purpose, and in which there is a prayer for other and final or ultimate relief.” 1 Smith’s Law and .Procedure of Receivers (2d Ed.) 50. Such rule of law is well settled in Texas. United North & South Oil Co. v. Meredith (Tex. Civ. App.) 258 S. W. 550, and eases there cited. We differ, however, with appellant’s interpretation of the Attorney General’s petition as not alleg ing any cause of action for otlier relief to wliieli the receivership is ancillary. The main purpose of the suit was to wind up the affairs of appellant legally contracted while it had a permit to do business in Texas. That is, to sell its properties and pay off its debts. The receivership is only ancillary to that end. Lloyds of Texas v. Bobbitt (Tex. Com. App.) 55 S.W.(2d) 803; State v. Robinson (Tex. Civ. App.) 42 S.W.(2d) 457; State ex rel. Missouri Life Ins. Co. v. Hall (Mo. Sup.) 52 S.W.(2d) 174. These cases are similar on point of fact with the instant case. They hold that a receiver may be appointed for the purpose of winding up the affairs of an insolvent insurance company in a state. Appellant contends, however, that these cases are distinguishable because of the fact that appellant did not have a permit to do business in Texas at the time this suit was instituted, and the receiver appointed. A foreign corporation cannot contract debts and obligations during the period it is legally authorized to do business in Texas, then abandon and refuse to do business in Texas and seek to dispose of its properties in Texas without attempting to discharge its contracts and obligations with Texas citizens, and claim immunity to the jurisdiction of the Texas courts because it is a foreign corporation without a permit to do business in Texas.

Nor do we sustain appellant’s contention in this connection that no creditor of appellant is shown to have instituted this suit or caused it to be instituted. The suit was instituted by and at the reguest of the board of insurance commissioners of Texas, through the Attorney General under the provisions of article 4691, R. S. 1925, which make it the duty of said board to examine into the affairs of insurance companies doing business in Texas; and where the facts warrant, to institute proceedings for the purpose of closing up the affairs of an insolvent insurance company ; and which further provides that such suit shall only be maintained by the board of commissioners through the Attorney General. It is true this statute further recites that it relates to “any such insurance company organized under the laws of this state.” However, article 5068, R. S., provides that all foreign corporations seeking a permit to do business in Texas or to contract or write insurance within this state shall be held to have assented to the conditions of this statute as a condition precedent to engage in the insurance business within this state. And manifestly the insurance commissioner and the Attorney General do not lose their authority to close up the affairs of an insolvent insurance company merely because it has refused to take out a permit to continue business and has attempted to abandon its business legally written in Texas.

3. That in providing the board of insurance commissioners of Texas with statutory authority to administer the affairs of insolvent foreign insurance corporations permitted to do business in Texas, a complete protection .was thereby given to all policy'holders or creditors; and that the appointment of the receiver herein was unlawful and usurped the authority so vested in the board. Article 4925, R. S. 1925. The board alleged that the policyholders and creditors were not adequately protected; and that appellant was attempting to dispose of its property without p'aying its obligations. The board is not authorized by the statute cited, or any other statute, to take charge of appellant’s properties and .apply them to payment of its debts as an administrative function of the board; but to so apply the properties to the discharge of the debts a court proceeding like the one here instituted is required. The protection given under the bond required by this statute to be filed with the board is not exclusive remedy in case of insolvency ; but other statutes of this state authorize the institution of proceedings by the board through the Attorney General to close up the affairs of an insolvent insurance company. Article 4691, R. S. 1925. It may also be observed here that appellant neither alleged nor proved, on its motion to vacate the receivership, that it had executed the bond required by article 4925; or that the policyholders and creditors were adequately protected by it. Absent such allegations and proof thereof by the appellant, we think the allegations and proof by the board that the policyholders and creditors of appellant had no adequate remedy and would suffer irreparable damages unless the properties of appellant were applied to payment of reinsurance premiums and debts, authorized this suit to so apply the properties, and the appointment of the receiver as ancillary’to that end.

4. That the receiver appointed was disqualified to accept the appointment.

The disqualification of the receiver was an issue presented to the trial court, and by it determined against the contention of appellant. We find no evidence in the record which would authorize us to set aside this decision of the trial court; nor do we find any evidence of an abuse of the discretionary power of the trial court to appoint the receiver named.

The judgment of the trial court will be affirmed.

Affirmed.