author: ALEXANDER, Justice.

text:
    BRYANT v. BEYER CO., Inc.
    No. 1329.
    Court of Civil Appeals of Texas. Waco.
    Feb. 23, 1933.
    Rehearing Denied March 30, 1933.
    J. E. Greer, of San Antonio, for appellant.
    Barnett & Klein, of San Antonio, for appel-lee.
   ALEXANDER, Justice.

This action was brought by Beyer Company, Inc., a corporation, against C. K. Bryant to recover the (balance of the purchase price of a radio set. The defense was payment. The verdict of the jury was for the plaintiff, and judgment entered accordingly. The defendant appealed.

The issue of payment arose in this manner. In September, 1929, a corporation by the name of A. F. Beyer Company, Inc., sold the radio set to Bryant, and took his written contract for the purchase price, payable in installments. This contract was assigned to a financing corporation. Thereafter A. F. Beyer Company, Inc., was adjudged a bankrupt. In 1930 Beyer Company, Inc., appellee herein, was incorporated. It purchased the Bryant contract from the financing corporation. At the time A. F. Beyer Company, Inc., was adjudged a 'bankrupt, Bryant was in the employment of the Texas Outdoor Advertising Company, which company was a creditor of the bankrupt corporation, A. F. Beyer Company, Inc. Bryant, evidently thinking that the bankrupt corporation still held his contract and that he could offset his personal indebtedness to the bankrupt against the amount due his employer by said bankrupt, sent the trustee in bankruptcy a check for the balance due on his contract, less the amount due his employer by the bankrupt, and marked same in full settlement of bis account. The trustee, without the knowledge or consent of the holder of the Bryant contract, cashed the check. The appellant contends that the cashing of said check with said indorsement estopped the appellee herein to demand the balance due on his contract. It is apparent that the appellant could not offset the indebtedness due by the bankrupt to his employer against his personal indebtedness to the bankrupt. It is also apparent that, since the claim against Bryant did not belong to the bankrupt corporation, the trustee in bankruptcy could not, by his conduct, release any part of appellant’s indebtedness to appellee. It appears that his account has been credited with the full amount which he paid to the trustee in bankruptcy, and the judgment rendered herein is only for the balance due on said contract. There is no error in the judgment of the trial court.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: FLY, Chief Justice.

license: Public Domain

text:
    TEXAS & N. O. R. CO. v. EAST et al.
    No. 9023.
    Court of Civil Appeals of Texas. San Antonio.
    March 8, 1933.
    Rehearing Denied March 22, 1933.
    Jno. C. North and R. B. King, both pf Corpus Christi, and Robt. R. Mullen, Jr., of Alice, for appellant.
    Perkins & Floyd, of Alice, for appellees.
   FLY, Chief Justice.

Tins is a suit for damages received by a shipment of cattle from Hebbronville to Fort Worth instituted by T. T. East and A. L. East against Texas Mexican Railway Company and the Texas & New Orleans Railroad Company. It was alleged that 242 calves, in good marketable condition, were placed in the pens of the Texas Mexican Railway Company at Hebbronville, and were confined therein for 24 hours before the railway shipped them, and it was further alleged that there was a delay of 24 hours en route to Fort Worth, and the delay caused shrinkage in weight and fall in the market,- and appellee sustained certain enumerated damages. The case was submitted on special issues and judgment rendered in favor of the first-named railroad and against the Texas & New Orleans Railroad Company for $609.4¿.

The only negligence alleged was delay, first of 24 hours, while at Hebbronville, a station of the Texas Mexican Railway Company’s line where the calves were delivered to the initial carrier, and of 24 hours while en route to Fort Worth.

Preceding the special issues, the court charged the jury: “You are also instructed that in this particular case where the evidence shows that neither the Plaintiffs nor anyone as their agent accompanied said shipment that if Plaintiffs show by a preponderance of the evidence that the calves involved in this shipment were delivered to the Defendants in good condition, and arrived at destination in a damaged condition, the presumption arises that such damage occurred while said animals were in the possession of said Defendants, and the Defendants then must free themselves from this presumption by showing from the evidence that they handled and transported said shipment with ordinary care.” '

The charge is assailed by appellant on the grounds that the charge is a rule of .evidence for the guidance of parties in offering proof, and is for the court and not the jury; that the charge is on the weight of the evidence,, is a general charge, and is a charge on a legal presumption not defined by statute. Appellant made objections to the charge, but no action is shown to have been taken by the court, or that the court ever had the exceptions called to its attention. There is “exception overruled” written under the names of the attorneys, but there is no action of- the court shown by a bill of exceptions. Article 2185 (Rev. St.); Bagley v. Pollock (Tex. Civ. App.) 19 S.W.(2d) 193; Great Northern Life Ins. Co. v. Holmes (Tex. Civ. App.) 267 S. W. 736. The mention of the objection to the charge in the motion for new trial, which was overruled, did not comply with the terms of the statute. The judge should have been notified of objections to the charge before it was delivered to the jury, and he should have acted thereon.

The fourth issue was as to negligence in the “handling and transportation” of the cattle. There is no allegation as to the manner of handling; the only negligence charged-being delay on the way. The charge is not objected to as presenting a matter of negligence not alleged, nor as to its general nature. The word “delay” is not mentioned in the charge, and if the jury considered delay it must h-ave been done under the general term “transportation.” The only objection to the charge was that there was no evidence proving negligence in handling or transportation. It was shown that the cattle which left Hebbronville on the afternoon of September 23 should- -have arrived in time for the market in Port Worth on September 25, but arrived only in time for the market on September 26. That showed a delay of 24 hours. It may be that the court meant by “handling and transportation” merely delay; the word handling not being used as to the manner the cattle were carried, as that word is usually made to mean negligible handling by the adjective “rough.” The third proposition is! overruled. Propositions 4, 5, and 6 are directed to the testimony, and are overruled. The amount of the verdict is supported by the evidence.

The seventh and eighth propositions are overruled. The jury found that the railroad was not negligent in confining the cattle in the pens at Hebbronville, but answered that there were damages, independent of any inflicted in Hebbronville, that were caused by the transportation of the cattle. The transportation of the cattle was almost entirely by the Texas & New Orleans Railroad Company. There was undoubtedly delay in the transportation, and the jury fastened the delay on the Texas & New Orleans Railroad Company.

The judgment will be affirmed.


author: HALL, Chief Justice.

text:
    PANHANDLE COMPRESS & WAREHOUSE CO. v. BEST.
    No. 3980.
    Court of Civil Appeals of Texas. Amarillo.
    March 8, 1933.
    Wynne & Wynne, of Athens, for appellant.
    V. H. McClintock, of Paducah, for appellee..
   HALL, Chief Justice.

Best sued the warehouse company in the justice court of Cottle county to recover the sum' of $2.50 which he alleges the warehouse company had wrongfully collected from him for fees and overcharges on five bales of cotton.. The warehouse company filed its plea of privilege, claiming its right to be sued in Henderson county. Plaintiff filed a controverting affidavit, and the’hearing was postponed by agreement to a day “to be designated by attorneys for defendant on some day during the month of April, 1932.” On May 6th thereafter, the court passed upon the plea of privilege, overruled it, and rendered judgment in favor of plaintiff for $2.50, with interest from the 6th day of January, 1932.

The transcript from the justice court shows that this judgment was set aside by agreement and the ease was tried in that court at the June term; that on June 20, 1932, the court, after hearing the pleadings and evidence, overruled tlie plea of privilege. There was no exception taken to this interlocutory judgment. The record further shows that on the following day the case was tried upon its merits and resulted in a judgment in favor of Best.

The warehouse company filed a written plea in the justice court and a cross-action against plaintiff for maliciously instituting his suit in Cottle county, in which it seeks to recover damages in the total sum of $125 for traveling expenses and attorney’s fees expended in defending the suit.

The warehouse company filed its appeal bond which recites that, on the 20th day of June, Best recovered a judgment against it for the sum of $2.50, and that the warehouse company had failed to recover judgment against Best upon its cross-action for the sum of $125, from which judgment the company appealed. The bond is dated the 20th of June, and marke'd “filed” by the justice of the peace on that date, although it appeals from a judgment rendered on the following day. We assume that this is a clerical error as to the date, and, so far as the record shows, there has been no appeal from the interlocutory judgment overruling the plea of privilege. The.record further shows that the transcript of the proceedings in the justice court was “issued 4 day of July, A. D., 1932,” by the justice of the peace, and filed the following day with the county clerk of Oottle county.

On the same day the attorney for Best filed a motion in the county court to dismiss the appeal because “the amount in controversy, to-wit: tlie sum of $2.50, is not within the appellate jurisdiction of this court.” The warehouse company was not represented at that time by any counsel present, and the court entered a judgment sustaining the motion, which further recites, in substance, that the defendant’s written answer and cross-action filed in the justice court was amended by oral pleadings at the time of the trial in that court.

Later, at the same term of the court, the warehouse company having learned that judgment had been entered against it on the 5th day of July, filed a motion praying that the judgment be set aside and that it be permitted- to appear and present its defenses, alleging that it had a meritorious defense, that it had filed its cross-action for $125 damages in the justice court -occasioned by reason of the plaintiff’s willfully and maliciously filing the suit with the purpose of injuring and harassing the defendant, and this motion was overruled on the 1st day of August thereafter. The warehouse company excepted and gave notice of appeal to this court.

By its first proposition, the appellant contends that, where a defendant files its plea of privilege in the justice court, which is overruled, and it appeals to the county court and there is no evidence that defendant has waived its plea of privilege, then upon a hearing, in the absence of defendant and defendant’s counsel, and without notice to defendant or its counsel, the court must, first dispose of the plea of privilege of defendant before hearing the main case.

Without discussing the merits of this proposition, suffice it to say that no appeal was prosecuted from the order of the justice of the peace overruling the plea of privilege. The appeal bond filed by the warehouse company describes only the judgment rendered against it for $2.50, and the record fails to show that any appeal was prosecuted to. the county court from the interlocutory judgment overruling the plea of privilege.

R. S. art. .2008, provides, in part, “Either party may appeal from the judgment sustaining or overruling the plea of privilege,” Ibut this right may be waived or abandoned at the option of the complaining party. Peden Iron & Steel Co. v. El Campo Rice Milling Co. (Tex. Civ. App.) 251 S. W. 543; Landrum v. McCall et al. (Tex, Civ. App.) 258 S. W. 196.

While the judgment of the justice court does not affirmatively dispose of the appellant’s cross-action, a judgment for plaintiff for the amount sued for, without mentioning the cross-action, by necessary implication disposes of the entire case. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, and authorities cited; 3 Tex. Jur. 121, § 58; Clay v. Marmar (Tex. Civ. App.) 156 S. W. 1125.

The ground of recovery asserted by the warehouse company in, its cross-action was subject to a general demurrer and the facts alleged showed no right to recover. The rule is firmly established in Texas which denies an award of damages for the prosecution of civil suits with malice and without probable cause, unless the party sued suffers some interference by reason of the suits with his person or property. Pye v. Cardwell, 110 Tex. 572, 222 S. W. 153; Panhandle Lumber Co. v. Fairey (Tex. Civ. App.) 3 S.W.(2d) 941: National Stock Yards National Bank v. Valentine (Tex. Civ. App.) 39 S.W.(2d) 907; Salado College v. W. A. Davis, 47 Tex. 131; McCaskill v. Clay (Tex. Civ. App.) 284 S. W. 643.

R. S. art. 2456, provides for an appeal by a party from the justice court by filing his appeal bond within ten days and further expressly provides: “When such bond has been filed with the justice, the appeal shall be held to be thereby perfected and all patties to said suit or to any suit so appealed shall make their appearance at the next term of court to which said case has been appealed without further notice.”

Article 2459 provides that, when an appeal has been perfected from the justice court, the justice of the peace shall immediately make out his transcript, and such transcript, properly certified, together with the original papers in the cause, shall be sent to the county clerk “on or 'before the first day of the next term of such court.”

The presumption in this case is that July 4th, the day upon which the transcript was filed in. the county court, was the first day of that term of said court, and'that July 5th was appearance day. As hereinbefore stated, the court called the case for trial and sustained the appellee’s motion to dismiss for want of jurisdiction.

It appears that on the 11th day of July, six days after the judgment of dismissal had been entered, the appellant’s attorneys wrote the county judge as follows: “We have a case of John Best v. Panhandle Compress & Warehouse Company in your Court wherein we represent the defendant, that was appealed by us from the Justice Court of Precinct No. One. Mr. V. H. McClintock is attorney for the plaintiff! in this case. We will appreciate it if you will notify us as to the setting of this case in order that we can make our preparations to be ready for trial. Wo are sending Mr. McClintock a copy of this letter for his information and approval.”

It further appears .that thereafter, on July 18th, the defendant received a copy of the court’s judgment which, had been entered on July 5th.

The appellant asserts that, after it had perfected its appeal to the county court on the 29th day of June, 1932, by filing its appeal bond, the plaintiff procured a transcript from the justice of the peace and filed it in the county court on July 0th and proceeded with a hearing of the matter without any notice whatever to the appellant or its counsel.

We find nothing in the record which sustains this statement. Upon its face, the record shows that the justice of the peace prepared and filed the transcript, and the statute quoted above does not require either party to be notified of such filing. On the contrary, it provides that all parties shall make their appearance at the next term of the court to which the caso has been appealed without further notice. Of course, if appellant had shown that through fraud of opposing counsel it had failed to appear or have its counsel present when the case was called, the equitable powers of this court might be 'invoked and relief granted, but there is nothing in the record which shows that appellant or its counsel has been misled by any promises on the part of opposing counsel or by the court to set the case, and we are without authority to grant any relief. Ulider the record before us, the court would have been justified in dismissing the appeal for want of prosecution. Prior to the time court met, appellant made no effort to have the case set for a day certain, made no agreement with opposing counsel to that effect, and had employed no local counsel to represent it. No equitable ground is shown entitling appellant to a reversal because final judgment was entered against it upon appearance day. Maytag Southwestern Company v. Thornton (Tex. Civ. App.) 20 S.W.(2d) 383; St. Paul Fire & Marine Ins. Co. v. Earnest (Tex. Civ. App.) 293 S. W. 677.

We affirm the judgment of the county court in dismissing the appeal, and, because the county court had no jurisdiction, this court has acquired none.

The appeal is dismissed.


author: SMITH, Justice.

text:
    HOERSTER v. JOHNSON CITY STATE BANK et al.
    No. 9028.
    Court of Civil Appeals of Texas. San Antonio.
    March 8, 1933.
    II. IT. Sagebiel, of Fredericksburg, for appellant.

      Alfred Betseh, of Fredericksburg, for ap-yiellees.
   SMITH, Justice.

Max H. Beckmann, a veteran of the World War, borrowed from the government the sum of $430 on an adjusted compensation certificate issued to him by the government under the provisions of the World War Adjusted Compensation Act, in which it is provided as follows: “No sum payable under this chapter to a veteran or his dependents, or to his estate, or to any beneficiary named under Part V of this chapter, no adjusted service certificate, and no proceeds of any loan made on such certificate shall he subject to attachment, levy, or seizure under any legal or equitable process, or to national or State taxation.” Title 38, § (US, Ü. «. Code (38 USCA § 618).

The proceeds of this loan were received by Beckmann in the form of a federal treasury warrant for said sum of $432, which upon its receipt Beckmann deposited in his account in the Johnson City State Bank. At the time of this deposit Beckmann had a balance of 49 cents in said bank. Subsequently he deposited another item of $19.15 in said bank. At a later date, when his balance had been reduced to the sum of $193.20, one of his creditors (of which D. J. Iloerster is now receiver) procured and had served a writ of garnishment upon said bank, to impound the funds in Beck-mann’s account, and subject them to the payment o-f a $12,000 judgment which the creditor held against Beckmann. The trial court held that all of Beckmann’s balance, less the amount of said items of 49 cents and $19.15, was exempt from garnishment as being a part of the proceeds of said loan. Receiver Iloer-ster has appealed.

We are of the opinion that the judgment should be affirmed. The provision of the federal statute, that “no proceeds of any loan made” to a veteran on his adjusted compensation “certificate shall be subject to attachment, levy, or seizure under any legal or equitable process,” is very comprehensive.

Under the liberal construction to which such statutes as the compensation act are entitled, the exemption therein provided for attaches to the fund as long as it or the proceeds thereof may be traced.

Specifically, it follows such fund into a bank when deposited for the benefit of the veteran or his family, since the deposit of exempt funds in a bank does not affect the debt- or’s exemption or change the exempt character of the funds. Second Nat. Bank v. Hoblit, 41 Ohio App. 126, 179 N. E. 812; Payne v. Jordan, 152 Ga. 367, 110 S. E. 4; Gaddy v. Bank, 115 Tex. 393, 283 S. W. 472; Frierson v. Bank (Tex. Civ. App.) 285 S. W. 941; Annotations 67 A. L. R. 1205, 55 A. L. R. 612. The specific statute here in Cfuestion was expressly so construed in Second Nat. Bank v. Hoblit, supra, and seems never to have been construed otherwise by any court.

The fact that two small items, of 49 cents and $19.15, respectively, had been deposited alongside the exempt fund does not affect the traceability of the latter, which may be saved to the veteran by excluding the amount of the other two items from the award, and subjecting the same to the debts of the veteran, as was done below.

The judgment is affirmed.


author: HICKMAN, Chief Justice.

text:
    CALLIHAN v. COLORADO NAT. BANK.
    No. 1071.
    Court of Civil Appeals of Texas. Eastland.
    March 10, 1933.
    F. L. Kuykendall and A. M. Howsley, both of Albany, for appellant.
    R.’ H. Ratliff and O. H. Earnest, both of Colorado, Tex., for appellee.
   HICKMAN, Chief Justice.

Appellant recovered judgment for $386.12, besides interest and costs of suit, against R. L. Lunceford in the county court of Shackel-ford county. Ancillary to his suit against Lunceford he caused a writ of garnishment, to be issued and served upon appellee. An answer was filed by the garnishee, admitting an indebtedness of $170.79 to Lunceford. Appellant controverted the answer, claiming in his controversy that the garnishee was indebted to Luneeford in the sum of $750 at the time the writ of garnishment was served. This controverting affidavit was filed in the county court of Shackelford county. After appellant recovered judgment against Luneeford, the garnishment suit was transferred to Mitchell county, where the garnishee had its- domicile, and the clerk of the county court of that county issued citation to the garnishee, returnable to the next term of court, which convened on January 4, 1032. There were some negotiations between the attorneys with reference to a waiver of citation and trying the case prior to the January term, but these negotiations resulted in nothing, because the garnishee’s attorney concluded that it would be the safer practice to implead the defendant Luneeford. On the 5th day of January, 1932, same being the appearance day of the term of the court to which the garnishee was cited, a final judgment was entered against garnishee for $170.-79; the judgment reciting that the plaintiff appeared, not but wholly made default. Appellant’s attorney learned of the rendition of this judgment on or about the 18th day of January, and thereafter, during the term at which it was rendered, filed a motion for new trial, and later an amended motion, which was overruled, and this appeal followed.

Much of the appellant’s brief is devoted to the contention that the trial court abused his discretion in refusing to grant him a new trial upon the facts as developed in the motion therefor. We find it unnecessary to consider this matter, because there is an error of law in the rendition of the judgment pointed out in appellant’s brief which requires that the judgment of the trial court be reversed and the cause remanded for a new trial. It therefore becomes unnecessary to pass on the fact issues.

It is a well-settled rule of law that, when a iffaintifl: fails to appear and prosecuto its suit, it is error for the trial court to proceed to trial and enter judgment on the merits against plaintiff. The proper judgment under such circumstances is one of dismissal. Burger v. Young, 78 Tex. 656, 15 S. W. 107; R. B. George Machinery Co. v. City of Midland (Tex. Com. App.) 29 S.W.(2d) 966.

Appellee recognizes this rule of law, but insists that it has no application here, because the judgment rendered was in fact one in favor of the plaintiff. We cannot agree with this contention. Appellant was entitled to judgment as a matter of law against the garnishee on its answer for the sum of $170.79, and that judgment could have been rendered in Shackelford county. 1-Ie was not satisfied with garnishee’s answer and filed his controversy; whereupon the case was transferred to Mitchell county to try out the issues presented by the controverting plea. There was no issue as to the garnishee’s liability for $170.79. The only issue between the parties was the liability of the garnishee to the appellant for the difference between $170.79 and the amount of appellant’s • judgment against Luneeford. On this controversy the judgment of the county court of Mitchell county found that the law was with the garnishee and rendered judgment against it for $170.79 only. The effect of this judgment was to adjudicate the merits of plaintiff’s controversy against him. This was error.

Reversed and remanded.


author: MURRAY, Justice.

text:
    STATE HIGHWAY COMMISSION et al. v. HUMPHREYS et al.
    No. 9146.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Rehearing Denied March 22, 1933.

      Jas. V. Allred and T. S. Christopher, both of Austin, W. P. Wallace, Jr., of Del Rio, and A. R. Stout, of Austin, for appellants.
    Jones & Lyles, of Del Rio, for appellees.
   MURRAY, Justice.

This is an appeal from a temporary injunction issued by the district judge of Val Verde county, enjoining the state highway commission and the commissioners’ court of Val Verde county from re-routing and relocating state highway No. 3, which has for many years passed through the town of Comstock. The appellees - own property adjoining the present located highway, and are engaged in business within the town of Comstock.

Appellees base their right to this injunction on two main grounds: (1) That the highway commission acted arbitrarily and abused its discretion in relocating and re-routing this highway; (2) that their property has been taken and injured without due process of law.

We do not think that the highway commission abused or arbitrarily exercised their discretion in this matter. It is shown that the re-routing of this highway will eliminate a grade crossing over the railroad and some dangerous curves and turns. This is a matter addressed to the sound discretion of the highway commission, and, until it is clearly shown that they have -acted arbitrarily and abused their discretion, the courts will not interfere. The question of fraud, accident, or mistake was not raised in this case.

We cannot agree that appellees’ property was taken or injured in such a way as to give them a cause of action against appellants. Appellees allege they were injured in the following manner: At the present time they are enjoying a good business as a result of the travel over the present highway; that the traveling public are their principal-customers ; that, if this travel is re-routed over the proposed highway, they will lose their principal customers; and that their property will depreciate in value at least SO per cent. It was said in Heller v. Atchi-son, T. & S. F. Ry. Co., 28 Kan. 625: “The benefits which come and go from the changing currents o-f travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities.” If the public authorities could never change a street or highway without paying all persons along such thoroughfares for their loss of business, the cost would be -prohibitive. The highways primarily are for the benefit of the traveling public, and are only incidentally for the benefit of those who are engaged in business along its way. They build up their businesses knowing that new roads may be built that will largely take away the traveling public. This is a risk they must necessarily assume.

The old highway is to remain in its present condition; the only change will be that the traveling public will be given an additional route and one that will furnish them a better route, or else they would continue to use the old highway. Ex parte Sterling (Tex. Sup.) 53 S.W.(2d) 294; Gill v. City of Dallas (Tex. Civ. App.) 209 S. W. 209; Stanwood v. Malden, 157 Mass. 17, 31 N. E. 702, 16 L. R. A. 591; Wootters v. City of Crockett, 11 Tex. Civ. App. 474, 33 S. W. 391; Quisenberry v. Mitchell, 116 Tex. 378, 292 S. W. 160; Heathman v. Singletary (Tex. Com. App.) 12 S.W.(2d) 150.

Appellees complain that the highway commission, in laying out and opening the new road, failed to give, post, serve, or advertise any kind or character of notice of their intention so to do, and that same rendered their acts void. Appellees base this contention on the theory that formerly the commissioners’ court of a county was required by articles 6703 and 670i5 to give such notice, and, the Legislature having vested in the highway commission the same powers formerly exercised by the commissioners’ courts of the counties, that therefore the highway commission should be required to give the same character of notice, and that failure to give such notice would be a jurisdictional matter rendering the acts of the commission void.

Unquestionably the highway commission now has the powers with reference to state highways that were formerly exercised by the commissioners’ court. Vernon’s Ann. Civ. St. arts. 6673 and 6674n; Hall v. Wilbarger County (Tex. Cr. App.) 37 S.W.(2d) 1041, 1044; Nairn v. Bean (Tex. Com. App.) 48 S.W.(2d) 584.

We cannot agree that the highway commission is bound by the provisions of articles 6703 and 6705, which apply to commissioners’ courts, when laying out new roads or discontinuing, altering, or changing the course of established roads. The case of Hall v. Wilbarger County, supra, seems to favor appellees’ contention, but we notice this suit was filed on February 22, 1930. Article 6674n did not become effective until ninety days after March 20, 1930. We feel that, since the enactment of article 6674n, the commission is not bound by any of the provisions of articles 6703 and 6705.

Furthermore, there is no question in this case of eminent domain or condemnation proceedings. The persons across whoso land this new highway runs are not complaining in this case. The properties of appellees are some distance from the new highway.

We do not feel that appellees have shown themselves to be entitled to a temporary injunction in this case.

The order appealed from is reversed, and the temporary injunction is hereby dissolved.

On Motion for Rehearing.

In their motion for a rehearing appel-lees contend that the admission on the part of the highway commission, to the effect that the reason for selecting the new location of the highway in question was that the Federal Bureau of Roads would not approve any other location, was sufficient to establish the fact that the highway commission had delegated its power to locate state highways to the Federal Bureau of Roads.

We do not agree with this contention. The highway commission properly exercised its discretion when it selected a location on which the Federal Bureau of Roads was willing to extend federal aid. Singeltary v. Heathman (Tex. Civ. App.) 300 S. W. 242, affirmed by the Commission of Appeals in 12 S.W.(2d) 150.

The motion for a rehearing is overruled.


author: JONES, Chief Justice.

text:
    NATIONAL HARDWARE & STOVE CO. v. WALTERS et al.
    No. 11115.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1933.
    Rehearing Denied March 25, 1933.
    Dohoney, Beauchamp & Lawrence, of Paris, and Tom L. Beauchamp, of Tyler, for appellant.
    Hamp P. Abney, of Sherman, for appellees.
   JONES, Chief Justice.

In a suit in the district court of Grayson county, Tex., appellant, National Hardware & Store Company, a corporation, with its domicile in Lamar county, sought to set aside a default judgment theretofore rendered against it by such court in favor of John Marshall, in the sum of $999.31, to enjoin him from in any way enforcing the judgment and to enjoin W. A. Walters, sheriff of Lamar county, from levying the execution, sued out, or attempting to collect the judgment. From an adverse judgment, appellant has duly perfected its appeal. The term appellee will refer to John Marshall, the judgment creditor. The following are the necessary facts:

The judgment sought to be enjoined was rendered December 10, 1930, upon appellant’s default and upon proof of appellee’s claim. The petition upon which such judgment was rendered alleged that “appellant is a corporation duly incorporated, having its principal office and place of business in the City of Paris, Lamar County, Texas, and having an agent in Grayson County, Texas, whose name is J. II. Cothran, on whom 'service of citation may be bad.” Tbe judgment recited that appellant was duly served with citation.

Citation was duly issued on this petition, and tbe following return shows the service had: “Came to hand on the 5th day of November 1930 at 4 o’clock P. M., and executed on the 5th day of November 1930 by delivering to the National Hardware & Stove Company, a corporation, by serving agent J. H. Cothran, who resides in Grayson County. J. H. Cothran, the within defendant, in person a true copy of this citation.” The copy of the citation thus delivered to Cothran was by him timely delivered to E. C. Fox, appellant’s president and manager. Pox was of the' opinion that the service was not sufficient to require appellant to answer, because the citation was not served on one of its officers, and paid no further attention to the matter, until approximately four months thereafter, when he was presented by Walters, sheriff of Lamar county, with an execution duly issued on the judgment, when the instant suit was instituted. This suit was tried on its merits before the court, without a jury, with the result above stated.

Appellant’s petition was duly verified and set up the facts relied upon to show that judgment was rendered without legal service. It denied that Cothran was its local agent in Grayson county, and denied that it was doing business in Grayson county. The petition also contained allegations, showing on its face a valid defense to the suit, in which judgment had been rendered against it, and sought a trial of the issues made toy appellee’s petition in the former suit and the defenses to such suit made by its petition in the instant suit. Appellees, in their answer, alleged facts designed to show that Cothran was appellant’s local agent at the time of service, and that the default judgment was supported by proper service upon appellant. Such answer also contained allegations, which controverted appellant’s claim of a valid defense to the former suit, and contained further allegations tending to support the judgment rendered in such suit.

Appellant’s theory of the instant suit is, that it constitutes a direct attack upon the judgment rendered December 10, 1930. The court below apparently tried the suit upon this theory and we shall so treat it. The issues tendered by appellant in its pleading are: (1) That judgment was improperly rendered against appellant in favor of appellee in the former suit, for the reason that there was no legal service of citation; and (2) that appellant had no valid claim against- it for any sum, and especially for the sum rendered.

Evidence on both of these issues was heard by the court, and appellant was denied relief on either issue. There were no findings of fact and conclusion of law filed by the trial court, but we are of the opinion that the evidence in the record would warrant the trial court in rendering the judgment on either or both of these issues.

Article 2029, R. S., provides three ways by which a corporation may be served with citation: (1) Upon the president, secretary, or treasurer of the company; (2) upon a local agent representing the company in the county where suit is brought; and (3) by leaving a copy of the citation at the principal office of the company during business hours., Webb v. Texas Christian University, 48 Tex. Civ. App. 264, 107 S. W. 86, 87; Household Furn. Co. v. Alvarado (Tex. Civ. App.) 246 S. W. 1111. The term “local agent,” as used in this statute, means a person who represents a corporation, in the promotion of the business for which it was incorporated, in the county in which the suit is filed. Avery Co. of Texas v. Wakefield (Tex. Civ. App.) 225 S. W. 875. Do the facts show t6hat Coth-ran was appellant’s local agent in Grayson county at the time of the service of the citation?

The Marshall Hardware Company, a corporation, with its domicile in the town of Whitesboro, Grayson county, in 1928 and until in June, 1930, was indebted to appellant in a large sum of money. On February 1, 1929, appellant’s president, E. C. Fox, took control of the business of this corporation in Whitesboro and placed J. H. Cothran in charge thereof. The inference is clear that this was done for appellant’s benefit. Coth-ran managed and controlled this business under the direction of Fox until on June 26, 1930, when appellant took over the entire business, together with all of its assets, and assumed payment of all the debts of the Marshall Hardware Company. The principal part of the merchandise stock of this business was moved from Whitesboro and placed in appellant’s business at Paris. Coth-ran was placed in charge of the Whitesboro business for tbe purpose of winding it up. He was to sell the merchandise that had not been removed to Paris, and to collect all notes and other indebtedness owing to the business. When Cothran was served with citation, he was residing in Grayson county and was engaged actively in winding up for appellant the business of the Marshall Hardware Company. Through Cothran, as its agent, appellant was then doing business in Grayson county, and tbe conclusion is inevitable that he was its local agent, within the meaning of that term as used in article 2029, supra, and service could be had upon appellant by serving such local agent with a copy of the citation. It is true that the return of the officer does not describe Cothran as a local agent, tout,does describe him as an agent residing in Grayson county. We think such return is in substantial compliance with the statute. Houston & T. C. R. R. Co. v. Burke, 55 Tex. 328, 40 Am. Rep. 808; United Mutual Fire Ins. Co. v. Talley (Tex. Civ. App.) 211 S. W. 653; Delaware Ins. Co. v. Hutto (Tex. Civ. App.) 159 S. W. 73, 74. We therefore hold that appellant was duly served with citation, as recited in the judgment of December 10, 1930, and, as appellant, through its president, timely received a copy of this citation, it cannot complain that judgment by default was taken against it.

However, under the second issue made by appellant’s pleading, to the effect, that it had a valid defense, the evidence clearly sustains the finding of the court that no valid defense existed to appellee’s claim. The undisputed evidence on this issue shows that, in 1928, the Marshall Hardware Company was indebted to the International Harvester Company in the sum of $2,400, and that such latter company held as collateral security for this debt notes given by customers to the former company in the aggregate amount of $6,300; that appellee, owning no interest in the Marshall Hardware Company, and appellant' agreed to take up this indebtedness at a discount offered by the International Harvester Company, by each one advancing $1,-000, and have delivered to them as collateral security the notes above mentioned. The undisputed evidence shows that a very-small amount of this indebtedness, that was owed primarily by the Marshall Hardware Company, was paid to John Marshall. The notes passed into the hands of appellant, as well as the entire assets of the Marshall Hardware Company, of a value much more than the indebtedness due on the money advanced to the International Harvester Company; that the sum of $1,457.24 in money had been collected by appellant, as proceeds of these notes, and goods, which secured some of them, to the value of $375 had been repossessed by appellant, and both money and goods applied to its own use, before Marshall instituted his suit against appellant to recover the amount he had thus advanced. The evidence as to the amount of indebtedness due appellee at the time judgment was rendered in his favor on December 10, 1930, is in dispute, but ap-pellee’s testimony is direct and positive that, after allowing all credits due appellant, it was indebted to him in the amount of the judgment rendered. This would sustain the finding of the court that appellant did not have a valid defense of appellee’s suit.

It thus appears from this record that the court not only heard evidence on the issue of proper service on appellant, on the former suit filed by appellee, but also retried the issues between appellant and appellee as to the latter’s right to recover the judgment rendered, and denied appellant any relief whatever. As we have seen, the facts in this record support the court’s judgment in the instant case, and it necessarily follows that, in the opinion of this court, the judgment of the lower court should be affirmed, and it is so ordered.

Affirmed.

On Motion for Rehearing.

In its motion for a rehearing, appellant alleges that the finding of this court, that Coth-ran was its local agent in Grayson county, is not supported by evidence, and contends that the undiputed evidence shows that Coth-ran’s sole business as an employee was restricted to collecting indebtedness due the Marshall Hardware Company, whose assets appellant had taken over.

The purchase of the assets of the Marshall Hardware Company was made on June 26, 1930. The undisputed evidence is that Coth-ran was placed in charge of these purchased assets; that he shipped a majority of the stock, under appellant’s direction, to his place of business in the city of Paris; that there was considerable merchandise unshipped and remaining in Whitesboro, together with a great many notes and other indebtedness, all of which were turned over to Cothran as agent for appellant; that he was to sell the un-shipped merchandise, and the notes and accounts he was to try to collect; that h& disposed of all the merchandise to dealers in Whitesboro during the time from June 26, 1930, until “up in the fall.” This is shown by the evidence of Cothran on cross-examination, and, as to the fact of the selling of the merchandise, by the evidence of Pox on cross-examination, and by the evidence of Will Marshall on direct examination. We held that this evidence showed appellant was doing business in Grayson county from June 26, 1930, through Cothran as agent, when citation was served.

Appellant also contends that the finding, that $1,457.20 was collected on the $6,347.75, the aggregate amount of the security notes securing appellant and John Marshall in the payment of the $2,000 advanced, has no evidence to sustain it. A small typographical error appears in this amount; i. e., the record shows the amount to be $1,457.24, and the original opinion will 'be corrected accordingly. C. D. Marshall testified that he audited, in May, the payments made on these security notes, and that the aggregate amount paid was the sum of $1,457.24. There was introduced in evidence the entire list of the security notes, with the credits marked thereon, and these credits amount to $1,457.24.

In paragraph 4 of appellant’s motion for a rehearing, complaint is made that the original opinion held that, because the president, E. C. Pox, knew of the suit and received a copy of the citation, appellant was estopped to complain of the judgment by default against it. The motion then concludes that “such holding is tantamount to a holding that, if a party defendant receives a citation,'he is thereby brought into court, regardless of the person on whom it was served, or the manner in which he received it.” No such conclusion is warranted by anything said in the original opinion. The paragraph of the opinion to which appellant alludes reads: “We therefore hold that, appellant was duly served with citation, as recited in the judgment of December 10, 1930, and as appellant, through its president, timely received a copy of this citation, it cannot complain that judgment by default was taken against it.” In other words, this court held that appellant was legally served with citation and that there existed no legal excuse for not obeying the summons.

We have again carefully examined the record and find no reason for changing our views, as expressed in the original opinion. The motion for rehearing is overruled.

Overruled.


text:
    LAMM v. DRISKELL et al.
    No. 9021.
    Court of Civil Appeals of Texas. San Antonio.
    March 15, 1933.
    J. M. Woods and L. J. Gittinger, both of-San Antonio, for plaintiff in error.
    Hertzberg & Kereheville, of San Antonio, for defendants in error.
   MURRAY, Justice.

On February 22, 1933, we granted the motion of defendants in error to strike from the record the statement of facts filed herein. The motion to strike was based upon the ground that the statement of facts was not approved and signed by the trial judge.

Plaintiff in error, E. J. Lamm, has filed his motion for a rehearing, which was submitted along with the main case. We find no reason to change our former ruling. A statement of facts not approved and signed by the trial judge does not meet the requirements of the law and cannot be considered by us as a proper statement of facts, and must be stricken from the record upon proper motion. Chancey v. Railway Co. (Tex. Civ. App.) 287 S. W. 129; Amonette v. Taylor (Tex. Civ. App.) 244 S. W. 238.

In the absence of a statement of facts in this case, we feel called upon to discuss only one question raised herein, Did the trial court have authority to enter judgment in this ease in view of the fact that the jury did not answer question No. 2?

We think he did. Question No. 2 was rendered immaterial by the answer made to Question No. 1. Question No. 1 asked the jury if a certain fact existed, to which they answered in the negative. In other words, the jury found the fact did not exist. Question No. 2 inquired of the jury whether a certain person had knowledge of this supposed fact. It was proper for the jury to refuse to answer whether or not a certain person had knowledge of a supposed fact that they had previously answered did not exist.

A great deal of latitude is given trial courts in entering judgments upon the findings of juries by the recent acts of the Legislature.

Article 2211, R. C. S. 1925, as amended by Acts of 1931, 42 Leg., p. 119, c. 77, § 1 (Vernon’s Ann. Civ. St. art. 2211), provides that the trial judge may upon proper motion and notice enter judgment non obstante veredicto.

Article 2190, R. C. S. 1925, as amended by Acts of 1931, 42 Leg. p. 120, c. 78, § 1 (Vernon’s Ann. Civ. St. art. 2190), provides, among other things, “a claim that the evidence was insufficient to warrant the submission of an issue m'ay be complained of for the first time after verdict, regardless of whether the submission of such issue was requested by the complaining party.”

These recent acts of the Legislature will have the effect of changing many of the rules with reference to these matters heretofore announced and declared by the courts.

Defendants in error cite us to the case of Bracewell v. Balentine (Tex. Civ. App..) 25 S.W.(2d) 279 (writ of error dismissed), which is only one of a number of cases which declare the rule that, where an issue has been submitted to the jury, even in the absence of a statement of facts, it will be presumed that the evidence raised the issue. All of these cases were decided before chapter 78, § 1, of the Acts of 1931, 42d Deg., p. 120, became effective, which was ninety days after May 23, 1931. It is obvious that this act of the Legislature was passed for the very purpose of changing this hitherto well-established rule of law.

The judgment is affirmed.


text:
    GRAGG v. HILL et al.
    No. 1286.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1933.
    Rehearing Denied March 23, 1933.
    J. A. Rauhut, Ben II. Powell, and- Homer O. Do Wolfe, all of Austin, for appellant.
    T. R. Mears, of Gatesville, for appellees.
   ALEXANDER, Justice.

In August, 1928, appellant made a contract with the trustees of the State Juvenile Training School to teach in that institution for a period of eleven months, beginning September 10, 1928, for $100 per month and his board and laundry. He taught under said contract and received his salary therefor un-, til the 11th of February, 1929, at which time lie was discharged by the board of trustees for reasons which they deem sufficient. He appealed to the state superintendent. The state superintendent had a hearing and filed his finding of fact and conclusions and in all things upheld the action of the trustees in discharging appellant. Appellant then appealed to the state board of education, and on August 10, 1929, it passed the following order: “In the case of Donald Gragg v. Board of Trustees State Juvenile Training School, Gatesville, the board voted unanimously to reverse the decision of the state superintendent and to order the salary due paid to Mr. Gragg.” Appellant then applied to the trustees of the Juvenile Training School for his salary for six months at $100 per month and for the alleged value of his board and laundry at $35 per month or a total of $810. Said trustees refused to pay said claim, and appellant on the 13th day of December, 1929, filed this suit in the district court of Coryell county against said school district and the trustees thereof to recover the amount of said unpaid salary, with legal interest thereon. and for a writ of mandamus to compel said trustees to pay said sum of money. The defendants filed a plea in abatement and sought to have the suit abated because said suit was in its nature a suit against the state of Texas and plaintiff had not secured the consent of the Legislature to file said suit In addition, the defendants filed a general demurrer and certain special exceptions and alleged, among other things, that the order of the state board of education was too indefinite to constitute a judgment and did not order the payment to plaintiff of any definite sum of money and that the plaintiff had failed to appeal from the order of the state superintendent discharging him and that said order had become final. The defendants further alleged that they had appealed and were by their answer therein appealing from the alleged order of the state board of education to the district court of Coryell county and that as a matter of fact plaintiff had breached his contract and was incompetent and was not a suitable person to discharge the duties as a teacher of said institution' and liad propeidy been discharged as such, and they prayed for a trial de novo on the issue of whether, or not the plaintiff had been properly discharged as such teacher. The plaintiff filed exceptions to the answer of the defendants.

A trial was had before the court without a jury. The court overruled the plea in abatement and all exceptions, and after hearing all of the facts entered judgment for the defendants. The plaintiff appealed.

We must first determine what effect should be given to the decision of the state board of education. The controversy between the trustees of the training school and appellant arose over the manner'in which appellant was performing his duties as a teacher. There was no dispute about his having been employed nor as to the terms of his contract. The board of trustees, in the hearing before the state superintendent, charged, among other things, that the appellant was a poor disciplinarian and failed to keep order in .school; that he used unwholesome language in the presence of the pupils; and that on one occasion he left the school and remained away a day or two without obtaining the permission of his superior officers. Consequently, he was discharged. Whether or not the appellant was properly discharging his duties as a teacher, and whether or not he should have been discharged, were matters that pertained particularly to the efficient management of the school. Revised Statutes 1925, article 2656, provides: “The State Superintendent shall be charged with the administration of the school laws and a general superintendency of the business relating to the public schools of the State. * * * He shall hear and determine all appeals from the rulings and decisions of subordinate school officers, and all such officers and teachers shall conform to his decisions. Appeal shall always be from his rulings to the State Board. * * The question which was before the state board of education was one of fact, and not of law, relating to the internal affairs of the school and the efficient management thereof, and came within the purview of the matters committed by the Legislature to such board for its determination and was therefore within the jurisdiction of such board. Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120; Brazoria Ind. School Dist. v. Weems (Tex. Civ. App.) 295 S. W. 268, par. 3; McCollum v. Adams (Tex. Civ. App.) 110 S. W. 526. The decision of the state board that appellant had been improperly discharged and should be reinstated was final on that issue.

By the provisions of the above statute the Legislature has committed to the state superintendent, as one specially trained and experienced in school matters, the responsibility of deciding all questions relating to the internal affairs and management of the public schools of Texas. His decisions in such matters are final unless reversed by the state board of education. When an appeal is taken from his decision to the state board of education, the decision of that board becomes final' and cannot and will not be interfered with by the courts unless such board acts arbitrarily or is actuated by fraud or abuses its discretion. The findings of such board on matters committed to its jurisdiction, when not arbitrary or capricious, are made prima facie true and are as binding on the courts as is the verdict of a jury, and the court will not put itself in tlie position of the board and try the question anew for the purpose of testing the expediency or wisdom of the decision of the board, nor for the purpose of determining whether or not under similar testimony it would have made a similar or a different ruling. State ex rel. Marrs v. Abshier (Tex. Com. App.) 263 S. W. 263; Brazoria Ind. School Dist. v. Weems (Tex. Civ. App.) 295 S. W. 268; Donna Ind. School Dist. v. First State Bank (Tex. Civ. App.) 227 S. W. 974; Boydstun v. Ft. Worth Ind. School Dist. (Tex. Civ. App.) 33 S.W.(2d) 811, par. 2 and cases there cited; Railroad Commission of Texas v. Shupee, 57 S.W.(2d) 295, by the Austin Court of Civil Appeals.

A copy of the testimony as taken by the state superintendent and as presented to the state board of education was introduced in evidence in the trial court and is before this court for consideration. We have reviewed this evidence, and while there is testimony therein supporting each of the charges against the appellant, there is ample evidence to support a contrary decision. We therefore cannot say that the decision of the state board of education was arbitrary or that said board has abused its discretion.

We are of the opinion that the order entered by the state board, as hereinbefore set out, was sufficiently definite in its terms as an order disposing of the matter before the board. The matter before the board was whether the teacher had been improperly discharged and whether or not he should be reinstated. The state superintendent had held that he had properly been discharged. The order of the state board reversed this decision. When construed in connection with the matters which the board had under consideration, its meaning is perfectly clear. Proceedings before boards of this kind are more or less informal and it is not necessary that the minutes of their proceedings contain all of the essential elements of a judgment in a court of law. It is only necessary that such minutes be sufficiently clear to disclose the intention of the board. Bevers v. Winfrey (Tex. Civ. App.) 260 S. W. 627, par. 5. The order entered in this instance meets all requirements. It was not necessary that such order find or adjudicate the amount of salary to be paid to appellant. This was a matter for the trial court to determine upon the trial of the suit to recover such salary, in the light of the finding that appellant had been improperly discharged.

The trial court, in determining whether or not appellant was entitled to judgment for said unpaid salary, had before it, and was bound by, the decision of the state board of education that appellant had been improperly discharged. The decision of the state board reversing that of the state superintendent had the effect to reinstate the teacher and to make his contract good as from'the beginning. Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120. The evidence introduced in the trial court shows without dispute that the appellant, after being discharged, was unable to secure other employment. It was admitted that he had a valid contract with the trustees for a period of eleven months at a salary of $100 per month and his board and laundry. He did not receive any compensation for the last six months of his contract. The trial court found that his board and laundry were of the reasonable value of $35 per month. It was admitted that the.trustees have sufficient funds with which to pay appellant’s claim. Since appellant was improperly discharged, as determined by the state board, and since he was at all times ready and willing to discharge his duties as such teacher but was denied the privilege of doing so, he is entitled to receive his unpaid salary of $810 as provided for in his contract. Since the board of trustees, after demand, refused to pay appellant’s salary, and since it is admitted that they have the money with which to pay same, appellant is entitled to judgment against said district for said unpaid salary with a writ of mandamus against said trustees to compel them to issue to him a voucher for such unpaid salary. Harkness v. Hutcherson, 90 Tex. 383, 38 S. W. 1120.

The appellees by cross-assignment complain of the action of the court in failing to sustain their plea to abate the suit because the permission of the Legislature to file such suit was not obtained prior to filing same. We do not consider such permission a necessary prerequisite to the filing of the suit. Revised Statutes, art. 2666, provides for. the creation of school districts for eleemosynary institutions, and article 2667 provides that such school districts, when created, shall be controlled as far as possible by the law pertaining to independent school districts. Such district was therefore subject to suit in the same manner as any other independent school district.

The judgment of the trial court is reversed, and judgment here rendered for the appellant against said school district for the sum of $810, with legal interest thereon from the 10th day of August, 1929, and a writ of mandamus will issue against said trustees requiring them to issue to appellant a voucher for same.


author: BOND, Justice.

text:
    RHOADES et al. v. GAY.
    No. 11125.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 25, 1933.
    Rehearing Denied March 25, 1933.
    H. M. Wade, of Rockwall, for appellants.
    Wallace Hughston, of McKinney, for ap-pellee.
   BOND, Justice.

S. R. Rhoades and wife, R. J. Rhoades, owned 98½' acres of land involved in this suit as community property, and made their home thereon. S. R. Rhoades died in 1916, intestate, leaving surviving him his wife, Mrs. L. J. Rhoades, and appellants herein, his children and grandchildren. Mrs. L. J. Rhoades continued to use and occupy the said land as a home after the death of her husband, living thereon with her married son, Jesse Rhoades, until her death in 1931. There were no unmarried daughters or minor children living, with her at the time of her death. J. M. Gay, who qualified as administrator of the estate of Mrs. R. J. Rhoades, brought this suit as such administrator in the district court of Collin county, to partition the land between himself, as administrator, and the children and grandchildren of S. R. Rhoades. Prom a judgment, partitioning the land, appellants have appealed.

Appellants contend, by appropriate assignments of error, that appellee is without authority in law to institute this suit, and that the land in controversy being the homestead of Mrs. R. J. Rhoades, deceased, it descended to and vested in her heirs, free of debt, and therefore is independent of any- administration. It is unquestionably true, under our Constitution, section 52 of article 16, and articles 3485 et seq., R. S'. 1925, and the decisions of our courts, that if any of the deceased’s children were minors, or any of her daughters were unmarried, and that either or both were constituent members of deceased’s family at the time of her death, the homestead exemptions would descend and vest in all of the heirs of such decedent, in accordance with the provisions of our statutes of descent and distribution, subject only ,to the rights of such minors and/or .such unmarried daughters, to use and occupy it as a home, and subject only to claims authorized by our Constitution.

When S. R. Rhoades died, the homestead exemption descended to his widow, Mrs. R. J. Rhoades, and so long as she elected to use and occupy it as a homestead, it was not subject to partition among his heirs, and on account of such exemption descending to the widow, 'it also descended to and vested in the heirs of decedent, free of debt, not because it was exempt to the husband, who was the head of the family, but because the widow was a constituent member of the family, and is one of the constituent members to whom the Constitution and statutes authorize such exemption. When Mrs. R. J. Rhoades died, leaving isurviving neither minor children nor unmarried daughters, as constituent members of her family, the homestead exemption did not descend and vest in her children, and the homestead used and occupied by her became subject to be partitioned among the heirs of herself and deceased husband, and her one-half interest in the land became liable for debts due and owing by her, and her interest therein vested in the heirs, subject to the rights of the administrator.

The law seems to be well settled in this state that property which remains and retains its homestead character after the death of the husband and wife, on account of the fact that constituent members of the family survive (minors and/or unmarried daughters) is not subject to the debts of the decedent, but where no such constituent member survives, the exemption is not privileged to the heirs, and the land becomes subject to the payment of debts, and the heirs cannot claim the property under the law of descent and distribution to the exclusion of creditors; it therefore became subject to the administration of the estate. Hoefling et al. v. Hoefling, 106 Tex. 350, 167 S. W. 210.

One of the earliest Texas cases on this question is that of Sossaman v. Powell, 21 Tex. 664, in which Chief Justice I-Icmphill marked out the line, and said: “If a homestead with its exemptions was necessary during the life of the husband, the necessity continues and becomes more potent after his death for the protection of the wife and family. The widow becoming the head of the family is as much entitled to a homestead as was her husband, and the. one-half of the community lands which formed the homestead during marriage becomes hers absolutely independent of any administration or other act whatever for homestead purposes, and if there were no Statute equity would allow her to retain possession of the other half for the benefit of the minor children of the marriage as long as they remained in minority and a family, with the widow at the head of such family.”

In a more recent case, Wilkins v. Briggs et al., 48 Tex. Civ. App, 596, 107 S. W. 135, 139, is involved a situation very similar to this case. Spencer Briggs was possessed of a community homestead, living thereon at the time of his death with his grandson, Archie Briggs, as a constituent member of his family. An administratiofi was sued out on his estate, and it was held that the homestead was subject •to the administration. The court in that case said: “While the Constitution exempts the homestead, and other property mentioned to the family, it has left to the Legislature the right to continué such exemptions as it saw fit. after th.e death of the head of the family. Zwernemann v. Yon Rosenberg, 76 Tex. 525, 13 S. W. 485. In doing this the Legislature has used different language, and makes the exemption only in favor of certain named persons, which are the widow, minor children, and unmarried daughters of the deceased remaining with the family. The word ‘family,’ as used in the Constitution and statute exempting the homestead and certain other, property in the lifetime of the husband or head, has a broader signification, and includes a greater variety .of persons than the words ‘widow and minor children and unmarried daughters remaining with the family.’ Had the Legislature intended to be equally as comprehensive in its exemption after the death of the head of the family, then it would have used words sufficiently comprehensive to convey that meaning; but it has not done so. As said by our Supreme Court in Roots v. .Robertson [93 Tex. 365, 55 S. W. 308], supra: ‘There is no provision of the law that authorizes a court to set apart exempt property of an estate to the surviving constituents of every family to which it may have been exempt. The constituents of a family who are entitled to a homestead and other exempt property upon the death of the head, are named in the law and the Constitution.’ ”

In the instant case, the widow, Mrs. L. J. Rhoades, and her children, did inherit the homestead exemption on the death of S. R. Rhoades, independent of any administration •on the estate of & R. Rhoades, but on the death of the widow, no surviving husband, no minor children, no unmarried daughters were left surviving; she living with her married son, Jesse Rhoades, at the time, her heirs could not inherit her one-half interest in the homestead independent of administration.

From what we have said, based on the uniform authorities of this state, the undivided one-half interest in the land involved in this suit, which belongs to the estate of Mrs. L. J. Rhoades, is subject to administration, and as the administrator, in. view of the trust imposed upon him by law, is interested in the land, it is within the purview of his authority, granted by law, to institute a suit to partition his one-half interest in the land from the interest of the claimants to the other half, so that, under proper orders of the probate court, in which the administration is pending, the land belonging to the estate might be subjected to the payment of debts of the deceased, Mrs. L. J. Rhoades, or by said court partitioned among those who might be held entitled thereto. We conclude that this case should be affirmed, and it is accordingly done.

Affirmed.

On Motion for Rehearing.

Appellants seriously contend, on motion for rehearing, that the district court was without jurisdiction to partition the land involved in this suit, as an administration was then pending in the county court of Collin county, and that court had exclusive jurisdiction.

Perforce article 3290, R. S. 1921, county courts have jutisdiction to settle, partition, and distribute estates of decedents where an administration is ponding, or where an administration is necessary, and, if appellee’s suit was one to partition the estate of which he was the administrator, appellants’ contention would be correct; as was said in the case of Meyer et al. v. Meyer et al. (Tex. Civ. App.) 223 S. W. 259, 261: “It is well settled that the jurisdiction of the county court in all matters pertaining to the settlement and distribution of an estate which is being administered in such court, or administration of which is necessary, is exclusive. [Citing authorities.]”

Only one-half of the 98½ acres, involved in this suit, was owned by the estate of which appellee was administrator, and it alone was isubject to the orders of the county court, and had appellee’s suit been one to partition and distribute that half, the county court would have had exclusive jurisdiction. The other half was not owned by the estate, and was not subject to the administration, therefore, the county court did not have jurisdiction of that half.

Appellee’s partition suit being one to segregate the interest owned by the decedent’s estate from the interest of the other joint owners, the district court alone had jurisdiction. Whatever disposition may he made of the interest set aside to the administrator is cognizable in the county court. Appellants’ motion for rehearing is overruled.


text:
    TRAD et al. v. HINOJOSA et al.
    No. 8978.
    Court of Civil Appeals of Texas. San Antonio.
    March 15, 1933.
    Goodhue Weatherly, of Falfurrias, for plaintiffs in error.
    Cummins & Jacobs, of Rio Grande City, for defendants in error.
   FLY, Chief Justice.

At a former day of this term this cause was dismissed because there had been no disposition of all the parties in the judgment, but, on motion for rehearing, it has been satisfactorily shown to this court that the judgment did dispose of all parties, and that the clerk of the district court had failed to copy the whole of the judgment in the record. Under that state of facts it became necessary to grant a rehearing as to the dismissal and restore the cause to its place on the docket, to be considered on its merits as against the Ramirez.

This is a suit on a promissory note for $700, executed by Rafael Ramirez and Eu-doxio G. Hinojosa, who were alleged to be partners. The cause was submitted to a jury on special issues, and on the responses thereto judgment was rendered that plaintiffs take nothing by their suit as to Mrs. Ramirez.

The suit was instituted by plaintiffs, Maria Trad and her husband, against Eudoxio G. Hinojosa, Reyes Cabazos Ramirez, and F. B. Guerra, Jr., administrator of the estate of Rafael Ramirez, deceased.

The jury found that a partnership existed between Rafael Ramirez and Reyes Cabazos Ramirez at the time the note was executed, that the note was executed by Rafael Ramirez for himself and not for the partnership. Guerra and Hinojosa admitted liability on the note, and judgment was rendered against them in favor of the plaintiffs. Judgment was rendered against Guerra as administrator of the estate of Rafael Ramirez.

The facts show that Reyes C. Ramirez was the mother of Rafael Ramirez, that her husband, Oleopas Ramirez, had died leaving an estate, a portion of which was a ranch on which Rafael Ramirez resided after his father’s death. After the death of the husband and father, the estate belonged to Reyes C. Ramirez and Rafael Ramirez, her son. He had charge of the ranch for himself and his mother, bought the supplies for it, and conducted all of its affairs. He desired to sell a parcel of land belonging to him and his mother to Hinojosa for $1,500, of which $700 was to be in cash. Plaintiffs agreed to lend that sum to Hinojosa if he and Rafael Ramirez would sign the note. They signed it, and the $700 was obtained by Rafael Ramirez. Reyes Ramirez was not mentioned nor known in the transaction, and her liability was dependent on the fact being established that she was a partner of her son, Rafael, in the estate of Cleopas Ramirez, deceased. Rafael and his mother were joint owners of the estate, and Rafael was acting for her and himself in the management of the estate. It is obvious that he had no authority to bind his mother by signing a note given by Hino-josa to obtain money to pay on land to which she had not executed a deed, and, in truth, to which Rafael never executed a deed, but killed himself before any such deed was made.

The evidence rather showed that the relationship of principal and agent existed between the mother and her son, Rafael, and none of the elements of a partnership wero proved to exist between them. The court should have submitted the facts to the jury and on their findings have determined whether such facts in law constituted a partnership. The evidence showed that Rafael acted as the agent of his mother in the management of the estate, which management did not authorize him to convey any part of her interest in the estate, and he did not attempt to do so. He could only sell his interest in the estate. Mrs. Ramirez says that her son told her of the intended sale, but she thought it was to be made to the Trads. The son could not, as agent, nor even as a partner, bind his mother on a note on which he, to all intents and purposes, was a surety for Hinojosa, for, while the money was to pass into the hands of Rafael Ramirez as a payment on the land, it was really by and for Hinojosa. It certainly was not within the scope.of partnership business to sign such a note.

The evidence failed to show a partnership, although the facts were almost undisputed on the question, and under the facts the court was justified in instructing in favor of Mrs. Ramirez. The jury really passed on no facts, but merely gave conclusions as to the law arising from the facts. The court could, with propriety, have instructed the jury immediately after hearing the facts, to find for Mrs. Ramirez. The judgment was properly rendered against Hinojosa and Guerra, the administrator. The estate left by Rafael Ramirez went to his mother, as it does not appear that he had any children or brothers or sisters. It went, however, incumbered with the debts of Rafael, among which is the claim of plaintiffs.

The judgment is affirmed.


author: FUNDERBURK, Justice.

text:
    HARRIS v. GOODLOE et al.
    No. 1052.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1933.
    Rehearing Denied March 31, 1933.
    P. L. Kuykendall, of Albany, and Roy . Creighton and W. H. Penis, both of Mineral Wells, for appellant.
    Dallas Scarborough, of Abilene, for appel-lees.
   FUNDERBURK, Justice.

A. S. Goodloe and J. D. Meredith sued Jodie P. Harris and the Tesas Company for partition of an oil and gas lease on the southeast ¾ of section 57, East Texas Railway Company survey in Shackelford county. It was alleged that plaintiffs owned ¾6⅞⅝ Jodie P. Harris %8ths, and the Texas Company ⅛⅛ undivided interest in the lease, the latter being an overriding royalty. It was alleged that there was a producing well on the lease needing immediate attention; that defendant Harris had failed and refused to attend to it and refused to permit plaintiffs to do so; that the primary term of the lease had expired, by reason whereof the lease could only be held by producing therefrom and Harris was interfering with the necessary operations, to plaintiffs’ irreparable injury, for which they had no adequate. remedy, “and therefore the property. should be partitioned. and divided %6ths to defendant Harris and %gths to .plaintiffs.” Further allegations were to the effect that about September, 1&30, defendant made a written contract with Hicks and Hubbard for the latter to drill a well on the land; that the contract was assigned to plaintiffs “who are the owners of same. That under the terms of the contract between the plaintiffs and the defendant Harris, the plaintiffs are to operate the lease, and that the defendant Harris is to pay ½ of the operating costs, but is not entitled to any of the management or control of the operation of the lease under the agreement.” It was also averred that plaintiffs had paid $1,562.08 for such reasonable and necessary expenses, by reason whereof Harris was due the plaintiffs ½ thereof in the sum of $781.04, which he had failed and refused to pay after being furnished with an itemized statement of said account, and for recovery of which judgment was also sought. It was alleged plaintiffs had a lien on Harris’ part of the lease to secure payment of said sum, a foreclosure of which was prayed. Another allegation was: “Plaintiffs represent that the property is not subject to a division, and asks that the entire property be sold and the proceeds divided.”

The prayer was for a restraining order to prevent Harris from interfering with their operation of the lease; for partition; for foreclosure of lien; for recovery of their debt and general relief.

The defendant Harris, in addition to a general demurrer and general denial, alleged substantially that he acquired the lease in question (160 acres) under a contract with the Texas Company; that at the time there was a well on the south 80 acres and certain equipment and some pipe in the well; that the well, when completed and reconditioned, was capable of producing 8 or 10 barrels of oil per day. He alleged that he informed Hicks of his arrangement with, the Texas Company; that the latter retained ⅛⅛ interest as an overriding royalty; and that he had agreed to pay the Texas Company for. such casing and equipment at said well as he might desire to use in connection with his operations. He alleged that Hicks thereupon made certain representations to the effect that he represented the Apex Petroleum Company of which he was a stockholder; that said company was headed by G. E. Hubbard and son, who were practical oil men of long’ experience; that said company was the owner of large holdings in East Texas; that they had 237 barrels of production in the Powell field; that the company was financially responsible and able to drill wells for oil and gas in the territory around Albany, Tex.; that he (Hicks) had been sent out by the company for the purpose of acquiring oil properties in the vicinity; that he himself was a practical oil man of many years experience in the business; that he had inspected the lease in question and was desirous of making a deal with defendant.

It was alleged that, after defendant had explained the nature of his deal with the Texas Company, based upon belief in and reliance upon said representations, defendant made an agreement with said Hicks (the latter purporting to act for said Apex Petroleum Company), according to which the Apex Petroleum Company was to pay one-half of the costs of the equipment in connection with the Texas Company well and at its own cost and expense to drill a well on the north 80 acres of the 160-acre lease to a specified depth, unless oil and gas should be discovered át a lesser depth, and that the string of 8-inch pipe in the Texas Company well would be used in drilling the other well by the Apex Petroleum Company. That in pursuance of said agreement Hicks caused á drilling machine and. equipment to be moved upon said 80 acres of land (i. e. the north one-half of the 160-acre tract), and commenced drilling operations, said Hicks at the time stating that Mr. Hubbard, the head of the company, would be out soon and a contract be executed embodying the agreement. That later Hicks reported that it was the wish of Hubbard to have the agreement in two separate contracts because of the lack of charter power in the company to engage in prospecting operations, and that it was further Hubbard’s wish that the new well should be drilled in the name of Hicks & Hubbard for the benefit of the company;. that the latter would pay over its portion of the cost of the equipment at the Texas Company well in order to carry on such operations, and that upon completion of the well the company would take over and operate the entire lease. That thereupon ‘ and because of said representations defendant executed the written contract in question having reference to the drilling of the new well, and «the contract was (therefore) partly in .writing and partly oral, the contract alleged in plaintiff’s petition being! only a part of the entire agreement. Then follow allegations to the effect that all said representations were false and fraudulently made; that Harris had no authority to bind the Apex Petroleum Company, etc. Other ■ allegations were designed to show injury from the alleged fraud. Among the damages alleged was defendant’s consequent inability to recondition the Texas Company well, and because of the failure of production, in order to prevent termination of the entire lease he was forced to surrender the south SO acres upon which the well was situated to make good his right to the north 80 acres. It was further alleged that the new well had not been drilled in workmanlike manner and was 'uncompleted.

It was further alleged that when plaintiff's took over the contract of Hicks they had been notified that defendant had repudiated same, and that Hicks had no interest in the lease because of the alleged fraud. The allegation immediately preceding the prayer was “than the defendant does not know what amount he must tender plaintiffs, if anything, but he offers to do equity.”

The prayer was for cancellation and rescission of the contract and removal of same as a cloud upon defendant’s title, etc.

Goodwin and White intervened, asserting claim to the S-ineh casing in the new well under a rental contract with Harris, and in the alternative a claim against Harris for the purchase price, with foreclosure of a lien “as herein alleged.” No lien was alleged.

Three issues were submitted to the jury. In answer to the first it was found that Good-loe and Meredith had expended in operating the lease, after oil was found, the sum of $1,-546.58. The second .was answered to the effect that said sum of $1,546.58 was not a just and reasonable amount. In answer to the third it was found that $783.23 would have been a reasonable expenditure for the expense of operating the lease after oil was found.

The judgment recited the interests of the parties to be as alleged in plaintiffs’ petition and that the property could not be partitioned in kind. It declared that the operating expenses of the lease should be borne by plaintiffs and Harris in the proportions of %gths by the former and %gths by the latter. It awarded Goodwin and White judgment against Harris for $592.50, as purchase price of the 8-inch easing in the well, and decreed the foreclosure of a Hen upon Harris’ interest to secure said amount. It further declared that it was necessary to keep the casing in the well so long as it continued to be a commercial producer, at the end of which time Harris had the right to pull same and retain as his own property. It was further provided that upon sale of the property to make partition %5ths of the proceeds was to be paid to defendant Harris and %5ths to the plaintiffs. It awarded plaintiffs recovery against Harris of $399.11 for his share of operating expenses, and provided for further operation of the lease under a receivership, the judgment purporting to appoint a receiver but leaving the name blank. The judgment further decreed that the receiver should pay the sum of $56.50 to the Albany Abstract Company as a part of the operating expense. Defendant Harris has alone appealed.

The contract between Harris and Hicks and assigned to the plaintiffs provided that it “shall be binding upon the parties hereto, their successors and assigns.” (Italics ours.) If, therefore, the contract- was not assignable, in the absence of this provision, as to which we need not stop to inquire, it was thus made so as an implied provision of the contract itself. Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985; Jackson v. Pure Oil Co. (Tex. Civ. App.) 217 S. W. 959.

Appellant’s third assignment of error complains of the judgment in awarding to him %6ths interest in the lease. One of the reasons assigned for this complaint of the judgment is to the effect that it was necessary to have the issue of ownership or title determined. The fifteenth assignment of error also makes complaint of the judgment in awarding appellees recovery against appellant for the sum of $399.11 for operating expenses, the supporting reason for such complaint being that ownership of the leasehold estate was not submitted to, and determined by, the jury, and without such determination the court was without authority or power to enter any judgment under the pleadings and evidence for plaintiffs. These assignments of error and supporting reasons raise a very material question affecting the validity of the entire judgment.

In an action for partition alone title is assumed. “Title to land not ordinarily being an issue in proceedings for partition thereof, the presumption is not that title is an issue but that title is not an issue.” 47 C. J. 421, § 3S4. In fact a partition, even in kind, does not accomplish any transfer of, or change in, title. See authorities cited in Walling v. Harendt (Tex. Civ. App.) 37 S.W.(2d) 280. The answer of defendant Harris tendered an issue of title to the §-i6t3is interest which plaintiffs’ petition alleged they owned. Whatever may be said as to the sufficiency or deficiency of defendant’s pleading, it undoubtedly presented as an issue that plaintiffs’ only title was by virtue of the contract which itself did not convey title but expressly provided that title was to be subsequently conveyed upon condition of performance of the contract, which contract had been repudiated and no conveyance made. “As an obstacle in the pathway to a legal and complete partition lay the condition of the title to the property.” De La Vega v. League, 64 Tex. 205. The issue of title being injected into the partition suit, all further proceedings were but incident to, or at least dependent upon, the determination of that issue. As said in the case last cited: “A court of equity will not permit partition to take place if it is brought to their attention that the title is in dispute.” Corpus Juris, after stating that the former strictness of the rule in certain respects had been abrogated or relaxed by statutory provision in many jurisdictions, further, with reference to the effect of such statutes, says: “But these statutes do not authorize the substitution of a suit for partition for an action of ejectment or the use of the suit for the sole purpose of determining title” (Italics ours.) 47 C. J. 306, § 96. The burden of pleading and proof was upon the plaintiffs to establish in themselves title to the interest claimed or some part thereof. Green v. Churchwell (Tex. Civ. App.) 222 S. W. 341. If, in partition suits merely assuming title as they do, allegations of the plaintiff of part ownership thereby cast upon the defendant the burden to show want of title in plaintiff, it would no doubt become a favorite practice for claimants of land with questionable titles to concede an adverse claimant some little interest, suo him for partition, and thereby be relieved of the burden of establishing title by casting the burden upon the defendant to show plaintiff’s want of title.

Plaintiffs’ pleading in this case tendered no issue of title such as to support Judgment for recovery thereof. It was not alleged that plaintiffs or Hicks had drilled the well. It was not alleged that they had carried compensation insurance as the contract required them to do. Neither was it alleged, even as a conclusion, that they had performed their obligations under the contract, or if they had not, any facts to show a waiver of such performance or excuse for nonperformance. It was not alleged that Harris had breached any obligation to make a conveyance of the %6ths interest in the lease. Holman v. Criswell, 13 Tex. 38. The pleading was not sufficient to state a cause of action, either in the nature of trespass to try title or for specific performance. The court thex-efore erred in awarding partition and likewise erred in other provisions of the judgment, since they were dependent upon the question of title.

What we have said above carries the implication that, if the question of title had been adjudicated favorably to plaintiffs, there would have remained no obstacle to a partition. We have deemed it best to dispose of the assignments discussed based upon that assumption. It is our opinion, however, that plaintiffs are not entitled to enforce a partition. Their title, if established, would necessarily be subject to the terms of their contract with appellant. That contract binds them to certain' obligations respecting the operation of the lease. A partition would have the effect to abrogate these provisions of the contract. Such being the case, the right of partition does not exist. Elrod v. Foster (Tex. Civ. App.) 37 S.W.(2d) 339.

The court erred in decreeing existence of, and foreclosure of, a lien in favor of White and Goodwin. No lien was alleged or proved.

If plaintiffs’ title be determined in their favox- to the %8ths interest, then we think their obligation to bear the cost of operation would be in the proportion of %5ths to Harris’ %jths, as was determined by the trial court. Plaintiffs’ title will come through an assignment, which, by exempting the Texas Company of the obligation to pay any of the operating costs, thereby casts the entire burden upon i%ths of the working interest in the lease. If i%;ths bears the total cost, ¾8⅛ will bear ¾5⅛ thereof, and %;tks interest of plaintiffs will bear %¡ths, leaving Harris to bear the other %5ths.

We can discover-no basis in the pleadings for the foreclosure of a lien in favor of Goodwin and White, nor for the order to pay $56.60 to the Albany Abstract Company as a part of the operation expenses. The same is likewise true of the provision that the eight-inch casing is to remain in the well so long as the well continues to be a commercial producer. It is deemed so elementary as not to requii'e discussion that there must be pleadings to support the provisions of a judgment.

It is therefore our opinion that the judgment of the court below should be reversed and the cause remanded, which is accordingly so ordered.