author: HIGGINS, J.

text:
    CARHART MOTOR CO. v. HENRY.
    No. 2640.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 6, 1932.
    Rehearing Denied Oct. 27, 1932.
    Dorenfield, Foster & Fullingim, of Amarillo, for appellant.
    H. G. Russell, of Pecos, for appellee.
   HIGGINS, J.

I-Ienry filed this suit against Carhart Motor Company, General Motors Acceptance Corporation, and J. B. West, to recover damages for the conversion of an automobile. The suit was dismissed as to the General Motors Acceptance Corporation.

Appellant filed plea of privilege to be’sued! in the county of its residence. The plaintiff filed controverting affidavit, in reply to which appellant filed an answer justifying, upon various grounds, its action in taking possession of the car. The plea was overruled.

The car in question was bought by appellee from appellant, and to secure payment of purchase-money notes appellee executed a mortgage upon the car. Later the car was removed by appellee to Ward county, where it was repossessed by appellant without the knowledge or consent of appellee.

By its first three propositions appellant undertakes to justify the repossession under certain provisions in the mortgage authorizing such action upon certain contingencies.

The car was repossessed by appellant on November 22, 1927. Appellant in fits answer to the controverting affidavit affirmatively alleged it sold and assigned the purchase-money notes and chattel mortgage to the General Motors Acceptance Corporation. Other allegations in the answer show appellant did not reacquire the same until subsequent to the date the evidence shows it had repossessed the car. ,

Not being the owner of the notes and mortgage at the time it took ..possession of the car, it follows appellant cannot justify its action in so doing under the terms of .the mortgage. The right to repossess was vested in the General Motors Acceptance Corporation and not in appellant. The wrongful act of appellant in taking such possession .constituted a trespass within the purview of subdivision 9, of article 1995, R. S. and 'sustains the venue as laid in Ward county. Texas Auto Co. v. Clark (Tex. Civ. App.) 12 S.W. (2d) 655.

The seventh proposition is to the effect that since there is no evidence that the value of the car in Ward county at the time it was taken was in excess of $700, the amount of the unpaid purchase money, therefore no conversion constituting a trespass is shown within the meaning of subdivision 9, of article 1995. i

The court below was justified in as-. suming the car had some value. The fact that it was repossessed by appellant is -evidence thereof. If appellant has reacquired the notes and lien the amount thereof may perhaps be set off against the damages claimed by appellee but that is simply defensive matter. In order to maintain the venue in Ward county it was only necessary for the plaintiff to establish prima .facie a cause of action. It was not necessary for him to anticipate possible defenses and offer evidence to rebut the same.

Other propositions relate to matters which are irrelevant in vievs; of the ruling that the venue was prop.erly laid in Ward county for dhe reason stated above. - These remaining •questions therefore call for no consideration or discussion,

.Affirmed.


source: Caselaw Access Project

author: GALLAGHER, O. J.

license: Public Domain

text:
    SEASTRUNK et al. v. KIDD et al.
    No. 1256.
    Court of Civil Appeals of Texas. Waco.
    Oct. 6, 1932.
    Rehearing Denied Nov. 3, 1932.
    S. J. T. Smith, of. Waco, for appellants.
    Poage & Neff, of Waco, and B. Jay Jackson, of Cleburne, for appellees.
   GALLAGHER, O. J.

This appeal is prosecuted by R. L, S.eastrunk and D. A. Platt from a judgment of, the district court of McLennan county, Seventy-Fourth judicial district, setting aside a former judgment theretofore rendered in said court in which Henrietta Dailey, now 1 deceased, recovered frpm the unknown heirs of her deceased husband, Fred Dailey, title and possession of lot 19 in block 2 of the Mittie Renick addition to East Waco, and awarding to appellees Zuma Kidd and Theo- ' dora Bly a recovery against these appellants, • their tenant, F. B. Teague, and Hixie Haines, and various others as heirs of Henrietta Dailey, of title and possession of said lot, and awarding appellants a recovery for improvements made thereon in good faith.

Fred Dailey married Henrietta Haines in 1883. The property in controversy in this case was conveyed to him and J. R. Ritchie by Mittie Renick on the 18th day of July, 1S87, for a recited consideration of $10 cash paid and a note for $61. On the 27th of December, 1889, said Ritchie conveyed his undivided half interest in said lot to H. A. Guess for a recited consideration of $65 cash. On July 1, 1890, said Ritchie and Fred Dailey joined in a deed conveying to said Guess the north end of said lot. Why Ritchie joined in said deed notwithstanding he had theretofore already conveyed to said Guess all his interest in said lot was not shown. Thereafter said Guess ■ conveyed all the in.terest he acqtiired from both Dailey and Ritchie in said lot under their respective deeds to T. D. Hays, who in turn conveyed same to Banton Moore, who thereafter, on July 4, 1900, for a recited consideration of $80 cash in hand paid, conveyed said interest in said lot to said Dailey. Dailey died January 20, 1911. His widow, Henrietta, continued to reside upon said lot and use and occupy the same as a homestead. No children were born of the marriage of Fred and Henrietta Dailey, but he left surviving him two daughters by a former marriage, named Zuma and Mercedes (also called Mercy Dee).

Henrietta Dailey, on the 12th day of May, 1927, in said Seventy-Fourth district court, instituted suit against Banton Moore and the heirs of Fred Dailey to recover title and possession of said lot. Said cause was numbered 8520 on the civil docket of said court. As a basis for the issuance of citation for service by publication, she filed in said cause her affidavit that the heirs of said Fred Dailey, after diligent search and inquiry made by her, were unknown to her, and that said Moore was a nonresident of the state. Citation was duly issued and served by publishing the same in the manner and form and for the length of time required by law. The cause came on for trial on the 14th day of June, 1927, at which time she- dismissed her suit against said Moore, and recovered judgment against the unknown heirs of Fred Dailey, deceased, for the title and possession of said lot. She, on the 5th day of November thereafter, conveyed said lot to appellants for a recited consideration aggregating $3,500. Fred Dailey’s daughter Zuma, above mentioned, had prior to his death married her coappellee, William Kidd. She and her husband resided at or near Cleburne, Tex., from the time of her marriage to the trial of this cause. She visited her father shortly before his death and also visited his widow, Henrietta Dailey, after his death. Neither she nor her husband knew of the institution of said suit nor of the judgment rendered therein, for more than two years after the date thereof. Fred Dailey’s daughter Mercedes lived in California. She died in 1929, leaving appellee Theodora Bly as her only child and heir.

Appellees Zuma Kidd and husband and Theodora Bly, on February 14, 1930, instituted suit in the district court of McLen-nan county, Fifty-Fourth judicial district, against appellants Seastrunk and Platt and their tenant, Teague, in trespass to try title to recover said land as heirs of Fred Dailey, deceased. Said cause was numbered 15605. Said appellants thereafter, on the 3d day of May, 1930, instituted suit in the district court of McLennan county, Seventy-Fourth judicial district, against Hixie Haines and others as heirs and the only heirs at law of Henrietta Dailey, deceased, to set aside the judgment theretofore rendered in said district court in causé No. 8520, in which said Henrietta Dailey recovered said lot of the unknown heirs of Fred Dailey. Said' cause was numbered 11279. Said cause No. 15605 was transferred from the Fifty-Fourth to said Seventy-Fourth judicial district court, and thereafter by order of the court consolidated with said cause No. 11279 and continued under the latter number. Both plaintiffs and defendants in the consolidated cause filed amended pleadings.

The case was submitted to a jury on special issues. The issues submitted by the court, with the answers of the jury thereto, were as follows:

“No. 1: Do you find from a preponderance of the evidence that Henrietta Daily on the 12th day of May, 1927, knew the name of Zuma Kidd? Answer: Yes.
“No. 2: Do you find from a preponderance of the evidence that Henrietta Daily at the time the judgment was entered in cause No. 8520, knew the name of Zuma Kidd? Answer: Yes.
“No. 3: Do you find from a preponderance of the evidence that Henrietta Daily, on the 12th day of May, 1927, knew the’ name of Theodora Bly? Answer: No.
“No. 4: Do you find from a preponderance of the evidence that Henrietta Daily, at the time judgment was entered in cause No. 8520, knew the name of Theodora Bly? Answer: No.
“No. 5: Do you find from a preponderance of the evidence that when Henrietta Daily made the affidavit in cause No. 8520 as to the names of the heirs of Fred Daily, she did so with the intent and design of fraudulently depriving the said Zuma Kidd and Theodora Bly of any property rights, if any, they might have in said suit? Answer: Yes.
“No. 6: Do you find from a preponderance of the evidence that Fred Daily purchased the property in question out of funds acquired by him before his marriage to Henrietta Daily? Answer: Yes.
“No. 7: Do you find from a preponderance of the evidence that at the time Seastrunk- and Platt made the improvement, if any, on-said property, they reasonably believed that they owned said property? Answer: Yes.
’ “No. 8: What, if anything, do you find from a preponderance of the evidence, is the present reasonable value of said improvements, if any? Answer: $800.00.”

The court, at the instance of appellees Zuma Kidd and Theodora Bly, submitted certain issues to the jury for determination, which issues, with the answers returned thereto, were as follows:

“No. 3: Do you find from the preponderance of the evidence that Zuma Kidd and. Mercy Dee Dailey were the children and the only children of Ered Dailey? Answer: Yes.
“No. 4: Do yon find from the preponderance of the evidence that Theodora Bly was the child and the only child of Mercy Dee Dailey? Answer: Yes.”

The court, upon consideration of said verdict, rendered judgment in favor of appel-lees Zuma Kidd and Theodora Bly against appellants and all the other appellees setting aside said former judgment and for title to and possession of said lot of land. The court also rendered judgment in favor of appellants Seastrunk and Platt against appellees- Zuma Kidd and Theodora Bly for the sum of $800, the value of imporovements made by them upon said lot subsequent to their purchase of the same from Henrietta Dailey. The court ordered the enforcement of said judgment in the manner provided by statute in such cases.

Opinion.

Appellants present several assignments of error in which they assert that the court overruled their plea in abatement and certain special exceptions contained in their amended answer filed in the consolidated suit, and erred in doing so. The transcript fails to show that said plea in abatement or said exceptions were ever called to the attention of the court or that any rulings thereon were made. We have, however, in view of another trial, examined and considered the contentions presented by appellants in said assignments, and have reached the conclusion that, if the court did overrule such plea in abatement and exceptions, he did not err in doing so.

Appellants present an assignment of error in' which they complain of the refusal of the court to instruct the jury peremptorily to return a verdict in their favor. One specific contention advanced under said assignment is that appellants were not entitled to have the judgment in cause No. 8520, in which Henrietta Dailey recovered judgment for the title and possession of the lot here in controversy, set aside, because they did not institute suit to secure such relief for more than two years after the date thereof. Said judgment in cause No. 8520 was rendered on the 14th day of June, 1927. Appellants’ original action to set the same aside was not filed until May 3, 1930, more than two years after such judgment was rendered.

Appellants proved affirmatively that they did not know of the institution or pendency of said suit; that they did not appear therein in person or by an attorney, and that they never learned that such judgment had been rendered until about two months before they instituted suit to set the same aside. Article 2236 of the Revised Statutes provides that in suits in which judgment has been, rendered on service of process by publication, where the defendant has not appeared in person or by attorney of his own selection, the court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment was rendered. The bill of review so provided for amounts to no more than a new trial, permitted by virtue of statute to be filed and heard after the adjournment of the term. It is but a continuance of the original suit, and does not possess the character of an independent action in equity to review and vacate such judgment. This proceeding was not instituted nor prosecuted under the authority of said statute. It is an independent suit in equity to vacate and annul said judgment on the ground that the affidavit made by Henrietta Dailey in said cause for service by publication was false and fraudulent, and the service predicated thereon and the judgment rendered in pursuance of such service were void or voidable and subject to be vacated upon judicial ascertainment of said facts. Bonner v. Pearson (Tex. Civ. App.) 7 S.W.(2d) 930, 932, pars. 2 and 3. Such an action is within the provisions of Revised Statutes, art. 5529, and may be brought at any time within four years after the rendition of the judgment so attacked. Rose v. Darby, 33 Tex. Civ. App. 341, 76 S. W. 799, 800, and authorities there cited; McLean v. Stith, 50 Tex. Civ. App. 323, 112 S. W. 355, 361 (writ refused); Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 899, 901 (writ refused); State v. Dashiell, 32 Tex. Civ. App. 454, 74 S. W. 779, 781; Heidenheimer v. Boring, 6 Tex. Civ. App. 560, 26 S. W. 99, 102; Godshalk v. Martin (Tex. Civ. App.) 200 S. W. 535, 536, par. 3; Garza v. Kenedy (Tex. Com. App.) 299 S. W. 231, 233, par. 5. 234, par. 12, and authorities there cited. Appellants’ contention is overruled.

Appellants assign as error the action of the court in submitting over their objection issues Nos. 1, 3, and 5, respectively, as above recited, inquiring whether Henrietta Dailey, at the time she made the affidavit for citation by publication in cause No. 8520, knew the names of Zuma Kidd and Theodora Bly, and whether she made said affidavit with the fraudulent intent of depriving them of property rights. Appellants’ objections to the submission of said issues were, in substance, that the evidence was wholly insufficient to justify the submission thereof. We think the testimony above recited, together with other testimony in the record which it is not necessary to here recite, fully justified the submission of such inquiries with .reference to Zuma Kidd. Theodora Bly, however, claims under her deceased mother, Mercedes (or Mercy Dee) Dailey, also referred to in the testimony as Mercedes Morgan. There is affirmative and uncontradicted testimony in the record that Mercedes died in 1929, long after the making of said affidavit and the rendition of the judgment in said cause. Theodora Bly was not then an heir of Fred Dailey, and had no interest in his estate. Such issues upon another trial should, of course, he framed in the light of the testimony before the court and jury at the time.

Appellants assign as error the action of the court in submitting over' their objection special issue No. 6 as above recited, inquiring whether Fred Dailey purchased the lot involved in this suit out of funds acquired by him before his marriage to Henrietta Dailey. Appellants’ objection to the submission of said issue was, in substance, that there was no competent evidence in the record to justify such submission. Fred and Henrietta were married in 1883. Said lot was conveyed by Mittie Renick on the 18th of July, 1887, to Fred Dailey and J. R. Ritchie for a recited consideration of $10 cash and a note for $61. On July 1, 1890, Dailey and Ritchie conveyed the north end of said lot to Guess. Dailey reacquired the same on July 4, 1900. The deed conveying the same to him recited a cash consideration.- Both said conveyances to him were during the existence of the marriage relation between him and Henrietta. The property was therefore prima facie community. The appellees Zuma Kidd and Theodora Bly alleged that said lot was purchased out of funds accumulated by Fred Dailey prior to his marriage to Henrietta, and was therefore in fact his separate property. The burden was upon them to establish such allegation by affirmative evidence. The only testimony introduced on this issue is the testimony of their witness Alf Batts. He testified that he was a brother of Fred Dailey; that he resided in Waco in 1S81 and 1882; that he then went to Robertson county and resided there until November, 1895, when he returned to Waco; that Fred separated from his first wife in 1877, and married Henrietta in 1883; that Fred had five acres in watermelons in 1882; that he also had seven or eight head of cattle, two mules, three horses, a wagon, and about fifty head of hogs, and that he always had a little money; that this lot was bought in July or August, 1882; that he could not tell how much money Fred had about that time; that he turned over to him $125 as the proceeds of the sale of watermelons, and that Fred spent it on the lot because it cost that much; that he was present when the deal was made, but he did not see the money paid; that the money was paid over at the courthouse; that he knew this because “I done told you he come back with the deed and title and lien to the lot”; that all this happened close to fifty years ago. The testimony of said witness did not m any way disclose .that he knew the technical description of this lot such as would he necessary -to identify the same either in a transaction of purchase or in a deed of conveyance thereto. He did not attempt to give a word of the conversation which he testified constituted “the deal” for said lot which he said was made in his presence. He did not even claim to have seen ' or examined the “deed, title and- lien” to the lot which he said Fred brought back from the courthouse. There is nothing to indicate that he knew the language necessary to constitute a paper a written conveyance of land. We think this testimony amounts to no more than a conclusion of the witness, admittedly based on what Fred told • him. Such testimony has been held insufficient to support a judgment. Black, Sivalls & Bryson, Inc., v. Operators’ Oil & Gas Co. (Tex. Civ. App.) 37 S.W.(2d) 313, 314, pars. 1 and 2.

As hereinbefore stated, the record title, presented and vouched for by appellants, showed that Mittie Renick conveyed the lot. in controversy to Fred Dailey and Ritchie, in 1887, five years after the purported transaction referred to in Batts’ testimony, and four years after Fred’s marriage to Henrietta. There was absolutely ,no attempt to show that the $5, Dailey’s half of the cash consideration recited in said deed, was paid out of money or out of the proceeds of property which Dailey owned before such marriage. The issue as submitted dealt with-said lot as a whole. As hereinbefore recited, Fred Dailey sold the north part of said lot for a valuable consideration about two years, after he purchased his interest therein, and had no further interest in such north part until July 4, 1900, when he repurchased the same for a valuable consideration. This was seventeen years after his marriage to Hen-, rietta and eighteen years after the purported purchase testified to by Alf Batts. We think that Dailey’s recorded transactions with reference to this lot of land as a whole effectively rebut any possibility that the deed from Mittie Renick to him was based on a-cash consideration paid in 1882. Certainly, it could not be contended that the deed by which the north part of the lot was recon-veyed by Moore to Dailey in 1900 was based-in whole or in part on such consideration. Oral testimony wholly at variance with undisputed facts shown of record must yield thereto. Neill v. Pryor (Tex. Civ. App.) 222 S. W. 296, 298, par. 6; S. A. & A. P. Ry. Co. v. Biggs (Tex. Civ. App.) 283 S. W. 627, 631, pars. 3 and 4; H. E. & W. T. Ry. Co. v. Lavine (Tex. Civ. App.) 255 S. W. 448, 450, par. 1; Schmitt v. Standard Oil Co. (Mo. App.) 221 S. W. 389, 390, par. 1; Scroggins v. Metropolitan Street Railway, 138 Mo. App. 215, 120 S. W. 731, 732; St. L. & S. F. Ry. Co. v. Stewart, 137 Ark. 6, 207 S. W. 440, 441, pars. 1 and 2; Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342, 347, et seq. The testimony of Alf Batts, standing, as it does, alone, did not warrant .the submission of such issue.

The judgment of the trial court is reversed, ..and the cause remanded.


author: FUNDERBURK, J.

text:
    DAKAN v. DAKAN.
    No. 1119.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 21, 1932.
    Conner & McRae, of Eastland, for appellant.
    M. E. Lawrence, of Eastland, for appel-lee.
   FUNDERBURK, J.

On February 11, 1932, Mrs. Agnes Dakan filed this suit against C. B. Dakan, the Commercial State Bank of Dallas, and the First State Bank of Stamford. As against C. B. Dakan the suit was for divorce and to recover title to one-half of all community property of the plaintiff and said defendant, and also for an injunction. As against the two banks it sought injunction to restrain them from delivering or paying over to C. B. Dakan any moneys on deposit to his credit. The petition, in addition to allegations of the necessary jurisdictional facts of inhabitancy and residence of the plaintiff and of the marriage of the plaintiff and C. B. Dakan (on or about November 13, 1931), and their separation (on or about January 27, 1932), for grounds of divorce alleged that, since said separation, “plaintiff has not lived with the defendant because of his cruel and harsh treatment as hereinafter set out * * * the defendant, soon after their marriage, began a course of cruel and harsh treatment toward plaintiff which has increased as the months passed by until on or about the 27th day of January, 1932, living with the defendant C. B. Dakan became altogether impossible and insupportable. * * * That defendant’s actions and conduct toward her generally are of such a nature to render their further living together as husband and wife insupportable.”

As a basis for injunction, plaintiff alleged that, at the time of the marriage, she “was possessed with” an automobile (fully described), and that “during her marriage with the defendant there had been acquired other properties, the exact description of which is unknown to this plaintiff. * * * Defendant, from time to time, has collected funds belonging to the plaintiff and defendant and now has in his possession, the whereabouts of which is unknown to plaintiff, several thousand dollars, which is on deposit in the name oí the defendant in the Commercial State Bank of Dallas, or First State Bank of Stamford, Texas, or is held by the defendant in currency and is in the custody of said banks in lock boxes and all of said property is the property of the plaintiff and defendant. In this connection plaintiff says that the defendant is fraudulently concealing from this plaintiff, withholding and refusing to deliver said moneys, and is threatening and attempting to take said moneys from the jurisdiction of this court and to deprive the plaintiff of the value thereof, and further, said defendant threatens and is attempting to and will sell and remove from the jurisdiction of this court and beyond the reach of the plaintiff, all of the property now in the possession of the defendant, and unless restrained the defendant will take from the same and the plaintiff herein will suffer irreparable injury and loss unless the defendant is enjoined from managing, exercising control over, selling, removing, disposing of or interfering in any way or manner with said property now in his possession or unless the said Commercial State Bank of Dallas and the First State Bank of Stamford is restrained from paying to or delivering to the defendant any moneys on deposit in said banks, plaintiff will suffer irreparable injury.” The prayer was, among other things, for divorce, and “that an injunction issue forthwith against the defendant C. B. Dakan, restraining him from disposing of, incumbering or selling any of the property now in his possession, restraining the defendant from harming the person of plaintiff and commanding the defendant to deliver forthwith to the plaintiff herein her said automobile. * * * That the defendant banks be enjoined from delivering to the defendant or any other person any moneys on deposit or in their custody in the name of the defendant. Plaintiff further prays that the defendant be required by order of this court to file under oath in this cause within five days with the clerk of this court a complete list of property, real and personal, moneys, notes, bonds, certificates or any other evidence of money or property which he has in his possession directly or indirectly, either in his name or in the name of any other person, with the description, amount and location thereof, and the plaintiff have judgment decreeing title to one-half of any property, costs of suit, and for such other and further relief as she may be entitled to in law and in equity.”

The judge in chambers, and without notice, granted the injunction as prayed for, but particularizing the acts enjoined and commanded as follows: “⅜ * ⅜ Restraining the defendant O. B. Dakan from inflicting any harm to plaintiff, and from selling, disposing of, removing any of the property that may be in his possession or under his control, and directing the said defendant C. B. Dakan to file within five days from the date this injunction is served upon him under oath an inventory of any and all properties, real, personal or mixed, in his possession or under his control, showing the number, amount, character, location and whereabouts of each and every item, and further restraining the defendants, Commercial State Bank of Dallas and First State Bank of Stamford, from pay-' ing to or delivering to the defendant C. B. Dakan or any other person any moneys on deposit or in their possession in the name of the said O. B. Dakan or under his control, and further directing the said C. B. -Dakan to deliver forthwith to the plaintiff herein, Mrs. Agnes Dakan, the automobile described as a Chevrolet Coupé, 1929, Motor No. 1,568,-229, License ■ No. -, conditioned that plaintiff' make bond of $100.00 payable to the defendant as required by law. Elzo Been, Judge presiding.”

Injunction bond was filed and approved the same day, but the writ of injunction issued July 5,1982, thereafter and therein commanded the defendant to “ref rain' from disposing, of said property,” and directed him “to deliver Chevrolet coupé” to plaintiff until the-further order of said Eighty-Eighth district court, etc. The defendant C. B.' Dakan has-appealed from the order granting the injunc- - tion.

The authority, if any, for the granting of the injunction complained of herein must be found in R. S. 1925, art. 4635 or 4636, or both. Article 4635 reads: “At any time during a suit for divorce the wife may, for the preservation of her rights, require an inventory and an appraisement to be made of both real and personal estate which are in the possession of the husband, and an injunction restraining him from disposing of any part thereof in any manner.” Article 4636' reads: “Pending suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.” Considering these two provisions of the statutes together, it will be observed that' article 4635 prescribes certain rights of a wife in a divorce suit, but does not purport to deal directly with the authority of the' court.' On the other hand, article 4636 has for' its sole subject-matter the grant of authority to the court to make certain temporary orders during the pendency of a divorce suit. The orders which a court may properly make under authority of the last-named provision are interlocutory. -For that reason they are nofc appealable except when they come withini some class as to which, by provision of other-statutes, the right of appeal is especially-given, as, for instance, R. S. 1925, arts. 2250 and 2251. Turner v. Turner, 47 Tex. Civ. App. 391, 105 S. W. 237; Swearingen v. Swearingen (Tex. Civ. App.) 165 S. W. 16; Gardner v. Gardner (Tex. Civ. App.) 154 S. W. 1064; Dawson v. Dawson (Tex. Civ. App.) 140 S. W. 513; Williams v. Williams, 60 Tex. Civ. App. 179, 125 S. W. 937, 1199.

It results that that part of the order in the instant case which commands the defendant to make and file an inventory and appraisement is not one that was appealable, and is not involved in this appeal.

Clearly, the orders authorized by article 4635 are expressly limited to temporary orders, and, if such an -order be one for an injunction, it is necessarily a temporary injunction. If the facts alleged authorized an injunction, it is not necessary, we think, that the prayer be specially for a temporary injunction. The rule in injunction suits generally,, to the effect that a temporary injunction is unauthorized unless specially prayed for, is thought to be inapplicable. The reason of that rule does not exist in reference to an order like this, where the authority of the court to grant any injunction at all is limited to a temporary injunction. See Uhl v. Irwin, 3 Okl. 388, 41 P. 376.

The right to an injunction under authority of article 4636, which the wife has as a means, of enforcing her rights prescribed by article 4635, is not dependent upon allegations of facts to show the want of an adequate remedy at law, or that irreparable injury will result if the injunction be not granted. An injunction as ancillary to a divorce suit which seeks merely to conserve property, whether the wife’s separate property in the lawful possession of her husband, their community property, or even the separate property of the husband,' to the end that same be available at the end of the suit to meet the claims of the wife in reference thereto, may properly be granted, so it has been held, upon a simple showing that the husband is likely to dispose of the property. Turner v. Turner, 47 Tex. Civ. App. 391, 105 S. W. 237; Wright v. Wright, 3 Tex. 168. The fact of the solvency of the husband has been held to be immaterial. Helm v. Helm (Tex. Civ. App.) 291 S. W. 648. So would it be as to any other fact designed merely to show the nonexistence of an adequate remedy át law, or that irreparable injury would result.

Whether it is necessary that the petition, be sufficient as the statement of a cause of action for divorce in order to justify the granting of an injunction under authority of these statutory provisions is an interesting question. So far as we have found, it has never been directly passed upon. It is the contention of appellant that,, since the injunction authorized by these statutes.is collateral to a Suit for divorce,, and since the petition for divorce stated no facts to show cruel treatment (the ground of divorce relied upon), but merely stated general conclusions, the pleading did not, for that reason, authorize the granting of the injunction.. According to many decisions, beginning with Wright v. Wright, 3 Tex. 168, allegations like those in this case have been held insufficient. But in the recent case of McCullough v. Mo Cullough, 36 S.W.(2d) 459, 462, the Supreme Court, without mention of any of said de- ' cisions, speaking through Judge Critz, said: “In this connection we hold that a divorce granted by a court of competent jurisdiction on a petition which merely alleges the defendant has been guilty of such excesses, cruel treatment, and outrages against the plaintiff of such a nature as to render their further living together insupportable, is good against a general demurrer. Of course such an allegation, in a way, is the pleading of a conclusion when tested by proper special exception, but, when tested by a general exception, it is a sufficient allegation of a fact, to authorize the district court to hear the evidence, and on which a valid decree of divorce may be awarded.” The allegations in the case at bar meet this test. The portion of. the opinion quoted is in the nature of a. dictum, since the pleading involved clearly stated sufficient facts as distinguished from conclusions. We find it unnecessary, however, to decide whether the former rule has been abrogated. Although there has been no express holding to the effect that it is unnecessary to support the granting of an injunction in a divorce suit that the petition be sufficient to show a right to the divorce we have a precedent for so holding. In Wright v. Wright, supra, the Supreme Court reversed and remanded a divorce case because of the insufficiency of the petition to state a cause of action for divorce, the ■ defect being the same herein complained of, but expressly continued in force the temporary injunction 'theretofore granted. In view of this authority, we do not feel warranted in holding that the petition is insufficient to state a cause of action for injunction,- even if it- be granted that it is defective in the statement of a cause of action for divorce.

The right of a wife to an injunction given by said article 4635 is the right to a restraining injunction. If mandatory orders are authorized at all under article '4636, they are not required to enforce the right given the wife by article 4635, and will therefore be governed' by the general statutory provisions relating to injunctions and the general principles of equity jurisprudence. Tested by such statutes and principles, there was clearly no right shown to the mandatory order, without- notice or hearing, requiring the defend-, ant C. B. Dakan to deliver possession of the automobile to the plaintiff. Neither were the facts alleged sufficient to justify the injunction as against the two banks. Although the banks have not appealed, we are unable to say that the injunction, improperly granted as to them, cannot prejudicially affect the right of the appellant. Under the pleading in question, a proper exercise of the authority of the court was limited to the restraining of the defendant C. B. Dakan from incumbering or disposing of the automobile and the money and other community property of plaintiff and defendant during the penden-cy -of the suit, or until otherwise ordered.

The judgment as against the two banks will be reversed and dismissed, and as to the defendant C. B. Dakan will be reformed to provide as above indicated, and, as so reformed, will be affirmed, which is accordingly so ordered.


author: SMITH, J. .

text:
    SOUTHERN IRON & MACHINE CO. v. PORTUGAL et al.
    No. 8874.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    King, Wood & Morrow, of Houston, and Ab-ney & Whitelaw, of Brownsville, for appellant.
    Seabury, George & Taylor, of Brownsville, for appellees.
   SMITH, J. .

Catarino Portugal was killed as a result of a collision between an automobile in which' he and others were riding as passengers and an automobile belonging to appellant, Southern Iron & Machine Company, and driven by its agent.

At the time of the accident, Portugal was riding on the left running board of the car. The collision occurred on a curve of a paved ¡highway in Cameron county. In faithful adherence to an apparently universal custom, each driver testified- that at the time of the collision his car was on the right half of the roadway, and the other’s on the wrong half. It is apparent from the record, and easily conceivable, that both vehicles were whirling recklessly around the curve, at an admitted speed of twenty-five or more miles per hour.

Appellant’s car side-swiped the left side of the other, crushing Portugal, perched on the running board. It does not require much stretch of the imagination to discern a significant relation between the facts that none of the travelers was injured except Portugal, and that- he was riding on the running board at the point of impact.

Portugal’s widow and children recovered damages on account of his alleged wrongful death, and the corporate defendant has appealed.

In its answer appellant pleaded the contributory negligence of the deceased by simply alleging that he “was himself guilty .of negligence at -the time and place of the accident alleged by the plaintiffs in their petition.” The trial court submitted the issue of contributory negligence in equally general terms by asking the jury to find if either,the deceased or his driver-host was “guilty of any negligent act or omission which, concurring or co-operating with the negligence, if any, of” the driver of appellant’s car “proximately caused or contributed to cause the death of said Portugal.” The evidence included testimony of specific acts of contributory negligence upon the part of deceased, such as his act of riding on the running board of the truck. In this situation appellant objected to the submission of the question of contributory negligence in the one general issue, and compla.ins because of the refusal of its requested special issues submitting tbe specific acts developed by the evidence. We are obliged to sustain the complaint, embraced in appellant’s first proposition.

It now appears to be well settled in this state that “a general plea of contributory negligence, not excepted to,” as in this case ‘‘is undoubtedly sufficient to warrant its submission generally or in any and all forms in which the issue is made by the evidence.” Stewart v. Galveston, H. & S. A. Ry. (Tex. Civ. App.) 78 S. W. 979 (writ denied); Lanning v. Yarbrough (Tex. Civ. App.) 35 S.W.(2d) 211, and authorities there cited.

It is equally well settled that it is the duty of a trial court to segregate and separately submit each act of negligence pleaded by either party and supported by evidence, and it is reversible error to submit the issue of negligence in general terms over the objection of the parties, or to refuse requested special issues separately submitting controverted specific acts of negligence. Articles 2189, 2199, R. S. 1925; Speer’s Special Issues §§ 182,189; France v. Graves (Tex. Civ. App.) 48 S.W.(2d) 438, and ¿uthorities there cited. Upon these conclusions we sustain appellant’s first and second propositions.

. If the question discussed were one of first impression, we might be disposed to hold, in sdpport of good practice, that one who pleads negligence, or any other affirmative ground Of recovery-or of defense, should not be heard to cbmplain because the issue he has raised is submitted in terms as general as his pleading thereof. Nor should his opponent be heard tó-.complain of such submission when he has failed to except to the generality of his adversary’s pleading. But the authorities clearly hold against this notion; thus rendering it still more difficult for counsel and trial courts to steer a trial safely through the increasingly difficult perils of special issues.

The court likewise erred in charging the jury that “the burden of proof is upon the plaintiffs to establish the material allegations in their petition, upon which they rely for a recovery, by a preponderance of the evidence.” This instruction has been condemned for numerous reasons not necessary to set out here. Speer’s Special Issues, §§ 133, 137; Davis v. Morris (Tex. Com. App.) 13 S.W.(2d) 63; Wootton v. Jones (Tex. Civ. App.) 286 S. W. 680; Missouri-Kan. Texas Ry. v. Thomason (Tex. Civ. App.) 3 S.W.(2d) 106; Ark. Fuel Oil Company v. Connellee (Tex. Civ. App.) 39 S.W.(2d) 99.

So was it error for the court to refuse to define the term “ordinary care,” as used in the charge to the jury. Speer’s Special Issues, § 51; France v. Graves (Tex. Civ. App.) 48 StW.(2d) 438, and authorities there cited.

Numerous other questions are presented in the appeal, some of which ought not, and probably will not, occur upon another trial, and such need not be noticed here.

But, for the specific reasons given, the judgment must be reversed and the cause remanded.


author: SMITH, J.

text:
    VALLEY DEVELOPMENTS, Inc., v. LAMB et ux.
    No. 8876.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 19, 1932.
    Carter & Stiernberg, of Harlingen, for appellant.'
    II. B. Galbraith, of Brownsville, and H. R. Maxwell, of Harlingen, for appellees.
   SMITH, J.

On March 9,1929, E. E. Lamb and wife purchased a tract of 14.26 acres of land in Cameron county from Valley Developments, Inc., for a consideration of $15,400, payable partly in cash, and partly on time. About a year afterwards Lamb became dissatisfied with his purchase, claiming that the selling agent of his vendor had misrepresented the quality of the land, and thereby deceived him into making the purchase. He complained to thc president of the corporation, and, as a result of the ensuing negotiations, the two entered into an agreement whereby the corporation was bound to make certain improvements upon the land in settlement of the purchaser s claims. This agreement of settlement was reduced to writing and accepted by Lamb, who, nevertheless, thereafter filed this suit for rescission, or, in the alternative for damages, based upon the charges of fraud previously made by Lamb. Upon a trial the count for rescission went out of the case, but the trial court, disregarding the pleading and proof of settlement, submitted the case for damages, and, upon jury findings, rendered judgment in favor of Lamb for some $6,500. Tbe corporation, Valley Developments, Inc., has appealed. Appellees bave not contested tbe appeal, either by brief or oral argument.

Appellant presents numerous assignments and propositions, but we see no occasion to discuss more than tbe controlling contention that appellees were precluded by tbe settlement and tbe performance of tbe conditions thereof by appellant. That agreement was expressed in tbe plainest terms, in writing, was accepted by appellees unequivocally and irrevocably, and thereby became tbe measure of tbe rights and liabilities of tbe parties.

It is undisputed that appellant fully performed tbe conditions of tbe settlement, but, even if it bad defaulted thereon, appellees’ remedy therefor lay in a suit for damages for breach of that agreement, and not in a suit for damages for deceit practiced upon them by appellant in tbe original transaction.

Tbe evidence of tbe settlement is undisputed, is conclusive, was apparently fully developed below, and by force of its effect tbe trial court should bave directed a verdict for appellant, and rendered appropriate judgment thereon.

Tbe judgment is reversed, and judgment here rendered that appellees take nothing by their suit, and pay all costs of tbe litigation.


text:
    SKAGGS et al. v. GRISHAM-HUNTER CORPORATION et al.
    No. 2714.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 13, 1932.
    Rehearing Denied Nov. 3, 1932.
    R. J. Randolph, of Austin, and James Cornell and W. H. Lipscomb, both of San Angelo, for plaintiffs in error.
    Grisham, Patterson & Grisham, of East-land, for defendants in error.
   HIGGINS, J.

Skaggs and another, plaintiffs in error, on April 22, 1931, filed this suit against Gris-ham-Hunter Corporation and Central State Bank of Abilene, Tex., defendants in error, and others not necessary to mention, to recover possession of a section of land in Wink-ler county; also to recover the title to the oil and gas in said land and for the value of the oil and gas which had been previously taken from the same.

Plaintiffs in error dismissed their suit, but in the meantime defendants in error had filed a cross-action to recover the land. Judgment in favor of the defendants in error was rendered upon their cross-action.

The land in controversy was originally public school land. In 1906 it was sold and' awarded to J. C. Darwood. Proof of occupancy and improvement, as required by’ law, was made, and by mesne conveyances' the' land passed to T. G. Hendrick by deed' date'd' August 17, 1922.

By deed dated May 18, 1923, Hendrick .con-' veyed this and other lands to his wife. A copy of this deed was filed in the General Land Office on February 8, 1926.

On September 11, 1925, the sale of the land was forfeited for nonpayment of interest. Upon request of T. G. Hendrick the land was revalued by the Land Commissioner and reappraised at $1 per acre. Upon application to repurchase by Hendrick, filed in the Land Office January IS, 1926, the land, on March 9, 1926, was awarded to Hendrick under the provisions of chapter 94, Acts 1925, p. 267.

By deed dated February 6, 1926, Hendrick conveyed to the Central State Bank, and by deed dated February 6, 1926, acknowledged April 15, 1926, Hendrick and his wife con-, veyed the land to said bank. Copies of these last two mentioned deeds were filed in the Land Office August 29, 1927.

On September 29, 1927, the land was patented to the Central State Bank, which later conveyed to the Grisham-Hunter Corporation an interest in the land.

Separate affidavits of Hendrick and wife, dated September 15, 1928, were filed September 21, 1928, in the Land Office. In these affidavits it was stated the land in question was included in above-mentioned deed of May 18, 1923, by mistake.

On March 26, 1927, Richard T. Short filed with the county clerk of Winkler county his application to prospect for oil and gas on the land. This application with required affidavit, payment, and fee was filed in the Land Office April 8, 1927, and on May 9, 1927, same was rejected for reason indorsed as follows: “These tracts are sold and not subject to permit, also for reason there are no field -notes for these sections and an application to county clerk void.”

Field notes of the land made by a licensed surveyor under survey dated February 5, to March 15, 1927, were filed in the Land Office March 26, 1927.

Plaintiffs in error claim under this application as assignees of Short.

Plaintiffs in error assert T. G. Hendrick was not the owner of the land at the date the original sale was forfeited on September 11, 1925, and was not the owner when it was resold- and awarded to him in 1926, he having previously conveyed the land to his wife and was therefore not a competent person to contract with the state for the repurchase of the land; wherefore, the sale to him was unauthorized and void, and did not support the patent subsequently issued to the Central State Bank. We need not inquire into the original validity of the sale and award to Hendrick based upon his application to repurchase under the provisions of chapter 94, p. 267, Acts of 1925.

The Land Commissioner has recognized the validity thereof and patent has issued based thereon.

More than one year elapsed from the date of the resale before Short filed his application for a mineral permit and much more than a year elapsed from the date of the resale as well as the date of patent before this suit was brought by plaintiffs in error.

Inquiry into the validity of the repurchase by Hendrick is precluded by that portion of subdivision 4 of article 5329, R. S. which reads: “No sale made without condition of settlement shall be' questioned by the State or any person after one year from the date of such sale.” In this connection it is asserted the statute quoted has no application because the sale to Hendrick was void and therefore cannot be considered as a sale within the purview of such statute.

A like contention was made with reference to the ’ one-year statute of limitations contained in the act of 1905 (Acts 29th Leg. c. 29) relating to sales upon condition of settlement and rejected as altogether untenable. As was said by Judge Williams in Wyerts v. Terrell, 100 Tex. 409, 100 S. W. 133: “The contention that the act does not apply to such eases would strip it of all its force and defeat its purpose.” See, also, Murphy v. Terrell, 100 Tex. 397, 100 S. W. 130; Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057; Herndon v. Robison, 114 Tex. 446, 270 S. W. 159, and King v. Robison, 103 Tex. 390, 128 S. W. 368, 369.

In the case last cited Judge Williams said: “That it would have been declared void upon an attack made in time does not deprive it of the protection of the statute, which was designed to meet just such objections. Wy-erts v. Terrell, 100 Tex. 410, 100 S. W. 133.”

No reason is apparent why the doctrine announced and rulings in the cited cases should not apply with equal force to the present one-year statute contained in subdivision 4 of article 5329.

The present statute was originally a part of an act of the 37th Legislature (Reg. Sess.), being chapter 57, at page 118, and it is objected such original act is unconstitutional because the subject of sales without condition of settlement is not embraced in the caption of the act; or, if embraced therein, the bill contains more than one subject in violation of section 35, art. 3, of the State Oonstitution.

If the act was originally defective in the particulars indicated, it is now unimportant in view of the incorporation of the act in the 1925 Revision. American, etc., Co. v. City of Austin, 112 Tex. 239, 246 S. W. 1019; Capley v. Hudson (Tex. Civ. App.) 286 S. W. 531; Long v. State, 109 Tex. Cr. R. 140, 3 S.W.(2d) 448; Dobkins v. State (Tex. Civ. App.) 19 S.W.(2d) 574; Carlton, etc., Dist. v. Jordon (Tex. Com. App.) 25 S.W.(2d) 610; Briggs v. Buckner (Tex. Civ. App.) 19 S.W.(2d) 190; City of Lubbock v. Magnolia, etc., Co. (Tex. Com. App.) 6 S.W.(2d) 80; Commercial, etc., Co. v. Moody, 114 Tex. 457, 270 S. W. 1011; Gulf, C. & S. F. R. Co. v. Gardner (Tex. Civ. App.) 266 S. W. 809.

In a reply argument, by permission filed subsequent to the submission of the case, plaintiffs in error practically concede that these authorities foreclose this question against them.

In such reply-argument other objections are urged against the application of the one-year statute above quoted. These objections we regard as untenable and calling for no discussion. Nor do we regard the one-year statute as in any wise violative of section 4 of article 7 of the Constitution, as is asserted in the last proposition presented by the plaintiffs in error.

Affirmed.