author: WALKER, C. J.

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. GARSEE et al.
    No. 2277.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1932.
    Rehearing Denied Dec. 7, 1932.

      See, also (Tex. Civ. App.) 47 S.W.(2d) 654.
    Barnes & Barnes, of Beaumont, for appellant.
    Ered A. White and R. H. Jernigan, both of Port Arthur, for appellees.
   WALKER, C. J.

This suit was instituted in the district court of Jefferson county by appellant, Indemnity Insurance Company of North America, against appellee C. G. Garsee and others, as an appeal from an adverse award of the Industrial Accident Board. Upon trial to a jury it was found that Garsee suffered total incapacity from the date of the injury sued for in his cross-action for 174 days, and a permanent partial incapacity of 85 per cent, of the use of his arm. Judgment was entered in his favor upon these findings, from which this appeal was prosecuted. The nature of the. case will be fully stated in the discussion of the propositions of error.

By its first four propositions appellant asserts: First, that appellee failed to plead a cause of action; and, second, that his proof failed to establish a compensable injury.

Appellee pleaded the nature of his injury as follows: “On or about the 3rd day of March, 1930, C. G. Garsee was in the employment of the Gulf Refining Company, and had been employed by the said Gulf Refining Company for a period of several years next prior to said date, and that*on said date, while in the course of his employment with the Gulf Refining Company and while covered by Workmen’s Compensation Insurance, received an injury while on duty, in the nature of an insect bite or other poisonous insect or animal on his arm at or near the elbow. That said injury was received in a bath house at said Gulf Refining Company, at or near Port Arthur, Jefferson County, while he was removing some objects from a barrel or other container at or near the bath house, and while engaged in the duty for which he was employed, and while about the business of his employer, the Gulf Refining Company. The nature of said injury will be more specifically set out hereinafter.”

In support of the allegations of his petition he testified as follows, reducing his question and answer testimony to narrative form:

“I was working out at the Gulf Refinery, in the bathhouse on Sixteenth Street * * * and some kind of an insect stung me on, the arm, on the 18th day of March, 1930. Well sir, of course I was working at the bathhouse, but I was'working in a drum to put some worn clothes that had been thrown away around the hose to blow a sewer out in the bathhouse.” He further testified that he was taking some old clothes out of an old barrel to wrap around a pump to blow a sewer out, and that it was a part of his duty, and that he couldn’t get along without doing it; that he wasn’t required to do it, but found out pretty soon he had to do it or the sewers would stop up and he couldn’t wash the bathhouse locker rooms; that washing the bathhouse locker rooms was part of his duties; and that if the sewers stopped up he couldn’t wash the bathhouse because the water would stand in there and had no way of getting out. On his cross-examination appellee further testified: “It was the same bathhouse where I was working when I got stung or bitten. Before I got my arm broken I was doing in the bathhouse that day what I do every day, clean up the bathhouse. It was the same kind of work I was doing when I got stung. * * * I had a broken arm. Xes, sir, that broken arm was received in the usual course of my employment. They gave me compensation a while paying me for that broken arm. I was working in the bathhouse when I got my arm broken. I broke that arm the last day of last year; the last day of last 1930, at nine o’clock in the morning. I was working when I got my arm broke. When I got my arm broke I was shutting the water off out of the shower bath upstairs in what is called the negro quarters. That was the same bath house I was working in when I was hurt before; it was the same bath house I was working in when I got stung or bitten. The day before I got my arm broke I was doing what I do every day, cleaning up the bath house. That was the same kind of work I was doing when I got stung. After I was bitten by the insect bite the job I returned to was straight days in the bath house, doing a part of the work I had done when I was shifting; cleaning up the bath house, cleaning around. In cleaning up the bathhouse about the first thing we did was shut the water off in the shower bath. Next thing we do is go around and get up all the clothes off the floor and all papers afid rags, and then get back to the shower house and sweep and rinse them out.”

Joe Ayo, a witness for appellant, testified that he was working in the bathhouse in March, 1930 ; that he knew G. G. Garsee and that he saw him on the morning of the 18th of March, and that Garsee told him that morning that during the night he had been bitten on the arm while cleaning the sewer pipe. “He was cleaning up the sewer pipe, the sewer drainage. He told me he was cleaning the sewer pipe and something bit him on the arm.” On cross-examination Mr. Ayo testified that the sewer line in question in this case was the line that “drains off the bath water from the bath house and that the line frequently gets stopped up, soap and stuff like that, and in order to clean it out you take a hose and put the, end of that hose in the opening in the sewer and pack old clothes around it and create a pressure to force the obstruction out of the sewer line”; and that Garsee told him he was cleaning up the sewerage, it was stopped up, and something must have bitten him while he was cleaning up the sewer.

Appellant’s argument is to the effect that the insect sting or bite did not have its origin in any causative danger prevailing in the conditions of appellee’s employment and that he was not exposed to any hazard to which he would not have been equally exposed apart from his employment; that the “accident” forming the basis of appellee’s cause of action resulted from a danger to which mankind in general was equally exposed. It is also insisted by the fifth proposition that there was no proof that the work in which appellee was engaged at the time of his injury constituted work “in the usual course of trade, business, profession or occupation of his employer.”

We will dispose of the last contention first. It is the law, as appellant insists, that it is not alone sufficient to show that the claimant was injured while engaged in or about the furtherance of his employer’s business, but “he must also show that his injury was of such kind and character as had to do with and originated in the employer’s work, trade, business, or profession.” Aetna Life Ins. Co. v. Burnett (Tex. Com. App.) 283 S. W. 783, 784. The proof in this case is that appel-lee had been in the employment of the Gulf Refining Company for about fourteen years and for the two years' immediately preceding his injury, had been doing bathhouse work, the very work he was engaged in at the time he received his injury. The conclusion is irresistible that the operation of the bathhouse was a part of the business of the Gulf Refining Company.

Appellant urgently insists that the insect sting or bite was “an act of God,” and that the risk of being stung by 'the insect did not originate in the employment, and that while engaged in his employment he was not subject to a greater hazard or risk of the insect bite than if he had not been so employed. We think the facts refute this argument. In order to clean out the bathhouse it was necessary to keep the sewer open. To accomplish this purpose it was necessary that appellee perform the work in the manner testified to by him and Joe Ayo. The material for this work was stored in a barrel. No one except a bathhouse employee had the right of access to this barrel. The record conclusively establishes the fact that the insect bite resulted from an effort on the part of appellee to discharge in an orderly way the duties of his employment. We think the risk or hazard in this case falls within the rule announced by the Supreme Court in Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 73, 28 A. L. R. 1402, where it was said: “An injury has to do with, and arises out of, the work or business of ’the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business” (citing Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. [916], 918).

As the evidence did not raise the issue of “act of God,” the trial court did not err in refusing to define that term to the jury.

It was improper for the court to ask the jury: “Was O. G. Garsee employed in the bathhouse of the Gulf Refining Company, if he were so employed, for substantially the* whole of the year * * * prior to the 18th of March, 1930?” This question submitted to the jury an issue of law as distinguished from an issue of fact. It is the duty of the jury, as said by the Commission of Appeals in Simmonds v. St. Louis, B. & M. Ry. Co., 29 S.W.(2d) 989, 990, “to make findings of fact from the evidence, and that of the court to apply the law to the findings made by the jury and ¡render a proper judgment thereon.” So in this case the issue of fact was the number of days actually worked by appellee in the year immediately preceding his injury. It would have been the duty of the court to determine, as a matter of law, whether the time actually worked constituted “substantially the whole of the year.” Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553, 554; Employers’ Liability Assurance Corp. v. Butler (Tex. Civ. App.) 20 S.W.(2d) 209. However, the error complained of does not constitute reversible error because it appears as a matter of law, on authority of the cases just cited, that appellee had wox-ked “substantially the whole of the year immediately preceding his injury.” The evidence was that with the loss of time of not more than eight weeks, appellee worked every day during the year immediately preceding his injury, seven days in the week, eight hours a day, at 54 cents an hour.

We agree with appellant that appellee rested under the burden of showing that it was the compensation insurer of the Gulf Refining Company at the time appellee was injured. Without reviewing the testimony, we think this issue was established, as a matter of law, that appellant was the compensation insurer. However, appellant presents two propositions of error against this evidence. First, it says that the issue was established by hearsay or secondary evidence, in that, ap-pellee proved 'by W. Hilton Berger, appellant’s local agent at Port Arthur, who had charge of this particular claim, as well as all other claims of this nature, that appellant was the compensation insurer of the Gulf Refining Ctompany at the time appellee was injured. The point made is that this was- secondary evidence. This contention is overruled. The contents of the insurance policy was not in issue. The effort made by appellee was merely to establish that appellant had issued its policy of insurance under the Workmen’s Compensation Law (Rev. St. 1925, art. 8306, et seq., as amended). That was a fact to which any qualified witness could testify. Texas Employers’ Ins. Ass’n v. Pierce (Tex. Civ. App.) 254 S. W. 1019. The second point against this testimony is based upon certain argument by appellee’s counsel to the effect that he stated to the jury that appellant’s counsel had refused to admit that appellant was the compensation insurer and in his argument again asked appellant’s counsel to agree that appellant was the compensation insurer. This argument was not reversible error because the issue was established, as a matter of law, and, second, admittedly, coum sel for appellee made the request of counsel for appellant in open court during the progress of the trial. It could not constitute error on the facts of this case to ask appellant in the presence of the jury to make this agreement nor to make the request again in connection with the argument.

Appellant also excepted to the following argument of counsel for appellee: “Take these questions and go out and answer them intelligently. Be sure you answer them as you think they should be answered, and be sure your answers are such that there is no contradiction in them. Go right down the line.” The proposition is that this argument constituted an instruction to the jury to answer the questions so that appellee could recover, within the inhibitions of MeFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213; Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302. We cannot agree with this construction of the argument in issue. We find no intimation in this argument that the jury answer the questions any particular way. The case was submitted to the jury on thirty-three questions. It was the part of prudence to ask the jury to consider its answers carefully in. order that the verdict might not be nullified by avoidable conflicts.

Appellant makes certain assignments against the claim of McMullen & Glass, druggists, for medical supplies furnished appel-lee. We do not discuss these assignments further because appellee concedes error in the respect charged.

Appellant is in error in the assignment that “there was no evidence that it and appellee’s employer had notice of the alleged injury within a period of thirty days after the happening thereof.” The evidence is all to the contrary on this issue. W. Hilton Berger, appellant’s local agent, had immediate notice of appellee’s injury.

By his original pleadings appellee stated that his injury was received on the 3d of March, 1930. Immediately before announcing ready for trial, by permission of the court, he amended his pleading in this respect and alleged his injury as of date March 18th. Appellant assigns error that the trial court refused to grant it a continuance on the ground of this amendment. No error was shown in this respect. Appellant was not surprised by reason of this amended pleading because under all the testimony it knew the actual date of appellee’s injury.

Under the pleadings the hospital service sued for was rendered by Mary Gates Hospital at Port Arthur. Under the proof St. Mary Gates Memorial Hospital claimed to own this hospital bill as the successor to Mary Gates Hospital. There is no basis in the pleading for this daim. The rule, as stated by 5 O. J. 1008, § 24, is that “an assignee, suing to recover in his own right on an assigned chose in action or contract, must plead the fact of assignment by direct averment.” Because this issue was not pleaded, the judgment in favor of St. Mary Gates Memorial Hospital has no support in the pleadings.

Under our Compensation Act, section 7 of article 8306, the doctor, the hospital and the other attendants upon appellee during his sickness could not recover for their services beyond the first four weeks immediately following his injury. The. pleadings of the claimants in this respect were fatally defective, in that, it was not pleaded that their accounts were for services and medical supplies furnished during the first four weeks. This omission was called directly to .the court’s attention by a special exception, which was overruled. This ruling constituted error, and the judgment in favor of the claimants, in the face of this exception, is without support.

Appellee pleaded the award of the Industrial Accident Board in his favor and in favor of the different claimants based upon his alleged injury. He attached a copy of this award to his petition as an exhibit in support of his allegations. Appellant duly excepted to the petition in cross-action on the ground that this exhibit was improperly made a part of the pleading, which exception was in all things overruled by the trial court. As we understand the authorities, the overruling of this exception constitutes reversible error. The award of the board was immaterial to any issue to be tried by the jury and they had no right to know its contents nor to be advised in any way of the ruling by the Industrial Accident Board upon appellee’s claim. As said by the court in Texas Employers’ Ins. Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112, 124, “it was presumably read when the petition was read * * * and. it was presumably in the hands of the jury as an exhibit to the petition in their retirement.” That case was cited and quoted from with approval on this identical issue in Fidelity Union Casualty Co. v. Klatt (Tex. Civ. App.) 47 S.W.(2d) 417, 419. The issue in that case was stated iby the court as follows: “As suggested by appellant, the overruling of the demurrer was harmless in itself, but the harmful error suggested by appellant consisted in permitting the reading before the jury of the paragraph of the answer of appellee to which the demurrer was directed, in which a verbatim copy of the award of the board is fully set out, as complained of in the second proposition. The question is then presented, was it error to permit the reading to the jury of the pleading stating the award made by the board, and, if error, was it reversible error?” Answering this question in the affirmative, the court said: “As said by the Amarillo court in Texas Employers’ Ins. Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112, 120, 123, the fact that the award was not read at the time it was offered was not material, it was presumably read when the petition was read, and it was presumably in the hands of the jury as an exhibit to the petition in the jury’s retirement.” See, also, Commercial Standard Ins. Co. v. McGee (Tex. Civ. App.) 40 S.W.(2d) 1105.

Appellee would- sustain the ruling of the court on authority of Farris v. United States Fidelity & Guaranty Co. (Tex. Civ. App.) 251 S. W. 612, 615; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; Travelers’ Ins. Co. v. Peters (Tex. Com. App.) 14 S.W.(2d) 1007. In our judgment these authorities in no way support the ruling of the lower court. Thus in the Farris Case the trial court sustained the plaintiff’s exception to the paragraph of the defendant’s answer which pleaded the award of the Industrial Accident Board. In discussing the proposition based on that ruling, the court merely said: “We think some allegation as to the amount in controversy should be in plaintiff’s petition to show jurisdiction of the court, and that a filing of the award with the clerk of the court does not comply with the requirements that the petition should affirmatively show that the court in which it has been filed has jurisdiction of the matters in controversy.” All the court held in that case, and in the other cases relied upon by appel-lee, was that jurisdictional facts must be pleaded, and not that it was the duty of the claimant nor his right to plead the details of the award before the Industrial Accident Board, thus advising the jury that his claim had been previously adjudicated in his favor.

■For the reasons stated, the judgment of the lower court is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: LAWHON, J.

license: Public Domain

text:
    TERRELL et al. v. ALPHA PETROLEUM CO.

    No. 2404.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 16, 1932.
    Rehearing Denied Nov. 19, 1932.

      Jas. V. Allred and Maurice Cheek, both of Austin, for appellants.
    Wm. E. Grimes, John T. Garrison, John C. Jackson, Paul D. Page, Jr., and Lawrence Dipper, all of Houston, and Wm. N. Bonner, of Wichita Falls, for appellee.

      Writ of error granted.

   LAWHON, J.

Alpha Petroleum Company, a Texas corporation, filed this suit in the district court of Montgomery county against C. V. Terrell, Lon A. ¡Smith, and Ernest O. Thompson in their capacity as railroad commissioners of the state of Texas, and also against W. B. Brow-der, Howard Van Zandt, the Texas Pipeline Company, a corporation, and Beta Oil Company, a corporation. W. B. Browder is alleged to be the county attorney of Montgomery county and Howard Van Zandt is alleged to be deputy supervisor of the Conroe oil field, acting under the appointment of and at the direction of the Railroad Commission of the state of Texas. It is alleged in plaintiff’s petition that it is the owner of oil and gas leases on two tracts of land in Montgomery county near the town of Conroe, and that it has valuable producing oil wells on this land. It is also alleged that one of the wells is producing 1,750 barrels per day, but is capable of producing in excess of 6,000 barrels daily if the valves and controls should be opened so that it would flow to full capacity, and that the other well is producing 3,200 barrels per day, but is capable of producing 12,000 barrels daily. It is alleged that the wells were drilled in a proper and workmanlike manner, and were being operated without physical or other character of waste; that it has a market for its oil, so that there will be no evaporation by reason of storage; that one well was drilled at an approximate cost of $42,000, and was completed about July 28, 1932, and the other well was drilled at an approximate cost of $38,000, and was completed about September 1, 1932. It is alleged that the Conroe oil field, where the two wells mentioned aré located, is in what is known as the “coastal area,” extending from Refugio county, Tex., through a number of counties in Texas near the Gulf of Mexico, and through a number of coastal parishes in the state of Louisiana; that the Railroad Commission had heretofore issued proration orders limiting the production of oil in all the fields of Texas except those located in the “coastal area.” It is alleged that, by reason of the difference in the depths of the wells and the nature of the pools or reservoirs of oil and geological formations, the production of oil from wells outside the “coastal area” can be curtailed without permanent injury to such wells or formations, while in the “coastal area” such limitation of flow is liable to cause serious injury or destruction of such wells and geological formations; that appel-lee had hy gradual processes reduced the flow of its wells far below full capacity in order to conform to the general plan of proration, but that the method it used would not work any permanent injury .to such wells; that the Railroad Commission, on September 19, 1932, promulgated an order amending a previous order, whereby production in the Montgomery county or Conroe oil field was limited to 240 barrels per day, such order to become effective September 24, 1932, and in such order Montgomery county was excluded from the “gulf coast area,” although other counties included in such area were many miles further removed from the Gulf of Mexico than Montgomery county; that in other fields near the Gulf Coast the owners were given wide discretion as to whether the reduction in the flow of oil would injure such wells, but that no such discretion was given owners or operators in the Montgomery county or Conroe field, and that the enforcement of such order would probably injure appellee’s wells, if not destroy them.

There are other allegations to the effect that the Conroe field has "been discriminated against in the order referred to, as compared to other coastal fields, such as regulating the space between wells to be drilled. It is further alleged that the Railroad Commission, its agents and servants, will seek to recover of appellee heavy penalties for violating the above-mentioned proration order unless enjoined, and that defendant Van Zandt, supervisor under the Railroad Commission, and W. B. Browder, county attorney of Montgomery county, will co-operate with the Railroad Commission, if not enjoined, in furnishing evidence upon which suits for penalties may be brought. It is also alleged that the Acts of the First Called Session of the Forty-Second Legislature (chapter 26), because it provides for the recovery of heavy penalties for violating orders of the Railroad Commission, does not give appellee due process of law, and says that such act of the Legislature is so vague and uncertain that no operator or citizen would know whether he was violating the same. Other unreasonable features are charged against the proration order referred to. Appellee prayed for a temporary restraining order and injunction against the enforcement of the order of the Railroad Commission referred to, and that such injunction so prayed for be made permanent on final hearing. The petition was verified by the president of ap-pellee corporation on the 23d day of September, 1932, and on the same day was presented to Hon. S. A. McCall, judge of the Ninth judicial district of Texas, who indorsed thereon the following order:

“This, the 23rd day of September, 1932, the foregoing petition coming on to be considered by the undersigned Judge, in Chambers, the same has been examined and considered, and I assume jurisdiction of this case and order it filed.

“It is ordered, adjudged and decreed that a temporary .restraining order issue against the Defendants, and each of them, as prayed for by the plaintiff, to continue until the further orders of this court that may be signed and entered herein. The parties are advised of the desire and purposes of the court to hear, at the convenience of the parties, any motion of any defendant that may be filed and desired heard herein, and of the further desire and purpose of the Court to hear such motion within ten (10) days of the date hereof, the Clerk will issue notice to the Defendants forthwith; provided, however, that the plaintiff shall first' file a good and sufficient bond, to be approved by the Clerk, in the sum of One Thousand Dollars ($1,000.00), payable to the undersigned Judge of this Court, for the use and benefit and protection of the defendants named herein, and each of them, and otherwise conditioned as provided by law.
“S. A. McCall, Judge Ninth Judicial
District of Texas.”

Bond was given, as provided, and writ of injunction issued. The writ enjoined the Railroad Commission from enforcing the order of the Railroad Commission dated September 19, 1932, “until the further order of said court.”

Thereafter appellee, on October 1,1932, presented to the Hon. S. A. McCall, judge of the Ninth judicial district, Montgomery county, Tex., a motion wherein it is recited that the Attorney General of the state of Texas had ordered a transcript of the proceedings in this cause from the district clerk of Montgomery county with the intention of perfecting an appeal from the order of September 23, 1932, and, while denying the right of appeal, stated that he did not want any previous orders to lapse, and requested that, pending appeal, the former order be continued in full force and effect for a period of ten days, or until and if a valid appeal should be perfected to the Court of Civil Appeals at Beaumont, Tex. The district judge endorsed on said motion the following order:

“Fiat.
“In Chambers, Conroe, Texas.
“October 1, 1932.
“The above and foregoing motion having been presented to me on this the 1st day of October, 1932, and being of the opinion that said motion shows good cause for the extension of my order heretofore entered herein, on September 23rd, 1932, it is accordingly ordered that said temporary restraining order issued by me on September 23rd, 1932, be and the same is.hereby in all respects extended for a period of ten days, and subject to the further orders of this court made and entered herein.
“The Clerk of the Court will issue appropriate notices.
“S. A. McCall, Judge of the 9th Judicial District, Montgomery County, Texas.”

The original transcript, which did not contain the last order mentioned, was filed in this court on October 4, 1982, although the transcript was certified by the clerk of the Montgomery county district court on the 27th day of September, 1982, and delivered to an Assistant Attorney General. A supplemental transcript has been filed which contains the last-mentioned order. This appeal is before us on appelle’e’s petition and the’ two orders, as no evidence was heard by the judge of the court below.

Appellee has filed a motion to dismiss the appeal on the ground that the orders hereinbefore referred to are only temporary restraining orders, from which no appeal will lie. The majority of the court is of the opinion that the order of September 28, 1932, is a temporary injunction, and that the order of October 1, 1932, did not change its character, while Chief Justice Walker is of the opinion that the original order is a temporary restraining order, 'but, if it is a temporary injunction, the order of October 1, 1932, made it a temporary restraining order, and that this court is without jurisdiction to entertain this appeal. Judge Gaines, in Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, 15, has classified the different kinds of injunctions as follows: “We understand that, under the. practice of the American courts, three species of injunctions may be issued: (1) A restraining order, which is defined to be: ‘k restraining order is an interlocutory order made by a court of equity upon an application for an injunction, and as part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion.’ Bouv. Law Diet. (§d Ed.). (2) One which is intended to operate, and which does operate unless dissolved by an interlocutory order, until the final hearing. And (3) a perpetual injunction, which can be properly ordered only upon the final decree.”

In that case the district judge to whom the petition for injunction was presented, set the matter down for .hearing on a specific date in Waco and a restraining order was granted pending such hearing. In the order, the clerk of the court was directed to cite the defendants to appear at the time and place named, and show cause why a permanent injunction should not issue. The judge making the order was not the judge of the district where the suit was to be filed, the regular judge being out of the state, and the hearing was set before a judge other than the one making the order. Judge Gaines held that the restraining order expired on the date set for the hearing in Waco, and that the hearing was to determine whether an injunction should be .granted to remain in force during the pendency of the suit. He held that the district judge erroneously stated that the hearing was to determine whether a permanent injunction should be granted. It was obvious that a final hearing could not be had on the date named, as the term of court did not convene until after the time specified. We make the following quotation from the opinion: “The clerk was required to issue a restraining order ‘pending such hearing.’ We think this means the same as if the words had been ‘until and pending such hearing,’ and that the intention was to limit the operation of the order until such time as the parties could be heard upon the issue whether, under the allegations in the petition and answer, should one be filed, an injunction, to remain in force until the final disposition of the case, should be granted.”

In our opinion, the order of September 23d, "now under consideration, did not fix a time and place for a hearing to determine whether a temporary injunction should be granted. It is specifically provided that the order shall “continue until further orders of this court that may be signed and entered herein.” The judge granting the injunction expressed a willingness to hear any motion that the defendants might make within ten days, but the time and place for hearing a motion which might be made by the defendants was left to be fixed by agreement of the parties. The hearing contemplated, by the decisions and authorities as we construe them, is on the allegations of plaintiff’s petition and not on a motion of the" defendant. The defendant might not care to file a motion. The order does not provide that it shall expire in ten days, but, to the contrary, indicates that it will continue in force, unless the defendant makes a motion to set it aside. In Griffith v. State, 210 S. W. 293, 294, the El Paso Court of Oivil Appeals was considering an appeal from the following order: “ ‘The above and foregoing petition, verified as shown, was presented to me on January 14, 1919, and I hereby set down for hearing the matter of issuing the restraining order as therein prayed for, and I hei’eby set such hearing for Saturday, January 25, 1919, at Upland, in Upton county, Tex., at the courthouse, at 3 o’clock p. m., but will, in the event of an agreement between relator, Ains-worth, and defendant; Griffith, have such hearing at the courthouse in San Angelo, Tex. Under the facts stated in the petition the defendant, Griffith, would not receive any warrant or salary prior to the second Monday in February, 1919, but, since it is possible that a hearing may not be had prior to that time, upon the application of the relat- or for an injunction, the defendant, Griffith, is hereby temporarily restrained from receiving from the county clerk of Upton county, Tex., or from any one, any warrants, script, or any kind of order for salary as county judge of Upton county, Tex., or as ex officio superintendent of public schools of said Upton county, Tex., and is so temporarily restrained from receiving salary as the holder of either of said offices in any form from any one, and the county clerk of Upton county, Tex., is hereby instructed and directed to issue an order directed to said H. B. Griffith in accordance with the terms of this fiat. Signed at Et. Stockton, Tex., this January 14, 1919,’ and signed by the judge.”

There a motion to dismiss the appeal was filed on the ground that the order was a temporary restraining order. Judge Wal-thall held that the order left it uncertain as to when and where the hearing, if any, was to take place, and held it to be a temporary injunction. He said: “It is not clear from the judge’s fiat, from which the character of the injunctive order must be deter-, mined, that the order was to operate only until a hearing was had, at a fixed time or at a time to be definitely fixed. If the order is to be regarded as a restraining order merely, it had no life after 3 o’clock January 25, 1919, the time set for the hearing. Ex parte Andrew Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121. We think the order entered might well be considered a temporary injunction as distinguished from a temporary restraining order effective only until a time during which it has life as fixed in the judge’s fiat.”

Chief Justice Cureton, in Ex parte Olson, 111 Tex. 601, 243 S. W. 773, 777, discusses the distinction between temporary restraining orders and temporary injunctions, and, in holding that the order being considered in that case was a temporary injunction, said: “The court did not set the petition down for hearing on the application for temporary injunction and grant a restraining order until the date of such hearing, as he could under article 4651, Revised Statutes. On the contrary, he granted a temporary injunction outright, as is plainly evidenced by the language of his fiat indorsed on the petition, as well as by the writ of injunction itself. The return date named in the writ of injunction issued by the clerk was merely the specification of the term of court, as required by subdivision 5 of article 4656, setting up the requisites of writs of injunction. The order was clearly a temporary injunction, and continued in effect, although no trial of the case has yet been had, and will so continue, even on appeal, unless modified by the court. Revised Statutes, art. 4654; Ex parte Roper, 61 Tex. Cr. R. 68, 134 S. W. 334, 338; 22 Cyc. 982.”

High on Injunctions (4th Ed.) p. 6, defines interlocutory or temporary injunctions as follows: “Interlocutory or preliminary injunctions are such as are granted, to-wit, before final hearing, generally upon the filing of the bill, and continue until the coming in of the answer, or until a hearing upoh the merits, or the further order of the court;” and then distinguishes this character of injunction from a temporary restraining order in the following language: “A temporary restraining order is distinguished from an interlocutory injunction in that it is ordinarily granted merely pending the motion for a temporary injunction, and its life ceases with the disposition of that motion and without further order of the court; while an, interlocutory injunction is usually granted until the coming in of' the answer, or • until the final hearing of the cause, and stands as a binding restraint until rescinded 'by the further action of the court.”

It has been urged that, if the order of September 23, 1932, was a temporary injunction, then the order of October 1,-1932, changed it to a temporary restraining order. We overrule this contention. This order extends the operation of the order of September 23d for a period of ten days, this meaning, we think, that, when the first order expired, according to its terms the second order would keep it in effect ten days longer. If we are correct in our conclusion that the first order did not fix a day certain for it to expire, then the second order added nothing to it.

Judge Brown, in Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526, 527, held that, where a temporary injunction had been granted and was in force “until the further order of the court,” as in the case under consideration, the entry of another order continuing it in. force was wholly unnecessary and did not grant a new injunction. The order of October 1st did not provide a time and place for a hearing on the petition. We do not believe that it was ever contemplated that a court would have the right to extend, even temporary restraining orders, from time to time without providing a hearing, and thus defeat the defendant’s right of appeal. If the original order could be extended for a definite period without a hearing, then such extensions could be continued indefinitely. It appears in a supplemental transcript in this case that the judge below continued the order of October 1, 1932, for ten days additional. This order was made after the transcript was filed in this court, and therefore is not befor.e us for consideration.

The fact that the orders under consideration were called temporary restraining orders does not control their legal effect. 32 Corpus Juris, p. 28, says: “Whether an order is a restraining order of a temporary injunction must be determined from its form and substance. The restraint which the order purports to impose, and not the name given to it, determines its true name and character.”

In Griffith v. State, supra, the order being reviewed was termed by the judge granting it a temporary restraining order, but the court held it to be a temporary injunction. The motion to dismiss the'appeal is therefore overruled.

Appellants contend that the district court of Montgomery county did not have jurisdiction to entertain the suit of appellee to enjoin the enforcement of the order <⅞ the ¡Railroad Commission, but that such suit could only be brought in the district court of Travis county. In support of this contention they cite section 8, chapter 26, Acts of the First Called Session of the 42nd ¡Legislature (1931). This is now given as article 6049c, § 8, Vernon’s Ann. Civ. St. This is a part of what is generally known as the proration or conservation act. Section 8 reads as follows: “Any 'interested party affected by any rule or order made or promulgated by the Commission, under the terms of this Act and who may be dissatisfied therewith, shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, as defendant, and ask for such relief as may be necessary to annul, correct or modify such rule or order so promulgated by the Commission. Such suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court. In all trials under this section, the burden of proof shall be upon the party complaining of such rule, regulation or order and such rule, regulation or order so complained of shall be deemed prima facie valid until otherwise shown.”

And section 10 of the same act (Vernon’s Ann. Civ. St. art. 6049c, § 10) in so far as it is pertinent to the question under consideration, is in the following language: “No injunction shall be granted against the Railroad Commission to restrain it from enforcing rules, regulations and orders made and promulgated by the Commission under the terms of this Act or of any conservation statutes of this State, relating to oil or gas, except after notice to the Commission and a hearing.”

Appellee contends that the requirement that suits attacking orders of the Railroad Commission shall be brought in Travis- county pertains to a question of venue and not of jurisdiction. But it also contends that, if the Legislature was intending to limit the jurisdiction of district courts generally in such matters, the act would be in violation of article 5, § 8, of the Constitution of the state of Texas, which vests in the judges of all district courts generally the power to issue injunctions. The above referred to articles of the statute have not been construed so far as we are able to ascertain, but a similar statute, article 6463, Vernon’s Ann. Civ. St., was construed in Texas Steel Co. v. Fort Worth & Denver C. Ry. Co. (Tex. Com. App.) 40 S.W.(2d) 78, 82. The part of this article which applied to orders of the Railroad Commission fixing railroad rates is in the following language: “If any railroad company or other party at interest be dissatisfied with the decision of any rate, classification, rule, charge, order, act or regulation adopted by the Commission, such dissatisfied company or party may file a petition setting forth the particular cause or causes of objection to such decision, act, rate, rule, charge, classification, or order, or to either or all of them, in a court of competent jurisdiction in Travis County, Texas, against said Commission as defendant.”

Judge Critz of the Commission of Appeals, in answer to certified questions, held that under this statute an order of the Railroad Commission could not be collaterally attacked in the district court of Tarrant county. He said: “The rules and rates of the commission are matters of general public interest, as well as interest to shippers and carriers. If an order of the commission, lawful on its face, can be collaterally attacked in the various courts and counties of the state on grounds such as those urged in the instant case, interminable confusion would result, and railroad companies, though honestly endeavoring to obey the law and the orders of the commission could be mulcted in large sums in damages and penalties, and the orders and rates of the commission rendered hazardous to obey.”

At the conclusion of this opinion Judge Critz further said: “What we have said settles the issues of this case, and demonstrates that this suit cannot be maintained at all in the district court of Tarrant county, Tex.”

To the same effect is the holding by our' Commission of Appeals in West Texas Compress & Warehouse Co. v. Panhandle & S. F. Ry. Co., 15 S.W.(2d) 558, 561. This opinion was also written by Judge Critz, and he there said: “By the plain and unambiguous language of article 6453, R. C.' S. 1925, it is provided that, if any railroad company or other party at interest is dissatisfied with any rate, classification, rule, etc., adopted by the railroad commission, such dissatisfied party may file his petition, etc., in a court of competent jurisdiction in Travis county, against the commission as defendant. This statute is exclusive in its very nature. A construction that it is not exclusive would violate all known rules of statutory construction, and lead to chaotic conditions with reference to the proceedings, rules, etc., of the commission. Certainly in the face of such provisions as are contained in articles 6452 and 6453, supra, collateral attacks on orders, rules, etc., of the commission cannot be tolerated.”

Eurtber in the opinion, the court also said: “Under articles 6452, 6453 and 6454, R. C. S. of Texas 1925, the only court having original jurisdiction to set aside, annul, or in any manner modify, a rule of the commission, is the district court of Travis county, and that in a direct proceeding brought for that purpose, with the railroad commission made a party.”

Appellee says that these cases are not in point because they were dealing with suits between shippers and railroad companies where the Railroad Commission was not a party, and therefore did not constitute direct attacks, and that the statements quoted were not necessary to a decision of the cases. It is true that the case under consideration involves a direct attack on an order of the Railroad Commission, but certainly comes clearly within the terms of the statute. These opinions, we think, do express the opinion of our Supreme Court as to how such statutes should he construed.

There is nothing new or novel with reference to a statute providing that certain kinds of litigation shall be limited to certain district courts in Texas and taking such eases away from all other district courts of the state. Article 8307, § 5, Vernon’s Ann. Civ. St., provides that suits to set aside a ruling of the Industrial Accident Board shall be brought in the county where the injury occurred. In construing this statute, our courts hold that such suits must be brought in the county where the injury occurred, and that it is not a question of venue but one of jurisdiction. The case of United States Fidelity & Guaranty Co. v. Lowry (Tex. Civ. App.) 219 S. W. 222, construed this statute as being a venue statute, but it was overruled in Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S. W. 195, 197, this decision holding that the bringing of the suit in the county where the injury occurred was jurisdictional. In the Franklin Case it was there urged, as it is here, that the Legislature had no power to take away from the district courts generally the power to hear and determine such suits. Judge Nickels held in this case that such suits were not cognizable under the common law, but existed only by virtue of the statute. He said that section 8, art. 5, of the state Constitution, authorized district courts to exercise “such other jurisdiction, original and appellate, as may be provided by law.” He therefore held that the Legislature had authority to take away the potential jurisdiction of all the district courts in the state to entertain such suits, except where the injury occurred. To the same effect is the decision by our Supreme Court in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1088, in an opinion by Chief Justice Cureton. It was there held that as causes growing out of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. art. 8306 et seq.) are in derogation of the common law, and exist purely by reason of the statute, that the statutory provisions are mandatory and exclusive, and must be complied with. Judge Cureton there said: “Besides, in special proceedings not within the common-law jurisdiction, the court’s statutory designation of the venue is mandatory and jurisdictional.”

The Commission of Appeals, in Texas Employers Ins. Ass’n v. Evans, 117 Tex. 113, 298 S. W. 516, in an opinion by Judge Short, considered venue statutes generally in connection with this particular statute, and held that, while venue statutes generally were not construed as being mandatory, this particular statute was mandatory and jurisdictional. The Railroad Commission of Texas is not created by the Constitution, and its duties are not prescribed by the Constitution or the common law. Section 30 of article 16 of the Constitution of Texas provides that, when a Railroad Commission is created by law, it shall be composed of three commissioners, who shall be elected by the people at a general election for state officers, and that their terms of office shall be six years. Our Supreme Court, in an opinion by Judge Pierson, in City of Denison v. Municipal Gas Co., 117 Tex. 291, 3 S.W.(2d) 794, held that the Railroad Commission of Texas was not created by the Constitution but by the Legislature, and that its duties were prescribed by the Legislature. That ease involved a proceeding to prevent the regulation of gas rates by the Railroad Commission. It was there contended that the act authorizing the Railroad Commission to regulate the gas rates was in violation of the Constitution. This contention was overruled. Suits, therefore, attacking orders of the Railroad Commission are purely statutory, and the decisions construing the Workmen’s Compensation Act above referred to are in point, in our opinion.

Article 4631, R. S., provides that suits for divorce shall be brought in the county where the plaintiff shall have resided for six months next preceding the date of filing the petition. There can be no question that all district courts have potential jurisdiction to hear and determine divorce suits, but this statute has been construed to be a jurisdictional statute and not one of venue. Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90; Gallagher v. Gallagher (Tex. Civ. App.) 214 S. W. 516; Lawler v. Lawler (Tex. Civ. App.) 15 S.W.(2d) 684.

Article 4656, R. S., provides: “Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered.”

This statute has been construed to be mandatory and jurisdictional. Gohlman, Lester & Co. v. Whittle, 115 Tex. 9, 273 S. W. 806; Salamy v. Bruce (Tex. Civ. App.) 21 S.W.(2d) 380.

We could give many other instances where the Legislature has provided that exclusive jurisdiction in certain causes is vested in certain limited district courts.' It is contended, however, by the appellee, that the order here sought to be enjoined is void, and therefore can be attacked anywhere. Of course, if the order is void on its face, then it would be subject to attack wherever and whenever an attempt was made to enforce it. There can be no question, we think, that the Railroad Commission would have the power to issue orders respecting the flow of oil or gas or making other regulatory measures, provided the law under which it is acting is a valid law. The Railroad Commission is a quasi judicial body, and its orders, regular on their face, are not subject to collateral attack. Texas Steel Co. v. Port Worth & Denver Ry. Co., supra, and cases there cited. The fact that the Railroad Commission acted unwisely or unfairly does not make such order void. It therefore would be necessary to bring proceedings in Travis county in the manner provided by the statute to have such orders corrected or set aside.

Appellee says the order involved is void and can be collaterally attacked in any court for the reason that the act of the Legislature under consideration violates the due process clause and Fourteenth Amendment to the Constitution of the United States. Article 16, § 59 (a), of the Constitution .of the state of Texas, makes it the duty of the Legislature to pass such laws as may be appropriate for the conservation and development of all the natural resources of the state. We presume it will not be denied that oil and gas are natural resources. This law was enacted for the express purpose of conserving oil and gas and preventing waste in the production and use of the same. We shall not attempt to go into a detailed consideration of the constitutional questions raised. The Austin Court of Civil Appeals, in Danciger Oil & Refining Co. v. Railroad Commission, 49 S.W.(2d) 837, 845, in an exhaustive opinion by Judge Baugh, held that a previous conservation act was valid, and disposed of the questions urged by appel-lee. Referring to the act of 1931, now being considered, Judge Baugh said: “It is also to be observed that most of the controverted issues herein raised in this case have been concluded by the legislative action of the 1st Called Session of the 42d Legislature subsequent to the trial of this case.”

The Supreme Court has granted a writ of error, and the question of the constitutionality of the act is now before that court. The Supreme Court of the United States, in Champlin Refining Co. v. Corporation Commission, 286 U. S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, holds, in our opinion, adversely to appel-lee on the constitutional questions raised.

In holding that the provisions of the act of the Texas Legislature we are considering are mandatory, we sustain appellant’s contention that under section 10, as hereinbefore quoted, no injunction could be legally granted to restrain the enforcement of the rules, regulations, and orders of the Railroad Commission except after a notice and a hearing. Appellee says that this section of the act is invalid because the caption of the bill was not broad enough to authorize the incorporation of this provision. We are of the opinion that the caption was sufficiently comprehensive. The constitutional requirement relied on only requires that the general and ultimate object of the bill be shown. The details of the act are not required to be stated in the caption. We have examined the caption of the bill under consideration, and find that it covers, with more than usual minuteness, the subject-matter of the legislation. Tilton v. Dayton Independent School District (Tex. Civ. App.) 2 S.W.(2d) 889. This opinion was by Judge O’Quinn of this court, and application for writ of error was dismissed. See, also, Doeppenschmidt v. International & G. N. Railway Co., 100 Tex. 535, 101 S. W. 1080.

It being the opinion of the majority of this court that it has jurisdiction of this appeal, and it being the opinion of all members of the court that the district court of Montgomery county was without jurisdiction to grant the injunction, the judgment of the lower court is reversed, and the injunction dissolved.

The Railroad Commission has filed in this court a petition, or motion, praying for an injunction by this court restraining ap-pellee, Alpha Petroleum Company, from violating the proration order promulgated by the Railroad Commission for the Conroe oil field, in Montgomery county. As we have held that we have jurisdiction to entertain this appeal, we hold that we have power to grant this injunction to protect our jurisdiction until the matter is taken to the Supreme Court by proper proceedings, and such injunction is hereby granted.


author: MARTIN, J.

text:
    VINSON v. McPHERSON.
    No. 3918.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 23, 1932.
    Forrester & Adkins, of Wheeler, for appellant.
    A. O. Wood, of Wheeler, for appellee.
   MARTIN, J.

Adrian Tates recovered judgment against appellant, G. W. Vinson, in a forcible entry and detainer suit in justice court and appellant gave notice of appeal. He attempted to prosecute this appeal in forma pauperis by making an oath of his inability to pay costs or give security therefor. The justice of the peace refused to send up the transcript upon this showing. Thereupon a mandamus proceeding was instituted against such justice of the peace, appellee herein, before the county court of Wheeler county. Upon a hearing the said county court, being of the opinion that an appeal could not be prosecuted except by giving the statutory bond, rendered judgment against the appellant, from which he appeals.

Article 2457, R. S. (as amended by Acts 1931, c. 134, § 2 [Vernon’si Ann. Oiv. St. art. 2457]), authorizes an appeal from justice court to county court in the manner attempted in this case and which appellant claims is of controlling effect. The last mentioned article is set into and is a part of title 45, e. 6, relating generally to the appeal of ordinary cases from justice court. Forcible entry and detainer is made a special procedure and the various provisions relating .thereto are a part of title 64, R. S. 1925, beginning with article 3973 and ending with article 3994. It is appellee’s contention that article 3987 controls this case. This article reads as follows: “Either party may appeal from a final judgment in such ease, to the county court of the county in which the judgment is rendered, by giving notice thereof in open court and by filing with the justice within five days after the rendition of said judgment, a bond to be approved by said justice, and payable to the adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs and damages which may 'be adjudged against him; and no motion for a new trial shall be necessary to authorize such appeal.”

It will be noted one of the conditions of the bond required in this character of eases is that appellant will pay all costs and damages which may be adjudged against him. There is no provision for an appeal in forcible entry and detainer cases based upon affidavit of inability to pay costs or give security therefor. The general rule is: “In ¡the absence of express statutory provision, the fact of poverty or inability to procure sureties does not of itself relieve appellant or plaintiff in error from the necessity of giving an appeal bond or other security.” 3 C. J. 1123.

Again it has been said: “Inability to give a bond presents no ground for the issuance of any injunction by an appellate court to protect its jurisdiction. If this were the case it is said that injunctions might take the place of supersedeas bonds or the affidavits of appellants that they were too poor to give bonds.” 3 Tex. Jur. § 279; Spark v. Lasater (Tex. Civ. App.) 232 S. W. 346; see, also, 32 C. J. p. 311.

It was evidently the legislative intent in the enactment of article 3987, supra, to give protection to the winner in the justice court in a forcible entry and detainer case from any damages ensuing by reason of a delay occasioned by an appeal. In this sense this statute is somewhat akin to the statute providing for a supersedeas or injunction bond. The cases cited above are sufficient authority, if any were needed, to show that in the last mentioned character of cases a bond may not be dispensed with by an affidavit of inability to give same. We are of the opinion that article 3987, being a special statute, controls and takes precedence over article 2457, as amended, which is of a general nature, and that, in the absence of express statutory authority therefor, no appeal may be had from an adverse judgment in a forcible entry and detainer case without giving the statutory bond, which is specially set out in article 3988, R. S. 1925. It has been held that a bond in substantial compliance with this statute is essential to give the appellate court jurisdiction. Ringgold v. Graham (Tex. Com. App.) 13 S.W.(2d) 355. The bond required by statute is always a condition precedent to the perfecting of an appeal. Logan v. Gay, 99 Tex. 603, 90 S. W. 861, 92 S. W. 255.

The judgment is affirmed.


author: VAUGHAN,’ J.

text:
    ROWAN et al. v. BARFOOT et al.
    No. 11039.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 12, 1932.
    Rehearing Denied Dec. 10, 1932.
    Wynne & Wynne and Jack T. Life, all of Athens, for appellants.
    Bishop & Holland, of Athens, for appellees.
   VAUGHAN,’ J.

On August 19, 1930, Elva Barfoot, a feme sole, Maude Barfoot, joined pro forma by her husband, Ed Barfoot, Blanche Barfoot, joined pro forma by her husband, John Barfoot, H. P. Brown, and E. C. Brown, appellees (plaintiffs below), filed in the trial court this suit in trespass to try title to recover 60 acres of land, part of the J. S. Reid and M. J. Mc-Crary surveys in Henderson county, Tex., as described in appellee’s petition, against Sam Rowan and wife, Stella Rowan, Erwin Barber and wife, Ellen Barber, J. W. Cumby and wife, Mrs. Ollie Cumby, appellants .(defendants below).

Appellants filed their original answer on January 13, 1931, containing a general demurrer, plea of not guilty, and further pleaded the three, five, ten, and twenty-five year statute of limitation as a bar to appellees’ alleged cause of action. A jury not being demanded, the cause was tried Before the court on February 2, 1931, on which date the court took the case under advisement, and thereafter, on February 21, 1931, rendered judgment for appellees and against appellants, for title and possession of the premises in question. From this judgment, appellants duly perfected this appeal.

To sustain this judgment, the evidence must be sufficient to support the conclusions therefrom that (a) there was a complete rescission between A. J. Brown and F. L. Mosley of the conveyance of the 60 acres of land involved in this suit by A. J. Brown to W. H. Knight, on September 28, 1899, and by W. H. Knight and wife to F. L. Mosley, on July 31, 1901; and (b) that appellants failed to establish that they had acquired title to said tract of land, either by the three, five, ten, or twenty-five year statute of limitation (Rev. St. 1925, arts. 5507, 5509, 5510, 5519).

The following facts were established by undisputed evidence, viz.: That A. J. Brown and wife, Mary Brown, acquired a good and sufficient legal title through' the deed executed by John G. Ammons et al. to A. J. Brown, dated October 19, 1883; that said tract of land became and was the community property of the said A. J. Brown and Mary Brown at the date of her death on or about the -day of-, A. D. 1891; that appel-lees and one Guy M. Brown are the children, grandchildren, and heirs at law of the said A. J. Brown and wife, Mary Brown; that said Guy M. Brown, on March 8, 1930, conveyed his interest in said 60 acres to appel-lee Elva Barfoot; that several years after the death of said Mary Brown, A. J. Brown, on September 28, 1899, assumed to convey the entire 60 acres of land to W. H. Knight and wife, Emma Knight, but as a matter of fact only conveyed a one-half interest thereof; that appellees and one Guy M. Brown, as the children and heirs at law of the said Mary Brown, deceased, inherited, under the statute of descent and distribution, an undivided one-half interest in and to said 60 acres of land; that said A. J. Brown died the-day of September, A. D. 1906.

Appellants introduced the following deed of conveyance, viz.: Deed from said F. L. Mosley and wife, Alice Mosley, to appellants, dated April 3,1930, conveying the involved premises. The deed from A. J. Brown to W. H. Knight and wife, purporting to convey the entire 60 acres, recites as the consideration therefor seven notes of $50 each, executed •by W. H. Knight and wife, payable to A. J. Brown, and retained the vendor’s lien on the involved premises to secure the payment of said notes; that in the deed of date July 31, 1901, by Knight and wife to F. L. Mosley, conveying the involved premises, the consideration is stated as follows: The payment of $125 cash and the assumption of the payment of five of the notes executed by W. H. Knight and wife, Emma Knight. This deed also expressly retained the vendor’s lien to secure payment of these notes. Neither of said deeds was ever placed of record.

The following facts necessary to have been found by the court in favor of appel-lees in order to sustain the judgment rendered in their favor were controverted, but, there being evidence sufficient to sustain the findings of the court, the facts so found are approved by this court, viz.: That a few months after the execution of-the deed by Knight and wife to F. E. Mosley, A. J. Brown elected to rescind the executory sale of said 60. acres made by him to W. H. Knight and wife by deed of date September 28, 1899, as well as the sale thereof made by W. H. Knight and wife to F. L. Mosley, because of the failure to pay to him (Brown) certain past-due vendor’s l'ien notes executed by W. H. Knight and wife as a part of the consideration for the conveyance by said Brown of the involved premises to said Knight and wife; that said rescission was completed, in that said Brown repaid to said Mosley $125, which was the amount Mosley had paid to Knight, which transaction also involved the cancellation of the unpaid vendor’s lien notes then remaining with said Brown, and the surrender of the possession of said tract of land by Mosley to Brown, and the delivery to Brown by Mosley of the two recorded deeds, being the deeds executed by Brown to Knight, and by Knight to Mosley; that this rescission was consummated by verbal agreement; that immediately after said rescission Brown and his children, appellees herein, resumed possession of said 60 acres of land, cleared and put in cultivation a portion thereof, and planted an orchard thereon; that since said transaction appellees have held possession, either in person or by tenant, of said 60 acres of land, up to a short time prior to the filing of this suit, viz. August 19, 1931, when appellants denied tenancy and asserted claim to the land.

In reference to the possession of said tract of land under the contract of tenancy, Mrs. Ollie Gumby, one of the appellants, testified as follows: “I know where the 60 acres of land is located that is involved in this suit. Ed Brown worked some of this land while he was there." He lived with us from 1912, 1913 and 1914. I remember the occasion of his leaving after he had been there a year or two. When he was talking of leaving we -had a conversation about the land. I think it was about the time he was leaving. I agreed to pay the taxes on the land for the use of the land for pasturage over there. I recognized it as Uncle Jeff Brown’s place. I did not discuss it with Ed Brown during the holidays of 1929. No, I did not tell him when I talked with him about it that I claimed any interest in it then, nor I didn’t tell him I didn’t, just to say I do or I don’t. Yes, sir, I told him that I had been living faithful to our agreement to keep the taxes paid up for the use of it. Yes sir, there was a partition of the Henry Brown estate in 1915. Yes sir, we partitioned all the property he had, except one 14 acre tract, me and the Hobbs children have that in common. No sir, we didn’t mention in the partition deed anything about the 60 acres of land in controversy here. The reason we didn’t was because we didn’t have the deed to get the description. I think Uncle Jeff Brown came back there a little before 1900 — I am not positive just what year he did come back. Yes sir, he lived with my father. No sir, I do not know that he managed and controlled this 60 acres of land over there up until his death. No sir, I do not know that Uncle Jeff Brown looked after that all the time.”

Unless by virtue of the transaction had between F. L. Mosley and A. J. Brown, a rescission of the trade made in reference to the involved premises by and between said Brown and Mosley was consummated, appellants were entitled to recover said land under the deed from Mosley and wife to Mrs. Ollie Oumby, Mrs. Ellen Barber, and Mrs. Stella Brown, of date April 3, 1930, purporting to convey the land in question. The superior title to the land remained in A. J. Brown under the expressed reservation of the vendor lien in his deed, until the purchase-money notes executed by Knight were paid. When Knight and wife executed the deed to Mosley, he, as a part of the consideration to be paid by him for the 60-acre tract, assumed to pay five of the seven notes éxecuted by Knight payable to A. J. Brown, and, in the deed to Mosley, the vendor’s lien was retained on said land to secure the payment of said five notes. It is not contended that A. J. Brown was not the owner and holder of four of said five notes when his “rescission” transaction was had with said Mosley, or that said notes had been paid, or were not settled in said rescission transaction. As to this transaction, E. L. Mosley testified in part as follows: “I owned the land three or four months * ⅜ ⅜ this land was not paid for * * ⅞ j <jí<j not finish paying Uncle Jeff Brown for the place after I got it. Uncle Jeff Brown wanted the place back and I decided that I did not want the place, and I just told him if he would pay me my money ,'back I would turn it back to him, and that is what I done. * * * I turned over to. him the deed I made Knight and the one Bill Knight made me, and the note that I had taken up * * * and he paid me the money.”

The partition deed between the heirs of H. W. Brown, deceased, appellants, does not purport to partition this property. This deed was executed by appellants on November 22, 1913, said A. J. Brown having died on the - day of September, 1906. The deed executed by E. L. Mosley and wife, Alice Mosley, on April 3,1930, to appellants, which purports to convey the involved premises, did not convey any title thereto to said parties, this because by the rescission consummated by the said Mosley and A. J. Brown all right to acquire title to said land and interest therein theretofore existing in said Mosley became reinvested in said Brown and his children, appellees. Mosley was not in possession of the property when the deed of April 3, 1931, was executed by him to appellants, nor did he have possession of the deeds from A. J. Brown to W. H. Knight and from Knight and wife to Mosley, same having been delivered by him into the possession of A. J. Brown at the time of said rescission transaction. We are of the opinion that the following holding in the case of Johnson et al. v. Smith et al., 115 Tex. 193, 280 S. W. 158, 160, by our Supreme Court,, is sufficient to sustain the judgment of the trial court on this phase of the case: “Under the express reservation of the vendor’s lien in Sherrod’s deed, the superior title to the land remained in Sherrod until the purchase-money notes were paid. Masterson v. Cohen, 46 Tex. 523, 524; Hamblen v. Folts, 70 Tex. 135, 7 S. W. 834. No title to nor interest in the land was or could be acquired by Elymas Johnson save such as was conditioned on payment of the notes. Howard v. Davis, 6 Tex. 182; Roosevelt v. Davis, 49 Tex. 472; Evans v. Ashe, 50 Tex. Civ. App. 63 [108 S. W. 398, 1190], The contract of sale could have been rescinded by parol agreement between Sherrod and Elymas Johnson or by Sherrod alone on Elymas Johnson’s default to pay the notes or repudiation of his obligation to pay same. Thompson v. Robinson, 93 Tex. 170, 54 S. W. 243, 77 Am, St. Rep. 843; Davis v. Cox (Tex. Com. App.) 239 S. W. 918.” To the same effect is the opinion in Davis et al. v. Cox (Tex. Com. App.) 239 S. W. 917.

We have not been able to find in the record any fact established conclusively by the evidence which would estop appellees from claiming, as against the deed executed by Mosley to appellants, the absolute title to the involved land; that was re-established by said rescission long prior to the execution of the deed by Mosley to appellants. The evidence being sufficient to sustain the judgment ■of the court, based upon a rescission having been consummated, as hereinabove stated, and appellants having failed to establish title to the involved land, either under the three, five, ten, or twenty-five year statute of limitation, we are of the opinion that this cause should be, and the same is, affirmed.

Affirmed.


author: FUNDERBURK, J.

text:
    FORD et al. v. MARSDEN.
    No. 1026.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 25, 1932.
    Preston Martin, of Weatherford, for appellants.
    Jno. H. Eaton, of Gordon, and Ritchie & Ritchie, of Mineral Wells, for appeUee.
   FUNDERBURK, J.

A. Y. Marsden sued H. D. Ford and A. O. Abbott upon a promissory note for the sum of $253.35, with interest and attorney’s fees. It appears that a writ of attachment was issued, executed, and the property afterwards re-plevied by the defendants. There was a motion to quash the attachment and the officer’s return upon same. The attachment was sought to be quashed, because it was claimed the attachment bond had not been approved by the clerk at the time the writ was issued. The return was sought to be quashed because it failed to show that the officer had made an estimate of the value of the property replev-ied. According to a bill of exceptions appearing in the record,, the court heard evidence on the motion and overruled it. The bill recites that the writ of attachment was issued on the 24th day of September, 1931, by the clerk of the court; that the attachment bond “filed with the clerk on said date * * was given to the clerk prior to the time said writ of attachment was issued herein, but the court finds from the evidence * * * that the clerk did not sign his name to and showing that he approved said bond in attachment until his attention was called to the same by attorney Preston Martin on the 6th day of October, 1931, which was eleven days after the constable * * * had made the levy upon defendants’ property herein, and the court further finds from the evidence that the clerk received and approved said attachment bond but failed and neglected to sign his name officially showing that he approved the same pri- or to the time he issued the writ of attachment herein.” (Italics ours.) The bill further recites that “Said constable, W. G. Mayo, did not make or place any value on the property so levied upon, as ¿own by his return on said attachment writ * * * that his said return was made on the 25th day of September, 1931, and duly recorded * * * without any value being fixed or placed on said property as levied upon, and the court further finds from the evidence as introduced on the hearing of defendants’ motion to quash herein that the value, $500.00, of said property was made by plaintiff’s attorney on the 6th day of October, 1931, which was more than a week after said levy had been made by the constable and his return thereon had been made and turned over to the county clerk of Palo Pinto Oounty for record and same was so recorded.”

Upon the trial, judgment was given the plaintiff upon the notes, and also for the same amount against B. O. Rhome, Jr., arid L. D. Ladd as sureties upon the replevy bond, which, it is -recited, had been executed for the principal sum of $600. Said sureties, R. O. -Rhome, Jr., and L. D. Dadd, were also sureties on the supersedeas bond given to perfect this appeal. The appeal is by the defendants Ford and Abbott.

The reversal of the judgment is urged upon two grounds: First, because -the eLerk failed to indorse his approval upon the attachment bond before the writ was issued and executed; and, second, because the return of the constable did not show as a fact that said officer had estimated the value of the property levied upon with the amount of such value.

R. S. 1925, art. 279, required that the attachment bond be delivered to and approved by the clerk before that officer issued the writ of attachment. The court found as a fact that this was done. It was not essential to the validity of the attachment that the clerk have indorsed such approval upon the bond. Griffith v. Robinson, 19 Tex. 219. The due receipt and filing of the bond and the issuance of the- writ, which. latter the clerk had no authority to do unless he approved the bond, clearly implies - such approval. These facts create a presumption of the further fact that the bond was approved. The law makes no requirement. that the approval be indorsed on the bond. See Nelms v. Draub (Tex. Civ. App.) 22 S. W. 995, 996; Burdett v. Marshall, 3 Tex. 25; Evans v. Pigg, 28 Tex. 586; McLane v. Russell, 29 Tex. 128.

On the other point, R. S. 1925, art. 292, gave the defendants the right to replevy the property attached “by giving bond, with two or more good and sufficient sureties to be approved by the officer who levied the writ, payable to the plaintiff, in double the amount of the plaintiff’s debt, or, at the defendant’s option, for the value of the property replevied, .to 'be estimated by the officer, conditioned,” etc.

The attachment bond, the writ of attachment, the officer’s return thereon, and the ireplevy bond, all are absent from this record. It may be doubtful if, because of this condition of the record, any question is properly presented for our determination. The constable was under no duty to estimate the value of the attached property unless and until the defendants had signified their desire ta avail themselves of the option to have the re-plevy bond cover “the value of the property replevied,” rather than “double the amount of the plaintiff’s debt.” The bond that was given was for substantially double the amount of •the plaintiff’s debt. In the absence of any showing that the defendants signified their election to make a bond covering the value of the property replevied, we will presume that the bond was intended to be for double the debt sue'd for. Calvert v. Bennett (Tex. Civ. App.) 286 S. W. 303; U. S. Fidelity & Guaranty Co. v. Mueller (Tex. Civ. App.) 13 S.W.(2d) 430.

It may not be out of place to observe that, if both of appellants’contentions could be sustained, it would be of no practical advantage to them. To that part of the judgment awarding recovery upon the notes, and including interest and attorney’s fees, no assignment of error is urged. That part of the judgment would therefore have to be affirmed in any event. All the parties, including the sureties in the replevy bond,- are obligated for the same amount upon the supersedeas bond. Since there could be no double recovery, we fail to see that it would affect the final judgment if the only propositions urged were to be sustained.

It is therefore our opinion that the judgment below should be affirmed, -and it is accordingly so ordered. .


text:
    CRYSTAL FALLS COMMON SCHOOL DIST. NO. 3 v. SANDERS et al.
    No. 1018.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 18, 1932.

      Frank S. Roberts and C. J. O’Connor, both of Breckenridge, for appellants.
    D. T. Bowles, of Breckenridge, for appellee.
   FUNDERBURK, J.

The suit as originally brought was by J. P. Sanders and J. R. Funderburk, plaintiffs, against “J. M. Langston, R. H. Adkins and H. X. Steele, trustees of the Crystal Falls Common School District #3, a body corporate,” Mrs. Millie Blackburn, county superintendent of Stephens county, Tex., First National Bank of Breckenridge, Tex., a corporation, and Beatrice Otts, defendants. Plaintiffs alleged, among other things, that: “The school trustees, a body corporate of the Crystal Falls District, have ma'de and entered into a contract with the defendant Beatrice Otts, whereby the said Crystal Falls District has agreed to pay the said defendant Beatrice Otts, the sum of iflOO.OO per month * * * to transport children * * * residing in the Crystal Falls District but who have heretofore transferred out of the Crystal Falls District to the Breckenridge District, and in turn to transport the same children from the; Breckenridge District back to the Crystal Falls District,” etc. It was alleged, in substance and effect, that the trustees had no lawful authority to make such a contract or to pay out school funds for such a purpose. Another allegation was that “unless this court should grant a writ of injunction that the taxpayers and these taxpayers * * * named in this petition as plaintiffs would suffer irreparable damages for which they have no adequate remedy.” The prayer was: “That the defendants, trustees of the Crystal Falls District, the county superintendent (Mrs. Millie Blackburn), and the county depository (the First National Bank of Breek-enridge), be enjoined from paying out funds of the Crystal Falls District to the defendant Beatrice Otts or to anyone or to the Breckenridge District or to anyone * * * for * * * the transportation of the scholastics named.”

Before the trial the plaintiff took a nonsuit as to the defendants Beatrice Otts and the First National Bank of Breckenridge. The judgment was in favor of the plaintiffs and against “J. M, Langston, R. H. Adkins and H. I. Steele, trustees of the Crystal Fails Common School District No. 3 and Mrs. Millie Blackburn, County Superintendent of Stephens County Texas,” enjoining them “from paying out funds” of said school district “for transporting the scholastics residing in the” school district “who had theretofore regularly and legally transferred out of the Crystal Falls Common School District No. 3 to the Breckenridge Independent School District,” etc. Said defendants háve appealed.

The record discloses that the trial court was without legal authority to render the judgment. The right to an injunction, if any, was wholly dependent upon an adjudication of the invalidity of the contract by and- between the trustees and Mrs. Otts. Although the judgment did not expressly declare the invalidity of that contract, it would no doubt be implied if the necessary parties were before the court. To such a judgment Mrs. Otts was a necessary and indispensable party. In her absence the court could not decree the invalidity of her contract, and without the invalidity of that contract adjudged the court was without power to enjoin the trustees from performing it. When the plaintiffs dismissed.the suit as to Mrs. Otts, they were not entitled under their pleading to any judgment in their favor. The proposition is deemed so elementary as not to require the citation of authority. See, however, Butman v. Jones (Tex. Civ. App.) 24 S.W.(2d) 796.

In view of another trial it may be proper to point out that the trustees of the common school district should be sued in their legal corporate name, which is “district trustees of district #3 and county, of Stephens, State of Texas.” R. S. 1925, art. 2748. There is no necessity to name the individual trus--tees unless some relief is sought against them as individuals not comprehended in the relief sought against the incorporated body.

Because, under the affirmative showing in the record, Mrs. Otts was a necessary and indispensable party, the judgment of the court below must be reversed, and the cause remanded, which is accordingly so ordered.


author: SMITH, J.

text:
    HALL v. JONES et al.
    No. 8899.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 23, 1932.

      I-I. B. Galbraith and B. N. Goodrich, both of Brownsville, for plaintiff in error.
    Davenport, West & Ransome and C. K. Richards, all of Brownsville, for defendants in error.
   SMITH, J.

The land in controversy was owned by W. J. E. Harper, who undertook to convey it, by defective deed, to Leander Hall, on June 10, 1924.

On October 8, 1924, J. P. Jones brought suit in Cameron county against Harper for debt and attached said land afterwards, on February 11, 1925, obtaining judgment for foreclosure of the attachment lien. Jones bought in the property at the ensuing execution sale, on April 7, 1925, and assumed dominion thereover.

Four and one-half years later, on October 8, 1929, Hall brought suit against Jones in Grady county, Okl., for rents alleged to have been wrongfully collected by Jones from tenants of the land in controversy. In that suit Hall based his right to the rents upon the said deed from Harper to him of June 10, 1924, which deed he attached to his pleadings, making it a part thereof. As stated in plaintiff in error’s brief: “Jones answered claiming title by virtue of Sheriff’s' deed of April 27th, 1925, and in his answer brought a cross action against Hall claiming damages by reason of alleged fraud between Hall and his predecessor in title, W. J. E. Harper. Hall answered the cross action alleging that the Sheriff’s deed was invalid and inoperative as the attachment was not levied on the land in controversy until several months after Harper had conveyed the same to Hall by the deed of June 10,1924. On October 22, 1929, the Oklahoma Court rendered judgment for Jones and against Hall, holding that said Harper-Hall deed dated June 10th, 1924, was not operative against Jones.”

Subsequently Hall brought the present suit in Cameron county against Jones, in the form • of an action in trespass to try title, to recover said land, basing his claim upon the deed from Harper. By giving effect to the decree of the Oklahoma court, in which that deed was held to be void, the court below denied recovery to Hall, who has appealed.

The appeal is controlled by the proposition that the courts of Texas are bound by the decree of the Oklahoma court that the deed from Harper to Hall was void and inoperative to convey title to the land in controversy. We have concluded that the weight of authority affirms that proposition..

The fact must be kept steadily in mind that the Oklahoma judgment did not purport either to divest or invest the title to the property. It did not preclude or purport to preclude plaintiff in error from presenting and enforcing any other evidence of title to this property. It simply adjudicated the deed in question to be insufficient to pass title to the property involved.

It is elemental that the courts of one state have no authority or jurisdiction to determine a naked question of title to real property situated in another state, or to divest or invest the title.

But it seems to be equally well settled that the courts of one-state may exercise jurisdiction, when affirmatively invoked or acquiesced in, to determine the validity or effect of a deed of conveyance of real property situated in another state so as to bind the parties to such decree, which, operating directly upon them personally, prohibits them from disputing it in another state. Freeman on Judgments (4th Ed.) §§ 564, et seq.; Id. (5th Ed.) § 1384 et seq.; Wharton, Conflict of Laws (3d Ed.) § 289a; 15 R. O. L. p. 911; 34 O. J. p. 1135 et seq., §§ 1610, 1611; Massie v. Watts, 6 Cranch, 148, 160, 3 L. Ed. 181; McCune v. Goodwillie, 204 Mo. 306, 102 S. W. 997; Steele v. Bryant, 132 Ky. 569, 116 S. W. 755; Kinder v. Scharff, 125 La. 594, 51 So. 654; Sullivan v. Kenney, 148 Iowa, 361, 126 N. W. 349.

In Massie v. Watts, supra, Ohief Justice Marshall, after an exhaustive review of the authorities upon this subject, stated the rule to be “That, in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree.”-

Defendants in error cite these additional authorities: Lewis v. Darling, 16 How. 1, 14 L. Ed. 819; Smith v. Davis, 90 Cal. 25, 27 P. 26, 25 Am. St. Rep. 92; Sturdevant v. Pike, 1 Ind. 277; MacGregor v. MacGregor, 9 Iowa, 65; Putnam v. Conner, 144 La. 231, 80 So. 265; Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Muller v. Dows, 94 U. S. 444, 24 L. Ed. 209; Mallette v. Scheerer, 164 Wis. 415, 160 N. W. 182; Matson v. Matson, 186 Iowa, 607, 173 N. W. 127.

The case made here is within the rule announced. Plaintiff in error himself selected the Oklahoma forum for the adjudication of the question of the validity of the deed upon which he afterwards relied in this suit. He presented that instrument to the Oklahoma court as evidence of his title to the land in dispute and of his right to the rents and revenues derived from said land. He affirmatively invoked the judgment of that court upon the sufficiency of that deed to show title to the property, ahd that court, in the exercise of the jurisdiction thus invoked, held the deed void. Under the authorities cited plaintiff in error is bound by that decree, and is estopped to dispute its effect in any other court. The decision there was res adjudicata of that subject.

The judgment is affirmed.


author: ALEXANDER, J.

text:
    BURLINGTON-ROCK ISLAND R. CO. v. McCartney.
    No. 1292.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Poster & Williams, of Conroe, and Thompson & Barwise, of Port Worth, for appellant.
    Jas. T. Ryan, of Centerville, for appellee.
   ALEXANDER, J.

Charley McCartney brought this suit against the Burlington-Rock Island Railroad Company to recover damages for the killing of two horses belonging to him and the damages to his wagon and harness. The cause was tried before the court without a jury, and resulted in a judgment for the plaintiff. The defendant appealed.

The appellant failed to file briefs, and the case is before this court on fundamental error only. The plaintiff sued for $200, the value of his horses, $15 for the damage to his harness, and $10 for the damage to his wagon, making a total of $225, and for reasonable attorney’s fees in the sum of $20. The court in its judgment found the value of the two horses, which were killed, to be $200, and that the damage to the harness amounted to $15 and the damage to the wagon $10, and that $20 was a reasonable attorney’s fee, and entered judgment for $245. It is apparent from the record, therefore, that the court has included in its judgment the sum of $20 for attorney’s fees.

The general rule is that, in the absence of a statute allowing attorney’s fees or a specific contract providing therefor, such fees incurred by a party to the litigation are not ordinarily recoverable either in an action for tort or on contract. Cleveland State Bank v. Lilley (Tex. Civ. App.) 260 S. W. 324; Sherrick v. Wyland, 14 Tex. Civ. App. 299, 37 S. W. 345, and eases there cited.

This is a suit for a tort, and there is no contention that the defendant had contracted to pay attorney’s fees. The plaintiff was apparently undertaking to recover such attorney’s fees under and by virtue of the provisions of Revised Statutes, art. 2226. We know of no other statute which undertakes to create a right to recover attorney’s fees in an action for tort such as this. The above statute applies only in those . eases where the amount claimed or sued for does not exceed $200. M., K. & T. Ry. Co. v. Mahaffey, 105 Tex. 394, 150 S. W. 881. Since the amount sued for in this case, exclusive of attorney’s fees, amounted to $225, the plaintiff was not entitled to recover the attorney’s fees provided for by the above statute.

Moreover, in order to recover the attorney’s fees provided for in article 2226, it is necessary for the plaintiff to allege and prove that he presented his claim to defendant at least thirty days prior to the filing of the suit, and that the defendant failed to pay same. No such allegations are contained in the plaintiff’s amended petition on which he went to trial. The pleadings, therefore, did not authorize a recovery of attorney’s fees.

Since the pleadings are insufficient to support a judgment for attorney’s fees, the error of the court in allowing a recovery therefor is fundamental, and is apparent upon the face of the record. 3 Tex. Jur. 820.

The judgment of the trial court, in so far as it allowed a recovery of $20 attorney’s fees, was improper. The judgment is here reformed so as to allow a recovery of only $225, with 6 per cent, interest from the date of said original judgment, together with the costs in the trial court, and the judgment as reformed is affirmed.