text:
    DUNCAN v. STATE.
    No. 15646.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    W. T. Brothers, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The conviction is for a misdemeanor; the punishment, a fine of $5.

It appears that the trial was had upon an information and in the absence of a complaint. Article 415, C. C. P., .declares: “No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information.”

Without the complaint, the prosecution cannot proceed. Melton v. State, 115 Tex. Or. R. 488, 27 S.W.(2d) 161, and authorities cited.

The judgment is reversed, and the prosecution ordered dismissed.

PER CURIAM. •

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


source: Caselaw Access Project

author: LATTIMORE, Judge.

license: Public Domain

text:
    SNYDER v. STATE.
    No. 15650.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Dallas Ivey, of Center, for appellant.
    Lloyd W. David son, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for attempt to commit arson; punishment, one year in the penitentiary. '

In Rotner v. State, 55 S.W.(2d) 98, this court held unconstitutional the act appearing in chapter 82 of the Acts of the Regular Session of the 42d Legislature (Vernon’s Ann. P. C. art. 1316), by which article 1316, Pen. Code 1925, was attempted to be amended so as to include the aiding, procuring, counseling, etc., the burning of buildings and property, and also so as to change the penalty for an attempt at arson as fixed by said article 1316, Pen. Code.

This appellant is convicted of offering another money to burn a house which was insured. Such act is not made penal by the terms of article 1316, supra, and, since the act of the 42d Legislature ahoye referred to is unconstitutional, we have now no law punishing one for the act charged here.

It follows that the judgment of conviction in this case must be reversed and the prosecution ordered dismissed, and it is accordingly so done.


author: HAWKINS, Judge.

text:
    MONROE v. STATE.
    No. 14681.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    J. W. Yaney, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

. Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being three years in the penitentiary.

All the evidence was secured by reason of a search of appellant’s residence and premises under a search warrant. The evidence was combatted on many grounds'in objections urged against the validity of the affidavit and warrant based thereon. The principal objection to the affidavit was that it failed to comply with the requirements of article 691, P. C., which provides that no warrant shall issue to search a private residence unless it is shown by the affidavit of two credible persons that “such residence is a place where intoxicating liquor is sold or manufactured.” As the appeal must be disposed of upon other grounds we do not discuss the point mentioned, but observe that such questions would be obviated if the requirements of the statute were kept in mind when affidavits are being prepared upon which to base warrants authorizing the search of a private residence.

Section 9, art. 1, of the Constitution, and article 4, C. C. P., read, in part, as follows: “No warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be. * * ⅜ ”

It has been held that the warrant must contain the description and location of the place to be searched. Harris v. State, 112 Tex. Cr. R. 219, 15 S.W.(2d) 1048; White v. State, 119 Tex. Cr. R. 338, 45 S.W.(2d) 225; Cardness v. State, 115 Tex. Cr. R. 633, 27 S. W.(2d) 812; Smith v. State, 117 Tex. Cr. R. 303, 36 S.W.(2d) 532; De Aguirre v. State, 109 Tex. Cr. R. 584, 7 S.W.(2d) 76. The warrant in the present case is directed as follows: “State of Texas. To the sheriff or any Peace officer of the State of Texas: — Greeting.” It is therein recited that an affidavit had been made by two named parties which alleged that appellant had in his possession intoxicating liquor “in said county and state” (the county not having theretofore been mentioned) in a house “known and described as his private residence, on the road connecting the new highway with the old Lufkin — Huntington highway about four miles east of the City of Lufkin, Texas.” What kind of a house to be searched is not shown, nor whether situated north, south, east, or west of the road mentioned. It does not appear from the warrant in what county-even it is supposed to be located. About all the information the warrant conveyed was that somewhere in the general neighborhood of the road mentioned and about four miles east of Lufkin the private residence of appellant was located and was to be searched. Descriptions similarly indefinite were held insufficient in De Aguirre v. State, Smith v. State, and Harris v. State, supra.

The description of the premises contained in the affidavit cannot be used to aid the description found in the warrant unless the affidavit is made a part of the warrant. Cornelius on Search and Seizure (2d Ed.) page 488, § 200. If the affidavit could be looked to in the present case, it would supply the information as to the county in which the premises to be searched was located, but there is nothing in the record to indicate that the affidavit was made a part of the warrant.

We are constrained to hold that the evidence discovered by the search was improperly received because of an inadequate warrant.

The judgment is reversed and the cause remanded.


author: FLY, Chief Justice.

text:
    DONNA INDEPENDENT SCHOOL DIST. et al. v. SANDERS et al.
    No. 9151.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 22, 1933.
    Polk & Thompson, of Pharr, for appellants.
    Aldrich & Aldrich, of Edinburg, and D. O. Hogan, of Pharr, for appellees.
   FLY, Chief Justice.

Appellees applied for and obtained a temporary writ of injunction restraining the board of trustees of the school district, as well as the district itself, from entering into a certain contract with A. D. Gaston or any one for the collection of delinquent taxes due the district, for any compensation in excess of 15 per cent, on the taxes collected. The court granted the temporary injunction in chambers without notice or a hearing. Ap-pellees sought the injunction until the Legislature now in session might enact laws making effective a certain amendment to the constitution recently adopted by the people of Texas. The court made the writ returnable at its next term. The appellees are delinquent in the payment of their taxes due the district and seem to be speaking not only for themselves but the other delinquent taxpayers in the district. The whole basis of the suit is anticipatory and fails to disclose any equities upon which to rest restraint of the school authorities, upon anticipation that the delinquents may be compelled to pay the taxes they owe the district having charge of the education of their children.

The allegations of the petition showed that no contract for the collection of delinquent taxes had been made, and is merely based on a prophecy of the delinquent taxpayers that an illegal contract would be made. The prophecy is based on the presumption that certain officers of the district intended to act in defiance of law. No testimony was heard, but on the naked assertions, not of taxpayers but tax .evaders, the presumption was indulged against the officers of the school district that they would disregard their obligations to their constituents and trample upon the law in the making of contracts to collect taxes due the district by appellees and others. No presumption will obtain that an officer of district, city, county, or state, will act illegally in discharge of his duties, but, on the other hand, the presumption will always be indulged by courts that any officer will comply with the law of the state. City of San Antonio v. Tobin (Tex. Civ. App.) 101 S. W. 269. This rule is without exception. There was nothing in the way of testimony set out in the allegations of the petition except a dire prophecy, and on that alone the court indulged a presumption against the trustees, and on that presumption issued a writ of injunction. The writ of injunction is an equitable right based on facts, not presumptions showing that unless restrained grave injustice would be done the petitioners unless relief was granted which could not be obtained from the law. The writ is usually protective and preventative. Joyce on Injunctions, §§ 2a, 13, and 14. The one seeking an injunction must have no adequate legal remedy, and must come into court with clean hands. No man can come into a court of equity to restrain the collection of taxes when he is a delinquent and refusing to pay the taxes. There is in the bill no offer to pay the taxes or any part thereof, but they come with the desire to hinder and delay the taxes, and a court of equity should not assist them in this unpatriotic purpose. State Railroad Tax Cases, 92 U. S. 575, 616, 23 L. Ed. 663. No one is seeking relief from this imaginary contract except men who are failing and refusing to assume the burdens placed upon all law abiding citizens. There is no claim that the taxes are unjust and levied contrary to law. It is a rather unique situation when the man who refuses to pay taxes assumes the role of protector of the rights of taxpayers.

Undoubtedly the trustees have the authority to employ assistants to collect delinquent taxes, and if necessary employ the services of an attorney, if suits become necessary. It will not be presumed that any effort will be made to pay fees to the collector or attorney in excess of those permitted by statute. Chapter 29, p. 76. Special Laws, Regular Session 37th Legislature in 1921. A court, of equity will not interfere with the exercise of the discretion of officers within the limits of the law. Courts will not substitute the opinions and desires of delinquent taxpayers for those of officers empowered to force the collection of delinquent taxes. Dillon, Mun. Corp. (5th Ed.) vol. 1, § 242.

The judgment of this court is that the order granting the temporary writ of injunction be reversed and set aside and held for naught, and appellants recover of appellees all costs in this behalf expended.


author: LOONEY, Justice.

text:
    BARIA et al. v. TAYLOR et al.
    No. 11103.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 11, 1933.
    Rehearing Denied March 11, 1933.
    Leachman & Gardere and W. H. Neary, all of Dallas, for appellants.
    George Sergeant, of Dallas, for appellees.
   LOONEY, Justice.

This appeal is from a decree perpetuating a temporary injunction issued at the suit of L. J. Taylor and T. K. Irwin enjoining Mrs. Clio Baria and husband, Murray S. Baria, and the sheriff of Dallas county, from enforcing, as against Taylor and Irwin, a certain judgment rendered by the county court at law No. 1, Dallas county, particularly described below.

The record is before us without a statement of facts; hence, the only question open to discussion is, whether the pleadings support the judgment.

It is our opinion that appellees’ petition for injunction presents but one contention, that is, that the judgment in question is lacking in finality, therefore not capable of supporting an execution.

The judgment set out at length in appel-lees’ petition, in so far as pertinent to our inquiry, reads: “This the 17th day of January, A. D. 1930, came on to be heard the above entitled and numbered cause wherein Mrs. Oleo Baria, joined by her husband, are plaintiffs, and L. J. Taylor and T. K. Irwin, Taylor and Irwin, a co-partnership composed of L. J. Taylor and T. K. Irwin, and Taylor and Irwin Investment Company, a copartnership composed of L. J. Taylor and T. K. Irwin, are defendants, and came the parties and announced ready for trial, and came a jury of six good and lawful men, to wit, William L. Peacock and five others, who being duly empaneled and sworn, on their oaths, in response to the following special issues submitted to them by the court, do make the following findings: (Here follows the issues submitted and the answers of the jury thereto.) Wherefore, the plaintiffs having made motion for judgment upon such special verdict, it is, therefore, ordered, adjudged and decreed by the court that the said plaintiff, Mrs. Oleo Baria, joined by her husband, do have and recover .of said defendant, Taylor and Irwin Investment Company, the sum of One Hundred Twenty Seven Dollars and Fifty Cents ($127.50), with interest thereon at the rate of six (6%) per cent, per annum from the first day of August 1928, together with the costs in this behalf expended both in this court and in the court below, and six (6%) per cent, interest on the amount of this judgment from this date and that she have her execution. [Signed] Paine L. Bush, Judge of the County Court at Law No. 1.” .

Without a discussion, we hold, in harmony with the authorities cited below, that the judgment is final, and enforceable against ap-pellees individually. See Patten v. Cunningham & Ellis, 63 Tex. 666; Fernandez v. Casey & Swasey, 77 Tex. 452,14 S. W. 149; Blumen-thal v. Youngblood, 24 Tex. Civ. App. 266, 59 S. W. 290; Williams Land Co. v. Crull, 59 Tex. Civ. App. 345, 125 S. W. 339.

Appellees contend that the judgment enjoined was superseded by a corrected judgment, therefore was incapable of supporting an execution.

It appears from appellees’ allegations that, after an appeal by writ of error was perfected by them (but later abandoned), appellants, by motion, sought to have the judgment corrected in certain respects, not disclosed by the record; that the motion was sustained, but the corrected judgment was never entered upon the minutes of court, therefore was neither final nor appealable, nor was the previous judgment superseded thereby. See Gilmore v. Ladell (Tex. Civ. App.) 34 S.W. (2d) 919.

Appellees make the further contention that the movement of appellants to correct the judgment restrained appellees from perfecting their appeal from the former judgment until too late so to do, therefore that appellants are now judicially estopped to contend that the judgment enjoined is final.

The issue of estoppel was not pleaded as a ground for injunctive relief. It is true, ap-pellees alleged that they perfected appeal by writ of error from the enjoined judgment, but the same was abandoned by their failure to file the record in this court within the time provided by. law (see District and County Court Rule Í04; Schonfield v. Turner [Tex. Sup.] 6 S. W. 628), but even if urged as a ground for injunctive relief, we fail to see the applicability of the doctrine' of judicial estop-pel to the facts of this case.

Returning to the question first considered, we hold that the judgment attacked is final, that the court erred in enjoining its enforcement as against Taylor and Irwin individual-' ly, therefore reverse the case and render judgment for appellants, dissolving the injunction and dismissing appellees’ petition.

Reversed and rendered.

On Appellees’ Motion for Rehearing.

In their motion for rehearing, appellees complain that we failed to act upon the motion filed by them to dismiss the appeal. While we did not, in express terms, overrule the motion to dismiss, but in treating the judgment peipetuating the injunction as final, and basing our entire adjudication on that idea, the motion, to all intents and purposes, was denied, and we so intended.

The ground alleged by appellees for in-junctive relief is, “That the judgment above set out (the judgment sought to be enjoined), is the only judgment ever entered in this cause, is not a final judgment, and will not support an execution, and any execution issued on said judgment is void, etc.” Upon these, and other allegations to the same effect, appellees sought and obtained, first, a temporary writ, and on final hearing, permanent relief, enjoining enforcement of the judgment, of date January 17, 1930; from this judgment, the appeal is prosecuted. The contention of appellees that the judgment is interlocutory, hence not appealable, is based upon the fact that, in the order perpetuating the injunction, the court attempted to vacate and set aside the judgment enjoined. It is sufficient to say that the attempt of the trial court to vacate and set aside the judgment must be ignored, because not authorized by any pleading; the only purpose of ap-pellees’ suit being to obtain relief by injunc- • tion from the judgment, and not to review vacate, or set same aside.

We have duly considered all grounds urged for rehearing, and the same are overruled.


author: JONES, Chief Justice.

text:
    EMPLOYEES’ LOAN SOC. v. REYNOLDS.
    No. 11101.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 11, 1933.
    Rehearing Denied March 11, 1933.
    Sullivan & Wilson and J. Lee Zumwalt, all of Dallas, for appellant.
    George Clifton Edwards, of Dallas, for ap-pellee.
   JONES, Chief Justice.

Appellee, G. F. Reynolds, filed suit in a district court of Dallas county against appellant, Employees’ Loan Society,' to recover damages by reason of an alleged libelous letter circulated by appellant concerning ap-pellee. The trial of the ease resulted in a judgment in favor of appellee for damages in the sum of $800, and appellant has duly perfected an appeal to this court. The following are the facts:

The Employees’ Loan Society is the firm name adopted by the owners, R. M. Dimm and George R. Reese, both of -whom are nonresidents of the state of Texas. Their business was operated in the city of Dallas through the means of agents and employees residing in said city, and the suit was instituted against the individual owners doing business under the firm name of Employees’ Loan Society. Service was obtained on the nonresident owners by the levy of an attachment on various articles of office furniture. The attached property was replevied by appellant, and a statutory replevin bond given. The attachment lien, as it existed on September 25, 1930, was foreclosed and an order of sale of the attached property directed to be issued. Judgment was also given against R. M. Dimm and G. R. Reynolds, as principals in the replevin, bond, and against the United States Fidelity & Guaranty Company, as surety on such bond.

Appellee resided with his family in the city of Dallas, was an employee of the Texas Power & Light Company at $135 per month, and had been so employed for approximately eighteen months. In 1929, appellee’s wife suffered from a severe and continued illness, for ■which reason it became necessary for appel-lee to borrow from appellant the sum of $40. The loan was arranged on March 21, 1929, under the terms of which appellee contracted to pay appellant the sum of $60 within six months, by semimonthly installments of $5 each, or $10 per month. The money received by appellee on this loan was $40, and the remaining sum of $20 was interest for its use. Two notes were executed as evidence of this contract, one for $40 representing the principal, and the other for $20 representing the interest. Appellee paid and discharged the $40 note within approximately the contract time, and paid $5 on the $20 interest note. He defaulted on the remaining installments, totaling $15, on the interest note. The reason of this default appears to have been because of the heavy expense incident to the continued illness of appellee’s wife.

After making frequent and emphatic demands on appellee for the payment of the balance of $15 on the interest note, to which he failed to respond, on September 27, 1929, appellant addressed a letter to appellee’s employer, informing such employer that appel-. lant had an account against appellee, which had been past-due for some time, and further that “this account was opened with Mr. Reynolds on March 21st of this year for $60, and he still owes a balance of $15, which we have been unable to collect, and we are asking for your cooperation in the matter.” Again, on October 11th, appellant addressed a letter to appellee’s employer, reminding such employer that the former letter addressed to it in regard to appellge had not been answered, and requesting an answer.

On October 19, 1929, a duly authorized agent of appellant called upon appellee’s employer and had an interview with such employer in the presence of appellee. At this time appellant’s agent charged that appellee was indebted to appellant and displayed the two notes executed by appellee, as evidence of the indebtedness, when appellee’s employer asked appellee if be would pajr tbe balance due appellant, and upon appellee’s reply that be could not now pay sucb sum, immediately discharged bim from bis employment.

Appellant continued this high-powered method to force payment by appellee of the $15, until a few months later, appellee instituted suit against appellant in a justice court of Dallas county for the sum of $10, and for a cancellation of the $20 note, of which the sum of $15 was unpaid. The basis for this suit was the claim that the $20 note represented usurious interest, and that $5 of such usurious interest had been paid, and prayed for the recovery of the statutory penalty of double the amount of usurious interest paid. The judgment of the justice court is in evidence, and its recitals show that appellant confessed the correctness of appellee’s claim, paid the $10 into court, and canceled the $20 note, as decreed by the justice court judgment.

Appellee’s petition alleges all of these facts, sets out the letter of September 27, 1929, and by the allegations of proper innuendoes clearly presents a cause of action for libel. The petition is very full and lengthy, but it is not deemed necessary to state it more fully. Appellant answered at length, the material part of which is to the effect that the letter of September 27, 1929, and the exhibition of the notes to appellee’s employer on October 19th, did not cause the the discharge of ap-pellee, and hence did not cause or contribute to cause the financial damages suffered by ap-pellee by reason of his discharge. There is no claim made by appellant that the alleged balance of $15 was a lawful claim and one that appellant could enforce against appellee. Seemingly, appellant has construed appellee’s petition to be one for damages, because of the wrongful discharge of appellee, contributed to by appellant, and not a suit for libel. This is a mistaken construction given to appellee’s petition, for it is clearly one to establish a libel, and to recover the damages suffered by appellee because of such alleged libelous act.

The trial court correctly construed appel-lee’s suit to be one based upon libel, and submitted the case on the following special issues:

“No 1. Do you find and believe from a preponderance of the evidence that the sending of the letter of September 27th, 1929, asserting that ‘he still owes a balance of $15.00, Which we have been unable to collect,’ and the displaying of the notes on October 19th, 1929, caused or contributed to cause the discharge of plaintiff, from the employment of the Texas Power & Light Company? Answer: Yes.
“No. 2. Do you find and believe from a preponderance of the evidence that the sending of the letter of September 27th, 1929, asserting that ‘he still owes a balance of $15.00, which we have been unable to collect,’ and the displaying of the notes on October 19th, 1929, tended to injure the reputation of the plaintiff, G. F. Reynolds and thereby expose him to financial injury or mental suffering? Answer : Yes.
“No. 2a. Do you find and believe from a preponderance of the evidence that the sending of the letter of September 27th, 1929, asserting that ‘he still owes a balance of $15.-00, which we have been unable to collect,’ and displaying of the notes on October 19th, 1929, tended to impeach his honesty and integrity and reputation? Answer: No.
“No. 3. What sum of money, if any, if paid now, will reasonably compensate the plaintiff, 'G. F. Reynolds, for the financial injury, if any, and for mental suffering, if any, directly and proximately resulting from the sending of the said letter of September 27th, 1929, asserting that ‘he still owes a balance of $15.-00, which we have been unable to collect,’ and the displaying of the notes on October 19th, 1929? Answer: $800.00.
“No. 4. Do you find and believe from a preponderance of the evidence that the sending of the letter of September 27th, 1929, asserting that ‘G. F. Reynolds still owed a balance of $15.00 which we have been unable to collect’ and the displaying of the notes on October 19th, 1929, was done in a reckless disregard of the rights of G. F. Reynolds and in a spirit of indifference as to whether G. F. Reynolds was injured or not? Answer: No.”
“No. 6. Do you find and believe from a preponderance of the evidence that the plaintiff, G. F. Reynolds, was discharged by J. E. Yan Horn, solely, on account of his unpleasant attitude in the office where he worked? Answer: No.
“No. 7. Do you find and believe from a preponderance of the evidence that the sending of the letter of September 27th, 1929, asserting that ‘he still owes a balance of $15.00 which we have been unable to collect,’ and the displaying of the notes on October 19th, 1929, was meant and intended by the defendants to cause the Texas Power & Light Company to compel G. Frank Reynolds to pay said alleged debt or be discharged? Answer: No.”

The verdict of the jury, given in response to the special issues, is adopted as the findings of this court, each finding being supported by substantial evidence. Article 5430, R. S. 1925, defines “libel” as follows: “A libel is the defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, eomtempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

Stripped of those matters that hare no application to the instant case, the statute reads: “A libel is a defamation expressed in printing or writing, * * * tending to injure the reputation of one who is alive, and thereby expose him to * ⅜ * financial injury, or to impeach the honesty, integrity, or virtue,' or reputation of any one, * * * and thereby expose such person to * * * financial injury.”

The letter of September 27, 1929, constitutes a direct charge that appellee owed to appellant a debt of $16, which appellant was unhble to collect. This charge was re-enforced by appellant’s exhibition to appellee’s employer of two promissory notes executed by. appellee, showing a balance due appellant of $15. At the time of the writing of the letter and the exhibition of the notes, appellant knew that appellee had legally discharged, not only the principal of the indebtedness, but had paid an additional sum of $5, amounting to usurious interest for the use of the principal indebtedness, and that instead of appellee owing a balance of $15, he had a valid claim against appellant for double the amount of such usurious interest.

There is presented, therefore, a case that indisputably shows appellant made to appel-lee’s employer a false accusation that appel-lee owed it a debt which he would not pay, and undertook to demonstrate such fact by exhibiting to appellee’s employer a valid note executed by appellee, in the sum of $40, which had been fully discharged, and an interest! note for $20, on which $5 had been paid, knowing that such interest note represented an unlawful and illegal claim. Was the sending of this letter, together with the exhibition of the notes, libelous?

Under the undisputed facts of this case, the false claim against appellee, made in writing to appellee’s employer, of an indebtedness due appellant from appellee, will constitute a libel under the provisions of article 5430, supra, provided either one or both of the two conditions named in such statute be shown to have resulted: (a) Did the writing tend to injure the reputation of appellee and thereby expose him to financial injury; and (b) did the writing impeach the honesty, integrity, or reputation of appellee, and thereby expose him to financial injury?

The first of these provisions, under which a libel may be committed against a person, was fairly submitted to the jury by special issue No. 2, and the jury returned an affirmative answer thereto. The second provision, under which a libel may be committed against a person, was fairly submitted to the jury by special issue No. 2a, and the jury returned a negative answer thereto. There is no conflict in these answers of the jury, as contended by appellant. The libel statute clearly draws a distinction between that which tends to injure the reputation of a person, and that which impeaches the honesty, integrity, or reputation of a person. The same instrument 'in writing might do both, or it might only injure the reputation of a person, and yet not go to the extent of- his impeachment in the respect named in the statute. Under the findings of the jury, the writing in question had only the latter effect.

It was clearly the province of the jury, under the facts of this case, to determine whether the conduct of appellant, in sending the letter of September 27th, and in exhibiting the notes on October 19th to ap-pellee’s employer, tended to injure appellee in his reputation, and thereby to expose him to financial injury. The jury having determined that the conduct of appellant was libelous, appellee, as a matter of law, is entitled to recover from appellant the damages resulting to him from appellant’s libelous act. The jury determined, by its answer to special issue No. 1, that, under the evidence, the libelous act of appellant contributed to cause his discharge by his employer. This finding entitled appellee to recover from appellant the damages resulting from his discharge. Texas Furniture Co. v. Meyers (Tex. Civ. App.) 167 S. W. 766; Cotton v. Cooper (Tex. Civ. App.) 160 S. W. 597; Id. (Tex. Com. App.) 209 S. W. 135; Evans v. McKay (Tex. Civ. App.) 212 S. W. 680. The jury assessed the damages at $800, and it is amply sustained by the evidence.

Appellant assigns error on the manner in which special issue No. 2 was submitted to the,jury, claiming that the submission is duplicitous and leads to speculation or doubt as to the meaning of the verdict on this issue. The finding of the jury in respect thereto is specific and plain. Appellant’s criticism of this issue is .made to the last clause of such issue, which reads, “tending to injure the reputation of the plaintiff, G. F. Reynolds, and thereby expose him to financial injury, or mental distress.” It is claimed that, as the jury was required to answer such issue “yes” or ‘no,” and having returned the answer “yes,”' it is impossible to determine whether the jury intended to find that ap-pellee was exposed to “financial injury,” or intended to find that he was exposed to “mental distress.” While the statute only uses the term “financial injury,” our courts have held, in effect, that if it exposes him to “mental distress,” the act complained of is nevertheless libelous. It is clear that, by the affirmative answer, the jury found that one or both the matters submitted resulted. If either resulted, a libel against appellant was committed. The question here is unlike those cases cited and relied upon by appellant, where the disjunctive submission was on matters of antagonistic effect; that is, if one of the matters submitted existed, the complaining party would be entitled to recover, while if the ether matter submitted existed, there could be no recovery by such party. In this case, the existence of either or both of the matters submitted would entitle appellee to recover. This assignment of error is overruled.

A number of appellant’s contentions are clearly based upon the mistaken theory that appellee’s suit is for damages resulting for a wrongful procurement of appellee’s discharge. This is not appellee’s cause of action, but, as we h,ave seen, it is one for damages resulting from a libel. The fact that, by the commission of a libel, appellant contributed to appellee’s discharge, is only an incidental fact in appellee’s suit, necessary to show that he suffered actual damages because of the libel.

We have carefully examined all of appellant’s assignments of error, not herein specifically discussed, and overrule them. We conclude that the case, as made by the pleadings and evidence, has been fairly tried, the disputed issues clearly submitted to the jury, the damages found not excessive, and that this case must be affirmed.

Affirmed.


author: SMITH, Justice.

text:
    MODERN WOODMEN OF AMERICA v. HARPER.
    No. 8988.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1933.
    Rehearing Denied March 15, 1933.
    Templeton, Brooks, Napier & Brown, of San Antonio, and George G. Perrin and George II. McDonald, both of Rock Island, Ill., for appellant.
    H. D. Barrow and A. N. Steinle, both of Jourdanton, for appellee.
   SMITH, Justice.

For twenty-nine years Peter H. Harper was a faithful member of the Modern Woodmen of America, a fraternal benefit society, promptly paying his monthly dues thereto before the end of each month, as required by its by-laws, except for the months of July, 1930 (which he paid on August 21), and December, 1930, and January, 1931 (which he paid on February 10, together with future dues for February and March). In both instances of delinquency the society accepted the delayed payments without protest or admonition against future delinquencies; and the unsuspecting member went on his way in the serene assurance that he was in good standing with his' society and that in case of his death his wife would receive the benefits he had so providently and faithfully provided for her.

On March 13, 1931, during a period for which he had paid his dues in advance, Harper died, at the age of sixty-eight years. He had been in ill health for twenty years, and particularly since 1928, during all of which period the society had regularly accepted and appropriated his assessments, regardless of whether tender thereof was timely or tardy.'

The society retained the assessments for December, 1930, January, February, and March, 1931, paid by Harper on February 10, until this suit was brought in September, 1931, when, offering to refund those payments to Harper’s widow and the beneficiary in his certificate, it sought to defeat payment of the insurance because Harper had been delinquent in the payment of his December, 1930, and January, 1931, assessments. The trial court rejected this defense, directed a verdict in favor of the widow, and rendered judgment in her favor for the amount of the so-called “certificate of benefit” issued by the society to Harper. The society has appealed.

It is provided in the society’s by-laws that the member shall be automatically suspended and the certificate become null and void if any monthly assessment thereon is. not paid to the local clerk of the society on or before the last day of the calendar month in which' it is due; that at any time within ninety days the member may be reinstated by the payment of delinquent assessments, if he is then in sound health, and so warrants himself to be; that the society shall not be bound by any act or knowledge of its local clerks; that “ ⅜ * * payment by said member and the acceptance and retention thereof by the society of assessments and dues on account of any benefit certificate or rider after same has ceased to be in force shall not have the effect of continuing said benefit certificate or rider in force, but the society shall return such assessments and dues to the member, if living, and if dead, to the beneficiary or beneficiaries, upon their written demand therefor.” Section 57 of the by-laws. And in section 64 it is provided that: “ * * * Whenever assessments or dues are paid by or for a suspended member for the purpose of reinstatement, said member shall, by such payment, be held to warrant that he is in sound health * ' * * and to contract that such assessments or dues, when so paid, after his suspension for nonpayment, shall be received and retained without waiving.any of the provisions of this section until such time as the head clerk or the board of directors shall have knowledge that the member was not in sound health when he attempted to reinstate ⅝ * *( provided, however, that the receipt and retention of such payment, in case the suspended member is not in sound health, or is engaged in any prohibited occupation, shall not reinstate said member or entitle him or his beneficiary or beneficiaries to any rights under his benefit certificate; and provided, further, that such payment made for the purpose of reinstatement, either before or after death, shall not constitute a waiver of any provision of these by-laws.”

The record shows that Harper died on March 13, 1931, and proof of his death was made to the society, through its chief officials, on March 24, 1931. This proof was accompanied by full and detailed information concerning the condition of the decedent’s health during the three years preceding his death, and by this means knowledge of the decedent’s unsound health, at the time of his attempts at reinstatement, was brought home to the society’s head clerk and its directors. The society did not thereupon repudiate its obligation to the beneficiary or reject the attempted reinstatement of the member, by refunding or offering to refund the tardily paid assessments, or by any other means, but retained that fund until the ensuing September, when, in answering to this suit, it tendered the amount to the decedent’s widow and the beneficiary in said certificate.

Undoubtedly the knowledge imparted with the proofs of Harper’s death fully satisfied the condition in the by-laws that waiver of the provision against reinstatement of members not then in sound health would not operate to bind the society “until such time as the head clerk or the board of directors shall have knowledge that the member was not in sound health when he attempted to reinstate,” etc. When put to an election by this knowledge, however, the society did not hasten to repudiate the “attempted reinstatement,” by promptly notifying the beneficiary and refunding the assessments it had received and pocketed weeks before, as was its duty not only in good conscience, but under the provisions of section 64 of its by-laws. On the contrary, so far as the record shows, it took refuge in silence until sued on its obligation months later, and, holding tight to funds which it now contends belonged to the widow of its lifelong member, it set about to defeat its fundamental obligation as a “fraternal beneficial society.”

Appellant contends that under the provision in section 57 of its by-laws it was not incumbent upon it to refund the assessments until appellee made written demand therefor. It is true that section embraces such a provision, but it is obvious from its language that it applies only in cases where there is no question of the futility of the payment of those assessments, since to demand their refund would commit the member or his beneficiary to a rescission of the contract. But, if it should be determined that that provision was intended to apply in every case, i.t should not be enforced in the presence of the provision in section 64 of the by-laws to the effect that no waiver can be charged to appellant until (and therefore by implication will become effective when) its head clerk or board of directors have knowledge of the unsound health of a member seeking reinstatement.

We are of the opinion that under the terms of its by-laws as applied to the facts stated, the society should be held to have waived the provision urged in defense of this suit. The society seemed to employ every artifice of language to entrap the unwary dues-payer in event of his least delinquency, and it will not be heard to complain if its forfeiture provisions are construed liberally in favor of those ensnared in the meshes of those provisions.

The judgment is affirmed.

MURRAY, ,T., not sitting.


text:
    ECKERT v. WENDEL et al.
    No. 9007.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 8, 1933.
    Rehearing Denied March 15, 1933.
    See, also, 15 S.W.(2d) 1064; 120 Tex. 618, 40 S.W.(2d) 796, 76 A. L. R. 855.
    J. B. Wieser and Alfred Petsch, both of Fredericksburg, for appellant.
    N. T. Stubbs, of Johnson City, and H. H. Sagebiel, of Fredericksburg, for appellees.
   FLY, Chief Justice.

This is a suit to set aside certain deeds of conveyance made by Lorenz Wendel to his son Henry Wendel, on the ground of fraud, instituted by Eckert, appellant, against the two parties named as making and receiving the conveyances. The court held that the cause of action was barred by the five-year statute of limitation (Rev. St. 1925, art. 5509), and rendered judgment that appellant do not recover and pay all costs of suit.

There is an agreed statement of the facts, which is adopted as a matter of course by this court, and which is copied as follows:

“1st. Plaintiff filed herein suit in this court on the 30th day of January, A. D. 1928, as shown by file mark on his Original Petition.
“2nd. Plaintiff is the holder of a valid judgment against Lorenz Wendel and H. W. Wendel, obtained in the District Court of Gillespie County, Texas, on August 16th, 1927, which judgment is based on a debt created and owing since the year 1917. Execution issued on the above mentioned judgment and was returned by the Sheriff of Gillespie on November 23rd, 1927, nulla bona.
“3rd. H. W. Wendel is insolvent and was for many years prior hereto.
“4th. Lorenz Wendel, a Defendant in this cause, was insolvent at the time of execution of his deed of date May 13th, 1921, to his son Henry M. Wendel, to 762 acres of land, described in Plaintiff’s Petition, and has remained insolvent ever since. Nothing has ever been paid on the judgment held by Plaintiff, as aforesaid, and there is unpaid the sum of $968.00 with interest thereon at the rate of eight per cent per annum from the 16th day of August, 1927, plus $12.45 cost of suit.
“5th. Plaintiff had no actual knowledge of the insolvency of Lorenz Wendel, until the 23rd day of November, 1927, the day of the Sheriff’s return upon the execution aforesaid.
“6th. By the exercise of reasonable diligence Plaintiff did not discover the insolvency of his debtor, Lorenz Wendel, until August 20th, 1924, that being the date Lorenz Wendel disposed of all of his real estate, excepting his 200 acre homestead, and all personal properties, excepting such as is exempt from execution under the law.
“7th. That the defendant, Lorenz Wendel, joined by his wife, Minna Wendel, sold to the ' defendant,. Henry M. Wendel, on or about the 20th day of August, A. D. 1924, the 157 acres of land, more or less, out of and part of Survey No. 79, located by Certificate No. 1588, issued to G. H. & S. A. R. R, Co., Block ‘N,’ purchased from the State of Texas bjj Robert Wendel, and conveyed the same to said Henry M. Wendel by general warranty deed in writing, bearing date on August 20th, A. D. 1924, recorded in the Deed Records of Gillespie County, Texas, in Yol. 33, at pages 201, et seq. said 157 acres being fully described by metes and bounds in said deed, to which and the record thereof, reference is hereby made for such description, and that said Henry M. Wendel paid for said land the then reasonable market value thereof, unto the grantors and that plaintiff admits that said Henry M. Wendel has and holds the valid title to said land as against plaintiff.
“8th. That by deed in writing, bearing date on the 13th day of May, A. D. 1921, the defendant Lorenz Wendel, conveyed to the defendant, Henry M. Wendel, the following described tracts of land, situate, lying and being in the Counties of Gillespie and Kim-ble, State of Texas, to-wit: (a) 231 acres of land, more or less, out of and part of Survey No. 77, Cert. No. 1587, issued to G. H. & S. A. R. R. Co. Block ‘N,’ originally purchased from the State of Texas by Lorenz Wen-del; (b) 231 acres of land, more or less, out of and part of Survey No. 78, Cert. No. 1587, to G. H. & S. A. R. R. Co., Block ‘N,’ originally purchased from the State of Texas by Lorenz Wendel; (c) 60 acres of land, more or less, out of and part of Survey No. 75, originally granted to G. H. & S. A. R. R. Co., Block ‘N,’ being the same land conveyed by Chas. Schreiner to the grantor in said deed; (d) 240 acres of land, more or less, .the East one-half of Survey No. 76, originally granted to G. H. & S. A. R. R. Co., Block ‘N,’ and said ¡our tracts of land embracing 762 acres of land, and being described, in a body, by ' metes and bounds in said deed; and that said deed was delivered to and accepted by said Henry M. Wendel, at tbe time of its execution; that tbe land described in said deed is tbe same land described in plaintiff’s petition ; that tbe grantee, Henry M. Wendel did not pay a valuable consideration for said lands; that tbe defendant Henry M. Wendel entered into tbe actual possession of said 762 acres of land immediately upon the delivery of said deed and continued to bold tbe actual, continuous, peaceable and adverse possession thereof, to tbe exclusion of all other persons, and without being interrupted in such actual and exclusive possession of all of said land, or any part thereof, by suit or otherwise, until tbe date of tbe filing of this suit; that said Henry M. Wendel claimed all of said land as bis own ever since he obtained tbe deed thereto, as above stated, and that, during all of said period of time, be actually used, cultivated and enjoyed tbe same exclusively, adversely and peaceably, bold-ing possession of all of said land under good and lawful fence or fences, until tbe filing of plaintiff’s original petition in this cause, said petition having been filed in this court on January 30th, A. D. 1928; that tbe defendant, Henry M. Wendel, paid all taxes due on said land, before tbe same became delinquent, from tbe time of obtaining tbe above mentioned deed thereto, and that no part of said land, during said period of time, beginning with tbe date of tbe aforesaid deed and ending with date hereof, said land, nor any 'part thereof, was ever delinquent for taxes assessed against the same; that the above mentioned deed conveying tbe title to said 762 acres of land from Lorenz Wendel to Henry M. Wendel was filed for record in tbe office of tbe Clerk of the County Court of Gillespie County, Texas, on tbe 18th day of June, A. D. 1921, and duly recorded on June 21, A. D. 1921, and that said deed was filed for record in tbe office of tbe Clerk of tbe County Court of Kimble County, Texas, on tbe 29th day of June, A. D. 1922, and duly recorded on tbe 29th day of December, A. D. 1922, and that- all of tbe constituent elements of tbe five years’ statute of limitations have been complied with by tbe defendant Henry M. Wendel.
“And upon tbe above facts, tbe Court rendered judgment in favor of tbe defendants, to which tbe plaintiff excepted and gave notice of appeal to tbe Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, sitting at San Antonio, Texas.” ■

This suit was filed in January, 1928, more than six years after tbe deed of date May 13, 1921. That deed is tbe only one contested by appellant, and under tbe agreed facts title by five years’ limitation bad been perfected in Henry M. Wendel, tbe vendee in tbe deed. This is a second appeal of this case; tbe opinion of this court appears in 15 S.W.(2d) 1064; and tbe opinion of tbe Supreme Court, by virtue ’ of a writ of error granted, in 120 Tex. 618, 40 S.W.(2d) 796, 797, 76 A. L. R. 855. The Supreme Court reversed the judgment of this court, and remanded the cause to tbe district court. On tbe first trial the cause was tried on whether tbe cause was barred by tbe four-year statute, and the Supreme Court held:

“Tbe law is settled in Texas that a creditor, though be have no specific lien, may maintain an action in equity to vacate a fraudulent conveyance of bis debtor’s land. Until tbe creditor, in some manner — such as by levy of attachment or execution or by record of an abstract of judgment — acquires a lien, or until be acquires title by sale under execution, bis only remedy, as against the grantee in a conveyance of real estate in fraud of bis rights, is an action for a decree annulling tbe conveyance as an obstruction to tbe collection of his debt. Such an action is not one for tbe recovery of land, nor is it one to enforce a lien on land, but it is simply an action to cancel a conveyance of land because of fraud, and, no other period of limitation being prescribed for such an action, it comes within tbe four-year statute. Ar-buckle Bros. Coffee Co. v. Werner & Cohen, 77 Tex. [pages] 44 to 46, 13 S. W. 963; Cas-saday v. Anderson, 53 Tex. [pages] 535 to 639; Anderson v. Cassaday, 36 Tex. 652.
“The creditor’s cause of action to annul a fraudulent conveyance accrues when tbe creditor acquires knowledge of tbe fraud or would have acquired such knowledge in tbe exercise of ordinary care. Registration of tbe fraudulent conveyance at a certain date is merely one circumstance bearing on tbe creditor’s actual or presumed knowledge. Bump on Fraudulent Conveyances (4th Ed.) § 574, p. 559; Smith v. Talbot, 18 Tex. 783; Hudson v. Wheeler, 34 Tex. 367; Kuhlman v. Baker, 50 Tex. 636; Vodrie v. Tynan (Tex. Civ. App.) 57 S. W. 680, 681; Ryman v. Pe-truka (Tex. Civ. App.) 166 S. W. 711, 712.
“In tbe instant case, plaintiff in error, having obtained a judgment lien on tbe lands of bis debtor, Lorenz Wendel, sued to establish that lien and to foreclose it against both Lorenz Wendel and Henry M. Wendel, tbe latter alleged to have no right, title, or interest in tbe lands, save as grantee in a conveyance executed by Lorenz Wendel to Henry M. Wendel without consideration and for tbe purpose of hindering, delaying, and defrauding tbe subsisting creditors of Lorenz Wendel, including tbe plaintiff in error.
“A careful analysis discloses that under tbe decisions of tbe Supreme Court of this state a suit to enforce a subsisting judgment lien on land against a grantee in a conveyance void under our statutes as to tbe judgment creditor is not barred until tbe fraudu-lest grantee or his assigns acquires ‘full title’ to the land, ‘precluding all claims,’ under some statute of limitations which would bar an .action for the recovery of real estate.”

On the second trial the case was tried under the theory of acquisition of title by the five-year statute of limitation, and under the evidence Henry M. Wendel had acquired a title to the land by showing himself within the provisions of the statute.

The contentions of appellant are directly in the face of the decision of the Supreme Court in this case, and that clear opinion is amply fortified by Texas decisions therein cited. Under that decision the district court could have rendered no other valid decision except the one rendered by him.

The judgment is affirmed.


author: ALEXANDER, Justice.

text:
    GREEN et al. v. CROUCH.
    No. 1319.
    Court of Civil Appeals of Texas. Waco.
    March 2, 1933.
    R. L. House and R. H. Mercer, both of San Antonio, for appellants.
    J. M. Woods, T. J. Newton, and W. P. Camp, all of San Antonio, for appellee.
   ALEXANDER, Justice.

This action was brought by C. A. Crouch against Edward Green and Maryland Casualty Company to recover damages for personal injuries alleged to have been sustained by plaintiff by being struck by an automobile driven by the defendant Green while plaintiff was crossing a street in the city of San Antonio. The case was submitted to the jury on special issues, and, upon the answers of the jury thereto, judgment was entered for the plaintiff in the sum of $2,700. The defendants appealed.

Counsel for appellee, in his closing argument to the jury, said: “Gentlemen, I am not going to take these questions up one by one, they have been over that thoroughly with you, but I will say this, that the testimony in this case justifies the rendition of a verdict for this plaintiff, and only by answering Questions from 1 to 8 Wes’ with the exception of Question No. 2, can you render a verdict in his favor.”

Counsel for appellants objected to this argument on the ground that it disclosed to the jury the effect of their answers to the issues submitted to them by the court. The court overruled the objection, and counsel for ap-pellee proceeded as follows: “Gentlemen of the Jury, if you hit a dog with a rock he will howl every time. If I was not within my rights and within my province I would be stopped, and it does not behoove him every time I hit him a blow that hurts him to jump up and squeal and take a bill of exception.”

Again counsel for appellee said: “The next question is Question No. 10, *Did the act of the plaintiff in crossing Hoefgen Avenue at the place where he was crossing at the time of the accident directly cause or directly contribute to cause the accident and injuries, if any, sustained by the plaintiff?’ Gentlemen of the Jury, it would make no difference what answer you gave to any other questions in this case, if you answered that question ‘Yes’ it would absolutely defeat your judgment.”

The above argument was improper, and requires a reversal of the case. It is the duty of the jury to answer the special issues as they find the facts to be and without regard to their effect on the judgment to be rendered, and the jury should not be informed as to the effect of their answers. Counsel for appel-lee not only informed 'the jury as to the effect of their answers to the issues as submitted, but urged the jury to so answer the issues in order to enable the plaintiff to recover a judgment. Such argument has many times been condemned. Texas & Pacific Ry. Co. v. Edwards (Tex. Com. App.) 36 S.W.(2d) 477; MoFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213, 216; Fidelity Union Casualty Co. v. Cary (Tex. Com. App.) 25 S.W.(2d) 302; Behringer v. South Plain Coaches (Tex. Com. App.) 13 S.W.(2d) 334; H. E. & W. T. Ry. Co. v. Sherman (Tex. Com. App.) 42 S.W.(2d) 241, par. 13.

The appellee contends that, since the bills of exception do not affirmatively show that the argument complained of was not provoked by or made in response to argument of opposing counsel, such bills do not show error. This is not the rule. If the argument of counsel complained of was provoked by opposing counsel, the appellee should have had the bills of exceptions qualified so as to reveal this fact. Since the argument complained of was prejudicial and the bills of exceptions do not affirmatively show a justification thereof, error is presumed. Texas Indemnity Ins. Co. v. McCurry (Tex. Com. App.) 41 S.W.(2d) 215, par. 4, 78 A. L. R. 760; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 39 S.W.(2d) 1091; Regester v. Lang (Tex. Com. App.) 49 S.W.(2d) 715, par. 1.

The other errors complained of will not likely arise in the same manner upon another trial, and therefore we do not discuss same.

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


text:
    LUND et al. v. DOYNO.
    No. 9003.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 8, 1933.
    Rehearing Denied March 15, 1933.
    Hill & Greer, of Mission, for appellants. •
    John A. Pope, Jr., of Rio Grande City, for appellee.
   FLY, Chief Justice.

Appellee sued Catarina Lund and twelve others to recover 67.5 acres of land out of por-ción No. 80, being all of share No. 1, set apart and awarded to appellee by a decree of partition entered in a case styled John J. Young et al. v. Solis et al., in the district court of Starr county. This is a statutory action of trespass to try title, to which pleas of not guilty were made by appellants, and a disclaimer entered to all of said 67.5 acres awarded to Doyno, except certain portions which axe claimed by three, five, ten, and twenty-five years of limitation. Appellee dismissed his suit, and the suit shown by a cross-action filed by appellants was tried, and the first and third tracts described in the cross-action were awarded to appellants, and the second and fourth tracts were awarded to ap-pellee. In the judgment the court held that tract 4 was an accretion of the. Rio Grande river to tract No. 2, to which appellants had failed to show any right or title by limitation or otherwise.

The testimony as to the possession of appellants for a period of ten years is conflicting. If the testimony of R. Morlen, a son-in-law of Mrs. Lund, be true, she was in possession of tract No. 2, from 1919 until the suit was filed in 1928. The case must have been given careful consideration, because the judge held it under advisement for two years before he rendered his judgment.

The first proposition is overruled. ’ It is insisted that the burden was on appellee to show possession, or he could not recover. There was no burden resting upon appellee to show possession after he dismissed his suit. He was, after that action, held in court only through the suit instituted by appellants through their cross-action. By that pleading they became the plaintiffs in the suit, and the burden rested on them to show a title superior to that of appellee. If they recovered, it would be through the strength of their title and not through the weakness of appellee’s title. Appellants, in their only proposition, do not claim that appellants had perfected a title by limitation, but seem to rest their case on the claim that appellee had not shown possession of the land, and that appellants had shown that they “had long continuous possession.” They failed to show any kind of right or title to the land.

.The judgment is affirmed.


author: LANE, Justice.

text:
    BLEDSOE v. MACK.
    No. 9851.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 21, 1933.
    W. J. Durham, of Sherman, for appellant.
   LANE, Justice.

On the 11th day of April, 1932, Perry C. Mack filed in the Sixty-First district court of Harris county, Tex., his petition praying for the issuance of a temporary injunction restraining W. F. Bledsoe and others from doing certain enumerated acts, not necessary to be here mentioned.

The court granted the temporary injunction prayed for upon the allegations of the petition without a hearing.

The petition was signed by the applicant. The affidavit attached to the petition is as follows:

“The State of Texas, County of Harris.
“Before me, the undersigned authorities, on this day personally appeared Perry Mack, who being by me first duly sworn, says that he is the Deputy Grand Master of the Grand Lodge, United Brothers of Friendship of Texas, and is the plaintiff in the above suit, and that matters stated in the foregoing suit are true and correct according to the best of his knowledge and belief.
“April 11, 1932.
“Lilael D. Ewing, Notary Public in and for Harris County, Texas.”

On the 28th day of April, 1932, W. F. Bled-soe filed his supersedeas bond in the sum of $1,500, as fixed by the court and approved by the clerk of the court, thus perfecting his appeal to this court.

The temporary injunction was suspended by order of the court pending appeal.

For reversal of the judgment, appellant contends that the affidavit attached to the petition was not such as is required by the law; that it is not a verification of any fact or facts alleged in the petition; therefore the court erred in granting the temporary .injunction on such petition.

Appellant’s contention is supported by an unbroken line of decisions of our state courts.

In City of Arlington v. Dallas-Fort Worth Safety Coach Co. (Tex. Civ. App.) 270 S. W. 1094, 1095, the affidavit to an application for a temporary writ of injunction was practically the. same as the one in the present case. In that case the court, in speaking of the phrase “verified by his affidavit,” as used in article 4649, Revised Civil Statutes (now Rev. St. 1925, art. 4647), said:

“ ‘Verified by his affidavit,’ as used in the above statute, means proved to be true or correct; to establish the truth of; confirmed. 4 Words & Phrases (Second Series) pages 1152,1153. It has been held that the verification must be direct and in such positive terms as would sustain a charge of perjury or false swearing, if the verification should prove to be false, and the affidavit must show to have been made on the personal knowledge of the affiant as to the truth of the allegations verified. Verification on information and belief is held to be insufficient (Forest Oil Co. v. Wilson [Tex. Civ. App.] 178 S. W. 626; Graham v. McCarty, 69 Tex. 324, 7 S. W. 342; So. Oil & Gas Co. v. Mexia Oil & Gas Co. [Tex. Civ. App.] 186 S. W. 446, and numerous other eases), nor is an affidavit that the allegations sought to be verified are true and correct ‘to the best of my knowledge and belief’ sufficient. Spinks v. Mathews, 80 Tex. 373,15 S. W. 1101; Lane et al. v. Jones (Tex. Civ. App.) 167 S. W. 177; Moss v. Whitson (Tex. Civ. App.) 130 S. W. 1034. A defect in the verification of an application for a temporary injunction, and on an ex parte hearing, may be raised for the first time in the Courts of Civil Appeals. White v. Ferris (Tex. Civ. App.) 186 S. W. 367; Butler v. Remington (Tex. Civ. App.) 230 S. W. 224. The defect is not waived by a failure to call the trial court’s attention thereto in this character of a proceeding.”

To a like import are the following cases not cited in the opinion mentioned: Robertson v. Economy Plumbing Co. (Tex. Civ. App.) 269 S. W. 481; Gray v. S. T. Woodring Lumber Co. (Tex. Civ. App.) 197 S. W. 231; Wilkinson v. Lyon (Tex. Civ. App.) 207 S. W. 638; Wilkening v. Wolff (Tex. Civ. App.) 220 S. W. 598; West Texas Abstract & Guaranty Co. v. Stolte (Tex. Civ. App.) 256 S. W. 632.

By article 25, Revised Civil Statutes of 1925, it is provided: “All oaths and affirmations shall be administered in the mode most binding upon the conscience of the individual taking same and shall be subject to the pains and penalties of perjury.”

For the reason pointed out, the judgment granting the temporary injunction is reversed, and the cause remanded.

Reversed and remanded.


text:
    GENERAL REFRIGERATION CO. v. SPRAGUE.
    No. 11088.

    Court of Civil Appeals of Texas. Dallas.
    Feb. 18, 1933.
    Callaway & Reed and Joe A. Keith, all of Dallas, for appellant.
    Nathaniel Jacks, of Dallas, for appellee.
   JONES, Chief Justice.

Appellee, Charles J. Sprague, instituted this suit in the county court of Dallas county at Law No. 2, against appellant, General Refrigeration Company, a foreign corporation lawfully doing business in the state of Texas, with a branch house in the city of Dallas, with R. W. Cox as general agent in this state, and manager of the branch house in Dallas. Appellee sought to recover from appellant an alleged balance due him under his oral contract of employment as a salesman. A trial of the cause resulted in a judgment in favor of appellee in the sum of $769, with interest at the rate of 6 per cent, per annum from date of judgment. The appeal is duly perfected to this court, and the necessary facts are;-

Appellee is engaged in the business of the manufacture, sale, and installation of electrical refrigeration; its manufacturing product being mainly what is known as the Lip-man Electric Refrigeration. Appellee is a capable and experienced salesman for such products. Under a contract with Cox, appellant’s manager and agent, appellee became an authorized salesman for appellant. The compensation to be paid for such employment was a commission of 10 per cent, on the list price of the machinery sold, for all sales made in the corporate limits of the city of Dallas; 12½ per cent, of all sales made outside of the corporate limits of the city of Dallas, and the entire overage, of sales made in excess of the list price, in addition to the commission. The terms of this contract rest on disputed evidence, but such disputed issue was submitted to the jury, and resulted in a finding that the contract was as given above.

Appellee’s claim is made up of three distinct and separate items, one for a breach by appellant of appellee’s employment contract, in failing to pay a commission on the installation of refrigeration for one G. Wate; another item for a breach of appellee’s contract, in refusing to pay an overage claimed to be due on the Green Sanitary Dairy contract; and a third item, for the failure to pay the reasonable value of services performed by ap-pellee,- not embraced in his sales contract, on the installation of refrigeration for S. A. Godfrey, and for the performance of which it is alleged that appellant promised to pay the reasonable value of such service.

The issues made by the evidence as to each of these items were separately submitted to the jury, in the form of special issues, and a verdict returned in favor of appellee as to all of such items, being $325 due on the Wate contract, $409 due on the Green Sanitary Dairy contract, and $35 as the reasonable value for the extra services performed by appellee on the S. A. Godfrey contract

Appellant attacks the findings of the jury on each of these items, and further attacks the findings in respect to the item of $409, on the Green Sanitary Dairy contract, on other grounds, which will appear in -a discussion of that phase of this case.

We have carefully examined the evidence in regard to the item of $325, found by the jury to be due appellee on the O. Wate contract, and believe that the evidence at least raises an issue of fact as to whether ap-pellee is entitled to a commission on this contract, and therefore overrule appellee’s contention in reference thereto. The undisputed evidence on this item shows that appellee, as agent for appellant,-entered Into a contract with Wate to install appellant’s refrigeration, including the Lipman Electric Refrigeration, manufactured by appellant, at the list price of $2,600. Such evidence further shows that this contract was not accepted by appellant’s home office. If this had been the end of the matter, appellee would have no claim to commission on the attempted sale. There is evidence, however, which warrants the conclusion that this contract was not accepted, for the reason that appellant, in its branch office at Dallas, had on hand practically a new refrigeration machine of another manufacture, that was especially adapted to Wate’s needs in respect to electric refrigeration, and, desiring to substitute at the same price this other electric refrigeration product, appellant turned down appellee’s contract of sale, and had its manager, Cox, ostensibly to purchase this other electric refrigeration, and himself ostensibly to sell it to Wate. This course was pursued, for the reason that appellant did not desire to be known as selling other than its own product. The evidence further shows that the installation of the refrigeration was at the same price as called for in the contract secured by appellee, and that appeRant reaped the same profit that would have come to it had it accepted the written contract secured by appellee. The evidence also shows that appellant was able to sell this piece of machinery and have it installed for Wate through means of the original effort of ap-pellee. In other words, the evidence warrants the conclusion that the sale and installation of the refrigeration for Wate was made by appellant for the same price, and for which it reaped the same profits, and actually only consisted in varying appellee’s contract of sale by substituting, with the approval of Wate, another refrigeration at the same price. Under such condition, the jury was warranted in the finding made in respect to this item.

The $35 item on the Godfrey sale is so clearly sustained by both the pleading and evidence that we will overrule appellant’s contention in reference thereto without discussion.

Is appellee entitled to the $409 overage on the Green Sanitary Dairy contract? The undisputed evidence shows that appellee secured a contract with this dairy to install a new Lipman refrigeration machine, at the list price of $1,300, and that, when completed, with other necessary machinery, would make the list price of the installation $2,554.25; and hence, if the installation was made according to appellee’s contract of sale, there would be no overage in his favor. Under the contract made, appellee would be entitled only to his 12½ per cent, commission, and there is no claim that this was not paid. The sales contract entered into by appellee was accepted -by appellant, thereby obligating itself to make the installation as called for in the contract, and to pay appellee a 12½ per cent, commission. The commission was paid, but appellant’s duty to the purchaser appears not to have been performed according to the terms of the sales contract, for the evidence conclusively shows that, instead of furnishing a new Lipman refrigeration machine, a secondhand refrigeration machine of the same kind was furnished. The evidence further shows that the secondhand machine had only been in use about two months when it had been reclaimed by appellant and used in this' installation. The Green Dairy did not know that a substitution of a secondhand machine had been made for the new Lipman refrigeration machine named in the contract, and did not consent to such substitution, but assumed that the new Lipman refrigeration had been installed. The evidence sustains the finding of the jury that, by reason of such substitution, an additional profit of $409 was made by appellant. Could such profit be denominated overage in favor of appellee? This overage, however, was not the fruit of appellee’s contract, or of appellee’s work, but in law was the fruit of an illegal act on the part of appellant, in making the substitution.

By reason of this unwarranted substitution by appellant, a valid claim was created in favor of the Green Sanitary Dairy, against appellant, for the difference in the value of the installation contracted for and the value of the installation made, but we fail to see wherein a valid claim was created in favor of appellee. Appellee, no more than appellant, should in law be permitted to profit by the illegal act of appellant in the substitution of a secondhand machine for the new machine contracted for. Appellee could be made a beneficiary of this wrongful act of appellant only by a decree of this court, recognizing the validity of such wrongful act. This the court cannot do.

It necessarily follows that, in our opinion, the facts of this case will not permit a recovery by appellant of the item of $409, and that the judgment rendered should be reformed by striking out of appellee’s recovery the item of $409, and as reformed should be affirmed for the sum of $360, with interest at the rate of 6 per cent, per annum from the date of the trial in the lower court; cost of this appeal to be taxed against appellee.

Reformed and affirmed.


author: HICKMAN, Chief Justice.

text:
    ROBERT & ST. JOHN MOTOR CO. v. BAINS.
    No. 1077.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 24, 1933.
    Frank E. Smith, of Abilene, for appellant.
    Cox & Hayden, of Abilene, for appellee.
   HICKMAN, Chief Justice.

Appellant filed this suit against appellee upon a promissory note for the principal sum of $238.38, and for the foreclosure of a chattel mortgage on an automobile and five head of cattle. In his answer, appellee set up a cross-action against appellant for damages for breach of contract based upon allegations that $9 of the principal of said note was for insurance which appellant was to procure on the automobile covered by the mortgage under an agreement entered into between appellant and appellee at the time said note was executed; it being alleged that appellant agreed to have said car insured for $300, with loss clause payable to itself, and that, had it not breached that agreement, appellee would have collected $250 from the insurance company when the automobile was damaged by fire. The note was executed in renewal of a prior note, and about four months before its execution appellant had procured a policy of insurance for a period of one year from the date of its issuance. It was the contention of appellant that $9.10 was added to the face of the note to reimburse it for the premium paid for .the policy theretofore issued and then in effect. Appellee’s contention was that $9 was added for the payment of a premium from the date of the renewal note for a period of one year. The car was damaged by fire within one year of the date of the renewal note, but after the expiration of the policy issued about four months before the date of the renewal note. A jury was demanded, and, in answer to special issues, made the following fact findings: (1) Appellant, through its agent, agreed with appellee, in consideration of a $9 charge, to insure the defendant’s car for a period of one year in the future from the date of the- execution of the renewal note; (2) the reasonable market value of appellee’s automobile immediately before the fire was $250; (3) its value immediately after the fire was $11.62.

Upon these findings of fact, judgment was rendered in favor of appellant upon the note and for a foreclosure of its mortgage lien, and judgment rendered in favor of appellee against appellant for $238.38, the difference between the value of the automobile immediately before and after the fire. From this judgment appellant, who was plaintiff below, has perfected an appeal to this court.

The first question for determination arises from appellee’s motion to strike appellant’s brief. We do not think it would be profitable to discuss this motion, for, as we interpret the acts of the 42d Legislature, c. 45, p. 68 (Vernon’s Ann. Civ. St. arts. 1757, 1846), we have no authority to dismiss a brief which complies with the standard there set up, notwithstanding the brief does not comply with the rules of court for briefing. The motion to strike is overruled.

The question is properly presented .that there was no evidence to support appel-lee’s cross-action, in that there was no testimony that appellant agreed to procure insurance against loss or damage by fire. An examination of the record discloses that nowhere is it alleged or proved what character of insurance appellant agreed to procure. We cannot assume that the insurance agreed upon was protection against loss or damage by fire. The burden was upon appellee to establish that fact, and that burden was not discharged by allegations and testimony merely that appellant agreed to procure Insurance.

The court did not submit to the jury the issue of whether or not appellant agreed to procure insurance on appellee’s ear, but instead submitted the issue whether or not appellant agreed “to insure” appellee’s car. An objection to this issue was timely filed on the ground that same was not supported by the evidence and pleadings. A contract to procure insurance is not the same as a contract to insure. We sustain the assignment presenting this question.

There was presented an issue of fact as to what amount of insurance, if any at all, appellant could have procured from an insurance company on the automobile on the date the renewal note was executed. No issue on that question was submitted to the jury or requested by appellee. The judgment rests alone upon findings of the value of the automobile immediately before and after the fire. There is no finding that ap-pellee could have recovered that amount under any insurance policy which could have been procured. If appellee was entitled to any damage against appellant, that damage was the amount which he would have received from an insurance company had a new policy of insurance been procured by appellant on the date the renewal note was executed. Mere findings of the difference in the value of the car before and after the fire are not sufficient to establish the damages suffered by appellee.

Reversed and remanded.


author: GALLAGHER, Chief Justice. •

text:
    SMITH et al. v. DUNNAM.
    No. 1336.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 16, 1933.
    J. M. Woods and P. O. Sanders, both of San Antonio, for appellants. .
    Forrest Campbell and Raymond Edwards, both of San Antonio, for appellee.
   GALLAGHER, Chief Justice. •

This suit was instituted by appellant Mrs. Josie Smith, for herself and as guardian of the persons and estates of her minor children, R. V. Smith, Jr., Margaret Smith, and Van Smith, to set aside a judgment of the district court awarding appellee, Edith Dunnam, recovery of an undivided one-half interest in a certain tract of land in the city of San Antonio, adjudging title to the other half of said tract to be in said minors and ordering said tract sold for partition. Appellant alleged that said tract of land was community property of her deceased husband, R. V. Smith, .Sr„ and herself; that during his lifetime they used and occupied the same as, a home for themselves and their minor children; that they owned no other property; that she and her children had used and occupied said tract of land as a home continuously since his death. She alleged that she had been duly appointed guardian of the persons and estates of the above-named children of herself and her ■ deceased husband. She further alleged that she had theretofore borrowed from appellee the sum of $1,200, and given a deed of trust on her undivided one-half interest in said tract of land to secure the same; that she had never abandoned her homestead use thereof, but, on the contrary, had continuously claimed the right to use and occupy the same as such; that, since said property at the time said deed of trust was executed was the homestead of herself and children, the same was void. She further alleged that thereafter, in a suit pending in the court in which this suit was filed, ap-pellee recovered a judgment against her individually and as guardian as aforesaid for an undivided one-half interest in said tract of land, and declaring title to the other undivided one-half thereof to be in said minors. She alleged that the court in said judgment further found and declared that said tract of land was subject to partition; that it was incapable of partition in kind, and appointed a receiver to sell the same to enable the court to divide the proceeds of such sale according to the respective interests of appellee and said wards. She prayed for a decree vacating and annulling said judgment and confirming title in her to an undivided one-half interest in said land.

Appellee presented a general demurrer to appellant's petition. The court heard and sustained the same and dismissed the cause. Hence this appeal.

Opinion.

Appellant’s specifications of error are all predicated upon the contention that the mortgage given by her to secure the loan made her by appellee was void, or, at least, that the rights, if any, acquired thereunder by appellee could not be asserted as a basis for requiring partition of .the property or disturbing appellant and her wards in the use and enjoyment of the same for homestead purposes. Appellant’s allegations are meager, and do not show a foreclosure of appellee’s lien on appellant’s undivided half interest in the land, but such foreclosure is conceded in appellant’s brief. The allegations of her petition do show affirmatively that the court, in the judgment sought to be set aside, found and adjudged title in appellee to an undivided half interest in said tract of land, and' ordered her interest therein segregated and set aside to her in severalty by the process of partition. Appellant does not assail the integrity of that judgment. She doés not in any way excuse herself for not presenting the matters urged as groqnd for setting the same aside, in the trial of that case, nor for not prosecuting an appeal from such judgment. Since she does not allege anything to the contrary, we must presume that she was duly cited in the suit in which such judgment was rendered, or that she appeared and answered therein. She was required to exercise due diligence to present and establish in the trial of that suit all her defenses to the relief sought by appellee therein. She was further required to seek correction of any errors committed in such trial by appeal or writ of error. In invoking the equitable powers of the court to vacate and annul such judgment, she should have alleged affirmatively that she had a meritorious defense to the rights and demands asserted by appellee in said cause which would probably produce a different result on another trial, and that she was prevented from presenting the same by fraud, mistake, or accident and without any want of proper diligence on her part. Winters Mutual Aid Ass’n, Circle No. 2 v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095, 1096, pars. 4 and 5, and authorities there cited; Humphrey v. Harrell (Tex. Com. App.) 29 S.W.(2d) 963, 964, pars. 2 et seq. Her allegations did not show a valid defense to the relief awarded appellee in said judgment. On the death of her husband her undivided half interest in said tract of land became subject to sale or incum-brance by her at her pleasure. Hartman v. Thomas, 37 Tex. 90, 91; Grothaus v. De Lopez, 57 Tex. 670. Her children, as against her, her vendee or mortgagee, had no homestead right therein. Ashe v. Yungst, 65 Tex. 631, 636; Shannon v. Gray, 59 Tex. 251, 252; Johnson v. Taylor, 43 Tex. 121, 122 (bottom . of page). Constitutional and statutory inhibitions against the partition of homesteads have no application when such action is sought by one who has lawfully acquired the interest of the surviving spouse therein. Savings & Loan Company v. Bristoll, 62 Tex. Civ. App. 387,131 S. W. 641 et seq. (writ refused); Williams v. Jones (Tex. Civ. App.) 106 S. W. 755, 756 et seq. (writ refused). Appellant also failed to allege any reason why the contentions urged by her herein were not presented and litigated in the former suit. Her allegations were insufficient to sustain an action to set said judgment aside, and appellee's general demurrer was properly sustained.

The judgment of the trial court is affirmed.


text:
    MAXWELL’S UNKNOWN HEIRS et al. v. BOLDING et al.
    No. 1006.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1933.

      H. E. Chesley, of Hamilton, and Wilkinson & Wilkinson, of Brownwood, for appellants.
    A. R. Eidson, of Hamilton, for appellees.
   ALEXANDER, Justice.

This is an application filed in this court by A. L. Maxwell and others for an injunction restraining Lillian Bolding and others from levying upon and soiling under execution certain property belonging to petitioners in satisfaction of the court costs incurred in a certain cause theretofore pending between them in the district court of Hamilton county.

Lilliam Bolding and others, who are the respondents in the above petition and who will hereinafter be referred to as appellees, filed suit ip the district court of Hamilton county against the unknown heirs of James Maxwell, deceased, who are the petitioners here-' in and who will be referred to as appellants, for partition of the community estate of William Maxwell and Mollie Maxwell, both deceased. The first trial in that court resulted in a judgment for the plaintiffs therein, but upon appeal to this court the judgment of the trial court was reversed and the cause remanded for new trial. See 11 S.W. (2d) 814. Upon the second trial judgment was for the plaintiffs therein and the property was ordered partitioned among the plaintiffs and the defendants. The trial court apportioned the costs of both trials among the plaintiffs and defendants, four-sevenths to the plaintiffs and three-sevenths to the de-' fendants, in proportion to the value of the property awarded to each, as provided in Revised Statutes, article 6109. On appeal to this court the judgment of the trial court was affirmed. 86 S.W.(2d) 267. In the order of affirmance it was recited that the appellants and their sureties “shall pay all costs in this behalf expended.” The appellants paid all costs of appeal and the mandate issued out of this court. Thereafter Lillian Bolding and others, appellees in said suit, caused an execution to issue out of the trial court for all costs incurred in both trials in that court and caused same to be levied upon the property of the appellants in said cause. The appellants offered to pay their pro rata share of the court costs so incurred in accordance with the judgment of the trial court, but the appellees declined to accept same in settlement of the cost awarded by said judgment. The appellants applied to this court and secured the issuance of a temporary writ of injunction restraining the sale of said property under said execution. The matter is now before this court to have said injunction made permanent.

The language of the judgment of this court, as shown by its mandate on the last appeal, to the effect that appellants and their sureties “shall pay all costs in this behalf expended,” had reference only to the costs incurred incident to the appeal and not to any costs incurred in the trial court. Bonner v. Wiggins, 54 Tex. 149; Gulf, C. & S. F. Ry. Co. v. Hume (Tex. Sup.) 30 S. W. 863. All costs incident to the appeal have been paid by the appellants and such costs are not involved in this controversy. The only question to be determined is: Who is liable for tbe costs incurred in tbe trial court?

As before stated, tbe trial court apportioned tbe costs incurred in botb trials among tbe parties, plaintiffs and defendants, in proportion to tbe amount of property ■awarded to each of them. Tbe appellees now contend that tbe appellants are liable for all sucb costs, while tbe appellants contend tbat they are not liable for any part of tbe costs of tbe first trial. Since this court affirmed the judgment of tbe trial court, it necessarily affirmed that part of tbe judgment which apportioned tbe costs among tbe plaintiffs and defendants therein, even though sucb cost was not specifically referred to in tbe judgment of this court. Summerhill v. Darrow (Tex. Sup.) 62 S. W. 1054, par. 3. That judgment has become final and determines the issues here involved unless this court was without authority to render 'sucb judgment.

Tbe appellees contend that under tbe provisions of Revised Statutes, article 2065, .upon affirmance of tbe judgment of tbe trial .court, tbe appellants, as a matter of law, became liable for all costs incurred in tbe trial .court. Said article 2065 provides as follows: “When a case is appealed, if tbe judgment of tbe higher court be against tbe appellant, but for less amount than tbe original judgment, sucb party shall recover tbe costs of tbe higher court but shall be adjudged to pay tbe costs of tbe court below; if tbe judgment be against him for the same or a greater amount than in tbe court below, the adverse party shall recover tbe costs of botb courts. If tbe judgment of tbe court above be in favor of tbe party appealing and for more than tbe original judgment, such party shall recover tbe costs of botb courts; if tbe judgment be in bis favor, but for tbe same or a less amount than in tbe court below, be shall recover tbe costs of the court below and pay tbe cost of the court above.” Tbe above article was enacted for tbe purpose of prescribing tbe rule to be followed in assessing, the costs in tbe county court where a case has been removed thereto by appeal or certiorari from tbe justice court, and' does not have reference to tbe assessment of costs by tbe Court of Civil Appeals. This is apparent from tbe provisions of Revised Statutes 1911, articles - 2046 and 2047, from which article 2065 of Revised Statutes 1925 was taken. Said articles 2046 and 2047 constitute) a part of tbe chapter regulating practice in the county and district courts and deal with cases removed thereto by appeal or certiorari. These articles were taken from tbe Acts of 1870, page 87 (Paschal’s Digest, §§ 6348 and 6349), which dealt specifically with cases removed from tbe justice court to the district 'court. Tbe matter of assessing costs by the Court of Civil Appeals is regulated by Revised Statutes 1925, articles 1857, 1860, and 1870. We therefore bold that said article 2065 does not control in tbe matter here under consideration.

While tbe general rule is that tbe litigant who is successful in tbe trial court is entitled to recover of bis adversary all costs, a review of the various provisions of tbe statute discloses that this rule does not always prevail. For example, it is provided in article 2056 that tbe successful party shall recover of bis adversary all costs incurred therein, except as otherwise provided. Article 2066 provides that tbe court may, for good cause to be stated on tbe record, adjudge tbe costs otherwise. Article 6109 provides that in partition suits tbe costs shall be apportioned between tbe parties in proportion to tbe property allotted to each. Where a litigant is successful in having a part of tbe costs adjudged against bis adversary in tbe lower court under either article 2066 or 6109, be should not be penalized merely because be is dissatisfied with sucb judgment and elects to appeal therefrom; yet such would be tbe result if be should be unsuccessful in bis appeal and if we should apply tbe provisions of article 2065 in assessing tbe costs. He would not only subject himself to liability for tbe costs incident to and brought about by tbe appeal, which would be proper, but he would subject himself to tbe penalty of having to pay all costs incurred iu the trial court. He would thus lose a part of tbe benefits recovered in tbe lower court merely because be, in good faith, elected to test tbe sufficiency of tbe judgment by appeal. We cannot assume that tbe Legislature intended to thus assess a penalty against a party who prosecutes bis appeal in good faith, though unsuccessfully. Tbe penalty for prosecuting a vexatious appeal is prescribed by Revised Statutes, article 1860.

We are of tbe opinion that when we affirmed tbe judgment of tbe trial court, we properly affirmed that part of tbe judgment apportioning tbe costs of both trials therein among tbe parties plaintiffs and defendants, and that appellants should be held liable for ■ only sucb part of said costs as was adjudged against them in tbe trial court.

Since tbe judgment of tbe trial court was affirmed by this court, it thereby became tbe judgment of this court, and we have a right, and it becomes our duty, to protect said judgment and to see that it is properly enforced. 11 Tex. Jur. 908, § 131; Cattlemen’s Trust Co. v. Willis (Tex. Civ. App.) 179 S. W. 1115; Browning-Ferris Machinery Co. v. Thomson (Tex. Civ. App.) 55 S.W.(2d) 168.

Tbe appellees are entitled to collect from tbe appellants only sucb portion of tbe costs as was awarded against them by tbe trial court. Upon tbe payment of that part of tbe costs into the registry of the trial court by tbe appellants, tbe temporary injunction heretofore issued herein will be made permanent.