text:
    JENKINS et al. v. PURE OIL CO.
    No. 11035.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 1, 1932.
    Lightfoot & Robertson, of Fort Worth, A. A. Dawson, of Canton, and Saner, Saner & Jack, of Dallas, for appellants.
    Vinson, Elkins, Sweeton & Weems and David T. Searls, all of Houston, for appel-lee.
   VAUGHAN, J.

This is an appeal prosecuted by Wallace Jenkins, Roy Jenkins, Myer Rabinowitz, M. E. Davis, and Mrs. Nettie Davis, as appellants, from a judgment rendered on February 14, 1931, in favor of the Pure Oil Company, a private corporation, appellee, against appellants and V. T. Davis, Mary Davis, and R. O. Wylie, defendants. Appellee pleaded the usual action of trespass to try title, and in addition thereto alleged that on June 9, 1927, V. T. Davis and wife, Mary Davis, executed an oil, gas, and mineral lease in favor of one E. G. Lewis, conveying, in fee simple, oil, gas, and mineral, except a one-eighth royalty in, on, and under 199.8 acres of land in Van Zandt county, Tex., except ten acres sold to W. V. Slaton, and 50 acres sold to M. E. Davis, said tract of land being duly described by field notes; that said Lewis assigned said lease to appellee; that the appellants Roy Jenkins, Wallace Jenkins, and Myer Rabino-witz obtained an oil lease from appellants M. E. Davis and wife, Nettie Davis, covering 66 acres of land out of the 199.8 acre tract, and were attempting to drill a well thereon, and prayed for a writ of injunction restraining appellants from drilling on said land, and for judgment canceling the lease and any' claim of the appellants in and to the land. Appellants filed their motion to dissolve said writ of injunction, which was heard and granted by the court on July 10, 1930.

By their second amended original answer, appellants, in addition to a general demurrer, certain special exceptions, general denial, and plea of not guilty, alleged that they had developed said 66-acre tract for mineral pur-, poses, acting in good faith, and believing they had good and valid title thereto, and had made permanent and valuable improvements on said 66 acres of land, completing an oil well thereon, and equipping the same at a reasonable cost. The improvements so claimed to have been made were specified, with the aggregate costs thereof alleged to be the sum of $32,250. They prayed in the alternative that they have judgment- for the improvements so made in good faith. The defendants Y. T. Davis and Mary Davis filed their answer disclaiming any interest in the 66 acres of land involved in this suit, or'to the mineral right in, on, or under said land, and alleged that they did not own the land in controversy on June 9, 1927, when they executed and delivered the oil and gas lease; that such acreage was included in the lease to E. G. Lewis through error, and that since the discovery of said error they had refused to accept rentals covering said 66 acres, and had tendered back the nominal amount so received.

The evidence, without dispute, established the following facts, viz.: That on November 1, 1920, V. T. Davis and wife, Mary Davis, being the owners of the 199.8 acres of land described in the field notes in the mineral lease executed by them to E. G. Lewis, conveyed to their son, appellant M. E. Davis, the involved 66-acre tract out of said original tract, as shown by their deed of that date, which had been duly recorded prior to the execution of the mineral lease to Lewis. To sustain its cause of action, appellee assumed the position that on October 6, 1926, appellants M. E. Davis and wife, Nettie Davis, executed a deed to said Y. T. Davis, reconveying to him said 66 acres of land, whereby V. T. Davis became and was. the owne.r of the entire tract. when the oil and gas lease was executed by himself and wife to Lewis on June 9, 1927.

Appellants countered said contention by claiming that no such deed reconveying said 66 acres of land to Y. T. Davis was ever executed, acknowledged, or delivered, but, on the contrary, that appellants M. E. Davis and wife, Nettie Davis, remained the owners of said 66-acre tract’ of land at all times after the execution of the deed by V. T. Davis and wife to said M. E. Davis in 1920. The appellants Roy Jenkins and Wallace Jenkins also sought, in the alternative, to recover the value of the improvements made by them on said land whereby and on account thereof the value of the mineral lease on, as well as the value of the involved land, was enhanced by reason of the drilling and completing of a producing oil well upon said land, as alleged by them.

Following are, in effect, the special issues submitted and answers made thereto by the. jury:

(1) That M. E. Davis and wife on or about October 6, 1926, signed and acknowledged a deed of conveyance to V. T. Davis covering the 66 acres of land in controversy.
(2) That M. E. Davis and wife on or about said date delivered said deed to said V. T. Davis.
(3) That Roy Jenkins and Wallace Jenkins, acting in good faith and under an honest and reasonable belief that they had good title to the leasehold, drilled and equipped an oil well on said tract of land.
(4) That the reasonable cost of drilling said well was $15,000.
(5) That the reasonable cost of the necessary equipment of said oil well was $7,500.
(6) That the reasonable value of the well equipment which could be moved without injury or damage to the well and its operation was $7,500.
(7) That the value of the mineral lease on the 66 acres immediately before the drilling and equipping of the well thereon was $400 per acre.
(8) That the value of the mineral lease after the drilling and equipping of the well was $1,000 per acre.

Appellee and appellants respectively moved for judgment on said verdict. The court sustained appellee’s motion, and entered judgment in its favor against all of the adverse parties to the suit, vesting in it title and possession of the oil, gas, and mineral estate, except one-eighth royalty, in and to the involved 66-acre tract, and further provided that appellants recover nothing of appellee by reason of their plea of improvements in good faith, and accorded to appellant's the right to go upon''said tract and remove the equipment placed thereon by them.

It. is contended by appellants that tbie court erred in not dismissing appellee’s suit, on the ground that it failed to introduce proof showing that a permit to do business in the state of Texas had been issued to it as a foreign corporation, or that a permit had been issued to it to establish a general or special office in the state.

In its first amended original petition, ap-pellee alleged: “That plaintiff is a foreign corporation, organized under and by virtue of the laws of the State of Ohio, having a permit to do business in the State of Texas, duly issued to it under and by virtue of the laws of said State, and with its home office and principal place of business in said State in the City of Port Worth, Tarrant County,” and also alleged that it owned the oil and gas lease in controversy, was in possession of the same, and that the defendants unlawfully dispossessed it of the premises; that Y. T. Davis and wife executed the oil and gas lease in question to E. G. Lewis; that E. G. Lewis assigned said lease to appellee, which assignment was filed for record in the office of the county clerk of Van Zandt county, Tex.; that by virtue of said assignment appellee became, and is, the owner of the oil and gas lease referred to, and is now, and has been continuously since the time of said assignment, in possession of said lease ; that it has satisfactorily performed all of said obligations of said lease contract, including the payment of rentals as and when due. Appellants’ answer included a general denial. A careful inspection of the statement of facts failed to show that appellee introduced any evidence to establish that a permit authorizing it to do business in the state of Texas, or to establish a general or special office in said state, had been issued, as alleged. Appellants, in due time and form, requested the court to instruct the jury to return a verdict for the defendants, which was refused. In their motion for a new trial, appellants pointed out as error the failure of appellee to prove that it had a permit authorizing it to do business in the state of Texas, or to establish a general or special office in said state.

P. R. Smith, witness for appellee, testified in.its behalf as follows, viz.: That he lived in Port Worth, Tex., and was connected with the Pure Oil Company as assistant manager of the Texas production division, and had general supervision of all its producing properties and lands in Texas; that Ap-pellee owned and operated a number of producing oil wells in the Van oil field in Van Zandt county, Tex., near the land in controversy. Under the following authorities this proposition must be sustained: Articles 1529 and 1536, R. C. S. 1925; 11 Tex. Jur. 185, § 506; Taber v. Interstate Bldg. & Loan Ass’n, 91 Tex. 92, 40 S. W. 954; Victor Refining Co. v. City Nat. Bank of Commerce (Tex. Civ. App.) 263 S. W. 622; Stanard v. Cantwell (Tex. Civ. App.) 286 S. W. 760; First State Bank v. Janellen Oil Co. (Tex. Civ. App.) 275 S. W. 210; Turner v. National Cotton Co., 50 Tex. Civ. App. 468, 109 S. W. 1112; Oklahoma Tool & Supply Co. v. Daniels et al. (Tex. Com. App.) 290 S. W. 727, 728; General Motors Acceptance Corp. v. Mc-Cracken (Tex. Civ. App.) 48 S.W.(2d) 480.

Appellee attempts to distinguish the Taber Case, supra, by stating facts in that case indicating the contract was executed in Texas, and therefore should be distinguished from the instant case. If the case at bar should be determined by what the evidence shows, rather than by the allegations of ap-pellee’s petition, then it must be apparent that the fact that the evidence offered .by appellee established that it was at the time in question, and is now, engaged in operating and drilling numerous oil wélls in the Van oil field in Texas; that it has its office in Port Worth, Tex., and also various offices and agencies in Van Zandt county, Tex., as well as various other facts indicating that it was conducting and is conducting intrastate business in Texas, as well as having its office and agency located therein; that the Taber Caso is even more directly in point in determining the instant case in favor of appellants’ position than when judged on the basis of the; pleadings alone. The conclusion is therefore inevitable that appellee’s failure to prove that it had a permit authorizing it to transact business in Texas, or to establish an office in Texas, prohibited judgment from being entered in its favor. The provisions of article 1529, supra, not only require a foreign corporation to have a pérmit to transact intrastate business in this state, but also such permit where a foreign corporation establishes a general or special office in this state. The distinction is thus pointed out in the case of Oklahoma Tool & Supply Co. v. Daniels et al., supra, viz.: “.It is thus seen that no foreign corporation is required to take out a permit fr.om our secretary of state, except one who desires ‘to transact or solicit business’ in this state, or to establish an office here.”

Appellants’ second proposition refers to the action of the trial court in permitting appellee to prove by nine witnesses the good reputation of its witness, W. II. Cook, for honesty and fair dealing, and for truth and veracity. The witness Cook was offered by appellee in its attempt to prove that on October 6, 1926, appellants M. E. Davis and wife, Nettie Davis, acknowledged before him. as a notary public of Van Zandt county, a deed in favor of .defendant V. T. Davis, conveying to him the 66-acre tract of land in controversy. The main question involved in this ease being whether or not appellants M. E. Davis and wife, Nettie Davis, executed and acknowledged a deed . conveying the involved 66 acres to V. T. Davis; the testimony of said witness Cook became very material to appellee upon this issue. No such 'deed was ever filed for record, or its existence at the time of the trial established. Appellee, in its effort to show that such a deed was duly executed and delivered, introduced the notary’s record of and kept by the witness Cook, viz., the entry made therein showing that on October 6, 1926, M. E. Davis and wife, Nettie Davis, executed a deed to V. T. Davis, to land in school survey No. 620 in Van Zandt county. The acreage or other details of description of the property conveyed were not shown by the entry made in said record. Cook testified that he relied largely upon the record in his book; that he had no independent recollection as to the terms, conditions, description of the property, or other provision of the deed referred to in his record; that he did remember the occasion of M. E. Davis and wife and V. T. Davis and wife coming over to his house to sign some papers. To the contrary, both M. E. Davis and wife, Nettie Davis, testified positively that they did not execute and acknowledge a deed conveying the 66 acres in controversy to V. T. Davis before said W. H. Cook, as a notary. In this situation, the question of accuracy of the entry made by W. H. Cook in his notary record, so offered in evidence, became very material. His testimony was that he made the entry a few days after the date thereof, as contained in said record. From the face of said record, viz., the entry of other acknowledgments made before said Cook, it appears that the dates of other instruments acknowledged before him were not in consecutive order, which said witness attempted to explain by saying that he had changed the method of entering the various records of acknowledgments taken by him. Of the situation thus presented upon this vital issue, the question of whether the witness Cook made the entry in his record book at the date of the purported acknowledgments, or whether he made such entries a month, three months, a year, or three years later, logically became vitally important. In this connection and bearing upon the situation thus produced, it is but reasonable to assume that appellants offered the testimony of W. A. Weaver, a handwriting expert, who testified that, at the request of appellants, on August 27,1930, he examined the entry contained in said notary record purporting to contain the record of the acknowledgment of a deed executed by M. E. Davis and wife, Nettie Davis, to V. T. Davis under date of October 6, 1926, and that in his opinion the writing constituting the record of the acknowledgment of said deed, as entered in said notary’s record, had not been on the paper more than three months at the time he made his examination thereof. The testimony of the witness Weaver bore upon and had reference to the question of when the entries were actually made in the notary’s record, and hence upon the accuracy with which the entries may have been made in said notary’s record.

A careful examination of the statement of facts failed to show that appellants in any manner attacked or attempted to impeach the witness Cook as to his reputation for truth and veracity, or for honesty and fair dealing. Under the evidence, there was merely a contradiction as to the facts herein referred to. It doth now appear to be well settled that, under the above facts, the appellee should not have been permitted to bolster up the testimony of its witness Cook by proof of good reputation for truth and veracity, or for honesty and fair dealing. Such we understand to be the holding in Missouri, K. & T. Ry. Co. v. Williams, 63 Tex. Civ. App. 368, 133 S. W. 499, 501, opinion delivered for this court by Chief Justice Rainey, viz.: “Testimony offered to sustain the good character of a witness for truth and veracity is not admissible unless an attempt has been made by the opposite side to impeach such character. Every witness is presumed to be truthful until the contrary is shown, and the contradiction of a witness by other witnesses testifying differently is not such an attack upon the character for truth and veracity as authorizes the introduction of testimony sustaining the general character for truth and veracity.”

To the same effect are the holdings in the following cases, viz.: Gulf, C. & S. E. Ry. Co. v. Younger (Tex. Civ. App.) 40 S. W. 423; Houston Electric Co. v. Jones, 61 Tex. Civ. App. 281, 129 S. W. 863; Jones-O’Neal Furniture Co. v. Jones (Tex. Civ. App.) 269 S. W. 180; Blumrosen v. Burke (Tex. Civ. App.) 296 S. W. 987; New Amsterdam Co. v. Par-ham (Tex. Civ. App.) 2 S.W.(2d) 866; Shell Pipe Line Corp. v. Coston (Tex. Civ. App.) 35 S.W.(2d) 1056. In Jones on Evidence (2d Ed.) § 868, it is said: “Although the contradiction in his statements may tend to show that he ought not to be believed in the particular case, this does not necessarily touch his general good character for truth or integrity, since the inconsistency may be the result of mistake or forgetfulness. On the same principle, and for still stronger reasons, it is no ground for the introduction bf evidence to sustain the character of a witness that other witnesses have contradicted him by testifying to a different state of facts, and this remains true, although the contradiction is of such a character as to incidentally impute immorality or crime.”

That some of the opinions of our appella'te courts are in conflict with the holdings in the above authorities must be conceded; yet whatever 'confusion that existed in our decisions with reference to the point here discussed, the same is conclusively determined and the correct rule announced in the recent casé of Grant et al. v. Pendley et al. (Tex. Com. App. Sec. B) 39 S.W.(2d) 596, 78 A. L. R. 638, the opinion being delivered by Judge Leddy, from which we make the following quotation: “The authorities on the question as to permitting supporting evidence of general reputation for honesty and fair dealing and truth and veracity by a party in a civil case, where his adversary has by pleadings and evidence charged him with the commission of a crime involving moral turpitude or the perpetration of an intentional fraud, are somewhat in conflict. The overwhelming weight of authority, however, denies the right to introduce this character of evidence in any civil action except where the character of a party by the nature of the action is squarely at issue, or where it is offered for the purpose of supporting the testimony of a witness who has been directly impeached. As the question is one of considerable importance, it may be well to briefly examine the pronouncement of the leading text-writers and authorities upon this subject.” (Authorities examined omitted.) “It is a far safer rule that controversies between citizens should be decided upon facts having a direct bearing upon the issues between them rather than upon mere opinions of partisan friends as to the relative standing of the parties to the litigation. We therefore announce the rule to be that supporting evidence of good character, either for truth and veracity or honesty and fair dealing, should only be admitted in those eases where the nature of the action directly involves the character of a party, where a witness has been impeached, or where a party by his pleading or evidence charges his adversary with the commission of a crime involving moral turpitude.”

The words “directly impeached,” in our opinion, has reference to and only embraces the idea of impeaching a witness where (a) the adverse party has introduced evidence of contradictory statements of a witness made outside of the trial, or (b) proof to the effect .that his general reputation for truth and veracity, or for honesty and fair dealing, was bad; for in no other way can we conceive how the reputation of a witness may be directly attacked by the adverse party, as mere contradictory statements, nor even ■ such as may be of the character to in any méásure import immorality or crime, will not necessarily touch the general good character of a witness for truth and veracity, or honesty and fair dealing.

It is evident that the facts in the present case do not bring it within the rule announced in Grant v. I’endley, supra. Appellants did not, by their pleadings or evidence, charge the appellee or its witness Cook with the commission of a crime' involving moral turpitude; therefore, the only possible condition under which such supporting testimony could be offered would have resulted, if the appellants had directly attacked and impeached the witness Cook, in one of the methods above designated. This condition was not created by the testimony of the witness Weaver, introduced by appellants to contradict or discredit the testimony of said Cook. The bolstering up of Cook’s testimony by proof of his reputation for truth and veracity, honesty and fair dealing, by nine witnesses was, we think, very harmful to the appellants, in that it is apparent that the introduction of said testimony of and to'the good reputation of witness Cook, who had hot been impeached by appellants, evidently confused the jurors to such an extent that they considered and passed upon such collateral matter, rather than the material issue and facts bearing thereon before them. Therefore this assignment is sustained.

By its third proposition, appellants contend that the court erred in refusing to peremptorily instruct the jury to find in their favor, on the ground that the evidence was not sufficient to require the submission of an issue as to whether or not appellants M. E. and Nettie Davis executed and acknowledge ed a deed in favor of V. T. Davis, reeonvey-ing the 66 acres of land in controversy; and by their fourth proposition present the contention that the trial court erred in not setting aside the finding of the jury that such deed was so executed and acknowledged, as being against the overwhelming weight of the evidence. We have carefully considered the entire record bearing upon all issues presented by this appeal, especially the two propositions under discussion, and have reached the conclusion that the evidence, considered as a whole, was sufficient to require submission of the issue as to the execution of said deed, as well as to warrant the court in overruling that ground of appellants’ motion for a new trial that challenged the sufficiency of the evidence to sustain the finding of the jury on the issue submitted as to the execution of the deed by appellants 3VI. E. and Nettie Davis to V. T. Davis, conveying the involved tract of land. In view of the fact that this case must be reversed and remanded for further proceedings, we refrain from further discussing the probative effect of the evidence. Nevertheless, as being peculiarly applicable to the facts of the instant case, we feel constrained to call attention to the following rule of law as to the character and weight of evidence that should be- adduced to prove the execution of a deed of conveyance to real estate: “The execution and delivery of a deed may be proved by circumstantial evidence, but the circumstances must be of such a -convincing and cogent nature as to produce actual conviction. Bounds v. Little, 75 Tex. 316, 12 S. W. 1109; Walker v. Garadine, 78 Tex. 489, 15 S. W. 31. The deed in question, from Cohn to Harmon, had no sanctity, or presumption of execution, given it by lapse of time, but it comes as a deed executed a few years since and never mentioned until P. Cohn’s lips were closed in death. Great caution should be exercised in weighing evidence of the execution of a deed of which there is nothing but circumstance upon which to depend. Proof of deeds under such circumstances offers too rich a field for fraud and deception.” Silverman et al. v. Ponce (Tex. Civ. App.) 268 S. W. 497, 498. To the same effect is the holding in the case of Massie v. Hutcheson et al. (Tex. Civ. App.) 258 S. W. 244. In 38 C. J. § 24, the general rule is stated, viz.: “ * * * The evidence of the former .existence, execution, delivery, loss and contents of the lost instrument should be clear and convincing, or at least preponderating. The rule applies with especial force when it is sought to establish a lost instrument as a muniment of title. * * *»

Appellants, by their seventh proposition, present for review as reversible error the refusal of the trial court to enter judgment in their favor against appellee for improvements made in good faith on the involved tract of land under the findings of the jury. In view of another trial of this cause, we are called upon to announce our views anent the correct rule of law applicable to the phase of the case now under discussion.

Appellee contends that the trial court properly refused to render judgment on the findings of the jury in favor of appellants on this branch of the case, on the ground that the drilling of the well did not constitute a permanent improvement, as the easing and other equipment constituted personal property and could be removed; and, further, that appellants did not act in good faith because they drilled the well at a time when they knew the suit was pending.

In addition to the above, and for the first time, appellee presented on this appeal the additional question, viz., that appellants are not entitled to recover for improvements made by them in good faith on the mineral lease by reason of the fact that appellants’ pleadings were not sufficient to justify the awarding of such equitable relief.

As to this feature of the ease, appellee, in support of its position, urges that the pleadings of appellants only based their grounds for relief, as to improvements made in good faith, upon the provisions of the trespass to try title statute, viz., articles 7393 and 7394, R. S. 1925. This contention places appellee in the position of contending that it brought its suit merely in trespass , tq try title, and that the appellants, in reply and answer thereto, sought to recover for the improvements claimed to have been made, under the terms of the trespass to try title suit..

What -of the status’ of appellee’s pleadings? This becomes a material inquiry. Appellee’s petition, in addition to containing a count in the usual form of trespass to try title, contains another count in which it expressly alleges that it is claiming under a lease executed by Y. T. Davis and wife; that appellants, claiming under a lease executed by M. E. Davis, had entered into a conspiracy to fraudulently deprive appellee of the benefit of the oil, gas, and minerals of the said land; that “plaintiff had no adequate remedy and must resort to the equity powers of this court for the conservation of its property and property rights” ; that appellee is entitled to an injunction restraining appellants from going upon the land, or removing the minerals therefrom; and that the claim of the appellants has cast a cloud upon appellee’s title to said lease; and that appellee is entitled to have the cloud removed and to have the purported lease under which appellants claim canceled and held for naught. Appellee prayed for a temporary writ of injunction, that same be made perpetual, for judgment removing cloud cast upon its title, for cancellation of lease executed by M. E. Davis, under which appellants claimed, for title and possession of the mineral estate.

It is clear from the above allegations that appellee’s petition was not only in trespass to try title, but, in addition, was an equitable-proceeding for cancellation of appellants' lease, to .remove cloud from title, and for temporary and perpetual injunction. Therefore appellants’ right to recover on their claim of improvements in good faith does not rest upon, nor is confined to, the statutory requirements of articles 7393-7401, R. O. S. of 1925, providing for the recovery of the value of improvements made in good faith in an action of trespass to try title; this, because aside from said statute and in addition thereto, the case, as presented by the parties hereto, would authorize, under proof sustaining same, appellants to recover judgment against the ap-pellee for improvements made in good faith, and enhancing the value of its mineral lease of the involved 66 acres of land on general equitable principles. Mulholland v. Jolly et al. (Tex. Civ. App.) 17 S.W.(2d) 1109, 1111, in this case the court held:

“He [the plaintiff] was seeking equitable relief, and, in order to obtain it, was compelled to do equity by paying for the permanent improvements and refunding amounts paid to protect the title to the land.
“This equitable principle is thus stated in Pomeroy, Equity Jurisprudence, § 1241: ‘The right to a contribution or reimbursement from the owner, and the equitable lien on the property benefited as a security therefor, have been extended to other eases where a party innocently and in good faith, though under a-, mistake as to the true condition of the title, makes improvements or repairs or other expenditures which permanently increase the value of the property, so that the real owner when he seeks the aid of equity to establish his right to the property itself, or to enforce some equitable claim upon it, having been substantially benefited, is required, upon principles of justice and equity, to repay the amount expended.’ The text is supported by quite an array of decisions cited in footnote.
“The rule laid down by Pomeroy has been followed at all times by the courts of Texas. Sartain v. Hamilton, 12 Tex. 219, 62 Am. Dec. 524; Dorn v. Dunham, 24 Tex. 366; Saunders v. Wilson, 19 Tex. 200; Hill v. Spear, 48 Tex. 583; French v. Grenet, 57 Tex. 273; Van Zandt v. Brantley, 16 Tex. Civ. App. 420, 42 S. W. 617.”

The contention on the part of appellee, that the drilling of 'the well did not constitute a permanent improvement, under the facts of this case, cannot be sustained. In the case of Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, 171, Ann. Cas. 1913A, 559, we find the following rule of law announced by Justice Brown, speaking for the court: “The law will determine the rights of the parties, but equity will adjust the account between them upon the doctrine which applies to innocent purchasers in good faith who make improvements upon land which adds to its value. The owner gets his property, and the innocent occupant is remunerated for his labor and money expended in making the improvements.” To the same effect is the holding in the following cases, namely: Right of Way Oil Co. et al. v. Gladys City Oil, Gas & Mfg. Co. et al., 106 Tex. 94, 157 S. W. 737, 51 L. R. A. (N. S.) 268; Gilmore et al. v. O’Neil et al. (Tex. Civ. App.) 139 S. W. 1162; Taylor v. Higgins Oil & Fuel Co. (Tex. Civ. App.) 2 S. W.(2d) 288.

As to appellee’s contention that appellants did not and could not have acted in good faith in placing the improvements on the involved tract of land, as alleged by them, because they drilled the well on the 66-acre tract of land at a time when they knew that appellee’s suit was pending against them, we do not think, under the facts of this case, authorized the denial of a recovery by appellants under the findings of the jury on the issue submitted, in reference to the improvements so claimed to have been made. This, ■because in support of their plea of improvements in good faith, appellants offered testimony, which we will not here in detail discuss, that 'clearly raised the issue in their favor, namely: That they honestly believed ■that .the title asserted by them was superior to that claimed by appellee; further, that they knew of every fact affecting their record title as well as that of appellee’s; also of the rights asserted by appellee resting in parole, as testified to at the hearing to dissolve the temporary writ of injunction. From this, taken in connection with other probative circumstances not necessary here to be reviewed and apparent from the statement of facts before us, the conclusion may readily be drawn that the contention of appellants upon this issue of having made the improvements claimed by' them in good faith “rests upon the sole ground that they honestly misjudged the law,” this notwithstanding appellants had knowledge before the making of such improvements that appellee had asserted its adverse .title by the filing of this suit. Houston Prod. Co. v. Mecom Oil Co. (Tex. Civ. App.) 22 S.W. (2d) 973; Taylor v. Higgins Oil & Fuel Co., supra.

Because of the material errors herein set out, the judgment of the court below is reversed and remanded for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: LOONEY, J. JONES, C. J.

license: Public Domain

text:
    INDEMNITY INS. CO. OF NORTH AMERICA v. MURPHY.
    No. 11277.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 17, 1932.
    Rehearing Denied Oct. 22, 1932.

      Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.
    White & Xarborough, of Dallas, for appellee.
   LOONEY, J.

This case arose under the Workmen’s Compensation Law. T. A. Murphy was an employee of Smith Bros., Inc., a subscriber who carried a policy of workmen’s compensation insurance, covering its employees, with the Indemnity Insurance Company of North America. Murphy, having received injuries in the coutse of his employment and refusing to abide by the final decision of the Industrial Accident Board, filed this suit in the court below to set aside its award, etc. The case was tried to a jury, and upon their findings the court set aside the award and gave Murphy compensation as for total permanent incapacity at the rate of $17.31 per week, and, after deducting $173.10, amount previously paid appellee by the insurance company, rendered a lump sum judgment in his favor for $6,074.76, directing that one-third be paid to White & Yarborough, appellee’s attorneys, from which the indemnity company appealed.

A defense urged by appellant was that, on March 31, 1930, it paid appellee $173.09, being for ten weeks’ disability at the rate of $17.31 per week, and that on receipt of said payment appellee signed a compensation settlement receipt agreeing that it was in full settlement of compensation due him for said injuries, and that the settlement receipt was filed by appellant with the Industrial Accident Board; however, there was neither allegation nor proof that the settlement was approved by said board; in fact, its subsequent action shows that the settlement was not approved. The legal validity of this transaction' is raised by appellant in several assignments, all of which, in our opinion, should be overruled for reasons which we will now state.

The pertinent provisions of the Workmen’s Compensation Law are these: Section 14 of article 8306 provides that: “No agreement by any employee to waive his rights to compensation under this law shall be valid.” In section 15 of said article we find that: “In cases where death or total permanent incapacity results from an injury, the liability of the association may be redeemed by payment of a lump sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board. This section shall be construed as excluding any other • character of lump sum settlement except as herein specified.” Section IS of said article expresses the intent and purpose of the law, as follows: “It is the purpose of this law that the compensation herein provided for shall be paid from week to week and as it accrues and directly to the person entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein.” Section 5 of article 8307 provides that: “All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the board. * * * ” Also in section 12 of article 8307 we read: “* * * Where the liability of the association or the extent of the injury -of the employee is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties.”

These provisions clearly indicate that the adjustment of compensation claims arising under the statute is intrusted primarily to the Industrial Accident Board, and that a claimant and the association cannot ágree among themselves so as to deprive the board of its jurisdiction.

This is no longer a debatable question, as the quoted provisions of the statute have heretofore been construed to prohibit all settlement contracts between beneficiaries and compensation insurers, unless approved by the Industrial Accident Board. See Employers’ Indemnity Corp. v. Woods (Tex. Civ. App.) 230 S. W. 461; same case by Commission of Appeals 243 S. W. 1085; also Indemnity Insurance Co., etc., v. Jones (Tex. Civ. App.) 299 S. W. 674. We therefore overrule all assignments in relation to this matter.

Prior to the announcement for trial, appellant moved the court to appoint a disinterested competent physician of its own choice to examine appellee, as provided by the statute. The" court refused the motion, and at the conclusion of the evidence the motion was renewed, with like result, but in overruling the same, the court said: “The defendant’s motion for the court to appoint a physician of its own choosing to examine the plaintiff is denied, as was a similar motion made by tbe defendant prior to tbe taking of testimony in tbe case. The court stated to counsel for tbe defendant in overruling tbe first motion made that he would grant a motion of tbe defendant, and appoint a physician for such purpose, to be selected by tbe defendant as provided in tbe Act of tbe 42nd Legislature Regular Session, which reads as follows: (Tbe court here quotes tbe statute referred to.) Tbe court now says to counsel for tbe defendant in overruling tbe motion as framed, that the court will grant a motion of tbe defendant and appoint a physician of the defendant’s own choosing for tbe purpose requested.’.’

Tbe facts bearing upon this issue are these: Appellee was injured January 28, 1930; immediate notices of tbe accident were given as provided by statute; appellant assumed liability, and prior to March 31, 1930, paid ap-pellee compensation amounting to $173.09; thereupon appellee returned to bis employment with Smith Bros., Inc., remaining until some time in July, 1930, during which time be was paid $30 per week wages as before. He testified that be did not go to work, but just *‘sat around”; while evidence for appellant is to the effect that, after returning on March 9, 1930, appellee worked until some time in July, when bis services were no longer required, but that be was not let out because of physical disability. On March 29,1930, about tbe time appellee resumed bis position with Smith Bros., Inc., Dr. Dexter H. Hardin, company physician who had treated appellee, made final report diagnosing tbe injuries as concussion of brain, trauma to brachial nerve branches and to left shoulder joint, that ap-pellee had, at that time, recovered and was capable of doing the same work as before being injured, and that he had suffered no permanent injury. After appellee’s services with Smith Bros., Inc., ended in July, 1930, White & Yarborough, his attorneys, began, actively, to urge the claim before the Industrial Accident Board, and in this connection furnished report of Dr. John F. Ford, appellee’s physician, who, after an examination September 16, 1930,.reported that appellee had been rendered totally and permanently disabled, and that the high blood pressure and brain injury will progressively grow worse as time passes. The Industrial Accident Board made an order requiring appellee to be examined November 24, 1930, by Dr. Howard Du Puy, who reported to the board that appellee had suffered no disability to his brain, although he might have headaches or dizziness at times, that he found temporary total disability for approximately six months from the date of the injury, January 28, 1930; and that appellee’s left shoulder presented a disability of 20 per cent., which will grow less with time and exercise. The board also had before it appel-lee’s affidavit in which he gave a full statement as to the origin of the accident and the extent of his injuries, and, upon the record thus made, rendered its final decision December 4, 1930, awarding appellee damages in the sum of $272.76, and ordered appellant to pay same, less the amount previously paid, also less attorneys’ fees. Dr. Ford testified that he examined appellee just preceding the trial (January 18-20, 1932) and found him in very much worse shape than when first seen by the witness in September, 1930.

The majority are of opinion, and so hold for the court, that there was no abuse of discretion, on the part of the trial court, in refusing appellant’s request to appoint a physician of the court’s own choice to examine appellee; hence all assignments relating to this matter are overruled. (To this holding, the writer dissents, and will state his reasons below.) Assignments not discussed have also been carefully considered, but, finding no reversible error, all assignments and propositions are overruled, and the judgment of the court below is affirmed.

Affirmed by the majority.

I assent to all- rulings except the action of the majority in overruling the assignments complaining of the abuse of discretion by the court in refusing to appoint a physician, of its choosing, to examine appellee at the time of the trial.

The only worth-while issue in the case relates to the extent of appellee’s injuries, and, this being true of so many compensation cases, doubtless furnished the reason for the provision found in section 4 of article 8307 (amended by the 42d Legislature (1931), chapter 102 [Vernon’s Ann. Oiv. St. art. 8307, § 4]) to the effect that: “The Board [or a court having jurisdiction of a case to set aside an award of the Board] may * * .* require any employee claiming to have sustained injury to submit himself for examination before such Board or someone acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board [or court, as the case may be} to a physician or physicians authorized to practice under the Laws of this State,” etc.

The experts differed widely in their opinions as to the seriousness and extent of ap-pellee’s injuries. Dr. Hardin, company physician, reported March 29, 1936, shortly after the accident, that appellee had suffered no permanent injury and would be able to resume normal labor about April 16, 1930; Dr. Du Puy, the board’s physician, reported November 24, 1930,, that appellee had sustained only a temporary total disability of approximately six months from the date of the injury, and a 20 per cent, disability to his left shoulder which would diminish with time and exercise; while Dr. Ford, appellee’s physician, reported in September,. 1930, that appellee had suffered a total permanent disability.

The board allowed appellee compensation for total incapacity for twelve weeks, ending April 20, 1930, and compensation for permanent partial incapacity (20 per cent, disability to shoulder) for 188 weeks additional. In arriving at its conclusions, the board seems to have been guided largely by the report of Dr. Du Puy, the disinterested expert. Just prior to the trial, in January, 1932, Dr. Eqrd, appellee’s physician, made a re-examination, and on the trial testified that plaintiff had suffered total permanent disability, and was in worse condition than when first examined by him. ■

In cases of this nature, the courts stress (lie importance of having the injured party examined by disinterested experts, and I am of opinion that such an examination at the time of the trial was reasonably necessary t o a proper ascertainment of the truth in the instant ease. In Texas Employers’, etc., v. Downing (Tex. Civ. App.) 218 S. W. 112, 119 (writ refused), the court used the following pertinent language:

“When the examination is to be made under the order of the court, it would seem obvious that an examination by disinterested experts chosen by the court, would be more conducive to the ascertainment of the truth than that of physicians selected by the plaintiff’s antagonist, whose examination and opinions are more apt to be partisan, and in the ordinary case it is more appropriate to request the court to name the examiners. R. C. D. vol. 14, p. 712; Richmond v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189.
“We are therefore of the opinion that if the facts are sufficient to show that an examination was reasonably necessary to a proper development of the truth of the issues for trial, the defendant ought not to lie precluded from complaining of the abuse of the discretion of the court in such matter, merely because it requested the court to appoint physicians, instead of naming the physicians itself' in the motion.”

Also see Richmond, etc., Co. v. Childress, 82 Ga. 719, 9 S. E. 602, 3 L. R. A. 808, 14 Am. St. Rep. 189; Meek v. Wheeler, Kelly & Hagney Inv. Co., 122 Kan. 69, 251 P. 184; Valier Coal Co. v. Industrial Commission, 320 Ill. 69, 150 N. E. 651.

The fact that, within about ten weeks after being injured, appellee resumed his position with Smith Bros., Inc., where he remained for several months, receiving the same wages as before, and apparently contented until his services were discontinued; that at the time of trial about fourteen months had elapsed since appellee was ex. amined by Dr. Du Puy, the disinterested expert appointed by the board; and the damages awarded by the jury being so far in excess of the amount allowed by the board upon substantially the same facts — these, and other facts constituting the record, induce the conviction, on my part, that the trial court committed reversible error in refusing to appoint a competent disinterested physician of its own choosing to examine appellee at the trial, for it is obvious that the testimony of such a witness would not have been amenable to the criticism of being biased, whereas, the testimony of any expert selected by the company would have been vulnerable to, and weakened by, such criticism. I think, therefore, that the judgment of the court below should have been reversed, and the cause remanded for further proceedings.

On Motion for Rehearing.

JONES, C. J.

The majority of this court deems it proper, on appellant’s motion for rehearing, to state the reasons that impelled the holding in the original opinion, to the effect that the trial' court did not abuse its discretion in refusing to grant appellant’s motion to require ap-pellee to submit to a medical examination by a physician chosen by the court. The rec-<?rd shows that the trial court, at the time the motion was submitted, informed appellant’s counsel, in effect, that the court would not on its own volition name the physician to conduct the requested medical examination, but, if appellant would name a physician, the court would appoint him and direct the appellee to submit to the examination. Appellant declined to name the physician to be appointed by the court, and the motion was thereupon overruled.

It thus appears that appellant could have secured the desired medical examination by a physician appointed by the court if it had suggested to the court the physician to be appointed, and that the failure to secure a medical examination of appellee, under authority of the court, resulted solely from this refusal of appellant. If appellant had named Dr. A as a competent and disinterested physician to make the examination, and the court had appointed him, such physician would have been the appointee of the court and not the appointee of appellant, and the examination would have been made by Dr. A as a representative of the court and not as a representative of either party. This was the course the trial court offered to pursue, and was not pursued, because of its rejection by appellant.

The procedure to be followed to secure a medical examination of an injured employee is given by certain provisions of chapter 102, p. 175, of the Laws of the Regular Session of the 42d Legislature (Vernon’s Ann. Civ. St. art. 8307, § 4). This is an act amending somewhat similar provisions of section 4 of article 8307, R. C. S. 1925, and the provisions pertinent to this inquiry read as follows : “The Board may make rules not inconsistent with this Law for carrying out and 'enforcing its provisions, and may require any employee claiming to have sustained injury te submit himself for examination before such Board or someone acting under its authority at some reasonable time and place within the State, and as often as may be reasonably ordered by the Board to a physician or physicians authorized to practice under the Laws of this State. If the employee or the Association requests, he or it shall be entitled to have a physician or physicians of'his or its own selection present to participate in such examination.”

In another paragraph, section 4, supra, reads: “The association [compensation insurer] shall have the privilege of having any injured employee examined by a physician or physicians of its own selection, at reasonable times, at a place or places suitable to the condition of the injured employee and convenient and accessible to him. * * * The injured employee shall have the privilege to have a physician or physicians of his own selection, at the expense of such injured employee, present to participate in such examination.”

It must be borne in mind that, while the power to compel a medical examination of an injured employee is given specifically only to . the State Industrial Accident Board, the same power is necessarily given to the court in whose forum the case is to be tried on an appeal from the final ruling of such board. In the instant case, therefore, the district court of Dallas county, in which the suit to set aside the award of the accident board was being-tried, is vested with the same statutory power with which the board is vested. This power is that the court may require an injured employee to submit himself “to a physician or physicians authorized to practice under. the laws of this State.” It is our construction of the above provision of this enactment that whether such medical examination shall be required rests exclusively in the judgment of the court trying the cause. If the judgment of the court be that there is no necessity for .such examination, and the insurer is not satisfied with the ruling of the court in respect thereto, then such insurer is given a remedy for any injury it may thereby have suffered in the right given in the second paragraph of section 4, supra, to have the court to require the “injured employee examined by a physician or physicians of its own selection.” This right of course is given the insurer either when the court declines to direct a medical examination by a' physician appointed by the court, or after it has directed such medical ■examination, and the insurer is not satisfied with the result of such examination.

It is the opinion of the majority of this court, that the only reasonable construction that can be given to the provisions of section 4, relating to medical examinations of an injured employee, is that it was the intention of the Legislature to commit entirely to the discretion of the board, or the trial court, as the case may be, the question as to whether a medical examination should be ordered and conducted as the board’s, or trial court’s, examination, but, in order to safeguard the rights of a compensation insurer against a mistaken judgment on the part of the board, or the trial court, in a refusal of such an examination, the right is given to such insurer to require the court on proper motion to direct the injured employee to submit to an examination by a physician of the insurer’s own choosing. As this record discloses that appellant did not attempt to avail itself of the statutory remedy given in the second paragraph of section 4, supra, for any injury it may have suffered by the ruling of the court, on its motion for the medical examination authorized by the first paragraph of section 4, it is in no position to complain of the court’s ruling.

If we are in error in the above construction of the provisions of said section 4, we are nevertheless of the opinion that no reversible error is shown by the record in this case. We are of the opinion that the course the trial court offered to pursue in reference to appellant’s motion, that the trial court name a physician of its own choosing and direct ap-pellee to submit to an examination by such physician, constitutes a substantial compliance with the provisions of the statute as same are construed by appellant and the dissenting opinion herein.

The trial court’s offer was to appoint any physician named by appellant, the mover in the motion for such examination, and to require appellee to submit, to the examination by such physician. If appellant had consented to the pursual of this course and named the physician, a medical examination by a physician appointed by the court and held under the. court’s direction would have been the' result. Such physician would not have been the representative of appellant, but would have been the representative of the court. We believe that the objection of appellant to name a physician for the court to appoint, at the request of the court, to the effect that the mere fact that such physician was named by appellant would weaken the probative force of his testimony, is too shadowy for consideration, and certainly not sufficient to cause a reversal of this case on the ground of an abuse of discretion.

Appellant, as well as the dissenting opinion in this case, relies upon the case of Texas Employers’ Insurance Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112, 119. A careful reading of the opinion, we think, clearly discloses that it does not announce a doctrine contrary to the views herein expressed. This is shown by the following excerpt: “It is probably true that the association, before it could complain of the action of the court in refusing to order an examination under its general discretionary authority, would be required to allege that it had requested an examination and been refused. * * * But when the proceeding has reached this stage, that is, request for examination by physicians named by the defendant, has been made and refused by the plaintiff, we think the defendant may then apply to the general power of the court, rather than insist on an examination being made by physicians of its own choosing. * * * ”

We are therefore of the opinion that appellant’s motion for rehearing should be overruled.

Overruled.

LOONEY, J., dissents.


author: FUNDERBURK, J.

text:
    RICHARDSON v. STATE.
    No. 978.
    Court of Civil Appeals of Texas. Eastland.
    June 17, 1932.
    Rehearing Denied Oct. 14, 1932.
    Kilgore & Rogers, of Wichita Falls, for appellant.
    Edwin Weldon, of Archer City, and Bulling-ton, Humphrey & King, of Wichita Falls, for the State.
   FUNDERBURK, J.

This is a suit brought by the state of Texas against J. T. Richardson to recover taxes and foreclose a tax lien on. certain lands and interests in lands in Archer county. A tender of taxes on a number of tracts of land theretofore made and kept in force was, before final judgment, accepted by the plaintiff, by reason whereof the appeal only concerns taxes claimed to be due upon certain oil royalty interests in land known as the Anderson South pasture and being blocks 1,14, and 15, for the year 1927; blocks 1, 14, 15, and 16 for the year 1928; and blocks 1, 7, 8, 15, and 16 for the year 1929. The amount of taxes, with interest and penalties, claimed against the particular interests in question, aggregate $9,028.69. It is not questioned that plaintiff’s petition contained the necessary allegations to support a recovery of the taxes and foreclosure of the tax lion.

The defendant, in addition to exceptions and a general denial, pleaded, in effect, that he had duly rendered for taxation the properties in question for each of the years 1927 and 1928 at a proper valuation, but that after notice to him, the commissioners’ court, sitting as a board of equalization, had, over his protest and after having refused to hear evidence of the proper values of said property, increased and fixed such values in pursuance of a scheme or plan as follows: Said values were determined and fixed by taking the total amount of oil produced for three months preceding the 1st day of January of each of said years and dividing the same by eight to determine the amount of oil. produced as royalty for the defendant, and then dividing said amount by ninety-two, to get the average daily production of royalty oil for such period. This sum was then multiplied by an arbitrary number of dollars, being $900 for the year 1927, and $800 for the year 1928. The sums thus determined constituted the valuations fixed by the board and were the same all over Archer county. As to the year 1929, it was alleged that no rendition was made, but that defendant appeared before the board of equalization, offered proof of value, a hearing of which was refused, and the same method employed in fixing the valuation as in 1928. Of the said plan or scheme of valuation it was averred that same “unlawfully and fraudulently discriminated in favor of other property and property owners in Archer County, Texas, and against the owners of oil producing properties, in that property other than oil producing property was valued at 60% of Its true market value, but as to oil property the court made no effort to ascertain the true market value of same, but on the contrary, by employing said arbitrary scheme or plan of valuation, discriminated as between different oil properties, as well as between oil properties and other kinds of property.” Defendant further alleged the values at which the several properties were assessed, the true market value, the proper taxable value (that is, 60 per cent, of the market value), and the amount of taxes that would have been assessable according to the proper taxable values, as follows:

For 1927: Assessed value $108,240; cash market value, $106,990; proper taxable value, $64,190; tax $1,514.71.
For 1928; Assessed value, $90,400; market value, $83,180; proper taxable value, $49,-665; tax, $1,281.83.
For 1929: Assessed value, $126,890; market value, $87,780; proper taxable value, $52,-665; tax, $1,016.42.

There was thus alleged the facts sufficient to show a discrimination, against the defendant. It was further alleged that defendant had duly tendered said sums, had kept the tender alive, and same were re-tendered upon the trial. The defendant also filed a trial amendment, alleging other discrimination against him in three respects, namely: (1) That cash, bills and notes receivable, and choses in action were not required to" be rendered; (2) that cattle.were assessed on the basis of a set schedule of $10 per head for. stock cows and yearlings, $15 per head for two year old steers, $20 per head for three year old steers, and $25 per head for steers over three years, which, within the knowledge of the commissioners’ court, was not in excess of 20 per cent, of the reasonable cash market value of said property. In this trial amendment defendant re-tendered and again offered to pay the amount of taxes theretofore tendered.

The jury by their verdict found that for each of the years 1927, 1928, and 1929, the method used by the commissioners’ court, sitting as a board of equalization for the purpose of determining the value of oil royalties in Archer county, was not a fair, uniform, and equal method of determining said values; that such method resulted in arbitrary discrimination against the defendant in favor of other properties in Archer county generally; that the board of equalization for each of said years refused to consider testimony upon the lack of uniformity in the market value of the oil royalty property as of the 1st of January of each year; that they refused to consider evidence on what would be the market value and the valuation for taxation of the property involved for each of said years; and that said board made an arbitrary discrimination against defendant in assessing the value of his oil royalties or other royalty interests in Archer county in favor of live stock in said county. The jury also, in response to issues submitted, found the fair cash market value of defendant’s lands, including the royalty interests stated separately, to be as follows:

For the year 1927:

Blk. 1. O. R. $128,500.00 Laud $2000.00

Blk. 14. O. R. 23,528.00 Land 240.00

Blk. 15. O. R. 4,836.00 Land 240.00

Total O. R. $151,864.00 Land $2480.00

For the year 1928:

Blk. 1. O. R. $ 89,941.00 Land $2000.00

Blk. 14. O. R. 26,910.00 Land 240.00

Blk. 15. O. R. 6.405.50 Land 240.00

Blk. 16. O. R. 3,093.50' Land 350.00

Total O. R. $126,360.00 Land $2830.00

For the year 1929:

Blk. 1. O. R. $ 95,116.50 Land $2000.00

Blk. 7. O. R. 65.147.50 Land 240.00

Blk. 8. O. R. 3,381.00 Land 360.00

Blk. 11. O. R. 11.856.50 Land 240.00

Blk. 15. O. R. 3.875.50 Land 350.00

Total O'. R. $179,376.00 Land $3190.00

Some days after the verdict of the-jury was returned and the jury discharged, the plaintiff, in order to supply pleadings designed to authorize a judgment for plaintiff upon a theory that, if the original assessments were invalid, the trial court could and should make a proper reassessment, filed a trial-amendment, alleging that the evidence had conclusively shown that all taxable'property in Archer county was assessed by the tax assessor and the commissioners’ court, sitting as a board of equalization, at a ratio of 60 per cent, of its actual cash market value on the 1st day of January of each of the years in question; that defendant, by his pleading, had shown that, in calculating the taxes which he claimed to have owed the state, he had determined the amount by taking 60 per cent, of what he- claimed was the cash market value on said dates; that it was further shown that the commissioners’ court, sitting as a board of equalization, assessed all of the property of the county on a basis of 60 per cent, unless it could be said that the cattle were taken at a lesser amount, as to which it was; averred that the evidence was uncertain and of no probative force. It was prayed that the trial court revise the as: sessments on the tracts in question and render judgment against the defendant upon the basis of 60 per cent, of the cash market value on each parcel of land for the respective years, with foreclosure of the lien, etc.

The court, after overruling a motion of defendant for a judgment in his favor, sustained a motion of the plaintiff to enter judgment in its favor, and accordingly gave judgment upon the theory set forth in plaintiffs said trial amendment. The defendant has appealed.

We are of opinion that upon' the pleadings and verdict of the jury the judgment should have been for the defendant. The Constitution requires that taxation shall be equal and uniform. It also requires that property be “taxed in proportion to its value.” Constitution, art. 8, § 1. By some process of reasoning not readily understood it has been held that the latter requirement must yield to the former, if assessing authorities have generally assessed property at less than its market value. Lively v. M., K. & T. Ry. Co., 102 Tex. 545, 120 S. W. 852. The pleadings of plaintiff show that lands in Archer county were generally assessed for, taxes at a valuation óf 60 per cent, of the market value. Such being the ease, it is well settled that plaintiff cannot recover taxes based upon an arbitrary valuation of defendant’s property at a greater proportion of its market value. Lively v. M., K. & T. Ry. Co., supra; Drues-dow v. Baker (Tex. Com. App.) 229 S. W. 493; Power v. Andrews (Tex. Civ. App.) 253 S. W. 870; Vance v. Pleasanton (Tex. Civ. App.) 261 S. W. 457; Id. (Tex. Com. App.) 277 S. W. 89; Rowland v. Tyler (Tex. Com. App.) 5 S.W.(2d) 756; Ogburn v. Ward County Irrigation Dist. (Tex. Com. App.) 280 S. W. 169. The verdict of the jury shows that, according to a preadopted plan, the commissioners’ .-court, sitting as a board of equalization, valued all oil producing lands without reference to their -actual -market value or real value, save as determined by a plan that took no notice of any differences in the values of such properties, but arbitrarily made same to -depend in all eases solely upon the average number of barrels of royalty oil produced daily for a period of ninety-two days preceding the 1st day of January of each year. The commissioners’ court refused to hear evidence of the market value of the properties in question., Its action in valuing •defendant’s property in the .manner it did, and resulting as the jury found in discrimination against defendant, was, we think, under the authorities above cited, unquestionably void.

The plaintiff undertook to provide against the contingency of the assessments being • held void by filing its trial amendment, wherein it was sought to have the ■court make a reassessment in accordance with •the jury’s findings of the market value of the properties. Defendant assigns as error the action of the court in permitting the filing ■of such trial amendment. We are inclined to the view that the right of amendment cannot be extended so far. It is unnecessary, however, definitely to decide the point, and for that reason we need not discuss it. We know of no authority, and none has been cited, to the effect that a district court •can assess property for taxation. “The assessment is an indispensable requisite to the validity of a tax against an individual, for, without a valid assessment there can be no lawful attempt to collect the tax or to enforce it against any specific property.” 37 Cyc. 987; Yenda v. Wheeler, 9 Tex. 408 ; Sullivan v. Bitter, 51 Tex. Civ. App. 604, 113 S. W. 193, 195. As said in the last-cited case: “The authority to assess property, save in exceptional cases, is vested in the assessor of taxes of the several counties of the state, and the method of making such assessments is plainly pointed out by statute.” In Missouri, K. & T. Ry. Co. v. Shannon, 100 Tex. 379, 100 S. W. 138, 142, 10 L. R. A. (N. S.) 681, Judge Gaines said: “ * * * We think * * * probably that it was intended by the framers of the Constitution that all ordinary assessments of property for taxation should be made by” the tax assessor. Reasoning from these authorities, we think certainly the proposition is untenable that suit may be brought to recover taxes never assessed, and 'upon a finding by a jury of the values at which property in question should have been assessed the trial court may make the assessment, and at the same time award recovery of the taxes. The Legislature has undertaken to provide a different procedure for reassessing property where assessments have been held invalid. R. S. 1925, title 122, chap. 11. The authorities relied upon by appellee were injunction suits in which the plaintiff was under the necessity of doing equity as a condition to the relief sought. Such is not •the case here.

AVith reference to the claim of a discrimination based upon the contention that cattle were assessed at 20 or 25 per cent, of their market value, we regard the condition of the pleadings and evidence as too uncertain to justify any discussion here which may hereafter be taken as a statement of the law of the case. It is sufficient to say that the Constitution in its requirements, both as to uniformity and taxation in proportion to value, makes no distinction between different kinds of taxable property.

Had the trial court given judgment for the amount tendered by the defendant, we would treat the judgment as one by consent and permit it to stand, although there may be no valid assessment of taxes. But since the judgment cannot be affirmed, including as it does taxes never assessed, and to which the defendant has not consented, it will be necessary to order a remand of the case. We cannot reform the judgment, because to do so would require us to pass upon the rights of the state to further proceed under said R. S. 1925, title 122, chap. 11, which may present questions of considerable difficulty arid which are not presented by this record or discussed in the briefs.

We omit discussion of other questions raised, since they probably will not arise upon another trial.

For the above reasons we are of opinion that the judgment of the court below must be reversed and the cause remanded, which is accordingly so ordered.


author: BARCUS, J.

text:
    JOHNSON v. EDWIN SANGER MUSIC CORPORATION.
    No. 1246.
    Court of Civil Appeals of Texas. Waco.
    Sept. 22, 1932.
    Rehearing Denied Oct. 20, 1932.
    Wm. H. Clark and Leo R. Tresp, both of Dallas, for plaintiff in error.
    Turner, Rodgers & Winn, M. B. Solomon, and Bert G. Ashby, all of Dallas, for defendant in error.
   BARCUS, J.

Defendant in error instituted this suit against H. J. Johnson and J. R. Hill to recover the value of .certain material furnished and labor performed in repairing the refrigerating system in a large apartment house in Dallas. It alleged that said parties were the co-owners and co-operators of said apartment house. It alleged that Mrs. Baun was the duly authorized agent of each of said parties in control of and operating said apartment house, and that she, as the authorized agent of each of said 'parties, employed defendant in error to furnish said material and perform said labor, and that by reason thereof each of said parties was personally liable therefor.

H. J. Johnson filed a cross-action against his co-defendant, J. R. Hill, alleging that he was the contractor who erected said apartment house for J. R. Hill, who agreed to pay him $146,000 therefor, and, to secure same, he executed a deed of trust lien on said property; that he had thereafter sold the property under the deed of trust, and he sought judgment against Hill for thé amount of his debt that the property failed to bring under said sale. The cause was tried to the court and resulted in judgment being rendered in favor of defendant in error for $572.88 against each of the named parties, jointly and severally, and judgment in favor of Johnson against Hill for whatever amount he, Johnson, might pay on the judgment rendered in favor of plaintiff in error, and judgment in favor of Johnson against Hill for about $78,000, the amount of his unpaid claim against Hill. Johnson alone appeals.

The plaintiff in error presents three propositions ; his contention thereunder being that the judgment of the trial court against him in favor of defendant in error is fundamentally erroneous because of a conflict in the trial court’s findings of fact and conclusions of law. In its finding of fact No. 1, the trial court found that Hill and Johnson were co-owners and co-operators of the apartment house. By its finding of fact Nos. 8 and 9 it found that Johnson had a lien on said property to secure his debt, and that Hill had executed to Johnson a deed of trust on the apartment house to secure said debt, and that the deed of trust lien was thereafter foreclosed and Johnson became the purchaser of the property thereunder, and that the sale under the deed of trust occurred after defendant in error’s bill became due. Plaintiff in error’s contention is that since the court found that at the time defendant in error’s bill was made, Johnson was only a lienholder ; that the finding that Johnson was a co-owner is in conflict with the finding that Johnson was a lienholder.

The record shows that Johnson as a contractor built the apartment house for Hill; that Hill executed his note payable to Johnson for approximately $146,000 and secured', same by a deed of trust thereon, and agreed •with Johnson that when the building was completed he would refinance same and obtain a loan with which to pay Johnson in full. When the building was completed Hill was unable to obtain the money, and Johnson refused to deliver possession thereof to Hill. The apartment house had been equipped with an elaborate refrigerating system. After it was ascertained that Hill could not refinance the loan and pay Johnson, Johnson and Hill agreed that Mrs. Baun would take charge of the apartment, handling same, and pay to-Johnson all the rents received from said apartment house, after paying the operating-expenses thereof. The refrigerating system would not work, and Mrs. Baun had defendant in error repair same, and thereafter Johnson had the entire property sold under his deed of trust, and became the purchaser at said sale.

Whether the trial court’s finding No. 1 that Johnson and Hill were co-owners and co-operators of the apartment house is in conflict with its findings Nos. 8 and 9, that thereafter Johnson became the purchaser of the property under a foreclosure sale, we think becomes unnecessary for us to determine. By its second arid third findings of fact, which plaintiff in error does not assail, the court found that Mrs. Baun was the agent for both Johnson and Hill, and that each of them authorized and instructed her to make the bill, and that by reason thereof each of said parties became personally liable for said debt. Plaintiff in error testified that he as a contractor built the apartment house; that Mr. Hill agreed to pay him for building same when it was completed; that upon its completion Mr. Hill failed to pay therefor, and he refused to deliver possession of the property to Mr. Hill; and that he employed Mrs. Baun as his manager to take charge of the property and deliver the rents to him. Plaintiff in error was not required to deliver the apartment house to Hill until and unless the contract price was paid. He was the mortgagee in possession and as such had the right to incur all necessary expenses for the preservation and upkeep of the property. Majors v. Strickland (Tex. Civ. App.) 6 S.W.(2d) 133. Plaintiff in error, under the court’s findings, having through his agent, Mrs. Baun, contracted the debt and agreed to pay therefor, thereby became personally obligated. Pyle v. Treat (Tex. Civ. App.) 44 S.W.(2d) 440. The fact that plaintiff in error as mortgagee in possession sold the property to satisfy his debt, did not relieve him from his obligation to pay the debts he contracted for the preservation of the property while it was in his possession.

All of plaintiff in error’s assignments of error are overruled, and the judgment of the trial court is affirmed.


author: PELPHREY, C. J.

text:
    PHARES, Chief of Highway Motor Patrot, et al. v. BILBO TRANSP. CO. et al.
    No. 2797.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 6, 1932.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellants.
    J. Prank Wilson and Sullivan & Wilson, all of Dallas, for appellees.
   PELPHREY, C. J.

This is an appeal from an order of the district court of Pecos county, temporarily restraining L. G. Phares, chief of the Highway Motor Patrol of Texas, all state highway patrolmen, all state license and weight inspectors, all sheriffs, constables, justices of the peace, county attorneys, and district attorneys, and their respective agents, servants, representatives, and employees, from arresting or molesting appellees, their agents, servants, or employees, while operating their trucks over the highways of the state of Texas for violation of that provision of the law which prohibits the transportation of any load in excess of 7,000 pounds on any vehicle or combination of vehicles.

The original application was filed by Bilbo Transportation Company and nineteen others. Later fifty-two others were granted permission to intervene and the same order was made as to them. These orders were entered the same day the applications were filed and without notice to.or appearance by appellants.

Appellants contend in their brief that the temporary injunction should he dissolved and the cause dismissed because the petitions of the plaintiff and all interveners are insufficient to support the granting of either a temporary or permanent writ of injunction, for the reason that they fail to show any vested property right involved which will be destroyed ; that the act in question is constitutional ; and that it being a criminal statute any injunction will not lie to restrain its enforcement unless vested property rights are about to be destroyed or unless it is unconstitutional.

Appellees counter with the propositions that the enforcement of the act will operate to destroy the value of property which, they were using before the act became effective; that the act complained of is unconstitutional, vague, and indefinite in its terms and delegates to enforcement officers a determination of its meaning; and that the act is unconstitutional, in that it provides an exception in favor of certain others of a like class and engaged in the same business.

The act complained of is section 5 (b) of chapter 282, p. 511, of the Acts of the Forty-Second Legislature, Regular Session (Vernon’s Ann. P. O. art. 827a, § 5(b), reading: “The limitations imposed by this Act as to length of vehicle or combination of vehicles and weight of loads and of height of vehicle with load shall not apply to vehicles when used only to transport property from point of origin to the nearest practicable common carrier receiving or loading point or from a common carrier unloading point by way of the shortest practicable route to destination; provided said vehicle does not pass a delivery or receiving point of a common carrier equipped to transport such load, or when used to transport property from the point of origin to point of destination thereof when the destination of such property is less distant from the point of origin thereof than the nearest practicable common carrier receiving or loading point equipped to transport such load; provided, however, that in no event except by special permit, as hereinabove specifically provided, shall the length of said vehicles exceed fifty-five (55) feet or the weight of such loads exceed fourteen thousand (14,-000) pounds; and provided, further, that the limitations imposed by this Act upon weight per inch width of tire shall apply to all such vehicles and loads.”

The section of the act relative to the weight of load (Vernon’s Ann. P. C. art. 827a, § 5) reads: “Sec. 5. No commercial motor vehicle, truck-tractor, trailer, or semi-trailer shall be operated on the public highway outside of the limits of an incorporated city or town with a load exceeding seven thousand (7000) pounds on any such vehicle or train or combination of vehicles; and no motor vehicle, commercial motor vehicle, truck-tractor, trailer or semi-trailer having a greater weight than six hundred (600) pounds per inch width of tire upon any wheel concentrated upon the surface of the highway shall be operated on the public highways outside of the limits of an incorporated city or town; provided, however, that the provisions of this section shall not become effective until the first day of January, 1932.”

Appellees’ petitions, after setting out that they operate commercial motor vehicles throughout the state of Texas, the number of vehicles operated by them, that such vehicles are constructed to haul loads in excess of 7,000 pounds, the amount invested by them in such equipment, the amount of license fees and gasoline taxes paid to the state, and the amount which would be lost to them if restricted to transporting net loads of 7,000 pounds, contain the following allegations: “That the said intervenors say and allege that H. B. 336, known as chapter 282, page 507, Acts of the 42nd Legislature of the State of Texas, Regular Session, is unconstitutional for each and all of the reasons' set forth in that intervenors and each of them will be prohibited from hauling a load in excess of 7,000 pounds, and that if the provisions of the said law is enforced against the plaintiffs, and each of them, who are lawfully entitled to carry on the vehicles aforesaid, loads, exceeding 7,000 pounds, but that if the said law is enforced as against these inter-venors that they and each of them will be irreparably damaged; and that the said defendants and each of them, will endeavor and will prevent the transportation by inter-venors, and each of them, of hauling loads in excess of 7,000 pounds, acting under the authority of the aforesaid law, which is null, void and unconstitutional.” And: “Interven-ors further say that the said law and House Bill 336 is illegal, unconstitutional and void because same is vague, indefinite and uncertain in its terms and provisions in this’; that in its provisions it provides that ‘any persons may or might haul 14,000 pounds to the nearest practicable railway station’ for the reason that said stipulation is vague and indefinite, unreasonable, unjust, unsound, unconstitutional and arbitrary, and that the law does not define what is meant by the nearest practicable railway, station, and because said law leaves this matter solely to the enforcement officers to determine. And because these intervenors if they are forced to comply with the provisions in said law they are unable to determine what is meant by ‘nearest practicable railway station,’ and the said law leaves the determination up to the Highway enforcement officers and that these intervenors will be irreparably injured and-damaged if they are forced to comply with the same, and that their equipment and machinery will be virtually destroyed and lost, and these intervenors will suffer irreparable injury and loss, and that they have no adequate remedy at law, and these intervenors will be deprived of their rights and will lose their business as well as their equipment.”

It will be seen from a reading of the above pleadings that, at most, it questions the validity of the act upon three grounds: (1) That the act is unconstitutional, in that the Legislature had no power to enact a law which would prohibit them from hauling a load in excess of 7,000 pounds; (2) that the . provision exempting persons hauling to and from the “nearest practicable common carrier receiving or loading point” is so vague and uncertain as to render it unconstitutional; and (3) that the provisions of section 5(b) are unreasonable and arbitrary.

This same act was before the Supreme Court of the United States in the recent case of Ed Sproles et al. v. T. Binford et al., 286 U.. S. 374, 52 S. Ct. 581, 585, 76 L. Ed. 1167, and the questions presented by the petitions here were passed upon by that court. In passing upon the authority of the Legislature to limit net loads on trucks to 7,000 pounds, the court said: “In exercising its authority over its highways the state is not limited to the raising of revenue for maintenance and reconstruction, or to regulations as to the manner in which vehicles shall be operated, but the state may also prevent the wear and hazards due to excessive size of vehicles and weight of load. Limitations of size and weight are manifestly subjects within the broad range of legislative discretion. * * * When the subject lies within the police power of the state, debatable questions as to reasonableness are not for the courts but for the Legislature, which is entitled to form its own judgment and its action within its range of discretion cannot be set aside because compliance is burdensome.”

In response to the charge that the provisions of section 5(b) were vague and uncertain, the court had the following to say: “Objection is made to * * * permitting an additional length of vehicles and greater loads than 7,000 pounds (up to 14,000 pounds) when the vehicles are operated, as stated, between points of origin, or destination, and ‘common carrier receiving or loading,’ or unloading, points. Appellants urge that this provision, by reason of the use of the terms ‘nearest practicable common carrier receiving or loading point’ and ‘shortest practicable route to destination,’ and ‘common carrier receiving or loading point equipped to transport such load,’ is so uncertain that it affords no standard of conduct that it is possible .to know. We cannot agree with this view. The ‘common carrier receiving oh loading points,’ and the unloading points, described, seem quite clearly to be points at which common carriers customarily receive shipments, of the sort that may be involved, for transportation, or points at which common carriers customarily unload such shipments. ‘Shortest practicable route’ is not an expression too vague to be understood. The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. [Citing cases.] The use of common experience as a glossary is necessary to meet the practical demands of legislation. In this instance, to insist upon carriage by the shortest possible route, without taking the practicability of the route into consideration, would be but an arbitrary requirement, and the expression of that which otherwise would necessarily be implied, in order to make the provision workable, does not destroy it.”

There being no allegation of fact or facts showing in what manner the section is' unreasonable or arbitrary, either as respects appellees or others, we are not called upon to pass upon that question.

Other grounds presented in appellees’ brief, finding no basis in the pleading, will not be considered.

Having concluded that statute was not subject to the attack made upon it, it follows that the trial court erred in granting the temporary injunction.

The judgment of the trial court is therefore reversed, and the temporary injunction dissolved.


text:
    MARTIN et al. v. TEXAS & PACIFIC RY. CO.
    No. 2704.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 22, 1932.
    Rehearing Denied Oct. 27, 1932.

      Lee R. Stroud and E. P. Bryan, both of Dallas, for appellants.
    Touchstone, Wight, Gormley & Price, of Dallas, for appellee.
   PELPHREY, C. J.

• Prior to November 11, 1872, Terrell and Sele Martin owned as their homestead a certain tract of land in Dallas, Tex., being part of an acre theretofore purchased by them from John J. and Susan A. Good.

On that date Terrell and Sele Martin executed the following deed:

“Know All Men By These Presents: That Terrell Martin and Sele Martin, his wife, of the County of Dallas, in the State aforesaid, in consideration of the sum of Four Hundred and fifty Silver Dollars to us paid by Little-field & Thompkins, J. E. Hawkins, Adams & Leonard, L. Elliott & others, as per list of the County of Dallas, State of Texas, the receipt whereof is hereby acknowledged, have granted, bargained, sold and released, and by these presents do grant, bargain, sell and release unto the Texas and Pacific Railroad Co. for Depot purposes and uses, all that tract of land in the City of Dallas, being part of an acre sold to us by John J. and Susan A. Good, bounded as follows, viz: (Here follows description by metes and bounds, concluding-) Thence N. 45E with said S. E. line, 90 feet to the beginning, the same to be permanently, used by said R. R. Co. for Depot purposes, on the Pacific Av. route through Dallas.
“Together with all and singular the Rights, Members, Hereditaments and Appurtenances to the same belonging, or in anywise incident or appertaining.
“To Have and To Hold, all and singular the premises above mentioned unto the said Texas and Pacific R. R. Co;, their heirs and assigns forever. And we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said company, their heirs and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof.”

Terrell and Sele Martin both died intestate; Terrell in February, 1886, and Sele in December, 1891.

On September 13, 1923, Deck Martin and Charles Rodgers, as the only heirs of Terrell and Sele Martin, filed this suit in the district court of Dallas county against the grantee named in said deed to recover the land therein described, and rents. The cause was submitted to a jury, and, upon its answers to special issues, judgment was rendered that appellants take nothing, and adjudging to appeilee full fee title and possession as against appellants.

From that judgment, this appeal is prosecuted.

Opinion.

Appellants’ -propositions 1, 3, and 4, read:

“Proposition No. 1: The words ‘for depot purposes and uses’ — being immediately 'included in and a part of the granting clause of the deed should be held to indicate what was granted.”
“Proposition. No. 3: The words ‘for depot purposes and uses’ — not being any promise or covenant to build or maintain a depot, and being of no legal force whatever, unless to indicate what was intended to be granted, should be held to indicate a grant of easement rather than to have no legal effect whatever.”
“Proposition No. 4: The words ‘for depot purposes and uses’ — being immediately included in a part of the granting clause, and not expressing a promise (covenant) to build a depot or to do anything; and being without legal force or effect, except to show the grant of an easement, should be so construed rather than to be held meaningless.”

It will be seen that the substance of the above propositions is that the deed upon its face conveys only an easement and not the fee.

In support of their contention, appellants, among other authorities, cite Stanbery et al. v. Wallace et al. (Tex. Com. App.) 45 S.W.(2d) 198, 199, and West Texas Utilities Co. v. Lee (Tex. Civ. App.) 26 S.W.(2d) 457.

Appellee, in support of its contention that the granting clause conveys the fee, cites, also, Stanbery v. Wallace, and in the alternative asserts that the deed in question conveys the fee, modified, however, by the covenant for user, which covenant is automatically canceled where, as here, after a long lapse of years, superior public interest forbids the exercise of such covenant.

In the Stanbery Case, the Commission of Appeals, in discussing a deed to certain lots in the town of Coleman, Tex., said: “It will be observed that the granting clause of the deed under consideration does not purport to grant over this land a right of way for street purposes, but that it conveys the land itself. It is true such clause is followed ‘by a recital restricting the use of the land to street purposes. Such restriction, however, does not operate to limit the grant to a mere easement, as it is generally held that, if the granting clause conveys a fee title to the property, subsequent recitals, which merely limit the use to which the same may be put, do not restrict the conveyance to an easement.”

The court further, in its discussion, distinguished the case under consideration from the case of West Texas Utilities Co. v. Lee (Tex. Civ. App.) 26 S.W.(2d) 457, using this language:

“Our conclusion that the deed in question conveyed the title to the property and not an easement in no way conflicts with the decision of the Court of Civil Appeals in the case of West Texas Utilities Co. v. Lee, cited supra. The granting clause of the deed there under consideration was as follows:
“ ‘Have bargained, sold and conveyed and by these presents do bargain, sell and convey unto the County of * * * State of Texas for road and watering purposes, all of the following described tracts,’ etc.
“The distinction between the Lee Case and this one is obvious. In the former, the granting clause of the deed involved did not convey the land; with subsequent language restricting the use to which the same might be put. It only purported to convey ‘for road and watering purposes’ the land described. Here the granting clause conveys without limitation the land itself which is followed by a recital restricting the use of the land conveyed to street purposes.”

It will be noted that the deed here involved, like the one in the Lee Case, did not convey the land with subsequent language restricting its use, but only purported to convey “for depot purposes and uses” the land in question, and it is our opinion that the same distinction appears between the Stan-bery Case and the case at bar as there was between that case and the Lee Case.

We have reached the conclusion that the deed upon its face conveyed only an easement, and that the contention of appellee that the deed vested the fee in it, with a covenant of user, is untenable.

If the deed conveyed only an easement, then the existence of a public necessity could not operate to increase the grant.

If there be any doubt as to the language of the deed itself only conveying an easement, the facts surrounding its execution are abundant to show that only an easement was intended to be conveyed. It is undisputed that an offer had been made to the Martins to sell the property, which they had refused, and that condemnation proceedings had been threatened, and nothing appears which tends to show that they ever changed their intention as to a sale of the property. It does appear from a reading of the record, how.ever, that they, after much persuasion, agreed to transfer such an interest in the land as would have been acquired toy appellee in a condemnation suit.

Appellee’s cross-assignments have been considered and found without merit.

After a careful consideration of the whole record, .we have concluded that the judgment of the trial court must be reversed, and judgment here rendered for appellants for the land sued for, and rental value thereof from January, 1922, when the use of the land for depot purposes was abandoned by appellee.

Appellants in their pleadings tendered a return of the $450 paid by appellee, with interest, and have paid same into the registry of the court, and in their motion for judgment requested the court to award the same to appellee. In view of this condition of the record, the sum so tendered is ordered paid to appellee.

Reversed and rendered.


author: LESLIE, J.

text:
    HOWELL v. CITIZENS’ NAT. BANK OF ABILENE.
    No. 996.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 7, 1932.
    A. A. Heathington, of Abilene, for appellant.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellee.
   LESLIE, J.

This is an appeal from an order of the district court overruling plaintiff in error’s motion for a judgment against the garnishee, Citizens’ National Bank of Abilene, defendant in error. There is no statement of facts in the record. Plaintiff in error, O. C. Howell, was plaintiff below, and the bank defendant. The parties-will be referred to as in the trial court.

From the transcript it appears that the plaintiff, on March 4, 1931, filed an affidavit for a writ of garnishment, after judgment, to run against the bank. The writ was served on the bank the same day and returnable June 8, 1931, first day of ensuing term. The affidavit is all the evidence, if it be considered as such, that plaintiff had judgment at all against Powell Roberts, defendant in the original suit. June 11, 1931, plaintiff filed said motion for judgment against garnishee bank, which, on the same day, filed answer replying to the writ This answer was in all rejects full and complete, and for various reasons, in the absence of a controverting affidavit (article 4094, R. S. 1925), apparently warranted judgment discharging the garnishee (article 4086, R. S.).

By two propositions, in substance the same, the plaintiff contends that the court erred in overruling his motion for judgment because the bank failed to answer said writ on or before June 9th, appearance day of the ensuing term. These contentions are based upon the provisions of article 4087, R. S. 1925, which prescribes that the garnishee shall in all cases, after lawful service, file an answer to the writ of garnishment on or before appearance day of the term of court to which such writ is returnable, etc., and authorizing a judgment by default against the garnishee under certain circumstances. However, the last sentence of that article provides that: “The answer of such garnishee may be filed as in any other civil case at any time before such default judgment is rendered.” Under this statute the garnishee’s answer was filed in due time, and apparently the plaintiff made no effort to traverse the same, although it appears from the transcript that he made a “motion to quash” the answer because “the' garnishee * * * failed to make answer to this plaintiff’s writ of garnishment by the close of the term of court to which it was returnable; that, in fact the garnishee herein did not file its answer until June 11th, 1931.” This motion to quash was overruled, as was thé plaintiff’s motion for judgment.. Hence the only action taken by the court was to overrule said motions. The plaintiff excepted and gave notice of appeal from the order overruling the motion for judgment. No final judgment was rendered in the main case on the effects or merits of garnishee’s answer. The action taken by the court was merely an interlocutory order or judgment from which no appeal could be prosecuted to this court. 3 Tex. Jur., § 53, p. 105; § 61, p. 125; Lyon-Taylor Oo. v. Johnson (Tex. Civ. App.) 147 S. W. 605, 606; Henderson v. Henderson (Tex. Civ. App.) 213 S. W. 315.

There being no final judgment in the case, the plaintiff in error has no appeal, and the same is hereby dismissed.