author: LESLIE, J.

text:
    CISCO INDEPENDENT SCHOOL DIST. v. DUDLEY et al.
    No. 1150.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 27, 1932.
    Rehearing Denied Nov. 4, 1932.

      Butts & Wright, of Cisco, and Conner & Me-iRae and Frank Judkins, all of Eastland, for relator.
    Hart, Patterson & Hart, of Austin, Turner, Seaberry & Springer, of Eastland, Woodruff & Holloway, of Brownwood, L. D. Hawkins, of Breekenridge, Loffcin V. Witcher, of Ft. Worth, and Cox & Hayden, of Abilene, for respondents.
   LESLIE, J.

This is an original proceeding in this court. It was instituted by the Cisco independent school district to procure the issuance by this court of a mandatory injunction to compel L. E. Dudley, N. S. Holland, R. F. Holloway, P. B. Bittle, and E. J. Woodward, individually and as members of the executive committee of district No. 3 of the Interscholastic League of Texas, (1) “to immediately proceed to carry out the commands of the judgment of September 28th, 1932, by the 91st District Court of Eastland County” in cause No. 15329; (2) to refrain from doing each and everything which they (defendants) were directed not to do by said judgment, and (3) to compel said district committee to arrange a schedule of football games between the Cisco High School and the other towns of district No. 3. Such relief is sought “so that the jurisdiction of this court may be preserved and the subject matter of this suit not destroyed,” and thus “prevent final rendition' of judgment in this cause from being a vain and useless thing.” This cause referred to above, and to which this proceeding relates, is that of the Cisco Independent School District v. L. E. Dudley, No. 15329. The defendants in that cause were L. E. Dudley et al., composing the membership of the executive committee of district No. 3, and the state executive committee of the Interscholastic League, individually and as such, respectively.

In the original suit it was alleged that the University Interscholastic League is a voluntary association, composed'of the various public schools of the state under articles of association, that the state is divided into sixteen districts, and that district No. 3 is composed of the towns of Ranger, Abilene, Breekenridge, Brownwood, Eastland, and Cisco. The pleadings further set forth that the association is governed by self-enacted rules and regulations, and that it has certain eligibility rules, with penalties for the violation of the same. Suffice it to say that, in the operation of the league in district No. 3, certain infractions of the eligibility rules were charged against the Cisco High School, and, as a result of an investigation pursuant to the rules of the association, the said Cisco district was suspended for one year from the state league. It was the position of the plaintiff in said suit that it had been wrongfully suspended, and upon a trial of the case judgment was rendered setting aside the order of suspension as made by the state committee of the Interscholastic League. The judgment went further and enjoined the district committee from proceeding further with the making of any schedules that would not provide1 for games with the Cisco High School, and ordering the district committee to immediately proceed to arrange a schedule for games to be played between the Cisco High School and the other high schools of district No. 3. The judgment ran against the state executive committee, the district executive committee, and against the defendants jointly and severally.

That judgment was entered September 28, 1932. Motion for new trial was overruled October 1st, the last day of the August term of court,' and on October 4th following, and on motion of the district committee, the trial court heard testimony and fixed the sum of $5,000 as the proper amount of the superse-deas bond. A bond in that amount was promptly executed by the executive committee of district No. 3, and filed and approved October 13, 1932. The state executive committee appeals with cost bond. The jurisdiction over said cause and its subject-matter thus passed into this court. The Cisco district will be referred to as relator and the committee as ¡respondents. The proceeding instituted in this court October 15, 1932, has been given prompt hearing and careful consideration.

In the first part of this opinion we stated the object and purposes of this application for the mandatory injunction. • The relator’s right to such relief will now be considered in the light of certain statutes and well-established rules of law and equity by which this court must be governed. There are at least two controlling reasons why the relief sought cannot be granted:

In the first, place, the original cause of action tried in said Ninety-First district court is a civil case within the meaning of article 2249 of the Revised Statute (1925), which provides that: “An appeal may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases. ⅜ ⅜ * ” In fact, we do not understand that any party to this suit contends that it is not such case, or that the judgment in the district court is not a “final judgment.” Certainly there would be no ground for such contention. That being true, the defendants (respondents here) had the undoubted right to appeal from said judgment. They excepted to the same, gave notice of appeal, and executed and filed the aforesaid bond, fixed by the trial judge as proper and sufficient protection' to the relator, the Cisco independent school district. In doing ’so, the respondents have simply availed themselves of the right of appeal under the plain provision of article 2270 of our Revised Statute, the pertinent part of which reads as follows: “An appiellant * * * desiring to suspend the execution of the judgment, may do so by giving a good and sufficient bond to be approved by tbe clerk, payable to appel-lee * * * in a sum at least double the amount of tbe judgment, interest and costs, conditioned that such appellant * ⅜ * shall prosecute bis appeal * ⅜ * with effect; and in case tbe judgment of the Supreme Court or the Court of Civil Appeals shall be against hiin, he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him.”

In other words, the lawmaking power of this state has provided definite ways of appeal “from every final judgment of the district court in civil cases,” and, where the appellant or appellants, as in this case, comply with the statutes, the trial court has no say, discretionary or otherwise, and neither does this court; that is, the effect of the super-, sedeas bond is “to suspend the execution of the judgment,” and that without let or hindrance from the trial or appellate court.

In construing the effect of the law granting the benefit of supersedeas bond, our Supreme Court in Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326, 330, quoted that provision of the statute which we have above set out, and with reference thereto said: “This is plain language that cannot be construed, because its meaning is as definite as could be expressed to the effect that, when the appellant or plaintiff in error complies with the law, the judgment cannot be enforced during the pendency of the appeal.”

There being no question but what the law relative to supersedeas bonds applies in this case, this court has no alternative but to recognize the respondents’ rights thereunder, and hold, as we do, that the judgment of the district court has been superseded pending the results of the appeal being prosecuted in an orderly and statutory manner. To hold otherwise would, in effect, be to hold that tbe judgment below can be enforced during the pen-dency of this appeal, notwithstanding the re-' spondents or the district committee have fully complied with the law giving them a right to supersede the judgment. The mere statement of the proposition discloses its unsoundness.

The effect of this court’s granting the relief prayed for would be to exercise original jurisdiction in the case, and not appellate jurisdiction, the later of which alone this court has. Laredo v. Martin, 52 Tex. 554. Also it would, as to respondents, nullify the effect of the super-sedeas bond and thereby deprive them of its fruits and benefits. No such power rests in-either this or the trial court, and the statute (article 2270) does not make this character of case and the judgment therein an exception to its operation.

. Our conclusions herein are warranted and required, as we believe, by the opinions of our Supreme Court in Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A. L. R. 1103, and Waters-Pierce Oil Co. v.. State, 107 Tex. 1, 106 S. W. 326, and the many authorities cited and discussed in each of them.

In the second place, the power of this court to grant original writs is strictly limited by statute. Article 1823 thereof is as follows: “Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” Certainly under the statute and the authorities, some of which are Gibbons v. Ross (Tex. Civ. App.) 167 S. W. 17; Moore v. McLennan County (Tex. Civ. App.) 275 S. W. 478; Duke v. Gilbreath (Tex. Civ. App.) 2 S. W.(2d) 324; Ford v. State (Tex. Civ. App.) 209 S. W. 490; Madison v. Martinez (Tex. Civ. App.) 42 S.W.(2d) 84; Bird v. Alexander (Tex. Giv. App.) 288 S. W. 606; Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, this court has power to enforce its jurisdiction and preserve the status quo of the subject-matter of such litigation after jurisdiction is acquired by virtue of the execution of proper appeal and super-sedeas bonds, but relator’s application here for this injunction makes out no such case. The relator makes no showing that the jurisdiction of this court over the subject-matter of the litigation is in any wise in jeopardy.

In seeking to have this court, by mandatory writ, require the defendants in the original cause “to proceed to carry out the commands of the judgment of the district court,” as above set forth, the relator is, in effect, asking this court to determine the merits of the original case, and, in addition, now confirm, the correctness of the trial court’s judgment from which this appeal is prosecuted. This, too, without having the benefit of the statement of facts and a complete transcript. To grant such purported relief would, in our judgment, effectively destroy the subject-matter of this litigation rather than preserve and enforce the jurisdiction of this court over the same.

The relator further suggests that, if this court finds itself prohibited by law from granting the relief prayed for, it then dismiss the pending appeal in the original suit, since it is obvious that all the questions involved therein will become moot at the expiration of the competitive football season, indicated to be about a week after Thanksgiving. Granting that the questions will become moot as contended, the proper order for this court to make would be one dismissing the case, and not dismissing the appeal. This contention is overruled. McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720; Watkins v. Huff, 94 Tex. 631, 64 S. W. 682; Dallas Land Bank v. Levee Improvement Dist. (Tex. Civ. App.) 263 S. W. 1103; Wichita Falls Elec. Co. v. Huey (Tex. Civ. App.) 246 S. W. 692, 694.

The relator makes a further point that the proceedings to obtain the supersedeas bond are insufficient to support the same. The contention rests on the fact that in the trial court the defendants (respondents here) made a motion to' have the trial court fix the amount of the bond, and that it was not acted upon October 1st, the last day of the August term of court, at which the original cause was tried, but was acted on the following October 4th, a day in the ensuing term. No authority sustaining this proposition is presented, and we have not found that the question has been passed upon. The right to supersede a judgment in this character of case is well established. Houtchens v. Mercer, supra; Ætna Club v. Jackson (Tex. Civ. App.) 187 S. W. 971. This right to supersede the judgment exists until the judgment is executed, and the trial court may be required by mandamus to fix the amount of such bond that the right to suspend the judgment may be exercised. The statute gives a certain limited time in which the losing party desiring to appeal may file either a cost bond or supersedeas bond, and we are of opinion that it necessarily follows that he is not put to an election during the term at which the judgment is rendered as to which character of bond he may file, or which method of appeal he will pursue. Hence the fixing of the amount of a supersedeas bond in this character of ease is not such part of the original proceedings as that it should have been performed at the term of court when judgment was rendered.- The proposition is overruled.

Por the reasons assigned, the prayer of the relator’s application is denied.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    FURLOW et al. v. KIRBY LUMBER CO.
    No. 2265.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 26, 1932.
    Rehearing Denied Nov. 2, 1932.
    Anderson & Lewis, of Center, for appellants.
    Andrews, Streetman, Logue & Mobley, of Houston, and W. I. Davis, of Center, for ap-pellee.
   WALKER, C. J.

On July 19, 1930, appellee, Kirby Lumber Company, filed this suit in Harris county, Tex., against Mr. and Mrs. W. P. Fleming, Mr. and Mrs. Asa Fleming, Mr. and Mrs. Jerrell Fleming, Mr. and Mrs. Elza Fleming, and Mr. and Mrs. J. F. Furlow, all citizens of Shelby county, Tex., to recover the title and possession of 540 acres of the B. P. Ayer survey in Shelby county; Tex. By an order dated the 29th day of January, 1931, the district court of Harris county sustained the pleas of privilege of the defendants and transferred the case to the district court of Shelby county. In that court Mr. and Mrs. W. P. Fleming filed their disclaimer, upon which judgment was duly entered. The other defendants answered by general and special demurrer's, general denial, and pleas of not guilty, and by a special plea whereby Mr. and Mrs. Asa Fleming and Mr. and Mrs. Jerrell Fleming, Mr. and Mrs. Elza Fleming, and Mr. and Mrs. J. F. Furlow each claimed a specific 135 acres, and each disclaimed as to the balance of the land in controversy, and each answered by the three, five, and ten year statutes of limitation as to the land so claimed. The evidence showed that all the defendants rested their claims of limitation upon one general improvement in the southwestern corner of the survey which they had cultivated jointly for as much as seventeen years. But neither their pleadings ñor their evidence identified this improvement upon the ground. The land was so divided amongst the defendants as to put a part of this cultivated land upon each of the 135-acre tracts. The evidence was undisputed that Pickering Lumber Company, holding under Kirby Lumber Company, and with its express consent, went upon this land and cut and removed the saw timber therefrom and afterwards cut and removed the tie timber. During the time the timber was being cut, the Pickering Lumber Company, with the express consent and approval of Kirby Lumber Company, maintained and operated a log tram across this tract of land, which was not abandoned until after all the timber was cut and removed. It was the theory of ap-pellee; Kirby Lumber Company, that this cutting and removing of the timber and operation of the log tram constituted an entry by it upon this tract of land, and that appellants had not perfected a new period of limitation subsequent to the abandonment of its reentry. No issue was submitted to the jury, involving the claim of Mr. and Mrs. J. F. Furlow. As to the other defendants, it was found that they had peaceable, continuous, and adverse possession of their respective tracts of 135 acres of land, cultivating, using, and enjoying the same for a period of ten years prior to July 19, 1930, the date this suit was filed, and that the defendants and each of them, prior to July 19, 1930, that is, during the year 1917, had defined the boundaries of the land claimed by them. The jury further found that Pickering Lumber Company finished cutting and removing the timber from the 540 acres of land in controversy during the year 1921 and finished cutting and removing the ties from this land in December, 1921, and finished removing the steel from its tramroad across this land in June, 1922. On this verdict both parties filed motions for judgment. The trial court overruled appellants’ motion, but granted appellee’s motion for judgment for all the land in controversy.

Opinion.

Appellants say “there is but one issue for the court to determine, and that is, the ways and means in which the continuity of the defendants’ possession could be broken, and the same can only' be broken by an adverse suit being instituted by the record owner, against the claimant.” Their argument is that the mere entry by the true owner, not coupled with the institution of an adverse suit, does not break the constructive possession of a limitation claimant. That is not a sound proposition of law. The entry by or under the true owner breaks the exclusiveness of possession of a limitation claimant, and it is not necessary that the true owner institute an adverse suit to give his entry that effect. Evitts v. Roth, 61 Tex. 81; Combes v. Stringer, 106 Tex. 427, 167 S. W. 217, 218; Southwestern Lmbr. Co. v. Allison (Tex. Com. App.) 276 S. W. 418; Evans v. Houston Oil Co. (Tex. Com. App.) 231 S. W. 730; South Texas Development Co. v. Manning (Tex. Civ. App.) 177 S. W. 998 (writ refused); Haynes v. T. & N. O. R. Co., 51 Tex. Civ. App. 49, 111 S. W. 427 (writ refused); Sanders v. Thompson Bros. Lumber Co. (Tex. Civ. App.) 139 S. W. 1004 (writ refused); Lee v. Kirby (Tex. Civ. App.) 277 S. W. 225; Howell v. Garlington (Tex. Civ. App.) 270 S. W. 269 ; 2 Texas Jurisprudence, “Adverse Possession,” §§ 82 and 84. On this proposition the Supreme Court said, in Evitts v. Roth, supra: “But upon the entry of the true owner upon any part of his survey the constructive possession and seizin belong to him. As to the non-inclosed land included in their title deeds, Evitts’ entry would effectually interrupt their constructive possession. For he claimed to the full extent of his boundary; they claimed to the extent of theirs; and his being the real title, carried the seizin and constructive possession to all the land embraced within'his survey not in the actual occupancy of appellees. Any other doctrine would lead to the absurdity that, without regard to the real title, to the party who first entered would belong and continue to belong the seizin and constructive possession to the extent of the boundaries defined in his title papers.”

It follows that the entry of appellee through Pickering Lumber Company, as found by the verdict of the jury, broke the continuity of appellants’ possession; and because, under the undisputed facts, they had not matured a new period of limitation since the Pickering Lumber Company abandoned its timber cutting and finished removing its steel from its tramroad across this land, judgment was properly entered against them in favor of appellee.

The entry by the true owner restricts the limitation claimant to his inelo-sures, thereby casting upon him the burden of pleading and proving the description of the land within his inclosures. Lee v. Kirb (Tex. Civ. App.) 277 S. W. 225, 226; York v. Thompson Lbr. Co. (Tex. Civ. App.) 169 S. W. 187; Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209; Houston Oil Co. v. Holland (Tex. Com. App.) 222 S. W. 546; Wiley v. Bargman (Tex. Civ. App.) 90 S. W. 1116. On this proposition this court said in Lee v. Kirby, supra: “If appellant had an adverse claim against any particular portion of the land in controversy, it could not have extended beyond his actual inclosures, since appellees were in possession of all the land not in the actual possession of appellant. Neither by pleading nor proof does he seek to identify any particular portion of the land in controversy. Therefore, 'whatever may be the effect of his testimony on the issue of limitation as to the little holdings he may have held and occupied, the court was without authority to give him relief. York v. Thompson Lbr. Co. (Tex. Civ. App.) 169 S. W. 187; Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209; Houston Oil Co. v. Holland (Tex. Com. App.) 222 S. W. 546; Wiley v. Bargman (Tex. Civ. App.) 90 S. W. 1116; Combes v. Stringer, 106 Tex. 427, 167 S. W. 217.”

Since appellants neither pleaded nor proved the description of the land held by them under cultivation, there was no basis for a judgment in their behalf for any part of the land in controversy. Therefore the court correctly rendered judgment in favor of appellee for all the land sued for.

Appellants would sustain their proposition by certain argumentative conclusions of the Commission of Appeals in Gibbs v. Lester, 41 S.W.(2d) 28, 30, "that the entry of the true owner upon the land does not disturb the actual possession of the claimant, except that entry be manifested by the filing of an adverse suit in a court of competent jurisdiction against the claimant.” In Gibbs v. Lester the court was discussing the effect of an adverse suit,, and everything said in that case must be construed as relating to the facts of the case. Gibbs v. Lester is in no way in point on any issue presented by this appeal.

Eor the reasons stated, the judgment of the lower court is in all things affirmed.


author: MARTIN, J.

text:
    HEIDENHEIMER v. HIGGINBOTHAM-BARTLETT CO. et al.
    No. 3878.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 28, 1932.
    Rehearing Denied Oct. 26, 1932.
    Tickers & Campbell, of Lubbock, for appellant.
    Lockhart & Garrard and Tom Garrard, all of Lubbock, for appellees.
   MARTIN, J.

Appellee brought suit against appellant and one W. L. Hughlett and wife, declaring upon two notes in the principal sum of $378.80, executed by W. L. Hughlett and wife and secured by deed of trust lien on a half section of land in Yoakum county, the payment of which was alleged to have been assumed by appellant, Heidenheimer, and praying for judgment for its debt and foreclosure of its lien.

Hughlett and wife answered, admitting the indebtedness, and alleging that appellant, Heidenheimer, had accepted a deed from themselves in which he expressly assumed the payment of said notes and asking for judgment over against appellant for any sum which appellee might recover against them. '

The answer of appellant was a general denial and a special denial that he assumed the debt in question or that he ever accepted .the deed from the Hughletts to the land, and hé further alleged that, after. the date of the alleged delivery of the Hughletts’ deed to himself, he ha^. foreclosed a prior deed of trust lien executed to him iby the Hughletts, and that by such trustee’s sale the appellee was estopped to assert any right in this suit, and that such sale constituted res judicata.

The substance of the material facts necessary to an 'understanding of the law questions discussed are briefly as follows: That about September, 1925, appellant, Heiden-heimer, conveyed to the Hughletts a half section of land, all on credit, for a consideration of $8,936, evidenced by ten vendor’s lien notes and secured by deed of trust, at which time it was agreed that certain improvements, consisting of a dwelling house, well, windmill, etc., were to be placed on- the land free of any liens; that none of the notes had been paid and only a small part of the interest thereon. The Hughletts went into possession, and thereafter purchased lumber and material from appellee Higginbotham-Bart-lett Company to erect a residence on said land, and secured the purchase price of said lumber with the deed of trust already referred ¡to. Thereafter, about March, 1928, the Hughletts, being unaible to pay for said land, executed a deed of conveyance to appellant, in which the payment of the two notes sued on herein was expressly assumed by appellant. This deed contained the following recital:

“That we, W. L. Hughlett and wife S. C. Hughlett, of the County of Terry and State aforesaid, for and in consideration of the sum of Ten ($10.00) Dollars, to us in. hand paid by A. Heidenheimer, Cash paid, the receipt of which sum is acknowledged, and the further consideration that Grantor herein cancels and surrenders Ten Certain promissory Vendors Lien Notes fully described in a certain deed wherein Grantee herein deeded to Grantor the hereinafter described property duly recorded in Yoakum County record of Deeds, Vol. 15 at page 380, Yoakum County, Texas, to which reference is here made for a complete description of said Notes, here acknowledged to be cancelled and surrendered.”

The evidence is Sharply conflicting as to whether this deed was accepted by appellant. The Hughletts claim that it was unconditionally accepted and delivered, and appellant claims that its acceptance was conditioned upon his being able to settle with certain of the creditors, including Higginbotham-Bart-lett Company, appellee herein, for a reasonable sum, and that, having failed to do this, he was not bound by the assumption of payment declared upon in this suit. Thereafter, about February, 1929, the appellant foreclosed his deed of trust lien by posting notices, and the land was regularly sold ¡by the trustee, at which sale the appellant ¡became the purchaser. In the fall of 1928 Hughlett claims he rented this land for 1929 from appellant. Appellant testified that no such contract was made until after the foreclosure.

A single issue was submitted to the jury, namely: “Do you find from a preponderance Of the evidence that the defendant A. I-Iedden-heimer unconditionally accepted the deed from W. L. Hughlett and wife and unqual-ifiedly agreed to pay the debt in controversy?” To .which the jury answered: “Yes.”

Judgment was accordingly entered for plaintiff as prayed for.

■ Only two law questions are presented for review by proper assignments of error copied in appellant’s brief, namely: (1) Tblat the verdict of the jury upon which the judgment herein is based is contrary to the evidence and Avithout support therein; and (2) that appellees were precluded and estopped from asserting any claim against appellant ¡because any and every right they or either had has been foreclosed and' canceled by the foreclosure of appellant’s superior lien against the land in question by its sale under the ¡terms of appellant’s deed of trust.

With regard to the first of these, we find evidence pro and con upon the issue submitted to the jury not necessary to here detail. AVe are bound by the jury’s finding under such circumstance. If there appear in the record matters whiph affect the credibility of witnesses who gave testimony in support of such finding, as appellant urges, we are without authority to disturb the jury’s finding, for this reason, this question being intrusted ¡by law-to the jury with whose discretion we .may not legally, interfere. , .

Akin to the above question is the one ably presented and urged by counsel for appellant that, even though the above deed had been unconditionally accepted and a binding assumpsit of the debt in question made by appellant, same had been rescinded ¡before its acceptance by appellant. We observe ¡that the record shows that no defense of this character was pleaded nor any such error assigned in the brief. Such a fact, if established by the evidence, would, under appellant’s theory, constitute a complete defense to plaintiff’s cause of action. Assuming, but not deciding, that the question would present fundamental error if the facts and circumstances with respect to same were so conclusive that only one reasonable conclusion could be reached, so. as to require our consideration of the matter, we have had no difficulty in, reaching the conclusion that the facts with respect to this make a jury issue, and there^ fore will be governed by the rule immediate^ ly discussed. This particular issue was not submitted ¡to the jury, nor was its submission requested by appellant. Where the existence of a fact urged constitutes a complete defense, and is in dispute, appellant waives same if he fails to request a submission of such issue to the jury. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084; T. & N. O. R. Co. v. Kveton (Tex. Civ. App.) 48 S.W.(2d) 523, 525; Texas Indemnity Ins. Co. v. Wingo (Tex. Civ. App.) 47 S.W.(2d) 397, 400; T. & P. Ry. Co. v. Bufkin (Tex. Civ. App.) 46 S.W. (2d) 714, 715.

Even if the matter urged did not constitute a complete defense to plaintiff’s cause of action, -but was only incidental or supplemental to the ultimate issue, the result would ¡be the same, as it would be presumed in support of the judgment herein to have ¡been found under such circumstances against appellant, he having been cast in the action-Authorities supra. “

So, under either theory, the remaining questions must toe decided upon the hypothesis that a valid and .binding agreement had been entered into by appellant to assume the payment of the debt in question which Continued and was in force when the judgment against him was rendered herein, unless such agreement was invalidated by the existence of the matters which we will now discuss.

As indicated above, appellant foreclosed his deed of trust lien about one year after the alleged assumption of the debt of appellee by a sale under his trust deed. This, it is claimed, canceled the inferior lien held by appel-lee and placed in appellant the title, free from any claim of appellee.

The payment of notes extinguishes the lien given to secure same. Stephens v. Moodie (Tex. Civ. App.) 30 S. W. 490; 37 C. J. 339.

A lien is but an incident of the debt, and dies with it. If, therefore, the deed from the Hughletts to appellant herein was unconditionally accepted by appellant, as found by the jury, appellant’s debt and his deed of trust lien were unquestionably extinguished thereby. He took the deed in question burdened -with its conditions, one of which was the cancellation of all his notes, as shown above. He was left nothing to foreclose, and his foreclosure proceedings were therefore a nullity. Such an ex parte proceeding on his part could not have the legal effect of a rescission of his former assumption of the payment of the indebtedness sued on. To give it this effect would be to hold valid a unilateral agreement.

It is further urged that no acceptance of the assumption of payment herein sued on was ever made by Higginbotkam-Bartlett Company. No formal acceptance was necessary. The filing of this suit was a sufficient showing of an acceptance. 41 C. J. § 772, p. 726; Spann v. Cochran, 63 Tex. 240; Schneider v. Roe (Tex. Civ. App.) 25 S. W. 58, 59; Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 873, 40 L. R. A. (N. S.) 672.

The judgment is affirmed.


author: FUNDERBURK, J.

text:
    GOODWIN v. BOGGUS et al.
    No. 998.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1932.
    J. T. Ranspot, of Mineral Wells, for appellant.
    W. J. Oxford and J. A. Johnson, both of Stephenville, for appellees.
   FUNDERBURK, J.

Frank Goodwin was tried for lunacy' under the provisions of R. S. 1925, title 92, arts. 5550 to 5561. The jury answered the first statutory issue “Yes,” and the second “No”; that is to say, they answered that Frank Goodwin was of unsound mind, but that it was not necessary that he be placed under restraint. It was further found that the defendant was 59 years of age, and was the owner of property of the value of $9,000. Upon these findings the county court, on December 10, 1930, adjudged the said Frank Goodwin to be of unsound mind, and awarded against him recovery of the costs of the proceeding. This proceeding was styled The State of Texas v. Frank Goodwin, Defendant, No. 18, and may be referred to as “the lunacy proceeding.”

On the same day, in a different proceeding, entitled “In re Guardianship of Frank Goodwin, Non Compos Mentis, No. 1872,” which may hereafter be referred to as “the guardianship proceeding,” Will Boggus filed an application to be appointed guardian of the person and estate of said Frank Goodwin. In the application it was alleged, among other things: “That the said Frank Goodwin was, on the 10th day of December, 1930, brought before this honorable court by a warrant issued out of said court under article 4267, charging that the said Frank Goodwin was of unsound mind, and a jury was impan-elled to try said Frank Goodwin as provided for in articles 4270-4272, R. S. 1925, and the jury after having been duly qualified under the law to try the said Frank Goodwin, has found by its verdict that he was and is a person of unsound mind, as shown by the verdict of said jury and the judgment of the court rendered therein.” The preceding quotation clearly refers to the lunacy proceeding. On the same day the court granted the application, fixed the bond, and appointed appraisers of the estate. The order shows that the appointment of Boggus was as. “temporary guardian.” It recited a finding that Goodwin was a person of unsound mind, as previously adjudged upon a verdict of a jury. (This also referring to the lunacy proceeding.) The order further recited that the appointment of the temporary guardian was without citation, but it was directed that “due notice of said application be given as is now required by law, and that said Frank Goodwin shall be personally served with citation to appear and answer such application at the next regular term of this court, or at such a time as is required by law for notice of this proceeding to be given,” etc. It further provided that: “Such appointment of guardianship, unless contested at the time said notice shall be made returnable, whether the trial be at the next term of court or at a time designated in said notice for the hearing of said application, after service of citation has been made, as provided by law, shall be made permanent.” The order named “said Frank Den-ton” as the temporary guardian, but we think it clear that the name was used inadvertently for that of Will Boggus. The citation commanded service by posting. It recited that Will Boggus had filed an application for letters of temporary guardianship, and had been appointed temporary guardian, and that the guardianship would be made permanent, unless same was contested “on the fourth Monday in December, 1930, the same being the 22nd day of Deceráber, A. D., 1930 * * * at which time all persons interested in the welfare of said person and state may appear and contest such appointment, if they so desire.”

The instant suit was brought by Goodwin against Will Boggus and Victor Bouldin, directly attacking the judgment in the lunacy proceeding No. 18, and the judgment in the guardianship proceeding, No. 1872, and seeking to have said judgments and proceedings declared void and to recover possession of his property from the guardian.. The defendants answered, pleading, among other things, the good faith of the said Will Boggus in his appointment and service as guardian, and his. payment of claims for necessaries, and prayed that, in the event his appointment was not regular, he be declared a trustee and his acts inquired into and approved by the court. The answer further set up that Goodwin was not of sound mind; that he had an estate and required the appointment of a guardian, and pleaded the former adjudication of his mental unsoundness, and prayed for the appointment of a guardian.

The court, in a nonjury trial, adjudged the temporary guardianship proceeding to be void, and removed the said Will Boggus as guardi-' an, but decreed the judgment in the lunacy proceeding to be valid and confirmed the same. Upon the basis of the last-named adjudication and the finding of facts showing the necessity for the appointment of a guardian, the court appointed 0. A. Maddox guardian of the person and estate of the said Goodwin. Goodwin has appealed.

The first question presented is whether the judgment in the lunacy proceeding, adjudging Goodwin to be of unsound mind, was void. The proceeding authorized by R. S. 1925, title 92, has for its sole purpose the determination of the necessity for restraint of persons of unsound mind. Clark v. State of Texas (Tex. Civ. App.) 35 S.W.(2d) 488. The proceeding is special and no appeal lies from the judgment. Glenn v. State, 48 Tex. Civ. App. 229, 107 S. W. 621; Leonard v. Dallas County (Tex. Civ. App.) 292 S. W. 249; Clark v. State (Tex. Civ. App.) 35 S.W.(2d) 488. The issues of fact to be determined are the same in all cases and are prescribed by law. R. S. 1925, art. 5552. The first issue is: “Is A. B., the defendant, of unsound mind?” The second is: “If the defendant is of unsound mind, is it necessary that he should be placed under restraint?” An affirmative answer to both is required to authorize the court to enter any judgment other than one discharging the defendant. Article 5553. The jury having answered the second issue in the negative, the court was without lawful authority to adjudge the defendant of unsound mind or to make any other order than one discharging the defendant. Clark v. State, supra. There being no right of appeal from the void judgment, and this suit being a direct attack upon its validity, we think the trial court erred in not decreeing the judgment to be void.

The next question is whether the court, having determined, [correctly, as we believe, and as this court so held in Damron v. Rankin (Tex. Civ. App.) 34 S.W.(2d) 360], that the temporary guardianship proceeding was void, had the authority in the instant 'case to readjudge the necessity for the appointment of a guardian and to appoint C. A. Maddox as such guardian without any other adjudication of the insanity of Goodwin than as shown by said void judgment in the lunacy proceeding. R. S.. 1925, title 69, chapter 12 (article 4267 et seq.), provides a complete procedure for the appointment of guardians of insane persons and habitual drunkards. That procedure includes as one of the essentials a jury trial and verdict upon the issues of whether the defendant is of unsound mind or is an habitual drunkard. The style of a case brought under said statute is in the name of the county as plaintiff and the insane person or habitual drunkard as defendant. R. S. 1925, art. 4271. Plainly that procedure was not followed in the appointment of C. A. Maddox, guardian. On the contrary, for an adjudication of the issue of insanity, the former void judgment in the lunacy proceeding was expressly adopted and made the basis of such action.

It is clear that, if the judgment is to be sustained, it must be upon the authority of some other statute than title 69, chapter 12, or title 92 (articles 5547 to 5561). The only other .statute to be considered is R. S. 1925, art. 4123. That statute is expressly cumulative to said chapter 12 of title 69, and provides that, in the appointment of regular guardians, all issues, including that of whether or not the person is of unsound mind, “shall be determined by the court on hearing, unless a jury is demanded, but it shall not be a prerequisite to such appointment that there has ¡been a jury trial, verdict and judgment that the person is of unsound mind, or is an habitual drunkard, nor is such person required to he present at the trial.” We shall not undertake to pass upon the validity of this statute because it is unnecessary to do so. Evidently it means that, if a jury be not demanded, a jury trial is thereby waived. It occurs to us that there may be grave doubt whether one charged with insanity can thus by mere silence waive the constitutional right of trial by jury. The capacity- to make such a waiver would be wholly inconsistent with that degree •of mental unsoundness sufficient to warrant a court in taking possession of one’s property and administering it, regardless of the wishes ■of the owner. But we may, for the present purposes, assume, without deciding, that the statute is valid. Its minimum requirements are a determination of the issue of mental unsoundness by a jury or a waiver of a jury trial, and a determination of the issue by the court upon a hearing. This presupposes, of course, that the court in a particular proceeding- has acquired jurisdiction of 'the person of the defendant. It is clear to us that these requirements have not been met., The issue of insanity was treated as having been predetermined by the void judgment in the lunacy proceeding. There was no waiver of a jury, since! undey the theory adopted, there was no necessity for a jury, and hence no occasion to exercise a power to waive. Besides, no such notice or service thereof upon Goodwin is shown as would give the court the authority to appoint a guardian.

Eor these reasons, we think the judgment below must be reversed and the cause remanded, which is accordingly so ordered. ,


author: HALL, C. J.

text:
    WHEELER et al. v. LEE et al.
    No. 3862.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 14, 1932.
    Rehearing Denied Nov. 2, 1932.

      Will Crow,'of Canadian, for appellants.
    Sanders & Scott, of Amarillo, for appel-lees.
   HALL, C. J.

Prior to May 4, 1931, A. P. Wheeler was indebted to Ernest Lee for goods, wares, and merchandise, and this claim was reduced to judgment on the 16th day of February, 1931, in cause No. 1947 upon the docket of the district court of Wheeler county. Lee caused a writ of attachment to be issued and levied upon a half section of land in said county. The attachment was levied on November 8, 1930. Lee’s suit was .based upon an indebtedness for which Mrs. Wheeler was in no way responsible and she was not made a party to the action. On April 7,1931, order of sale was issued upon said judgment and placed in the hands of the sheriff of Wheeler county, who proceeded to execute the same by levying upon the land in controversy, advertising the same for sale on May 5, 1931.

On May 4,1931, the appellant Mrs. Wheeler, joined pro forma by her husband, instituted this suit against Ernest Lee and John Porter, as sheriff of Wheeler county, to establish her fee-simple title to said land, to ingraft a parol trust thereon in her favor, and claiming the land as her separate property she sought to restrain the appellees by a temporary injunction from selling the land under the order of sale and prayed that the cloud upon her title be removed. She set out her chain of title, alleging that the cash payment made at the tiine she purchased the land, in the sum of $2,000, was derived as rents and revenues from lands which she owned individually in Harmon county, Okl., prior to the time she was married to A. F. Wheeler. That under the laws of Oklahoma the rents and revenues derived from her separate property also became a part of her separate estate, and that prior to the time she made the initial payment on.the land in question she had agreed with her husband that said land would be her separate property. That at the time the attachment was levied- Ernest Lee had notice of the fact that the land in question was the separate property of Mrs. AVheeler. That for the purpose of protecting her in her rights, A. F. Wheeler executed and delivered to her his three promissory notes for the sum of $1,000 each, dated November 7,1930, and one day before the said attachment was levied upon said land, and at the same time, executed a deed of trust lien upon said land in which Raymond Holt is named as trustee for the purpose of securing the payment of said promissory notes, which said deed of. trust was-duly filed and recorded November 7, 1930, in the office of the county clerk of Wheeler county. She further alleges that the land to. question constituted the homestead upom which she resided with her husband irons March 13,1925, until January, 1927, and from December, 1929, until November 8, 1930. She prayed in the alternative that if for any reason the court should hold that she was not entitled to recover the land in controversy, then, that she have judgment against A. F. Wheeler upon the three notes for $1,000 each executed and delivered by him to her prior to the levy of the attachment, and that the deed of trust' lien executed and recorded the same day be-foreclosed and established as a lien prior to-the attachment lien claimed to exist in favor of Lee, and that her claim of separate property be established as against Lee. That the-cloud upon her title caused by the attachment and judgment liens in favor' of Lee be removed and that she be quieted in her title and; the temporary injunction be made permanent.

On January 28, 1932, Lee filed his original answer which consisted only of a general demurrer and a general denial, praying that Myrtle Wheeler take nothing by her suit and that the defendant Ernest Lee go hence without day and recover his costs.

Mrs. Wheeler introduced in evidence deeds showing her chain of title and that the same had been duly recorded. She also introduced the writ of attachment issued on the 8th day of November, 1939, out of said cause No. 1947,. in the case of Ernest Lee v. A. F. Wheeler,, together with the sheriff’s return thereon and) the record of Wheeler county showing that the writ of attachment lien had been duly recorded in said county. She further introduced a copy of the judgment, the notice of. sale published in the local paper. She them introduced the three promissory notes for $J,~ 000 each, dated November 7, 1930, which her-husband, A. F. Wheeler, had executed and delivered payable to her, together \vith the deecli of trust executed and recorded the same day to secure said notes. Thereupon she rested her case and the defendants introduced bo testimony whatever.

The court directed the jury to return a verdict for the defendant Lee against Mrs-Wheeler.

The evidence shows that each of the note» for $1,000 which A. F. Wheeler “executed and delivered to her on November 7,1930, contains-this recitation: .“This note given to secure inr dividual money owing by the maker to Myrtle; Wheeler.” /

The deed of trust contains this recital s “The three notes this day created are given for money that Mrs. Myrtle Wheeler paid to on the purchase money of the land above described, said money being her individual money that she had at the time the said A. E. Wheeler married her, the said Myrtle Wheeler.”

■ The transaction between Wheeler and his wife evidenced by the three notes for $1,000 each and the deed of trust was not attacked as fraudulent by either pleading or evidence. So far as this record shows the notes and the deed of trust are valid instruments.

Before a'creditor may successfully attack instruments of this character, he must allege and prove that they were executed between the spouses in fraud of his rights. 20 Tex. Jur. 491, § 138.

..There is no allegation made by Lee charging that A. E. Wheeler was insolvent at the time he executed the notes and deed of trust. As said in 20 Tex. Jur. 375, § 12: “A gift from a husband to his wife is not void merely from the fact that the conveyance is voluntary.” .And in Id., § 14, it is said: “The rule that an insolvent debtor may, in the absence of any law tQ the contrary, prefer one creditor over another, no more property being conveyed than is reasonably sufficient to satisfy the debt, applies as well to the preference of á creditor wife as to the preference of other classes of creditors, the property turned over to the wife being no more than is reasonably sufficient to satisfy the .debt.’” See Speer’s Law of Marital Rights (2d Ed.) 169, § 128. As said by the Supreme Court in Torrey v. Cameron, 73 Tex. 583, 11 S. W. 840, 842: “The same rule applies between the husband and wife as between any other persons holding to each other the relation of debtbr and creditor. The amount of the credit and the value of the property must be approximately equal.” See Broussard v. Lawson, 58 Tex. Civ. App. 415, 124 S. W. 712. It is further said in Id., § 25: “As to creditors the general rule is that a husband' who is solvent may lawfully transfer to his wife his interest in the community property so long as the principle that one must be just before he is generous is not thereby violated.”

The above-quoted recitals from the notes and the deed of trust were not admissible as evidence to establish the fact alleged that the initial payment made by Mrs. Wheeler upon the land in question constituted her separate property. Lee is a stranger to said instruments.

The rule as announced in 17 Tex. Jur. 676 is: “Ordinarily recitals are not evidence against persons not parties or privies to the instrument in which they are contained. Especially where they are mere hearsay or mere self-serving declarations.”

In order to establish the fact that the $2,000 paid by Mrs. Wheeler was her separate property at that time, it was incumbent upon her to prove that she had the money prior to her marriage or that it had been received as rents from lands in Oklahoma which she owned prior to her marriage, and the further duty rested upon her to prove that under the laws of Oklahoma rents and revenues derived from real estate which was separate property were also separate property of the owner of the real estate. In the absence of such proof, the presumption is that the laws of Oklahoma were the same as in Texas, which declare such rents and revenue to be community property. 17 Tex. Jur. 297, § 84.

Because of the absence of any such proof, the issue of separate property is not in the record, nor is the issue of homestead in the case.

We have reviewed the statement of facts and find that the case before us presents only one question, and that is whether the court should have given Airs. Wheeler a judgment upon her three notes for $1,000 each and a foreclosure of her deed of trust lien against her husband and Ernest Lee. We think it clear that the court erred in failing to do so. These instruments were not attacked as being fraudulent conveyances and upon'the face of the record are valid in every particular. A husband, though insolvent, may even give his wife his interest in community property, and the gift is valid as between them and all others except creditors who attack the transaction as a fraudulent conveyance. As shown by the authorities above, if he is indebted to the wife, he may convey his interest in community property in an amount sufficient to satisfy the debt, preferring her over his other creditors, or he may, as in this case, execute a deed of trust lien upon his interest in community property to secure a debt due his wife. In the original opinion we used language which appellee has- construed as a holding that the notes were a gift from Wheeler to his wife when the idea we intended to convey was that it was a payment. For that reason the originál opinion is withdrawn. On the face of the record the notes and lien are valid.

It is unnecessary to consider any other questions presented.

Because the court failed to render a judgment in favor of Mrs. Wheeler upon the notes and to foreclose her deed of trust lien giving it priority over the attachment lien, the judgment is reversed and the cause is remanded.


author: BLAIR, J.

text:
    SAN ANTONIO PAPER CO. v. MORGAN.
    No. 7723.
    Court of Civil Appeals of Texas. Austin.
    July 27, 1932.
    Rehearing Denied Oct. 26, 1932.

      Hertzberg & Kerchville, of San Antonio, for appellant.
    • Cofer & Cofer, of Austin, for appellee.
   BLAIR, J.

A default judgment was rendered in favor of appellee against appellant for $12,050 damages for breach of contract. By this appeal appellant contends that its motion to set aside the judgment and to try the case upon its merits should have been granted for the following reasons:

(1) Because the‘evidence of one witness, strongly corroborated by other evidence, showed that thé citation was served upon appellant only nine days before the beginning of the term of court at which the default judgment was rendered.

(2) Because appellant having showed no lack of diligence in ánswering the suit and in filing its motion to set aside the default judgment, and having pleaded a meritorious defense to the suit, the trial court abused its discretionary power to set aside the judgment and try the cause on its. merits.

(3) Because the evidence was wholly insufficient to support the default judgment for •damages for loss of profits resulting from breach of contract, and that loss of profits was not the true measure of damages.

The evidence adduced on the hearing of the motion showed that the suit was filed August 26, 1931, that citation issued the same day, returnable to the September term beginning September 7, 1931, and that, according to the official returns thereon, the citation was duly seryed upon “D. E. Newton, Secretary of the San .Antonio Paper Company,” the appellant corporation, on August 27, 1931, which was ten full days before the beginning of the term of court at which the default judgment was rendered. No answer was filed by .appellant, and on appearance .day,. September 8, 1931, the court rendered judgment by default with Writ of inquiry, and' on the. same day heard evidence on the writ, and as to .the amount of damages, and then rendered final judgment for $12,050. On September 14, 1931, appellant filed its motion to set aside the default judgment and to try the case upon its merits. The default judgment recited that appellant “had been duly cited to appear herein for the. length of time and in the manner required by law,” but that appellant had wholly made default.

Newton positively testified that he was served with the citation on Friday, August 28, 1931, at 9:30 a. m.; and appellant-offered as corroborating facts and circumstances the testimony of appellant’s president, its bookkeeper, and its attorney in this case, to the effect that Newton showed them the citation on Friday, August 28, 1931, and told them that it had been served upon him on that date. Each of these witnesses testified that they did not know, except from Newton, whether he had been served on August 27 or August 28, 1931. Appellant’s truck driver testified that he saw an officer in the street near appellant’s office on Friday, August 28, 1931, at 9:30 a. m., fitting the description of the officer who served the process, and who was later identified by the witness as being the officer he saw in the street near appellant’s office. .Appellant also offered evidence tending to show that Newton was a careful business man, that, he owned stock in appellant corporatism, and that he would have had no motive in claiming that he was served on August 28th instead of August 27th, except the inference that he had possibly overlooked calling the citation to the attention of his superior officer on Thursday, and did not care to acknowledge his negligence in that regard. On the other hand, the-deputy sheriff, John Garoni, testified positively that he served the process on Thursday, August 27, 1931, at 10 o’clock a. m., as shown by his return on the citation, and that the date of service was impressed upon his mind because it was the last day of service, and because he served it on his way but to investigate a burglary of the Pincus home, which occurred the night before. Miss Mary Tyr-rell, an employee of the sheriff’s office, who kept a card index of the business, produced a card, dated August ,27,1931, showing that Ga-roni was assigned to the Pincus burglary case, and that he made his report thereon August 27,1931. The official return on the citation in question was strongly corroborated by other witnesses and other records kept in the sheriff’s office at San Antonio. The record kept -by the office deputy, Mrs. Webster, showed that' the citation was received August 27, 1931, at 9 o’clock a. m., delivered to Deputy Garoni for service on August 27, 1931, and served by -him August 27, 1931. The post office record showed that the special delivery letter containing the citation was delivered to the sheriff at 9 o’clock a. m. August 27, 1931. Miss - Tyrrell’s card index showed, in substance, that the citation was received 8/27/31; .assigned to Garoni 8/27/31; last day of service 8/27/31; served S. A. Paper Company; fee $1.75; executed 8/27/31; returned 8/27/31.

The above evidence fully sustains the finding of the trial court that the citation was served upon appellant on August 27, 1931, which was ten full days before the beginning of the term at which the default judgment was rendered, under the rules announced in the cases of Randall v. Collins, 58 Tex. 231; Pierce-Fordyce Oil Ass’n v. Staley (Tex. Civ. App.) 190 S. W. 814; Swearingen v. Swearingen (Tex. Civ. App.) 193 S. W. 442; Godshalk v. Martin (Tex. Civ. App.) 200 S. W. 535; McBride v. Kaulbach (Tex. Civ. App.) 207 S. W. 576; and Joseph v. Kiber (Tex. Civ. App.) 260 S. W. 269, which hold in substance, as follows:

(1) That a default judgment will not be set aside for lack of service of process where it expressly recites that due service was had and the officer’s return on the citation shows that due service was had, except upon clear and satisfactory proof that it had not been served in time, and that, where the evidence offered in support of the attack on the service is that only of one witness, it will not suffice, however credible the witness may be.

(2) That recitals of due service of citation in a judgment as well as in the officer’s return may be disputed by only one witness, if his evidence is strongly corroborated.

(3) That corroborating facts and circumstances to disprove the recitations of due service in a judgment or in the officer’s return must come from a source other than that of the one witness who is attacking the service of the citation.

Under this third rule, much of the testimony of Newton lost its probative force, particularly the evidence tending to show his careful business habits and motives which might have prompted him to testify that he had not been served on the date recited in the judgment and sheriff’s return. No one saw him served with the citation, and the remainder of the corroborating testimony merely offered circumstances showing that he could have been served on August 28th, or that he thought he had been served on that date, instead of August 27th, as shown by the sheriff’s return. In any event, the evidence is conflicting on the issue, and the finding of the trial court concludes the matter.

Since the trial court found that appellant was duly served with the citation on August 27, 1931, it follows that Newton, as appellant’s agent, was guilty of negligence in failing to tell appellant that he had been served on that day; and, since this negligence of appellant’s agent caused appellant to fail to file its answer in time, the trial court legally exercised its discretionary power in refusing to set aside the default judgment and to try the case on its merits.

The question of setting aside a default judgment is a matter within the discretion of the trial court, and, unless that discretion has been clearly abused, which is not the case here, an appellate court is not authorized to disturb the judgment. It is also settled law that, where one seeks to set aside a default judgment because of failure to answer and defend the suit, he must show that neither he nor his agents were negligent in that regard, and that, where defendant fails to show a reasonable excuse for not answering the suit in time, it is immaterial that he alleges a meritorious defense 'thereto. Hooser v. Wolfe (Tex. Civ. App.) 30 S.W.(2d) 728; Homuth v. Williams (Tex. Civ. App.) 42 S.W. (2d) 1048, and cases there cited. The failure of Newton to inform appellant, his employer, of the service of citation upon him until August 28, 1931, and in telling appellant that he was served on that date, was negligence, and showed no reasonable excuse for not answering the suit in time, except an excuse based upon the negligence of appellant’s agent, and with which negligence appellant' alone is charged.

We sustain appellant’s contention that the default judgment is not sufficiently supported by evidence as to the amount of damages resulting from loss of profits for breach of contract, but do not sustain appellant’s contention that loss of profits is not the true measure of damages in this case, nor that loss of profits on the collateral contract alleged was not recoverable under the pleadings and proof thereof.

The contract sued upon reads, in part, as follows:

“That the Morgan Printing Company promises to buy from the San Antonio Paper Company all papers required by the Morgan Printing Company to carry out its contract with the State of Texas, for a term of two years, beginning January 1, 1930, and ending December 31, 1931, or as much longer as this said State Contract continues.

“In consideration of the above contract of Purchase the San Antonio Paper Company promises and guarantees to sell said Morgan Printing Company any and all merchandise now listed or to be listed, in their catalogue and price list during the life of said Contract at San Antonio Paper Company’s net <vost at Austin, Texas, plus one-half the profit on all papers sold to the State of Texas under Morgan Printing Company’s contract with said state.

“It is further agreed and understood that the San Antonio Paper Company is to pay freight on all shipments from Mills to Austin and Morgan Printing Company is to pay all legal freight on shipments from San Antonio to Austin.

“It is understood and agreed that these said freights shall be recognized and added to San Antonio Paper Company’s original invoices in order to ascertain an actual net cost at Austin, Texas, on all papers sold to the Morgan Printing Company by the said San Antonio Paper Company.

“It is specifically understood and agreed that all profits on all papers sold under this Contract shall be the difference between-the above stated actual cost at Austin, Texas, and-the price collected from the State of Texas, by said Morgan Printing Company for all of such papers sold; one-hálf of this total profit to go to the San Antonio Paper Company for its full share of profit on said papers, and one-half of said total profit to go to said Morgan Printing Company as its full share of profit on said papers.”

After pleading the contract, appellee pleaded its breach, and the damages resulting as follows:

“That said agreement aforesaid was entered into in view of the fact that plaintiff upon his bid had been awarded the State Contract by the State of Texas to do its job printing for the two years beginning January 1, 1930, and ending December 31, 1931. That having obtained said contract with the State of Texas to do its printing the plaintiff entered into said contract aforesaid with the defendant for the purpose of securing the necessary blank papers and other merchandise incident thereto in order that he might carry out said contract • with the State of Texas. That defendant well knew that this was the purpose of entering into said contract. That the said contract was mutually profitable to the plaintiff and defendant and would have been highly so, if defendant had carried out its contract as it had agreed.
“That said State contract with the State of Texas for two years would have involved the sum of to-wit: $75,000.00, which would have been paid to plaintiff by the State of Texas had he been able to have carried out his contract with the State of Texas. That 40% of this $75,000.00 or the sum of $30,000.00 would have been paid for the large amount of paper necessary to be used in doing the printing for the State of Texas and such sum of $30,000.00 would have been paid to plaintiff for such paper and incidental merchandise. That 60% of said sum of $75,000.00 or the sum of $45,000.00 would have been paid by the State of Texas to the plaintiff for the job printing work in doing said printing under said contract with the State of Texas.
“That plaintiff would have made an average of to-wit 25% profit upon said $30,000.00 worth of paper, if used and sold to the State of Texas under said contract or a profit of $7,-500.00 on such paper and incidental merchandise of which profit of $7,500.00, one-half or $3,750.00 would have accrued to and belonged to defendant and one-half of such $7,500.00 or the sum of $3,750.00 would have accrued to and belonged to plaintiff under the contract between plaintiff and defendant as aforesaid. That plaintiff .would have 'made a profit of 20% of said $45,000.00 to be paid for the said job printing work under his contract to the State of Texas as aforesaid.
“IV. That afterwards to-wit on the 28th day of January, A. D. 1931, the defendant without cause, justification or excuse breached its said contract with plaintiff aforesaid and refused to sell to plaintiff the papers and incidental merchandise stipulated and agreed in their contract as aforesaid. That thereby plaintiff was prevented from carrying out his contract with the State of Texas and also compelled to give up said valuable contract with the State of Texas. That the plaintiff on account of defendant’s breach of its certain contract was unable to perform his contract with the State of Texas and so lost the benefits of his contract with the State of Texas and the benefit and profits which would have accrued to him upon such contract. That as the direct result of the breach of its contract by defendant plaintiff lost the profit on the $30,000.00 worth of paper which would have been sold to the State of Texas by plaintiff, his one-half of said profit being $3,750.00 as aforesaid. That plaintiff furthermore lost the profit on the job printing work which would have been 20% of the said $45,000.00 which would have been paid by the State of Texas as aforesaid, being the sum of $9,000.00. That thereby plaintiff lost the profit which would have accrued to him upon the papers sold in the sum of $3,750.00 and the profit which would have accrued to him upon such job printing work, in the sum of $9,000.00 making the total sum of $12,750.00, the loss of profit suffered by plaintiff by reason of the breach by defendant of its said contract aforesaid.”

In view of another trial on the issue of the amount of damages, we will not discuss the evidence adduced on the trial of the writ of inquiry in detail. We find it insufficient to support the default judgment because no data, basis, or figures were offered showing, or from which the damages suffered for loss of profits on the contract with appellant or on the collateral contract with the state could be calculated with any degree of certainty as to amount. No evidence was offered showing how-much paper and printing, as contemplated under appellee’s two-year contract with the state, was used by the state from January 1, 1930, the date of the collateral contract, to September 8, 1931, the date of this judgment, nor how much would be reasonably expected to be used for the remainder of the two-year contract. These figures ought to be reasonably ascertainable from the agencies or departments of the government with which the contract was made. The only evidence offered as to damages was an “estimate,” not based upon any data or figures, as to how much profits appellee would have inade on his contract with appellant and his collateral contract with the state; and appellee’s evidence that he “imagined” his total business with the state on its contract with him would have amounted to $75,000 for the two years, 60 per cent., or $45,000 of which would have been for labor and job work, on which he would have made a profit of from 18 to 25 per cent., aggregating $9,000; and that 40 per cent, of the $75,000 would have been for paper on which he would have made a profit of $3,750, less an allowance of $700, leaving a 'balance of $3,050.

Under the allegations of appellee’s petition he is entitled to recover such damages as loss of profits on his contract with appellant and on the collateral contract with the state as he is able to prove. The law is settled in this state that loss of profits may be recovered in an action for breach of contract; it being generally held that contracts are usually entered into with the view to future profits, and that, in suits between the contracting parties, it will be presumed that loss of profits were contemplated from a breach of the contract. And, while the earlier cases looked upon loss of profits as speculative, remote, and uncertain, the modern authorities hold that “profits, of which a person has been deprived by the fault of another, are not always speculative and remote, but in certain instances form a firm and enduring base for a claim for damages.’’ W. H. Norris Lumber Co. v. Harris (Tex. Civ. App.) 177 S. W. 515, 517. Or, as was said by the Supreme Court in H. & T. C. Ry. Co. v. Hill, 63 Tex. 385, 51 Am. Rep. 642:

“The damages claimed by the plaintiff were the profits yhich he would have derived from the contract had it been carried out by the company according to its terms. This is, no doubt, the true measure of damages in the case, as now well settled by the great weight of authority. The principle is that announced in Hadley v. Baxendale, 9 Exeh., 341, and adopted by this court in all cases where the question has been brought up for adjudication. Calvit v. McFadden, 13 Tex. 326; Jones v. George, 61 Tex. 345 [48 Am. Rep. 280].

“It is in effect that these damages are such as are incidental to and caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties at the time of making the contract Williams v. Barton, 13 La. 410.

“It is useless to announce a proposition so plain as this, that a party making a favorable contract, from the performance of which he would ordinarily and in the usual course of things derive profit, is damaged to the extent ■of the profits that would thus arise in case of .a non-performance of the contract by the party with whom he dealt.

“Such profits are naturally incident to the •contract, and must have been within the contemplation of the contracting parties.”'

See, also, 13 Tex. Jur. pp. 198-208, and cases there cited, for a full review of this question.

We are also of the opinion that appellee’s contract with appellant was entered into with expectation of deriving mutual profits from appellee’s independent contract with the state of Texas. The contract in suit referred to that contract with the state and provided that appellant and appellee would divide the profits therefrom equally. Or, if the contract with the state be regarded as a collateral contract or transaction, appellee pleaded facts showing that appellant was informed that the loss of profits on the state contract would be the result of the breach of its own contract to furnish appellee the paper necessary to carry out his state contract. Such loss of profits would result from the nonperformance on the part of appellant of its contract to furnish appellee the necessary paper to carry out his contract with the state, and would be regarded as having been within the contemplation of the parties and recoverable as damages. Grand Prairie Gravel Co. v. Wills Go. (Tex. Civ. App.) 188 S. W. 680; Sun Mfg. Co. v. Egbert & Guthrie, 37 Tex. Civ. App. 512, 84 S. W. 667; Mudge & McLean v. Adams, 37 Tex. Civ. App. 186, 83 S. W. 722; 13 Tex. Jur. 204-206.

The remaining question presented is whether the case should be remanded generally, or remanded with-instructions to try only the issue as to the amount of damages. The general rule is that a judgment by default precludes the defendant from asserting any defense as to liability, and limits the issue to the question of the amount of damages. In 1 Sayles, Practice, § 440, p. 415, the rule is stated as follows: “A judgment by default admits every averment in the petition, except the amount of damages.”

This rule is supported by the following and many other authorities: Long v. Wortham, 4 Tex. 381; Swift v. Faris, 11 Tex. 18; Guest v. Rhine, 16 Tex. 549; Watson v. Newsham, 17 Tex. 437; Prince v. Thompson, 21 Tex. 480; Storey v. Nichols, 22 Tex. 87; Tarrant County v. Lively, 25 Tex. Supp. 399; Welch v. Holmes, 2 Posey, Unrep. Cas. 343; Johnson v. Dowling, 1 White & W. Civ. Cas. Ct. App. § 1090.

It is held in Spivey v. Saner-Ragley Lbr. Co. (Tex. Com. App.) 284 S. W. 210, 215,.as follows: “But we think that, in cases of un-liquidated damages, the effects of such presumption should not be so extended as to preclude a defendant from complaining by proper assignment of error on appeal, of the insufficiency of the evidence to support the judgment for the amount recovered. Whenever the damages are unliquidated, and the amount thereof depends for ascertainment upon the evidence adduced upon the trial, the defendant will not be presumed to have waived the insufficiency of such evidence to support the amount of recovery, for he is entitled to rely upon the court to render judgment only upon sufficient evidence on the subject.”

This case also holds that, where the attack is sustained on appeal that a default judgment was not supported by sufficient evidence, the case will be reversed “as to the amount of damages only.” See, also, article 2157, R. S.; Lopez v. Mexico-Tex. Co. (Tex. Civ. App.) 281 S. W. 326; Pellum v. Fleming (Tex. Civ. App.) 283 S. W. 531, error refused in 116 Tex. 130, 287 S. W. 492; Love v. Allard (Tex. Civ. App.) 286 S. W. 581; Home Natl. Bank v. Herd (Tex. Civ. App.) 250 S. W. 250; Springman v. Heidbrink (Tex. Civ. App.) 233 S. W. 310.

But appellant contends that it pleaded a meritorious defense, and also showed excuse for failure to file answer before default, and that, under the rule announced in Dancy & Co. v. Rosenberg (Tex. Civ. App.) 174 S. W. 831, and S. W. Ins. Co. v. G., T. & W. Ry. Co. (Tex. Civ. App.) 196 S. W. 276, 277, it is entitled to have the judgment reversed and the cause remanded generally. This contention cannot be sustained', because the trial court found as above stated upon sufficient evidence that appellant and its secretary, D. E. Newton, were guilty of negligence in not presenting an answer within the time required by law.

The facts also show that the court necessarily found that the negligence of appellant’s agent in failing to tell appellant the true date of. service of the citation alone caused appellant to fail to answer the suit in time. It is true, as pointed out by appellant, that this court and others have held that a default judgment may be set aside if good excuse for negligence in not answering is shown, and a meritorious defense is pleaded. But those cases relate to facts showing that the acts or conduct of plaintiff or plaintiff’s agents or attorneys have excused the apparent laches or negligence of defendant. Caldwell Oil Co. v. Hickman (Tex. Civ. App.) 270 S. W. 214; Chaney v. Allen (Tex. Civ. App.) 25 S.W.(2d) 1115. No such case is presented here, but the sole cause for appellant’s failure to answer was the neglect or dereliction on the part of Newton with reference to the time of service of citation upon him. Appel-lee was' not charged with, nor was he guilty of, any fraud or act which would in any manner tend to excuse the laches or negligence of appellant in failing to' answer this suit before default judgment was rendered.

We therefore remand this cause with instructions to try only the issue as to the amount of damages, if any, appellee suffered as the result of breach of the contract by appellant.

Remanded, with instructions.

On Motion to Retax Costs.

Appellee moves to retax the costs as to the following items:

(1) That 73 per cent, of the transcript fees should be taxed against appellant, because that proportion of the transcript contained the bill of exception upon which appellant sought to set aside the default judgment, and which relief appellant failed to establish in this court. This part of the record furnished the basis for one of appellant’s assignments of error, and was therefore a necessary part of the record. It is true that this assignment was not sustained, but appellant succeeded in reversing the judgment because of insufficient evidence to sustain the damages assessed, and as the successful party to the appeal was therefore entitled to recover all costs of the appeal.

(2) That the court reporter’s fee for the statement of facts for $56.75 was excessive, and not authorized by the statutes. The court reporter has made an affidavit, which is attached to this motion, to the effect that $56.75 was incorrect, and that he was entitled to receive $13.50 for the statement of facts, being 90 cents per page for the 15 pages. Ap-pellee contends that the statute provides for a charge of only 15 cents per hundred words; that the statement of facts contained exactly 2,900 words, which would allow only a charge of $4.35 for the statement of facts. This contention is sustained. The statement of facts is in question and answer form. The acts of the 42d Legislature (1931) First Called Session, c. 34, p. 76, § 3 (Vernon’s Ann. Civ. St. art. 2239), provide that, “where such question and answer transcript is filed, such reporter shall receive as compensation therefor the sum of fifteen cents (15⅜ per hundred words for the original.”

The motion will be overruled in part, and in part granted.

Overruled in part, and in part granted.