text:
    ARMSTRONG v. ANDERSON et al.
    No. 2737.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1932.
    Rehearing Denied Dec. 29, 1932.

      O. R. Armstrong and Pryer & Cunningham, all of El Paso, for appellant.
    R. P. Burges and Walter S. Howe, both of El Paso, for appellees.
   WALTHALL, J.

Appellee Grace Marr Anderson, on October 20, 1931, filed in the probate court of El Paso county, Tex., in cause No. 5250, in probate, her petition complaining of appellant, and alleging that on Pebruary 20, 1928, she filed in said court petition to probate the last will of W. IC. Marr, who had died February 14, 1928, and alleging that on the 6th day of March, 1928, such will was admitted to probate. That by the terms of said will, petitioner was made sole devisee and appointed independent executrix without bond; that on March 6,1928, she qualified as independent executrix and received letters testamentary, and in .due course returned an inventory and appraisement which was by the court approved.

She alleges that about six weeks after the issuance to her of letters testamentary appellant, O. R. Armstrong, who had filed her petition and was representing her as her attorney, advised her that, by reason of the fact that two of the children bom to her and the said W. K. Marr were born subsequent to the execution of the will of W. K. Marr, under the laws of Texas, the provisions of said will were suspended, and that she could not act as independent executrix, but that an administrator would have to be appointed for the estate. She alleged that there was another child born of her marriage to W. K. Marr, who was born years before the will was executed, who was living at the time of the death of W. K. Marr, and is now living.

■She alleged that she was ignorant of the law, and had no other legal advice except that of her attorney, that she relied upon his advice, and that her said attorney, appellant herein, filed in the Probate Oourt a petition alleging that, by reason of the birth of said last two named children, “the provisions of said will would be temporarily suspended, and the provisions thereof constituting the said Grace K. Marr Independent Executrix would be suspended, according to the laws of Texas.” Said petition asked that the letters testamentary theretofore issued be withdrawn, and that letters of administration issue, to her.

This appellee alleged in said first-described petition that she acted as administratrix with the will annexed, under the advice of counsel, the appellant herein, until about April 9,1930, when, acting through her said counsel, and upon his advice, she filed her petition to resign as administratrix of said estate, accompanying such application with an exhibit of the condition of the estate and the administration account, that acting solely upon the advice of her said counsel, the appellant herein, she suggested his appointment to succeed her as administrator with the will annexed, and that he was so appointed and qualified.

She alleged that in the exhibit of the condition of the estate, and administration account, which accompanied her petition to resign as administratrix, and which was prepared by her said counsel, the amount of fees was left blank, and the amount which was to be paid to her attorney as attorney’s fees was left blank, and that she was advised by her attorney that these amounts would be filled in by the-court, and that she had nothing to do with allowing or fixing the attorney’s fees or commissions.

She alleged that the commissions, when filled in, showed an amount grossly in excess of the fees that were legally allowable in said estate, and that the amount filled in as an attorney’s fee was grossly excessive, and that she was wholly ignorant of the amount of either the commissions allowed or the attorney’s fees approved by the court until more than one year later, when she received a letter from her said attorney, then acting as administrator with the will annexed, and a copy of his first annual report, in which, for the first time, she was advised of the commissions that had been allowed, and t-he attorney’s fees which had been approved. She set forth specifically numerous items upon which the commissions had been allowed, aggregating several thousand dollars, which were not legally allowable against said estate.

She further alleged that, at the solicitation of her said attorney, appellant herein, she executed an assignment to him of one-half of the fees or commissions to be allowed her as ad-ministratrix, which assignment was to compensate him for legal services rendered to her for representing her in other legal matters than those connected with the estate.

She alleged that she had never resigned as independent executrix of said estate, but was advised that her powers as such independent executrix were suspended by law, pending which suspension, administration was necessary, and acted upon that belief, as shown by the papers filed in the probate court; that the substitution of such administration, in lieu of the executorship, had been detrimental to the estate, and necessitated greatly increased costs,.including attorney’s fees, which would have been wholly unnecessary except for such substitution; that she was not advised of her legal rights to continue as independent executrix, nor of her right to pass upon the amount of attorney’s fees she would allow, nor was she advised of the illegality of a large portion of the commissions charged against the estate, until less than thirty days before the filing of her petition in the probate court, in which she ashed for the removal of appellant as administrator, and her reinstatement as independent executrix, and in which she ashed the court to reconsider and reaudit the attorney’s fees and commissions.

Appellant, defendant below, answered in the probate court with a plea in abatement, plea of limitations, general and special exceptions, and further answered reciting the original appointment of appellee herein as independent executrix, and her subsequent suspension as such, and appointment as admin-istratrix, alleging that, at the time he caused that to be done, he was of the opinion that the law of the state of Texas suspended temporarily her appointment as independent executrix. He alleged that appellee was correctly advised by him at all times, that she acquiesced in the several steps tahen by him with relation to the estate, and was cognizant of the amount of commissions and attorney’s fees, and alleged that the amounts of both were legal and reasonable.

On November 16, 1931, the probate court entered its order removing appellant, Otto R. Armstrong, from the position of administrator with the will annexed, and ordered him to file to the January term of the court, 1932, a true, full, and complete exhibit of the condition of the estate, together with the administration account thereof, properly verified, as required by law, and directed the clerk to reissue letters testamentary to this appellee, to which order and judgment appellant herein excepted and gave notice of appeal to the district court of El Paso county, Tex., for the Forty-First judicial district.

The cause coming on for hearing before the •district court in February, 1932, the defendant, appellant here, filed his first amended original answer, setting up, for the first time, that the petitioner, appellee here, was a married woman and without the legal capacity to sue without the joinder of her husband; pleading in bar the orders of the probate court accepting the resignation of petitioner as ad-ministratrix, and approving her final account and appointing Otto R. Armstrong administrator with the will annexed. He further pleaded limitation, filed a general demurrer and special demurrers and general denial, and answered in detail, seeking to justify his actions as attorney for petitioner and as administrator and asserting the correctness of the commissions and attorney’s fees allowed. The plea in bar, plea of limitations, general and special exceptions were overruled.

Appellee’s husband, Rembert O. Anderson, appeared in the district court and requested permission of the court that he be allowed to become a party plaintiff, pro forma, adopting .all the allegations in the plaintiff’s petition •contained, and the court granted such leave. Appellant filed a plea to the jurisdiction, on the ground that service upon him was not had upon the application of Rembert O. Anderson to become a party plaintiff pro forma, which plea was overruled, and appellant, defendant below, excepted.

On the 4th day of March, 1932, the district court rendered judgment decreeing that appellant, Otto R. Armstrong, be removed from the position of administrator with the will annexed, for the reason that he had misapplied funds belonging to the' estate, coming into his hands as such administrator, and ordering a copy of said judgment transmitted to the probate court for the observation of said court, such “judgment to be without prejudice to any person interested to present matters not herein adjudicated to the Probate Court on the final account of the administrator.” Defendant, appellant here, excepted and gave notice of appeal to this court, and in due time filed his appeal bond, assignments of error, and bills of exception. The court filed its findings of fact and conclusions of law, set forth in full in transcript, pages 33 to 38, and in reply to request of defendant, appellant here, for additional findings of fact, the , court filed additional findings of fact, as set forth in transcript, page 41.

Opinion.

Mrs. Grace Marr Anderson’s husband did not originally join her in her suit, and no allegation is made as to his failure, or neglect to do so. The question of the husband’s non-joinder seems not to have been raised in the county probate court, and when raised for the first time in the district court, the husband requested permission of the court to make himself a party pro forma, and adopted the pleadings of his wife, which the court granted.

Appellant submits error in not dismissing the suit' brought by a married woman without joinder of her husband; the contention being that under article 1983 of the Revised Civil Statutes it is only where the husband fails or refuses to sue can the wife sue alone, and that by authority of the court.

Without restating the character of the proceeding brought, we have concluded, without discussing the- question presented, that, the trial in the district court being a trial de novo, andi in which new parties may be made,, and the husband having been made a party with the wife, and as such filed his pleading by permission of the court, no reversible error, if error, is shown. Smith et al. v. Mann (Tex. Civ. App.) 296 S. W. 613; Elwell et al. v. Universalist General Convention, 76 Tex. 514, 13 S. W. 552.

No citation was issued and served on appellant when Mr. Anderson became a party in the suit; appellant filed a plea to the jurisdiction of the court because of want of service. The court overruled the plea, to which appellant submits error.

.Additional parties, necessary or proper parties to a suit, may be brought in by either party under, article 1992, Revised Civil Statutes, upon such terms as the court may prescribe, “but not at a time nor in a manner so as to unreasonably delay the trial of the case.” The record does not show that any terms were requested or were prescribed by the court as to costs or otherwise, nor is it suggested that the admission of the new party caused any delay of the trial of the case. As stated, the additional party simply as a party pro forma adopted the pleading of the plaintiff, to which pleading no additional answer was filed or issue joined. Appellant at that time was already before the court on all issues pending on citation and answer. There is no suggestion of any defense of which appellant was deprived by the joinder of the additional party plaintiff. We think no error is shown.

There is no merit in appellant’s fourth assignment suggesting that, by reason of the fact that appellee Grace Marr Anderson is a mai'ried woman and living with her husband in California, she has not the legal capacity to bring this suit, not being an interested party.

We understand the suggestion as to want of interest is predicated upon that portion of the answer in which it is set forth that by a writing she transferred and assigned to the State National Bank of El Paso and appellant, in trust, all her right, title, and interest in the estate of W. K. Marr. It appears, however, in said instrument she reserved to herself the right to the proceeds and income of such trust estate during her natural life, with the right to dispose of it by will. It is further made to appear that she was a creditor of said estate-to a large extent for money loaned. Without discussing them severally under this assignment, her. suit here has more than one purpose, any one of which would; we think, give her a standing in the courts to assert it.

The sixth assignment in effect suggests that appellee’s petition is subject to a general demurrer and special exceptions, and submits error to the court’s holding that the petition stated a cause of action. The petition is too lengthy to state it here; we have briefly stated its general nature above. It is sufficient, we think, in its statements of facts upon which evidence could be heard as to the matters there complained of and upon which evidence was submitted and from which the trial court made the several findings of fact.

We need not here state but refer to the several findings of fact made by the trial court. The petition is sufficient to tender the several issues upon which findings are made.

Error is assigned to the overruling of appellant’s plea in bar in which apjjellant pleaded, in substance, that, on April 9, 1930, ap-pellee Mrs. Grace Marr Anderson had resigned as administratrix of the estate along with her waiver of appointment and designation of the appointment of appellant as administrator, and the action of the probate-court thereon, and the subsequent proceedings of said court in the matter of the administration of said estate, by reason of which appellant pleaded that appellee was barred to now assert her alleged cause or causes of action. The action of the court in overruling said plea shows no error. The action of the court on said plea, as we understand it, calls in question the ruling of the court on several special exceptions, some of which-have elsewhere been considered.

We will pass briefly upon the exceptions rather than discuss them.

Exception (a) is addressed to the appellee’s-original petition. The allegations state-wherein the application to substitute an administration in place of the powers of the independent executrix were injurious to the estate, resulting in delays and increase of-costs. The allegations seem proper to show the alleged action of appellant, as administrator of said estate, to lay the predicate for his removal as administrator, and the reis-suance to appellee of letters testamentary as ordered by the probate court, and which ap-pellee insists should have been done by the-district court.

Exception (b). The proceedings bad are dp rect, legal ratber than equitable, a proper statutory proceeding in probate, as we view it, to remove an administrator and to correct certain orders in tbe administration of an estate alleged to have been improperly made.

Exception (c). * Elsewhere considered.

Exception (d). Statute does not require verification of the petition.

Exceptions (f) and (g). . We fail to see, under the evidence, the application of the equitable rule of laches or limitation or estop-pel.

Exception (h) questions the sufficiency of the petition as showing any statutory ground for removal of appellant as administrator of the estate. Article 3467 of the Rev. Oiv. Statutes states the grounds for removal of an executor or administrator of an estate on the complaint to the county judge by any person interested in the estate; one of the grounds being “when it is proved that he has been guilty of gross neglect, or mismanagement in the performance of his duties as such executor or administrator.” To show mismanagement and upon which the court heard evidence and made findings, appellees allege, among other things, “defendant has further mismanaged the affairs of the estate in that he' has charged and collected, deducted and withheld from the estate large sums of' money which he was not entitled to deduct or withhold as such administrator.” The court in the judgment recites: “And the court having heard the cause and the evidence submitted therein, doth find that the appellant, Otto R. Armstrong, administrator with the will annexed of the estate of W. K. Marr, deceased, has misapplied funds belonging to said estate, coming into his hands as such administrator, and should therefore be removed from his position as such administrator.”

Immediately following the above, the judgment recites: “It is therefore ordered, adjudged and decreed” — then follows the order removing appellant as administrator, show-' ing, as it appears, that the removal was based upon- the above-recited finding in the judgment. The court made a detailed statement of the finding, which we need not copy here, as the statement of the finding in the judgment, which is not itemized, seems, as intended, to be a sum-up of what is elsewhere stated in detail.

There was no error in overruling special exception (i) on the ground that the petition does not show that appellee was free from negligence.

Error is assigned to the admission of evidence on the ground that same was immaterial, irrelevant, hearsay, and argumentative, called for the conclusion of the witness, and tended to impeach the judgment and records of the probate court by parol testimony. The evidence is lengthy, and we see no reason to copy it here. We have read it in the light of the objections made. The evidence in the main refers to conversations between the witness Mrs.«Anderson and appellant, and advice given her by appellant as her "attorney, while she was acting in the matters of the W. IC Marr estate as independent executrix under the will, and advice given her by appellant as a reason for resigning as executrix, and accepting appointment as administratrix of the estate, and as to advice given her as a reason why she resigned as administratrix, and the circumstance under which appellant was appointed administrator, and matters between , her and appellant as to fees in the matter of the administration of the estate. Appellee was asking that appellant be removed as administrator and that she be reinstated as independent executrix. We have concluded that the evidence was admissible.

Ry assignment 17, appellant submits there was no competent evidence to show any negligence or mismanagement by reason of any misapplication of any part of the estate as a ground for his removal as administrator.

The court found that appellant had misapplied a part of the estate coming into his hands as administrator. It would serve no useful purpose to quote from the record the evidence considered by the court in determining the issue of misapplication of funds of the estate coming into appellant’s hands as administrator. The evidence is extensive, and consists of parol and record evidence.

In the order approving the exhibit and account of appellee on her resignation as ad-ministratrix, the court ordered that her exhibit and account be approved, and directed that she deliver the estate remaining in her possession to appellant; “and, further, the court approves the fixing of the administra-trix’ fees at the sum of $4,606.00, and the administratrix’ claim for expenses of attorney’s fees rendered her in the estate by O. R. Armstrong, heretofore at the sum of $4,500.00.”

On a conflict in the evidence as to whether Mrs. Anderson ever approved Mr. Armstrong’s claim of $4,500 as attorney’s fee, the trial court found that she never had approved his claim. The evidence is sufficient to sustain the court’s finding. While the order of the county court approving the final account of the administratrix and fixed her claim for expenses, including her expenses of attorney’s fees, rendered in said estate at $4,500, the trial court found that the ad-ministratrix had never paid said sum to Mr. Armstrong, that Mr. Armstrong had never presented his claim for attorney’s fees duly verified to the administratrix for allowance, nor did he ever verify his claim for attorney’s fees and file it as a claim against the estate. Without quoting the evidence or the record, tie above facts were found by tbe court and uncontroverted except that Mr. Armstrong testified that the administratrix approved his claim for attorney’s fees.

The record shovs% and the trial court found that Mr. Armstrong succeeded Mrs. Anderson as administrator of the estate, and that during the course of his administration he has taken from the funds of the estate coming into his hands as administrator the said sum of $4,500 claimed by him as attorney’s fees under the allowance as stated. The court further found that appellant paid to himself from the funds of the estate coming into his hands as administrator the sum of $2,905.83; that such payment was made under the claimed assignment to him by ap-pellee of an undivided one-half interest in commissions due appellee. The trial court found that appellant has not accounted to appellee for any part of said sum of $2,905.83, nor did appellant verify his claim to said sum and file it as a claim against said estate. Without quoting from the record, the findings are supported by the evidence. We understand from appellant’s testimony in the record, and we state it in justice to him, that, in preparing the final report of appellee in which the attorney’s fee was allowed, he put in pencil the amount of the fee to be allowed him, to which he testified appellee agreed, and that the county court, with such tentative amount in pencil, agreed, and so approved the report, and that subsequently appellant erased the amount in pencil and the same amount was written in on the typewriter before the papar was filed. Appellee denied that any amount as attorney’s fee was stated in pencil, but that she was advised by appellant that she would have no voice in fixing the attorney’s fee, and that she at no time agreed to the sum stated as attorney’s fee.

Appellant’s contention, as we understand it, is that appellee agreed to the attorney’s fee, that the amount retained by him was done as appellee’s attorney and not as administrator, and that, the fee having been allowed by the county court and entered in the judgment approving the account, same cannot be questioned in this proceeding. We do not concur in that contention.

We think the record is not such as to make applicable the principle announced in Hurley v. Barnard. 48 Tex. 83.

The trial. court found that the attorney’s services were of benefit to the estate and efficient and valuable, but made no finding as to their value.

Appellant, by several assignments, in effect, submits that under the trial court’s findings neither negligence nor mismanagement by a misapplication of the funds of the estate by appellant is shown.

The record clearly shows under the trial court’s findings that the allowance of the attorney’s fee by the probate court was made under a misapprehension of the facts, as to the approval of the fee by Mrs. Anderson; also that the probate court, in allowing the attorney’s fee in the final account of Mrs. Anderson as administratrix, adjudicated the question of the necessity of the legal services and the reasonableness of ttie attorney’s fee at a time when such fee had not been paid; and the record shows that such fee has at no time been paid or properly allowed. It has been improperly withdrawn from the estate by appellant. The attorney’s fees under the statute, articles 3691 and 3692, are expenses of administration and provide for the manner of payment. The Eastland court fully discusses that question in Morton’s Estate v. Ferguson (Tex. Civ. App.) 45 S.W.(2d) 419, and hold that the probate court cannot adjudicate the questions of necessity of legal services and reasonableness of fees in application for attorney’s fees made before payment of fees by representative of estate. The statute is explicit in its provision's. The vulnerable heel in appellant’s suggestion that the facts do not show negligence or misapplication of the funds of the estate seems to us to lie in the fact that he, as attorney for the administratrix, prepared her final report and at a time when, as the order of the court shows, he had then qualified to, and did immediately thereafter, succeed her as administrator in the management of the estate, and without complying with the statute withdrew said amounts from the funds of said estate.

True, administrators are properly allowed as expense charge all reasonable attorney’s fees, but, under the statutes and decisions of the courts, to make such charge allowable and payable out of the funds of the estate, the requirements of the statutes must be complied with. Texas Jurisprudence, vol. 14, par. 570.

In concluding this part of the case without applying it specifically to any one of appellant’s assignments, we might say there are two methods under our statutes by which a claim for allowance of attorney’s fee may be allowed. One is by allowance of a fee directly to the attorney; in such instance his claim must be verified, docketed, allowed by the administrator, and approved by the court. When that method is pursued, the approval of the court of such claim has the effect of a final statutory judgment. The other method is where the administrator may employ an attorney, and as an expense of administration present such claim for reimbursement, and, when allowed, the allowance is not to the attorney, but to the administrator. Rev. Civ. Statutes 1925, art. 3691; Rowe v. Dyess, et al; (Tex. Com. App.) 213 S. W. 234.

While the statute does not define the terms “misapplied” or “mismanaged” as used in article 3467, as grounds for removal of an administrator, we have concluded that the findings of the court as disclosed by the record, without complying with the statute, are a misapplication and a mismanagement of the property of the estate.

Appellee Mrs. Grace Marr Anderson alleged that by the will of W. K. Marr she was duly appointed independent executrix of said estate; that the will was duly admitted to probate and letters testamentary'issued to her; such executorship has not been suspended, nor has she ever resigned such executor-ship, nor has she refused to execute and perform her powers and duties as such; and that she is now ready, able, and willing to proceed with her duties as independent executrix under the will; and prayed that letters testamentary be reissued to her authorizing her to proceed with the administration of said estate.

The trial court found that on the 19th day of April, 1928,'under the advice of her attorney, Otto R. Armstrong, appellee presented an application to the probate court to be appointed administratrix with the will annexed of the estate of W. K. Marr, deceased. The application recited, in substance, that the birth of the children subsequent to the making of the will suspended its operation. Her application was granted, and the court on May 8, 1928, entered its order revoking her letters as independent executrix, and appointed her administratrix. She qualified as administratrix and proceeded as such under the direction of the probate court. Subsequently she resigned, and appellant, Armstrong, was appointed administrator of the estate.

On the findings, the trial court concluded as matter of law that “The action taken by Mrs. Marr in the Probate Court narrated in the findings of fact, although taken under a mistake as to the law, was tantamount to her resignation as independent executrix under the will,” and refused to reinstate or reappoint her as independent executrix.

Appellee Mrs. Anderson assigns such refusal of the court as error. Appellee’s contention seems to be that the probate records do not disclose any resignation of appellee as independent executorship, nor any desire nor intent on her part to do so; that the probate records disclose an erroneous belief that the after the will bom children operated as a suspension, not a revocation, of the provisions of the will appointing her independent executrix;

Conceding that the probate court was in error in acting upon an erroneous belief as suggested, and that appellee’s rights as independent executrix were not suspended as erroneously supposed, and we think her right to act as independent executrix was not affected by the birth Of the children after the making of the will, the question is presented: Did Mrs. Anderson, by asking'the court to appoint ¡her administratrix, and subsequently resign as such and apply for and have Mr. Armstrong appointed administrator, have the legal effect to bring her right to serve as independent executrix before the court for consideration and action and to waive such right for reappointment? Her right to such appointment may be waived by conduct as well as by declaration. Texas Jurisprudence, vol. 13, p. 665, par. 80, and cases used.

Conceding that appellee had waived, if not in words resigned, her right to have the court appoint her as independent executrix, and we think she had so waived, two questions seem to be presented: Did her right to such reappointment terminate, and did the power of the court to make such reappointment terminate, when the court had acted upon her waiver, had approved her report as independent executrix, had thereafter appointed administrators of the estate, and had for some time managed the estate under a judicial administration?

We have concluded that the action taken by Mrs. Anderson in requesting her appointment and subsequently in requesting the appointment of Mr. Armstrong, as administrator of the estate, was a waiver, a surrender of her right, or refusal to further so act as independent executor of the estate, and the court, having acted upon her request in the administration of said estate, the estate was thereby left without an executor, and the court necessarily was left without power to further administer the estate by an independent administration.

The trust confided by the testator in the trustee named in the will is a special trust, and, if that person should fail to accept and exercise the trust, it is at an end; and, as in any other case, where there is a will without an executor, the county court must appoint an administrator with the' will annexed. Langley v. Harris, 23 Tex. 564, 667; In re Estate of Grant, 93 Tex. 68, 73, 53 S. W. 372; Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367.

We have concluded, under the record before us, the court was not in error in refusing to reappoint appellee'as independent executrix.

Finding no reversible error, the case is affirmed.


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    PARKS v. PARKS.
    No. 8941.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 7, 1932.
    Sidney P. Chandler and J. Marvin Erickson, both of Corpus Christi, for appellant.
    B. S. Odem and H. G. Hart, both of Corpus Christi, for appellee.
   PLY, C. J.

This is a suit for divorce instituted by ap-pellee and for a partition of property alleged (o belong to the community. The divorce was granted, and the real estate was set aside for the use and benefit of appellee until the youngest child, nine years of age, should reach majority. The trial judge took the cause “under advisement” on January 4, 1932, then on February' 13 he gave the divorce and gave the custody of the children to appellee, declared the property to be community, but denied a homestead interest in it to appellee, and decreed her $30 a month for the children. Then on February 26 the judgment was rendered that instead of $30 a month the homestead was given to appellee until the nine year old child became twenty-one. The last'named is the judgment, from- which the appeal was perfected.

,It was alleged. that the couple had been separated for ten years, although during that time they had occupied the same house, had eaten and, at times, had fought connubial battles at the same table. The marriage had continued for twenty-five years, the husband being twenty-five years old at the time of marriage, and the wife sixteen or. seventeen years of age. There were five children, ranging in age from twenty-one down to nine, three girls and two boys.

The bulk of the testimony upon which the divorce was granted not only from the bonds of matrimony, but as to appellant a divorce from the only home he had the right to enter, was that of appellee, the children of the marriage, and relatives of the wife. Some of them evinced strong animosity to appellant. Most of the incidents upon which the right to a divorce was claimed arose long -before the suit was filed. The row precipitated by the husband and father slapping his daughter, who had been impertinent; and this had occurred nearly two years before the suit was filed. They lived in the same house, ate at the same table even after the suit was instituted. The suit was filed in 1930, and for nine months afterwards the couple lived under the same roof. The facts indicate that the wife had outstripped the husband in education and in modern ideas concerning marital relations, and, if she ever heard of the husband being the head of the household, she had repudiated it with vigor and Spartan determination. She attended business schools without consulting him, and without his knowledge or consent traveled to Wichita Falls, probably four hundred miles away, in North Texas, and had her tonsils removed. There was, under the benign influence of a Texas statute which destroyed a rule of evidence sanctified by centuries of experience, a full exposure, by the parties to the marital contract, of matters in times past deemed too sacred for the ears of a court and a thrill hunting public, and this exposure was made by the husband and wife in their criminations and recriminations. One affirmed, the other denied, as might be expected in such a school for false swearing. The statute granting the right of the testifying against each other has practically destroyed the sanctity of the marriage relation, which had been fostered through a hundred generations of our ancestors. Divorce has become so easy that the marriage relation is entered into lightly because of its evanescent character. We hear it flippantly said by those who have the power of annulling marriage that, when the parties become uncongenial to each other, a divorce should be granted. If no one was affected but the parties themselves, that policy would have more force, but it shakes the very foundation of government in the destruction of the home and the lives of growing children. In the earliest judicial history of Texas as a state, Ohief Justice Hemphill, in Sheffield, v. Sheffield, 3 Tex. 79, had prophetic vision as he predicted the terrible results from a loose administration of the marriage and divorce laws. That great jurist said:

“The nature, object, and important purposes of the contract, should have their just influence upon the mind. The parties have pledged themselves, not only for their own happiness,'but for purposes important to society, to live together during the term of their natural lives. This engagement is the most solemn and important of human transactions." It is regarded by all Christian nations as the' basis of civilized society, of sound morals, and of the domestic affections; and the relations, duties, obligations and consequences flowing from the contract, are so important to the peace and welfare of society, as to have placed it under the control of special municipal regulations, independent of the will of the parties. The mutual comfort and happiness of the parties are the principal, but not the only, objects of the engagement. It is intended, also, for the benefit of their common offspring, and is an important element in the moral order, security and tranquillity of civilized society. The parties cannot dissolve the contract, as they can others, by mutual consent, and no light or trivial causes should be suffered to effect its rescission. While full effect is to be given to the statute, it should be remembered that, according to the experience of the most enlightened nations, the happiness of married life greatly depends on its indissolubility, and that the prospect of easy separations foments the most frivolous quarrels and disgusts into deadly animosities. Parties may not be able to live together very harmoniously, but they cannot be separated, except for reasons approved of by the law. And when they know they must live together, except for causes prescribed by the law, they learn, in the language of Lord Stowell, ‘to soften, by mutual accommodation, the yoke which they know they cannot shake off; they become good husbands and wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties it imposes.’ Such construction ought to be given the statute, and such weight allowed the acts of the parties, as would effect the legislative intention; but there should not be such looseness of exposition as would defeat the beneficial objects of the marriage institution, and sunder its bonds with almost as much facility as if it were a state of concubinage, dependent alone on the will of the parties.”

It is true that the testimony was heard and weighed by the district judge, and in other cases than those of divorce where the testimony is conflicting the judgment bf the trial judge on the facts will not be interfered with by an appellate court, but in divorce cases no such rule prevails. The statute, article 4632, requires in divorce suits that divorces be rendered only when full and satisfactory evidence is adduced, and it must not only be sufficient for the trial judge, but must be found “full and satisfactory” by the appellate court. As said by this court in Lohmuller v. Lohmuller, 135 S. W. 751, 754: “In suits for divorce the same respect is not required for the verdict of a jury as in other cases, and the trial judge in decreeing a divorce does not proceed upon'the verdict, but upon his own judgment, and, when the cause reaches this court, it too must be convinced that the evidence is ‘full and satisfactory,’ before it will affirm a judgment. Moore v. Moore, 22 Tex. 237. And, when a judgment for divorce depends largely, if not altogether, upon the testimony of the spouse seeking the divorce, a decree dissolving the bonds of matrimony will not be granted unléss the other facts and circumstances tend to corroborate his or her testimony. Seago v. Seago [Tex. Civ. App.] 64 S. W. 941.”

We conclude that the evidence is not “full and satisfactory,” and fails to sustain the divorce. The acts of any importance were condoned by the wife by remaining under the same roof with her husband many months, and in most instances many years.

The judgment is reversed, and judgment here rendered that a divorce be denied. '•


author: SMITH, J.

text:
    CUELLAR et al. v. MOORE.
    No. 3933.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 30, 1932.
    T. M. West 'and Nat L. Hardy, both of San Antonio, and M. J. Raymond, A. A. Alvarado, and E. B. Guerra, Jr., all of Laredo, for appellants.
    Thos. H. Ward, of Laredo, for appellee.
   SMITH, J.

Mrs. J. V. Moore was injured in a collision between her motorcar (which she was driving), and a car owned by Volpe Bros, (a partnership), and driven by Ramon Cuellar. The Volpe car was covered by a casualty insurance policy issued by the New Amsterdam Casualty Company.

Mrs. Moore first brought this action for personal injuries (sustained in said collision) against Volpe Bros, and Cuellar, but later im-pleaded the insurance company as well and sought to subject it to direct liability to her on account of its assurance to Volpe Bros. The latter, and their driver, Cuellar, reconvened and sought recovery against Mrs. Moore on account of injuries to the property of Volpe Bros, and the person of Cuellar.

In a trial without a jury the court below rendered judgment in favor of Mrs. Moore against all three defendants, jointly and severally, for $1,116.50 for injury to her car, but denied her any damages for personal injuries. The court also denied recovery to Volpe Bros, and Cuellar upon their cross-actions. Those defendants as well as the insurance company have appealed.

The appeal is controlled by the question of whether the insurance company was properly rendered accountable directly to Mrs. Moore because of its contract with Volpe Bros. We have concluded that she had no cause- of action against the insurance company, and that the judgment must be reversed because of its joinder in the action.

The contract of insurance was made by and between Volpe Bros, and the insurance company and no others, whereby, in consideration of the premium paid by Volpe Bros, to the company, the latter insured the former “against loss from the liability imposed by law upon” Volpe Bros, on account of injury to the person or property of third persons through the operation of the assured’s automobile described in the contract. The insurer was further obligated in said contract to investigate' accidents covered by the contract, to negotiate settlement of claims, defend at its own expense and “in the name and on behalf of the assured any suit against” the latter on account of injuries to person or property, with the right reserved to the company to settle such suit if deemed expedient; to pay all expenses incurred by assured “in providing such immediate surgical relief as is imperative at the time of any accident covered by this policy.” It was further provided in the contract, as follows:

“No action by the assured shall lie against the company until the amount of the damages for which the assured is liable by reason of any casualty covered by this policy, is determined either by a final judgment against the assured or by agreement between the assured and the claimant with the written consent of the Company; nor unless such action is brought within two (2) years after the rendition of such final judgment.”

“The bankruptcy or insolvency of the Assured shall not release the Company from any payment otherwise due hereunder and if, because of such bankruptcy or insolvency, an execution on a judgment against the Assured is returned unsatisfied, the judgment creditor shall have a right of action against the Company to recover the amount of said judgment to the same extent that the Assured would have had to recover against the Company had the Assured paid the judgment.”

Appellee rests her claim against the insurance company entirely upon the contract between that company and Volpe Bros., and in determining that claim the courts must, of course, look solely to the provisions of that contract, which provide, in effect, that the insurance company shall “insure” Yolpe Bros, “against loss from the liability imposed by law upon” Yolpe Bros, “for damages on account of” injuries to the person and property of others. It is then stipulated that no right of action upon such obligation “shall lie against the Company until the amount of damages” thereunder “is determined by a final judgment against” Volpe Bros, “or by agreement between” Yolpe Bros, “and the claimant with the written consent of the” insurance company. It is admitted — is obvious from the record — -that none of those contingencies had arisen which would authorize the assured, even, to bring an action upon the contract against the insurer, for no liability has been imposed by law upon Volpe Bros., no amount of damages for which Volpe Bros, are liable has been “determined by a final judgment against” them, or by their approved agreement with appellee. Moreover, by express provision of the contract, no creditor of Yolpe Bros, shall have a right of action against the insurer except in case of the bankruptcy or insolvency of Volpe Bros., and not in that contingency until he has obtained, a judgment against Volpe Bros, and execution thereon has been returned unsatisfied. Of course, such contingency has not here arisen.

The insurance contract was paid for by and issued to Volpe Bros, for their benefit and protection, and by its own terms can never operate to the benefit of third parties except upon the conditions and in the contingencies therein expressly prescribed, and which, under express provisions of the contract, cannot arise until after the claims of third parties are reduced to final judgment and the assured refuses, or is unable because of bankruptcy or insolvency, to discharge that judgment. To give to the contract the added effect sought by appellee requires not only the making of a new contract for the parties thereto, but the extension of the benefits of that contract to complete strangers, in obvious contravention of the intention of the parties. Huddy on Automobiles (5th Ed.) § 837; Merchants’ Mut. Automobile Liability Ins. Co. v. Smart, 267 U. S. 126, 45 S. Ct. 320, 69 L. Ed. 538; Metropolitan Casualty Ins. Co. of New York v. Colthurst (C. C. A.) 36 F.(2d) 559; Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135; Jacobs v. Maryland Casualty Co., 198 App. Div. 470, 191 N. Y. S. 692; Schoenfeld v. New Jersey Fidelity & Plate Glass Ins. Co., 203 App. Div. 796, 197 N. Y. S. 606; Goodman v. Georgia Life Ins. Co., 189 Ala. 130, 66 So. 649; Owens v. Jackson-Hinton Gin Co. (Tex. Civ. App.) 217 S. W. 762; Hanson v. Haymann (Tex. Civ. App.) 280 S. W. 869; Fidelity Union Casualty Co. v. Hanson (Tex. Com. App.) 44 S.W.(2d) 985; New York Ind. Co. v. Ewen, 221 Ky. 114, 298 S. W. 182; Small v. Morrison, 185 N. C. 577, 118 S. E. 12, 31 A. L. R. 1135; O’Neal v. Pocahontas Transp. Co., 99 W. Va. 456, 129 S. E. 478; Shepherd v. Pocahontas Transp. Co., 100 W. Va. 703, 131 S. E. 548; Conwell v. Hays, 103 W. Va. 69, 136 S. E. 604; Ganen v. Kraft, 41 Ohio App. 120, 180 N. E. 277; Dallas Coffee & Tea Co. v. William's (Tex. Civ. App.) 45 S.W.(2d) 724; American Fidelity & Casualty Co. v. Jones Transfer Co. (Tex. Civ. App.) 46 S.W.(2d) 1054; Suydam v. Public Ind. Co., 161 A. 499, 10 N. J. Misc. 868; U. S. Fid. & Guar. Co. v. Wyer (C. C. A.) 60 F.(2d) 856; Ætna Cas. & Surety Co. v. Parker Roofing Co. (Tex. Civ. App.) 43 S.W. (2d) 1102.

Appellant cites the following additional authorities: American Automobile Ins. Co. v. Cone (Tex. Civ. App.) 257 S. W. 961; Owens v. Jackson-Hinton Gin Co. (Tex. Civ. App.) 217 S. W. 762; Hanson v. Haymann (Tex. Civ. App.) 280 S. W. 869; Texas Short Line R. Co. v. Waymire (Tex. Civ. App.) 89 S. W. 452; Combs v. Hunt, 140 Va. 627, 125 S. E. 661, 37 A. L. R. 621; Stewart v. Gordon, 65 Tex. 344; G. A. Duerler Mfg. Co. v. Dullnig (Tex. Civ. App.) 83 S. W. 889; Clark v. Bonsai & Co., 157 N. C. 270, 72 S. E. 954, 48 L. R. A. (N. S.) 191; Allen v. Ætna Life Ins. Co. (C. C. A.) 145 F. 881, 7 L. R. A. (N. S.) 958; Thacher v. Ætna Accident & Liability Co. of Hartford, Conn. (C. C. A.) 287 F. 484, 487, 28 A. L. R. 1280; Indemnity Co. of America v. Pitts (Tex. Civ. App.) 38 S.W.(2d) 883; Saxon v. U. S. Fidelity & Guaranty Co., 107 N. J. Law, 266, 153 A. 598; Geitner v. U. S. Fidelity & Guaranty Co., 251 N. Y. 205, 167 N. E. 222; 10 Tex. Jur. p. 308; Engler v. Hatton (Tex. Com. App.) 12 S.W.(2d) 990; Continental Paper Bag Co. v. Bosworth (Tex. Com. App.) 269 S. W. 83; Jacobs v. Maryland Casualty Co., 198 App. Div. 470, 191 N. Y. S. 692; Schoenfeld v. New Jersey Fidelity & Plate Glass Ins. Co., 203 App. Div. 796, 197 N. Y. S. 606; Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423.

Appellee cites only Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W. (2d) 423, 426, and Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662. The Monzingo Case is what is known as a jitney-bus case, such as American Automobile Ins. Co. v. Struwe (Tex. Civ. App.) 218 S. W. 534, decided by this court. The provisions of the contract in the Longo-ria Case differ sufficiently from those in this case to afford a distinction between the two cases. The'writer did not concur in the opinion in the Longoria Case, although he did not formally dissent therefrom. It occurred to this writer that up to that time no court in any jurisdiction had ever held that such contract inures so directly to the benefit of third persons as to entitle them to implead the insurer in a suit against the insured for damages for personal injuries, as in that case. A number of cases are cited in the opinion in the Longoria Case to support the holding therein on this question, but hone of them appears to the writer to do so in fact. It is said in that opinion that in order to support it we “need go no further than” the case of American Automobile Ins. Co. y. Struwe, 218 S. W. 534, decided by this court. That case, however, was quite beside the controlling XJoint, for there the insurance contract was issued and conditioned in accordance with the mandatory provisions of a city ordinance, which was made a part of the contract, and in which, as well as in the insurance policy, it was expressly provided that third persons injured through the operation of the insured’s automobile (operated as a service car for hire) were the direct beneficiaries of the contract and were expressly authorized to im-plead the insurer along with the insured. The opinion in the Struwe Case does not clearly disclose the presence of those provisions of the contract, but the record in the ease embraces the contract and the- city ordinance made a part thereof, and the decision of course rested upon those provisions, which take the case quite out of the class of cases under consideration. The opinion in the Lon-goria Case also rests largely upon the decision in Engler v. Hatton (Tex. Com. App.) 12 S.W.(2d) 990. An analysis of that opinion, however, discloses that the decision there negatives, rather than supports, the holding in the Longoria Case, fo,r there it was held that the insurer’s plea of misjoinder, upon the. grounds urged here by appellants, was weli taken; but that the insured, in order to complain of the presence of the insurer in the case, should have objected thereto upon the trial, and, failing to object then, could not afterwards effectually do so. In the writer’s-opinion the remaining cases cited in the opinion in the Longoria Case are not in point upon the question which controlled that appeal. In some of them the insurance contract, as in the Struwe Case, expressly authorized injured third parties to implead the insurer, thereby excluding those cases from the wholly different class under consideration. The remaining cases cited seem to the writer to have had no application.

This is not a case of construing trick clauses in an insurance contract, upon the complaint of one of the parties thereto, with which the books abound. It is a case of construing a plain and unambiguous contract with the provisions of which the parties ■thereto are satisfied, and of which neither is complaining or is seeking interpretation by the courts. The parties vvere at liberty to make any lawful contract they might agree upon, and they being satisfied with its terms, It is not a prerogative of the courts to make a new or different contract for them over their objections and at the behest and for the benefit of strangers thereto.

We are of the opinion that the court erred in overruling the insurance company’s plea in abatement, and in not dismissing that company from the suit.

Accordingly, the judgment is reversed-, and the cause remanded.


author: LESLIE, J. FUNDERBURK, J.

text:
    COMPTON v. ELLIOTT.
    No. 993.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 23, 1932.
    Rehearing Denied Dec. 23, 1932.
    Harrell & Allison, of Breekenridge, for appellant.
    Homer T. Bouldin, of Albany, for appellee.
   LESLIE, J.

This appeal ⅛ from a judgment of the trial court sustaining the defendant’s plea of privilege to be sued in Shackelford county, where he resided. The suit was one for damages based on alleged malicious prosecution of the plaintiff, Compton, by the defendant, Elliott, resulting from the indictment, trial, etc., of 'the appellant, Otis Compton, in the district court of Stephens county for the alleged theft of a cow owned by the appellee, Elliott, the prosecuting witness. The plaintiff’s petition contained the usual allegations in such cases, the substance of the same being that the indictment was brought about by Elliott, who acted without probable cause and was actuated by malice in initiating the prosecution. That in putting the facts before the district attorney and the grand jury he did not make a full and complete statement of all the facts known to him at the time, but withheld certain facts which would have explained the conduct of the appellant, Oompton, and his father in going upon the premises of appellee, Elliott, and driving a cow therefrom (testified by the Comptons to be their own). It was contended that, if such undisclosed facts known to Elliott had been revealed to the district attorney and the grand jury, there would have been no ground for the charge, and consequently no indictment.

The allegations of the controverting affidavit set forth the facts, necessary to bring the suit within exception 9 to the General Venue Statute, and therefore give plaintiff the right to trial in Stephen's county. The plea of privilege was set for hearing and the testimony of the respective parties heard.

The judgment is alleged to be erroneous under three propositions of law, which are, in substance, to the effect that, the plaintiff (appellant) having alleged in his petition and controverting affidavit a case of malicious prosecution on the part of the defendant (ap-pellee) and having sustained such allegations with evidence sufficient to make a prima facie showing, it was error for the court to sustain the plea of privilege.

That a suit for damages arising out of malicious prosecution may be maintained in the county where such charge is initiated is well decided, and calls for no discussion here. See article 1995, R. C. S. 1925, subd. 9; Hubbard v. Lord, 59 Tex. 384; Leach et al. v. Stone (Tex. Civ. App.) 264 S. W. 620; Warwick v. First State Bank of Temple (Tex. Civ. App.) 296 S. W. 348. Also said subdivision 9 provides that: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

Taking this statute at what it plainly says, we are of the opinion that, upon the trial of this plea, the burden was upon the plaintiff to introduce sufficient testimony to show that, as against him, the defendant, Elliott, committed the offense of malicious prosecution in Stephens county. The appellant’s counsel appears to so interpret the law, and -this record, discloses the appellant, (plaintiff below) undertook to discharge that burden of alleging and proving all of the elements essential to the making out of the case of malicious prosecution, as alleged in his petition. That such burden or duty rested upon the plaintiff is shown by the following authorities: Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Benson v. Jones, 117 Tex. 68, 296 S. W. 865; Neyland v. Benson (Tex. Civ. App.) 292 S. W. 251; Harris v. Gregory (Tex. Civ. App.) 23 S.W.(2d) 748; Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515, 516; Horton v. Lone Star Gas Co. (Tex. Civ. App.) 19 S.W.(2d) 617; Brooks v. Herren (Tex. Civ. App.) 20 S.W.(2d) 807; Russell Grader Mfg. Co., Inc., v. McMillin (Tex. Civ. App.) 271 S. W. 124.

Here, as below, the defendant (appellee) contends that the evidence adduced on the hearing of the plea of privilege failed to show the elements of the crime of malicious prosecution he is alleged in the petition to have committed in Stephens county. If it failed to show any of the elements of the crime charged, the court correctly sustained the plea. The issue of whether or not such crime was committed, as alleged, was raised both by the pleadings and the testimony. The evidence was pro and con upon the issue, and the trial court resolved the same in favor of the defendant, Elliott, and sustained his plea. The judgment, properly construed, is a finding that the plaintiff failed to discharge the burden of proof resting upon him under the rules of law. The evidence may reasonably be interpreted to sustain such judgment, and, had a different conclusion been reached by the court, the same could be said of that judgment. If it could be said that the testimony preponderated in favor of holding the..venue in the district court of Stephens county, nevertheless it would be the duty of this court to uphold the judgment of the trial court on the testimony presented.

As said in Ulrich v. Krueger (Tex. Civ. App.) 272 S. W. 824, 825; “We do not think on appeal from an order overruling a plea of privilege this court should reverse the judgment and order other disposition of the cause merely because the evidence may preponderate against it, but should affirm the trial court’s action where there is enough evidence to raise an issue of fact over whether or not the alleged ground of the venue existed; especially would this course commend itself to us as being the appropriate one where, as here, both the venue as laid and the liability of the. defendants sued depend upon proof of the same fact. * * So viewing the matter, it is only necessary to determine whether or not such question of fact was raised here.”

There the venue as laid and the liability of the defendants depended upon proof of fraud. In the instant case they depend upon proof of malicious prosecution.

In Sibley v. Sheerin (Tex. Civ. App.) 287 S. W. 58, where venue was sought to be established on the theory of a fraud committed, it was held that a reviewing court will not disturb a trial court’s finding on a plea of privilege where it cannot say there was no evidence to support the judgment. The rule here employed in sustaining the judgment of the trial court where the testimony conflicts has had application in many cases involving trials on pleas of privilege.. Baldwin et ux. v. Baldwin et al. (Tex. Civ. App.) 233 S. W. 130; Kelly v. Britton (Tex. Civ. App.) 240 S. W. 1114; Miller v. Elynn (Tex. Civ. App.) 279 S. W. 879; Accidental Oil Mills v. Shoemake (Tex. Civ. App.) 254 S. W. 385 (6); Texas Portland Cement Co. v. Carsey (Tex. Civ, App.) 3 S.W.(2d) 930; Henderson v. Lambert (Tex. Civ. App.) 293 S. W. 671; Grainger v. Gottlieb (Tex. Civ. App.) 234 S. W. 604.

The rule that prevents an appellate court from disturbing an order refusing a change of venue when testimony on the facts of venue is conflicting has equal application in cases where the trial court’s order sustains the plea. There is as much reason for the rule in one case as in the other.

Eor the reasons assigned the judgment of the trial court.is affirmed.

On Rehearing.

On a former day of this term of court an opinion was rendered affirming the judgment of the trial court in sustaining the defendant’s plea of privilege and directing the case to be sent to Shackelford county for trial. The appellant has filed a motion for rehearing and it has challenged the serious- consideration of this court. Many, if not all, of the authorities relied on by the proponent of the motion were before us in the original consideration of the case, but tlfe points relied on for reversal of the judgment have been re-examined and the authorities again reviewed.

As noted, the venue of the suit was laid in Stephens county under that exception to the General Tenue Statute (Rev. St. 1926, art. 1995, subd. 9) which reads as follows: “A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.” That is, the suit is one for damages based on an alleged malicious prosecution of plaintiff, Compton, by the defendant, Elliott, in Stephens county, Tex.

In our original opinion we briefly summarized. our conclusion from the record in this language: “The issue of whether or not such crime was committed, as alleged, was raised both by the pleadings and the testimony.” A reconsideration of the record confirms us in the view that this original interpretation of the pleadings and the testimony raising the venue question is correct.

Standing upon our conclusion above, and the further one in our original opinion that, “the evidence may reasonably be interpreted to sustain such judgment, and had a different conclusion been reached by the court, the same could be said of that judgment,” the appellant, Compton, now contends that, as a matter of law, this court should have reversed the judgment of the trial court and directed a trial of the case on its merits in Stephens county, Tex. In other words, it is the appellant’s theory that, since by his controverting affidavit and proof thereunder, ■ he made a prima facie case based on a crime alleged to have been committed against him (n Stephens county, he was therefore enti-tied to try the case in that forum. More specifically the appellant contends it was only necessary for him properly to raise the issue of whether or not the alleged crime of malicious prosecution had been committed in Stephens county by the defendant in order to be entitled to a trial there on the merits of the suit.

Supporting such contention the appellant cites and relies upon numerous cases by the various courts, among them the following: Watson Company v. Alfalfa Growers’ Exchange (Tex. Civ. App.) 300 S. W. 199; Tarver, Steele & Co. v. Pendleton Gin Co. (Tex. Civ. App.) 25 S.W.(2d) 156, 157; Pope v. Hay (Tex. Civ. App.) 244 S. W. 1032, 1034; Shafer v. Brashear (Tex. Civ. App.) 274 S. W. 229; San Marcos Baptist Academy v. Burgess (Tex. Civ. App.) 292 S. W. 626, 628; Miller v. Flynn et ux. (Tex. Civ. App.) 279 S. W. 879; American Mortgage Corporation v. Wyman (Tex. Civ. App.) 41 S.W.(2d) 270; Palmer v. Pinkston (Tex. Civ. App.) 282 S. W. 668; Benson v. Travelers’ Ins. Co. (Tex. Civ. App.) 40 S.W.(2d) 966, 967; Oliver Chilled Plow Works v; Askey (Tex. Civ. App.) 22 S.W.(2d) 743; Edmonds v. White (Tex. Civ. App.) 226 S. W. 819; Adkins v. Essler (Tex. Civ. App.) 38 S.W.(2d) 411; Salisbury v. Taylor (Tex. Civ. App.) 5 S.W.(2d) 874; De Mars v. Montez (Tex. Civ. App.) 277 S. W. 402; Crespi v. Wigley (Tex. Civ. App.) 18 S.W.(2d) 716; Lowery v. John Deere Plow Co. (Tex. Civ. App.) 50 S.W.(2d) 457.

We have carefully studied these authorities and are of opinion that there is nothing in them that necessarily condemns as erroneous the conclusions heretofore reached by this court in the disposition of this appeal. The case before us bears a special aspect, of which notice must be taken. In the trial court there, was a contest between the litigants, and an issue was raised as to the existence of the “fact or facts” relied upon by the plaintiff to fix the venue in Stephens county. Article 2007, R. S. 1925. There was testimony pro and con upon the issue. Different views may be entertained upon the nature and probative force of the testimony. The court, for reasons satisfactory to itself, resolved the issues arising upon said “fact or facts” in favor of the defendant. Elliott, and sustained his plea. It was a case in which we concluded, from the state "of the testimony, that a judgment either way would have found support. Hence, in the light of- the briefs and the points presented by the motion for rehearing, it appears that the appellant, Compton, is asserting that he supported the venue “facts” as presented in his controverting plea with testimony sufficient to establish his right to bring and prosecute the suit in Stephens county, and the appellee, Elliott, is here contending that the appellant, Compton, failed to offer evidence to establish such facts and that the testimony failed to support the allegations of the controverting plea. Hence, we are confronted with a question or issue like that raised by the testimony in the recent ease of Gilmer v. Graham (Tex. Com. App.) 52 S.W.(2d) 263, 265. There an issue arose as to the residence of the defendant Gilmer, who was sued in Brewster county. The defendant filed his plea of privilege to be sued in Edwards county, and, upon the filing of plaintiff’s controverting affidavit, the issue as to residence arose. In answer to a question presenting the issue, the jury found that Brewster county was the residence of the defendant. Of course, it was the plaintiff’s contention that the evidence showed the defendant’s residence to be in Brewster county, and, on the other hand, the defendant contended that the evidence conclusively established his residence in Edwards county. The opinion in that case, in the discussion of the respective contentions of the litigants, used this pertinent language: “As is usually the case, when both parties to a lawsuit contend that the evidence conclusively establishes their contentions as a matter of law, a jury question is presented.”

We think this language is peculiarly applicable to the contentions now under consideration. A jury trial on the issues arising out of a contested plea of privilege has long been recognized ■ and become well established in Texas, as may be seen from the following authorities: Caswell v. Hopson (Tex. Civ. App.) 47 S. W. 54; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315; Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959; Perkins v. Norris (Tex. Civ. App.) 25 S.W.(2d) 979; Rutledge v. Evans (Tex. Civ. App.) 219 S. W. 218; Hudgins & Bro. v. Low, 42 Tex. Civ. App. 556, 94 S. W. 411; Holmes v. Coalson, (Tex. Civ. App.) 178 S. W. 628, 635; Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Howeth v. Clark (Tex. App.) 19 S. W. 433; Kolp v. Shrader (Tex. Civ. App.) 131 S. W. 860.

When no jury is demanded for the trial of the issues arising out of the alleged “fact or facts” relied upon to fix venue, and such issues are submitted to the trial court, the trial court performs the functions of a jury and becomes the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to he given to the testimony. The verdict of the jury on such issues properly submitted and supported by sufficient testimony could not be disturbed by this court, and we think the judgment of the trial court on the same question, based on proper testimony, must, for the same reasons, be left undisturbed by this court. From the foregoing authorities, and under our system of pleading and practice in the disposition of fact issues arising between litigants, we are necessarily driven to the conclusions herein reached.

In the foregoing conclusions there is nothing inconsistent with the general rule stated by this court in Graves v. Buzbee, 45 S.W.(2d) 892, 395, to the effect that “in the trial of the issues arising out of the contest of a plea of privilege, it is not necessary for the plaintiff to introduce all of his testimony, and develop his case as fully as he would on final trial on the merits.” Several authorities are there cited making application of that rule, which is often referred to in the authorities above cited by the appellant in his motion for rehearing. The issues in a contested plea of privilege properly arise out of the “fact or facts” relied upon for venue.

For the reasons assigned, the motion for rehearing is overruled.

FUNDERBURK, J.

(dissenting on rehearing).

I have concluded that the motion for rehearing should be sustained. The reasons, however, upon which my change of view is based are entirely different from those set forth in appellant’s motion. My views more nearly accord with those expressed in the majority opinion — -the little difference being just such, as it happens under the particular facts of this case, to require a -different disposition of the motion. .

, My concurrence in the original opinion resulted from yielding my previously entertained views as expressed in Sims v. Oallihan (Tex. «v. App.) 39 S.W.(2d) 153, 158, as follows: “In such a case [i. e., one in which venue is sought to be sustained on the ground of fraud committed in the county of the suit] plaintiff should be required to do no more than exhibit his petition and prove that, if (he alleged fraud existed, it was committed in the particular county where alleged. The same is true of single causes of action asserted and sought to be maintained under other exceptions where the nature of the suit is a material fact.”

At the time the original opinion herein was handed down I had concluded that the decisions therein cited, namely, the list beginning with Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896, declared the law to be to the contrary of the view above expressed, and as therefore justifying that opinion.

Faced now with the alternative of adopting the interpretation of the law as contended for by appellant, apparently supported as it is by the many cases cited, or of sustaining the original opinion, I have carefully re-examined the decisions above named, with the result that I have satisfied myself that the Supreme Court has never meant to hold that, in the trial of a plea of privilege, where venue is sought to be sustained, for instance, under Rev. St. 1925, art. 1995, subd. 7 (the one providing that a case of fraud may be brought in the county in which the fraud was committed), that it is necessary as a matter of law to prove, or offer evidence to prove, each and every element of the fraud. I have found but one case in which the -point was certainly considered, and the effect of the decision plainly to so hold. That case is Neyland v. Benson, 292 S. W. 251, by the Dallas Court of Civil Appeals. It is true there is language in a number of other Cases — some by this court— which apparently supports that view, but such expressions were either dicta, or at any rate, made in connection with, and as a part of, discussions showing a proper disposition of each particular case, irrespective of the -point now under consideration. See, for example, Lawless v. Tidwell (Tex. Civ. App.) 24 S.W.(2d) 515; Browne v. Heid Bros. (Tex. Civ. App.) 12 S.W.(2d) 587; C. R. Miller Mfg. Co. v. Provine (Tex. Civ. App.) 17 S.W.(2d) 128.

I do not consider that the Supreme Court in the case of Benson v. Jones, 117 Tex. 68, 296 S. W. 865, 867, has decided the question one way or the other. In that case mandamus was sought to require certification on the ground that Neyland v. Benson, Supra, was in-conflict with certain unnamed cases, one of which probably was Edmonds v. White (Tex. Civ. App.) 226 S. W. 819, 820. It may be observed, as to the claim of a conflict, that the Court of Civil Appeals in Neyland v. Benson expressly recognized that the opinion was in conflict with Edmonds v. White, upon the very question here presented. But the Supreme Court in Benson v. Jones, in denying the' mandamus, expressly rested its decision on one ground, stated thus: “But it is clear that the Court of Civil Appeals [i. e. in Neyland v. Benson] reversed the trial court and, sent the case to Hunt county because there was no proof that the Neylands, or either of them, made any false statement in Dallas county.” (Italics oprs.)

Then follows the very true and significant statement: “This allegation was the very crux of the controverted plea of privileges.” It is thus apparent that the opinion in Benson v. Jones did not decide which of the two different views as expressed in Neyland v. Benson and Edmonds v. White was correct, but simply held, in effect, that, irrespective of that question, the action of the Court of Civil Appeals in the first named case was correct because there was no evidence to show that the place of the commission of the alleged crime was in Dallas county. So much I have deemed it advisable to say in explanation of my departure from and present readoption of my former views as expressed in Sims v. Callihan, supra.

It may be regarded as settled beyond controversy that, when issues are properly joined by plea of privilege and a controverting plea, the burden is upon the plaintiff to prove the “fact or facts” relied upon to show one or more exceptions to the general rule of venue, as prescribed in Rev. St. 1925, art. 1995. When the exception relied upon is that provided for in subdivision 9, relating to a crime, offense, or trespass, or that provided for in subdivision 7, relating to fraud, what is “the fact,” or what are “the facts” which, under the above rule, are required to be proved? Is it sufficient to prove that, if the alleged crime, fraud, or trespass, as the case may be, was committed, same was committed in the •county where the suit is brought? Or, must the plaintiff prove, as a necessary part of the evidence required to show the place of the ■commission of the crime, trespass, or fraud, that such crime, trespass, or fraud was in fact actually committed as alleged? The answers to these questions, it is believed, will be determinative of the larger question presented for decision.

I am firmly of the opinion that, in most, if not in all cases, except those involving subdivision 4 (art. 1995), relating to a suit against two or more defendants, the rule as to which is discussed in Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S. W. 747, and Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W. (2d) 861, and except in a case where two or more causes of action are joined and one or more do not alone come within any of the exceptions prescribed, as discussed in Sims v. Callihan, supra, the burden of proving that the “fact or facts” exist to bring a case within one or more exceptions to the general rule of venue is discharged by assuming for the purposes of the trial of the plea of privilege that the crime, trespass, or fraud, etc., was ■committed, as alleged, excepting the allegations, if any, to show the place where same was committed, and then by proving by a preponderance of the evidence aliunde that, if same was so committed, the place of commission was in the particular county where the venue is sought to be sustained. No better illustration could perhaps be found to show how such a rule would work conform-ably to well-recognized principles and practices, and how any other interpretation of the statute would work contrary to such principles and practices, or woz-k an unreasonable and unnecessary hardship upon the plaintiff, than in the instant case. We are unanimously agreed that, if it be assumed that the crime was committed, as alleged (excepting only allegations, if any, to show the place of its commission), the undisputed evidence introduced upon the hearing shows that such crime was committed in Stephens county. We are likewise agreed that seemingly a preponderance of the evidence shows that no crime was in fact committed, but as to that fact the evidence was sufficient to support a finding either way. Evidently the trial court sustained the plea of privilege because of a finding by him fronl all the evidence that no crime was committed. It is certainly an anomalous procedure for a court, because it adjudges after a leg'al hearing, that no crime has been committed, to transfer a case to another county to permit the plaintiff to prove that such crime was committed. What is the reason or necessity in such a case for twice litigating the issue of the existence of the crime? I fully concur with the appellant that a construction of the law (R. S. 1925, art. 2007), which leads to such an unreasonable, not to say absurd, l'esult should be rejected if possible.

But in my opinion, even that construction is preferable to the one which appellant in his motion seeks to have us adopt. To state that view briefly, as I understand it, it does not deny that the plaintiff is under the burden of proving the fact or facts to show that the case comes within one or more of the exceptions, but that such fact or facts are not required to be proved in the usual way or sense. That, on the contrary, it is sufficient to produce some evidence of the fact or facts —merely enough to raise an issue, and that it is immaterial that there may be any amount of evidence to the contrary. The theory includes the idea that there must, be some evidence to support each and every element of the crime, trespass, or fraud, as the case may be, as well as to support the fact that same was committed in the county of the suit.

Bet us now examine the implications and logical results of such an interpretation of the law. In the first place, such a construction is plainly not necessary in order to avoid the other alternative, the -purpose to get away from which constitutes the sole reason to support it. There is nothing in any of the statutes, so far as I can find, that requires such a construction. The provisions of the relevant statutes do not, it seems to me, reasonably lend themselves to that interpretation. Why, it may well be asked, Would the Legislature require that a controverting plea, setting out the fact or facts to bring the case within one or more exceptions, be sworn to and then further require the plaintiff to support the plea With only the character of evidence suggested? Why did not the Legislature make the sworn controverting plea conclusive of the matter, if it could be made conclusive simply by the plaintiff’s oral reaffirmation under oath of the same facts? Can any conceivable reason he suggested why, if the plaintiff would make the necessai*y affidavit to a conti’overting plea, he would be unwilling orally to reaffirm the same facts? The construction, of the law contended for implies that the Legislature has required the doing of an utterly futile thing.

If said construction, which, for convenience, may^ be designated the “prima facie ease theory,” be correct, it works a denial of the right of trial by jury. The right of a defendant to have the issues in .the trial, of a plea of privilege determined 'by a jury has never been questioned, so far as I know. Certainly it has many times been recognized. Pecos & N. T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S. W. 801; Id. (Tex. Civ. App.) 140 S. W. 1148; Durango L. & T. Co. v. Shaw (Tex. Civ. App.) 165 S. W. 490; Littlefield v. Clayton Bros. (Tex. Civ. App.) 194 S. W. 194. But obviously, if the production by plaintiff of just enough evidence to raise an issue of each fact be conclusive regardless of any evidence to the contrary, there could never be any issue to be determined by a jury. This reason alone, I think, renders impossible the construction contended for in order to preserve the law from unconstitutionality on the ground that it denies the right of trial by jury. If the construction contended for be correct, then there is no judge, jury, or other governmental officer or agency authorized to pass upon and determine the credibility of witnesses, the facts proved, or the weight to be given to the testimony. On the hearing of the plea of privilege there would exist absolutely no distinction between truth and falsity.

Another good reason why, in my opinion, the statute cannot be so construed, is that it would thwart the evident purpose of the later amendments of the statutes involved. Prior to the 1917 amendment of present R. S. 1925, art. 2067, the defendant had the burden of proving the nonexistence of any fact or facts to bring a case within an exception (Rev. St. 1911, art. 1903). In 1917 the prescribed plea of privilege had the effect of placing the burden upon the'plaintiff to prove the existence of such fact or facts. Clearly it was intended by the amendment to protect more fully the right of a defendant to be sued in the county of his residence by imposing a greater burden upon the plaintiff both to plead and prove the facts to show an exception. Under the construction now contended for, the amendment would not merely fail to accomplish this evident purpose of its enactment, but would be made far easier to deprive a defendant of his privilege to be sued in his home forum.

Again, if the construction contended for be correct, then the law, in effect, provides that, upon the hearing of a plea of privilege, any testimony offered in support of the allegations in the controverting plea shall be conclusively presumed to be true. Had the Legislature expressly so provided, I think such provision would be unconstitutional for that reason a.lso. If the right of a defendant to be sued in the county of his residence, unless one or more of the exceptions exist in the case, is in truth the Valuable right it has so many times been declared to be, then I think that another statute, providing, in effect, that, upon the trial of such right the testimony of one of the parties shall conclusively be presumed to be true would be violative of the Bill of Rights (Const. art. 1, § 19), and the Fourteenth Amendment of the Constitution of the United States. Clem v. Evans (Tex. Com. App.) 291 S. W. 871, 51 A. L. R. 1135. It is trae the right in question is one which the Legislature could grant or withhold, and therefore grant subject to conditions, but to grant the right unconditionally, as the Legislature has done, and then provide a procedure for the trial thereof, which in effect requires that the testimony of one of the contesting parties shall be conclusively presumed to be true, would, I think, simply present a ease of the granting of a clear legal right by one valid statute and the prescribing of a procedure for the trial of that right by another which, because of its effect, is unconstitutional and void.

Now let us see how the prima facie case theory would work out in supposable cases. Clearly the theory cannot be confined to exceptions 7 and 9. It would apply generally, with the exceptions above noted, fo all those exceptions which, by their terms, make the nature of the suit one of the material facts in issue. Any attempted distinction would be purely arbitrary. A, who resides in B county is sued by C in D county. Controverting A’s plea of privilege, C alleges the suit to be one for the recovery of land situated in D county. If he swears the land is situated in D county, the issue will be thereby concluded in his favor although A may be prepared to prove by the overwhelming weight of the evidence that the land is not in D county but in some other county. Mrs. A, who resides in B county, is sued by O in D county. O’s controverting plea in answer to her plea of privilege alleges that defendant is a married woman and that her husband, Mr. A, has his domicile in D county. Even though Mr. and Mrs. A have been divorced for months, and Mrs. A is ready and prepared to prove that fact, yet if C swears to facts to support his plea, any contrary evidence will be utterly unavailing. Subdivision 1. In a suit, venue of which is sought to be maintained under exception 5, although the plea of privilege constitutes, in effect, a plea of non est factum, as held in Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S. W. 550, and Ketner v. J. M. Radford Grocery Co. (Tex. Civ. App.) 299 S. W. 680, thereby placing the burden of proof upon the plaintiff to prove the execution of the written contract, yet, if plaintiff swears he is familiar with the handwriting of the defendant and that the signature to the instrument Is In Ms handwriting, tiras making a prima facie case, it will avail the defendant nothing that he may be ready and able to prove that the signature is a forgery and that at the time the note purported to be executed in Texas he was a prisoner 10,000 miles away in Siberia. Or, take a case under exception 7 or 9. The crime or fraud is alleged to have been committed in the county where suit is brought, and plaintiff so swears. But the defendant can prove that the very transaction claimed to constitute the crime or fraud occurred wholly within a different county, he will nevertheless not be heard 'to prove the true facts and thus establish his legal Tight. These and numerous other examples which may be readily called to mind are sufficient, I think; to show that, if the law is as contended, then something “new under the sun” has been introduced into our jurisprudence.

We are' not without authority in the decisions, both to condemn the construction contended for and to support the one herein suggested, and incidentally to show that the views expressed in the majority opinion are incorrect. I believe the statute was properly construed in Edmonds v. White, supra, and was incorrectly construed in Neylands v. Benson, supra. In the former Judge Hodges said:

“When the plaintiff introduces proof of a transaction which may constitute an actionable fraud, and shows that this transaction occurred in the county where the suit is filed, he has furnished all the essentials required to support a judgment sustaining the venue. It is not necessary that the evidence establish facts other than those which the particular judgment is to determine. In this instahce the question is, Where was the fraud committed? In other words, Where did the fraudulent transaction take place? When the fact is ascertained the court is prepared to render a judgment designating where the issue of liability shall be tried. The law will not require the court to render a useless judgment or to determine an unnecessary issue, yet that might easily result if the rule contended for by the appellants be applied. If in this case proof of an injury is essential to sustain the venue after it has been shown that the fraudulent acts were committed in Bowie county, then the defendants would have a right to join issue upon the question of injury alone, and might secure a judgment in their favor upon that ground alone. The court then would be required to order a transfer of the case to another county for the sole reason that no cause of action had been shown by the plaintiff. This would be the rendition of an unnecessary judgment — ordering a transfer for trial because there was no merit in the case. In passing upon the issue involved in a plea of privilege, the court can only determine where a trial of the rights of the parties shall take place. It is unnecessary at that stage for the court to ascertain whether or not a cause of action can be shown by the evidence, for the reason that no appropriate judgment upon that issue can then be rendered. Whether or not the plaintiff sustained an injury from the perpetration of the fraud and the extent of that injury are matters to be determined in a trial upon the merits, after the issue of venue has been settled.” (Italics ours.)

This is not an inaccurate statement of the law and is a most admirable discussion of the controlling principles. In the light of subsequent interpretations of it, however, the thought would have been more clearly expressed in the beginning sentence as follows: “When the plaintiff introduces proof to identify the alleged fraudulent transaction upon which the suit is based, and shows that this transaction, if it ever happened, occurred in the county where the suit is filed, he ha»s furnished, etc.”

This decision has never been overruled and has been followed in numerous cases, of which may be mentioned the following: Trapshooter Dev. Co. v. Whitton O. & G. Co. (Tex. Civ. App.) 263 S. W. 622; Alexander v. Alexander (Tex. Civ. App.) 265 S. W. 1072; Old v. Clark (Tex. Civ. App.) 271 S. W. 183; Jones v. Boyd (Tex. Civ. App.) 286 S. W. 1006; Griffin v. Linn (Tex. Civ. App.) 3 S.W.(2d) 148; McKee v. McKee (Tex. Civ. App.) 12 S.W.(2d) 849; City of Idalou v. Anderson (Tex. Civ. App.) 25 S.W.(2d) 280.

Some of these decisions state the rule to be that the burden upon plaintiff is to prove that a transaction which might constitute fraud occurred in the particular county, others that the burden is to show that there was probable fraud and it was committed in the particular county. At least one adopts the “prima facie ease theory.” These statements, while not accurate, are not necessarily incorrect. In other words, if plaintiff does prove that a transaction, identified as that involved in the suit, occurred in the particular county, such would constitute the showing of a transaction that might constitute fraud, or of probable fraud, but at any rate he would have thereby discharged the burden upon him to show that, if it occurred, it occurred in the particular county. In Jones v. Boyd it was held that the facts to be proved were to be proved by a preponderance of the evidence. Many cases which may be interpreted as sanctioning the “prima facie case” rule make no mention of the preponderance of the evidence rule, or whether controverting evidence was offered and rejected or not considered.

The construction of the statute herein suggested as the correct one would avoid the harsh alternatives involved in the majority opinion in this case and that contended for by appellant, and permits a trial of pleas of privilege upon the only essential issue, namely, the proper place to try the case, according to established principles and practices. and preserves the rights of all the interested parties.

Because the undisputed evidence in case shows that if any crime was committed, as alleged, the same was in fact committed in Stephens county, where ¡the suit was brought, I conclude that the motion for reheáring should be sustained, and that judgment should be rendered for appellant upon the plea of privilege. this