author: LOONEY, Justice.

text:
    TEXAS EMPLOYERS’ INS. ASS’N v. PUGH.
    No. 11382.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 28, 1933.
    Rehearing Denied Feb. 25, 1933.

      Lawther, Cox & Cramer and James P. Swift, all of Dallas, for plaintiff in error.
    White & Yarborough, of Dallas, for defendant in error.
   LOONEY, Justice.

W. L. Pugh instituted this suit to set aside the final decision of the Industrial Accident Board, and to recover from defendant, the insurance carrier, compensation for injuries alleged to have been sustained by him in the course of employment with Tennessee Dairies (employer) as night watchman, at its place of business in the city of Dallas.

All material issues were found for plaintiff; the facts in short are these: Late at night, August 26, 1930, while in the discharge of duties at his employer’s place of business, plaintiff was attacked by two robbers, a negro man and woman, and in the struggle that ensued he was struck over the head with a piece of wood, and thrown against a counter, sustaining permanent injuries to his spine, resulting in total permanent incapacity; that at the time he was earning and being paid $20 per week, and had been receiving that same wage for more than a year preceding.

It was also in evidence that, during the year 1915, plaintiff’s right leg was broken at or near the ankle, from which he recovered sufficiently to continue farming for three years, performing the usual and ordinary duties and labors of a farmer; thereafter was employed by different dairies, performing labor incident to that industry, chiefly milking cows, and for the two years preceding his injuries had served Tennessee Dairies, Inc., as night watchman at its place of business in East Dallas. It was also in evidence that, during his service as night watchman, he complained at times that his back and one leg bothered him a bit, and was seen to walk with an inverted broom, used as a crutch.

In response to special issues, the jury found that plaintiff sustained the accidental injuries in the course of employment, rendering him totally and permanently incapacitated, and also found facts that justified a lump sum payment. These findings are amply supported by evidence, and aré adopted as our conclusions on the issues involved. In response to other issues, the jury found that the injury to plaintiff’s leg, received in 1915, contributed 15 per cent, to such total permanent incapacity. Upon these findings, the court rendered judgment compensating plaintiff for 401 weeks, at the rate of $12 per week, being 60 per cent, of $20, his weekly wage, after deducting 15 per cent, of the compensation, under the finding that the prior injury contributed to that extent in producing plaintiff’s total permanent incapacity.

Defendant perfected appeal, and, among other’contentions, urges that the court erred in rendering the judgment, because the jury findings, to the effect that plaintiff’s total permanent incapacity resulted from the injuries complained of, are in irreconcilable conflict with the finding that his leg injury, sustained in 1915, contributed 15 per. cent, to that result; hence a mistrial should have been declared, or, at all events, that plaintiff was not entitled to be compensated for more than 300 weeks, to be paid weekly, and not in a lump sum, in that the meaning of the jury findings is that plaintiff sustained only a partial incapacity.

Section 12c, art. 8306, R. S., provides: “If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury.”

This provision is not applicable, unless the facts show, or tend to show, that the latter injury aggravated the former to an extent that the combined effect of the two resulted in producing incapacity; in other words, a causal connection between the two injuries must appear.

If the evidence, briefly referred to above, authorized the submission of that issue, which we do not deem it necessary to decide, still, from the other findings, it appears that no part of the period of plaintiff’s incapacity would have existed, but for the injuries last received, resulting not in partial, but in permanent, incapacity, which, in the nature of things, began on the day the injury was received, and extended throughout the entire compensation period of 401 weeks. We therefore overrule these contentions.

Complaint is also made of the refusal of the court to submit defendant’s reguested issues Nos. 2 and 3, as follows:

“(2) Do you find from a preponderance of the evidence that the personal injury, if any, sustained by plaintiff on or about August 26, 1930, had to do with and originated in the work, business, trade or profession of the Tennessee Dairies, Inc.?

“(3) Do you find from a preponderance of the evidence that the personal injury, if any, sustained by plaintiff on or about August 26, 1930, was received while plaintiff was engaged in or about the furtherance of the affairs or business of his employer?”

Among other definitions given, the court properly defined the term “émployee,” also the phrase “injury sustained in the course of employment”; thereupon propounded, among others, the following material issue: “Do you find from a preponderance of the evidence, that such injuries, if any, sustained by plaintiff, W. L. Pugh, were received by him in the course of his employment with Tennessee Dairies, Inc.?” to which the jury answered “yeS.”

This, in our opinion, was a proper and sufficient submission. The ultimate fact, that is, whether plaintiff’s “injury was sustained in the course of employment,” as found by the jury, depended upon the existence of two elements, that is, (1) his engagement at the time must have originated in the work, business, etc., of his employer, and (2) be received while engaged in or about the furtherance of the affairs or business of the employer. To submit the ultimate fact in detail, that is, by making a separate issue of each element constituting the whole, as reguested by defendant, would tend to confusion, and offend against the rule that forbids the submission of mere evidentiary issues. The court did not err in refusing the reguested issues.

Defendant also assigns error on the action of the court in permitting plaintiff, over objection, to introduce the written notice of injury served on the employer, reciting that the injury was caused by reason of an attack by high-jackers or robbers; also in introducing the written claim for compensation made on the employer, stating, among other things, that plaintiff’s back was wrenched, twisted, and sprained, that his heart and head were bruised, resulting in injury to his entire nervous system, and to the tendons, leaders, muscles, and muscular attachments in his entire body; also in introducing the employer’s report, to the Industrial Accident Board, containing a recitation that the employee was injured while scuffling with a negro man and woman, that the woman bit his hand, etc. This evidence was offered to show that proper notices of the accident were duly given; the objection being that the notices contained self-serving declarations.

In view of the entire record, we fail to find that defendant was prejudiced by the admission of this evidence; furthermore, as no reguest was made that the same be limited in its effect to the guestion of notice, defendant is in no position to complain. See Texas Employers’ Ins. Ass’n v. Drews (Tex. Civ. App.) 297 S. W. 630.

Defendant’s assignments, being without merit, are overruled, and the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: JACKSON, Justice.

license: Public Domain

text:
    BOOTHE v. AMERICAN STATE BANK OF AMARILLO.
    No. 3922.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1933.
    Rehearing Denied Feb. 22, 1933.

      Chas. H. Dean, of Dimmitt, for plaintiff in error.
    Morgan, Culton, Morgan & Britain, of Amarillo, for defendant in error.
   JACKSON, Justice.

The American State Bank obtained a judgment by default in the district court of Castro county for the sum of $3,973 against C. W. Boothe on his promissory note, and a foreclosure of its lien on certain vendor’s lien notes.

C. W. Boothe, by writ of error, prosecutes this appeal, and assails the judgment against him because the sheriff’s return on the citation shows no service was had upon him, but discloses that service was had on O. W. Boolhe.

The sheriff’s return reads, “Came to hand on the 14th day of October, 1931, at 11 o’clock a. m., and executed in Castro county, Texas, ■by delivering to each of the within named defendants in person a true copy of this citation at the following times and places, to-wit,” giving the name of the party served, and the date, time, and place of service.

We have before us the original return of the sheriff, and the name of the party served appears in handwriting, and, with the exception of crossing the “t,” the name in the return is clearly C. W. Boothe.

The practice of failing to cross t’s in manuscript is of such frequent occurrence as to constitute common knowledge, and the courts are authorized to take judicial notice thereof. ■

“Judicial knowledge is but that which is so notoriously known that everybody, including even judges, knows it; and hence there is no need to prove it.” 17 Tex. Jur. 168, § 7.

The petition named C. W. Boothe as defendant, the citation commands the sheriff to summon G. W. Boothe to appear before the district court at the proper time and place to answer the plaintiff’s petition, and the return recites that the service was had by delivering to “the within named defendants” in person a true copy of the citation.

In Townsend v. Ratcliff, 50 Tex. 148, the court, after stating “The citation commands the sheriff to summon J. A. Townsend ‘to answer the plaintiff’s petition.’ The return of the officer is that the writ was ‘executed * * * by delivery to J. A. Townsen, the within-named defendant in person,’ etc. While it may be'true that the name Townsend, when distinctly and correctly enunciated, cannot be said to be idem sonans as that of Townsen, yet it is a matter of every-day knowledge that the name Townsend is often thus inaccurately written and spoken,” holds that the court was warranted in concluding that the defect in the return was a mistake of the sheriff in spelling the defendant’s name, and showed service on the defendant, and not upon a person different from “the defendant named in the petition.”

In O’Donnell et al. v. Kirkes (Tex. Civ. App.) 147 S. W. 1167, it is said: “The return shows service upon ‘R. L. McCalley’; but, if this is not idem sonans with McCaulley, it otherwise appears from the return that the writ was served on the ‘within-named defendant,’ who is shown to be ‘R. L. McCaulley.’ ”

The plaintiff in error contends that a judgment by default against him foreclosing the pledgee’s lien upon the vendor’s lien notes in question was not warranted because the citation failed to state that the foreclosure of a pledgee’s lien was sought.

The citation, after stating that plaintiff’s demand is a suit on a note which is described in detail, continues, “And to foreclose its lien on the following notes,” and describes sufficiently the notes upon which the lien is sought to be foreclosed. The citation in this case was issued by virtue of article 2022, R. C. S., which, among other things, provides: “It shall state the date of the filing of the petition, its file number and the names of all the parties and the nature of the plaintiff’s demand.”

In stating “the nature of plaintiff’s demand” in the citation, the statute permits the cause of action to be stated in general terms without requiring the fullness of detail which must be contained in the petition. Hinzie v. Kempner, 82 Tex. 617, 18 S. W. 659; Blake v. Vesey et al. (Tex. Civ. App.) 143 S. W. 221, and authorities cited. The citation having stated that plaintiff sued to foreclose its lien on certain notes fully described, the failure to state that it was a pledgee’s lien did not constitute a fatal defect.

The judgment is affirmed.


author: WADTHALD, Justice.

text:
    FALL v. THOMPSON et al.
    No. 2767.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied Feb. 16, 1933.
    A. U. Puckett and Geo. Sergeant,' both of Dallas, for appellant.
    Thomas, Prank & Grady, of Dallas, for appellee Thompson.
    Hugh S. Grady, City Atty., and A. J. Thuss, H. P. Kucera, and W. Hughes Knight, Asst. City Attys., all of Dallas, for appellee City of Dallas.
   WADTHALD, Justice.

On May 28, 1930, Mrs. Willie Kay Fall, a widow, residing in Dallas, Tex., filed her first amended original petition, complaining of J. O. Thompson and the city of Dallas, and praying that “she have judgment against defendants for the damages, interest, reasonable attorney’s fees and costs,” by reason of the matters complained of. Thompson and the city of Dallas filed separate answ'ers, each, among defenses, answering by a general demurrer to plaintiff’s petition. The court sustained each of defendant’s general demurrers, and, the plaintiff refusing to amend, her suit as to both parties was dismissed. From that judgment she prosecutes this appeal;

Omitting the formal parts of plaintiff’s petition, it is alleged that plaintiff’s residence and the residence of defendant J. C. Thompson is in Dallas county, and that the city of Dallas is a municipal corporation duly organized and existing under the laws of the ■state of Texas, and domiciled in Dallas county, Téx.; that on or about April 18, 1902, J. F. Zang was the owner of a tract or parcel of land out of the G. S. C. Leonard survey within the city of Dallas. The land is described by metes and bounds and as containing 366%oo acres of land more or less, and that the deed is of record in Dallas county. The petition then alleges:

“3. That on or about October 25, 1904, the said J. F. Zang caused said land to be mapped and platted and the same filed in the office of the county clerk of Dallas county, Texas, among the deed records of said office and the same was thereon recorded in volume 1, page 75, of the said deed records.

“4. That on or about October 25, 1904, the said J. F. Zang by written instrument filed in the office of the county clerk of Dallas county, Texas, at Dallas on April 28, 1905, and recorded in volume 1, page 75, of the deed records, of said office, gave and dedicated to the city of Dallas for the use and benefit of the public, the streets shown on said map and plat and gave and dedicated to the city of Dallas for park purposes the esplanade and parkway down the middle of Zang boulevard in said addition, map and plat, and the parkway then on each side of the sidewalks on said Zang boulevard together with the vegetation, shrubs, trees, improvements, pillars and other properties! thereon and therein situated including those) existing at the time of said dedication and, conveyance and those placed thereon thereafter by himself and his vendees and the property owners abutting on Zang boulevard.

“5. That the said J. F. Zang, and his ven-dees to whom he and those claiming under him conveyed the real estate abutting on Zang boulevard and on said sidewalks and parkways and all the parties owning property abutting on said Zang boulevard and said parkway and those who acquired said property after said dedication, took said land with a right, interest, easement and title in and to the aforesaid property so dedicated, acquiring the legal right to said property along all of said streets remaining and being maintained for the purposes of said map, plat- and) dedication and became invested with a fee simple title to said rights running with the land abutting on said parkways, whether adjoining or abutting on the properties owned by them respectively or not.

“6. That this plaintiff, Mrs. Willie Kay Fall, "by direct and mesne conveyance from said J. F. Zang and particularly by a deed of November 25, 1921, acquired a fee simple title to a portion of said land on said Zang boulevard abutting on said parkway and known as:

“All that certain lot, tract or parcel of land lying and being situated in the city and county of Dallas, state of Texas, and being a strip of ground twenty feet in width off of the entire south side of Lot No. 7 and a strip of ground 40 feet in width off of the entire north side of lot No. 8, in block “A” of Zangs Crystal Hill, an addition to the city of Dallas, according to the plat thereof, recorded in the office of the county clerk of Dallas county, Texas; which said conveyance arid those hereinabove referred to vested in her a fee simple title and interest in and to said esplanade and parkways and sidewalks aforesaid together with the improvements thereon and the right to have said esplanade, sidewalks and parkways used only for the purposes set out in said dedication and to be maintained accordingly without being interfered with or said property and vegetation destroyed or without same being diverted to other and foreign purposes.

“7. That on or about March 1, 1930, the said defendant, J. C. Thompson willfully and maliciously and without the knowledge and consent of this plaintiff or the said City of Dallas or any other parties owning property thereon, wantonly and in utter disregard of her title and rights and the rights and titles of other property owners, entered upon said parkway on said Zang boulevard, and by himself and through his agents, employees and representatives, destroyed a pillar on said parkway of the value of $1,009.00 and destroyed vegetation on said parkway of the value of $100.00, by said acts marring the beauty of said premises and surroundings and of said boulevard generally, converting to his own use and benefit a portion of said parkway approximately twenty feet wide by fifty feet long-off the extreme southwest end of Zang boulevard where it abuts on Davis street and diverted said property from the uses to which it had been dedicated and put it to another and different use covering the same with concrete, and appropriating it and laying claim to it as his own and ejecting all other parties including this plaintiff therefrom and from any use, right, title or privilege therein and from the maintenance of the same for the purposes for which it was dedicated to plaintiff’s damage in the sum of $1,100.00 as aforesaid.

“8. That by reason of all of the foregoing acts of said defendant, J. C. Thompson, set out in the preceding paragraphs of this petition, the property of plaintiff adjoining said land on the north and west thereof had its market value decreased and diminished in the further sum of $1,000.00.

“9. That during the time that all of these wanton acts of destruction and conversion of said property by the said defendant, J. C. Thompson, plaintiff called upon the city of Dallas and urged it to protect her from the wrongful acts aforementioned and to prevent and aid her in preventing the said defendant ■T. C. Thompson from diverting said property from :the uses and purposes for which it was dedicated and from carrying out his program of destruction and conversion, but said defendant, city of Dallas failed and refused and still fails anji refuses to prevent same, but acquiesced in such wrongful acts, thereby becoming a party thereto and causing plaintiff the damage aforementioned.

“Wherefore plaintiff prays as in her original petition that upon a hearing hereof she have judgment against defendants for the amount of the above mentioned damage, with legal interest, reasonable attorney’s fees and all costs of suit, together with such other and further relief, both general and special, which law, equity and the facts warrant.”

Opinion.

Appellant has one assignment of error, in which she submits error in sustaining defendant’s general demurrer, and under said assignment appellant presents one proposition of law, as follows:

“The purchaser of land for homestead purposes, which abuts on property dedicated to the use and benefit of the public acquires every right, title, interest, easement and privilege which her deed and the dedication plat represent as belonging to her, to the city and to the public, and any infraction or invasion of such is actionable.”

Appellees file separate briefs. Appellee city of Dallas submits several counter propositions to the effect that appellant in her petition complaining of the municipality for failing and refusing to prevent alleged wrongful acts of another and its acquiescence in such wrongful acts states no cause of action, because a municipality is not liable for its acts of omission or commission in the protection of property, which, by its nature, is an essential governmental function; the petition fails to connect the city of Dallas with the alleged trespass either by alleging it authorized the acts complained of,'or that said acts were committed by its officers or representatives acting within the scope of their authority; appellant, being an abutting owner upon Zang’s boulevard, did not have title throughout its length, but only immediately adjacent to and in front of her lot.

The petition alleges no overt act of trespass on the part of the city, its agents or representatives, but only that of inaction in failing to protect appellant against the alleged wrongful act of J. 0. Thompson.

It might be well to observe that the city of Dallas as a municipality functions in a dual capacity. It functions as an arm of the state in a governmental capacity, and also in a corporate capacity. The municipality, when acting in its governmental or sovereign capacity, does not submit its actions to the judgment of the courts, its actions in such capacity being for public purposes and exercised at its discretion. It is only where the municipality becomes and is acting, not through its public affairs as such, but acts as a corporation through agents as.servants employed by it, that it can be held liable in damages to individuals for the manner -of its exercise. In its second character mentioned, that is, in the doing of those things which relate to special or private corporate purposes, the corporation stands upon the same footing with a private corporation, and will be held to the same responsibility for injuries resulting from its negligence while acting within the scope of such municipal power. White v. City of San Antonio, 94 Tex. 313, 60 S. W. 426; Ostrom v. San Antonio, 94 Tex. 523, 62 S. W. 909; Green v. Amarillo (Tex. Civ. App.) 244 S. W. 241.

We have concluded that the matter about which the city of Dallas was requested to act, and about which it refused to act, was of a purely corporate character, and, if the allegations of the petition are such otherwise, as to state a cause of action against the city, in its corporate capacity, the demurrer should have been overruled as to the city.

Appellant alleges that she acquired title to her lot abutting on Zang boulevard by mesne conveyance from T. F. Zang; that Zang gave and dedicated to the city of Dallas, for the use and benefit of the public, the streets shown, and for park purposes the esplanade and parkway down the middle of Zang boulevard, together with the vegetation, shrubs, trees, improvements, pillars, and other properties thereon and therein situated, including those existing at the timé of said dedication and conveyance and those placed thereon by himself and his vendees and the property owners abutting on Zang boulevard; that she, as an abutting landowner on Zang boulevard, sidewalk, parkways, and other owners of land similarly situated, took said abutting land with a right, interest, easement, and title to the property so dedicated whether adjoining or abutting on the properties owned by them respectively, or not. She then alleged that J. C. Thompson, without the knowledge and consent of herself, the city of Dallas, or any other parties owning property thereon, destroyed a pillar on said parkway of the value of $1,000 and vegetation on said parkway of the value of $100; that the destruction of said pillar and vegetation “marred the beauty of said premises and surroundings and said Boulevard generally, and converted to his use a portion of said parkway, stating the quantity and location, and thereby ejected all other parties including appellant, to appellant’s damage in the sum of $1,100, as aforesaid; that by reason of said matters complained of the market value of appellant’s adjoining land was decreased and diminished “in the further sum of $1,000.00.” She prays that she have judgment against defendants “for the amount of the above mentioned damage,” interest, etc., and general and special relief.

The only way she connects the city of Dallas and makes it liable for the damages complained of is that she alleges she “called upon the city of Dallas and urged it to prevent and aid her in preventing defendant J. O. Thompson from diverting said property from the uses and purposes for which it was dedicated, and from carrying out his program of destruction and conversion,” and that the city failed and refused to prevent same, but acquiesced in such wrongful acts, thereby becoming a party thereto and causing to her the damages “aforementioned.”

To say the least of it, the petition is uncertain and confusing both as to the amount of the damages claimed against the city and ■ the items of damages. The destruction of the pillar and vegetation and the conversion of a portion of the parkway was done without the knowledge and consent of the city, from which the damages apparently arose, and it seems that the only action the city thereafter could have taken when called upon by Mrs. Eall would he to prevent a further use by Thompson of the portion of the alleged converted parkway, but the damages sustained are not ascribed to the continued use by Thompson of such converted portion of the parkway.

Appellant does not sue for herself and other abutting property owners, but for herself only, while the dedication of the parkway, the pillar, and vegetation is alleged to have been made to the city for the use and benefit of the public and the abutting property owners on Zang boulevard.

The petition fails to connect the city of Dallas with the destruction of the pillar and vegetation or the conversion of the parkway either by alleging that the city authorized the acts of Thompson or that such acts were committed by its officers or representatives. Without some overt act on the part of the city doing or authorizing the doing of the acts complained of, the city would not be liable. City of Dallas v. Beeman, 12 Tex. Civ. App. 344, 34 S. W. 340; City of Galveston v. Brown, 28 Tex. Civ. App. 274, 67 S. W. 156;. City of Corsicana v. White, 57 Tex. 382.

Appellant refers us to several cases as sustaining her contention. We have reviewed them, but we think they are not in point as to the suit against the city.

Much that is said above applies to the cause of action as to Thompson. Appellant’s suit, as stated, is a suit for damages. The property destroyed, the pillar and vegetation, was not alleged to have been situated in that area immediately in front of nor adjoining her lot, but on property in front and adjacent to property of another.

All abutting property owners had, and have, a right in common'with all other abutting property owners, and whatever affected one affected all alike. Here the matters complained of, the tearing down of the pillar and the destruction of the vegetation on the parkway on an abutting property, if a damage to other abutting property, in the absence of allegation in the petition showing that such damage is a special damage and peculiar .to appellant’s property only, such damage would be apportioned to all other similarly affected abutting property, and we think one abutting owner may not appropriate the entire damage. One case we have reviewed holds that a complaint for cutting trees on a highway should allege that plaintiff is the owner of the fee of the highway, and that the trees were on his side of it. Ackerman v. True, 175 N. Y. 353, 67 N. E. 629 ; 29 C. J. p. 551, par. 266, note 20. It is said in Ruling Case Law, vol. 13, p. 131, par. 115: “The abutting fee owner has the title to the grass and herbage growing in the highway,” and under note 10 refers to -a number of cases as so holding. In the same volume, p. 132, par. 116, it is said: “The title to trees follows the fee ownership, so that when the abutter owns the fee to the highway he owns the trees on the part thereof adjoining his property, and also the shrubs, subject to the public use for the purposes for which the property was taken and incidental purposes, and the right of the public authorities to remove them if they obstruct the way or interfere with travel thereon. He has the right to cut them down or remove them,” and refer in notes to a number of authorities as so holding.

At page 138, same volume, it is said: “Dedication of land for public purposes does not necessarily cut off the right of the fee owner as an abutter.”

We have concluded that the court was not in error in sustaining the general demurrer as to both appellees.


author: HICKMAN, Chief Justice.

text:
    HUDDLESTON & WORK et al. v. KENNEDY et al.
    No. 804.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 20, 1931.
    Rehearing Denied Feb. 10, 1933.

      McCormick, Bromberg, Leftwich & Carring-ton, of Dallas, Coombes & Andrews, of Stamford, T. R. Odell, of Haskell, and E. A. Watson, of Throckmorton, for appellants.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, Murchison & Davis, of Has-kell, and J. Fred Wright, of Throckmorton, for appellees.
   HICKMAN, Chief Justice.

Huddleston & Work, a copartnership composed of G. E. Huddleston and H. Work, were the general contractors under a contract with the state of Texas, acting through the state highway department, for the construction and improvement of a certain state highway in Throckmorton county. The contractors furnished an indemnity bond for the faithful performance of said contract, as provided in article 5160, R. S. 1925, as amended by Acts 1929, c. 226, § 1 (Vernon’s Ann. Civ. St. art. 5160). Subsequent to the making of .the contract with the state the contractors sublet certain portions of the work to W. M. Harrison as subcontractor, and also sublet portions thereof to Douglas & Sons as subcontractors. The subcontractors entered upon and commenced the performance of the work, but after a period of a few weeks each subcontractor became involved in financial difficulties and finally each abandoned the contract. After the abandonment by the subcontractors, various of the appellees filed claims with the state highway department for labor performed and material furnished by them to the subcontractors.' Certain of the appellees filed claims for money loaned to one of the subcontractors which was used to pay labor and material bills. These claims so filed with the highway department- were asserted as liens upon the amount due by the state to the general contractors by virtue of articles 5472a and 5472b, Vernon’s Ann. Civ. St. The highway department withheld funds due the general contractors on account of the claims so filed by appellees, whereupon the general contractors executed a release bond, as provided by the Acts of 1929, Forty-First Legislature, 2d "Called Sess., p. 154, c. 78, brought forward in Vernon’s Annotated Revised Civil Statutes of Texas as article 5472b — -1. The appellant Union Indemnity Company was the surety on this release bond. The bond was payable to Ed L. Merriman, Earl Kennedy, Thompson Hardware Company, Bachman Bros., Joe Ingram, Eugene Pickard, Clifford Stewart, First National Bank of Throckmorton, and Throck-morton Milling Company, and was conditioned. as required by the above-cited statute. Upon the filing of the bond the impounded funds were paid by the state highway department to the general contractors. Thereafter, the instant suit was instituted hy Earl Kennedy against Huddleston & Work and Union Indemnity Company. Each of the payees named in said bond, except Thompson Hardware Company, intervened in the suit, and in addition thereto the appellees C. A. Hughes and W. H. Everett, not made payees in said bond, also intervened. Thompson Hardware Company never made itself a party to the suit and its claim is not before us.

In their several pleadings the appellees undertook to set up a twofold cause of action. They first sought to recover upon the general contractors’ original bond, given in compliance with amended article 15160. R. S. 1025 (Vernon's Ann. Civ. St. art. 51601. They sought secondly to recover on the release bond, given by the general contractors under the terms and provisions of article 5172b — 1. Special exceptions of appellants were sustained to each of the petitions in so far as recovery was sought on the first bond, because the petitions wholly failed to allege the filing of a sworn itemised account with the county clerk or the general contractors within the time required by amended article 5160. The appellees refused to amend, but elected to prosecute their respective suits on that portion of their pleadings seeking a recovery on the release bond, given under article 5472b — ■ 1. Various other exceptions and demurrers were interposed by appellants, all of which were overruled.

The case was submitted to a jury on special issues. All of the issues submitted were answered favorably to appellees, and on the verdict of the jury judgment was entered in favor of the plaintiff Earl Kennedy and each of the interveners, for the respective amounts found by the jury. Huddleston & Work and Union Indemnity Company have appealed from that judgment and file*in this court a joint brief.

Since none of the appellees' complied with the provisions of amended article 5160, R. S. 1925, with reference to the filing of their claims with the county clerk or the general contractors, no liability existed under and by virtue of the original bond given in accordance with that article, and the trial court did not err in sustaining special exceptions to the petitions in so far as recovery was sought thereon. Indemnity Ins. Co. of North America v. South Texas Lbr. Co. (Tex. Com. App.) 29 S.W.(2d) 1009; Fidelity & Deposit Co. of Md. v. Prassel Sash & Door Co. (Tex. Civ. App.) 24 S.W.(2d) 539.

The answer to the question presented of whether liability to appellees, as furnishers of labor and material to the subcontractors, exists on the reléase bond executed in aceord-anee with article 5472b — 1, must be arrived at by a construction of articles 5472a and 5472b. These ar tiples read as follows:

Art. 5472a. “That any person, firm- or corporation, or trust estate, furnishing any material, apparatus, fixtures, machinery or labor to ‘any contraotor for any public improvements in this Sítate, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors - for such improvements ; provided, such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.”

Art. 5472b. “That no public official, when so notified in writing, shall pay all of said moneys, bonds or warrants, due said contractor, but shall retain enough of said moneys, bonds or warrants to pay said claim, in case it is established by judgment in a court of proper jurisdiction.”

The "principal contentions of appellants with regard to the construction of these articles are: (1) That the lien therein provided for is available to those only who give written notice of their claims before any payment is made to the general contractor; and (2) that the lien therein given inures to the benefit only of those who furnish labor and material to the general contractor, and not to those who furnish labor and material to subcontractors. In support of their contentions the argument is presented in appellants’ brief in this manner: Legislative intent is available by resorting to the statutes in effect at the time articles 5472a and 5472b were passed, and to the emergency clause (section 3) attached to chapter 17, Acts 1925, which constitutes articles 5472a and 5472b. It is asserted in the argument that, at the time these articles were passed, article 5160 contained this provision: “Provided further; that no person or persons, firm or corporation shall be secured in the payment of any claim contracted prior to the execution of the contract that said b.ond is given to secure.”

From this premise the argument is developed that, when articles 5472a and 5472b were enacted, full provision was afforded by article 5160 to all people and concerns who furnished labor and material that went into construction work, whether furnished to the general contractor or subcontractor, but that the statute excluded those persons whose claims were incurred prior to the making of the contract with the state highway department.

To quote from the brief: “Thus were left unprotected those who sold machinery and apparatus to the general contractor before he actually made the contract, and those who performed labor for him on the equipment that he had to enable him to bid for and secure the contract. To remedy this situation the Legislature in 1925 enacted what is referred to as articles 5472a and b, ⅜ *

It is -further argued that this view finds confirmation in the emergency clause. These considerations lead appellants to conclude as follows: “So, the Legislature created a complete plan of protection for all parties: on-one hand by article 5160 it required a bond for the protection of the people furnishing labor and material that actually went into the job and was contracted for after the State Highway Commission had let the original contract to the general contractor, whether such labor and material were furnished to a sub-contractor or a general contractor; and on the other hand, by lien given in articles 5472a and b, it protected people who sold machinery, apparatus and material to the contractor before he made the contract to enable himself to qualify to take the contract with the state.”

We were impressed by this argument until we discovered same was built upon an incorrect premise. In 1925, when articles 5472a and 5472b were enacted, article 5160 did not contain the proviso, above quoted, excluding from its application those whose claims were based upon contract made prior to the execution of the general contract with the state. That provision entered into the statute first in 1927, when article 5160 was amended by the Fortieth Legislature, First Called Session, p. 114, chap. SO. The article was again amended by the Acts of 1929, Forty-First Legislature, p. 481, chap. 226, § 1 (Vernon’s Ann. Civ. St. art. 5160), so as to exclude that provision therefrom. Persons and firms covered by this provision were not excluded pri- or to 1927, nor have they been subsequent to 1929. In 1925, when articles 5472a and 5472b were enacted, article 5160 afforded a broad protection without excluding any class of persons coming under the general provisions thereof.

To give articles 5472a and 5472b the construction contended for would be to ascribe to the Legislature the intention, when it enacted these articles, to prefer those who contracted with the contractor prior to the date of the general contract with the state, over those who actually labored and furnished material under contracts made subsequent to the general contract with the state. We cannot discern a legislative intent, either from the language of the act, its caption, or its emergency clause, to give to those who sell machinery in advance of the general contract two liens, while limiting to one lien those who labor and furnish material subsequent to the making of the general contract No such limitation is suggested in the caption or in the language of the act itself. The emergency clause (Acts 1925, c. 17, § 3), in the light of the statutes as they -then existed, furnishes no aid. It is our view that article 5472a should not be limited to any particular group or set of claimants, but that same provides for an additional lien to that provided in article 5160. Laborers and materialmen who comply with the terms and provisions of article 5160 thereby fix a cause of action -against the surety on the original bond. Failing so to do, they can derive no benefits from that bond. But, nevertheless they have a remedy in the nature of a garnishment provided in article 5472a. This double remedy, we think, is not limited to any particular group or class, but is available to all persons, firms, and corporations furnishing any material, apparatus, fixtures, machinery, or labor, whether prior or subsequent to the making of the original contract between the contractor and the state or municipality. This view finds support in the provisions of article 6674m, Vernon’s Aim. Civ. St., wherein it is provided that the state highway commission shall retain 10 per cent, of the contract price for road improvement until the entire work has been completed and accepted, “and final payment shall not be made until it is shown that all sums of money due for any labor, materials or equipment furnished for the purpose of such improvements made under any such contract have been paid.” These statutes are in pari materia and should be construed together.. Thus considering .them, and in connection with article 5160, a policy seems to be evidenced to protect those who furnish material and perform labor for the benefit of the public, without distinction as between those who furnish to general con- . tractors and those who furnish to subcontractors. Article 6674k, Vernon’s Ann. Oiv. St., empowers the highway commission to prescribe the form of contracts with road contractors. The contract in the instant case obligated the contractors to “provide all the necessary machinery, fools, apparatus and other means of construction” and to “do all the work” called for in the contract. The commission is Required to withhold 10 per cent, of the contract price to guarantee' the performance of this obligation. The responsibility is. thus placed upon ithe general contractor to provide for his own protection in subletting the work which he has contracted to d-o, and laborers and materialmen are relieved of the responsibility of investigating and determining the solvency of the subcontractors and the wisdom of their contracts.

It is insisted that, in construing these statutes, we should give to the word “any,” as used in article 5472a, a literal meaning, and restrict the time within which .claims should be filed under that article so as to exclude all claims filed after “any.payment is made to such contractor.” But, to give that word such strict and literal meaning would be to i*ender the statute practically useless. The purpose of this act was to afford a protection to the persons therein named, and a construction that would practically defeat that purpose should be avoided. The caption of the act reads as follows: “An Act to create a lien in favor of any person, firm or corporation who may furnish any material, apparatus, fixtures, machinery or labor, to contractors who contract for public improvements, and declaring an emergency.” No restrictive meaning is suggested by this caption, and it is our opinion that same was not intended by the Legislature.

It is our conclusion that the judgment of the trial court in favor of those appellees who declared upon the release bond, and whose claims were for material and labor, should be affirmed. This leads us to a consideration of the claims of certain appellees not included in the foregoing designation.

The claim of interveners, First National Bank of Throckmorton, J. H. Ingram, and W. M. Harrison, for money loaned to the subcontractors with which to pay for labor and material, is not secured by any lien provision in article 5472a. We have been furnished by attorneys for appellants with a typewritten copy of an opinion rendered by our Supreme Court since this case was submitted. The opinion is in the case of Employers Casualty Co. v. County of Rockwall, 120 Tex. 441, 35 S.W.(2d) 690, 692, 38 S.W.(2d) 1098. This question was involved in that case and was disposed of in the following language: “The identical question here presented was decided adversely to the bank’s contention by the Supreme Court in Hess & Skinner Eng. Co. v. Turney, 110 Tex. 148, 216 S. W. 621, 623, in which it was determined that a bank lending money to a contractor to be used for the payment of labor performed and material furnished on construction work did not become subrogated to the rights of the laborers and materialmen so as to be protected by the bond. See, also, Gaylord v. Loughridge, 50. Tex. 577; Lion Bonding & Surety Co. v. [First State] Bank (Tex. Civ. App.) 194 S. W. 1012.”

These appellees in their brief seek to uphold their recovery upon a theory of equitable assignment by virtue of an understanding with one of the general contractors at the time the money was loaned. We do not pass on the merits of this contention. No issues on this theory of recovery were submitted to the jury. The judgment cannot be supported upon an independent ground of recovery not submitted to the jury nor requested by said appellees. Ormsby v. Ratclifte, 117 Tex. 242, 1 S.W.(2d) 1084.

The record is not clear as to the status of Joe Ingram. J. H. Ingram joined the First National Bank and W. M. Harrison in a petition of intervention for money loaned by the bank.to Harrison on a note on which J. Hi Ingram was surety. Joe Ingram filed a separate plea of intervention for labor, the use of a truck, and for money loaned to the subcontractors. No judgment was entered for Joe Ingram, but judgment was entered for J. H. Ingram for an amount which corresponds to the answers of the jury to special issues regarding Joe Ingram’s claim. This amount was $704.25. We think it sufficiently appears that Joe Ingram and J. H. Ingram are one and the same person, and shall dispose of this claim on that basis. The item of $298.42 found by the jury to have been the amount paid by Ingram to laborers for labor performed on the construction work cannot be allowed for the reason above assigned. The same is true of the $29 as the value of the material paid for, but not furnished by Joe Ingram. Eliminating these two items, this claim is reduced to $376.83, and will be affirmed to that extent.

The petition of H. A. Bachman and M. B. Bachman was subject to the general demurrer of Union Indemnity Company. These in-terveners failed to plead the release bond, but declared only upon the bond given in accordance with article 5160. The judgment in their favor must therefore be reversed.

The intervener, C. A. Hughes, was not named in the release bond and sought no recovery thereon. He was awarded a personal judgment against Huddleston and Work individually for $240. His claim was below $500. Since his suit was not upon the bond and was for an amount less than $500, he should not have been granted leave to intervene, as the court had no jurisdiction to hear his independent suit for that amount. The judgment in his favor will be reversed.

The judgment in favor of the intervener W. H. Everett must be reversed for the same reason as that assigned for reversing the judgment in favor of C. A. Hughes.

It is our order that the judgment of the trial court be reversed and remanded,.in so far as it awarded recovery to the following named appellees: First National Bank of Throckmorton, W. M. Harrison, H. A. Bachman, M. B. Bachman, C. A. Hughes, and W. H. Everett. That judgment.in favor of J. H. Ingram be affirmed to the extent of $376.83, and reversed and remanded as to all excess over that amount, and that as between the appellants and the other appellees the judgment of the trial court be affirmed. One-half the costs will be taxed against appellants and the other half against the appellees as to which the judgment is reversed.

Affirmed in part, reformed and affirmed in part, and reversed and remanded in part

On Rehearing.

After our original opinion was released, and while motion for rehearing was pending, we granted appellants’ motion to certify certain questions to the Supreme Court.

Upon the answers of that court to the questions certified [53 S.W.(2d) 1009], the motion for rehearing is now overruled.


author: PELPHREY, Chief Justice.

text:
    JOHNSON v. ARLINGTON HEIGHTS GARAGE.
    No. 2788.
    Court of Civil Appeals of Tesas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied Feb. 16, 1933.
    Horace C. Bishop, of Dallas, for plaintiff in error.
    F. M. Bransford, of Fort Worth, for defendant in error.
   PELPHREY, Chief Justice.

On April 22, 1929, Mrs. Hazel Kelly, doing business under the name of the Arlington Heights Garage, joined pro forma by her husband, recovered a judgment in the county court at law, No. 2, Tarrant county, Tex., against T. O. Bell, for $248.24, with 6 per cent, interest from January 1,1929. On September 26, 1929, she sued out a writ of garnishment in said court against T. H. Johnson, who she alleged resided in Dallas, Dallas county, Tex. On November 6, 1929, Johnson filed his answer denying that he was either indebted to or had in his possession any effects belonging to T. O. Bell.

On February 5, 1930, Mrs. Kelly filed a controverting affidavit, and on May 29, 1930, the judge of the Tarrant county court at law, No. 2, oi’dered the cause transferred to the county court of Dallas county at law, No. 1. The court based such action upon the fact that Johnson resided in Dallas county and had so resided when the writ of- garnishment was served upon him. The clerk of the Tar-rant county court, thereafter, forwarded to the county clerk the original papers in the case. The case was filed in the Dallas county court under the number of 55389-A. The attorney for defendant in error upon learning that the original papers had been sent to the Dallas court by the clerk of the Tarrant county court had the clerk of the Dallas court return them and had the clerk- of the Tarrant county court to make certified copies thereof and transmit the same to the clerk of the Dallas court. Upon receipt of such certified copies, the- clerk of' the Dallas court docketed the suit under No. 57701-A. On May 8, 1931, on motion of defendant in error, No. 55389-A was consolidated with 57701-A, and ordered carried on the docket under No. 55389-A. On September 28, 1931, cause No. 57701-A was dismissed for want of prosecution. January 4, 1932, plaintiff in error filed a plea to the jurisdiction of the Dallas court on the ground that true and correct certified copies of the proceeding in the Tar-rant county court had not been filed in the case. The plea was overruled, and upon a trial before the court judgment was rendered against appellant, garnishee, for $24S.24, with interest from January 1, 1929, $9.05 costs in the original suit, and all costs in the present suit except those arising from the filing of the original papers.

■ This appeal is from such judgment.

Opinion.

Plaintiff in error in his propositions contends that because defendant in error failed to file in the county court of Dallas county at law, No. 1, a duly certified copy of the alleged judgment in the original suit of Arlington Heights Garage v. T. O. Bell, the county court of Dallas county at law, No. 1, was without jurisdiction to try the suit; and that such judgment not having been filed and no competent evidence being introduced as to such judgment, there was no basis upon which judgment could be rendered and no original indebtedness of Bell to Arlington Heights Garage shown upon which the judgment here could be based.

Under his first contention plaintiff in error argues that the alleged copy of the judgment filed was not duly certified as being a copy of the judgment in the original suit of Arlington Heights Garage v. Bell, No. 27477, and, for that reason, under article 4096, Revised Statutes, no jurisdiction attached in the Dallas court. The pertinent part of article 4096, reads: “⅜ * ⅜ but if the garnishee whose answer is controverted, resided in some county other than the one in which the main case is pending or was tried, and is not a foreign corporation, then upon the filing of a-controverting affidavit by any party to the suit, the plaintiff may file in any court of the county of residence of the garnishee having jurisdiction of the amount of the judgment in the original suit, a duly certified copy of the judgment in such original suit and of the proceedings in garnishment, including a certified copy of the plaintiff’s application for the writ, the answer of the garnishee, and the affidavit controverting such answer. The court wherein such certified copies are filed shall try the issues made as provided by law.”

In the court where the original suit was tried the court had before it the proceedings in garnishment and would take judicial knowledge of the existence of the judgment in the original suit and of what it contained. The Legislature in the above provision evidently intended to place another court to which the garnishment proceedings might be transferred in a like position. It first provided that a certified copy of the judgment in the original suit should be filed in the other court. Such judgment is the basis for the garnishment proceeding and the existence thereof must be shown before any judgment can be rendered against the garnishee.

The application for the writ, the answer of the garnishee, and the controverting affidavit all are necessary to place before the court the issues it will be called upon to try.

It therefore follows that, after the copies required are filed, the court to which the proceeding is removed will be in position to dispose of the issues raised as well as they could- have been disposed of in the court of origin.

The writ of garnishment is the creature of the statute and the procedure a matter of statutory regulation. Holloway Seed Company v. City National Bank, 92 Tex. 187, 47 S. W. 95, 516. Garnishment is but a species of attachment, is a summary proceeding, and the statutes governing it should be followed with strictness. Buerger v. Wells, 110 Tex. 566, 222 S. W. 151. “Garnishment rests wholly upon judicial process, and depends upon the due pursuit of the steps prescribed by law for its prosecution.” Insurance Co. of North America v. Friedman Bros., 74 Tex. 56, 11 S. W. 1046, 1047.

It follows, we think, that it was the. •duty of defendant in error here to have the certified copies filed in the Dallas court before that court would have jurisdiction to pass upon the merits of the controversy. Jones v. Cummins, 17 Tex. Civ. App. 661, 43 S. W. 854.

The clerk of the county court of Tar-rant county sent to the clerk of the Dallas court a transcript which included a copy of the judgment in the original suit, a copy of the application for the writ of garnishment, a copy of the writ and the sheriff’s return thereon, a copy of the'garnishee’s answer, a copy of the controverting affidavit, and a copy of the court’s order to the clerk to make up a transcript of the record and transfer the same to the county court of Dallas county at law, No. 1.

The clerk attached to the transcript the following certificate: “I, Orville Beall, Olerk County Court at Law, No. 2, Tarrant County, Texas, do hereby certify that the above and foregoing is a true and correct copy of ail papers filed and of record in this Court, in cause number 28355, the same being styled; Arlington Heights Garage v. T. H. Johnson as the same appears of record and on file in my office.”

The original suit was docketed under No. 27477, while, as appears from the above certificate, the garnishment suit was numbered 28355.

Plaintiff in error here contends that the above certification was insufficient to show that the judgment included in the transcript was the judgment rendered in the original suit; that there is no law providing for a copy of the judgment in the original suit to be filed in the garnishment proceedings, and, therefore, a certification that a judgment appearing in the transcript was filed in the garnishment proceeding does not constitute a certification that the judgment included is the judgment rendered in the original suit.

The law being that in suits of this character a strict compliance with the statutory requirements must be shown, we are constrained to hold that the judgment included in the transcript was not certified to in the manner contemplated by the statute and that there was not such a strict compliance as gave the Dallas county court jurisdiction of the proceeding.

In accordance with such holding the judgment of the trial court must be reversed and the cause remanded to the county court at law, No. 1, of Dallas county, Tex., with instructions to dismiss the ease unless the jurisdiction of that court be established by the filing of true and correct certified copies of the proceedings in the Tarrant county court, and it is so ordered.


text:
    THOMAS et al. v. FIRST STATE BANK OF PANHANDLE.
    No. 3954.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1933.
    Claude Williams, of McLean, and Thomas & McDonald, of Big Spring, for appellants.
    James Spiller, of Panhandle, for appellee.
   JACKSON, Justice.

This suit was instituted in justice court, precinct No. 1, Carson county, Tex., by the First State Bank of Panhandle against Clyde E. Thomas, W. A. Farrar, L. E. Parmley, and J. I. Prichard, to recover a balance of $155.88 on a note, with interest, attorney’s fees, and costs. No service was had on defendant W. A. Farrar, and he was dismissed from the suit on motion of the plaintiff.

Clyde E. Thomas, B. E. Parmley, and J. I. Prichard each filed his separate plea of privilege to have the case transferred to justice precinct No. 1, Howard county, Tex., the county and precinct of his residence.

The plaintiff bank filed its controverting affidavit to the respective pleas of privilege and alleged, in substance, that the suit was. for an unpaid balance on a note for $1,000, executed by W. A. Farrar and L. E. Parmley, and payable to the plaintiff at Panhandle, Tex.

That in a suit styled J. H. Aynesworth v. L. E. Parmley et al., filed in the district court of Howard county, the bank, a party thereto, had obtained judgment for the principal, interest, and attorney’s fees due on said note, and that said sum had been deposited with J. I. Prichard, the clerk of said court. That said judgment had been affirmed by the Court of Civil Appeals, 37 S.W.(2d) 836, and the Supreme Court, but that defendant Prichard had failed to pay the entire deposit to plaintiff, and paid a part thereof to Clyde E. Thomas, who was without any claim thereto, and the balance of $155.88 on said note, with interest and attorney’s fees, was still due.

The pleas of privilege were overruled in justice court, and judgment on the merits rendered for plaintiff.

On appeal to the county court, the pleas were again urged and judgment entered overruling such pleas, and such action of the county court is before us for review.

, Mr. James Spiller testified: That he was the attorney for the bank at the time the case of Joseph H. Aynesworth v. L. E. Parmley et al. was tried in the district court of Howard county, and that the bank was a party to such suit. That before the announcement for trial, as attorney for the Bank, he agreed with Clyde E. Thomas in open court not to file a plea of privilege for his client, but that he would submit to the jurisdiction of said district court, provided the defendants would deposit in court the sum of $1,189.22. That the money was deposited with defendant Prichard, the note thereafter reduced to judgment, and a decree entered for the deposit in favor of the bank against L. E. Parmley and W. A. Farrar, and that the judgment became final. That he went to collect the judgment and deposit, but the clerk paid him only $1,-033.34 thereof. That he had been unable to obtain the note which had been left with the clerk. That he had agreed with Mr. Thomas that the $155.88 could be taken out of the deposit, provided a bond was placed with the clerk for said amount, as Thomas had claimed there was some question as to the total amount of the deposit being due. That Mr. Thomas filed a bond with the clerk and procured the sum of $155.88 and never repaid it, and witness had been unable to collect it. That the entire transaction and all agreements, so far as Mr. Prichard and Mr. Thomas were concerned, occurred in Howard county, and their names did not appear as obligors on the note. That the bond furnished by defendant Thomas was left with the Clerk J. I. Prichard, and provided for the repayment to him of said amount.

It is not controverted that each of the defendants reside and live in precinct No. 1, Howard county, Tex. The $1,000 note was obviously merged in the judgment obtained in the district court of Howard county, and suit for a balance on the note could not be maintained in Carson county against L. E. Parmley.

“Where judgment is recovered on a note, it is merged and extinguished and a second judgment cannot be had thereon between the same parties.” 2 Black on Judgments, § 674.

“It is true, as contended by appellants, that, when a suit has been brought and a judgment obtained, the original cause of action is merged in the judgment. United States v. Leffler, 11 Pet. 98, 9 L. Ed. 647; Hamer v. Ry. Co., 244 U. S. 266, 37 S. Ct. 511, 61 L. Ed. 1125, 1129; Mason v. Eldred, 6 Wall. 231, 18 L. Ed. 783, 785 ; Neill v. Tarin, 9 Tes. 259; Drane v. Gunymere, 2 Posey, Unrep. Cas. 500.

“In United States v. Leffler, supra, the court said:

“ ‘If there be any one principle of law settled beyond all question, it is this, that whensoever a cause of action, in the language of the law, transit in rem judieatam, and the judgment thereupon remains in full force un-reversed, the original cause of action is merged and gone forever.’ ” Burlington State Bank v. Marlin Nat. Bank (Tex. Civ. App.) 207 S. W. 954, 956.

Neither of the other appellants resided in Carson county, and neither was subject to any of the exceptions in the venue statute. Behrens Drug Co. v. Hamilton et al., 92 Tex. 284, 48 S. W. 5; McInnes v. Wallace, County Judge (Tex. Civ. App.) 44 S. W. 537; Harrold v. State, 30 Tex. Civ. App. 524, 71 S. W. 407.

The assignments complaining of the admission of certain testimony we deem it unnecessary to discuss, as such errors will probably not occur on another trial.

The court committed error in overruling the pleas of privilege, and the judgment is reversed and the cause is remanded.

       Writ of error dismissed without opinion.


author: BAUGH, Justice.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION v. BETTES et al.
    No. 7788.
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1933.
    Rehearing Denied Feb. 22, 1933.
    Henry P. Edwards, of Dallas, for appellant.
    Woodruff & Holloway and R. E. Lee, all of Brownwood, for appellees.
   BAUGH, Justice.

Appeal is from a statutory trial of the right of personal property, consisting of three Pontiac automobiles. Appellees seized them under a distress warrant, asserting a landlord’s lien on them for past-due rents owing to ap-pellee Ruth R. Bettes, by L. C. McKean on the building in which the cars were placed and offered for sale. ’ After they had been so seized, appellant filed claimant’s oath and bond, retained possession of the cars theretofore obtained, and subsequently sold same. In a trial to the court, judgment was rendered in favor of appellees against appellant for $1,625, the amount of the rents due appellees by McKean, on the ground that appellees liad a prior landlord’s lien on said cars to secure the rent account.

Appellant’s first assignment is tliat the court erred in holding that it had failed 'to establish its claim of ownership of the cars. The transactions through which it claimed title to the cars were as follows: On May 27, 1931, McKean doing business at Brownwood, Tex., as the McKean Motor Company, ordered the cars from the Oakland Motor Company factory branch at Dallas. Their purchase was financed by appellant as follows: The cars were shipped from the factory to Brownwood, under a bill of sale to the General Motors Acceptance Corporation and bill of lading with draft attached sent to a Brown-wood bank. When the cars arrived, McKean paid draft for $278 and executed his note for $2,375, dated June 22, 1931, due four months after date, and payable to appellant at Dallas, Tex. This note represented the purchase price of the four cars shipped, three of which are here in controversy. McKean at the same time executed and delivered to appellant what is designated a “trust receipt,” under which the cars were delivered into McKean’s possession, unloaded, and placed by him in the rented building on June 24, where they were offered for sale.

On July 14,1931, appellant, under the terms of the “trust receipt,” which was not placed of record in Brown county, and of which ap-pellees had no notice, took possession of said cars and removed them to Coleman county, where appellees had them seized on the following day under the distress warrant.

Clearly title passed under, the bill of sale from the manufacturers into the'General Motors Acceptance Corporation. Industrial Acceptance Corp. v. Corey (Tex. Com. App.) 29 S.W.(2d) 978. But appellant delivered the cars to McKean, who placed them in appel-lees’ building and offered them for sale to the public, and McKean executed and delivered to it his promissory negotiable note for the purchase price, together with the “trust -receipt.”

Appellant contends that the “trust receipt” evidenced merely a consignment or bailment for sale, that appellant retained ownership of the cars while located in appellees’ building, and consequently that no lien for rents could attach. Appellees contend that such trust receipt evidenced such a reservation of title as is required by articles 5489 and 5490, R. S.-1925, to be recorded as a chattel mortgage in order to be valid against creditors; and, ■ not having been registered, same was void as against Ruth R. Bettes, a creditor within the purview of the statute, who acquired a landlord’s lien on the cars to secure past-due rents.

We have concluded that appellees are correct. While the trust receipt acknowledged that appellant was the owner of the cars and bound McKean to hold them for purposes of storage under further instructions of appellant, and not to sell or incumber same until after payment by McKean to appellant “of amounts shown on dealer’s record of purchase and release, etc.,” it also bound him to “pay and discharge all taxes, encumbrances and claims relative thereto.” McKean was a dealer in automobiles, selling both new and secondhand cars to the public. The cars were in his possession clearly for purposes of sale to the public, and were offered for that purpose. Appellant had nothing of record to indicate otherwise than that McKean was the owner of same with full power to sell same to the public. Under such circumstances, had he sold one of said cars to a purchaser in good faith for value without notice of appellant’s claim, such purchaser would undoubtedly have obtained a good title thereto. Industrial Acceptance Corp. v. Corey, supra. Under such circumstances, and the provisions of the trust receipt, which clearly contemplated a sale of the cars by McKean to the public, and the execution and delivery by McKean to appellant of his negotiable promissory note, binding him without qualification to pay to appellant the full purchase price of the cars delivered to him for purposes of sale, we think the trust receipt must be construed as a mere reservation of title to secure the payment of. the note, and clearly within the purview of; articles 5489 and 5499 of the statute. Notj being recorded it was void as to creditors of McKean without notice thereof. Carrollton-Acceptance Co. v. Wharton (Tex. Civ. App.) 22 S.W.(2d) 985; Commercial Credit Co. v. Motor Co. (Tex. Com. App.) 23 S.W.(2d) 702; General Motors Acceptance Corp. v. Boddeker (Tex. Civ. App.) 274 S. W. 1016; Texas Bank & Trust Co. v. Teich (Tex. Civ. App.) 283 S. W. 552; Scruggs v. Crockett Automobile Co. (Tex. Civ. App.) 41 S.W.(2d) 509.

Considered in its general aspects, in the light of the circumstances and of the written instruments executed, we think it is obvious that appellant was merely financing the dealer in his purchase of new cars, that such cars were to be sold by him to the public and the appellant to be repaid by the dealer, out of the proceeds of such sales, the funds advanced by it to him, in carrying on. his business. The dealer was consequently clothed with the indicia of ownership, if not with actual title to the cars, and the purposes and import of the note and trust receipt executed by him were merely to evidence and secure the appellant in the sums advanced by it to him to enable him to carry on his business of selling automobiles.

While one of appellant’s witnesses tes-tilled that it was the custom of appellant, followed in the instant case, to surrender to the dealer the note executed by him, when appellant repossessed the cars, there is nothing either in the trust receipt or in the note itself obligating it to do so. The note was an unconditional negotiable promise to pay the purchase price of the cars. Any collateral agreement or custom of appellant seeking to vary its express written terms was therefore not admissible. Robertson v. City Nat. Bank, 120 Tex. 226, 36 S.W.(2d) 481; Daggett v. Corn (Tex. Civ. App.) 64 S.W.(2d) 1098.

It is well settled that the owner of a rented building is a creditor of bis tenant for rents due to him within the purview of the statute, and under article 6238 entitled to a preference lien on the property of the tenant in the building to secure rents due, superior to an elder unrecorded mortgage on the same property. Berkey & Gay Fur. Co. v. Sherman Hotel Co., 81 Tex. 136, 16 S. W. 807; Low v. Troy Laundry Machinery Co. (Tex. Civ. App.> 160 S. W. 136; Cave v. Talley (Tex. Civ. App.) 298 S. W. 912; Carrollton Acceptance Co. v. Wharton, supra.

Appellant’s second assignment and remaining contention is as follows: “The trial court erred in decreeing the automobiles in. controversy were subject to a landlord's lien securing appellees in the payment of rents due them by L. C. McKean which had accrued prior to the placing of said automobiles in the rented premises, and which had accrued under a prior tenancy based upon a written lease which had theretofore expired.”

McKean occupied the premises under a written lease covering a period of three years beginning April 10, 1928, at a rental originally of $200 per month. While the ownership of the building changed during 'that period and the rent was reduced to $125 per month, the tenant completed the term and after April 10, 1931, continued to occupy the premises from month to month under oral agreement at a monthly rental of $125. Of the amount recovered, $1,325 accrued during the last nine months of the three-year period, and $300 under the month to month oral agreement. The automobiles in question, were placed in the rented building in June, 1931, while McKean was occupying the building under his tenancy from month to month.

Appellant’s lien being void as to creditors of McKean for lack of registration, itsi claims were in no wise superior to those of McKean as against the appellees. The query therefore arises, Could McKean have defeated the landlord’s statutory lien for rents accruing under said lease, because the ears were placed by him in said building after the expiration of his written lease? The rents accruing and unpaid all fell within a twelve-month period prior to the removal of said ears from the building. Where a written lease expires and the tenant holds over without the execution of >a new lease, his occupancy has been held to be under the terms of the expired lease. Woodward v. Ry. Co., 35 Tex. Civ. App. 14, 79 S. W. 896. In any event, however, we think the landlord’s lien attached to the property placed in the building in June, 1931, regardless of the date of the expiration of the written lease, or whether the holding over by the tenant was under a new rental contract or under the old. To hold that a landlord’s lien attaches only to property placed in the building during the term in which the rents- become due, in tenancies from month to month, where stocks of merchandise are constantly changing and’ being replaced with new, would obviously in many instances destroy the landlord’s security for past-due rents. Such was not the purpose of the statute. As stated by the Supreme Court in Block, Oppenheimer & Co. v. Latham, 63 Tex. 417, the lien attaches to the .property placed upon the rented premises, at any time during the tenant’s occupancy thereof “for the payment of all rent duel without reference to the time it accrued.”

While there may be some language in Hempstead R. E., B. & B. Ass’n v. Cochran, 60 Tex. 620, tending to indicate the contrary, that case was by the Commission of Appeals, and such language was held by the Supreme Court in Marsalis v. Pitman, 68 Tex. 629, 5 S. W. 404, to he merely dicta, and not in accord with the views of the Supreme Court. The other cases cited by appellant relate to farm and crop leases, which are governed by a different statute and present different questions from those presented by this case.

Finding no error in the record, the judg- ■ ment of the trial court will be affirmed.

Affirmed.


author: DUNKLIN, Justice.

text:
    CITIZENS’ MUT. LIFE ASS’N v. KENNEDY.
    No. 12772.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 28, 1933.

      Tom Whipple, of Waxahachie, for appellant.
    Willis & West, of Dallas, for appellee.
   DUNKLIN, Justice.

The Citizens’ Mutual Life Association of Waxahachie, Tex., has prosecuted this appeal from a judgment rendered in favor of L. H. Kennedy on two policies of insurance issued to him in the sum of $600, each, aggregating $1,200.

Each policy contained' this stipulation: “The Citizens’ Mutual Life Association further agrees to'pay fifty cents ($'.50) from each member that is in good standing in this class not to exceed six hundred ($600.00) dollars for permanent and total loss of an eye, hand or foot, provided benefits for loss under this provision shall never exceed eleven hundred ($1,100.00) dollars.”

The suit was based on allegations that plaintiff had sustained a total loss of his left hand, and the judgment rendered was upon a finding of the jury sustaining that allegation.

The principal contention presented here by different assignments of error is that the evidence was insufficient as a conclusion of law, to prove that the plaintiff had sustained a total loss of his hand. The evidence shows that four fingers of plaintiff’s left hand were so injured by the accidental discharge of a gun that they had to be amputated. A diagram of the hand appearing in the statement of facts shows that, after the accident, the index finger was amputated just below the knuckle, which joins that finger to the palm of the hand, and the other three fingers just above the knuckles which joined the fingers to the palm of the hand.

Plaintiff was a farmer by occupation, and according to his testimony his left hand is now wholly useless in the performance of his work as such farmer and of any other work, .although he testified that he could pick up spme light object, like a pair of glasses or a piece of paper,- by gripping the same between his thumb and the remaining stub of his hand. And his testimony to that effect was corroborated by that of his wife and also by Dr. M. L. Holland, the surgeon who amputated his fingers and' treated him for some time thereafter ; and also by the exhibition of his hand itself to the jury. A diagram showing the anatomy of the left hand with lines drawn across the same to indicate the line of amputation of plaintiff’s hand' was introduced in evidence and appears in the statement of facts.

Kemper v. Police & Firemen’s Ins. Ass’n (Tex. Com. App.) 44 S.W.(2d) 978, 979, was a suit by Mrs. Thekla Kemper, surviving wife of Wm. H. Kemper, deceased, to recover $2,000 on an insurance policy issued by the Police & Firemen’s Ins. Association to Wm. H. Kemper, in which it was agreed that that amount should be payable to his widow in the event he should receive bodily injuries through accidental means resulting in his death, with, this provision: “A. For loss of life $2,000.00 * * * And provided further that the above Benefits for loss of life shall be payable only in the event that the disability resulting from said injury shall be total and immediate and shall be continuous from the time of the injury to-the time of the death of said' member.”

It .appears that Wm. H. Kemper was captain in the city fire department in the city of San Antonio, and, while attempting to extinguish a fire in a drug store, he inhaled gases and fumes arising from chemicals used in fighting the fire and drugs stored in the building, and as a result thereof he became .sick while fighting the fire and vomited and had pains in his chest and throat, and continued sick from the time of the fire to the time of his death, which occurred 20 days later. However, the evidence showed that, after the fire, he returned to his post of duty as a fireman, and remained in the performance of the same as best he could, although suffering from pain for some 32 or 13 days, at the termination of which time he was sent to a hospital where he died, from the effects of the gases, about one week later. A judgment in favor of plaintiff in that case was affirmed by the Supreme Court, overruling the contention made by the defendant company that the evidence failed to show that the disability of Wm. H. Kemper resulting from the injury was “total and immediate, and shall be continuous from the time of the injury to the time of death of such member,” within the meaning of the provision of the policy above quoted, The opinion of Justice Critz in that case shows a careful review of prior decisions touching on- that point. It is pointed out that, while the policy of insurance was a contract which must , be construed in the light of the facts as. any other contract, yet it is the duty of the court to interpret it as strictly as its language will reasonably permit against the insurer, and the following is quoted from the opinion:

“We think further that it is impossible to lay down an iron-bound rule by which it can always be accurately determined from a given state of facts, whether a person has been totally disabled from the time of injury until the time of death within the meaning of this contract. We do hold, however, that as a general rule it can be said that a person is totally disabled from the time of injury until the time of death when during all such time his condition is such that common prudence, and the exercise of ordinary care, would require him to desist from the performance of his duties. [Citing cases.]

“In Texas Employers’ Ins. Ass’n v. Brock, supra [36 S.W.(2d) 704], Section B of the Commission [of Appeals] had before it a case involving the term ‘total incapacity,’ as used in the Texas Workmen’s Compensation Law, article 8306, K. C. S. The trial court defined the term as follows: ‘In answering the foregoing issue you are charged that the term “total incapacity,” as used in the Workmen’s Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual task of a workman in such a way as to enable him to procure and retain employment is regarded as total incapacity.’ ”

See, also, Winters Mutual Aid Ass’n v. Reddin (Tex. Com. App.) 49 S.W.(2d) 1095, and authorities there cited, including Commonwealth Bonding & Casualty Ins. Co. v. Bryant, 113 Tex. 21, 240 S. W. 893,

We conclude that the reasons upon which those decisions are based apply with equal force to the loss of a hand.

The policy did not stipulate that compensation should be paid for the loss of a hand in the event it should be severed from the arm. The stipulation for indemnity for the loss of a hand should be construed as referable to its usefulness, and, if its use was destroyed for all substantial and practical purposes, the condition for the payment of the indemnity was fulfilled. Modern Order of Praetorians v. Taylor, 60 Tex. Civ. App. 217, 127 S. W. 260, and authorities there cited; Brotherhood of Bailroad Trainmen v. Britton (Tex. Civ. App.) 292 S. W. 286; Business Men’s Mutual v. Lockhart (Tex. Civ. App.) 291 S. W. 658; Life & Casualty Co. of Tennessee v. Peacock, 220 Ala. 104, 124 So. 229; Cooley’s Briefs on Insurance, vol. 8 (2d Ed.) Supplement, p. 5574 (par. b) bottom page 803, and decisions there cited; Ozark Mutual Life Ass’n v. Winchester, 116 Okl. 116, 243 P. 735; Moore v. Ætna Life Ins. Co., 75 Or. 47, 146 P. 151, L. R. A. 1915D, 264, Ann. Cas. 1917B, 1005.

The following is quoted from the opinion in. Hoffman v. Ætna Fire Ins. Co., 32 N. Y. 405, 88 Am. Dec. 337:

“ ‘All words,’ says Lord Bacon, ‘whether they be in deeds, or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person.’ (Bacon’s Law Maxims, Beg., 10.) * * *

“It is a rule of law, as well as of ethics, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in. the sense in which he had reason to suppose it was understood by the prom-isee. (Potter v. Ontario & L. M. Ins. Co., 5 Hill [N. Y.] 149; Barlow v. Scott, 24 N. Y. 40). It is also a familiar rule of law, that if it be left in doubt, in view of the general ten- or of the instrument and the relations of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction should be adopted which is most beneficial to the promisee. (Coke’s Litt., 183; Bacon’s Law Maxims, Beg., 3; Doe v. Dixon, 9 East. 16; Marvin v. Stone, 2 Cow. [N. Y.] 806.)”

Complaint is made of the fqllowing instruction to the jury on the ground that it was incorrect as a proposition of law and was in the nature of a general charge: “Total loss of a hand, within the meaning of the insurance certificate sued on, means that so much of the hand must be lost as will render the remaining part of it of no material or practical use or benefit.”

That instruction was substantially to the same effect as the one approved in Texas Employers’ Ins. Ass’n v. Brock (Tex. Com. App.) 36 S.W.(2d) 704, cited in Kemper v. Firemen’s Ins. Ass’n, supra. And it was required under the rule announced in Washington Fidelity Nat. Ins. Co. v. Williams (Tex. Com. App.) 49 S.W.(2d) 1093.

Dr. Holland, a witness for plaintiff, fully qualified as an expert by showing that he had had long experience as a surgeon. He was then interrogated by the defendant’s counsel at length as to the effect of plaintiff’s injury* and also concerning the report he made to the defendant concerning the injury after he had treated him, which included the following question and his answer: “Do' you consider his hand as being totally and- permanently off? Answer: Yes.”

Plaintiff’s counsel then on redirect examination elicited from the witness this- answer: “I meant that his hand was totally and permanently off as far as gripping a plow handle was concerned, as fai; as chopping cotton with that hand and as far as carrying a bucket of water with it.”

To that answer -defendant’s counsel interposed a general objection without specify-tag any particular ground therefor, and which objection was overruled. We believe it clear that there is no merit in the assignment of error presented to that ruling.

For the reasons indicated, all assignments of error are overruled, and the judgment of the trial court is affirmed.


text:
    JONES v. CALLERY.
    No. 12740.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 3, 1932.
    Rehearing Denied Jan. 14, 1933.
    Dee Estes and S. R. Graves, both of Fort Worth, for appellant.
    W. F. Kelly, T. W. D.unn, and Charles T. Rowland, all of Fort Worth, for appellees.
   DUNKLIN, Justice.

J. C. Johnson (colored) departed this life on or about August 1, 1930, in the city of Fort Worth, where he had resided for several years. At the time of his death he was the owner and in possession of two town lots in Fort Worth. Daisy Callery was appointed administratrix of his estate on August 26, 1930, and the lots were listed in the inventory returned by her as belonging to the estate of J. O. Johnson, deceased. By an amended petition filed in the same court on April 3, 1931, Clara Johnson Jones, joined by her husband, L. J. Jones, claimed an undivided one-half interest in those lots and prayed for a decree of partition setting apart that interest to her. The basis of her claim was that the property was acquired by the deceased while they were living together as husband and wife. It was further alleged that she and J. C. Johnson were lawfully married in the month of December, 1889, in the state of Louisiana, and that they continued to live together as husband and wife until September 15, 1917, when they finally separated and thereafter ceased to further live together.

In another count of the petition it was alleged that the property was paid for as the result of joint efforts of herself and Johnson while they were living together, and that even though it should be held that she was not lawfully married to him, yet she was entitled to a one-half interest in the same since she was induced by him to believe in good faith that she was his lawful wife and entitled to a wife’s interest in said estate so accumulated by their joint efforts.

Daisy Callery, the administratrix of the estate, filed an answer to that application which embodied a general demurrer and special exceptions presenting the contention that the claim so made by Clara Johnson Jones was in the nature of an action of trespass to try title, which the county court had no •jurisdiction to determine. The general demurrer and special exceptions were sustained, and from that order Clara Johnson Jones prosecuted an appeal to. the district court of the Ninty-Sixth judicial district, to which the records in the probate court were transmitted in accordance with the statutes in such cases made and provided.

On January 16, 1931, Clara Johnson Jones, joined by her husband, L. J. Jones, filed a suit in the same district court in trespass to try title seeking to recover an undivided half interest in the property mentioned above, in which Daisy Callery, administratrix of the estate of J. C. Johnson, deceased, and several other persons were named as defendants, including several persons who the record shows were the offsprings of J. C. Johnson and Delia Johnson, deceased, while he and Delia Johnson lived together as husband and wife in the state of Louisiana prior- to the alleged marriage of J. C. Johnson to plaintiff Clara Johnson Jones; also several persons who plaintiff alleged were offsprings of J. C. Johnson and herself after J. C. Johnson moved from the state of Louisiana to the city of Port Worth.

The claim of title presented by plaintiff was based upon the same facts alleged in her application for partition filed in the county court; while the claim of title by the defendants was based upon the contention that Delia Johnson, their mother, was the lawful wife of J. C. Johnson and that relation was never dissolved and that J. C. Johnson was never lawfully married to the plaintiff prior to the date she claimed a marriage with L. J. Jones.

On motion of plaintiff both suits were consolidated and tried as one. The consolidated case was tried before a Jury, and the following are special issues submitted to them with their findings thereon:

1. “Was J. C. Johnson married to the mother of Daisy Callery prior to 1889? Answer: Tes.”

2. “Was J. C. Johnson divorced from Delia Johnson, the mother of Daisy, if they were married? Answer: No.”

3. “Did Clara Champaign engage in a marriage ceremony with J. C. Johnson on or about 1889? Answer: No.”

The trial court then‘rendered a judgment denying plaintiff Clara Johnson Jones any relief both in the appealed case from the county court and in the trespass to try title suit, together with a further judgment that her claim of title be removed as a cloud upon the title of defendants in whom title was decreed. Prom that judgment plaintiff has prosecuted this appeal.

We overrule the assignment of error to the action of the court in consolidating the two cases: First, because the consolidation was made upon motion of appellants; and, second, because there was no possible harm to appellants as a result of such consolidation.

Appellants insist that the evidence was insufficient to sustain the finding of the jury that plaintiff was never married to J. C. Johnson by a regular marriage ceremony; and the further finding that he was lawfully married to Delia Johnson, the mother of defendants. Without undertaking to recite the evidence at length, we believe it sufficient to say that it was ample to support the finding of marriage to the mother of the defendants prior to the time when plaintiff claims a marriage to him. The evidence shows without controversy that J. O. Johnson and Delia Johnson, the mother of defendants, lived together in Louisiana and held themselves out as husband and wife for many years, and that ‘defendants were born to them during that time and were recognized by them as their children, and that marriage was never dissolved .prior to the time plaintiff claims she was married to the same man. That fact, of'itself, would defeat the claim of a lawful marriage to plaintiff, since J. O. Johnson jvas legally incompetent to enter into a second marriage while his first marriage remained in legal effect. And the evidence was sufficient to sustain the further finding that plaintiff was never married to J. O. Johnson by virtue of a marriage ceremony. While she testified to such a marriage occurring shortly before J. O. Johnson left Louisiana and came' to Port Worth, Tex., such testimony was not corroborated by any public record or certificate of such a marriage ceremony, and the jury was authorized to discredit that testimony, both because of her personal interest in the suit and her further testimony that in the year 1917 she left J. 0. Johnson in Port Worth and went to Oklahoma where she married L. J. Jones, her present husband, who joins her as a coplaintiff in this suit, and with whom she has lived ever since—all without first procuring a divorce from J. C. Johnson, whom she claims to be her first husband.

If plaintiff was never lawfully married to J. O. Johnson, then she was in no position to claim a community interest in the property under and by virtue of article 4619, Rev. Statutes, defining what shall constitute community property of husband and wife; nor under article 2578, Rev. Statutes, regulating the descent of such community estate upon the dissolution of the marriage relation. Ft. Worth & R. G. Ry. Co. v. Maggie Robertson, 103 Tex. 504, 121 S. W. 202, 131 S. W. 400, Ann. Cas. 1913A, 231.

The claim presented in a second count in plaintiff’s petition of an undivided half interest in the property, on the ground that she in good faith entered into the marriage relation with J. C. Johnson upon his assurance that'he was an unmarried man and that the property was thereafter acquired by their joint efforts, was not submitted to the jury nor requested to be submitted; and therefore was waived. And the same is true of plaintiff’s further allegation of a common-law marriage with J. C. Johnson. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Accordingly, all assignments of error are overruled, and the judgment of the trial court in the two consolidated suits is in all things affirmed.


author: SMITH, Justice.

text:
    STAILEY v. HOFFMAN.
    No. 8989.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1933.
    Polk Homaday, of Harlingen, for appellant.
    John O. Myrick, of Harlingen, for appel-lee.
   SMITH, Justice.

.Appellant, Rilla E. Stailey, purchased thirty-five acres of land in Cameron county from her former husband, D. W. Stailey, who conveyed the land to her by deed in which the consideration for the conveyance was recited to be a cash payment and the assumption by the grantee of an outstanding debt of $2,-136.75, secured by deed of trust upon the land. The debt thus assumed was evidenced by D. W. Stailey’s note, which was held by appel-lee, Mabel E. Hoffman.

Upon default in the payment of the note, appellee sued both the Staileys, attached thirty-five acres of unincumbered land belonging, to Rilla E. Stailey, and prayed for personal judgment against both Staileys, as well as foreclosure of the deed of trust lien upon one of the tracts of land, and of the attachment lien upon the other. The cause was heard by a jury, but at the conclusion of the trial the court directed a verdict as prayed for by appellee, and rendered judgment accordingly. Rilla E. Stailey has appealed.

■ It is first contended by appellant that! the attachment was wrongfully issued because it did not appear in the affidavit therefor that the existing security was not sufficient to discharge the debt sued on; that as a predicate for issuance of the writ of attachment it was incumbent upon appellee to show the value of the existing security, and attach only for the deficiency thus disclosed. We overrule these contentions. The affidavit for attachment contained the requisites, but only the requisites, prescribed by statute (article 276, R. S. 1925), and there seems to be no rule of statute or authority which prohibits a creditor from resorting to attachment upon other property in aid of a secured claim. Article 283, R. S. 1925; Walden v. Locke (Tex. Oiv. App.) 49 S.W.(2d) 832.

This conclusion does not deprive appellant of a right to protect the attached property from unnecessary sale, for, undoubtedly, she can require the selling officer to first sell the original security before putting up the attached property. We overrule appellant’s first proposition.

Appellant vigorously insists that the cause should have been submitted to the jury upon the issues of mutual mistake of the parties to the deed in question and the alleged fraud of the scrivener in inserting in said deed the provision by which appellant assumed the note sued on. We have carefully considered the evidence, and have reached the firm conclusion that the trial court did not err in directing a verdict thereon.-

It i may be conceded as conclusively shown that the vendor and vendee originally agreed that appellant was not to pay said notes. If the deed had been then and there prepared, executed, and delivered, but through the mutual mistake of the parties, or the fraud or mistake of the scrivener, the instrument bound' appellant to pay said notes, she after-wards could have had the instrument reformed to show the true agreement, by showing due diligence in discovering the .mistake, and that she had been wrongfully deprived of an earlier opportunity to make such discovery, and that no rights of any. third parties had intervened. But no such showing was made. She deputed D. W. Stailey to negotiate with appellee’s attorney in closing the transaction, and the latter, with full warning of his intention, drew the instrument to include the provision in dispute. It was then executed by D. W. Stailey, and forwarded by mail to appellant in a distant state,'where she and her attorney together received and had every opportunity, and were certainly under the duty, to ascertain the contents of the conveyance. She denies she read it then or at any time thereafter, and the record does not disclose if her attorney read it. Apparently she filed it for record, although that detail, unimportant in view of other facts, may be in dispute. She proceeded, however, to treat the transaction as satisfactorily concluded, paying taxes, water rents, and interest installments' on the notes, for a period of two years, when, after this suit was filed, and for the first time, she raised objection to the provisions of the deed. These and other facts, not necessary to here set out in detail, lead inevitably to the conclusion that the case presents no justification for setting aside a written obligation so deliberately assumed and fully confirmed. American, etc., v. Lucia (Tex. Civ. App.) 285 S.W. 641; Beaver v. Costley (Tex. Civ. App.) 175 S. W. 761; Moerlein v. Inv. Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948; Dale v. Akin (Tex. Civ. App.) 27 S.W.(2d) 327; Parker v. Schrimsher (Tex. Civ. App.) 172 S. W. 165, 170; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 509; Grand Lodge v. Schwartz (Tex. Civ. App.) 205 S. W. 156; Wheeler v. Holloway (Tex. Com. App.) 276 S. W. 653; Keystone, etc.. Co. v. Kleeden (Tex. Civ. App.) 299 S. W. 671.

The judgment is affirmed.