author: WALKER, C. J.

text:
    BEARD & STONE ELECTRIC CO., Inc., v. SHOFNER et al.
    No. 2436.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 26, 1933.
    Yivier & Mulitz, of Houston, for relator.
    Adams & McAlister, of Nacogdoches, for respondents.
   WALKER, C. J.

On August 9, 1932, Beard & Stone Electric Company, Inc., filed its original petition in county court of Nacogdoches county against O. C. Baker, alleging that on February 18, 1930, one Jeff Singleton sold to Baker certain personal property at the agreed purchase price of $487.50, and that Baker executed and delivered to Singleton “a conditional sale contract” for the amount of the purchase price, and that the contract constituted a mortgage lien against the' personal property to secure the .unpaid purchase money, that before maturity Singleton transferred the contract and mortgage to Beard & Stone Electric Company, Inc.; that, when the contract matured, Beard & Stone Electric Company, Inc., demanded of Baker payment of the amount due on the contract, and payment was refused; that on the date suit was filed Baker was due upon the contract the principal sum of $324.-50, with interest at the rate of 6 per cent, per annum from its maturity, and with 15 per cent, additional as attorney’s fees. The prayer was for the balance due with foreclosure of the mortgage lien, with the further allegation that the mortgaged property was worth $210. Baker answered by pleas of general demurrer and general denial and by a sworn plea to the effect that the contract was changed after he executed and delivered it to Singleton, and that Beard & Stone Electric Company, Inc., purchased the contract with knowledge of the alterations. Beard & Stone Electric Company, Inc., filed a supplemental petition, pleading general demurrer and general denial and specially that the alterations, if any, were immaterial and were made with the knowledge and consent of Baker and were made in good faith. .

The issues raised by the pleadings and evidence were submitted to the jury upon the following questions, answered as indicated;

“Special Issue No. 1
“Do you find from the preponderance of the evidence that the name of the payee in said instrument sued on was changed after said instrument had been signed by O. • C. Baker? Answer; Yes.”
“Special Issue No. 2
“Was such change, if any, made without the consent or knowledge of O. C. Baker? Answer: .No.”
“Special Issue No. 3
“Do you find from a preponderance of the evidence that the extension agreement on the margin of said instrument was changed or altered after said instrument had be%n signed by O. O. Baker? Answer: Yes.”
“Special Issue No. 4
“Was such change or alteration, if any, made without the consent or knowledge of O. 0. Baker? Answer: No.”
“Special Issue No. 5
“Do you find from the preponderance of the evidence that the alterations or changes, if any, made in said instrument were made in good faith? Answer: No.”
“Special Issue No. 6
“Do you find from a preponderance of the evidence that defendant, O. O. Baker, ratified the sales contract, herein sued on, as it now exists? Answer: No.”
“Special Issue No. 7
“Do you find from a preponderance of the evidence that plaintiff had knowledge of any alterations or changes in said sales contract at the time it acquired the same? Answer: Xes.”

■ This verdict was duly received by the court and the jury discharged. Upon the verdict the court entered its judgment reciting therein the issues as submitted to the jury, together with the jury’s answers, and concluded with the following decree:

“And it appearing to the Court from the atiswers above set out, to the Special Issues above' shown that the answers of the jury to said Special Issues are in conflict and not consistent, the one with the other, it is the opinion of the court that a verdict cannot be rendered either for the plaintiff or the defendant upon such findings of the jury.
“It is, therefore, considered and so ordered, adjudged and decreed by the court that said findings of the jury be in all things set aside, and that a mis-trial be declared and a new trial herein given without prejudice to either party.”

The court also entered the following order on the verdict of the jury:

“Be it remembered, that on this the 1st day of December, 1932, came on to be considered the verdict of the jury heretofore received and filed and it appearing to the Court that in the Court’s opinion there is an irreconcilable conflict in the findings of the jury in response to the issues submitted to them by the Court, it is therefore ordered, adjudged and decreed that ⅝ mistrial be and the same is hereby declared and decreed in this cause.
“Said mistrial is declared for the sole and only reason that in the opinion of the Court there is a conflict in the answers of the jury to the issues submitted, in that the jury found in response to Special Issues Nos. 1 and 2 that the name of the payee in the instrument or’ obligation herein sued on by plaintiff was changed after said instrument had been signed by the defendant, O. C. Baker, and that such change was made with the consent and knowledge of said defendant, O. C. Baker, and the jury found in response to Special Issues Nos. 3 and 4 that the extension agreement on the margin of said instrument was changed or altered, with said defendant’s knowledge and consent, after said instrument had been signed by said defendant; and it is the Court’s opinion that the jury’s findings in response to Special Issues Nos. 5 and 6 are in conflict with the findings on Special Issues 1 to 4, inclusive, here-inabove set out, in that the jury found in response to said Special Issues Nos. 5 and 6 that said alterations or changes were made in bad faith and that said defendant did not ratify said sales contract herein' sued on.
“It is further the opinion of the Court that had the jury answered said Special Issues Nos. 5 and 6 in the affirmative, instead of in the negative as they did answer them, then the plaintiff would be entitled to recover judgment against the said defendant for the amount sued for; but because of the conflict hereinabove pointed out, which in the opinion of the Court exists, a mistrial is here now decreed, declared and ordered entered; to which ruling and action of the Court plaintiff takes exception.”

Beard & Stone Electric Company, Inc., duly filed its motion for new trial, which was overruled.

This case is before us as an original proceeding on petition of Beard & Stone Electric Company, Inc., as relator, complaining of the county judge of Nacogdoches county and O. C. Baker, as respondents, praying that wo issue our writ of mandamus against the county judge commanding and requiring him “to set aside and vacate his said order declaring a mistrial and granting a new trial,” and that he be ordered and commanded “to proceed to enter judgment in favor of your relator in accordance and in keeping with the verdict found and returned by the jury on the trial of said cause.” For grounds of relief relator pleaded the facts as given above, and further specially pleaded that no conflict existed in the verdict of the jury.

Opinion.

The mandamus is refused. The trial court correctly concluded that a conflict existed in the verdict of the jury. By its answers to the first four questions the jury found facts validating the contract as against the alterations pleaded by'Baker. But by the answers to questions 5 and 6 facts were found fully sustaining the plea of alteration, thereby invalidating the contract.

Mandamus refused.


source: Caselaw Access Project

author: O’QUINN, J.

license: Public Domain

text:
    LATIMER et al. v. TEXAS & N. O. R. CO.
    No. 2260.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 2, 1933.
    Rehearing Denied Feb. 8, 1933.
    Butler & Reeves, of Beaumont, and V. J. Wistner, of Port Arthur, for appellants.
    Duff & Cecil, of Beaumont, for appellee.
   O’QUINN, J.

September 26, 1928, appellee, Texas & New Orleans Railroad Company, filed suit in the district court of Jefferson county, Tex., against appellants, S. O. Latimer and R. T. McMullen, to recover of them the sum of $1,072.90, as sureties on an indemnity bond. For cause of action, appellee alleged: That on February 14, 1924, it was a common carrier of freight and passengers for hire, and had lines operating into the city of Port Arthur, Jefferson county, Tex.; that on said date and at said place it had in its possession a shipment of sweet potatoes which it had transported from Gallatin, Tex., to said city of Port Arthur; that said potatoes were shipped and were transported on what is known as “Shipper’s order, notify” bill of lading; that in said bill of lading the shipper was A. C. Bridges, and said potatoes were shipped to his order at Port Arthur, with instructions to notify the Port Arthur Fruit Company; that under said bill of lading the potatoes remained the property of the shipper, A. C. Bridges, and it, the railroad, was not authorized to deliver same to said Port Arthur Fruit Company until said company presented to it the bill of lading showing that it, said fruit company, was entitled to the possession of said property; that on or about said date said Port Arthur Fruit Company represented to appellee that said fruit company was in immediate need of said potatoes and had made inquiries at all the banks in Port Arthur for the purpose of locating said bill of lading and paying off the draft attached thereto drawn against it, said fruit company, by the shipper and obtaining the bill of lading, but that said bill of lading had not arrived at any of said banks; that in order to obtain said shipment of potatoes said Port Arthur Fruit Company executed and delivered to appellee its indemnity bond, and that appellants, S. O. Latimer and R. T. McMullen, signed said bond as sureties, whereby they and each of them jointly and severally agreed and became obligated and bound to indemnify and save harmless appellee, and its connections interested, against any claim that might arise from the production of said bill of lading; including damages, attorney’s fees, court costs, and interest, and further agreed that suit against them, said sureties, might be filed in Jefferson county, and attached to its petition a copy of said bond; that after delivery to appel-lee of said bond,'it delivered said shipment of potatoes to said Port Arthur Fruit Company, but that said fruit company failed thereafter to procure and surrender to it the •order bill of lading, and that a claim was filed against it, the railroad, by the shipper of said potatoes, A. O. Bridges, because of said delivery of said potatoes to said Port Arthur Fruit Company; that subsequent to the filing of said claim, Bridges filed suit against it, the railroad, in the district court •of Cherokee county, Tex.; that it interplead-ed said fruit company and the appellants as defendants in said' suit; and that judgment in said suit was rendered against it, the railroad company, in favor of said Bridges in the sum of $1,018.78, with interest thereon at the rate of 6 per cent, per annum, and for costs of suit amounting to $54.12, and that it, appellee, 'recover judgment over and against said Port Arthur Fruit Company for said sums; that citations were not served on appellants, and, although judgment was rendered against them, the judgment was admittedly void. Appellee further alleged: ■That it was compelled to and did pay off and satisfy said judgment and court costs which amounted to the sum of $1,072.90, said payment being made to said A. C. Bridges on October 9, 1924; tjiat it had not been able to collect its said judgment in said amount from the said Port Arthur Fruit. Company, but said company had refused and failed to pay it as they agreed and obligated themselves to do in their said indemnity bond, and prayed for judgment. The petition was duly verified, and a copy of the bond and copy of the affidavit of the Port Arthur Fruit Company executed for the purpose of securing the delivery of said shipment of potatoes were attached to said petition.

Appellants, defendants below, answered by plea in abatement on the ground that this being a suit against them on an indemnity bond as sureties, and the parties primarily liable, the Port Arthur Fruit Company, a partnership composed of Chas. Angelo, Michael Matise, and Joe Petronello, were not made parties to the instant suit, wherefore proper judgment could not be rendered, because of which the suit should abate; general demurrer, several special exceptions, general denial, special plea of the two and four-year statutes of limitation. in bar of plaintiff’s cause of action; and several special matters of defense not necessary to here mention, but which will be discussed later. By cross-action, they prayed for judgment over against said Angelo, Matise, and Petronello, for such amount as might be rendered against them.

The case was tried to the court without a jury, and judgment rendered in favor of appellee in the sum of $925, from which judgment defendants have brought this appeal.

The bond upon which plaintiff based its suit reads:

“Indemnity Bond
“Whereas, it is desired by Port Arthur Fruit Co. that the following described shipment of goods: Car sweet potatoes loaded in car PFB 4530 shipped by A. C. Bridges from Gallatin originally consigned to shipper’s order notify Port Arthur Fruit Co. at Port Arthur, Texas, and covered by Gallatin — Co., to Port Arthur waybill No. L-¾ dated 2— 13 — 24, should now be delivered to Port Arthur Fruit Co. without surrender of the original bill of lading covering this shipment, for the reason named in affidavit below:
“Now, therefore, the undersigned in consideration of the delivery of the goods as above set forth, to Port Arthur Fruit Co., do hereby agree, jointly and severally, to bind ourselves, administrators, executors and assigns to indemnify and save harmless the T. & N. O. R. R. Co. and its connections interested and to protect them against any claim that may arise from the production of the said bill of lading, including damages, attorney’s fees, court costs and interest. In case suit is filed against us by said Railroad Company or its interested connections, under this writing, we agree that it may be ’filed in any court of Jefferson County Texas, having jurisdiction of the amount sued for.
“In witness whereof we have hereto affixed our signatures this 14 day of Feby. A. D. 1924.
“Port Arthur Fruit Co.
“By: Chas. Angelo
“By: Michael Matise
“By: Geo. Pemerilli, “Principal
“S. O. Latimer, “Surety
“R. T. McMullen, ‘ “Surety
“Witness: G. C. Wedelle
“Executed at Port Arthur, Texas.”

Then follows affidavit of Port'Arthur Fruit Company.

It is insisted that, because appellee’s petition did not allege that the bill of lading had been produced and appellee had thereby suffered damages, the petition failed to state a cause of action, and appellants’ (defendants’) general demurrer should have been sustained. The proposition is overruled. The purpose and intent of the bond was to indemnify and save harmless the railroad against any claim or damages resulting from its releasing and delivering to the Port Arthur Fruit Company the shipment of potatoes in question under the circumstances recited in the affidavit of said fruit company, and in the bond. The original undertaking of the railroad was that it would not release the potatoes nor deliver same to any party, otter than the shipper, Bridges, unless the bill of lading was produced and showing made that the draft thereto attached had been paid. The bill of lading having been lost and could not be produced, upon affidavit of the party to whom notice of arrival of the shipment was directed to be given, the fruit company, and the execution of the bond indemnifying the railroad against damages for delivering said potatoes to said fruit company, said delivery was made by the railroad. The petition alleged these facts and that claim had been made and suit filed against it by the shipper, Bridges, for so delivering said property, and that judgment had been rendered against it for the value of said property, which judgment it was compelled to pay. The petition was sufficient.

By their second and fifth propositions, appellants complain that the court erred in not sustaining their plea in abatement, and in not dismissing the suit. These propositions are based upon the contention that ap-pellee did not make the principal in the bond, Fort Arthur Fruit Company, a party defendant in the suit, they being obligated only as sureties for said principal, and that its petition did not allege any reason for not suing said principal or that the partners composing said fruit company, principal, were beyond the limits of the state, or that they could not be reached by ordinary process of law, or that their residence was unknown and could not be ascertained by the use of reasonable diligence, or that they were dead, or actually and notoriously insolvent, the petition was subject to general demurrer.

These propositions are overruled. Article 6251, R. S. 1925, reads: “Ko surety shall be sued, unless his principal is joined with him, or unless a judgment has previously been rendered against his principal, except in the cases otherwise provided for in the laws relating to parties to suits.”

Appellee, in its petition, alleged, and the evidence supports the allegation, that it made the principal in the bond, the Port Arthur Fruit Company, and the individuals composing said company parties defendant in the suit against it by Bridges, the shipper of the property, and that, when judgment was rendered against it in favor of Bridges for the value of the property, it recovered judgment over against the Port Arthur Fruit Company, and against Charles Angelo, the judgment reciting that he was doing business as the Port Arthur Fruit Company, for the amount of the judgment against it. The petition further alleged that plaintiff had not been able to collect its said judgment from said fruit company, but that payment thereof had been .refused. The record clearly shows that plaintiff had before the filing of the instant suit recovered judgment against the principal in the bond, and hence, under the statute above quoted, appellee did not have to make such principal a party defendant, but was authorized to sue the defendants herein, sureties, alone. We are cited to the cases of Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.(2d) 748, as sustaining appellants’ contention that their general demurrer should have been sustained because the 'principal in the bond was not made a party defendant. That case is wholly different from the instant case on the fact's as well as on the pleadings. In the cited case there was neither allegation nor proof that judgment had been rendered against the principal, while in the instant case there was both allegation and proof that judgment had been had against the principal in favor of plaintiff before the suit against the sureties was filed. The cited case has no application to the facts in the instant case.

The third, fourth, and fourteenth propositions are presented together, and complain that the court erred in overruling their special exception and special plea that appel-lee’s cause of action was barred by the four years’ statute of limitation. The record .discloses that the judgment against appellee in favor of Bridges was rendered and became final on July 31, 1924. Appellee paid the. judgment on October 9, 1924. This suit by appellee against appellants, sureties on the indemnity bond, was filed in the district court of Jefferson county, Tex., on September 26, 1928. Appellants insist that appellee’s cause of action accrued on the date the judgment became final, July 31, 1924, and that limitation began to run from that date, and, four years having elapsed before the filing of the suit on September 26, 1928, judgment should have been for appellants. Appellee insists that its cause of action did not accrue until it paid the judgment on October 9, 1924, and that limitation did not commence to run until said date, which was less than four years prior to the filing of the instant suit. We think appellee’s contention should be sustained. The obligation of appellants, being that of sureties, was one of indemnity only. The rule seems to be well settled that one complaining of the breach of an indemnity contract must, in order to show himself entitled to recover, show that he has paid the debt 'in controversy. In' other words, before appellee here could maintain its suit against appellants, sureties on the indemnity bond, it must have paid off and satisfied the judgment against it; until it did so, it had not suffered any damages, to save it from which the bond was executed. Gunst v. Pelham, 74 Tex. 586, 12 S. W. 233; First State Bank v. Wallace (Tex. Civ. App.) 161 S. W. 957 (writ refused); Closner v. Chapin (Tex. Civ. App.) 168 S. W. 370, 373 (writ refused); St. Paul Fire & Marine Insurance Co. v. Charlton (Tex. Civ. App.) 231 S. W. 862; Thomas v. Ellison, 102 Tex. 354, 116 S. W. 1141; Friedman v. Sampson (Tex. Civ. App.) 181 S. W. 779 (writ refused); Bank of Snyder v. Howell (Tex. Com. App.) 208 S. W. 908, 911; 16 A. & E. Ency. Law (2nd Ed.) 178 (and authorities cited in No. 5 footnote-Best Rule); 31 C. J. § 51, p. 452.

The sixth, seventh, and eighth propositions urge that the court erred in overruling appellants’ general demurrer because: (a) Plaintiff’s petition failed to allege that the obligors in the bond (defendants-sureties) had notice of the suit by Bridges against appellee and an opportunity to defend against such suit; (b) that the petition failed to allege that Bridges, plaintiff, in his suit against appellee, the railroad, had a good cause of action on which he recovered against it; and (c) that said petition failed to allege a breach of the indemnity contract by defendants; wherefore,. said demurrer should have been sustained. These propositions are presented and will be considered together.

We have no cavil with appellants’ statement, nor the authorities cited to sustain same, that facts not alleged, though proved, cannot form the basis of a judgment, and that pleadings are as essential as evidence, as the basis for a valid judgment. This has always been the recognized rule everywhere. The tug comes in deciding what facts, according to the nature of the ease, are necessary to be alleged. Appellants, defendants, rest their contention, in the main, as we perceive, upon the following statement from 31 O. J. p. 466: “In an action on a bond to indemnify against a suit or demand the declaration must show either that obligors had notice of the action against the obligee and an opportunity to defend it, or that the person bringing the suit had a good cause of action on which he recovered or might have recovered against the obligee.”

The authority quoted does not state that unless the indemnitee gives the indemnitor notice of suit against the indemnitee, and thus afford an opportunity to appear and defend against the suit, the suit cannot be maintained, and renders a petition without such allegation subject to general demurrer. It says in the alternative that the petition should either allege such notice, or that the person bringing the suit had a good cause of action on which he recovered or might have recovered. It amounts to saying that the giving of notice is not a prerequisite to the maintaining of such suit. We think this is the effect of the holding in Browne v. French, 3 Tex. Civ. App. 445, 22 S. W. 581. That case holds that sureties on an indemnity bond are not estopped from denying the conclusiveness of a judgment against the in-demnitor where they have not been made parties to the suit and thus given an opportunity to defend against it. It must follow, we think, that where the indemnitor or his sureties has had notice of an action against the indemnitee and an opportunity to defend the same, a judgment rendered therein against the indemnitee is conclusive on the indemnitor, and so on his sureties with .notice, as to the extent as well as the existence of the liability of the indemnitee. But in the absence of such notice the judgment is merely prima facie evidence of these matters as against the indemnitor, or his sureties. 16 A. & E. Ency. Law (2d Ed.) 180; 31 C. J. § 53, p. 453; Id., § 62, p. 463. The failure to give notice does not affect the right of action, but simply changes the burden of proof; the indemnitee being required to establish his right to recover; the indemnitor and his sureties then having the right to offer their defenses, if any, against the right to recover. In the instant case, appellee, plaintiff, the indemnitee, pleaded its cause of action, and made proof establishing a prima facie right to recover. Appellants, defendants, offered no evidence whatever. Having established prima facie its right to recover, and no evidence to the contrary having been offered, judgment for appellee was proper. United States Fidelity & Guaranty Co. v. Paulk (Tex. Civ. App.) 15 S.W.(2d) 100.

The further contentions that appellee’s petition failed to allege that Bridges, plaintiff in the suit against the indemnitee, railroad, had a good cause of action, and that said petition did not allege that the indemnity contract had been breached are overruled. The petition sufficiently alleged all' the matters complained of, and the undisputed facts show that the indemnitee, railroad, had no defense against the cause of action asserted against it.

Appellants’ twelfth proposition asserts that because appellee, when it was sued by the shipper of the property in question in Cherokee county, impleaded the principal in the indemnity bond, the Port Arthur Fruit Company, and the individuals composing said company, and prosecuted its suit over against them to judgment, and did not make appellants, sureties on the indemnity bond, parties defendant, it thereby elected to proceed against the principal in the bond only, and to look solely to said principal for indemnity, and was thereby estopped to bring this suit against them, the sureties.

This contention is not sound. No authority is cited to sustain same, nor do we believe any such authority can be found. Article 6251, R. S. 1925, which provides that no surety shall be sued, unless his principal is joined with him, unless a judgment has previously been rendered against his principal, contemplates this very situation; that is, that the person indemnified may sue the indemnifier, obtain judgment, and, failing to secure his damages against which he was indemnified, he may then proceed against the sureties in indemnification, without jeopardizing his right to maintain such suit.

Other propositions are presented, but as they are in effect but different forms of assignments already considered, they will not be discussed, and are all overruled.

The judgment should be affirmed, and it is so ordered.

Affirmed.


author: LANE, Justice.

text:
    OSOBA v. WILSON.
    No. 9786.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 5, 1933.
    Rehearing Denied Jan. 26, 1933.
    Emanuel Roos, of Eagle Lake, and Jos. V. Fmka, C. R. Grobe, and G. H. Miller, all of Columbus, for appellant.
    A. J. Lewis and John C. Hoyo, both of San Antonio, and O. E. Threlkeld, of Seguin, for appellee.
   LANE, Justice.

On the 23d day of January, 1929, at or about the hour of 10:30 p. m., L. Glenn Wilson was arrested at a hotel in Eagle Lake, Tex., by Joe Osoba, city marshal of the city of Eagle Lake, and a deputy sheriff, without a warrant of arrest. He was then taken to Columbus, the county site of Colorado county, Tex., and delivered to the sheriff of said county about 12 o’clock midnight, who put him in jail, where he remainded for about two days, at which time he was released.

L. Glenn Wilson, hereinafter referred to as Wilson, brought this suit against Joe Osoba and others, whose names are unnecessary to be mentioned as they are not parties to this appeal, to recover compensatory damages in the sum of $5,000 upon his allegation that he was illegally and unlawfully arrested by Joe Osoba who had no warrant for his arrest and was by Osob¿ illegally restrained of his liberty, and by the sheriff confined in jail. There was no allegation that he was not taken before a magistrate. Such fact was not alleged as constituting any part of the plaintiff’s cause.

Joe Osoba, after general demurrer and general denial, alleged that he arrested the ap-pellee for unlawfully and willfully using loud, vociferous, and profane language and for swearing and cursing in a manner calculated to disturb the inhabitants of said hotel, a public place visited by people for recreation, business, and pleasure, which unlawful acts were committed by appellee in his presence; that he placed appellee under arrest without warrant and immediately thereafter searched the appellee and found upon his person the sum of $515.98, consisting principally of new $20 bills in United States currency, which sum and the denominations thereof suited the description of a sum of money which he was informed was obtained in a robbery committed at Houston, Tex., on the same day; that, after searching appellee’s grip, he found an automatic .32 caliber pistol, a box of - cartridges, files, punches, chisels, hammer, and a bottle of quicksilver; that on the afternoon of the same day he received information from W. F. Kessler, chief of detectives of Houston, Tex., that one Dr. Reeves had been robbed of approximately said sum of money found upon the person of appellee and of practically the same denominations; that the offender was making his escape in the direction of Eagle Lake, Tex., and directing this appellant to detain and arrest the offender, which information also gave the description of the appellee in clothes, height, weight, approximate age, and personal appearance; that appellant believed that appellee, then under arrest for a breach of peace committed in his presence, was the person who had committed the felony in Harris county and was about to escape; that the said W. P. Kessler was a credible person; and that said information appeared to him as a peace officer satisfactory that appellee was the offender and was about to escape. Appellant admitted in his pleading that after the arrest of ap-pellee he conveyed him to jail at Columbus, and that on the following morning he filed a complaint against appellee for disturbing the peace; that the arrest of appellee was made by him in good faith and upon proper cause for a violation of law, and not to injure, harass, humiliate, or embarrass appel-lee.

Facts.

The plaintiff testified to the facts stated in our preliminary statement. He testified that when he was turned over to the sheriff he was given the privilege of choosing the cell in which he was to be confined, and that he chose what was known as the death cell; that the bed furnished him had the odor of creosote or some disinfectant; that he registered at the hotel in Eagle Lake, placed a long-distance telephone call, retired to his room, and that he was visited by the hotel night clerk several times and then by Joe Osoba; that Joe Osoba conducted him downstairs to the lobby of the ¡hotel, searched him, questioned him at length, cursed, insulted, and heaped indignities upon, him, placed him in an automobile, and conducted him to jail at Columbus, where he was retained for about 57 hours; that at no time did he see a warrant for his arrest, and that no one said anything about a warrant; that he did not appear before a magistrate or justice of the peace; that there was no accusation against him by any one to the effect that he had committed some offense, except that Joe Osoba, after he had found $515 on his person, said, “I think I know you, I think I want you”; that no one accused him of disturbing the peace. In effect, he testified that he was arrested by defendant without a warrant and placed in jail for 57 hours; that, when defendant came to his room, he said, “What do you mean trying to beat a telephone bill”; that defendant stated at that time that he was a deputy sheriff and demanded that he open his door; that, when he started to explain his controversy with the telephone operator and tire cause of his refusal to pay the charges demanded, defendant said, “Get on your clothes and go down stairs and see the Manager of the telephone company who is coming down”; that he dressed and went down with defendant, who had a gun on; that defendant was very rude and insulting to him.

Harigel, a district manager of the telephone company, testified that one of the telephone operators told him that plaintiff had refused to pay a balance due for a phone call, and asked him to attempt to collect such balance; that, after he had tried, through the hotel clerk, to make such collection and had failed, he called the defendant, Osoba, and told him that plaintiff owed an overcharge on a telephone call which he refused to pay; that he called Osoba because he wanted a peace officer, as he heard plaintiff one time using loud vociferous language in the lobby of the hotel; that, when he asked plaintiff about the bill, he said the telephone company was nothing but a “God damn bunch of high-jackers.”

Defendant testified that he was at the time of trial city marshal of Eagle Lake; that he was a deputy sheriff on January 23, 1929, holding the appointment under Jack Hillner, sheriff of Colorado county; that the White House Hotel and Café is a place visited by people for recreation, business, and pleasure, a public place; that the hotel has a lobby in the rear of the building; that he found plaintiff upstairs in his room and invited him to go downstairs to discuss the settlement of the telephone bill; that he introduced plaintiff to Mr. Harigel in the café, where they had a cup of coffee; that plaintiff and Harigel began talking about- the telephone bill; that plaintiff got boisterous and began cursing the telephone company for being high-jackers and stuff like that, and that he cautioned him about that language and not to be loud; that after Mr. Harigel went to the booth plaintiff got to popping off about the God damn bunch of high-j ackers, and he told him not to use profanity and he put him under arrest at that timo; that about 4:30 or 5 o’clock on the day of arrest W. F. Kessler, chief of detectives of the city of Houston, called him over the phonei and told him that there had been a holdup of Dr. Reeves in Houston and for him to be on the lookout for the offender; that Mr. Kessler gave him a description of the man and said for him to look out for the offender, and further stated, “If you find him the chances are he will have a bunch of .bills on him and they will all be twenties” ; -that Kessler gave him a description of how the offender was clothed and everything over the telephone; that he told him of the amount of money that was taken in the robbery and the denominations of the bills; that he told him that he took $500 from Dr. Reeves if he remembered correctly and that they were mostly in $20 bills, practically new; that the money found on plaintiff’s person was of that description, that the clothes plaintiff was wearing, his height and appearance fitted that of Mr. Wilson; that the dark suit plaintiff wore, the light cap, low-quarter tan shoes, his height, age, complexion, color of hair, and build all fitted plaintiff; that Eagle Lake is about sixty-five miles from Houston, and that it was impossible for him to have gone to Houston and obtained a warrant there for the arrest of plaintiff without giving him an opportunity to escape; that Chief Kessler was a credible person; that, after he had made the arrest of plaintiff for breach of peace, he searched him and found the money, made the comparisons above mentioned, and then carried him to Columbus and turned him over to the sheriff; that he got hack to Eagle Lake about.3:30 or 4 o’clock in the morning and filed a complaint against plaintiff for disturbing the peace; that he woke up the justice of the peace, signed and filed the complaint against plaintiff; that after the arrest of plaintiff he searched his grip and other effects and found among other things a .25 automatic, a box; of cartridges, some punches, pliers, chisel, and a bottle with about a pound of quicksilver in it; that plaintiff made no offer to give bail, nor request to be carried before a magistrate.

W. F. Kessler, a witness for defendant, and chief of detectives of Houston, stated that the afternoon of the day of the arrest he was telephoning descriptions of three men wanted at Houston for committing a robbery, and that defendant was one of the officers that he telephoned; that he telephoned the descriptions as given by Dr. Reeves, from whom about $500 was taken; that he had a communication from defendant the next day, and that the description of plaintiff as given to him would suit the description of the party that he was looking for.

Testifying further, he said that he asked defendant to hold the man in jail; that he had a warrant for him, and asked defendant to hold him long enough for Dr. Reeves to come and look at him; that he immediately telephoned Dr. Reeves to go to Columbus and look at the man.

Defendant testified that after he had turned plaintiff over to the sheriff he went back to Eagle Lake about 4 o’clock and filed a complaint with the justice of the peace against plaintiff for disturbing the peace.

The sheriff testified that he gave the plaintiff a clean mattress, sheets, pillow, and blanket off of his own bed to make him as comfortable as possible, and asked him if he had plenty of covering, and that plaintiff said he did not need any more; that the bedding was not dirty, nor did it smell stuffy and lousy; that it was not treated with disinfectants as testified to by plaintiff; that plaintiff never complained of being cold, as testified by him; that he made no offer to give bail, nor request to be carried before a magistrate.

The plaintiff, in rebuttal, testified that he did not use the loud and profane language, as testified to by defendant, Osoba.

Upon the pleadings, the material facts as we have substantially stated them, and the testimony stated, the court instructed the jury that plaintiff, Wilson, was entitled to recover against defendant, Joe Osoba,-and that the only question for them to determine was the amount of damages to be assessed against him, and then he instructed the jury to find what sum of money, if paid at once, would reasonably compensate the plaintiff for the injuries he had sustained by reason of having been restrained of his liberty, or confined in jail by Osoba; that in answering such quesr tion they might take into consideration the mental and physical pain suffered by the plaintiff, if any, as well as any injury to his reputation or social standing.

In response to the question submitted, the jury found compensatory damage for the plaintiff in the sum of $1,000.

Upon such answer of the jury, the pleadings and evidence, the court rendered judgment for L. Glenn Wilson against defendant, Osoba, for $1,000, and from such judgment Osoba has appealed.

Appellant insists: That the court erred in charging the jury that appellee, Wilson, is entitled to a recovery against him by reason of appellee’s having been restrained of his liberty, or confined in jail, in that appellee has in no manner directly nor impliedly alleged that he suffered any manner of damage ■or injury because appellant failed to take him before a magistrate at the time of his arrest, at or near the midnight hour; that, to the contrary, appellee by his pleading based his right of recovery solely upon his allegation of an illegal arrest and his subsequent detention, and in that there was ample evidence tending.to show that appellant lawfully arrested appellee without a warrant to carry such issue to the jury, as it tends to show that appellee was at the time of such arrest guilty of the offense of “disturbing the peace,” which is defined by article 474 of our Criminal Statutes (Pen. Code) as follows: “Whoever shall go-into or near any public place * * * and shall use loud and vociferous, or obscene, .vulgar, or indecent language or swear or curse, * * * in a manner calculated to disturb the inhabitants of such place or house, shall be fined not to exceed one hundred dollars.” That such charge was also erroneously given to the jury, in that the undisputed evidence shows that prior to the arrest of appellee it had been shown to appellant by satisfactory proof, upon the representation of W. F. Kessler, chief of detectives of the city of Houston, a credible person, that a felony had been committed, and that the description of appellee and other circumstances shown pointed to appellee as the one who had committed such felony. Under such circumstances appellant was justified, by virtue of tbe provisions of article 235, Criminal Procedure, to arrest appellee without a warrant.

We sustain tbe contention that the charge complained of was erroneously given. Appellant timely objected to such charge, and requested the court in due form to instruct the jury that, if they should find from the evidence that the plaintiff, just prior to his arrest by the defendant, used loud, vociferous, and profane language, and did then and there swear and curse in the presence of defendant, Joe Osoba, in a manner calculated to disturb the inhabitants of the hotel café, a public place, defendant'was authorized by law to arrest the plaintiff without a warrant of arrest, and that, if they should so find, they should find for defendant.

Defendant also requested the court to submit to the jury the following special issue: “You are instructed that if you find from the evidence that the defendant, Joe Osoba, acted in compliance with the law and upon satisfactory proof of a credible person, to-wit, W. P. Kessler, Chief of Detectives of Houston, Texas, that a robbery had been committed in Houston, Texas, on Janu’ary 23, A. D. 1929, and that one of the parties sought for such offense had escaped and was making his way in the direction of Eagle Lake, Texas, and that the defendant acting upon such information detained the plaintiff, and that the description of the offender so attempted to be apprehended by the said Kessler suited and fitted the description of the plaintiff, in dress, effects and personal appearance, you will find for the defendant, Joe Osoba, and the court further instructs you that if you believe from the evidence that the defendant was informed by the said Kessler that the offenders or persons so sought for the aforesaid offense of robbery were making their escape or were about to make their escape before he could procure a warrant, you are instructed that the defendant acted within the law in detaining the plaintiff, and you will find for the defendant, Joe Osoba.”

Both of such special charges were by the court refused. We think both of such requested charges should have been given to the jury.

By. article 212, Code of Criminal Procedure of 1925, it is provided that a peace officer may, without warrant, arrest any offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an “offense against the public peace.”

By article 214 it is provided as follows: ■“The municipal authorities of towns and ■cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons Jhave been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

Article 215 is as follows: “Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

In Minter v. State, 70 Tex. Cr. R. 634, 159 S. W. 286, at page 291 and 292, it is said: “The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances, which reasonably show that such persons have been guilty of some felony or breach of the peace. * * * In fact, the whole theory and purpose of our laws are that the peace officers especially shall do everything and ail tilings necessary or proper to prevent, suppress, and punish crime.”

In Ex parte Preston, 72 Tex. Cr. R. 77, 161 S. W. 115, at page 116, it is held that article 261 (now -214), Code of Criminal Procedure, authorizes municipal authorities to establish rules authorizing the arrest, without warrant, of persons found under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace.

In Presley v. Ft. Worth & D. C. Ry. Co. (Tex. Civ. App.) 145 S. W. 669, it is held that, where in an action for damages for an arrest without a warrant in a town it conclusively appeared that the arrest was justified, if made under an ordinance passed in accordance with article 214, Code Crim. Proc. 1925, the burden was upon the plaintiff to show that no such ordinance had been passed.

In 19 Texas Jurisprudence, § 23, at page 570, it is said: “If the arrest is legal, the burden rests upon the plaintiff to show that the arresting officer had authority to take bail, that bail was offered and refused, and that the officer failed to carry the plaintiff immediately before the nearest magistrate for examination. There is nothing in the policy of the statute which prohibits a person accused of a crime from waiving his right or the time in which he should be carried before a magistrate ; proof of such wa'iver is a defense in an action for false imprisonment.”

In Haverbekken v. Hollingsworth (Tex. Civ. App.) 250 S. W. 261, at page 265, it is said: “The appellant made no demand that he should be carried before a magistrate; nor does the record show that he was able, if carried before a magistrate, to make bond until his * * * brother came on the following day.” See Sheehan v. Holcomb, 1 White & W. Civ. Cas. Ct. App. § 464.

For the reasons pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: HICKMAN, Chief Justice.

text:
    TOWN OF MERKEL v. PATTERSON et al.
    No. 1040.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 6, 1933.
    Rehearing Denied Feb. 10, 1933.
    Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.
    E. S. Cummings and Scarborough, Ely & King, all of Abilene, for appellees.
   HICKMAN, Chief Justice.

The appellees are Jack Patterson and Rachel Patterson, minors, who sued by their guardian, Homer Patterson. The suit was for damages against appellant on account of its having established a septic tank as a part of its sewer system in the vicinity of lands belonging to appellees. The minors did not live upon the land, and the damages sought were not on account of any personal inconvenience or annoyance, but were for permanent injuries to the land by reason of the location and operation of the septic tank. The jury found that the operation of the tank was a nuisance, and assessed the damages at $2,111, and the appeal is from a judgment entered in accordance with the verdict.

The first question presented complains of - the action of the trial court in sustaining an exception to appellant’s plea in abatement and to that portion of its answer wherein the same facts as pleaded in the plea in abatement were set up in bar of appellees’ right of recovery. The substance of the facts pleaded both in abatement and in bar was that the minors acquired whatever title they had to the lands described in their petition through an exchange with one E. E. Brittain. It was alleged that Brittain and the guardian of thel minors desired to effect an exchange of lands in Jones county belonging to the minors for the land in controversy, and to that end the guardian filed an application in the county court of Jones county to sell the lands belonging to the minors situated in that county, and on the same day filed an application in said court alleging that he had on hand $0,675 in money, which he desired to invest in lands described in plaintiffs’ petition, alleging that same could be purchased for $6,675; that thereafter the guardian reported to the court that he had sold the Jones county land belonging to the minors to E. E. Brittain, which report was later confirmed. On the same day that he reported the sale of the Jones county land to Brittain, he also filed a report that he had agreed to purchase the Taylor county lands involved in this suit for $6,675, and asked that the purchase be confirmed, and said purchase was confirmed on the same day that the sale to Brittain was consummated. Follow then the allegations that no money passed between Brittain and the guardian, but the entire transaction was merely an exchange of properties and was so intended; that said minors were not bound thereby; that, if the sale was not absolutely void, it was at least voidable, and the minors would have the right to rescind the whole transaction upon becoming of age; and that, if damages were recovered in this suit, then Brittain, after the lands were turned back to him, would have the right to recover his damages and the defendant would be required .to pay double damages. •

The authority relied upon by appellant in support of this contention is Crier v. Cowden (Tex. Civ. App.) 251 S. W. 822. That was a suit brought by minor-children after they became of age to cancel a deed made - by •their guardian under orders of the probata court authorizing an exchange of their lands for other lands, and it was correctly held that all of the orders of the probate court entered in connection with the exchange weré in excess of the jurisdiction of that court because the guardian was not authorized by any statute .to exchange the lands of the wards. That decision is not authority f or appellant’s contention here. In that case the orders disclosed on their face their own invalidity. In the instant case, by appellant’s own allegations the orders did not disclose any invalidity, bnt wore on their face regular and valid orders of the probate court. These orders did not disclose that the guardian was exchanging the lands, but affirmatively disclosed that he was selling same, and proof that these orders were a subterfuge could not be made in a collateral proceeding. The assignments presenting this question arel overruled.

By what has been stated above we do not mean to intimate that, even if the orders had been lite those in the case of Orier v. Cow-den, appellant, who was a stranger to thei proceeding in which the orders were entered, could have successfully pleaded them in abatement or in bar to appellees’ cause of action in this case. We do not pass upon that question because it is not before us for determination.

Special issues Nos. 2 and 3, with the jury’s answer thereto, were as follows:

“Special Issue No. 2: Has plaintiffs’ land .permanently depreciated in value on account of the operation of the sewer disposal plant? Answer yes or no. Answer Tes.
“If you answer Special Issue No. 2 ‘yes,’ then you will answer Special Issue No. 3. Otherwise you will not answer Special Issue No. 3.
“Special Issue No. 3: IIow much has plaintiffs’ land permanently depreciated in value on account of the operation of the sewer disposal plant? Answer $2,111.00.”

This instruction was contained in the court’s charge: “In considering the amount of damages, if any, sustained by the plaintiffs, you will exclude from your consideration the mere fact that the sewer disposal plant is established near the plaintiffs’ land and will consider only the damages, if any, to plaintiffs’ land necessarily caused by the operation of defendant’s sewer disposal plant, and which defendant cannot avoid by using due diligence in the operation of said plant.”

In its exceptions to the court’s charge appellant urged the following: “ * * * And further, for the reason that it does not limit the time of the plaintiffs’ damages to any particular date or dates, giving no measure of damages whatever to guide a jury in finding the damages, if any, that plaintiff has sustained.” .

The action of the trial court in thus submitting the question of damages to the jury over the quoted objection of appellant is assigned as error. As noted above, the suit was one solely for permanent damages to the land. In passing upon a similar question in Cosden Oil Co. v. Sides (Tex. Civ. App.) 35 S.W.(2d) 815, 817, we observed: “* * * This was a ease wherein it.was peculiarly imperative that the court give the jury appropriate explanations to enable them to properly measure the damages.” Many authorities are there cited in support of the holding, and will not be here repeated.

We have examined the statement of facts in an effort to determine just what elements of damages the jury might have considered in returning its answer to special issue No. 3, and this investigation has' convinced us that it is impossible to determine what measure was employed. Appellees pleaded their measure of damages as follows: “That the reasonable cash market value of the property of plaintiffs immediately before the wrongs complained of was $100.00 per acre, but that it is not more than $30.00 per acre at this time; that the difference in the value of said property is the direct and proximate result of the negligence of the defendant. That plaintiffs have 140 acres and the l’easonable cash market value of the land on account of the conduct of the defendant as herein alleged has been depreciated to the extent of $60.00 per acre, to the plaintiffs’ total damage in the sum of $8400.00.”.

It would appear from this .pleading that the plaintiffs conceived the measure of damages to be the difference between the value of the land before the plant was constructed and its value at the time of the trial many years later, with the plant in operation. That rule does not allow for changes in market value during the years. There is soma conflict of decision as to the proper measure of damages for permanent injury to land, but the law is well established ⅛ this state that the rule of measurement is the difference in the value of the land immediately before, and immediately after, the injury. Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S. W. 575; Denison, B. & N. O. Ry. Co. v. Barry, 98 Tex. 248, 83 S. W. 5; Ft. W. & N. O. Ry. Co. v. Wallace, 74 Tex. 581, 12 S. W. 227; Ft. W. & D. C. Ry. Co. v. Hogsett, 67 Tex. 685, 4 S. W. 365; City of San Antonio v. Mullaly, 11 Tex. Civ. App. 596, 33 S. W. 256; Houston Land & Loan Co. v. Texas Co. (Tex. Civ. App.) 140 S. W. 818; City of Ft. Worth v. Scott (Tex. Civ. App.) 145 S. W. 736; H. & T. C. Ry. Co. v. Wright (Tex. Civ. App.) 195 S. W. 605; City of Greenville v. Elliott (Tex. Civ. App.) 263 S. W. 1076; Cosden Oil Co. v. Sides (Tex. Civ. App.) 35 S.W.(2d) 815; Hidalgo County, Etc., Dist. v. Peter (Tex. Com. App.) 37 S.W.(2d) 133, 134.

The issue as submitted is subject to practically the same criticism as that pointed out in the case last above cited, wherein it is stated: “It may be conceded that these issues on the measure of damages were incorrect in the form submitted, in that the jury was authorized thereunder to consider the value of the land at any time prior to the injury and at any time subsequent thereto when it should have been instructed to confine its consideration as to market value! to the time immediately 'preceding and immediately subsequent to the injury.”

The assignment presenting this question, is sustained, which results in an order that the judgment of the trial court be reversed and the cause remanded.


author: GRAVES, Justice.

text:
    HARRIS COUNTY et al. v. HALL, Tax Collector.
    No. 9910.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 22, 1932.
    Rehearing Denied Jan. 26, 1933.
    . O’Brien Stevens, Crim. Dist. Atty., Sewall Myer, and Joseph S. Myers, all of Houston, R. L. Bobbitt, of Laredo, and W. A. Wade, of Dallas, for appellants.
    James V. Allred,- Atty. Gen., -and' F.- O. McKinsey, Asst. Atty. Gen., for appellee. -
   GRAVES, Justice.

In 1929, by what is now Vernon’s Ann. Civ. St. art. 6675a — 1 et seq. (chapter 88, Acts Second Called Session of the' 41st Legislature), the Legislature overhauled our statutes providing for the construction, maintenance, control, and support of all public highways of the state as a general system, and in section 10 of the new act (Vernon’s Ann. Civ. St. art. 6675a — 10) provided for the apportionment of the revenues derived for those purposes from a state-wide franchise tax, equally and uniformly levied upon all motor vehicles using such highways, in whatever counties registered for that privilege, in this way:

Sec. TO. “(Apportionment of funds)
“On Monday of each week each County Tax Collector -shall deposit in. the County Depository of his county to the credit of the -County Road and Bridge Fund an amount equal to one hundred (100%) per cent of net collections made hereunder during the preceding week until the amount so deposited for the current calendar year shall -have reached a total sum of Fifty Thousand ($50,000.00) Dollars.
“Thereafter, and until the amount so deposited for the year shall have reached a total of' One Hundred Seventy-five Thousand ($175,000.00) Dollars he shall deposit to thei credit of said Fund on Monday of each week ian amount equal to fifty (50%) per- cent of collections made hereunder during the preceding week. ■
“Thereafter, _ he shall make no further .deposits to the credit of said Fund during that calendar year. All. collections made- during any week under the provisions of this Act ⅜ ⅝ » jn excess of the amounts, required to he deposited to the credit of the Roa^ and Bridge Fund of his county shall be remitted by each County Tax Collector on each Monday of the succeeding week to the State Highway Department * * * the monies so placed to the credit of the Roa-d.and Bridge Fund of a county * * * shall be used for the construction and maintenance of lateral roads in such county. * * * All funds allocated to the counties by the provisions of this Act * * * may be used by the counties in the payment of obligations, if any, issued and incurred in the construction or the improvement of all roads, including State Highways of such counties and districts therein; or the improvement of the roads comprising the County Road system.”

As its terms disclose, neither does this statute elsewhere, nor in its quoted section 10, designate nor directly undertake to create any classes for any purpose at all, as between the various counties as a whole, but ■merely provides, in effect, that, of the franchise taxes mentioned, which, as stated, are levied alike against all automobiles using the public roads of tbe state and collected from the owners thereof in the comities where they register them, there is to he deposited to the credit of any county’s “Road and Bridge Fund” that accumulates so much under the method prescribed for the year a maximum amount of $175,000 of all such sums as are thus collected there; any excess over that total to be remitted to the state highway commission. In resulting operations under that apportionment provision, it has come about that only the five largest counties in the state, Harris, Bexar, Dallas, Tarrant, and Jefferson, collect enough of such taxes for the required time to attain this $175,000 rank. 0⅛ the remaining counties, 195 do not collect at all more than $50,000, hence all of their returns are so locally credited. This leaves about 54 counties of the state, whose resulting status with reference to the apportionment in question was not shown.

The comparative figures for the amounts remitted by the five largest counties to the state highway commission, each of whom retained or locally credited the flat sum of $175,000, were these: Harris remitted $898,-634.09, Bexar remitted $672,373.75, Dallas remitted $855,080.85, Tarrant remitted $493,-213.41, and Jefferson remitted $169,981.64.

Appellant, Harris county — the largest comity in the state for the period covered by the evidence received — in, area, population, así sessed property valuation, bonded debt, number of motor vehicles registered, and consequently in franchise taxes collected thereon, mainly singling out these two undisputed effects of the apportionment, that is, on the one hand, that it requires the five largest counties to remit to the state highway department all these large sums they collect for such taxes over and above the relatively -small $175,000 maximum, while on the other, it permits the 195 smaller couiities mentioned to keep the whole of their receipts from that source, assails that section of the statute as thereby setting up an invidious classification, not only as between the five largest counties themselves, but also as between them and the 19 > smaller, ones, that contravenes the Constitution of Texas in article 1, §§ 3,17,19, and article 8, § 1 thereof, respectively, as well as the Fourteenth Amendment to the Constitution of the United States; this for the asserted reason that, primarily, it .unreasonably and arbitrarily bases the apportionment selected solely upon the amount of the motor vehicle taxes collected in the several counties, which chosen criterion can have no reasonable relation to the only objects sought to be accomplished by the provision, to wit, the pro tanto relief of the counties affected from the payment of their bonded debts and the construction -and maintenance of their lateral roads; that, secondarily, its operation developed such unfairly discriminatory results among the counties, especially as between and as affected the five largest ones, as to demonstrate that it was not enacted in response to any reasonable attempt to attain fairness, uniformity, and justice as between the counties as a whole, or as between the classes among them the Legislature thereby designedly sought to create, but as the obvious result of a deliberate intention on its part to place relatively heavier burdens on the few large counties, in order to thereby relieve entirely the greatly preponderating number of smaller ones from a duty to the state, all should share alike: that of constructing and maintaining lateral public roads within their borders.

The trial judge, on appellant’s request, first submitted to a jury, -as inquiries of fact both whether or not this apportionment whereby Harris county was permitted to retain in any one year only $175,000 of the license fees collected on automobiles registered therein was, as between it and the other four of the -largest counties, a “reasonable classification” and an “arbitrary classification,” to which answers were returned that it was not reasonable, and was arbitrary. Later, however, on the appel-lee’s motion, the court disregarded this verdict, and rendered judgment in the appellee’s favor notwithstanding; thereby sustaining the constitutionality of the challenged section as against the attack made upon it.

This court approves that determination below. The' question of whether this “Apportionment of funds” provision is reasonable or arbitrary in its application to Harris county might be one of fact to be determined from evidence disclosing its resulting effect upon the cost to that county of constructing, maintaining, and paying the obligations against its lateral road system, as comparable to like costs to the other four counties also alloted a $175,000 maximum of these funds, or even as comparable to that of the 195 smaller counties allotted the $50,060 maximum, if that were the test of the power of the Legislature — • in providing for the construction, maintenance, control, and support of all the public highways of the state, inclusive of every county’s laterals, as a general system, which the very caption of this act shows was its. objective — to in good faith dispose of the revenues derived for those purposes from such a statewide, uniformly levied -and collected public franchise-tax as this one; but it is not thought to be. All the public roads, comprehending state highways and county laterals alike, under the policy now obtaining in Texas toward ■them, belong to the state and are .under the general management and control of its highway commission, subject to legislative edict, no foot of them being owned by any county or road district. R. S. article 6673; Vernon’s Ann. Civ. St. art. 6674a; Robbins v. Limestone County, 114 Tex. 345, 268 S. W. 915, 916-918. This tax is not one levied upon specific property located in the different counties, but is purely one of franchise, uniformly levied and collected on the same basis by the state itself in fostering its general public road system everywhere within its borders, in return for the privilege to all owners of motor vehicles of operating them on such public roads anywhere in the state, rather than only in the county where the cars are registered and the returns paid; neither, therefore, does any portion of the revenue thus collected in Harris, however huge its aggregate for any one year in that largest county, nor in any other county in the state, belong to such county, but the whole of it always to the state. Atkins v. State Highway Department (Tex. Civ. App.) 201 S. W. 226-229, and cited authorities.

So that the state, after having raised this revenue in the manner and for the expressed purpose so declared, when it came to appropriating and using the same in furtherance thereof, was dealing with its own property, and no reason occurs for not holding that its lawmaking body had plenary power in that regard, so long as it acted in good faith, regardless of whatever individual inequalities incidentally resulted from its exercise to different ones'or classes of its counties; indeed, the authorities so hold. Article 2, § 1, Constitution of Texas, Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488, at page 492, Glass v. Pool, 106 Tex. 266, 166 S. W. 375, Koy v. Schneider, 110 Tex. 407, 218 S. W. 479, 221 S. W. 880, Powell v. Pennsylvania, 127 U. S. 684, 8 S. Ct. 992, 1257, 32 L. Ed. 253, Cooley’s Constitutional Limitations, pages 216, 228, 374, 375, Middleton v. Texas Power & Light Co., 108 Tex. 110, 185 S. W. 556, Sterling P. Clark, Sheriff, v. R. W. Finley, Comptroller, 93 Tex. 171, 54 S. W. 343, Dallas Gas Co. v. State (Tex. Civ. App. writ of error refused) 261 S. W. 1063, Marrs v. Mumme (Tex. Civ. App.) 25 S.W.(2d) 215, affirmed in St. Louis, I. M. & S. Ry. Co. v. State, 114 Ark. 486, 170 S. W. 580, 581, affirmed 240 U. S. 518, 36 S. Ct. 443, 60 L. Ed. 776, Armour & Co. v. North Dakota, 240 U. S. 510, 36 S. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548.

The vice in appellant’s position seems to lie in its erroneous assumptions, first, that the sole object sought to be accomplished by this legislation was the relief of the individual counties in the discharge of their duty to the state to construct, maintain, and pay outstanding debts against their several systems of lateral roads; and second, that the consequent division of funds collected from them for that purpose was unfairly discriminatory, because not based alone upon the relative cost as between them of rendéring that threefold service. But, for the reasons before given, this view of the whole matter is tangential, because back of and larger than the mere aid to the several, counties'contemplated in this respect as one feature of its undertaking, lay the supervening purpose of the act, as thus, in this particular, stated in its caption: “An Act providing for the construction,'maintenance, regulation, and supervision of the public highways of this State, by providing revenue therefor, by regulating, supervising, and licensing of motor vehicles used on same, and the payment of license fees on such motor vehicles, and the distribution and apportionment of such license fees.”

It may be added that appellant complaining county offers no other reason for arrogating to itself the right to thus harness the discretion of the Legislature in a matter wholly within that body’s province, since there is no intimation in the evidence of a lack of good faith on its part in enacting the measure; just a flat charge that it lacked the power, because it did not select this relative cost to the various counties as its basis.

It is true succeeding section 15 (Vernon’s Ann. Civ. St. art. 6675a-14), rather naively, by way of a conditional alternative, recites that, should the' method of distributing the funds so prescribed in section 10, “be declared invalid because of inequality of collection or distribution of motor vehicle license fees, then said funds shall be distributed sixty (60%) per cent to the counties making the collections and forty (40%) per cent be remitted to the ¡State in the same manner as herein provided”; but that cannot in any way detract from the preceding official declaration of the legislative will on the subject.

It is easily conceivable that the Legislature in the circumstances obtaining did have an entirely reasonable, if not indeed a wisely discriminating, reason for making the number of motor vehicle registrations in the different counties the basis on which the resulting funds should be distributed between it and each of them, respectively; and, if so, the settled law is that it will be conclusively presumed to have acted in response to it. Lindsley v. Natural Carbonic Gas Company, 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Dallas Gas Company v. State (Tex. Civ. App. writ of error refused) 261 S. W. 1063; Green v. State, 49 Tex. Cr. R. 380, 92 S. W. 847; Mumme v. Marrs, 120 Tex. 383, 40 S.W.(2d) 31.

For instance, it is at least thinkable that, in contemplating the establishment and nurture of a general system of public highways throughout or in different directions across the state as a whole, and taking into consideration not only the" obviously greater ability over the smaller ones of the few largest counties, by reason of more wealth and better ¡strategical location for the capture of commerce, among which appellant, by the. evidence herein heard, and by common knowledge if not also within judicial cognizance, stood pre-eminent, to care for the lateral roads within their borders, but also the equally known fact of their much wider and far more profitable use of such highways than the poorer and smaller counties, the Legislature deemed it good policy in the interest of all its people to thus so marshal these assets of the state to the end that, out of a proven abundance flowing in to the former, the latter might be furnished needed aid in carrying their part of the burden that brought in return beneficial service to both. In fact, other provisions of the act itself may be fairly construed as presaging such a purpose, because it expressly requires that these revenues shall all be used, not to build roails in the small counties for their use, but to maintain state highways, except in instances where the highway department is short of funds, when it may be used to match federal aid.

And if such a question of policy was entertained, its solution was one exclusively for the Legislature. Clark, Sheriff, v. Finley, Comptroller, and other authorities cited supra.

Further discussion becomes unnecessary, since these conclusions determine the merits of the appeal. The judgment will be affirmed.

Affirmed.


author: PEDPHREY, Chief Justice.

text:
    GRIFFIN v. GRIFFIN.
    No. 2772.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 19, 1933.
    Rehearing Denied Feb. 9, 1933.
    Crate Dalton and T. M. Dalton, both of Dallas, for plaintiff in error.
    John W. Davis and Sullivan & Wilson, all of Dallas, for defendant, in error.
   PEDPHREY, Chief Justice.

Plaintiff in error, as plaintiff, brought this suit against defendant in error for a divorce and a division of community property, in the district court of Dallas county, Tex. She alleged in her petition that she was and had been for a period of more than twelve months prior to the filing of her petition an actual bona fide resident of the state of Texas, and had resided in Dallas county far in excess of six months next preceding the filing of her suit.

Defendant in error answered by general demurrer, a general denial and by cross-action for divorce, asking that the community property be awarded to him for the remainder of his natural life, and, in the alternative, if the court should find plaintiff in error entitled to one-half of the property, that a receiver be appointed to take charge thereof, sell the same and divide the proceeds.

Plaintiff in error, by supplemental petition, excepted generally and specially to the cross-'action of defendant in error, generally denied the allegations therein, and specially denied that she had ever been unkind, untrue and unfaithful to defendant in error.

When the cause came on for trial, plain'tiff in error failed to appear, either in person or by attorney, and the trial court dismissed her suit for want of prosecution.

A trial was had upon the cross-action, and a jury having found: (1) That plaintiff in error left defendant in error on or about September 21, 1930; (2) that she failed and refused to wait upon and look after him during his illness; (3) that during his illness she would, from time to time, go away and leave him unattended; (4) that she told him she did not care for him; (5) that on more than one occasion she told him she did not care whether he lived or died; (6) that such conduct on her part rendered their further living together unsupportable; (7) that the reasonable cash- market value of the community property was $2,800; (8) that plaintiff in error expended $240 of her own separate estate and defendant in error $175 of his own separate estate in the purchase thereof, and (a) that there was an incum-brance thereon of $2,100. The court rendered judgment dissolving the bonds of matrimony between the parties, awarding defendant in error a divorce, and appointing a receiver to sell the community property and divide the proceeds.

The judgment was entered on the 18th day of January, 1932, and on the same day plaintiff in error filed her motion for a new trial setting up that the verdict was contrary to the evidence and the judgment contrary to the law. This motion was overruled by the court on January 25, 1932, and on February 1, 1932, plaintiff in error filed a motion setting up the fact that the time had not expired in which to file an amended motion for a new trial and that the court had acted prematurely upon her motion for the reason that the term of court did not expire until the last week in February. She moved the court for permission to file and have considered an amended motion tendered.

The court refused to permit the filing of the amended motion on February 9, 1932, to which action she excepted and gave notice of appeal. She had theretofore excepted to the court’s action in overruling her motion for a new trial and had given notice- of appeal. The case is now before this court on writ of error.

Opinion.

Plaintiff in error contends that, the defendant in error having failed to set up the necessary jurisdictional averments as to residence in his answer and cross-action, no valid judgment could be rendered in his favor.

Defendant in error counters with the proposition that a defendant in a divorce suit, who files a cross-bill, need make no allegations as to residence; the statutory requirements being applicable to plaintiff.

Plaintiff in error cites Mansur v. Mansur (Tex. Civ. App.) 21 S.W.(2d) 38, Hunter v. Hunter (Tex. Civ. App.) 286 S. W. 257, and Swearingen v. Swearingen (Tex. Civ. App.) 165 S. W. 16, while defendant in error depends on Charlton v. Charlton (Tex. Civ. App.) 141 S. W. 290.

In Mansur v. Mansur, supra, the question decided was as to the sufficiency of the evidence to show that either party had resided within the jurisdiction of the court as the statute requires and was not as to the sufficiency of the pleadings. In that case the petition of the plaintiff, who had taken a nonsuit, was not introduced in evidence, and the court said in that connection: “The petition would have been evidence only that plaintiff had' alleged jurisdictional matters, but would not have been proof of the allegations,' because in suits for divorce allegations or admissions of the adverse party are not sufficient, but there must be both allegation and proof as to matters of inhabitancy in the state and residence in the county.”

Here the petition of plaintiff in error was introduced in evidence, and, while it has not been brought forward in the statement of facts, it is included in the transcript. In that case there was no direct evidence that the defendant or plaintiff in the cross-action had resided in the state or county preceding the filing of either the original suit or the cross-action, while here, the record shows that defendant in error was born and raised in Dallas county, Tex.

On account of these differences in the facts, it will readily be seen that the holding there cannot control in the disposition of the question here presented.

In Hunter v. Hunter, supra, the question there was as to the sufficiency of the original plaintiff’s allegations as to residence; therefore no help can be derived from the announcement there.

In Swearingen v. Swearingen, supra, the action was to set aside a divorce decree and for a divorce and alimony, and the court held that Mrs. Swearingen’s suit for divorce could not be entertained in the absence of allegations by her as to her qualifications as to residence.

It appears to be the general rule that a divorce may be granted a nonresident on his or her cross-bill, provided the plaintiff has resided in the jurisdiction the requisite time, and that the abandonment or dismissal of the original petition does not oust the court of jurisdiction to grant such divorce. 19 O. J. § 38, pp. 27, 28 ; 9 R. O. I* § 201, p. 404.

The right to entertain the cross-bill is based upon the principle that a court of equity having acquired jurisdiction of the parties and of the subject-matter of the suit will retain and exercise such jurisdiction until the equities of all the parties are meted out to them. If this be the correct rule, then certainly no averments as to residence would be necessary in a cross-bill, but the cross-plaintiff could, in our opinion, secure a divorce, only, after it was established either by him or by the plaintiff that the plaintiff had resided in the state and county the required length of time.

We think clearly, as far as the matter of allegations is concerned, the court could look to the pleadings of the plaintiff for the jurisdictional facts, and he certainly could where the petition was introduced in evidence, as was done here.

Another contention advanced by plaintiff in error is that the cross-action of defendant in error containing no averment that the alleged cruel treatment was wholly unprovoked by him, his cross-action was subject to a general demurrer. This position is, we think, untenable. Our statute (Rev. St. 1925, art. 4629) provides that divorces may be granted where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable; therefore, when his petition shows these facts, he has alleged a prima facie case.

As held by the opinions cited, if it should appear that the actions of which he complains were provoked by him, then such provocation on his part would preclude him from recovering, but it would not be necessary for him to deny the existence of such provocation in his petition.

The remaining assignments present no error and are overruled.

The judgment of the trial court is affirmed.


author: JONES, Chief Justice.

text:
    JACKSON v. SALMON et al.
    No. 11358.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 14, 1933.
    Rehearing Denied Feb. 11, 1933.
    Cecil D. Simpson, of Dallas, for appellant.
    Pat J. Howe, of Dallas, for appellees.
   JONES, Chief Justice.

This is an injunction suit instituted in a district court of Dallas county by James Jackson, appellant, against appellees, J. B. Salmon, Sr., and Henry Yeager, as trustee in a deed of trust, to enjoin the sale of a number of lots in the city of Dallas under a deed of trust, executed by appellant to secure the payment of a note for $14,009 executed by appellant to Yeager as trustee for Salmon. At the request of Salmon, the trustee had posted notices of sales under the power of sale provision of the deed of trust. The court granted a temporary writ of injunction, and on motion of appellee, after a hearing, the temporary writ was dissolved, but was continued in force pending this appeal. The term “appellee” will refer to J. B. Salmon, Sr., the owner of the note and for whose benefit the contemplated sale was to be made.

Appellant presents but one proposition of law, that is: “If the owner and holder of notes secured by a deed of trust, for a valuable consideration, agrees with the maker of the notes that he will withhold the sale under the deed of trust, he has no right, in violation of said agreement, to proceed with said sale.”

Appellant announces a correct proposition of law, and, as the court dissolved the injunction, if the undisputed evidence showed that there was such an agreement between the parties, supported by a valuable consideration, then the trial court erred in dissolving the temporary writ of injunction. However, appellant in his brief admits that the evidence as to an oral agreement for 'the extension (the character of agreement claimed) rests on disputed evidence, in that appellant testifies positively to such an agreement and appellee positively denied entering into such an agreement. It was the function of the trial court to pass on this disputed issue of fact, and as it resolved such disputed issue of fact in favor of appellees, as shown by the act of dissolving the temporary writ of injunction, such finding of the trial court is binding on this court. It therefore is unnecessary to go further in this case and determine whether, if a promise of extension was made, the evidence raises the issue of a valuable consideration for such extension.

It necessarily follows that, under the evidence, the trial court did not abuse its discretion in dissolving the temporary writ of injunction, and the judgment is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    MAGNOLIA COMPRESS & WAREHOUSE CO. et al. v. MAJOR, CLEAVER & CO.
    No. 9828.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 20, 1933.
    Rehearing Denied Feb. 3, 1933.
    Boyles, Brown & Scott, Pat N. Fahey, Boyles, Scott & Fahey, all of Houston, for appellants.
    Franklin & Blankenbecker, of Houston, , for appellee.
   PLEASANTS, C. J.

This is a suit by appellees to recover from appellants the sum of $2,287.74. The petition alleges, in substance, that appellees were customers of appellant Magnolia Compress & Warehouse Company, and had a cotton storage or concentration contract with it, under which they were entitled to have returned to them all “loose cotton” on a pro rata basis; that a committee of other customers of Magnolia Compress & Warehouse Company undertook to allow and did allow Magnolia Compress & Warehouse Company 6 cents per bale on all cotton stored or concentrated during the term of their contract in order to cover an estimated loss sustained by the warehouse company by reason of the latter not getting any of said “loose cotton”; that out of the proceeds of the sale of the “loose” the “loose committee” paid said 6 cents per bale to appellants on their demand for same; that ap-pellees had stored 38,129 bales of cotton, and 6 cents a bale on this number of bales amounted to $2,287.74, which was paid over to appellant the State National Bank, and that same belonged to appellees; and appellees sue for this $2,287.74 as money had and received.

Plaintiffs further alleged that the appellant Warehouse corporation had dissolved and filed with the secretary of state its agreement or articles of dissolution and appellant State National Bank had been duly constituted the liquidating agent for the corporation.

The defendants answered by general demurrer and general denial.

The trial in the court below without a jury resulted in a judgment in favor of plaintiffs against both defendants for the $2,287.74, with 6 per cent, interest thereon. The court further adjudged and decreed: “That said sum of Two Thousand Two Hundred Eighty Seven and 74/100 Dollars ($2,287.74) was improperly paid to the said State National Bank as such liquidating agent or trustee and that said defendant State National Bank holds said funds as Trustee of these plaintiffs and that said fund constitutes no part of the assets of the Magnolia Compress & Warehouse Company or of the said bank as liquidating agent of said company.”

There is no issue of fact presented by the record. The undisputed evidence shows that the written contract made by appellant corporation with the appellee firm, and upon which the suit is based, provided that all “loose” (or waste) cotton accumulating in the appellant’s warehouse should, while appel-lee’s cotton was stored therein, be returned to appellee on a pro rata basis with the other customers who might have cotton stored in the warehouse during the same time. Appel-lee knew when this contract was made that a loose cotton committee would be appointed or chosen by the other customers who used appellant’s warehouse concurrently with ap-pellee, and that the duty of this committee was to collect and dispose of such loose cotton. Appellee did not participate in the selection of the committee, but such committee was appointed, and, acting for all of the customers, made a contract with the appellant corporation to pay it 6 cents per pound for all of the loose cotton saved and disposed of by the committee. Appellee’s pro rata share of the amount due the appellant corporation by this committee under its contract was $2,-287.74. This amount was without appel-lee’s consent turned over to appellant state bank, the liquidating agent of the dissolved corporation, who refused to pay it to appel-lee.

Upon this state of the evidence no other judgment than that rendered by the trial court could have been properly rendered.

Having reached this conclusion, it is unnecessary to set out and discuss the several propositions presented in appellants’ brief. We have considered all of these propositions, and in. our opinion none of them can be sustained.

It follows that the judgment should be affirmed, and it has been so ordered.

Affirmed.

On Motion for Rehearing.

After due consideration of appellants’ motion for rehearing, we adhere to the conclusions expressed in our original opinion, and the motion must be refused.

In answer to appellants’ motion for rehearing, counsel for appellee complains of the statement in our original opinion to the effect that the contract sued on by appellee provides, “that all loose, (or waste) cotton accumulated in appellant’s'warehouse should, while appellee’s cotton was stored therein, be returned to appellee upon a pro rata basis with the other customers who might have cotton stored in the warehouse during the same time.” The complaint is that the contract does not contain the words “with other customers.” This is true. The contract simply -provides that “all loose cotton to be returned to you on a pro rata basis.” It is impossible for us to understand how the amount of the loose cotton could be returned, to ap-pellee on a pro rata basis, other than to give appellee his proportionate share of all the loose cotton which accumulated in the warehouse during the time appellee’s cotton was stored therein, and this is the obvious meaning and effect of the statement in our opinion. The opinion did not purport to quote the exact language of the contract, but to give its substance and effect, and we do not think we failed to do this.


author: BAUGH, Justice.

text:
    STATE et al. v. WRIGHT et al.
    No. 7930.
    Court of Civil Appeals of Texas. Austin.
    Jan. 11, 1933.
    James V. Allred, Atty. Gen., and Neal Powers and R. G. Waters, Asst. Attys. Gen., for the State.
    Fischer & Fischer, of Tyler, and Grady Sturgeon, of Austin, for respondents.
   BAUGH, Justice.

This is an original proceeding brought in this court by the state and the Attorney General against V. O. E. and B. E. Wright, as defendants ; P. W. and L. M. Pischer and Grady Sturgeon, as their attorneys; and W. A. Hutchison, as district judge, in effect, to prohibit them from interfering by injunction or otherwise with the levy of execution upon, and sale of, certain property situated in Gregg county, consisting of a refinery and accessories, under a judgment obtained in the district court of Travis county, in favor of the state against Y. O. E. and B. E. Wright, and foreclosing a lien upon said property. The record discloses that on October 24, 1932, the state obtained, after a jury trial on the disputed issues, a judgment against the Wrights for $31,975.36, for unpaid taxes on gasoline distilled in said refinery and sold, sale of which was not reported to the state. Motion for new trial by defendants therein was overruled on November 17, 1932. Notice of appeal from that judgment was given and appeal bond filed in said court within 20 days thereafter. No supersedeas bond was given. Order of sale on said judgment was issued out of the Travis county district court on December 26, 1932, placed in the hands of the sheriff of Gregg county, .Tex., who levied upon and took into his possession the property described in said judgment. On Decembesr 30, 1932,. W. A. Hutchison, as special district judge of Lamar county, upon the application of the other respondents herein, issued a tern-. porary mandatory injunction, restraining" said sheriff of Gregg county from the execution of said order of sale, or any other like execution or order of sale, based upon said judgment, and commanding said sheriff to restore the possession of said property to the Wrights. Said temporary injunction, however, was made returnable to the next regular term of the district court of Travis county, wherein the original judgment was rendered. Thereupon the Attorney General applied to this court for the relief above indicated.

On January 2, 1933, this court granted to the relators a temporary prohibitory order as prayed for and set the cause for hearing on January 6, 1933. On that hearing the respondents answered, controverting the allegations of the relators, and asked that the relators’ application herein be dismissed for want of jurisdiction. They also pleaded in their reply thereto another suit filed in the same district court in Travis county, in which the original judgment was rendered, seeking to vacate and set aside said judgment on the ground that such judgment was obtained through fraud and perjured testimony, alleging that such testimony on which said judgment, and the finding of the jury, was largely based, has since said trial’been repudiated in writing by the state’s principal witness, and declared by him to have been untrue; that foreclosure on said property under said judgment would work an irreparable injury to the respondents V. O. E. and B. E. Wright for which they had no adequate remedy at law; and prayed that in any event this court grant to the Wrights a stay of execution of said judgment of the Travis county district court until the suit in equity to vacate same in said court has been heard upon its merits, or until this court has determined the appeal therefrom being prosecuted by the Wrights.

While the order of the district court of November 17,1932, overruling the defendants’ motion for a rehearing in the original case, recites that the court had under consideration an application for a stay of execution and that he deferred his decision on said application, no such application has been brought up with the record, nor does the defendants’ motion for a new trial appear setting forth any grounds for such a stay order. That motion for rehearing was in all things overruled and notice of appeal given.' So far as the record discloses, the judgment not having been superseded, nothing appears which would prevent the state from causing to be issued said execution and its levy upon the property under said judgment which it did cause to be done. 3 Tex. Jur. p. 373, § 264, and cases there cited.

And when the respondents V. O. E. and B. E. Wright gave notice of appeal, and filed their appeal bond in the trial court in said cause, the jurisdiction of this court attached and with it the concomitant power and authority to preserve that jurisdiction and protect the subject matter of the suit. Articles 2253 and 2267, R. S. 1925; Gordon v. Rhodes & Daniels (Tex. Civ. App.) 104 S. W. 786; Kennedy v. Wheeler (Tex. Civ. App.) 256 S. W. 315; Moore v. McLennan County (Tex. Civ. App.) 275 S. W. 478; 3 Tex. Jur. p. 284, § 189; p. 367, § 261.

The rule as stated in 3 Tex. Jur. p. 367, and sustained by the authorities there cited, is: “Perfection of an appeal transfers the entire controversy to the appellate court, and clothes it with plenary exclusive jurisdiction over the entire controversy, both as to the' parties and the subject matter, subject only to the power of the trial court to modify or set aside its judgment before adjournment of the term.”

Without further discussion, we think ft is clear that the district court of Lamar county, a county far removed from the for.um of the trial and also from the county wherein the property involved was situated, was wholly without authority, after said appeal was perfected to this court, to enter any order in any manner affecting the judgment appealed from, or interfering with the proceedings towards its execution authorized by law under said judgment. Our restraining order heretofore entered on January 2, 1933, in this cause will therefore be continued in force.

Eespondents, however, in view of their separate suit pending in the district court of Travis county to vacate and set aside said Judgment on the allegations that same was procured by fraud and the perjured testimony of the witness Bartlett, have ashed this court to stay execution on said judgment. Under the well-established rule of decision of this and other states, this requested stay must be denied. A trial court in the exercise of its equity powers, where a judgment has been obtained by fraud, has authority in a suit brought expressly for that purpose, where the same parties and the same subject-matter are involved, to grant such relief as against its former judgment as equity and justice demand. Overton v. Blum, 50 Tex. 417; McMurray v. McMurray, 67 Tex. 668, 4 S. W. 357; Peters v. Pursley (Tex. Civ. App.) 278 S. W. 229.

But the fraud which will authorize vacation by the court of its former judgment in such case must be what has been termed “extrinsic fraud.” By that is meant fraud by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert. “Intrinsic fraud” in the procurement of a judgment is not ground, however, for vacating such judgment in an independent suit brought for that purpose. And within that term is included such matters as fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed. While in some instances this may seem a harsh rule, on the other hand, if judgments are to be reopened and attacked on the grounds of false testimony introduced in their procurement, where neither party is prevented from asserting all his rights, it is obvious that there would be no end to suits by the losing parties, attempting to relitigate their controversies in this manner after they had already had their day in court, and their cause had already been once adjudicated. This rule was definitely laid down by the United States Supreme Court in U. S. v. Throckmorton, 98 U. S. 65, 25 L. Ed. 93, affirmed in Hilton v. Guyot, 159 U. S. 113, 16 S. Ct. 139, 40 L. Ed. 95, stated in 15 R. C. L. 770, 34 C. J. 280, Freeman op Judgments, § 489, and followed by the courts of this state in McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357; Warne v. Jackson (Tex. Civ. App.) 273 S. W. 315; Houston, E. & W. T. Ry. Co. v. Chambers (Tex. Civ. App.) 284 S. W. 1063; Reed v. Bryant (Tex. Civ. App.) 291 S. W. 605. The last-cited case contains an extensive discussion of this question and a review of the authorities. While there may be some expressions in the McMurray Case which might be construed as a limitation upon the rule in cases of perjured testimony, a careful analysis of that case shows that it is in harmony with the general rule; and the sufficiency of the petition to vacate therein was based upon the conclusion that the alleged fraud of the husband upon the wife was such, in conjunction with his perjured testimony, as to prevent her from presenting upon the trial her legal right in the premises.

We find nothing in respondents’ petition to vacate the judgment assailed which charges that the state or any of its agents prevented them in any manner from being present and asserting upon the trial any and all rights and defenses to which they were entitled.' Nor that any agent of the state testified falsely. The application does charge that the agent of the state did elicit the testimony of Bartlett knowing it to be false, but that is not sufficient. In Reed v. Bryant, it was charged not only that Reed himself swore falsely, but that he knowingly induced others to do likewise, a much stronger state of facts than that alleged by respondents; but the court held it insufficient and within the rule above announced. Under this line of cases we conclude that respondents’ petition to vacate the original judgment of the Travis county district court does not state, assuming all the allegations therein to be true, sufficient grounds for the relief asked for. It follows, .therefore, that we cannot grant to the respondents the stay order prayed for. Our former restraining order issued herein - on January 2,1933, is therefore continued in full force and effect; and the application of the respondents Y. O. E. and B. E. Wright to stay execution on the judgment in favor of the state against them in the district court of Travis county, Tex., is in all things denied.

Application to stay execution denied.