author: PELPHREY, C. J. PELPHREY, C. J. PELPHREY, C. J. HIGGINS, J.

text:
    JAMES A. DICK CO. v. YANEZ et al.
    No. 2722.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 27, 1932.
    Appellant’s Motion for Rehearing Granted Dec. 1, 1932.
    Appellees’ Motion for Rehearing Denied Dec. 22, 1932.

      J. F. Hulse and Turney, Burges, Culwell & Pollard, all of El Paso, for appellant.
    H. D. Stringer, R. A. D. Morton, S. J. Isaacks, and Isaaeks & Lattner, all of El Paso, for appellees.
   PELPHREY, C. J.

On or about the 30th day of June, 1930, a truck belonging to the Five Points Transfer ■Company and being operated by Guadalupe Moreno, was going east on Myrtle avenue in the city of El Paso, Texas, and a truck belonging to appellant, being operated by Jesus Peres, was going in a southerly direction on Virginia street. Appellee Yanez, an employee of Stone & Webster, was riding on the rear portion of the Five Points Transfer Company truck.

Dpon reaching the intersection of the above streets, the truck of the transfer company was turned suddenly to the right, turned over, and Yanez was injured.

Yanez filed suit against both appellant and the transfer company, alleging negligence on the part of appellant’s driver in failing to yield the right of way at a street intersection, failing to give a proper signal at the time of entering a street intersection, operating the truck at an excessive and dangerous rate of speed, in excess of twenty miles per hour, and in suddenly driving out into the intersection, after having slowed down the speed of the truck as it approached the intersection as though it was going to stop, and negligence on the part of the driver of the transfer company’s truck in driving at an excessive and dangerous rate of speed and in failing to keep a proper lookout for other vehicles.

Appellant, in its answer, charged the driver of the transfer company’s truck with driving at an excessive rate of speed, failing to keep a lookout, with being negligent in attempting to turn south on Virginia street while traveling at a high and dangerous rate of speed, in not having the truck under control, in not slowing down to a reasonable speed in approaching the intersection, and in failing to sound a warning signal.

Appellant also alleged contributory negligence on the part of Yanez in failing to warn the driver of the transfer company’s truck to drive slowly, and to keep a lookout for other vehicles at the intersection, in not requesting the driver to permit him to alight when he saw, or should have seen, that he was exceeding the speed limit, and in not keeping a lookout for other vehicles, and in failing to warn the driver of the approach of appellant’s truck.

In response to special issues, the jury found that the transfer company’s truck was being operated at a speed in excess of twenty miles per hour; that such negligence ,was a proximate cause of the injuries suffered by Yanez; that the driver of appellant’s truck failed to yield the right of way and failed to keep a proper lookout; that such negligence was a proximate eau'se of the injuries to Yanez; and that the negligence of appellant’s driver to yield the right of way and keep a lookout were sole proximate causes of such injuries.

Upon such finding being returned into court, the trial judge refused to receive the verdict, and pointed out to the jury the cc-n-fliet between its finding. Thereupon the jury retired, and later returned a vei’dict with a finding that the speed of the transfer company’s truck was not a proximate cause of the injuries.

The trial cóurt then rendered judgment against appellant for $2,500, the amount of damages fixed by the jury.

The court defined “negligence” in its charge as follows:

“ ‘Negligence’ is the doing of that which a person of ordinary prudence would not do, or in failing to do that which a person of ordinary prudence would do under the same or similar circumstances.
“ ‘Negligence’ is likewise the breach of a duty enjoined by the statute law of the State. The Statutes of the State provide that one shall not drive a motor vehicle in the public streets of the city in excess of twenty miles per hour. The statutes further provide that the operator of a vehicle approaching an intersection on a public highway shall yield the right of way to a vehicle approaching such intersection from the right of such first named vehicle.”

Appellant objected to the latter portion of the charge on the ground that it was a general charge and therefore not a proper charge to be given in a case submitted on special issues.

While it may be that the giving of the charge was unnecessary, yet we'cannot agree that it is a general charge. It is at most a definition of statutory negligence which would not necessarily be included in the first part of the definition.

Appellant’s argument that it is an instruction on the law of the case and that it tended to inform the jury of the effect of its answers calls for no discussion. No' such objections were made in the trial court.

When the jury had returned its first verdict into court, the trial judge gave to the jury the following instruction:

“Gentlemen of the Jury:
“The'court cannot receive your verdict on account of a conflict of findings.
“In answer to question No. 4 you have found that negligence of the defendant transfer company was a proximate cause of the injuries to plaintiff; in answer to questions la and 2a, given at request of defendant transfer company you have found in la that the failure of the driver of the grocery company truck to yield the right of way was the sole proximate cause of the injury to plaintiff, and in 2a that the failure of the defendant’s grocery company driver to keep a lookout was the sole proximate cause of the injury. The findings conflict. An event may have one or more proximate causes, but if an act or omission is the sole proximate cause of an event, it excludes all others.”

Appellant’s bill of exception, after setting out the returning of the first verdict, the court’s refusal to accept it, the instruction above quoted, and the fact that the jury retired and changed its answers to issues 4 and la, recites: “To which action of the court in refusing to accept the verdict originally tendered the court by the jury, and in giving the jury the further instructions as above set out, and in instructing the jury to retire and further consider its verdict after it had already rendered its verdict by finding its answers to the issues submitted to it, and signing the verdict by and through its foreman, and to the act of the court in receiving the verdict as changed by the jury after its second consideration and deliberation of the issues submitted to it, the defendant, James A. Dick Company, in open court excepted, and moved the court to set aside the verdict received and accepted by the court, and to accept as the verdict of the jury the verdict with the answers therein contained as first and originally answered by the jury, which motion the court overruled.”

Appellant in its brief argues that the instructions should not have been given because they pointed out the answers which conflicted with each other and constituted a general charge. It will be seen from the above-quoted bill of exception that no such objections were made in the trial court, and therefore cannot now be raised. Appellant also contends that it was error for the court to give the additional instructions after the jury had retired and made findings on the issues submitted, and argues that under article 2187 the court was prohibited from giving any instructions except before the argument was begun.

It is not disputed that there existed a conflict between certain answers of the jury in its first verdict. Under such a state of facts, we think it clearly was the duty of the court to refuse to accept the verdict and send the jury back for further deliberations. Turner v. Missouri, K. & T. Railway Co. (Tex. Civ. App.) 177 S. W. 204 (writ refused); Wichita Valley Railway Co. v. Southern Casualty Co. (Tex. Com. App.) 284 S. W. 940; St. Louis, S. F. & T. Railway Co. v. Kaylor (Tex. Com. App.) 291 S. W. 216 — the holdings of the Commission in the last two cases being approved by the Supreme Court. In the first case it was also held that the court’s calling the attention of the jury to the conflicts was not error.

Therefore we think it proper for the court to refuse to accept a conflicting verdict and to inform the'jury as to where the conflict exists. Certainly the court should not in so doing suggest to the jury how the changes should be made so as to remove the conflict. Such was not done in this case, and no such objection was made to the instruction given.

We also find that under article 2198, our courts have held that the court was authorized to give the jury further instruction without any request from it therefor. Cockrell v. Egger (Tex. Civ. App.) 99 S. W. 568; Cheek v. Nicholson & Co. (Tex. Civ. App.) 146 S. W. 594 (writ refused); Gotoskey v. Grawunder (Tex. Civ. App.) 158 S. W. 249; Mulligan v. McConnell Bros. (Tex. Civ. App.) 242 S. W. 512; Richardson v. Wilson (Tex. Civ. App.) 178 S. W. 566.

The cases cited by appellant are not in point. Hickman v. Talley (Tex. Civ. App.) 8 S.W.(2d) 267, was where the court, upon the jury being unable to agree,- submitted other and different issues. In International & G. N. Railway Co. v. Parke (Tex. Civ. App.) 169 S. W. 397, the charge of the court was not read to the jury before the argument, and in Needham v. Cooney (Tex. Civ. App.) 173 S. W. 979, the court was dealing with the question of reserving exceptions to a peremptory charge.

We have concluded that the assignments on this point present no error and must be overruled.

Appellant, in its seventh assignment of error, complains of the trial court’s action in rendering judgment against it, in the absence of a finding by the jury that the driver of the truck was an employee or agent of appellant at the time of the accident.

An examination of the evidence introduced shows, that Jesus Peres was an employee of appellant on the date in question, that he was driving the truck of appellant at the time of the occurrence out of which the suit arose, and that he was bringing a load of peaches from the depot to appellant’s place. The facts were shown by Jesus Peres himself and also by Juan Ortiz, a witness introduced by appellant.' The facts were undisputed.

The question we are called upon to decide is, Was it necessary, under such a state of facts, for an issue as to whether at the time in question, Peres Was an employee or agent of appellant, and was the court authorized, in the absence of a finding of the jury that he was such agent or employee, in rendering judgment against appellant? Article 2185, Revised Statutes, in dealing with charges generally, provides that the court “shall only submit controverted questions of fact,” and in article 2189 it is further provided that upon submitting a case on special issues the court, “shall submit the cause upon special issues raised by the pleadings and the evidence in the case.”

In Lamar v. Panhandle & S. F. Railway Co., 248 S. W. 34, 37, the Commission of Appeals, Section B, held that the submission of issues as to whether there was a wreck and whether plaintiff was a passenger at the time in question constituted reversible error. The court in its discussion had the following to say: “The trial court did submit said two issues to the jury. Under the pleadings and evidence in this case, we think it was error to do so, for these facts were admitted by all. The latter part of article 1971 [now 2185] of our statutes, heretofore quoted by ns, provides that the trial court ‘shall submit all controverted questions of fact only to the decision of the jury.’ The reason for this statute is obvious. Every possible effort should be made by the trial courts to simplify their charges to juries and render less likely any confusion on their part. Admitted facts should not be submitted and thereby possibly confused with other issues.” This holding was approved by the Supreme Court.

Again in Speers Special Issues we find: “Neither can the court be put in error for a .refusal to submit on issues, however material the same may be, if the evidence with respect thereto be legally undisputed. It forms no basis for a finding. Only one finding can be made and where this is the case, the matter is for the court and not the jury. Such undisputed matter should never be submitted. It presents no issue.” Citing numerous authorities.

If undisputed facts should not be submitted, then it follows that a judgment rendered in the absence of a finding upon such undisputed facts should be upheld.

The eases cited by appellant are in conflict with the many authorities cited by the author, above quoted, and cannot be followed in a case such as we have before us, where appellant’s own witness testified to the existence of the fact which it complains was not found by the jury, and there is nothing in the record even tending to show that such fact did not exist.

Appellant also assigns error to the court’s refusal to grant its motion for a new trial because of misconduct on the part of the jury in discussing the question of plaintiff’s attorney’s fees during its deliberations.

Six of the jurors were examined on hearing on the motion for a new trial; two of whom, Campbell and Haywood, testified that the matter of attorney’s fees was mentioned before a decision was reached upon the amount the jury would allow plaintiff, while the other four testified that, according to their best recollection, it was not mentioned until after all the issues had been answered. All of the jurors testified that they had not considered attorney’s fees in deciding upon the amount to be awarded plaintiff, with the exception of Campbell, who said he had considered it.

It appears from the testimony of jurors Cobble, Parmalee, and Richmond that the jury, in deliberating on the amount to be allowed, figured to allow him for the time lost between the date of injury and the date of trial, for loss of time thereafter, and Ms hospital and doctor’s bills. These items were based upon $2.25 per day for time lost before trial and $1 per day for loss of time thereafter, and the sum of $450 to $500 for doctor’s bills. It appears that about sixteen months had elapsed between the date of injury and the date of trial, but the testimony varies as to the number of months the jurors used as a basis for their allowance on that item, some saying twelve and others fourteen, but all agree that such an allowance was made. They all seem to agree that $400 to $500 was agreed on as the amount to be allowed for doctor’s bills and that $1 per day was agreed upon as a basis for the allowance of future loss of time.

Campbell testified that, while the jury used the above figures as a basis for fixing their allowance on the items, also testified that they allowed $700 for loss of time before trial, $500 for subsequent loss of time, and $450 for doctor’s bills, making a total of about $1,600; that, after his attorney’s fees and hospital bills had .been paid, plaintiff would have about $1,200 net.

If Campbell’s version be taken as true, then attorney’s fees were considered in fixing the amount allowed plaintiff, while, if the testimony of the other jurors is accepted as to the method used in computing the amount to be allowed him, no sum for attorney’s fees was included in the amount allowed.

In this state of the testimony there existed conflicts in the evidence both as to whether the jury had discussed the question of attorney’s fees before the issues had been answered and whether in computing the amount to be allowed any sum for attorney’s fees had been included.

We think it is now well established that in passing upon the evidence on the hearing of a motion for a new trial the trial court is the judge of the credibility of witnesses and of the weight to be given to their testimony. Bradley v. Texas & P. Railway Co. (Tex. Com. App.) 1 S.W.(2d) 861, 862; Texas Employers’ Ins. Ass’n v. Chocolate Shop (Tex. Com. App.) 44 S.W.(2d) 989; Houston & T. C. Railway Co. v. Gray, 105 Tex. 42, 143 S. W. 606.

Another rule equally well established is that the granting or denying of a new trial for misconduct on the part of the jury is, to a great extent, within the discretion of the trial court, and that the ruling of the trial court will not be interfered with by the reviewing court except in very strong cases of misconduct. 3 Tex. Jur. § 761, and authorities cited.

Under the facts as here revealed by the testimony of the jurors and with the above rules in mind, we think the words used by the Supreme Court in Houston & T. C. Railway Co. v. Gray, supra, meet the situation with which we are confronted. The court said: “If the evidence taken by the trial judge left it reasonably doubtful as to the effect the statement had upon the amount of the verdict of the jury, we would feel inclined to exercise our authority and set it aside; but the judge who tried the case seems to have acted promptly and fairly in the investigation and we know that he could form safer conclusions from examining the jurors than this court can from the record. There is much in looking at the man who testifies.”

The assignment must be overruled. The remaining question presented by appellant is as to the action of the trial court in refusing it permission to file a trial amended answer.

That amendment in substance alleged negligence on the part of plaintiff in riding in the rear of the transfer company’s truck, seated upon boxes or barrels which would shift their position if the truck was not handled in a careful manner, and in that he was riding in the rear of the truck, which was not made for conveying passengers and from which place he could not easily and readily request the driver to drive carefully or let him off, if the driver operated the truck at a dangerous rate of speed or in a dangerous manner. It also contained an allegation that the transfer company’s driver was negligent, he having seen appellant’s truck proceeding southerly on Virginia street, crossing Myrtle, some considerable time before he reached the intersection, in failing to stop his truck and thereby avoid the accident.

In its bill of exceptions, appellant contended that it had no knowledge of the facts forming the basis of the answer before the trial and that a knowledge of the facts had come to its attorneys for the first time from testimony of plaintiff and the driver of the transfer company’s truck.

In plaintiff’s original petition, filed February 13,1931, nine months before the amended' answer was tendered, we find an allegation by plaintiff that he was seated in the rear portion of the truck, and in the transfer company’s amended answer, filed on the day before the amended answer of appellant was filed, we find the same allegation.

It therefore follows that appellant must have known that plaintiff was riding in the rear portion of the truck long before plaintiff testified in the trial.

It also appears that appellant had notice of the fact that the driver of the transfer company’s truck had seen appellant’s truck before he reached the intersection, for we find in the answer of the transfer company filed on November 13, 1931, the following: “And when said truck was approaching the intersection of Myrtle and Virginia streets, the driver of this defendant’s truck noted the truck of the defendant James A. Dick Company approaching Myrtle Avenue from the North, and was preparing to stop or slow down until said truck had crossed Myrtle Avenue.”

It was further before the court that the injury complained of happened in June, 1930, that the suit was filed in February, 1931, and that the trial was not had until November 14, 1931.

Under the above facts, would we be justified in holding that the trial court had abused the sound discretion with which appellant admits the trial court is clothed in the matter of filing trial amendments? We think not. In the first place, as said before, the record shows that the matters upon which it bases its trial amendment were pleaded before the trial began, and, in the second place, appellant had ample legal means of ascertaining what the testimony of the witnesses would be, during the long lapse of time between the filing of the suit and the trial.

We have carefully studied the record, and finding no errors calling for a reversal of the judgment, it is affirmed.

WALTHALL, J., did not sit in this case.

On Appellant’s Motion for Rehearing.

PELPHREY, C. J.

In our former opinion we held that that part of the court’s charge which advised the jury that a breach of a statutory duty was negligence and informed the jury as to the provisions of the statutes as to speed and yielding the right of way was not subject to the objection interposed by appellant that it was a general charge.

After further consideration of the holdings of our courts, we have concluded that we were in error in so holding. ,

The holding of the Commission of Appeals in J. M. Radford Grocery Company v. Andrews, 15 S.W.(2d) 218, and that of the Fort Worth Court of Civil Appeals in Gause-Ware Funeral Home v. McGinley, 41 S.W.(2d) 433 (writ refused), clearly appear to be contrary to our previous holding.

The motion for rehearing is accordingly granted, and the judgment of the trial court reversed, an'd the cause remanded.

WALTHALL, J., not sitting.

On Appellees’ Motion for Rehearing.

PELPHREY, C. J.

Appellees have presented a strong motion in which they complain of our action in sustaining appellant’s motion for rehearing and holding that the definition of negligence constituted a general charge and was therefore erroneous.

One point urged is that the jury in determining the question of unavoidable accident could not, under the facts here, have properly passed upon that issue in the absence of an instruction from the court that the breach of a statutory duty was also negligence. There is much merit in that contention, and we can readily see the logic of it, but it must be remembered that the charge given in reference to statutory negligence was not limited to the issue of unavoidable accident, but was to be considered by the jury in connection with all the issues submitted.

We cannot agree with appellees that the J. M. Radford Grocery v. Andrews and the Gause-Ware Funeral Home v. McGinley, supra, are not controlling, and in deference to those opinions the motion must be overruled.

WALTHALL, J., participated in the consideration of this motion.

HIGGINS, J.

(dissenting).

It is with reluctance and some hesitation that'I dissent from the ruling of the majority upon appellees’ motion for rehearing, for I recognize that the cases upon which the majority base their ruling seem to support the same. But I regard the ruling as erroneous and as presenting to trial courts a great difficulty in submitting, upon special issues, cases of the present nature. For this reason I am impelled to dissent.

The preliminary portion of the court’s charge was devoted to definitions and explanations.

In the order named, the court defined preponderance of the evidence, ordinary care,

• negligence arising out of the failure to exercise ordinary care, and statutory negligence, as copied in the main charge, proximate cause, independent intervening cause, and unavoidable accident.

Unavoidable accident was defined ,as follows: “By ‘unavoidable accident’ is meant, such an unexpected catastrophe as occurs without the plaintiff or defendant being to blame for it, that is, without either one being guilty of negligence in doing, or permitting to be done, or omitting to do the particular thing that was a proximate cause of such casualty.”

The court then submitted the various issues inquiring, first, whether the incident complained of between the plaintiff and the defendant transfer company was an unavoidable accident, and, second, whether such incident as between the plaintiff and the defendant grocery company was an unavoidable accident. Both of these questions were answered in the negative.

In cases submitted upon special issues it is the duty of the court, imposed by statute (article 2189) to “submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

We have here a case presenting issues of negligence arising ont of a failure to exercise ordinary care, statutory negligence, and unavoidable accident. In order for tbe jury to pass upon the issue of unavoidable accident, it was necessary to define both kinds of negligence, and, in the case of statutory negligence, it was necessary to do-more than merely define the term. It was necessary, by way of explanation, to also inform the jury as to the statutory provisions relative to driving in excess of twenty miles per hour and yielding the right of way at intersections.

That is all the court did in the definition and explanation of statutory negligence, and in my opinion it should not be regarded as subject to the objection of being a general charge.

The definition and explanation given of statutory negligence was, in my opinion, absolutely necessary to enable the jury to properly pass upon and render its finding upon the issue of unavoidable accident.

The majority opinion recognizes this, but intimates the definition and explanation should have been expressly limited to the issue of unavoidable accident. If it had been so done, that would not have relieved the same of being a general charge if it be justly subject to the criticism that it was such a charge. It would have still been a general charge.

The majority also say it was to be considered by the jury in connection with all of the other issues in the case. The same criticism can be made of every definition and explanation given in the charge.

The court prefaced that portion of the charge relating to definitions and explanations with this statement: “In connection with the issues submitted certain legal terms will be used, hence, for your guidance the Court will define same.”

The definition and explanation in question was pertinent only to the issue of unavoidable accident, for, in submitting the issues of proximate cause in connection with the issues of speed in excess of twenty miles per hour and failing to yield the right of way, the court assumed negligence as a matter of law, if affirmative answers were returned upon such issues of speed and failing to yield the right of way.

■ It is not to be assumed the jury gave to the definition and explanation of statutory negligence any pertinency other than that which properly attached to it, namely, in connection with the issue of accident. If the jury did give it an improper application, that would not render it a general charge.

In brief, the writer is of the opinion that the definition and explanation in question was a proper and necessary one and not subject to the criticism that it was a general charge.


source: Caselaw Access Project

author: WALKER, C. J.

license: Public Domain

text:
    PAUL et al. v. DUTTON.
    No. 2291.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 15, 1932.
    Rehearing Denied Dec. 21, 1932.

      Barnes & Barnes, of Beaumont, for appellants.
    Combs & .MePaddin, of Beaumont, for ap-pellee.
   WALKER, C. J.

This suit was filed by appellee, M. R. Dut-ton, against J. W. Paul, Jr., and appellant American Pidelity & Casualty Company. The appeal is from the order of the district court of Jefferson county, overruling appellants’ plea of privilege, praying that the cause of action as to it be transferred to Dallas county. ' The allegations of appellee’s petition were as follows: On or about the 30th day of December, 1930, J. W. Paul, Jr., was the. owner and operator of a motor transporta-, tion business, operating under a class B motor carrier permit, and appellant was his insurer, in compliance with the provisions of chapter 314, General and Special Laws of the 41st Legislature, 1929 (see Vernon’s Ann. Civ.. St. art. 911b, and Vernon’s Ann. P. C. art. 1690b); appellant was a foreign corporation, with an agent in Dallas county upon whom service could be had; on the said 30th day of December, 1930, one of Paul’s trucks, through the negligence of his driver, collided with appellee’s automobile, damaging the automobile, under circumstances constituting a trespass; the prayer was for a joint and several judgment in the sum of $1,500 against Paul and appellant. Appellant’s plea of privilege was filed the 21st of December, 1931. The July-December term of district court of Jefferson county adjourned the 31st of December, 1931. Appellee’s controverting affidavit was filed the 4th day of January, 1932. The court’s trial docket showed the following orders made on the plea of privilege:

“12/2/31 Plea of privilege filed and it and all other pleas passed without prejudice.
“1/11/32 Hearing on controverting affidavit and plea of privilege set for hearing Feb. 5th, 1932.
“2/5/32 Defendant through its attorney appeared on plea of privilege. Hearing passed without prejudice.
“2/12th/32 Both sides appeared, Deft, claiming that they had not received the necessary notice, the Court without prejudice to said plea hereby passes and sets the hearing of said plea and controverting affidavit until 9 A. M. Feb. 26/32.”

(The docket entry to the effect that the plea of privilege was filed on the 2d of December, 1931, was error, the plea being filed on the 21st of December, 1931, the agreed appearance day for the purpose of filing the plea of privilege.) The plea of privilege came on for hearing on the 27th day of February, 1932, when appellee offered proof in support of his controverting affidavit. When appel-lee began the introduction of his testimony, appellant interposed the following general objection: “Mr. Barnes: Tour Honor, I am going to object to any questions along the trial of this lawsuit at this time, because it is immaterial and irrelevant; the plea of privilege being based on the pleadings, and not on the evidence in the case, as far as the plea of privilege is concerned the evidence as stated in the pleadings is all considered as true, and therefore it is immaterial and irrelevant, uselessly encumbering the record. The plea of privilege is based on the pleadings and not on the proof.” The evidence introduced by appellee raised the issues that Paul’s driver was guilty of negligence in Jefferson county, Tex., which proximately resulted in the damage to appellee’s car, as the result of a collision of his truck with appellee’s automobile; that Paul was operating his truck under a permit from the Railroad Commission, as pleaded by appel-lee ; and that appellant was his insurer. Upon conclusion of the evidence, judgment was entered overruling the plea of privilege.

Opinion.

Appellant makes the following assignments against the’ legal sufficiency of the controverting affidavit: (a) The failure of the court to set the controverting affidavit for hearing within thirty days after it was filed on January 4, 1932, rendered it functus officio; (b) the failure to have the order of postponement made “by agreement of the parties” rendered the postponement without legal effect and made the controverting affidavit functus of-ficio ; (c) the plea of privilege was filed on the 21st of December, 1931, and as no controverting affidavit was filed to that term, which adjourned on the 31st of December, 1931, the trial court lost jurisdiction, on adjournment of that term of court, to entertain the contest to the plea of privilege! These contentions are all overruled.

Article 2092, subdivision 14, R. S. 1925, governing appellee’s plea of privilege, is as follows: “14. Pleas of privilege. — Pleas of privilege shall be filed at or before the time the defendant is required to answer and a contest thereof if any, shall he filed within twenty days after the appearance •{¡ay, and if a contest is filed, the same shall, when filed, be set for hearing by the court, within not exceeding thirty days after being filed and shall be determined by the court within not exceeding ten days after the date for which the same is set unless postponed or continued without prejudice, by order or leave of the court, by agreement of the parties, and shall not .be postponed longer than sixty days after being filed unless by order of the court entered by agreement of the parties.” The controverting affidavit was filed within the twenty days allowed by subdivision 14, which was sufficient to confer jurisdiction upon the trial court, to hear it on its merits. It was not reasonably probable that appellee could have filed his controverting affidavit and given appellant the ten days’ statutory notice between the date of filing the plea of privilege and the adjournment of court. But we do not care to rest our conclusion on this point upon a fact issue. Under the practice act, being article 2092, R. S. 1925, governing the district court of Jefferson county, of which subdivision 14 copied above is a part, the trial court does not necessarily lose jurisdiction of all pending business merely because of the adjournment of court. Subdivision 14 expressly gives twenty days from the filing of the plea of privilege in which to file the controverting affidavit, and, there being nothing in the practice act to the effect that the adjournment of court will shorten this period of twenty days, we think the plea of privilege remained on the docket when court adjourned and was carried, by force of law, into the next term of court as unfinished business, within the court’s jurisdiction. We think this conclusion necessarily follows from the following provisions of subdivision 28 of article 2092: “No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court.” The general provisions of other portions of subdivision 28, regulating the filing of motions for new trial, are strikingly similar to subdivision 14, regulating the disposition of pleas of privilege and controverting affidavits. The construction given by the Supreme Court to these provisions of subdivision 28 in Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1979, 48 A. L. R. 355, supports our construction of subdivision 14.

Answering appellants’ propositions (a) and (b), we agree with appellee that the provisions of subdivision 14, article 2092, regulating the settings and hearings on pleas of privilege and controverting affidavits, are directory only and not jurisdictional in the sense contended for by appellant, that is, that the failure to make the settings in accordance with subdivision 14 deprives the court of jurisdiction to hear and determine the contest, and that the court has no power, where the settings are not made in strict accordance with subdivision 14, except to sustain the plea and transfer the case in accordance with its prayer. As we understand Fitzgerald v. Browning-Ferris Machine Co. (Tex. Civ. App.) 49 S.W.(2d) 489, with the other authorities cited therein, it directly supports appellee’s counter proposition. It necessarily follows that where the trial court acquires jurisdiction of a plea of privilege and controverting affidavit, as we hold it did in this case, such jurisdiction remains in the court until the court, by affirmative action, surrenders that jurisdiction. Texas Louisiana Power Co. v. Wells (Tex. Com. App.) 48 S.W.(2d) 978; Watson v. Cobb Grain Co. (Tex. Com. App.) 292 S. W. 174; Brown Cracker & Candy Co. v. Jensen (Tex. Civ. App.) 32 S.W.(2d) 227; Tates v. State (Tex. Civ. App.) 3 S.W. (2d) 114; Humble Pipe Line Co. v. Kincaid (Tex. Civ. App.) 19 S.W.(2d) 144; Old v. Clark (Tex. Civ. App.) 271 S. W. 183.

We think appellant’s propositions should be overruled for the following additional reasons; The controverting affidavit was disposed of within the sixty days allowed by subdivision 14, copied above. In construing similar provisions of subdivision 28, cited above, Judge Cureton, speaking for the Supreme Court, in Townes v. Lattimore, 114 Tex. 511, 272 S. W. 435, 436, said: “It is obvious that, under the statute, the trial court had jurisdiction of the subject-matter of this suit for a period of at least 45 days after the original motion was filed.” If the forty-five day provision of subdivision 28 gave the trial court jurisdiction to hear and determine motions for new trial within the forty-five days, clearly the trial court retained its jurisdiction over the plea of privilege for the sixty days allowed by subdivision 14.

But independent of all we have said on this issue; on the record as presented here, the trial court had jurisdiction to rule upon the merits of the plea of privilege. No evidence was offered explaining the docket entries copied above except as to the correction of the first entry. Appellant concedes that the trial court had jurisdiction “by agreement of the parties” to postpone the hearing on the plea of privilege from time to time. In the absence of evidence to the contrary, if this conclusion is necessary to validate the orders of postponement and to support the jurisdiction of the court to enter its judgment on the date named in the postponement, the “agreement of the parties” will be presumed. This follows because the postponement was made “without prejudice.” Otherwise, the postponement would not have been “without prejudice” but to the prejudice of appellee by the loss of his contest.

We overrule appellee’s contention that appellant waived all objections to the venue in Jefferson county by reason of the exceptions copied above, reserved by it upon the beginning of the hearing on the controverting affidavit. The court was not induced by these exceptions to render judgment merely upon the pleadings, but the exceptions were overruled and the issues were determined on their merits.

Appellant’s fourth proposition is as follows: “There being no evidence in this record, not even a scintilla of evidence, that the appellant, American Fidelity & Casualty Company, was the insurer of the car in question, and there being no evidence in this record whatsoever that said appellant had an office or an agent in Jefferson County, Texas, and the evidence being undisputed to the effect that the policy in question merely obligates said appellant to indemnify and save harmless the appellant, Paul, then said appellant, American Fidelity & Casualty Company, was not a proper party defendant in this suit, and the plea of privilege filed by said appellant herein ought to have been sustained.” These contentions are overruled. Appellant correctly asserts that Paul’s truck involved in this litigation was not named in the face of the policy sued upon. But the evidence showed that this truck was used by him in the conduct and operation of his motor transfer business, as conducted by him under authority of the certificate of convenience and necessity issued to him by the Railroad Commission. The policy contained the following provision, which brought this truck within its coverage: “Coverage hereunder applies to all motor vehicles, trucks and/or trailers belonging to, or operated by, or under the direction of the assured, whether particularly identified in this policy or not, while same are being used in the business of carrying property for hire or compensation and coming within the terms of the Statutes (above referred to) whether such vehicles are used in a Class ‘A’ operation or a Class ‘B’ operation, anything in the policy to the contrary notwithstanding.” These facts raise the issue that appellant was the insurer of the truck involved in the collision in controversy.

On authority of Monzingo v. Jones (Tex. Civ. App.) 34 S.W.(2d) 662, we overrule appellant’s contention that .it was not a proper party to this action. That case rested upon our construction of the provisions of section 11, article 911a, Vernon’s Complete Texas Statutes, 1928 (Vernon’s Ann. Civ. St. art. 911a, § 11). The policy in issue herein was issued under authority of section 13, article 911b, Complete Texas Statutes (see Vernon’s Ann. Civ. St. art. 911b, § 13), which in its material provisions, is similar to section 11, article 911a. The Monzingo Case was decided •by us on authority of American Automobile Insurance Co. v. Cone (Tex. Civ. App.) 257 S. W. 961, and Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423. See, also, Kuntz v. Spence (Tex. Civ. App.) 48 S.W.(2d) 513, and the following additional cases which cite the Monzingo Case: Beverly v. Siegel (Tex. Civ. App.) 51 S.W.(2d) 743; Ten-Cate v. First Nat’l Bank of Decatur (Tex. Civ. App.) 52 S.W.(2d) 323; Lake v. Texas News Co. (D. C.) 51 F.(2d) 862; Haenni v. Craven (D. C.) 56 F.(2d) 261.

Not only was appellant a proper party to appellee’s cause of action against Paul, but the venue as to it was properly laid in Jefferson county, though there was no evidence to the effect that it had a local agent in Jefferson county at the time of the collision. The law under which the policy of insurance in question was issued to Paul and the terms of the policy itself, as we con-, strued the law and similar insurance contracts in the Monzingo Case, supra, created a primary liability in favor of appellee against appellant for the damages suffered by him proximately resulting from the collision in issue, which admittedly occurred in Jefferson county. It follows that appellee’s cause of action against appellant for the damages thus sustained by him arose in Jefferson county. On this statement, the venue as to appellant, a corporation, was properly laid in Jefferson county under section 23 of article 1995, which confers venue against corporations “in any county in which the cause of action, or a part thereof, arose.”

Appellee also relies upon section 29a of article 1995, Acts 40th Legislature (Vernon’s Ann. Civ. St. art. 1995, § 29a), to sustain his venue. This section reads as follows: “(Two or more defendants.) Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. Effective 90 days after June 7, 1927, date of adjournment.” We do not rest our judgment upon this section of article 1995 because of conflicts existing in the opinions of the Courts of Civil Appeals as to its proper construction. These conflicts, in part, were certified to tbe Supreme Court >by the San Antonio Court of Civil Appeals in Commonwealtli Bank & Trust Co. v. Heid Bros., 52 S.W.(2d) 74, 76, opinion by Judge Critz. In answering tbe questions propounded by tbe court’s certificate in that cáse, Judge Critz expressly heid that it was unnecessary “to express an opinion as to whether 29a has repealed 4” of article 1995. If section 4 was not repealed, then, as appéllant was a proper party to this suit, venue could be sustained in Jefferson county under section 4. Again, if the Austin Court of Civil Appeals in Sproles v. Schepps, 26 S.W.(2d) 922, 923, properly construed the term “necessary parties,” as used in section 29a, to mean a joinder of parties “as necessary to prevent a multiplicity of actions,” venue could be sustained under section 29a; but if necessary parties should be construed as the Amarillo court construed it in Umberson v. Krueger, 49 S.W.(2d) 528, 529, as “one so vitally interested in the matter that a valid decree cannot be rendered without his presence,” then venue could not be sustained under section 29a. In the case cited from the Amarillo court, it merely adopted the definition of “necessary party,” given by the Commission of Appeals in Adams v. Bankers’ Life Co. (Tex. Com. App.) 36 S.W.(2d) 182. Without citing further authorities to illustrate the conflict in the construction of this section, we merely refer to the citations given in Shepard’s Texas Citations where all of them are collated.

For the reasons stated the judgment of the lower court is affirmed.


author: HIGGINS, J.

text:
    BATES et al. v. CRANE COUNTY.
    No. 2709.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 20, 1932.
    Appellants’ Rehearing Denied and Appellee’s Rehearing Granted Dec. 8, 1932.
    Appellant Bates Rehearing Denied Dec. 22, 1932.
    See, also (Tex. Civ. App.) 55 S.W.(2d) 614.
    H. O. Williams, J. W. Stovall, and Charles Gibbs, all of San Angelo, for appellants.
    J. B. Cotten, E. D, Smith, and Ed. S. Pritch-ard, all of Crane, and Turner, Seaberry & Springer, of Eastland, for appellee.
   HIGGINS, J.

Appellee brought this suit in the district court of Crane county against the Citizens' National Bank of Odessa, Tex., as principal, and certain individuals as sureties, upon a county depository bond.

On November 18, 1931, judgment was rendered against the bank and the sureties for $25,943.84.

Cost bond upon appeal was filed by certain of the sureties on December 16, 1931. The term at which the case was tried adjourned November 18, 1931. The district court of Crane county may continue in session one week. Acts 41st Leg. c. 19, p. 59, § 2 (Vernon’s Ann. Civ. St. art. 199 — 109).

It will be observed the bond was not filed within the twenty-day period required by article 2253, R. S. The filing of the bond within that time is a jurisdictional matter and necessitates dismissal of the appeal of all the sureties except Geo. F. Bates, administrator of the estate of W. F. Bates, deceased.

The record discloses that all of the defendants are nonresidents of Crane county and the bond was filed in the thirty-day period allowed to nonresidents by article 2253. But the thirty-day period so allowed has no application unless the term may by law continue in session more than eight weeks. It has often been so held by the various courts including the Supreme Court, in an opinion by Justice Pierson. Webster & Son v. Lucas, 117 Tex. 64, 296 S. W. 1089.

The record discloses that administration upon the estate of W. F. Bates is' pending in the county court of Ector county. The appeal by George P. Bates is in his fiduciary capacity as administrator of said estate and he was not required to give bond. Article 2276, R. S. His appeal was perfected by notice thereof which was properly given.

His appeal is therefore before this court for consideration upon its merits.

The facts are undisputed.

At the February term, 1929, the above-named bank was selected by the commissioners’ court of Crane county as the county depository. Bond was given, accepted, and approved with appellants as sureties, which reads:

“The State of Texas, County of--—
“Know All Men by These Presents:
“That The Citizens National Bank of Odessa, Ector County, Texas, as principal, and W. E. Bates, F. A. Henderson, H. D. Cody, Mrs. Lula Satterwhite, Lee Satterwhite and Henry Pegues, and- — , as sureties, are held and firmly bound unto Ben E. Allen, County Judge of Crane County, Texas, and to his successor in office in the penal sum of sixty-five Thousand and no/100 ($65,000.00) Dollars, for the payment of which well and truly to be made in lawful money of the United States of America, we hereby bind ourselves, our heirs, executors and administrators firmly by these presents, both jointly and severally.
“Signed with our hands, sealed and dated this the 23rd day of March, A. D. 1929.
“The conditions of the foregoing obligation are such that whereas the above bounden principal was on the 11th day of February, A. D. 1929, duly and legally chosen by the Commissioners’ Court of Crane County, Texas, as county depository for said County for a period of two years, ending sixty (60) days after the time fixed the law for the next selection of a depository, upon its bidding and agreeing to pay to the County of Crane interest on daily balances kept in said depository of said County of Crane at the rate of two per cent, per annum, said interest payable monthly.
“Now, therefore, if the above bounden principal, The Citizens National Bank of Odessa, Texas, shall faithfully do and perform all the duties and obligations devolving upon it by law as the county depository of Crane County, and shall upon presentation, pay checks drawn on it by the County Treasurer of Crane County, Texas, shall faithfully keep and account for all funds belonging to the County which are deposited with it and all other funds deposited with it under the requirements’ of Chapter 2, Title 47, Revised Civil Statutes 1925, and shall pay the interest at the time and at the rate hereinabove stipulated; and shall at the expiration of the terms for which it has been chosen turn over to its successor all the funds, property, and other things of value coming into its hand as such depository, then and in that event this obligation is to be and become null and void, otherwise to remain in full force and effect.
“Any suit arising out of or in any way connected with this bond shall be tried in the County of Crane and State of Texas, in any court therein having jurisdiction of the subject matter thereof.”

The sixty-day period referred to in the bond expired April 10, 1931.

On February 9, 1931, the commissioners’ court entered an order selecting the same bank as its depository for the next two years upon the making and approval of its bond. Such bond was never given.

On April 14, 1931, the bank closed its doors and suspended business. The moneys for which judgment was rendered was all deposited prior to April 10, 1931. It is not shown the bank dishonored any check drawn upon it by the county treasurer and presented for payment prior to April 14, 1931.

An act of the 41st Legislature (chapter 11; p. 33) effective February 9, 1929 (Vernon’s Ann. Civ. St. art. 2547), provides that the depository bond shall be conditioned as follows: “The condition of the personal bond or bonds, or contract for securities pledged as here-inabove provided, shall be conditioned for the faithful performance of all the duties and. obligations devolving by law upon such depository, and for the payment upon presentation of all checks drawn, upon said depository by the County Treasurer of the county and that said county funds shall be faithfully kept by said depository and accounted for according to law.” This act was in effect upon the date the bond in question was given and approved.

The condition of the bond sued upon is not in the language of article 2547, R. S. 1925, nor of the amendatory act above quoted. But it is a statutory bond and the statute is read into it. The condition will be treated as the statutory one, as appellee contends should be done. New Liberty, etc., v. Merchants’ & Planters’ Bank (Tex. Civ. App.) 273 S. W. 330; American Surety Co. v. Tarbutton (Tex. Civ. App.) 248 S. W. 435; Trinity, etc. v. Lion, etc. (Tex. Com. App.) 229 S. W. 483.

“A surety’s undertaking will not be extended beyond the plain import of its language, unless the law under which it is entered into ascribes to it a more extended meaning. Murfree, Off. Bonds, § 710.” Coe v. Nash, 91 Tex. 113, 41 S. W. 473, 476.

“Many authorities have firmly settled the doctrine that the liability of sureties upon official bonds cannot legitimately be extended beyond ‘the reasonably necessary import of the language’ of the bond, or by inference be made to exceed their express undertaking; their liability being strictissimi Juris.” Brown v. Sneed, 77 Tex. 471, 14 S. W. 248, 252.

In 22 R. O. L. title Public Officers, § 199, it is said; “Limitation of Liability to Defaults in Particular Term. The rule is well settled that where the office of the principal is for a definite term, the surety will be held liable only for a default of the principal during the term for which the bond was given, and this is true although the words of the condition in the bond are general and indefinite as to time.”

In 9 O. J. title Bonds, at section 65, it is said; “Commencement and Duration of Liability. The time when the obligor’s liability under the bond commences and the length of time for which 'it continues depend on the terms of the bond. * * ■* General and indefinite words in the bond will be controlled by a recital specifying the time in which a condition is to be performed, and whether the liability is a continuing one, although the time will not be extended by an implied condition beyond that which it was evidently intended by the terms of the obligation to cover.”

And at section 74, it is said: “As Affected by Term for Which Elected or Appointed. A bond should be restricted by the term of the office or employment so that every new election or appointment should be considered the choice of a new officer or employee, and a new bond should be taken; and it is well settled that, where an officer gives a bond conditioned for the faithful performance of his duties and unlimited as to time, but his term of office is prescribed, such bond is 'only for the term for which the officer has been appointed or elected at the time it is given, and that there is no liability on the bond for any breach of the condition happening after the expiration of the term, although the officer may be continued in office under the same or a new appointment or election, unless the bond is renewed or clearly shows an intention that liability thereon shall continue during successive terms of office to which the officer may be elected or appointed; but this latter rule applies only to a continuous holding of office, as the bond ceases to be in force if there is an interruption in the principal’s holding of the office. ■ Even where there is language in the condition carrying the liability beyond the time .for which the principal is appointed or elected, it is construed with considerable strictness, and liability on the bond continues only for such time as is plainly and explicitly therein specified.”

See, also, 21 R. C. L. §§ 28 and 30, at pages 975 and 980.

It is the duty of the commissioners’ court at the February term, following each general election, to receive bids from those desiring to be selected as the depository of county funds. Article 2544. On the first day of that term it is the duty of the court to select as such depository the one offering to pay the highest interest rate. Article 2546. Withih five days thereafter it is the duty of the selected depositary to give bond or other security. Article 2547, as amended by above-mentioned Act of 41st Leg. c. 11, p. 33 (Vernon’s Ann. Oiv. St. art. 2547).

When the bond' has been given and approved an order shall be made and entered by the court designating the selected one “as a depository of the funds of said county until sixty days after the time fixed for the next selection of a depository.” Article 2549.

Article 2550 provides what shall be done in case no proposals are submitted, or no bid for the entire amount of county funds be made, or all proposals made are declined.

These provisions impose upon the commissioners’ court the duty of receiving depository bids every two years at the February term following each general election and upon the first day of that term to select the bidder offering to pay the highest rate of interest and within five days after the selection of the depository the one so selected is required to give bond and when such bond is approved the successful bidder is to be designated “as a depository of the funds of said county un'til sixty days after the time fixed for the next selection of a depository”; and if no proposals are received, etc., then the court shall deposit the funds and require bond as provided in article 2550.

Sureties upon a depository bond contract with reference to these statutory provisions and are bound thereby. They are likewise entitled to the protection thereof. They have a right to assume the commissioners’ court will do its duty and they know if such duty is performed they will be relieved of liability upon the bond at the expiration of the sixty-day period provided for in article 2549. This sixty-day period is manifestly intended as a period of grace for the benefit of the county during which time the new depository is to be selected, bond given and approved, and liability shifted from the old depository and its bondsmen to the new depository and its bondsmen.

The statutes clearly negative the view that liability upon a depository bond is a continuing one beyond the sixty-day period and we are of the opinion the sureties upon such a bond are not liable for a breach occurring after the expiration of the sixty-day period. Such period ended April 10,1931, and the bank did not suspend business until four days later.

Appellee cite? American Surety Company v. Tarbutton (Tex. Civ. App.) 248 S. W. 435, 438; Farmers’ State Bank v. Brazoria County (Tex. Civ. App.) 275 S. W. 1103, 1105; Smith v. Brazoria County, 115 Tex. 148, 278 S. W. 177, and New Liberty, etc., v. Merchants’ & Planters’ Bank (Tex. Civ. App.) 273 S. W. 330.

The Tarbutton Case was a suit upon the bond of a depository of independent school district funds. The terms of the statute governing that bond required the depository “to serve as such until its successor was ‘duly selected and qualified.’ ” In that ease the selected successor had not qualified and the liability of the bonds were continued until such qualification by virtue of the statute. For this reason the Tarbutton Case has no present application.

The facts in Farmers’ State Bank v. Brazo-ria County are meagerly stated in the opinion, and we cannot determine the date of the alleged breach but from the opinion it seems that no point in that respect was made. The inference we draw from the opinion is that the breach occurred after the two-year period but within the sixty-day period. The court held .that “the life of this bond” was not limited to two years but continued for sixty days thereafter.

New Liberty, etc., v. Bank, does not in any wise support the recovery in this case. Appellants rely upon this case, but we regard it as having no special application to the present facts.

Appellee’s position, briefly stated, is that since the money sued for was all deposited prior to the expiration of the sixty-day period and same has not been accounted for to the county, but lost, the sureties are liable therefor upon their bond.

But as we view it the bond was not a continuing one, but liability thereon was limited to a period of two years and sixty days; no breach during that period occurred and the sureties are not liable for a breach caused by the bank’s failure occurring four days after the expiration of the sixty-day period.

We think the case falls within the well-settled general rule that sureties upon an official bond are not liable for a default of the principal occurring after the expiration of the term for which the bond was given.

No case has been cited, and we have found none, which is directly in point upon the facts; but in support generally of our ruling, see the following: O’Brien v. Murphy, 175 Mass. 253, 56 N. E. 283, 78 Am. St. Rep. 487; State v. Rosman, 84 Mont. 207, 274 P. 850; Pacific County v. Illinois, etc. Co. (D. C.) 234 F. 97; Board of Administrators v. McKowen, 48 La. Ann. 251, 19 So. 553, 55 Am. St. Rep. 275; Moss v. State, 10 Mo. 338, 47 Am. Dec. 116.

The appeal of Lula Satterwhite, Lee Satter-. white, Henry Pegues, and F. A. Henderson, is dismissed because of their failure to file their appeal bond within the time prescribed by law. The judgment against Geo. F. Bates, administrator of the estate of W. F. Bates, deceased, is reversed and here rendered in his favor.

On Rehearing.

Appellee, in its motion for rehearing, for the first time calls attention to a number of cases, consideration of which leads us to the conclusion we erred in our original opinion and ruling.

These cases announce the rule that in suit upon a depository bond conditioned that the depository will account for the deposited funds, the mere fact that the period contemplated by the bond for making deposits may have expired before the failure of the depository does not relieve the sureties upon such a bond from obligation and liability to pay over all funds deposited during the period contemplated for deposits being made. Such obligation continues though the time has elapsed during which deposits might lawfully be made. 22 R. C. L. p. 229, § 8; 18 C. J. p. 589, § 63; U. S. F. & G. Co. v. City of Pensacola, 68 Fla. 357, 67 So. 87, Ann. Cas. 1916B, 1236; School Dist. No. 75 v. Farmers’ State Bank, 182 Minn. 381, 234 N. W. 594; Board of Commissioners v. Citizens’ Bank, 67 Minn. 236, 69 N. W. 912; School District No. 18 v. Stomberg, 61 N. D. 6, 236 N. W. 728; County of Emmons v. Kleppe, 61 N. D. 536, 238 N. W. 651; Equitable S. Co. v. Board of Finance of Jackson Tp., 186 Ind. 650, 117 N. E. 860.

In our opinion these cases announce the correct rule and we erred in our original disposition of the ease.

The sureties, whose appeals were dismissed, have also filed motion for rehearing. They assert that since the judgment of the lower court against Bates was reversed, the same should also be reversed as to them notwithstanding their failure to file appeal bond within the time required by law.

The propriety of such action is considered •and sustained in opinion this day handed down by Chief Justice Pelphrey upon rehearing in the companion case of Bates v. Crane County (Tex. Civ. App.) 55 S.W.(2d) 614.

Such question, however, passes out of the present case by the action taken upon appel-lee’s motion for rehearing. Accordingly, the motion of the sureties whose appeals were dismissed is overruled.

The motion of Crane county is sustained, and the judgment against Bates, administrator, is affirmed.


author: PELPHREY, C. J.

text:
    BATES et al. v. CRANE COUNTY.
    No. 2710.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 20, 1932.
    Appellants’ Rehearing Granted and Appellee’s Rehearing Denied Dec. 8, 1932.
    Appellee’s Second Rehearing Denied Dec. 22, 1932.
    H. O. Williams, J. W. Stovall, and Charles Gibbs, all of San Angelo, for appellants.
    J. B. Cotten, E. D. Smith, and Ed. S. Pritchard, ail of Crane, and Turner, Seaber-ry & Springer, of Eastland, for appellee.
   PELPHREY, C. J.

This suit was instituted by Crane county upon a bond executed by the Citizens’ National Bank of Odessa, Tex., with W. F. Bates, R. N. Henderson, F. A. Henderson, Lula Sat-terwhite, and Henry Pegues as sureties; the bond reading:

“The State of Texas, County of Crane
“Know All Men by These Presents: That we, Citizens National Bank of Odessa, Texas, as principal, and W. F. Bates, R. N. Henderson, Henry Pegues, F. A. Henderson, and Mrs. Lula Satterwhite, as sureties, are held and firmly bound unto Ben F. Allen, County Judge of Crane County, Texas, and his successors in office, in the sum of Eighty Thousand (⅞80,000.00) Dollars, for the payment of which we hereby bind ourselves and our heirs, executors and administrators, jointly and severally by' these presents.
“The condition of the above obligation is such that whereas, the above bounden Citizens National Bank, Odessa, Texas, offered the highest bid of interest on daily balances (1½) per cent and was on Feb. 11, 1929, chosen by the Commissioners’ Court as depository of the funds of Crane County, including the school funds, for the term of two years, beginning January 1st, 1929.
“Now, therefore, if the said Citizens National Bank, Odessa, Texas, shall safely keep and faithfully disburse the school funds according to law, and pay such warrants as may be drawn on said funds, by competent authority, and shall account to them, together with interest thereon at the rate of 1½ per cent per annum calculated on daily balances, to .the Commissioners’ Court of said County and to the State Superintendent of Public Instruction, as is required by law, then this obligation shall be void; but otherwise it shall remain in full force and effect.”

Appellee in its original petition sought to recover the sum of $12,176.45, and by supplemental petition increased its demand to $27,-186.13. All the funds sought to be recovered belonged to common school district No. 1 of Crane county.' Before the suit was instituted W. F.. Bates died and George F. Bates, administrator of his estate, was made a party defendant.

Upon a tz'ial before the court, judgment was rendered against appellants for the full amount claimed.

Opinion.

The first proposition advanced by appellants is that the funds involved belonging to the school district, the commissioners’ court was without capacity to maintain the suit to recover them.

With this proposition we are inclined to agree.

As said by this court in Watson v. El Paso County, 202 S. W. 126, 127: “The county did not own the funds collected by Watson for common school districts, and had no authority to recover same. The trustees of the various districts were the proper parties plaintiff.”

It will be noted here that Crane county is not made an obligee in the bond and nowhere sues for the benefit of the school district, consequently we fail to see how, it not being the owner of. the funds, and not named in the bond, can maintain a suit thereon.

If we be wrong in this, then we think there can be no recovery in this case for the reasons set out in the case of George F. Bates, Adm’r, et al. v. Crane County (Tex. Civ. App.) 55 S.W.(2d) 610, this day decided by this court.

The appeal bond of the several sureties, with the exception of George E. Bates, not having been filed within twenty days, their appeals must be dismissed for want of jurisdiction.

The judgment of the trial court against George E. Bates, administrator, is reversed, and judgment here rendered in his favor.

Reversed and rendered.

On Rehearing.

Eor the reason stated in opinion this day handed down by Justice Higgins in the companion case of Bates, Administrator, v. Crane County (Tex. Civ. App.) 55 S.W.(2d) 610, No. 2709, we are of the opinion we erred in our original opinion holding that the sureties were not liable to appellee because the breach of the bond occurred after the two-year and sixty-day period.

The bond in this case covers common school district funds and is governed by article 2S29, R. S. 1925, which provides that the bond “shall be conditioned that the depository will faithfully perform its duties under this title, and shall safely keep and faithfully disburse the school fund according to law, and pay such warrants as may be drawn on said fund by competent authority.”

AVhile the statutory condition is different from the one in cause No. 2709, we think it is broad enough to impose upon the depository and its sureties the obligation to pay all moneys deposited during the two-year and sixty-day period.

Appellee also insists that since the capacity of Crane county to maintain the suit is not questioned by plea in abatement, we erred in holding the county could not maintain the suit. The question involves no want of capacity to sue, but rather a failure to show a cause of action vested in Crane county. The county is not the obligee in the bond. The funds in controversy as shown by the court’s findings belong to the Crane county common school district available fund and sinking fund. Those funds belong to the common school district and not to Crane county. As to this phase of the case, however, there may be some doubt, and for this reason we will set aside our judgment finally disposing of the case and will remand it for further proceedings. If Crane county can properly sue for these funds, it should do so for the use and benefit of the common school district. See opinion in Watson Case (Tex. Civ. App.) 202 S. W. 126, 127, where this court in passing upon the right of El Paso county to recover upon a tax collector’s bond, funds belonging to drainage districts, said: “However, such recovery cannot be had upon an allegation that such funds belonged to, and had been collected for, the county.” See, also, Steusoff v. Liberty County (Tex. Civ. App.) 34 S.W.(2d) 643, at page 648.

Upon remand the common school district can join in the suit as a party plaintiff and Crane county can also amend its pleadings so as to show it sues for the use and benefit of the common school district.

By such procedure the proper parties plaintiff will certainly be before the court and this question in the case eliminated.

The sureties whose appeals were dismissed insist that since the judgment against Bates was reversed the same should be reversed also as to them. This insistence we think is correct.

The authorities support the view that when a reversal as to one defendant is ordered and the manifest justice of the case requires that the judgment appealed from be treated as an entirety, and the judgment reversed as to all defendants, such course will be followed. Hamilton v. Prescott, 73 Tex. 566, 11 S. W. 548; Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895; Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074; Valee v. Joiner (Tex. Com. App.) 44 S.W.(2d) 983; Leonard v. Prater (Tex. Com. App.) 36 S.W.(2d) 216; Wallace v. Dockery (Tex. Civ. App.) 284 S. W. 258; Mosler Safe Company v. Atascosa County (Tex. Civ. App.) 184 S. W. 324; Ferguson v. Dickinson (Tex. Civ. App.) 138 S. W. 221; Lipshitz v. Lindsay Nat. Bank (Tex. Civ. App.) 33 S.W.(2d) 874; Thomas v. Basden & Carrell (Tex. Civ. App.) 4 S.W.(2d) 336; Mergenthaler L. Co. v. McClure (Tex. Civ. App.) 9 S.W.(2d) 198; Id. (Tex. Com. App.) 16 S.W.(2d) 280; Irwin v. Auto F. Co. (Tex. Civ. App.) 40 S.W.(2d) 871.

In accordance with the views expressed in this opinion, our former judgment of dismissal as to certain defendants and reversal and rendition in favor of Bates is set aside, and it is now ordered that the judgment of the lower court is reversed as to all defendants and remanded for retrial.