author: LATTIMORE, J. MORROW, P. J.

text:
    RAULIE v. STATE.
    No. 15161.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Dec. 21, 1932.
    Moore & Wilson, of Amarillo, for appellant.
    Meade E. Griffin, Dist. Atty., of Plainview, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for robbery; punishment, twenty years in the penitentiary.

There are a number of bills of exception in the record. There was objection to the introduction of appellant’s confession on the ground that same could only be used in connection with a trial for the substantive offense stated in the warning given to appellant, as that charged against him. In other words, it appears that in said warning it was stated that appellant was charged with being an accessory to assault to murder, while on the instant trial he was tried for robbery, hence the confession was not admissible. This trial was for the same acts, transaction, and offense for which appellant was then charged. Without discussing the matter, this court seems to have uniformly held against such contention. Knuckles v. State, 55 Tex. Cr. R. 6, 114 S. W. 825; Johnson v. State, 67 Tex. Cr. R. 95, 149 S. W. 190; Coomer v. State, 97 Tex. Cr. R. 102, 260 S. W. 568; Phillips v. State, 102 Tex. Cr. R. 197, 277 S. W. 679; Pretre v. State, 112 Tex. Cr. R. 463, 17 S.W.(2d) 42.

In bill of exception No. 2 appears complaint of the fact that the state’s attorney had brought into the courtroom a suit of clothes, to the introduction in evidence of "which appellant objected, and that the state’s attorney continued to ask questions relating to said suit of clothes after the jury had been returned after they were withdrawn and it had been developed in their absence that there was a search of appellant’s residence and under it, without a search warrant. The bill of exception states that the court concluded that the search of said private residence was illegal, and that all evidence obtained by such search was in violation of law, and particularly that the clothes should be removed from the courtroom and not used in evidence. It further appears that after this ruling was made the district attorney introduced in evidence the confession of the accused, and certain oral statements made by him by means of which evidence was discovered which tended to connect the accused with the crime. The complaint appearing in the bill of exception is that the state’s attorney repeatedly asked thereafter about the things that were found at and under appellant’s house. In the qualification of the bill it is stated at length that the clothes under the house, certain shoes, a .41 caliber pistol shell, and certain other evidence of some one having been under the house and fed there, were found as a result of statements made by appellant while in jail, both in the written confession and in oral statements. That such matters were conducive to establish appellant’s guilt was clear. That they were not found by any search made before appellant confessed and made the statements referred to, is also clear. In the qualification of the hill it is certified by the court that the clothes under the house were found as a result of statements made by appellant while in jail; that appellant told the officers while in jail to go search for and find the things, and that it would not be necessary to obtain a search warrant; that, after having so told the officers, they found under the home of appellant the clothes, shoes, -shell, etc., the questions regarding which are objected to in this bill of exception. As qualified we do not think the bill of exception presents any error.

On the same night of the alleged robbery at about 2 a. m., during which it appears that the robber’s hand was cut by glass and bled freely, it was in testimony that about 4 or 5 o’clock a. m. Flynn, the robber, went to the house of a Miss Dunaway and wished to call Mrs. Raulie over the telephone. The witness informed him that she had no phone, but that he could find one not far away. The next morning she discovered blood on her step and porch. Complaint of the reception of this evidence is in bill of exception No. 4. It was also in testimony by a Mr. Rose that he was night watchman in a mill, and about the hour mentioned, to wit, 4:30 or 5 o’clock a. m. on the night of the robbery, Flynn came to his place and telephoned to the Raulies and got witness to put down for him on a piece of paper a street number obtained over the phone. This witness also observed that Flynn was bleeding and had his hand wrapped up in a handkerchief. Complaint of the reception of this testimony appears in bill of exception No. S. At the time this testimony was introduced appellant was on trial upon an indictment containing two counts; one charging robbery, and the other with being an accessory to the crime of robbery. The testimony was pertinent and permissible. The fact that at the close of the testimony in the case the state elected to prosecute upon the first count charging appellant with robbery, would not seem to render effectual appellant’s complaint in either of said bills of exception in view of the fact that no request appears to have been made after the state made its election, to have the jury instructed not to consider the testimony. In our judgment the testimony would have been admissible even had such request been made.

If the state’s theory be correct in this case, appellant and one Flynn were operating together, in pursuance of a conspiracy, to rob« the members of a group of men who were engaged in a crap game at about 2 o’clock in the morning of February 15, 1931, in the town of Plainview. The testimony shows that appellant had brought Flynn from Clovis, N. M., to Plainview that day; that he had supplied Flynn with a suit of clothes and a handkerchief, and had brought him down town and left hinr about 4 o’clock in the afternoon of the day preceding the night of the robbery, and had seen him again at 9 o’clock that night. The testimony further discloses that about 10:30 that night appellant had carried one Cawthorn home in his car. Cawthorn testified that appellant had in the car at that time a pistol which he stated to Cawthorn was loaded. He exhibited the pistol to Cawthorn. At about 11:30 p. m. appellant went to the place where the gambling was going on and engage^ in the game, stating at the time that he wanted to be notified when 1 o’clock came as he had an appointment. At 1 o’clock he left the room, saying he was going to get some whisky, returned with some whisky, and presently left the room again and came back, and in a few minutes thereafter Flynn knocked at the door, came in, breaking the glass in the door, holding in his hand a pistol, and commanded the party to put their hands up, and proceeded to go through their pockets. Appellant put up his hands along with the others, and the testimony of a number of witnesses was to the effect that appellant fussed, lacked, and hit at and abused Flynn while he was going through his pockets, but did nothing further. The testimony shows that after having gone through the pockets of two or three of the party Flynn approached Cawthorn who threw himself through the door of the bath room and on the floor, at which time Flynn began shooting toward the left or north; this appellant being toward his right and south. Flynn shot three members of the party, and then left the room. The pistol was picked up just outside the house, and was identified as appellant’s pistol. In his confession appellant admitted that the pistol was his, and claimed that Flynn had stolen it from him that night. Cawthorn testified that the pistol found outside the door was very much like the pistol he saw in appellant’s possession at about 10:30.

Without setting out at greater length the facts in this case, they seem sufficient to support the conclusion reached by the jury that appellant and Flynn were coprincipals working together to rob the parties engaged in said game. Manifestly the object of the robbery would be the acquisition of the money of said parties, and the object of the conspiracy would not be complete until the money so obtained had been divided between the parties thereto. The movements of Flynn and his efforts in the nighttime to locate and get back to the home of appellant would be provable as circumstances affecting the question of the acting together of appellant and Flynn. In his confession appellant admitted that when he got home after the robbery he found Flynn there, and that Flynn was wearing a suit of clothes furnished him by appellant. Appellant claimed he . made Elynn give up the clothes, but further said he concealed Flynn under his house, and put the clothes under there with him, and that he told his wife to keep Flynn out of sight and not let anybody get to him while he was under the house.

Appellant’s bills of exception Nos. 5, 6, 7, 8, and 9 complain of arguments made by the prosecuting attorney. Each of these bills is qualified at length. A discussion of the arguments complained of and of the contentions of appellant regarding same would occupy space which we do not deem the questions involved of sufficient importance to require. We do not believe any of the arguments of such character as should call for a reversal of the case.

Believing the evidence sufficient to justify the jury’s conclusion of guilt, and that no reversible error appears, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing, specific complaint is made of the treatment of paragraphs 8 and 9 of the court’s charge, which we quote as follows:

“You are instructed that in this State no person can be convicted upon his statement alone unless you believe, beyond a reasonable doubt, that such statement is true, and that said statement connects the defendant with the commission of the offense, as charged in the indictment, and then you cannot convict the defendant unless you further believe from the evidence, beyond a reasonable doubt, that there is other and additional evidence in the case corroborative of such statement, connecting the defendant with the commission of said offense, as alleged in the indictment, which establishes to your satisfaction, beyond a reasonable doubt, that the offense with which the defendant is charged was committed, and that the defendant is guilty of the commission of said offense. Therefore, unless you believe from the evidence, beyond a reasonable doubt, that the statement purporting to be signed by the defendant, introduced in evidence, is true and that it connects the defendant with the commission of the offense, as alleged in the first count of the indictment, and that you further find and believe from the evidence, beyond a reasonable doubt, that there is other evidence in the case, independent of said statement, and corroborative thereof, which establishes to your mind, beyond a reasonable doubt, that the offense with which the defendant is charged, was committed, and that the defendant' committed said offense, as alleged in the indictment, either alone or acting together with Mickey Flynn as a principal, you will acquit the defendant, and say by your verdict not guilty.”
‘•‘You are further instructed by'the Oourt that when a statement, or confession, of a defendant is introduced in evidence by the State, and when such statement, or confession, contains exculpatory or mitigating ■statements, then the whole of such a statement, or confession, is to be taken together as true; and, the State is bound by such exculpatory or mitigating statement unless such exculpatory statements or mitigating statements are proven, from the evidence, beyond a reasonable doubt, to be untrue; and, if you have a reasonable doubt thereof, you will acquit the defendant, and return a verdict of not guilty.” ■

The appellant’s written confession was introduced in evidence. It appears therein that the appellant resided at 1507 West Fifteenth street in the city of Plainview, Tex.; that he was present at a “crap game” at Joe Ferrell’s house on the night of February 14, 1931; that he was acquainted with Joe Kelley, alias Mickey Flynn, and about 3 or 4 o’clock in the afternoon had brought Kelley from the appellant’s house to a barber shop, and there provided him with one of the appellant’s suits of clothes. About 9 o’clock at night, Kelley was seen by the appellant to pass Pierce’s Café. At the time of the robbery, the man who committed the offense was not seen by the appellant, as ¡his face was turned to the wall. Before returning to his home, the appellant delivered the keys to his automobile to Barto Oawthom. When the appellant reached his home about 6 o’clock in the morning, Kelley was there. From the confession we quote: “When I got home on Sunday morning, this Joe Kelley, or Mickey Flynn, was at my house. This fellow had his hand cut, but I could not say for sure which of his hands it was that was cut, but he had one pretty badly cut. Flynn then told me that he and Barto had framed this hold-up, and that when Barto jumped through the door he got nervous and started shooting. I then tore my clothes off Flynn, and made him get under the house at my place, and I put my. clothes down under the house with him. I told Flynn to stay down there under the house, and I fed him two or three times, and Flynn told me about the hi-jacking, and that he give all the money to Barto. The pistol which the officers showed to me last night, was my pistol, and I had gone to town. The last time I saw Flynn he was still under my house, and I have not seen him. Flynn told me that whoever took him was going to take him to out around Melrose, N. Mex. I told my wife to keep Flynn and not let nobody get away with him, and not say nothing about it, and she said she would not. When I first got home, my wife said Mick is in there in the toilet, and I went In there and then is when I tore the clothes off him. I brought Mickey from my folks’ house near Clovis to Plainview Saturday.”

In criticism of the eighth and ninth paragraphs of the court’s charge, appellant claims that the court assumes that the confession was wholly inculpatory in its bearing upon the first count of the indictment, when, according to the appellant’s claim, the confession was exculpatory to the ef-. feet that the appellant’s first connection with the robbery was after its commission. With the appellant’s interpretation, we find ourselves unable to concur. The summary of the evidence set forth in the original opinion makes manifest that the conclusion of the jury that the appellant was present at the time the robbery was committed was justifiable. The appellant’s presence at the time of the robbery cannot be ignored in appraising his confession as to its bearing upon the issue of a conspiracy. It was upon circumstances that the state relied, and the jury was given a proper charge upon the law of circumstantial evidence. In article 69, P. 0., it is said: “Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.”

The evidence adduced upon the trial, including the appellant’s confession, is deemed sufficient to have brought the appellant within the provisions of the statute mentioned, and warranted the jury in the conclusion reflected by the verdict, namely, that the appellant and Elynn were principal offenders within the meaning of the law. Among the illustrative cases are Rowan v. State, 97 Tex. Cr. R. 130, 260 S. W. 591; Coomer v. State, 97 Tex. Cr. R. 588, 262 S. W. 495; Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: . HAWKINS, J.

license: Public Domain

text:
    ESCARINO v. STATE.
    No. 15455.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    W. Joe Bryan, of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . HAWKINS, J.

Conviction is for burglary; the punishment having been assessed at five years in the penitentiary.

The indictment contains two counts — the first charging a nighttime burglary of a private residence; the second charging ordinary burglary. The court submitted to the jury the second count only.

One proposition upon which appellant presents his appeal is that the evidence does not support the conviction. The evidence for the state shows that Mrs. Simmons was operating a hotel in the second story of a building situated in the city of El Paso. Á stairway led up into a hall from which a door opened into the hotel office.- There was a window also between the office and the hall. As we understand the record, there was no sash in the window,' but the opening was protected by heavy screen wire over it. From the office, a doorway opened into Mrs. Simmons’ living room, and adjoining this was her bedroom. No door shutter was in the opening -between the office and the living room, but curtains were hung in this doorway. When Mrs. Simmons retired for the night,- she closed and locked the door from the office into the hall. About 3 o’clock in the morning, Mrs. Simmons heard two men coming np the stairway making quite a little noise. After a while she went to investigate the matter, thinking it was some one looking for rooms. When she got in the office, she saw appellant in the office crouching down beside a desk. She opened the door, went into the hall, closing the door and leaving appellant in the office. She called for help, and two young men who were rooming there came to her assistance. In the meantime appellant had gone from the office back into the bedroom of Mrs. Simmons, and the young men found him in a closet, standing on a trunk, with his head and shoulders out through a transom, trying to get out of the room. They took charge of him, the police were called, and appellant was turned over to them. It was discovered that the screen wire over the window leading from the office into the hall had been torn loose at one comer, and it was here that appellant had entered the office. Nothing had been stolen. If any one other than appellant was found in the rooms, no mention is made of it in the record.

We cannot sustain appellant’s contention that the evidence is not sufficient to support his conviction for burglary with intent to commit theft. Authorities supporting the holding will be found collated in section 2344, Branch’s Annotated Texas Penal Code. Among the authorities cited will be found Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756. Appellant testified that he had been drinking on the occasion of the incident leading to his arrest, and that he was very drunk; that he had no recollection of leaving the place where he had been drinking, nor of going into the office of the hotel, nor of trying to get out through the transom in the closet. The court pertinently told the jury that, although appellant might have effected entry into the office by a “breaking,” yet they could not convict unless they believed from the evidence beyond a reasonable doubt that he entered the office with the intent to commit the crime of theft. The intent with which appellant made the entry was a matter for the jury’s determination, and we would not be authorized, under the circumstances, in disturbing their finding.

In an amended, motion for new trial, appellant set up newly discovered evidence, and attached to the motion affidavits of panties who were drinking with him on the night of the burglary, the affidavits stating that appellant was so drunk he did not know what he was doing. If these affidavits could be considered, we think no proper diligence was shown regarding the proposed testimony. If appellant was so drunk, as claimed by him, as to have no memory of the events leading up to his discovery in the hotel office, certainly after he sobered up he knew where he had commenced drinking, and with whom, and the slightest diligence would have' disclosed what they claimed in their affidavits to have been appellant’s condition on the occasion in question. We might say here that Mrs. Simmons and the two young men who apprehended appellant all testified that they noticed nothing about appellant which led them to believe that he was drunk.

After having examined the affidavits of the claimed newly discovered witnesses, we note that all of the affidavits, as well as the amended motion for new trial, are sworn to before appellant’s attorney. This is not permissible. Eor collation of authorities, see' Branch’s Annotated Texas Penal Code, § 194, and note 12, under article 756 (old article 840), Vernon’s Annotated Code of Criminal Procedure of Texas, vol. 3. See, also, Kellum v. State, 91 Tex. Cr. R. 664, 240 S. W. 1109, and Siebe v. State, 92 Tex. Cr. R. 605, 244 S. W. 1013.

In view of the fact that the conviction was for ordinary burglary, our state’s attorney calls attention to an expression used by Mrs., Simmons in giving her testimony, which was that “the particular part of the house that was entered was my private residence.” It is true Mrs. Simmons used the expression quoted, but her testimony, taken in its entirety, shows that the entry was made into a room used by her as an office in conducting the business of operating a hotel. The office was connected with rooms used by her as living and sleeping quarters, and, if the burglarious entry had been made into one of these rooms, we would have a situation like that presented in Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763, and in Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703. The present case, under the facts, is more like that of Alinis v. State, 63 Tex. Cr. R. 371, 140 S. W. 227. There the house entered was a storehouse in which a restaurant was conducted. By partitions the house was divided into three rooms, in one of which the cooking was done, in another the meals were served to customers, and the third room was used as living quarters by the proprietor and his wife. The burglarious entry was made into the cook room. It was held that, under the circumstances, the room entered was not a private residence. In the present case we think the court not in error in submitting the case upon the count charging ordinary burglary instead of the count charging burglary of a private residence.

The judgment is affirmed.


author: FUNDERBURK, J. HICKMAN, C. J.

text:
    FARMERS’ NAT. BANK et al. v. DUBLIN NAT. BANK et al.
    No. 969.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 7, 1932.
    Rehearing Denied Dec. 16, 1932.

      Bryan, Stone, Wade & Agerton, of Fort Worth, and R. L. Thompson, of Stephenville, for appellants.
    Fred C. Chandler and Chandler'& Keith, all of Stephenville, Arthur R. Bidson, of Hamilton, and J. A. Johnson, of Stephenville, for appellees.
   FUNDERBURK, J.

Originally this suit was brought by the Dublin National Bank (hereinafter called the Dublin National) against R. H. Stephens upon a promissory note for the principal sum of $5,-633.15, and for foreclosure of a chattel mort‘gage lien upon certain cattle. W. W. and Bart Oats (hereinafter referred to as the Oats) were also made defendants, and damages claimed against them in the sum of $3,245 for an alleged conversion of 76 head of the mortgaged'cattle. By a first amended original petition the plaintiff brought in the Farmers’ National Bank of Dublin (hereinafter referred to as the Farmers’ National) and Mack Morgan, sheriff of Hamilton county. The Farmers’ National was joined because it claimed a mortgage on the same property and there was also asserted against it a claim for damages on the ground that it had participated in the conversion of a portion of the cattle. Injunction was sought against the Oats to restrain further prosecution of a suit which they had instituted in Hamilton county against the Dublin National, the Farmers’ National,, and said Mack Morgan, sheriff, claiming a wrongful sequestration of part of the cattle by the Dublin National. In its third amended original petition plaintiff'brought in as other parties defendant Breedlove Livestock Commission Company, a partnership, and the individual members composing it (which Breedlove Livestock Commission Company, including the individual members, will hereinafter be referred to as the commission company), and besides amplifying the former allegations, charged a joint conversion by defendants R. H. Stephens, the commission company, and the Farmers’ National of 56 calves covered by its mortgage, and which calves were sold by the commission company in Fort Worth, Tex., about January 8,1930.

The- commission company filed a pies of privilege, which was duly controverted by plaintiff on the ground that the Farmers’ National, a resident defendant in the county of the suit, was a joint conversioner with said commission company. Subject to that plea it further answered, among other things, that R. H. Stephens, the mortgagor, sold the cattle with the consent, express or implied, of plaintiff, thereby waiving its lien, if any there was. In the alternative, by way of cross-action against the Farmers’ National, it alleged facts to show a mutual mistake in the payment to the latter and acceptance by it of the proceeds' of sale of said 56 calves, or that R. H. Stephens was the agent of said bank, or that the bank had fraudulently accepted such proceeds, by reason whereof the amount of the payment was claimed as for money had and received.

The Oats answered, claiming the cattle which plaintiff had sequestered, but in the alternative and by way of cross-action against the Farmers’ National, claiming damages in the amount of $2,000, the purchase price of the cattle paid to said bank upon its representations and statement to them that it held a mortgage on said cattle, when in fact the plaintiff held the mortgage.

The Farmers’ National answered, first, by a plea in abatement, because of the pendency of the Hamilton county suit against it by the Oats (i. e., the suit which the plaintiff herein sought to enjoin). Subject to its said plea in abatement, it claimed as against the plaintiff that the latter had no mortgage lien on any of the cattle; that said defendant did have a valid mortgage, and, in any event, that the mortgage of said defendant was superior to that claimed by the plaintiff. For further answer it adopted, by reference, the allegations pf its answer to the cross-action of the Oats. In reply to the cross-action of the Oats it alleged that the Oats’ cause of action, if any, was against plaintiff for a number of reasons, namely: (1) Because the latter had no valid lien; (2) because it had consented for Stephens, the mortgagor, to sell the cattle, and had ratified several sales by him over a period of years, wherefore the lien was waived and plaintiff estopped to assert same; (3) that the cattle were not included in plaintiff’s mortgage ; (4) that the Oats were negligent in not ascertaining the existence of plaintiff’s mortgage, wherefore the payment of the $2,000 purchase price for the cattle to it was voluntary and induced by no false representations.

The plea in abatement of the Farmers’ National was overruled and exception taken. A motion for continuance of the Farmers’ National, on the ground that it had not been cited to answer the cross-action of the commission company and had not waived service of citation nor entered its appearance to same, so as to require it to answer ready for trial at that time, was likewise overruled and due exception taken to such action. By agreement of all parties the plea of privilege of the commission company was tried with the main case.

The jury to whom the issues of fact were submitted found: (1) That 56.calves sold by the commission company on January 8, 1930, were included in plaintiff’s mortgage dated October 21, 1929; (2) that the 37 cows, 37 calves, and one bull sold by R. H. Stephens on September 5, 1930, to the Oats, were included in said mortgage, the debt secured being for thé original purchase price of said cattle; (3) that neither the said 56 calves, nor (4) the 37 cows, 37 calves, and one bull were covered by any mortgage of the Farmers’ National; (5) that Joe Little for the Farmers’ National participated in the sale of the cattle on September 5, 1930, to the Oats; and (6) that he participated in the sale of January 8, 1930, by the commission company; (7) that E. W. Harris, president of the plaintiff bank, did not consent (expressly or impliedly) to the sale of cattle to the Oats, nor (8) the sale of the 56 calves by the commission company; (9) that said R. H. Stephens, in the sale of the 56 calves, was not acting as agent of the Farmers’ National; (10) and (11) that the sale price of .the 56 calves and of the 37 cows and 37 calves and one bull was the fair market value of same; ■ (12) that Joe Little, cashier of the Farmers’ National, stated to Bart Oats that his bank had a mortgage on the cattle the latter was proposing to buy, and that it was agreeable with said bank for Oats to purchase cattle from Stephens, provided the consideration of $2,000 was paid to said bank; (13) that by reason of such statement, the Oats were induced to pay the consideration of $2,000 to said bank; and (14) that the description of the cattle in plaintiff’s mortgage was sufficient to enable one to locate and recognize the cattle by aid of inquiry based on what the mortgage itself indicated.

The judgment of the court recites an election of the plaintiff “to foreclose its mortgage and mortgage lien upon all of the cattle which it now has in its possession, by virtue of the levy of the writ of sequestration herein, and for its damages for the conversion of all the other cattle covered by its mortgage and mortgages.” It was adjudged that plaintiff recover of R. H. Stephens the principal, interest, and attorneys’ fees on the note, together with a foreclosure against all the defendants of the mortgage lien on 37 cows, 25 calves, and one bull, with order of sale, etc.; that plaintiff recover of the Farmers’ National, the Oats, and R. H. Stephens, jointly-and severally, the market value of 13 head of calves “sold by the defendant Oats, since said calves were acquired by them, which amount is the sum of $247.00,” with interest, etc. That plaintiff recover of R. H. Stephens, the Farmers’ National, and the commission company, $2,333, with interest, costs, etc.; that the commission company recover over against Farmers’ National the said sum of $2,333, if the former was required to pay it; that the Oats recover upon their cross-action against the Farmers’ National the sum of $2,000 with costs, etc., provided the Oats pay to plaintiff bank the said sum of $247. The judgment also permanently enjoined the prosecution of the Hamilton county suit, decreeing that all matters in said suit as to all parties were litigated in the instant suit.

The Farmers’ National and the commission company have appealed. The Oats did- not appeal, but have elected, as appellees, to stand upon their judgment on their cross-action against the Farmers’ National.

So many propositions and counter propositions of such complicated nature are urged that we shall not undertake to state and discuss each of them separately.

The action of the court in overruling the plea of privilege of the commission company we think was correct. The jury found that the Farmers’ National, a resident of Erath county, participated in a conversion of the mortgaged cattle, along with R. H. Stephens. We have concluded that the evidence did show a joint conversion by the Farmers’ National and the nonresident parties charged with the conversion of the 56 calves. We omit further discussion of the matter here, as it will be taken up later.

The Farmers’ National was not prejudiced by the overruling of its plea in abatement. In the Hamilton county suit it was urging its privilege to be sued in Erath county. The judgment herein permanently enjoins further prosecution of that suit. The issues involved were declared to be the same. It therefore affirmatively appears that the purposes of the plea of privilege in the Hamilton county suit were effectively accomplished and the liability of the Farmers’ National has been litigated in the county of its residence. The action of the court in permanently restraining further prosecution of the Hamilton county case is not challenged in this appeal.

As a defendant in the case, the Farmers’ National, having been subjected to the jurisdiction of the court so as to require it to answer or respond to the demands of the plaintiff, was required to take notice of the filing of the cross-action of its codefendant, the commission company. As we pointed out in Cornelius v. Early, 24 S.W.(2d) 757, a different rule has been recognized as applying to plaintiffs and defendants in this respect. That difference, although apparently arbitrary, was recognized and reaffirmed by the Supreme Court in Early v. Cornelius, 120 Tex. 335, 39 S.W.(2d) 6. There was therefore, we think, no error in the action of the court in overruling the motion for continuance.

The contention that the mortgage of the Dublin National Bank was not sufficient as constructive notice, because the copy filed in Hamilton county was witnessed by C. E. Beatherwood, cashier and stockholder of the mortgagee bank, cannot be sustained. We regard the law as settled that the fact of interest of a subscribing witness in the subject-matter not appearing by the mortgage itself, does not prevent the registration of the mortgage from constituting constructive notice. No question is presented of the validity of the mortgage, nor of its admissibility in evidence. The question is whether or not the effect of the registration of the mortgage as constructive notice could be destroyed by parol testimony that one of the subscribing witnesses was cashier and a stockholder of the Dublin National. We regard the question of the validity of constructive notice, under the conditions and circumstances here presented, as having been settled, since the decision in Titus v. Johnson, 50 Tex. 224. See, also, 1 C. J. 773, § 55; Coffey v. Hendricks, 66 Tex. 676, 2 S. W. 47; Southwestern Mfg. Co. v. Hughes, 24 Tex. Civ. App. 637, 60 S. W. 684; Henke v. Stacy, 25 Tex. Civ. App. 272, 61 S. W. 509; Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Peterson v. Lowry, 48 Tex. 408.

The most important question in the ease, measured by its effect upon the various issues involved, and the proper judgment to be rendered, is that arising upon the contention of the appellant Farmers’ National, to the effect that the undisputed evidence showed that R. H. Stephens, the mortgagor, made the two different sales of the cattle — one of 37 cows, 37 calves, and one bull, to the Oats, and the other of 56 calves to unknown parties by and through the commission company— with the consent of the mortgagee, Dublin National. We have concluded that, as to the sale of the 56 calves, there being no evidence of express consent, the evidence of facts from which consent could be implied was not such as to show implied consent as a matter of law. We understand the rule to be that, when the ultimate fact in issue is one to be determined as an inference or implication from other facts in evidence, it is only when but one reasonable inference can be drawn from the undisputed facts that the court is warranted in holding the inferred fact to be conclusively shown as a matter of law. The jury would, we think, from the undisputed evidence of the custom of permitting mortgagors of cattle to make sales and pay over the proceeds in discharge of the mortgage debts and the admitted course of dealing covering about three years between Stephens and the Dublin National in conformity with that custom and practice, have been warranted in finding that the mortgagee impliedly consented that Stephens sell the cattle. But we are not prepared to hold that such consent was established, as a matter of law, contrary to the finding of the jury.

On the other hand, as to the sale of the cattle to the Oats, we have concluded that the undisputed evidence showed express consent of the mortgagee to the sale of the cattle. Mr. E. W. Harris, president of the mortgagee bank, testified, in effect, that, about the first of September, 1930 (i.- e., about four days before the sale in question was made), he had a conversation over the telephone with Mr. James, of a Hamilton bank, in which he told Mr. James to tell Mr. Stephens to go ahead and sell those cattle and bring the check in; that James did not tell him'whom he proposed to sell the cattle to, and he did not ask him; that the proposed sale price was such as to yield about $2,000, a satisfactory price, and the price the cattle were sold for. While, it is true, Mr. James was making the inquiry in behalf of two other prospective purchasers, the evidence conclusively shows that the consent to sell was not limited to any particular persons, and therefore, we think, consent to the sale of the cattle for the price for which they were sold is clearly shown. This being true, the Oats acquired good title to the cattle and the fact that they paid the purchase price to the Farmers’ National is of no controlling importance. Under such circumstances, neither the Oats nor the Farmers’ National could be held liable for a conversion of the cattle.

The appellee Dublin National contends that there was no pleading of a waiver of its lien by appellant Farmers’ National. To this we are unable to agree, since said appellant expressly adopted as a part of its pleading its answer to the cross-action of .the Oats, which clearly alleged the facts to constitute a waiver. But since every part of the judgment under attack in this appeal is one for a conversion of the mortgaged property, we are of opinion that no pleading of a waiver was necessary. A conversion is a tort. It was necessary for plaintiff to prove that the sale of the cattle to the Oats was without its consent. Ewing & Phillips Hdw. Co. v. Cage-Sparks Hdw. Co. (Tex. Civ. App.) 297 S. W. 568. As said in 11 C. J. p. 624: “Where the mortgagee sues a purchaser from the mortgagor for a wrongful conversion of the mortgaged property, the burden is on plaintiff to show that the purchase was without his consent.” Since, if the cattle were sold with the consent of the mortgagee, there would be no conversion, the defendant charged as a conversioner had the right under its general denial to introduce any evidence to show that there had been no conversion, for such would be clearly rebuttal testimony. By such testimony the defendant could show that it was not a wrongdoer, and without proof that it was a wrongdoer there could be no recovery.

Because of the conclusions stated it will be necessary to reverse the judgment of the court below, in so far as it awarded recovery in favor of plaintiff against the Farmers’ National for a conversion of some of the cattle sold to Oats and render judgment for the latter: It also becomes necessary to reverse the judgment in favor of the Oats against the Farmers’ National upon the cross-action for $2,000 and render judgment for Farmers’ National. Unfortunately, we are without power to correct the judgment in so far as it awarded recovery against the Oats for a part of the cattle taken under sequestration and awarded damages for conversion of 13 head of cattle; they not having appealed. Smith v. First State Bank (Tex. Civ. App.) 255 S. W. 511; Fife v. Ins. Co. (Tex. Civ. App.) 283 S. W. 645; Traders’ National Bank v. Clare, 76 Tex. 47, 13 S. W. 183. That part of the judgment must remain undisturbed.

We are unable to sustain the assignment that there was no evidence to justify submission of the issue of whether the Farmers’ National, by its cashier, participated in. the sale of the 56 calves. A general statement of the law applicable to the question is found in 38 Cyc. 2054, as follows: “Every person is liable in trover who personally or by agent commits an act of conversion, or who participates hy instigating, aiding or assisting another (italics ours) or who benefits by its proceeds in whole or in part.” The authorities cited in support of the clause, “or who benefits by its proceeds in whole or in part,” do not seem to us to support it. We do not believe that a case of conversion can be made out by proof only of the receipt and appropriation of the .proceeds of the converted property. In fact, the same authority (38 Cyc.' 2019) in effect so states, as follows: “A receipt of the proceeds or a part thereof, of goods which have been wrongfully converted by a third person, is not a conversion unless defendant participated in the wrongful act or took such proceeds in accordance with a prior agreement, which related to the act of conversion, as well as to the sharing in the proceeds.” We cannot agree with the trial court that Farmers’ National had no mortgage on the cattle. The undisputed record evidence shows that it did have mortgages on all the cattle owned by Stephens in Hamilton county. All the evidence showed that the cattle were in Hamilton county. The good faith therefore of the Farmers’ National must be treated as conclusively shown.

But, regardless of the consent or want of consent to the sale of the cattle by the senior mortgagee, Dublin National, Stephens could not have made a lawful sale without the consent of the Farmers’ National. R. S. 1925, art. 5496. In recognition of this fact he got such consent prior to the sale; Without such consent no title could have passed by the sale free of the lien of the Farmers’ National. But with such consent good title did pass, so far as the last-named bank was concerned. Coupled with the consent was the implied agreement that the proceeds would be used, at least in part, to reduce Stephens’ indebtedness secured by the mortgage. Under the circumstances shown by the evidence this was so clearly implied that it would perhaps have required an express agreement to the contrary to have repelled the inference. The Farmers’ National- had constructive notice of the senior mortgage. We therefore think the conclusion is inescapable that, charged with such knowledge, by giving its consent to the sale, with the implied understanding that the proceeds should be applied, either wholly or in part, to the debt of Stephens to said bank, and in pursuance of that consent and understanding, the actual receipt and appropriation of a part of the proceeds in that way necessarily resulting in a deprivation of the Dublin National of the benefit of its security, constituted such a participation on the part of the Farmers’ National as amounted to a conversion within the principles of law above quoted.

In regard to the judgment in favor of the commission company against the Farmers’ National for the amount of the proceeds of the sale of 56 calves, the check for which was sent to the Farmers’ National, we have concluded that the law and the evidence does not support the right of such recovery. Both parties were equally chargeable with constructive notice of plaintiff’s lien. Each was without actual knowledge of such lien. Contrary to the finding of the jury, we hold, as said before, the undisputed evidence shows that the Farmers’ National had a mortgage on the cattle. There is, therefore, no question of the good faith of the Farmers’ National in crediting the proceeds of the check to the mortgagor, R. H. Stephens, and receiving a portion of its proceeds in discharge of the indebtedness of R. H. Stephens to the bank. An action for money had and received does not lie for the all-sufficient reason, among others, that the money did not belong to the commission company. The money belonged to the plaintiff or R. H. Stephens. The Farmers’ National having received such proceeds under a good-faith claim of right, there could be no implication of an agreement to return it to the commission company (27 Cyc. 859; Id., p. 863; Pumphrey v. Hunter [Tex. Civ. App.] 270 S. W. 237, 240), and certainly could not maintain that action when it had no right to the fund.

We are therefore of opinion, in addition to the disposition of the case already indicated, that the judgment of the plaintiff against the commission company, the Farmers’ Na-. tional, and R. H. Stephens' for conversion of 56 calves must be affirmed, and that the judgment for recovery over by the commission company against the Farmers’ National must be reversed and rendered for the latter, all of which is accordingly so ordered.

On Rehearing.

Nothing new is presented in the motion for rehearing of the Dublin National, and same will not be discussed.

In response to the motion of appellees the Oats for a rehearing, we have sought diligently to find some recognized principle of law to enable us to grant' them relief against a part of the judgment in which they and their coappellee, Dublin National, are alone interested, and from which neither of said parties has appealed nor counter-assigned errors. The part of the judgment referred to is that which awarded the Dublin National a foreclosure of its mortgage upon the cattle which had been taken into its possession and from the possession of the Oats, under a writ of sequestration. It will be recalled that the Oats asserted a cross-action against the Dublin National for the possession of the said cattle, and in the alternative a cross-action against the Farmers’ National for recovery of the purchase price of 76 head of cattle, of which the 63 head involved in the foreclosure were a part.

The Oats, apparently content to abide the judgment of the Dublin National against them for the foreclosure, inasmuch as they had judgment upon their alternative cause of action against the Fanners’ National, did not appeal, and, of course, have not cross-assigned any errors. The ground upon which we have reversed that part of the judgment rendered in favor of the Oats upon their alternative cross-action against the Farmers’ National would at the same time require a reversal of that part of the judgment awarding a foreclosure of the mortgage, if we have the jurisdiction to do so. The question is: Can we disturb the last-named part of the judgment in the absence of any appeal by either of the coappellees or cross-assignments of error? In so far as the question may involve a matter of discretion, we elect to exercise all the discretion, if any we have, in favor of granting the relief sought. This narrows the inquiry to one of our power or jurisdiction tó do so.

Appellate courts do not have jurisdiction independently of the manner of invoking it to correct every error that may occur in the trial of a case. As well said by Judge Speer in Blackmon v. Trail (Tex. Com. App.) 12 S.W.(2d) 967, 968: “The jurisdiction of our appellate courts is statutory (or constitutional), and they can exercise no power that is not conferred upon them by law. There is no statute giving to any of our appellate courts a general revisory power over the trial courts. Their authority to reverse judgments is limited to errors duly assigned or apparent upon the face of the record, commonly called fundamental error.” That Courts of Civil Appeals are limited in-their jurisdiction to a consideration of - errors assigned and fundamental errors seems to be well settled. Clonts v. Johnson, 116 Tex. 489, 294 S. W. 844; Waggoner Estate v. Sigler Oil Co. (Tex. Com. App.) 284 S. W. 921; Wright v. Maddox (Tex. Civ. App.) 286 S. W. 607; Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734.

It is just as well settled that an appel-lee may as against an appellant, by cross-assignments of error, obtain all the relief from errors prejudicial to himself that he could have by an appeal. (Italics ours.) 3 Tex. Jur. 1025. But, as said by the same authority, he cannot have errors so corrected “with respect to a co-aijpellee without taking and perfecting an appeal or suing out a writ of error.” 3 Tex. Jur. p. 1025, § 727; Blackwell v. F. & M. Nat. Bank, 97 Tex. 445, 79 S. W. 518; Anderson v. Silliman, 92 Tex. 560, 50 S. W. 576; Woeltz v. Woeltz, 93 Tex. 549, 57 S. W. 35; Lauchheimer & Sons v. Coop, 99 Tex. 386, 80 S. W. 1061, 90 S. W. 1098; Kerens Nat. Bank v. Stockton, 120 Tex. 546, 40 S.W. (23) 7, 77 A. L. R. 362; Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136; National Bank v. Carper, 28 Tex. Civ. App. 334, 67 S. W. 188; Pumphrey v. Hunter (Tex. Civ. App.) 270 S. W. 237; Marshall, etc., Co. v. Stephenson (Tex. Civ. App.) 13 S.W.(2d) 711; Maryland Casualty Co. v. Willig (Tex. Civ. App.) 10 S.W.(2d) 415; Smith v. First State Bank (Tex. Civ. App.) 255 S. W. 511; Stewart v. Tolar & Daniel (Tex. Civ. App.) 250 S. W. 274; St. Louis Union Trust Co. v. Mo. Pac. Ry. Co. (Tex. Civ. App.) 146 S. W. 346; Yarbrough v. Whitman, 50 Tex. Civ. App. 391, 110 S. W. 471; Houston Ice, etc., Co. v. Nicolini (Tex. Civ. App.) 96 S. W. 84; Jamison v. New York & Tex. Land Co. (Tex. Civ. App.) 77 S. W. 969; Southwestern Teleg. & Tel. Co. v. Priest, 31 Tex. Civ. App. 345, 72 S. W. 241; Western Nat. Bank v. White, 62 Tex. Civ. App. 374, 131 S. W. 828; Sullivan v. Michael, 39 Tex. Civ. App. 564, 87 S. W. 1061; Clawson v. Williams, 27 Tex. Civ. App. 130, 66 S. W. 702.

The error from which relief is now sought is not a fundamental error, but if it were, that fact would be immaterial since, if in the absence of an appeal by the Oats a cross-assignment of error would not give the requisite jurisdiction, neither would the fact that the error was fundamental. Traders Nat. Bank v. Price (Tex. Com. App.) 228 S. W. 160.

In the light of the foregoing rules let us consider now those decisions wherein judgments have been, reversed as to nonappealing parties, in order to discover, if possible, the true principle involved. It may be regarded as being as well settled as any of the propositions above stated, that where a judgment appealed from is based upon a single cause of action, or causes of action against all the parties on one side alike, the judgment affecting all alike, the appeal by one party and reversal of the judgment as to him requires a reversal as to all. Burleson v. Henderson, 4 Tex. 49; Brown v. Hancock, 13 Tex. 22; Willie v. Thomas, 22 Tex. 176; Dickson v. Burke, 28 Tex. 118; McIlhenny v. Lee, 43 Tex. 210; McRea v. McWilliams, 58 Tex. 334; Bradford v. Taylor, 64 Tex. 171; Hamilton v. Prescott, 73 Tex. 566, 11 S. W. 548, 549. There can be no valid argument that the action of the court, in reversing as to parties not appealing in such cases, is dependent for jurisdiction upon any exception to the jurisdictional limitation that the court can only act in response to assignments of error or a finding of fundamental error. But clearly the case at bar is not such a case. The judgment from which the Farmers’ National appealed was one upon the cross-action of the Oats — a different cause of action from that under consideration. The judgments as to the two did not affect all parties alike. See Weems & Waldo v. Watson, 91 Tex. 35, 40 S. W. 722, wherein it was held that the cause of action of the warrantee of title to land against the warrantor for breach of the warranty involved in the same suit by a claimant of the land against the warrantee is a separate cause of action from that asserted by the plaintiff, so that, although the Court of Civil Appeals fails to acquire jurisdiction of the case to review the judgment as between the warrantee and the plaintiff, it did have jurisdiction to reverse the judgment as between the'warrantor and-the warrantee.

In Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074, 1075, the court, in holding that the appellate court could reverse the case as to parties not appealing, said that the Court of Civil Appeals had jurisdiction to render “any judgment which may be proper to any relief against that judgment to which the appellants may show themselves to be entitled.” (Italics ours.) Then, by way of showing how that rule was applicable to the case in hand, the court further said: “Hence their appeal (i. e. the appeal of certain parties) may involve as incidental to the relief to which they are entitled a readjustment of other lines than the western boundary,” etc. In Drake v. Yawn (Tex. Civ. App.) 248 S. W. 726, 731, it was contended that two parties to the judgment below, in attempting to perfect appeal, had failed to give notice of appeal. The court, in expressing its conclusion to the contrary, further said: “But if said defendants had not given such notice, and had in no manner attempted to appeal from said judgment, still the judgment against them could not be affirmed, for there was but one question, one issue in litigation, and that was the validity of the so-called consolidated county line school district. It was the only question in which any of the parties litigant was interested, and its determination affected all of one side or the other alike. The interest of the parties defendant was not severable, and hence the judgment was an entire and inseparable judgment, and if any one of the parties defendant appealed and obtained judgment favorable to the one appealing, it operated as a reversal as to all of the defendants.” In Reeves & Lester v. McCracken, 103 Tex. 416, 128 S. W. 895, 897, a judgment awarding rescission of a transaction involving in part the conveyance of land was reversed. Two of .the defendants alone appealed. Two others, who alone were guilty of the fraud upon which the rescission was sought, did not appeal. After having declared the necessity of reversing the judgment as to the appellants, the court said: “This leaves the question as to the disposition to be made concerning the other defendants, Edwards and Ray-sor. The result of our judgment in favor of Reeves and Lester is that plaintiff must keep and pay for the land, and that her cause of action against the others is for damages caused by the fraud perpetrated by them. In estimating such damages the land which plaintiff has obtained would have to be taken into account; her damages being her loss after deducting its value. It is obvious therefore that in changing the judgment upon the complaint of Reeves and Lester, injury would be done to the others if it were left standing against them. While they have not applied for a writ of error, the application of Reeves and Lester brings before the court all parties so far as is essential to the rendition of the judgment the plaintiffs in error are entitled to, and the power to give relief to them by changing the judgment carries with it the power and the necessity to make such other changes therein as justice to the other parties demands. Thompson v. Kelley, 100 Tex. 539, 1031 S. W. 1074.” (Italics ours.) In Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548, 549, the Supreme Court had reviewed apparently conflicting decisions and declared: “We think the conclusion to be deduced from these apparently conflicting cases is that this court when it finds error in the proceedings of the lower court as to any party to the judgment, and not as to another, and that a proper discussion of the case as to one is not dependent upon the judgment as to the other, will reverse in part and affirm in part; but, where the rights of one party are dependent in any manner upon those of another, it will treat the judgment as an entirety, and, where a reversal is required as to .one, it will reverse the judgment as a whole.’.’

Do the decisions, of which those commented upon above are conspicuous examples, declare an exception to the rule that an appellate court has no jurisdiction to disturb the judgment of a trial court except when such jurisdiction is invoked by assignments of error or the existence of fundamental error? Unless they do it necessarily follows that we are without power to reverse the judgment in the instant case in so far as it decrees a foreclosure of the mortgage upon the cattle in the possession of the appellee Dublin National.

Just what support, if any, do these decisions lend to the proposition that, although the judgment of foreclosure affected np parties to the suit, except the Oats and their coappellee, Dublin National, and although neither of said parties appealed and for that reason were not entitled to have considered any cross-assignments of error or fundamental error affecting that part of the judgment, yet, because in passing upon an assignment of error of appellant Farmers’ National, arising upon a cause of action in which appellee Dublin National has no interest, we determined a question which would have called for a reversal of the judgment of foreclosure, had the Oats appealed and assigned error, we may grant the latter all the relief that they could have had by such appeal and assignment of error. We cannot escape the conclusion that the decisions are not properly susceptible to any construction that would support that proposition. They go no further, we think, than to hold that when, in pursuance of appeal or writ of error proceedings, assignments of error are sustained or fundamental errors are noticed, and it appears necessary, in order to give the full measure of relief to which appellants or plaintiffs in error are entitled, to reverse judgments as to other parties, this will be done whether such other parties have appealed or not or assigned errors or not. The jurisdiction thus exercised is . not an exception to, but clearly comes within, the limitation hereinbefore discussed, in that it is exercised under the warrant of the assignments of error of the appellant or plaintiff in error.

It must be admitted that some of the language in Reeves & Lester v. McCracken, supra, standing alone suggests the idea that the action of the court in disturbing a judgment' as to nonappealing parties is for the benefit of, or to prevent injustice or hardship to, such nonappealing parties. But we do not believe the decision, when considered as a whole and with particular reference to the facts of that case, can properly be construed to so hold. It is not believed that the court intended to express solicitude because of hardship resulting from its decision, to the two defendants who alone were found guilty of fraud. It does not seem reasonable that the court should have been so concerned about preventing a hardship to the perpetrators of the fraud as to declare- an exception for their sole benefit to a general rule and grant them relief in the absence of any appeal and of any assignments of error. On the contrary, we think the principle that ruled that decision was the same as in many of the other cases. The appellants by their assignments of error showed a right to have the judgment of the court below decreeing a rescission abrogated, not in part but in toto. To have undertaken to abrogate it as to the appellants only, and to leave it in effect as to the perpetrators of the fraud, would have been to stop short of the full extent of the relief to which appellants were entitled. Such action at the same time would have worked an unnecessary hardship on the innocent plaintiff because her cause of action for damages for the fraud could probably be defended against by the still effective (as to defendants) judgment of rescission. But,> at any rate, the judgment reversed was based upon a single cause of action, affecting all the defendants alike, and came clearly within the rule recognized ever since Burleson v. Henderson, 4 Tex. 49, supra. We therefore find it necessary to overrule the motion of appellees, the Oats.

The commission company in its motion for rehearing insists that in detailing the facts from which we held that a jury would be authorized to find a waiver of the lien as to the 56 calves, we omitted others which we are requested to find as follows: “That the president of the Dublin National Bank, the man who took the mortgage and handled the transaction, expected Stephens to sell the cattle, that the mortgagee bank expected to get its money from the sale of the cattle, and that if the cattle brought a fair market price, it would have been agreeable with the mortgagee bank for Stephens to sell them and the bank would have given its consent if the proceeds had been sent to it.” Believing that.the evidence justifies it, we find the additional facts as requested except, instead of finding that “it would have been agreeable with the mortgagee bank for Stephens to sell them and the bank would have given its consent if the proceeds had been sent to it,” we find, in lieu thereof, that said bank would have accepted the proceeds of such sale without protest. We do not agree that the additional facts would have the effect of converting the question of waiver from one of fact to a question of law. To so hold would be tantamount to holding that to expect a thing to happen would show consent to its happening. One may, from known facts and circumstances, expect another to steal his purse, but that does not imply his consent to its taking.

Further complaint is that we did not discuss assignments complaining of the refusal of the court to give requested special issues Nos. 3 and 4, as follows:

“Requested Special Issue No. 3: Prior to the sale of the 56 head of calves on January 8, 1930, had Ed Harris, president of Dublin National Bank, impliedly consented for R. H. Stephens to sell same and for the proceeds to be sent to the Dublin National Bank?”
“Requested Special Issue No. 4: Was the sale of the 56 calves on January 8,1930, made with the consent, either express or implied, of Ed Harris, President of the Dublin National Bank, provided the proceeds be sent to the Dublin National Bank?”

Special Issue No. 8 given by the court was as follows: “Do you find from a preponderance of the evidence in this case, that E. W. Harris, President of the Dublin National Bank, consented for R. H. Stephens to sell the 56 head of calves which were shipped to Fort Worth and sold through the Breedlove Commission Company? Answer yes or no, just as you find.”

At the request of the commission company, the court defined consent, express and implied, as follows: “In connection with special issue number eight, you are instructed that 'consent may be either express or implied. Express consent is defined as consent directly given, either in voice or in writing. Implied consent is consent manifested by signs, actions, or facts, or by. inaction or silence, which raises a presumption that the consent has been given.”

We think the special issue given with the definitions was a sufficient and fair submission of the real issue.

While it is in effect conceded that we properly reversed the judgment of the commission company against the Farmers’ National in so far as it was based on a cause of action for money had and received, it is insisted that the evidence warranted that judgment upon the theory that Stephens, in selling the calves, acted as the agent of the Farmers’ National. It is insisted, we take it, that the uncontroverted evidence showed, as a matter of law, that Stephens was such agent, since an issue of such agency was submitted to the jury and answered in the negative. Does simple consent of a mortgagee of personal property for the mortgagor to sell the property necessarily and as a matter of law constitute the mortgagor the agent of the mortgagee in making such sale? We do not think so. And if there was any evidence to show that Stephens acted as the agent of the Farmers’ National in selling the cows, then that issue, we think, was foreclosed by the verdict of the jury. .

It is therefore our opinion that all motions for rehearing should be overruled, and it is accordingly so ordered.

HICKMAN, C. J.

I am unable to agree with my associates in that portion of their opinion disposing of the motion for rehearing by appellees Oats' and Oats, denominated in the opinion as the Oats. It is my view that the judgment in favor of the Dublin National Bank against them should be reversed and that portion of the case be remanded for a new trial. It is my view that no jurisdictional question is involved, but that we have the power, and it is our duty, to reverse the judgment as between these parties. The injustice of not doing so is fully recognized by my associates, and the only difference in opinion between me and them relates to our power. This exact question, to my mind, has been authoritatively determined many times, and I content myself by making quotation from the authorities which I deem to be controlling. In the case of Mosler Safe Co. v. Atascosa County (Tex. Civ. App.) 184 S. W. 324, 325, an action was brought against the county for the price of some safe doors. It denied liability but made a contractor and its surety parties to the suit, praying that it have judgment against them in the event plaintiff recovered any judgment against it. The plaintiff was unsuccessful in the' trial court and, therefore, the county took nothing against the contractor and its surety. Upon appeal the judgment denying the plaintiff any recovery was reversed and judgment was rendered in favor of the plaintiff against the county. Only the plaintiff appealed, and the court had before it a determination of whether it should disturb the judgment below as between the two coappellees, and disposed of that question in this language: “This being the case, we conclude that it would he unjust to let the judgment in favor of said two parties stand. The power to give relief to appellant by changing the judgment carries with it the power and the necessity to make such other changes therein as justice to the other parties demands.”

In the ease of Hamilton v. Prescott, 73 Tex. 565,11 S. W. 548, 549, Justice Gaines reviews the authorities on this question and announces the rule that: “ * * * where the rights of one party are dependent in any manner upon those of another, it will treat the judgment as an entirety, and, where a reversal is required as to one, it will reverse the judgment as a whole.”

In Thompson v. Kelley, 100 Tex. 536, 101 S. W. 1074, 1076, the question involved here was certified to the Supreme Court, and that court, speaking through Justice Williams, in answering that the Court of Civil Appeals had the power to grant relief to a nonappealing party where its judgment affected that party adversely, used this language: “As the verdict of the jury and the judgment based upon it fixed all of the boundaries, action of the appellate court which may result in disturbing those boundaries, in part, may affect the rights of parties depending on other lines than the one in which Thompson and Eorgy are more immediately concerned. Hence their-appeal-may involve, as incidental to the relief to which they are entitled, a readjustment of other lines than the western boundary, and in determining that appeal the court has the power, all of the parties being before it, to determine also the effect of the decision upon the rights of those who did not appeal, and to render such judgment as will fully protect all concerned.”

This court had the same question for consideration in the case of Mergenthaler Linotype Co. v. McClure, 9 S.W.(2d) 198, 202, which judgment was affirmed by the Supreme Court in 16 S.W.(2d) 280. In that case there were many parties but only one appealed. On account of our judgment’s reversing the case • on appellant’s assignments, the judgment of the court below was so disturbed that the rights between parties not appealing were affected. We, therefore, reversed the judgment in its entirety. I think that the reasons which we assigned in that opinion for our action are sound and are supported by the above authorities. Our language in disposing of the question was as follows: “In view of the conclusions announced, the usual procedure would be to reverse and remand the case for a new trial as to appellant, but leaving all those portions of the judgment of the trial court disposing of issues as between parties other than appellant undisturbed. We think, however, this procedure in this case would probably work injustice. The judgment determines no question of priority as between appellant and R. M. Smith. Appellant seems to have consented for R. M. Smith’s case to be consolidated. E. G. Negy may have some rights that require further adjustment, as between him and other parties, arising solely from the disposition we are making of the ease. The rights of the parties are' more or less interdependent. Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548.”

In this language. I think we went to the heart of the question. If the rights of the non-appealing parties as between themselves arise solely from the disposition which we make of the case, I can see no impediment to our authority to protect those rights. Any other rule would require a party who was himself satisfied with the judgment of the trial court to appeal therefrom solely for the purpose of safeguarding his rights against a coappellee, in the event the appellate court should reverse the judgment as to the appellant. I do not believe the authorities above cited make that requirement.


author: BLAIR, J.

text:
    FARMERS’ & MERCHANTS’ STATE BANK OF BALLINGER v. BLACK et al.
    No. 7800.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    Rehearing. Denied Dec. 21, 1932.
    Frank O. Dickey, of Ballinger, for appellant.
    Baker & Baker, of Coleman, and Paul Petty, of Ballinger, for appellees.
   BLAIR, J.

Appellant sued appellees upon two notes and to foreclose a chattel mortgage securing them on, among other property, “the crop of cotton, feed, etc.,” raised on 250 acres of land described. Appellees filed a sworn plea that this crop provision was inserted after the execution of the mortgage and without their knowledge or consent. The jury found these issues favorably to appellees, and the judgment accordingly denied a foreclosure of the mortgage.

The judgment denying foreclosure of the mortgage must be reversed, because the court erroneously refused to admit in evidence the financial statement executed by appellee C. Black as a part of the loan transaction in suit, and as being material upon the issue of alteration of the mortgage. ■

The financial statement consisted of a list and the value of various properties belonging to appellees, and included 350 acres of land valued at $15,000. Appellant’s agent, who drew the mortgage, notes, and financial statement, testified that the crop provision was inserted before the mortgage was executed, at the suggestion of appellees. That the description of the land and crops of cotton and feed in the mortgage was obtained from appellees and in a large measure from the financial statement, which was required by appellant as a part of the loan transaction and which was executed by appellee C. Black on the same day the notes and mortgage in suit were executed and as a part of the same transaction. The financial statement was therefore admissible as original evidence as collateral or res gestee writings, under the rule announced in 2 C. J. 1285, § 205, that “other documents than those alleged to have been altered, but which are connected with some part of the same general transaction, are admissible in evidence to throw light upon the issue of an alteration in the instrument involved.” Carlisle v. People’s Bank, 122 Ala. 446, 26 So. 115; 17 Tex. Jur. 635, § 266.

The only issue in the case was whether the fiiortgage had been altered after its execution. The evidence was sharply conflicting on the issue, making very material the admission in evidence of the financial statement as throwing light upon the issue of the alteration.

Appellant’s agent also testified that ap-pellees represented that they owned the land, and that they would plant 250 acres of it in cotton and feed as the security covered by the mortgage. Appellee C. Black testified that he executed the financial statement knowing that it contained the statement that all the appellees owned 350 acres of land. On the trial of this ease he testified that he only owned 100 acres of land at the time he executed the mortgage in suit. The manifest purpose of this evidence was to show that appellee would not have executed a mortgage on property not owned by him. His financial statement was to the contrary, and it was therefore admissible in evidence to impeach his testimony given on the trial of this case.

The judgment on the notes is not attacked, and is affirmed. The judgment denying a foreclosure of the mortgage lien is reversed, and tEe cause in that regard is remanded for another trial.

Affirmed in part, and in part reversed and remanded.


author: ELY, C. J.

text:
    WRIGHT v. WRIGHT.
    No. 8951.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 21, 1932.
    Lloyd & Lloyd, of Alice, for appellant.
    H. S. Bonham, of Corpus Christi, for appel-lee.
   ELY, C. J.

Appellee sought and obtained a judgment divorcing him from his wife, the appellant, and adjudicating all the property was his and divesting all title out of the wife. The divorce was obtained on November 23, 1927. A petition seeking to set aside the judgment and review the facts appertaining thereto was filed by appellant May 15, 1931. A review of the case and cancellation of the judgment was sought on the ground of fraud in obtaining the judgment. A general demurrer and thirty-eight special exceptions were sustained to the petition.

It was alleged that the parties had lived together as man and wife for twenty-one years, and that four children had been born to the couple; that .in January, 1922, appellee had choked and otherwise assaulted appellant, and that she, with her children, had been forced to leave her home and go to relatives in Louisiana, and there cared for her children without any aid from her husband; that on July 8,1926, a suit for divorce was filed in Bee county, Tex., on the ground of abandonment; that, when she was cited in the case, she employed an attorney in Corpus Christi, and attended the term of court to which she was cited to appear, and the case was continued by appellee. She attended the second term, and again the case was continued by appellee. She charged that the continuances were fraudulently obtained in order to prevent the attendance of appellant. Confiding in her counsel, and expecting, if her presence was required, that he would notify her, appellant did not again attend the court, and judgment was rendered against her in her absence and without her knowledge. She' alleged “that her attorney withdrew from the suit, without notifying her, and without notifying her that said suit had been set for trial, and at the time wrote to defendant and his attorney to proceed with the trial, by which aforefeaid judgment was procured, unless, he, her said attorney, was present by a given date, which was then and is now, unknown to plaintiff.” The attorney had promised to notify appellant of the time the cause was set for trial, which he failed to do.

A general demurrer having been sustained to the bill of review, every fact alleged therein must be taken as .true, and, if it be true that the husband, knowing the long distance appellant had to travel to attend court, had twice continued the case fraudulently, in order to prevent her attendance and without tenable grounds, and if it be true that her attorney, in violation of his promise, did not write her as to the time of trial, but, on the other hand, wrote to her husband and his attorney authorizing them to proceed with the trial, and had not attended such trial and represented her, those allegations were sufficient to set aside the judgment. Again, if appellant had been forced by the brutality of her husband to leave her home, she was not guilty of abandonment of her husband, and she had a just and perfect defense to the action for divorce. Destruction of the marriage relation under the circumstances indicates fraud on the part of the husband, and utter negligence, if not fraud, on. the part of an attorney paid to represent her, and appellant is entitled to be heard in her own defense. If the property belonged to the community, as alleged, the judgment as to the property should not have been rendered and should be set aside.

The judgment was rendered in November, 1927, and the petition for a review was filed May 15, 1931, several months less than four years after the judgment was obtained. It is contended by appellee that the laches of appellant had destroyed her cause of action, and that she has no standing in a court of equity. We think the allegations in the petition relieve the appellant of the charge of laches. The chancellor has a large discretion as to a lapse of time which would show laches and bar a suit to set aside a judgment. Here we have a married woman driven from her home by the violence of her husband, and compelled to seek shelter for herself and children in another state, who sought a hearing of her defense against the efforts of her husband to divorce her on false grounds, who was betrayed into the belief that her case was being properly represented by a negligent or disloyal attorney, and who sought to avoid the judgment as soon as she became aware that it had been rendered. Her ease has a much greater appeal for equity than did the plaintiff in the case of Eldridge v. Eldridge, 259 S. W. 209, written by this court. The correct rule is laid down in that case.

The judgment is reversed, and the cause remanded.


author: WALKER, C. J.

text:
    STEINBERG & CO. v. JAMESON.
    No. 2318.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 22, 1932.
    Alfred Du Perier, of Beaumont, for appellant.
    David E. O’Fiel, of Beaumont, for appellee.
   WALKER, C. J.

This ease originated in justice court, was regularly appealed to the’ county court at law of Jefferson county, and is before us by appeal by Steinberg & Co. from a judgment, upon a jury’s verdict, in the sum of $179.39, against appellant and its surety and in favor of appellee, L. Jameson.

Appellant assigns error that the court erred in permitting appellee to amend his pleading in county court at law by stating his cause of action orally, and that the verdict of the jury was without support in the evidence, and against the great weight and preponderance of the evidence. These conclusions are overruled. As the case originated in justice court, the parties had the right to plead orally. The verdict of the jury followed literally appel-lee’s testimony.

Affirmed.


author: MARTIN, J.

text:
    EDINGTON v. SOUTHERN OLD LINE LIFE INS. CO.
    No. 3933.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 14, 1932.

      Smith & Smith, of Anson, for appellant.
    Willis & Madden, of Dallas, for appellee.
   MARTIN, J.

Appellant brought suit against appellee and one B. Childers alleging that said Child-ers was the district manager for appellee in the Abilene district, and, while in the course of his employment and in the furtherance of his master’s business, negligently ran into appellant with an- automobile on the highway in Jones county, demolishing the wagon in which appellant was riding and inflicting upon him certain physical injuries not necessary here to mention.

The appellee filed a plea of privilege, alleging its residence to be Dallas county.

Upon a hearing of such plea, the trial court sustained same, and entered judgment transferring appellant’s cause as to appellee Southern Old line Bife Insurance Company to the district court of Dallas county, from which appellant duly perfected an appeal to this court.

It appears from the facts introduced on the trial that appellant was' driving along the highway at night in a wagon when he was struck by a car driven by B. Childers, with the results set out in the pleadings. Childers was not served with process, and neither entered an appearance nor testified.

The disposition of the question, raised here turns upon whether or not ap-pellee, a corporation, committed a “trespass” in Jones county, and the solution of this in turn necessarily depends on whether or not appellee can be legally held for the acts of Childers, since, as a corporation, it could act only through its agents, servants, and employees. If appellee was not constructively present and acting through Childers, obviously no liability is shown, and this regardless of the personal liability of Childers for the alleged act. After the accident in question., « appellant visited the sanitarium at Stamford where Childers was then confined as a patient. At this time and place Child-ers directed his wife to deliver to appellant a card having printed thereon: “Bryan Child-ers, District Manager, Southern Old Line Life Insurance Company, P. O. Box 728, Abilene, Texas.” Thereafter, on a letterhead of the Southern Old Line Life Insurance Company, and having its name printed thereon, Child-ers wrote appellant a letter. These were apparently admitted by the trial court for the purpose only of identifying Childers. .These were the material facts introduced on this phase of the ease. Obviously such ex parte hearsay matters could not bind the appellee. The declarations of an agent are incompetent to establish either the fact of agency or the scope of his authority. Noel v. Denman, 76 Tex. 306, 13 S. W. 318; Buzard v. Jolly (Tex. Sup.) 6 S. W. 422; Latham v. Pledger, 11 Tex. 440; Park v. Sullivan (Tex. Civ. App.) 12 S.W.(2d) 265; Smyth v. Conner (Tex. Civ. App.) 280 S. W. 600.

It is also well settled that the admission of wholly incompetent evidence will not support a verdict by a jury or finding of fact by a court. Dallas Railway & Terminal Co. v. Bankston (Tex. Com. App.) 51 S.W.(2d) 304, and numerous authorities there collated.

In order to establish liability and hold venue against appellee herein, it was indispensably necessary for appellant to prove the coexistence of two facts, namely, (1) that the relation of master and servant existed between appellee and Childers at the time of the occurrence referred to above, and (2) that at such time Childers was acting within the scope of his employment in performing an act for his master’s benefit. National Cash Register Co. v. Rider (Tex. Com. App.) 24 S.W.(2d) 28. The first of these, if established at all, was proven by hearsay acts and declarations of Childers, which were clearly inadmissible for such purpose. There was no attempt to prove the second.

The judgment is affirmed.