author: PIERSON, J.

text:
    BRUNSON et al. v. YOUNT-LEE OIL CO. et al.
    No. 5883.
    Supreme Court of Texas.
    Feb. 1, 1933.
    H. A. Maynard, of Liberty, for plaintiffs in error.
    Beeman Strong and A. D. Moore, both of Beaumont, and Harold R. Moore, B. P. Louis, Yinson, Elkins, Sweeton & Weems, and C. M. Hightower, all of Houston, for defendánts in error.
   PIERSON, J.

Por a brief and clear statement of the ease we use the following from the brief for plaintiffs in error in the Court of Civil Appeals:

“This is a suit in trespass to try title, filed by appellants who were plaintiffs below, on the 21st day of January, 1930, for an undivided one-half interest in a tract of land containing 34.4 acres, being a part of the C. C. Brunson Survey, situated in Liberty County, Texas, for the recovery of one-half of the oil or the value thereof, produced therefrom, and for damages occasioned by reason of appellees’ assertion of title to said undivided one-half interest, which prevented appellants from leasing same.
“The facts as alleged by plaintiffs in their first amended original petition, so far as they are material to this appeal, are:
“C. C. Brunson purchased from the State of Texas, 640 acres of land, known as the P. M. Gardner Survey No. 150, in 1897. The land herein sued for is a part of the Brun-son 200 acre homestead tract situated in what is now known as the C. C. Brunson Survey in Liberty County, Texas. Mae Brunson died on June 16, 1902, leaving nine children surviving her. On the date of Mae Brun-son’s death, the community estate of C. C., and Mae Brunson was indebted to the State of Texas in the amount of Nine Hundred Thirty-six ($936.00) Dollars and interest, as purchase money for the P. M. Gardner 640 acres, of which the land herein sued for is a part. On May 11, 1903, C. C. Brunson paid off the indebtedness due the State of Texas by funds derived from the sale of personal property belonging to the estate, from which time the community estate of C. C., and Mae Brunson has been free and clear of any and all kinds or character of indebtedness. On September 15, 1903, C. C. Brunson made application for and was duly qualified as community administrator of the estate of himself and his deceased wife. On September 30, 1903, C. C. Brunson, individually and as such administrator, conveyed the north 338 acres of the Gardner 640 acres to Wm. J. Mettler, the land in controversy being a part thereof. On the date C. C. Brunson applied for administration, and on the date he qualified as administrator, as well as the date of his sale as such to Wm. J. Mettler, no debts or obligations of any kind existed against the community estate of C. C., and Mae Brun-son.”

Upon a hearing in the district court of Liberty county, the general demurrers of all of the defendants in error were sustained, and the cause dismissed. This judgment was affirmed by the honorable Court of Civil Appeals at Beaumont, 32 S.W. (2d) 893, and the cause is now properly before the Supreme Court for disposition.

Plaintiffs in error predicate their appeal upon two propositions, as follows:

“No. 1. The Court erred in sustaining the general demurrers to plaintiffs’ First Amended Original Petition, it appearing from the record that on the date the County Court of Liberty County, Texas, finally entered the order appointing and approving C. C. Brun-son community administrator of the community estafe of himself and his deceased wife, Mae Brunson, and on the date of the sale by him as such, the interest owned by the said Mae Brunson had descended to and become a vested property right in her heirs.”
“No. 2. The Court erred in sustaining the general demurrers to plaintiffs’ First Amended Original Petition, it appearing from the record that the land herein sued for is a part of the community homestead of Mae Brunson, and was not incumbered by any debts of any kind or character, and particularly those specified by the Constitution and Statutes of the State of Texas, on the date of the sale by C. C. Brunson as community administrator, and that the interest owned by Mae Brunson had descended to and become a vested property right in her heirs.”

They quote and rely upon tlireo articles of our statutes, as follows:

“Art. 2578. (2469)' (1696) (1653) Community- estate. — Upon the dissolution of the marriage relation hy death, all property belonging to the community estate of the husband and wife shall go to the survivor, if there ■be no child or children of the deceased or their descendants; but if there be a child or 'children of the deceased, or descendants of such child or children, then the survivor shall be entitled to one-half of said property, and the other half shall pass to such child or children, or their descendants. But such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive. (Acts 1887, p. 76; G. B. Vol. 9, p. 874.)
“Art. 2579. (2470) (1697) (1654) Passes charged with debts. — In every case, the community estate passes charged with the debts against it. (P. D. 5498.)”
“Art. 3663. (3594) (2221) (2166) When husband shall have management. — Where the wife dies or becomes insane, leaving" a surviving husband and child, or children, the husband shall have exclusive management, control and disposition of the community property in the same manner as during her lifetime, or sanity; and it shall not be necessary that the insane wife shall join in conveyances of such property, or her privy examination and acknowledgment to be taken to such conveyances, subject, however, to the provisions of this chapter. (Id.)”

The first two articles quoted by plaintiffs in error are taken from title 48, “Descent and Distribution.” The third article is taken from title 54, “Estates of Decedents.”

It is the view, of plaintiffs in error that where there are no debts, title to one-half Of the community property passes and vest's absolutely in the children of the deceased spouse, and that same is not affected by subsequent articles of the statutes providing for community administration, and that the authority of a community administrator is limited to a sale of such property only for the purpose of paying debts. These articles of the statutes clearly empower the survivor to sell and dispose of the community property, regardless of the existence of debts.

Article 3664 provides that a surviving husband, within four years after the death of the wife, may file his application to be appointed community administrator of the estate of himself and his deceased wife, and states certain requisites. Article 3665 provides that the court shall appoint appraisers to appraise such estate. Article 3666 provides that an inventory and appraisement shall be filed in the probate court. Article 3667 provides that the surviving husband shall give a bond, conditioned that he will pay over one-half of the surplus of the estate, after the payment of debts, to such person, or persons, as shall be entitled to receive it. Article 3668 provides that after such inventory and appraisement and bond have been returned to the county judge, and after same have been approved, he shall enter an order approving them, and shall also authorize such survivor to control, manage, and dispose of such community property in accordance with the provisions of the law.

Article 3669 is as follows: “Art. 3669. (3600) (2227) (2172) Survivor has control.— When the order mentioned in the preceding article has been entered, such survivor, without any further action in the county court, shall have the right to control, manage and dispose of such community property as may seem for the best interest of the estate and of suing and being sued with regard to the same, in the same manner as during the lifetime of the deceased; and a certified copy of the order of the court mentioned in the preceding article shall be evidence of the qualification and right of such survivor.”

Subsequent articles of the statutes throw further safeguards around such community estates for the benefit of those interested therein. These articles of the statutes have been frequently passed on by this court. In different forms they have existed since 1856, and' even prior thereto some of their principles were applied. In- all instances the courts have uniformly upheld these statutes and .applied them to property situated as was the land sued for in this case, and have uniformly held that when a community survivor had qualified and filed his bond, as provided in these articles of the statutes, he had full freedom of control, management, and disposition of the- estate, without intervention of the probate court. There are no decisions anywhere in the books to the contrary, and therefore we do not feel called upon to again write an extensive opinion thereon.

It is admitted that the survivor, O. C. Brun-son, duly and properly qualified as the community administrator of the estate of himself and his deceased wife, Mae Brunson, and that in all respects the sale of the property by him thereunder was regular. Therefore title passed to the vendee of O. C. Brun-son.

After the survivor has complied with the law governing his qualification, he is empowered not only to control and manage, but also to dispose of such community property, including the homestead of himself and his deceased spouse, as may seem for the best interest of the estate. Dawson et al. v. Holt et al., 44 Tex. 174; Cordier et al. v. Cage et al., 44 Tex. 532; Morse et al. v. Nibbs (Tex. Civ. App.) 150 S. W. 766 (writ of error refused).

Under the law of descent, one-half of the property does pass to-the child or children, but' subject to administration as provided by the subsequent statutes. In 1875, in the case of Dawson et al. v. Holt et al., 44 Tex. 174, where there were no debts and the property sold by the surviving husband was a community homestead, in upholding a sale by such community survivor, the court observed: “We are aware that this view of the law places the destinies and fortunes of the offspring in the power of the father, but in forming general laws and rules it is questionable whether any safer or more disinterested custodian of the rights and welfare of the child has ever been devised than that of the father. That this rule is liable to abuse is not a sound argument against it.”

The plaintiffs in error would limit the powers and authority of a community administrator to those of an ordinary administrator. The authority and power given a community administrator are broad and conclusive. His bond and his fair dealing with the property are the protection given by the law to the minor children of the husband and his deceased wife. The children had no homestead rights in the property under the facts here which were superior to the “control,management and disposition” of the .community property by the surviving husband as may seem for the best interest of the estate.

The district court properly sustained the demurrers to the petition of plaintiffs in error. Therefore the judgments of the district court and of the Court of Civil Appeals are affirmed.


source: Caselaw Access Project

author: LEDDY, C. CURETON, C. J.

license: Public Domain

text:
    DANCIGER OIL & REFINING CO. OF TEXAS v. RAILROAD COMMISSION OF TEXAS et al.
    Motion No. 10530; No. 6283.
    Supreme Court of Texas.
    Feb. 13, 1933.
    S. A. L: Morgan and Morgan, Culton, Morgan & Britain, all of Amarillo, I. J. Ringolsky and Ringolsky, Boatright & Jacobs, all of Kansas City, Mo., and Chas. L. Black and Black & Graves, all of Austin, for plaintiff in error.
    James V. Allred, Atty. Gen., Fred Up-church and Maurice Cheek, Asst. Attys. Gen., Hines H. Baker, of Houston, Robert E. Hard-wicke, of Fort Worth, Marion S. Church, of Dallas, and, John E. Kilgore, of Wichita Falls, for defendants in error.
   LEDDY, C.

Defendants in error have filed a motion to dismiss the writ of error in this case on the ground that the questions presented for decision are now moot.

This suit involves an attack made by plaintiff in error on a proration order of the Railroad Commission of Texas promulgated under the terms of the oil conservation statutes as they existed prior to August, 1931. The order sought to be annulled expired by its own terms subsequent to the rendition of the judgment in this case. In addition to this, the conservation statutes authorizing the Railroad Commission to regulate the production of oil in Texas have been materially changed since the judgment was rendered by the district court, from which the appeal was taken. Acts Fourth Called Session, 42d Legislature (1932) c. 2, p. 3 (Vernon’s Ann. Civ. St. arts. 6014, 6014a, 6029, 6048c, §§ 5, 7, 8, 6049d).

Courts have sometimes decided questions involving attacks upon short time orders of commissions after the same have expired by their own terms. Such cases were decided on the theory that a decision of the question as to the power of the tribunal to make the order involved might be of material value in the promulgation of similar orders in the future, and for the further reason that the person against whom such order was made might be subjected to liability in subsequent proceedings if the legality of the order were not determined. Southern Pacific Co. v. Interstate Commerce Commission, 219 U. S. 433, 31 S. Ct. 288, 55 L. Ed. 283; Technical Radio Laboratory v. Federal Radio Commission, 59 App. D. C. 125, 36 F.(2d) 111, 66 A. L. R. 1355; United States v. Trans-Missouri Freight Ass’n, 166 U. S. 290, 308, 17 S. Ct. 540, 41 L. Ed. 1007; Leonard v. Earle, 279 U. S. 392, 49 S. Ct. 372, 73 L. Ed. 754.

But in this ease the law under which said order was made has been materially changed; hence a decision of the questions involved in this case would be of little, if any, practical value for such purpose.

We are inclined to the view that, although the questions involved in this case are moot, it would not be proper for this court to dismiss the writ of error. Such action would leave in effect a final judgment of the district court of Travis county adjudicating that plaintiff in error has violated a valid proration order of the Railroad Commission. In order that plaintiff in error may not be prejudiced in any subsequent proceeding by a judgment which this court has refused to consider on its merits, we think a proper disposition of the ease would be to reverse the judgment of the trial court and the Court of Civil Appeals and to dismiss the cause. Alejandrino v. Quezon, 271 U. S. 528, 536, 46 S. Ct. 600, 70 L. Ed. 1071; Railroad Commission of Texas v. Alfred MacMillan et al., 53 S. Ct. 223, 77 L. Ed. _.

The judgments of the district court and the Court of Civil Appeals are both reversed, and the cause dismissed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: CHRISTIAN, Judge.

text:
    CHESHIRE v. STATE.
    No. 15796.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Sam T. Holt, of Carthage, for appellant.
    • Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: HARVEY, P. J.

text:
    MULLIGAN v. OMAR GASOLINE CO. et al.
    Motion No. 10557; No. 1552-5875.
    Commission of Appeals of Texas, Section A.
    Feb. 15, 1933.
   HARVEY, P. J.

The plaintiff in error, Ed Mulligan, has filed a motion to so retax the costs incurred in the above cause,, both in the Court of Civil Appeals and in the Supreme Court, so as to charge the defendant in error, Omar Gasoline Company, with payment of the costs incurred in both courts, for the following reasons:

The suit of Mulligan is based primarily on a contract alleged to have been made by the Omar Company through its duly authorized agent, G. A. Ritnour. In the trial court the jury found, in answer to a special issue submitted to them, that Ritnour had authority to make said contract in behalf of said company; and judgment being rendered against the company, the latter appealed to the Court of Civil Appeals. 33 S.W.(2d) 568. The latter court held, in effect, that there was no evidence to support tie finding of the jury in the respect stated, and entered judgment of reversal and remand, based partly on that ground. Mulligan brought the case to the Supreme Court on writ of error. This section of the Commission held that all the rulings of the Court of Civil Appeals, upon which its judgment of reversal and remand was based, were erroneous; but that since the ruling to the effect that there was no evidence to support the jury finding, in the respect stated above, inferentially involved the question of sufficiency of the evidence to sustain such finding, the Supreme Court was without jurisdiction to set aside the judgment of reversal and remand which the Court of Civil Appeals had entered. See original opinion, Mulligan v. Omar Gasoline Company (Tex. Com. App.) 49 S.W.(2d) 706.

It thus appears that, to the extent that the Supreme Court had jurisdiction to review the several rulings of the Court of Civil Appeals, Mulligan obtained all relief sought by him in his petition for writ of error, and is therefore entitled to recover all costs incurred In the Supréme Court. He is not entitled, however, to recover the costs incurred in the Court of Civil Appeals, for the reason that said court reversed the judgment he obtained in the trial court, and remanded the cause, and .that judgment of reversal and remand still stands.

We recommend that, with respect to costs incurred in the Supreme Court, the motion to retax costs be granted, but that in all other respects the motion be overruled.


author: HAWKINS, Judge.

text:
    LOWE v. STATE.
    No. 15868.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for theft of cattle, punishment being assessed at two years in the penitentiary.

We observe no irregularity in the proceedings as disclosed by the record before us. No statement of facts or bills of exception are brought forward. In this condition nothing is presented, for review.

The judgment is affirmed.


text:
    COGBURN v. STATE.
    No. 15774.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense ⅛ driving an automobile on a public highway while intoxicated; the punishment, confinement in the penitentiary for one year.

The record is before' us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed,

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. , .


text:
    SHERMAN v. STATE.
    No. 15667.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Percy Foreman, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for malicious mischief, punishment assessed being a fine of $10.

The prosecution was under article 1373, P. C. (1925). The complaint and information alleged that appellant willfully wounded ai •horse owned by W. I-L Lester by shooting said horse with a gun with the intent to injure the owner.

We observe no errors of a fundamental character. The record is before us without statement of facts or) bills of exception. In, such condition nothing is presented for review.

The judgment is affirmed. '


text:
    CARLISLE v. STATE.
    No. 15782.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Pitts & Liles, of Conroe, for appellant. ■
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   HAWKINS, Judge.

• Conviction is for murder; punishment assessed at confinement in the penitentiary for five years.

We find no statement of facts accompanying the record, and no bills of exception are brought forward complaining of matters- occurring during the trial, save some exceptions to the refusal of certain special charges. It is impossible for this court to determine whether a special charge was pertinent to any issue in the case in the absence of a statement of facts. Therefore, their refusal cannot be reviewed, although exception to the failure to give them was noted upon the charges.

What has been said with reference to the refusal of special charges applies with equal force to the objections urged against the instructions given the jury.

No errors of a fundamental character appear from the record.

The judgment is affirmed.


author: LATTIMORB, Judge.

text:
    WARRICK v. STATE.
    No. 15143.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    Rehearing Denied Feb. 22, 1933.

      See, also, 119 Tes. Cr. R. 637, 45 S.W.(2d) 976.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORB, Judge.

Conviction for theft of turkeys; punishment, six months in the penitentiary.

Appellant has a number of bills of exception. The first insists that the court erred in letting Mr. Lightner, the owner of the alleged stolen turkeys, testify that in the coop where he found his turkeys after they were taken, were other turkeys and some chickens. Mr. Lightner’s testimony as to the finding of the other turkeys and chickens in the coop with his would hardly be capable of the inference attributed thereto by appellant in his objection, namely, that the jury would be led to believe thereby that this appellant had stolen the other turkeys and chickens. The record shows that appellant and some other negroes brought to a produce house in Abilene where Mr. Wade worked a number of turkeys and chickens, quite early on the morning of April 24, 1931. That because of some suspicious circumstances thel employees of the produce house who were present deferred paying for the poultry, claiming that the parties entitled to give checks had not yet come down; that while waiting for them to come appellant and one of the other negroes left; that presently Officer Sumrall came and took charge of the negroes who had not gone away, and also the poultry. .Complaint is made in bill of exception No. 2 that Mr. Wade was permitted to testify that the parties who brought the turkeys and chickens to the produce house were not paid for same. We fail to see how this could operate to appellant’s hurt wrongfully. Manifestly if the turkeys were stolen and the parties were apprehended in possession of them, no harm could come from proof that they tried to sell them and the parties did not pay for them.

We see nothing worthy of discussion in the fact that while appellant and his companions were waiting at the produce house some person in the employ of the produce company talked over the telephone. There is nothing in the record showing what was said in said telephone conversation. N'or do we observe need for discussing the complaint in bill of exception No. 4, which presents objection to proof that when seen by the officer in Abilene on the 24th of April there were two colored men with appellant, and that on the road from Abilene to Coleman two other colored men were picked up; nor in permitting the officer to testify that some one of the colored men already in his car stated at the time that the two men whom they picked up had been with them in Abilene.

After appellant had testified that he and his companions had bought nine turkeys and fourteen chickens on the highway between Coleman and Abilene for $8, we see no error in allowing the state-to prove the reasonable market value in Abilene of turkeys and chickens such as were those in question. This is complained of in bill of exception No. 5.

Appellant complains at length in bill of exception No. 7, but unfortunately said bill is in question and answer form, with no certificate of the trial judge that there exists necessity therefor. We cannot consider such bill.

We see nothing in the question asked or the statement made by the state’s attorney, complaint of which appears in bill of exception No. 8, hurtful to appellant or calling for extended discussion.

Finding no error in the record, the judgment will be affirmed.


author: CALHOUN, Judge.

text:
    CASTORIA v. STATE.
    No. 15595.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Hoover, Hoover & Oussén, of Canadian, and F. L. Henderson, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The appeal is írom a judgment of the district court of Hemphill county correcting its judgment entered at a prior term thereof finding appellant guilty of transporting intoxicating liquor, and assessing his punishment at three year's’ confinement in the state! penitentiary.

This is the second appeal in this case. The opinion upon the former appeal of this case will be found in 119 Tex. Cr. R. 193, 47 S. W.(2d) 325.

The record discloses that on the 14th day of March, 1931,- appellant was found guilty of the offense of unlawfully transporting intoxicating liquor, and his punishment assessed at three years’ confinement in .the state penitentiary. Judgment was rendered by the trial court upon the verdict of the jury, and appellant’s motion for new trial was overruled, and appellant sentenced, to which action by the trial court appellant excepted, and in open court gave notice of appeal to this court. The judgment of the lower court was reversed and remanded by this court on January 13, 1932, and the state’s motion for rehearing denied on March 16, 1932. The mandate of this court showing that said, cause had been reversed- and remanded was filed in the district court of Hemphill county on March 21, 1932. The state through her district attorney filed in the district court of Hemphill county on May 14, 1932, a motion to correct the judgment theretofore entered on March 14, 1931, and enter nunc pro tune a .judgment reflecting the true record in said cause. The appellant filed a written answer to the state’s motion to reform the judgment, setting up the fact that said cause had been heretofore tried on ’the 14th day of March, 1931, before a jury, and judgment entered at said term of court, and thereafter said term of court adjourned, and said cause was afterwards duly appealed to the Court of -Criminal Appeals at Austin, and on a hearing in said court said cause was. duly reversed and remanded, and the district court was without jurisdiction or authority in the premises to reform the judgment entered at said former term of court, and was without jurisdiction or authority to enter judgment in said cause nunc pro tunc, and that under the law the defendant was entitled to a trial by jury of said cause and a trial de novo, and the granting of said motion would be 'depriving this defendant of the right of trial by'jury, and would deprive this defendant of his liberty without due process of law and without having been tried as provided by law.

The record further discloses that at a special term of the district court of Hemphill county on the 14th day of May, 1932, thei court heard evidence upon the motion of the state to enter judgment nunc pro tunc and to resentence the appellant, and overruled appellant’s exceptions and objections to the motion of the state., The court then granted the state’s motion as prayed for, and entered an order setting aside the judgment entered at the March term, 1931, and directed the clerk to spread upon the minutes of said court judgment nunc pro tunc reflecting the true record in the ease, and resentenced thei appellant, to all of which action by the court the ■ appellant excepted and in open court gave notice of appeal to this court.

Our Code of Criminal Procedure provides that, after a conviction,, a district court in which said conviction was had may grant a new trial to the appellant for certain causes upon a motion in writing setting forth the grounds upon which the new trial is asked. See articles 751 to 758, inclusive, of the Code' of Criminal Procedure, Revised Statutes 1925. Article 759 of the C. C. P. reads as follows: “The effect of a new trial is to place the cause in the same position in which it was before any trial has taken place. The former conviction shall be regarded as no presumption of guilt, nor shall.it be alluded to in the argument.”

Article 852, C. C. P., reads as follows: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.”

It would appear from these provisions of our Code of Criminal Procedure that, where the • Court of Criminal Appeals awards a new trial to the defendant by reversing the judgment of the trial court on appeal, the cause shall stand as it would have stood in case the new trial had been granted by the district court, and the effect of reversing and remanding a case by this court is to place the cause in the same position in which it was before any trial had taken place. See Cox v. State, 7 Tex. App. 495; Fuller v. State, 30 Tex. App. 560, 17 S. W. 1108; Pond v. State (Tex. Cr. App.) 48 S.W.(2d) 285.

We accordingly hold that the action of thei trial court was erroneous, and the judgment is reversed and the cause remanded.

Reversed and remanded.

PER CURIAM.

. The foregoing opinion of the Commission of Appeals has been examined by the judges, of the Court of Criminal Appeals and approved by the court.


author: FLY, Chief Justice.

text:
    HUBBERD v. BENAVIDES INDEPENDENT SCHOOL DIST.
    No. 8981.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 1, 1933.
    John K. Weber and C. O. Wolfe, both of San Antonio, for appellant.
    J. F. Clarkson, of San Diego, for appellee.
   FLY, Chief Justice.

This is a suit for taxes and to foreclose a; tax lien on certain tracts of land lying and being situated in Duval county. Appellee is a political division of the same county, and appellant lives in Bexar county. She pleaded her privilege to be sued in the latter county, which was overruled, and this appeal was perfected from the judgment denying the plea of privilege.

Appellee was permitted to introduce a petition, a plea of privilege, and controverting affidavit. None of the documents appear in the statement of facts, but it is stated therein that they had been omitted on the •order of one of the counsel for appellant. ■The allegations of the petition were not proper, of course, to prove venue in the county.

The controverting affidavit is as follows:

“Now comes the Benavides Independent School District, plaintiff in the above entitled and numbered cause, and controverts thei plea of privilege of the said Mary C. Hub-berd, defendant herein and says that he has good reason to believe, and does believe, and so alleges, that defendant’s said plea is incorrect, and that this court has venue of this cause and of the person of this defendant on the following grounds and reasons, to-wit:
“That this is a suit for the foreclosure of a tax lien and it may be brought in the County of Duval, where the property or any part thereof subject to such lien is situated and such property is situated in the County of Duval and State of Texas.”

There is no statement in the affidavit that any taxes are due by appellant 'on land in Duval county, no attempt to describe the land, nor to show any facts giving cause of action in Duval county. Article 2007, JR. S., requires that a controverting affidavit set out “specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.” It is too clear for discussion that the affidavit in question does not comply with the statute. The petition cannot be invoked to aid the affidavit because no attempt was made to make any portion of it a part of the affidavit. There is no reference to the petition. The affidavit is obviously inadequate and invalid.

The court upheld the controverting affidavit as against exceptions, and consequently caused the pleader to feel secure in the allegations of the affidavit and not to seek to file an amended affidavit. Under these circumstances, it being so apparent that the) court had jurisdiction over appellant, it seems a great injustice to deprive the school district of a chance to amend the controverting affidavit so as to eonform strictly to the statute. Therefore judgment will not be rendered here changing the venue, but the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: LANE, Justice.

text:
    CITY OF WEST UNIVERSITY PLACE et al. v. STATE ex rel. KIRBY et al.
    No. 9931.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 6, 1932.
    Rehearing Denied Jan. 12, 1933.

      Robt. L. Sonfield and C. D. Jessup, both of Houston, and Sonfield & Sonfield, of Beaumont (Leon Sonfield, of Beaumont, of counsel), for appellants.
    O’Brien Stevens, Cr. Dist. Atty., Cooper K. Ragan, W. M. Cleaves, and Walter F. Brown, all of Houston, for appellees.
   LANE, Justice.

The state of Texas in a quo warranto proceeding, acting through the district attorney and upon relation of John H. Kirby, David Hannah, E. C. Barkley, trustee, and Port City Realty Company of Houston, as relators, brought this suit against the city of West University Place, a municipal corporation, and its mayor and commissioners, H. B. Schlesinger, mayor, H. C. Coekburn arid Preston R. Plumb, commissioners, to have declared invalid an attempted annexation of certain territory by a purported ordinance passed by the city council of the city of West University Place bn the 3d day of October, 1929.

Relators alleged that on October 3, 1929, a petition signed by J. A. Turner, T. V. Overton, M. D. Westchester Land Corporation, by E. C. Fantham, director, L. E. Blankenbecker and Mrs. L. E. Blankenbecker, was presented to the mayor of the city of West University Place asking that the territory described in such petition and the inhabitants thereof be annexed to the city of West University Place; that accompanying said petition was the following affidavit:

“The State of Texas, County of Harris.
“We, the undersigned, J. A. Turner, L. E. Blankenbecker, and Mrs. L. E. Blankenbecker, being duly sworn, depose and say that we arei three of the signers of the foregoing petition who have voted the favor of becoming a part of the City of West University Place, and that the foregoing petition is signed by a majority of the inhabitants of the territory therein described and who are qualified to vote for members of the State Legislature and that by signing said petition each one of said signers has voted in favor of having said territory and the inhabitants thereof annexed to and become a part of the City of West University Place.
“J. A. Turner
“L. E. Blankenbecker
“Mrs. L. E. Blankenbecker
“Sworn to and subscribed before me this 30th day of September, A. D. 1929.
“Chas. H. T. Garlick,
“Notary Public in and for
Harris County, Texas.”

They allege that such petition and affidavit was by said mayor presented to the city commissioners for their action thereupon; that said commissioners, on the 3d day of October, 1929, passed a purported ordinance reciting that it appeared to said commissioners the territory described adjoins the city; that it is not. more than one-half mile in width and unincorporated; and that the petition is signed by more than a majority of the inhabitants of such territory so seeking annexation who are qualified to vote for members of the state Legislature of Texas; and that said territory is to be used strictly for city purposes.

Relators further alleged:

“That of the parties who signed said instrument of writing in the form of a petition to the Mayor and City Commission of the City of West University Place, Texas, as hereinabove set out, only said J. A. Turner was a bona fide resident of the territory described in said written instrument and petition at the time of its execution and at the time it was submitted to said Mayor and City Commission and acted upon by them, and at the time said ordinance was adopted, and that all of the other signatories to said instrument of writing and petition, namely E. C. Fantham, who purported to act for West-chester Land Corporation, T. V. Overton, L. E. Blankenbecker and Mrs. L. E. Blanken-becker, were not inhabitants of said territory; and that of said parties so signing said written instrument and petition only said J. A. Turner was an inhabitant qualified to vote for members of the State Legislature of said territory so described in said written instrument and petition; * * * and that of the three parties executing the affidavit attached to said instrument of writing in the form of a petition to tire Mayor and City Commission of the City of West University Place, namely J. A. Turner, L. B. Blanken-becker and Mrs. L. E. Blankenbecker, only J. A. Turner was qualified as an inhabitant and qualified to vote for members of the State Legislature of said territory described in said written instrument in the form of a petition, and that neither said L. E. Blankenbecker nor Mrs. L. E. Blankenbecker constituted such an inhabitant of such territory and such a qualified voter for members of the State Legislature of said territory as qualified them to execute said affidavit as required by the Texas statutes as a basis for the extension of the limits of the City of West University Place so as to embrace said territory described in said instrument of writing and petition; * * * that by reason of the facts hereinabove alleged said written instrument and petition hereinabove referred to and said affidavit attached thereto as a part hereof as hereinabove set forth were not executed in accordance with the statutes of this State and did not comprise the vote of the majority of the inhabitants qualified to vote for members of the Legislature of said territory and were not made by any three inhabitants qualified to vote for members of the State Legislature of said territory; and that, therefore, said written instrument and petition and said affidavit do not constitute a proper and legal basis and cannot be made such a basis for the ordinance hereinabove set forth having as its purpose the extension of the limits of the City of West University Place so as to embrace said territory so described in said written instrument and petition.
“That on or about the third day of October, 1929, H. B. .Schlesinger, J. A. Walling and P. A. Lockrone, the then acting Mayor and Commissioners of the City of West University Place, entered into a conspiracy to extend the boundary of the City of West University Place with a view to so extending said boundaries as to embrace the lands described in the aforementioned written instrument and petition, each and all of said parties at the time being fully advised that the limits of said City of West University Place could not be legally and properly so extended, (1) because said territory embraced a tract of land immediately south of South Side Place and not adjoining the limits of said City of West University Place, and (2) because the limits of said City of West University Place could not be lawfully and properly extended so as to completely surround and embrace the territory known as South Side Place, which at the time of filing original petition still constituted unincorporated territory entirely outside the limits of the City of West University Place, and (3) because the territorial limits of said City of West University Place already embraced a full two square miles with a total population of much less than 2,000 inhabitants; and that if the purported extension should become effective the territorial area would much exceed two square miles and would still have a total population of much less than 2,000 inhabitants; and (4) because the area and territory contemplated to be annexed was.wild and practically vacant and unimproved agricultural and grazing land unsusceptible of being legally and properly incorporated in any town or city within this State; and that said Mayor and Commissioners .pursuant to said conspiracy and well knowing that there 'were not as many as three inhabitants qualified to vote for members of the State Legislature of said territory to vote for said incorporation, nevertheless, acting through themselves and through other officers, agents and employees of said City of West University Place, prepared said formal petition and said affidavit and said ordinance, and through various and sundry promises and representations to the parties signing said written instrument and petition secured the signatures of said parties to said written instrument and petition and to said affidavit; and that said conspiracy was conceived and executed not with any real and bona fide intent that said City of West University Place should for any property, city or town purposes serve the territory so desired to be annexed, but for the sole and-only purpose of attempting to incorporate. said territory into the City of West University Place in order that the taxable values of the annexed territory would augment the taxable values of said City of West University Place and would become subject to excessive and confiscatory tax liens whereby the owner? of said property, so desired to be incorporated in the city limits of said City of West University Place would become subject to grossly excessive, unreasonable and unlawful tax burdens on account of said territory so to be annexed, and which excessive, unreasonable and unjust tax burdens, if permitted to attach to said property, would constitute a taking of private property from the owners thereof without due process of law, unjustly, illegally and in violation of the laws of the State of Texas and of the United States of America.”

They allege that relators were severally owners of several portions of the territory sought to be annexed and are therefore interested in the subject-matter of the suit. They allege that all proceedings by which annexation of the territory was sought are null and void.

They allege: The 260 acres sought to be annexed at the time the purported annexation was made were only partially inhabited, and it contained only one person qualified to vote 'for members of the state Legislature, to wit, J. A. Turner, who owns less than one and one-fifth acres of laud. That a fraudulent attempt has been made by the city council by their proceedings to include in the territory proposed to be annexed only agricultural land which is not adaptable for nor intended to be used for town purposes. “That all the above facts were well known to the city commissioners of West University Place at the time of the purported extension, and that said city commissioners acted fraudulently and corruptly in attempting to defeat the laws of this State, and perpetrated a fraud on the owners of the lands embraced in said purported extension by attempting to annex said lands to the City of West University Place without any authority of law; * * * that as a matter of fact the purported petition for extension did not come from any qualified voter who desired to be annexed, but was prepared and circulated by representatives of West University Place Commissioners who operated under the instructions and directions expressed and implied of the Commissioners of West University Place.” That J. A. Turner, the only qualified voter residing in the proposed annexed territory who signed the petition, was fraudulently induced to so sign by promises made to him by members of the city commission, and its agents, which he believed' to be true, but which were untrue. That neither Mr. nor Mrs. 11. E. Blankenbeeker who signed the peti- ■ tion for annexation were qualified voters, nor were either of them residents of the territory sought to be annexed. That they were also fraudulently induced to sign said petition. That neither Overton, Eantham, nor West-chester Corporation were at any time inhabitants of said territory. That the members of the city council of said city joined in a conspiracy to wrongfully annex said territory wholly without authority of law.

The prayer of the state, acting by the district attorney of Harris county, Tex., upon the relation of the owners of parts of the territory in question, is:

“That the purported ordinance of t-he City of West University Place * * * be declared null and void and that the territory described in said instrument of writing and petition be declared no part of said City of West University Place, Texas, and that the said City of West University Place and the Mayor, Commissioners, officers, agents and employees of said City be decreed to have no jurisdiction, power ox authority of any kind or character over the said territory, or any. part thereof, and that petitioner have such further and other relief, both general and special, in law and in equity to which it may show itself justly entitled.
“That a writ of injunction issue herein restraining said Mayor and Commissioners of the City of West University Place, and each and all of them, from exercising jurisdiction over the land and territory described in said instrument in writing and, petition.”

Respondents answered by a general demurrer and by numerous special exceptions to the allegations of the relators above stated, all of which were by the court overruled.

They also averred that it affirmatively appears from said ordinance and said proceedings that the city council of the city of West University Place inquired into and found all of the essential facts necessary to the legal annexation of said territory; that, in making such inquiries and findings, the city council acted in a quasi judicial capacity; that, as there is no appeal provided by law from such findings, such acts are final and conclusive upon the courts, therefore the court is without jurisdiction to in any manner review such proceedings or to inquire into the legality thereof. They .¡also made general denial of all the allegations of Relators.

The case was tried before a jury upon the following special issues: First, did either Mr. L. E. Blankenbeeker or Mrs. B. E. Blank-enbeeker pay their poll tax for the year 1928 before February, 1929? Second, were either Mr. Blankenbeeker or Mrs. Blankenbeeker inhabitants of the territory described in the petition for annexation at the time such petition was signed and presented to the city council of West University Place? Both issues were answered in the negative.

Upon the findings of the jury and the evidence, the court rendered judgment decreeing that the ordinance described in plaintiffs’ petition be declared and held null and void, and that the territory sought to be annexed by said ordinance be declared to be no part of the city of West University Place. From such judgment respondents have appealed.

Reducing appellants’ contentions for reversal to their ultimate, they axe: First, that this suit cannot be maintained, as it is a suit attempting an attack on the action of the city of West University Place in annexing the territory in dispute by private individuals not joined in by the state of Texas, since the district attorney of Harris county, Tex., had no authority under the laws of this state'to join in a suit of this character as an authorized representative of the state so as to constitute it as a quo warranto pro- ceeding. Second, that the trial court and this court are without power or authority to inquire into or to review the proceedings of the city commission of'the city of West University Place as to whether or not the persons who signed the petition for annexation and the affidavit in connection therewith were inhabitants of the territory proposed to be annexed and qualified to vote for members of the state Legislature, or of any other facts relating to such annexation proceedings, in that the action of the city commission was final and conclusive on the courts. Therefore the court erred in not sustaining appellants’ general demurrer and special exceptions to the plaintiffs’ petition. Third, that there were neither pleadings nor evidence authorizing the court to submit to the jury the special issues submitted. We overrule all of such contentions.

The district attorney of Harris county presented a petition to the district court of said county praying for leave to file an information in the nature of a quo warranto in the name of the state of Texas. Such prayer was by said court granted, and the filing of the plaintiffs’ petition in this case followed.

By article 6253, Revised Civil Statutes of 1925, it is provided that, if any corporation exercises power not conferred by law, the Attorney General or district or county attorney of the proper county or district, or either, of his own accord or at the instance of any individual relator, may present a pe: tition to the district court of the proper . county, or any judge thereof, for leave to file an information in the nature of a quo war-ranto in the name of the state of Texas, and, if the court or judge is satisfied that there is probable ground for the proceeding, hel shall grant such request.

It has been held that the article referred to applies to municipal corporations. Ex parte Keeling, 54 Tex. Cr. R. 118, 121 S. W. 605, 130 Am. St. Rep. 884; City of Carthage v. Burton, 51 Tex. Civ. App. 195, 111 S. W. 440.

It is well settled that a district attorney, in proceedings such as in the present case, may prosecute the same in the nature of a quo warranto. State v. Nelson (Tex. Civ. App.) 170 S. W. 814; Mathews v. State, 82 Tex. 577, 18 S. W. 711; State v. Goodwin, 69 Tex. 55, 5 S. W. 678; State v. Etheridge (Tex. Com. App.) 32 S.W.(2d) 828; Ewing v. State, 81 Tex. 172, 16 S. W. 872; City of East Dallas v. State, 73 Tex. 371, 11 S. W. 1030.

The trial court did not err in refusing to sustain the general demurrer and special exceptions addressed to the allegations of the plaintiffs’ petition which we have stated in our preliminary statement. The commission of the city of University Place was undertaking to annex the territory in question to said city by virtue of authority conferred by article 974, Revised Civil Statutes of 1925, which provides as follows: “When a majority of the inhabitants qualified to vote for members of the State legislature of any territory adjoining the limits of any city incorporated under, or accepting the provisions of, this title, to the extent of one-half mile in width, shall vote in favor of becoming a part of said city, any three of them may make affidavit to the fact to be filed before the mayor, who shall certify the same to the city council of said city. The said city council may, by ordinance, receive them as part of said city; from thenceforth the 'territory so received shall be a part of said city.”

It is clear that no authority is by article 974 conferred upon the city commission of University Place, a city of less than 2,000 inhabitants, to annex the territory sought to be annexed, unless a majority of the inhabitants of such territory vote in favor of becoming a part of said city, and unless at least three of such qualified inhabitants make an affidavit to the facts to be filed before the' mayor, and that until such vote is had and! affidavit is made and presented, the city council has no legal authority to annex such territory by ordinance.

Appellants, however, contend that, as the city council, sitting as a quasi judicial body, has recited in an ordinance that the necessary steps for annexation had taken place, the courts had no authority to inquire whether or not the prerequisites prescribed in article 974 existed.

It is apparent from the provisions of article 974 that the city council of the city of West University Place is permitted, not required, to annex territory one-half mile in width upon a vote or petition of a majority of the inhabitants of such territory who are qualified voters for members of the state Legislature, and then only when such petition is swam to by at least three of such inhabitants. In such case the city council may accept the affidavit of the three persons as true, and it is not required to inquire into the truth thereof; no judicial power, in such case, is conferred upon the city council as is done upon courts.

Whenever authority is conferred upon a court to determine the facts involved in the subject-matter of inquiry, some provision is made for notice to be given to all parties adversely interested to the proponents or plaintiffs. In the proceedings for annexation under article 974, however, no such notice is required, and in the ease before us no such notice was given. So, then, the attempt to annex property of relators to the city of West University Place was made without due process of law.

The city council, in the present case, in its attempt to annex the territory in question, was not acting in a quasi judicial or any other judicial capacity.

We repeat: The statute gives the city council no authority to make any investigation for the purpose of determining whether the territory seeking annexation contains the requisite number of qualified voters, or whether a majority of such voters have voted in favor of annexation, nor to determine whether or not the petitioners and affiants were inhabitants of such territory. The city council is not given any power to hear evidence and judicially decide whether the territory seeking annexation possesses the necessary prerequisites. Since the parties who made the proposition for the annexation had no authority to submit such proposition, the council is without power to accept the proposition and annex such territory.

It lias frequently been held that the action of the city council in similar cases is not conclusive on the courts. City of East Dallas v. State, 73 Tex. 371, 11 S. W. 1030; State v. Eidson, 76 Tex. 302, 13 S. W. 263, 7 L. R. A. 733; State v. Stein (Tex. Com. App.) 26 S.W.(2d) 182, 192; State v. Huntsaker (Tex. Civ. App.) 17 S.W.(2d) 63; State v. Hellman, 120 Tex. 282, 36 S.W.(2d) 1002; State v. Hoard, 94 Tex. 527, 62 S. W. 1054.

In City of East Dallas v. State, 73 Tex. 371, 11 S. W. 1030, 1032, Judge Gaines, speaking for our Supreme Court, said: “There is a tendency on the part of thriving and ambitious cities to extend the limits of the municipality beyond the urban population, and to subject to taxation persons and property who neither need nor receive any protection from the city government. It is reasonable to presume that the legislature intended to restrain this tendency, and it seems to us that in the provision under consideration they have placed a very proper limitation upon the power of annexing territory. We are of opinion, therefore, that the statute did not authorize the addition of territory more than a half a mile wide, and that the proceedings by which the territory was sought to be annexed in this case are void.”

We have reached the conclusion that there ■was ample evidence to support the findings ■of the jury that neither Mr. nor Mrs. Blank-enbecker were qualified voters in the territory seeking to be annexed, and that neither of them was an inhabitant of such territory.

The undisputed evidence shows that none -of the other petitioners and affiants, except ■J. A. Turner, was either a qualified voter or inhabitant of such territory.

For the reasons above expressed, the judgment is affirmed.

Affirmed.


author: ALEXANDER, Justice.

text:
    MOODY et al. v. HOGAN.
    No. 1306.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1933.
    Rehearing Denied Feb. 16, 1933.
    Munroe & Holt and Fred Hartley, all of Waco, for appellants.
    W. L..Eason, J. A. Stanford, Tom M. Hamilton, and Edgar Davidson, all of Waco, for appellee.
   ALEXANDER, Justice.

Mrs. E. L. Moody, joined pro forma by her husband, filed application in the probate court to probate the will of M. E. Hogan, deceased, her former husband. The will was contested by H. L. Hogan, a son of the deceased. On appeal in the district court, the jury found that the will was executed as the result of undue influence exercised by Mrs. E. L. Moody, who was the principal devisee in the will. The court entered a judgment denying the probate of the will, and proponents appealed.

It was a sharply contested issue as to whether Mrs. Moody had compelled or unduly influenced the testator to make the will. The evidence showed that just prior to the execution of the will, Mrs. Moody, then Mrs. Hogan, had secured a divorce from the testator and that Mr. Tom M. Hamilton had represented her as her attorney in said divorce proceedings. He prepared tlie will in question and it was executed in Ids office, in his presence. Mrs. Moody was present at the time of the execution of the will, but no one testified as to any statements by, or any conduct of, Mrs. Moody at the time of the execution of the will, or whether she took possession of the will at that time, or whether it was left in the possession of the. testator. After the death of the testator, the will was found in his private box at the bank. The contestants placed Mr. Hamilton on the witness stand as' a witness in their behalf and undertook to prove by him that Mrs. Moody made certain statements in his office at the time of the execution of the will tending to show that she exercised undue influence over the testator and further that she had taken possession of the will immediately after its execution. On voir dire, however, it was developed that Mr. Hamilton had represented Mrs. Moody as her attorney in preparing the will and in securing its execution and, as a consequence, the court excluded the testimony of Mr. Hamilton on the ground that to admit same would be to permit the attorney to disclose confidential communications between attorney and client. With the record in this condition, Mr. Hamilton, as attorney for the appellee, in his argument to the jury, made the following statements: “I didn’t take part in this case as a lawyer until I got on the witness stand, and when I got on that witness stand, counsel for Mrs. Moody flew to the technicalities of the law and pleaded that my lips be sealed in silence. That I could not tell from that witness stand— ” Counsel for appellants objected to the argument, but the court overruled the objection, whereupon Mr. Hamilton continued'as follows: “Oh yes you did. Yes you did. * * * I don’t blame them from squirming in their seats and trying to stop me when what I am saying is burning them. They seal my lips. * * * When the will was signed, when it was placed in this envelope, who took it? Did Hogan? No. Who did? She did. What did she do? She left. * * * If the great God could roll away the dirt under which his bones are now sleeping, and Mont Hogan could walk before this jury and tell you what he wanted done, and I think, Gentlemen, that if he did, he would point to that boy. Why? Why, do I think it? They won’t let me tell. They wouldn’t let me tell why I may have known why. * * * Under the sanctity of an oath X got on the witness stand. I wrote the will. They say I wrote it. I know how come me to write it. They won’t let me tell it. They won’t. Suppose you and I were to go out to my house— ⅜ * * He says and his brother said and another man said that Mont Hogan told them he was going to make a secret will. He had to keep it a secret from her. That if he did not, she would raise ‘Hell’ with him. That’s the testimony all right. She had him sign the will. Time did roll by, but did not the same agency still live? That will laid .up wherever it was she had it.” All of this argument was objected to by counsel for appellants, but the objections were by the court overruled.

Counsel for appellants had the right to object to the testimony, and when the ob-’ jection was sustained, the appellee’s counsel had no right to comment on the fact that he had not been permitted to introduce same in evidence. iSuch argument had the effect of creating in the minds of the jury the impression that counsel was in possession of facts which, if the same had been admitted, would have established undue influence and that the - appellants were, by means of technicalities, undertaking to conceal the true facts from the jury. Such conduct on the part of counsel was of peculiar significance in this case, since. he was the witness who was supposed to be in possession of such information and had undertaken to testify thereto and his evidence had' been excluded. His statement to the jury that Mrs. Moody took the will at the time of its execution, and his intimation that she had kept it in her possession since its execution, were not supported by the record. Counsel in making such statements went outside of' the record and gave the jury evidence which had not been admitted in the regular way and which was in itself inadmissible. Such argu-. ment has been condemned in numerous cases and requires a reversal of this case. Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S.W.(2d) 363; Robbins v. Wynne (Tex. Com. App.) 44 S.W.(2d) 946; McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554; First National Bank v. Harkrider (Tex. Civ. App.) 157 S. W. 290.

The trial court qualified the various bills of exceptions, wherein appellants complained of improper argument, by stating that counsel for appellants in their argument to- • the jury had indulged in considerable personal abuse and criticism of Mr. Hamilton, criticizing his position in the case and his ac-; tion and conduct as an attorney and as a man. The trial judge stated that he was unable to-set out the language used by counsel for appellants, but that any remarks made by Mr. Hamilton defending himself or justifying his-position in the case were probably provoked by counsel for appellants. The saíne language-was used by the court in the qualification to each of the bills. The argument complained of in some of the bills of exceptions as having-been made by Mr. Hamilton constituted a defense of hifnself and of his conduct in the-case and was justified by the facts as related by the court. The facts stated in the argument hereinabove quoted, however, did not constitute a legitimate defense by counsel of himself and he was not justified in making such remarks, even though opposing counsel had criticized his conduct in the case, tie-had a right to reply to the criticisms heaped) upon him by opposing counsel, but was not justified in suggesting to the jury, nor in commenting on, what his evidence would have been on such a material issue in the case where such evidence had previously been excluded by the court. The facts related by the court justified the argument as complained of in some of the bills of exceptions, but did not justify the argument above quoted.

The trial court did not err in refusing to allow the temporary administrator of the estate to be made a party to the suit. He had no interest in the question as to whether the will should or should not be admitted to probate.

The other errors assigned will not likely arise in the same manner upon another trial and we, therefore, forbear a discussion thereof.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

STANFORD, J., not sitting.


author: PELPHREX, Chief Justice.

text:
    COUNTY GAS CO. v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORPORATION, LIMITED, OF PERTH, SCOTLAND.
    No. 2781.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied Feb. 16, 1933.
    Roy O. Coffee, Iíarl F. Griffith, and Marshall Newcomb, all of Dallas, for appellant.
    Robert B. Holland and Touchstone, Wight, Gormley & Price, all of Dallas, for appellee.
   PELPHREX, Chief Justice.

On or about September 17,1929, K. L. Johnson was engaged in reading gas meters for appellant and while so engaged went upon the premises of one James M. Boyd, in Dallas county, Tex., for the purpose of reading the gas meter located on said premises. Johnson, on account of his conduct, was ordered off the premises by Boyd, and to prevent his entry into the garage, Boyd placed himself in the doorway. Thereupon Johnson struck Boyd with a metal bound book, furnished him by appellant, injuring him. Thereafter Boyd instituted suit against appellant, and on June 11, 1931, an agreed judgment was rendered against appellant for $450 and costs of suit.

At the time the assault was committed, appellant had a public liability insurance policy with appellee. The policy contained the following provisions:

“(1) To indemnify the assured named in Statement No. 1 of the Declarations forming part hereof against loss by reason of the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered through tl>e Assured’s negligence while this policy is in force by any person or persons not employed by the assured while at or about the places designated in such Declarations, or elsewhere, by reason of the prosecution by the assured of the work described in the said Declarations and in apd during the continuance of said work.”
“(2) To defend in the name and on behalf of the Assured any suits, even if groundless, brought against the Assured to recover damages on account of such happenings as are provided for by the terms of the preceding paragraph.”
“(3) To Pay, irrespective of the limits of liability expressed in Condition O hereof, all costs taxed against the Assured in any legal proceeding defended by the Corporation, all interest accruing after entry of judgment up-op such part thereof as shall not be in excess of said liability and the expense incurred by the Assured for such immediate medical or surgical relief as is imperative at the time of the accident, together with all the expense incurred by the corporation growing out of the investigation of such an accident, the ad-judgment of any claim or the defense of any suit resulting therefrom.”

Appellant gave appellee notice of .the claim of Boyd against.it and requested that appel-lee defend the suit. This appellee refused to do.

After the agreed judgment had been rendered, appellant filed this suit seeking to recover from appellee the $450 paid to Boyd, $100 attorney’s fees in the Boyd suit, $20.55 costs therein, and $200' attorney’s fees and costs incurred in filing and prosecuting the present suit.

The trial court sustained a general demurrer to appellant’s original petition. Appellant was granted leave to amend and filed his first' amended original petition, which is included in the transcript here filed. Appel-lee answered by general and special demurrers and general denial. Upon hearing, the general demurrer to the amended petition was also sustained, and appellant refusing to amend further, his cause of action was dismissed. This appeal is from that action of the trial court.

Opinion.

Appellant’s brief contains two propositions as follows:

“Proposition No. I. The defendant insurance company having contracted with plaintiff gas company to indemnify it against loss by reason of the liability imposed by law upon the gas company for damages on account of bodily injuries accidentally suffered by any person or persons not employed by the gas company on account of the prosecution by the gas company of its business of distributing and selling natural gas to the public, and the gas company having alleged in its. petition in this case facts showing that it had been sued for damages on account of injuries accidentally suffered by one Boyd, because of the acts and conduct of its agent and employee while engaged in reading gas meters and in the regular course of employment; that due and timely notice of said suit had been given to the insurance company with the request that it defend said suit; that said insurance company failed so to do ajnd breached its indemnity contract with the gas company; that because of said failure and refusal of the insurance company to defend said suit and to indemnify this gas company for the sum of money expended by it in good faith in settling the suit and claim of Boyd, the gas company had suffered damages in a specified amount, the gas company’s petition stated a cause of action against the insurance company and the trial court committed material error in sustaining the insurance company’s general demurrer to the gas company’s first amended original petition and in dismissing the suit.
“Proposition No. II. It appearing from the allegations in the gas company’s First Amended Original Petition that the insurance company had issued its indemnity policy to the gas company whereunder the insurance company agreed to defend in the name and on behalf of the gas company any suits, even if groundless, brought against the gas company to recover damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered through the gas eompa-ny’s negligence by any person or persons not employed by the Assured by reason of the prosecution by the gas company of its business of distributing and selling natural gas,' and it further appearing from said allegations that one J. M. Boyd had brought suit against the gas company for the recovery of Fifteen Thousand ($15,000.00) Dollars on account of bodily injuries inflicted on his pei'Son by the gas company’s meter reader while act-, ing in the due course of his business, and that Boyd’s injuries were accidentally suffered.; that the insurance company was duly notified of said suit and requested to defend-same but refused to do so; that the gas company settled said suit in a manner advantageous to it and that an agreed judgment in the amount of Four Hundred Fifty ($450.00) Dollars was entered and said judgment was paid by the gas company; that by reason of the insurance company’s failure to defend said suit, and perform its obligations thereunder the gas company was damaged in the total sum of Seven Hundred Seventy and 55/100 ($770.55) Dollars, the gas company’s petition stated a cause of action against the insurance company and the trial court committed material error in sustaining the insurance company’s general demurrer and in dismissing the suit.’’

Appellant, under these propositions, argues that Boyd’s petition (which petition is attached to and made a part of its petition) alleging facts which show that his injuries were accidentally suffered, in so far as he was concerned, appellee was liable under the indemnity agreement above quoted. Appellee, in three counter propositions, in substance, contends that the injuries having been the result of an assault, were not accidentally suffered; that if they were accidentally suffered, ap-pellee would not be liable because they did not arise through the negligence of appellee; and that if the policy indemnified against loss resulting from liability imposed by law for damages ' for bodily injuries suffered' through “a vicious assault,” it would be against -public policy and void.

The parties disagree as to the construction to be given the following portion of the indemnity clause: ‘^accidentally suffered or alleged to bavé been suffered through the Assured’s negligence.” Appellant contending that the clause covers bodily injuries accidentally suffered whether arising from negligence (or alleged negligence) or otherwise; while, as before stated, appellee’s contention is that the injuries must first be suffered, accidentally and, second, through either the negligence or the alleged negligence of appellant. Appellant, in support of its contention, invokes the well-established rule of law that an indemnity policy must be liberally construed in favor of the insured so as not to defeat,without a plain necessity, his claim for indemnity.

With that principle we heartily agree, hut it must be home in mind that such doctrine cannot be carried to the extent of making a new contract in disregard of the plain and unambiguous language used. U. S. Fidelity & Guaranty Co. v. Baldwin Motor Company (Tex. Com. App.) 34 S.W.(2d) 815; Continental Casualty Co. v. Wade, 101 Tex. 102, 105 S. W. 35; Maryland Casualty Co. v. Hudgins, 97 Tex. 124, 76 S. W. 745, 64 L. R. A. 349, 104 Am. St. Rep. 857, 1 Ann. Cas. 252; Brown v. Insurance Company, 89 Tex. 590, 35 S. W. 1060; East Texas Fire Ins. Co. v. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99.

We have concluded that the provision is not 'ambiguous and can only mean that appel-lee was to indemnify appellant in cases where third parties suffered accidental injuries apd where such accidental injuries arose through the negligence or alleged negligence of appellant.

To place any other construction upon the provision would, in our opinion, be making 'a contract for them which they did not see fit to make.

There being no allegation of any fact of negligence in the petition of Boyd and no. allegation ip appellant’s petition that the judgment recovered by him against it was based upon any negligence on its part, the trial court properly- sustained the demurrer to the petition.

In view of our above conclusion, the remaining questions call for no discussion.

The judgment is affirmed.


author: BLALOCK, Chief Justice.

text:
    HARGROVE v. HOPPER.
    No. 4239.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 30, 1932.
    Rehearing Denied Jan. 5, 1933.
    Cunningham & Lipscomb, of Bonham, for appellant-.
    Moore & Moore, of Paris, for appellee.
   BLALOCK, Chief Justice.

Mrs. Maude Hopper, without being joined by her husband, brought suit against L. K. Hargrove, as well as against another defendant, J. R. Rainey, who does not appeal. The petition contains two counts. The first count was in the form of an action of trespass to try title, in which it was specially alleged that the tracts of land therein described were community property of the plaintiff and her husband, and that the same' constituted the homestead of herself and hus-' band, and that on April 27, 1927, the defendants named unlawfully entered upon the premises and ejected the plaintiff and her husband therefrom to thei/r damage in the sum of $2,000. She further alleged that the reasonable annual rental of the property was $500. In the second count the plaintiff alleged that she adopted the allegations of the first count and specially averred that the premises described constituted the homestead of herself and her husband, and that they were living together as husband and wife and had lived together for many years prior to the date mentioned, and for' many years had resided thereupon, used and enjoyed the premises as their homestead.

The plaintiff prayed that one certain purported deed dated April 27, 1927, signed by her, conveying' the home to the Fannin County State Bank be set aside, canceled, and held for naught. -She alleged that she, was induced. to sign same without reading, on the representation of her husband that the paper renewed some old notes, and on the representation of defendant Hargrove that said papers were for the protection of herself and husband; that she believed said papers to be a mortgage to secure her husband’s debts, did not know that her homestead was conveyed therein, and that she would not have signed had she known the purport of the instrument. She also alleged that the instrument was not read to or explained to her, and that she did not acknowledge it ad a deed of conveyance. It seems that the said bank conveyed title to defendants, and plaintiff asserted they were parties to the fraud practiced upon her, knew all the facts, and were not innocent purchasers; that she did not know the full purport of the instrument until defendants later demanded possession, whereupon she explained her position, demanded a reconveyance, and filed suit upon their refusal to reconvey.

The defendants answered the petition by general demurrer and plea of not guilty, and as to the second count, besides other pleas, set up the following exception: “The defendant specially excepts to the second point of the plaintiff’s petition for the reason that the same shows upon its face that the plaintiff, Maude Hopper, and her husband made and executed a deed conveying the lands and premises described in the second count to the Fannin County State Bank and that R. L. Hopper is a necessary party to. this suit and is not made a party to the suit, and of this they pray judgment" of the court.”

The answer further sets up the claim of innocent purchasers of the land, estoppel, and a plea in the nature of an offset to the claim for rents. The plaintiff filed a supplemental petition setting up a plea of non est factum, in so far as she was concerned, to the deed from R. L. Hopper and Mrs. Hopper to the Fannin County State Bank referred to in the second count of her petition, and also set up in the defendant’s answer, and also to a certain deed of trust alleged in the defendant’s answer by way of an estoppel against the plaintiff, and also certain other allegations pleaded in avoidance of the defendant’s plea of estoppel.

The husband of the plaintiff was not made a party defendant to the suit, and he did not appear or make answer in the suit. Plaintiff alleged that he had refused to join her as a party plaintiff.

The case was tried before a jury on special issues, and they made answer: (1) That the plaintiff did not know at the time she signed the deed to the bank that the same conveyed the land in the petition; (2) the notary did not explain the contents of the deed to the plaintiff; and (3) that the reasonable rental value of the property was $1.50 an acre. Upon the verdict of the jury the court rendered judgment in favor of the plaintiff against the defendant Hargrove for herself and for the benefit of the community of herself and her husband and for their homestead for the recovery of the premises described in the petition, and against both of the defendants for the amount of the rents found by the jury to be owing. The judgment 'was also against the defendant Rainey for about 13 acres of the 200 acres sued for, but denied the plaintiff any further relief against the defendant Rainey. The defendant L. K. Har- ' grove appeals, but the defendant J. R. Rainey does not appeal.

The controlling point of the appeal is that of whether or not the plaintiff, a married woman, could sue alone, and without making the husband a defendant. The husband refused to join his wife in bringing the suit. It is concluded that the circumstances pleaded authorize the wife to prosecute the action alone. Speer on Law of Marital Rights (3d Ed.) § 517, p. 634; Kelley v. Whitmore, 41 Tex. 647. But the pleading in evidence showed that the plaintiff and her husband executed a deed, although arising under circumstances claimed to be misleading and wrongful to plaintiff, conveying the land to the Fannin. County State Bank. It was therefore required, in order to get the relief sought in her favor of the avoidance of the deed, that the husband should have been made a party ’ defendant. Barlow v. Linss (Tex. Civ. App.) 180 S. W. 652; 47 C. J. § 183, p. 92. It is a settled rule that all parties tó a deed are necessary and indispensable parties to a suit for the cancellation or avoidance of such deed. Barmore v. Darragh (Tex. Civ. App.) 227 S. W. 522; Christian v. Hood (Tex. Civ. App.) 19 S.W.(2d) 621; 7 Tex. Jur. § 54, p. 792.

The judgment is reversed, and the cause remanded.


author: BLALOCK, Chief Justice

text:
    SHAW, Banking Commissioner, v. LEWIS.
    No. 4189.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 29, 1932.
    Rehearing Denied Jan. 19, 1933.

      Jno. W. Goodwin, of Austin, and Dohoney, Beauchamp & Lawrence, of Paris, for appellant.
    Edgar Wright and Moore & Moore, all -of Paris, for appellee.
   BLALOCK, Chief Justice

(after stating the case as above). ’:

The principal questions raised are: (1) Could the First State Bank of Paris legally reduce its capital stock without publication of notice as required by article 500, R. S., and, if not, (2) Can the validity of the charter amendment reducing the capital be collaterally attacked, and (3) Is appellant estopped to deny the validity of said reduction, and (4) Does insolvency of the bank at the time of the reduction of its capital stock appear from the pleadings in the case, and, if so, should the cause be reversed for that reason?

We have concluded that the .doctrine of estoppel applies, and it is therefore unnecessary to answer the first two questions. No publication of intention to reduce the capital stock was made as directed by article 500, but nevertheless the banking commissioner issued his certificate of approval as provided in article 505 of the statutes, thus evidencing his intention to treat the bank ,as having a reduced capital of $100,000. Ap-pellee then received twelve shares of stock for the eighteen he had formerly held; six of his shares being surrendered and canceled by the bank. There is no evidence or contention of fraud or bad faith on the part of anybody connected with the transaction. Shortly thereafter when the bank was surrendered to the banking commissioner for liquidation, and while acting in the capacity of liquidating agent for the benefit of the creditors, he did not choose to attack the validity of the charter amendment reducing the capital stock and converting the bank to the bond system, but, on the contrary, elected to uphold and assert the validity of the amendment. He converted into cash the bonds placed on deposit when the bank changed to the bond plan, and distributed the proceeds to the creditors, he assessed appellee $1,200, par value of twelve shares of stock (his holding after the reduction) and called it a 100 per cent, assessment, and generally recognized and treated the institution as a $100,-000 bank, thus asserting the validity of the capital stock reduction. Appellee testified that he would not have paid the assessment had it been made on eighteen shares. In accepting the $1,200 assessment and making payment, he has been caused to forego whatever legal defense he would have made against it if he had not been led to believe that his payment represented the first and last assessment. Weatherly v. Jackson (Tex. Civ. App.) 46 S.W.(2d) 1030, 1031, and cases therein cited; Spence v. State Nat’l Bank (Tex. Com. App.) 5 S.W.(2d) 754; Shaw v. Etheridge (Tex. Civ. App.) 15 S.W.(2d) 722; Shaw v. Holderman (Tex. Civ. App.) 17 S.W.(2d) 190; State v. Davisson (Tex. Civ. App.) 280 S. W. 292; Cawthorn v. City of Houston (Tex. Com. App.) 231 S. W. 701.

Another case arising out of the liquidation of this same bank resulted in an opinion by the Commission of Appeals adopted by the .Supreme Court, First State Bank v. Collier, 119 Tex. 33, 23 S.W.(2d) 716. The general facts were the same. In that case it was held that a depositor who had accepted preferred payment from the proceeds of the sale of the bonds of this bank had elected to treat this .same charter amendment as valid, and is .therefore estopped to claim participation in the guaranty fund. By the same token, would not the banking commissioner, acting for the benefit of the same depositors in the same bank, be estopped to collect from appellee an assessment on eighteen shares of stock after treating and dealing with him as the holder of twelve shares, and leading him to believe he was settling his obligation in full?

At the outset of the trial it was agreed that no evidence would be offered on the question of insolvency. Appellant now insists that insolvency of the bank at the time of reduction of capital appears from the pleadings and records of the banking department. Insolvency cannot be presumed from allegations in appellant’s pleadings, and the records introduced may not be looked to for such purpose, in view of the agreement recited.

The judgment of the trial court will be affirmed, and costs .taxed against appellant.


text:
    BUMPUS v. COBB et al.

      No. 4276.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 23, 1932.
    Rehearing Denied Jan. 5, 1933.
    Wynne & Wynne, of Longview, and Geo. I. McGee and Tom F. 1-Iead, both of Kilgore, for plaintiff in error.
    E. M. Bramlette, of Longview, and Ross M. Scott, and House & Wilson, all of Dallas (W. B. Handley and C. J. Shaeffer, both of Dallas, on the brief), for defendants in error.
   BLALOCK, Chief Justice

(after stating the case as above).

We find that this court is without jurisdiction to entertain this writ of error, and to consider the errors assigned. No disposition was made in the judgment, or otherwise, of the claims of Eugene Cobb and Bertha Cobb, two of the plaintiffs ■ below. Eugene Cobb was not mentioned in the court’s charge, the verdict of the jury, or the judgment of the court, and there is nothing in the said judgment from which it could be construed as having disposed of or adjudicated the claims of Eugene Cobb and Bertha Cobb to an interest in the subject-matter of the lawsuit. A judgment which does not dispose of the whole matter in controversy as to all litigating parties is not a final judgment. Havard v. Carter Kelley Lbr. Co. (Tex. Civ. App.) 162 S. W. 922; Busby v. Schrank (Tex. Civ. App.) 174 S. W. 295. These litigants were not disposed of in the judgment by implication, as in Southern Pacific Co. v. Ulmer (Tex. Com. App.) 286 S. W. 193. While the plaintiffs claimed as cotenants, the alleged interest of each was separate and distinct, and a judgment for or against some of them did not imply an adjudication of the claims of the others. In fact, the judgment was in favor of one plaintiff and against some others; they being expressly named therein, and under these circumstances the failure to name Eugene and Bertha precludes any implication that the case was adjudicated as to them.

The court instructed a verdict against Bertha CoTib, plaintiff, and such verdict was returned; but no disposition was made in express terms or by implication of the claims or rights .of this party litigant. It thus appears that the judgment is not only at variance with the jury verdict in this respect, but it is made to affirmatively appear that Bertha Cobb had not been dismissed, and that no adjudication was had as to her. Articles 2211 and 2209, R. S. 1925; Turner-Cummings Hardwood Co. v. Lumber Co. (Tex. Civ. App.) 201 S. W. 431; Isabella Walker v. L. C. Taylor, 56 S.W.(2d) 251, opinion by Justice Levy of this court, Dec. 1, 1932, and cases therein cited.

We have concluded that the judgment complained of is not a final judgment, and the present writ of error is therefore dismissed for want of jurisdiction, and costs are, taxed against plaintiff in error.


text:
    STEVENSON v. THOMAS et al.
    No. 4271.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 16, 1932.
    Rehearing Denied Jan. 19, 1933.

      Ramey & Panning, of Sulphur Springs, and Massingill & Belew and Homa S. Hill, all of Port Worth, for appellant.
    Brim & Spence, of Sulphur Springs, Wm. ■O. Menton and H. O. Bishop, both of Dallas, and G. L. Robertson, of Port Worth, for ap-pellees.
   BLALOCK, Chief Justice

(after stating the ■case as above).

' This record shows from the testimony of the county. clerk that the county court of Hppkins county does not indulge the custom of .setting eases for trial on special days, but just, calls the docket, and “they aré called the way they appear on the docket.” It is also noted that complainant’s attorney, who lived in Port Worth, wrote the county clerk in April, 1930, to the effect that he would appreciate being advised of any setting of the case, whereupon the clerk returned the following notation: “Beg to advise the ease has not been set, however we have a jury for Monday, April 28th.” According to the record, complainant did not make further inquiry by letter, visit, or otherwise to see if the case was on the jury docket, to see when it would be called, to learn anything of the local rules or customary procedure of the court, and in no way or fashion make contact with the court or with appellees’ attorneys for a period of one year, and until judgment had been entered. Appellees’ attorney, Brim, testified that he searched th.e court papers before and after judgment had been taken to see if complainant had filed an answer, but found none.

This court is cognizant of the well-established custom and highly commendable practice .among attorneys jealous of the ethics of their profession to refrain from taking a judgment without notifying opposing counsel when they are known to represent the opposite side of the litigation. On the other hand, no legal duty rests upon either attorney to protect the other’s client from injustice; and one who has not been diligent in guarding his interests will not be heard by a court of equity to complain of injustice resulting from (bis lack of diligence. To be entitled to relief on a bill of review, complainant must, not only show that he has a meritorious de-, fense, but that failure to present it was not due to his own negligence. No legal .duty rests on the clerk of the court to keep either party informed of the proceedings or rules of the court. Maytag Southwestern Co. v. Thornton (Tex. Civ. App.) 20 S.W.(2d) 383; Goss v. McClaren, 17 Tex. 107, 67 Am. Dec. 646; Smith v. Ferrell (Tex. Com. App.) 44 S.W.(2d) 962, 963; Wagley v. Wagley (Tex. Civ. App.) 230 S. W. 493.

Without passing upon the charge that complainant was unjustly deprived of his right to present his defense because -of mistake or improper motives on the part of ap-pellees’ attorneys, we find that complainant did not exercise sufficient diligence in guarding his rights to entitle him to call upon a court of equity to correct the injustice. We see no reason why complainant’s attorney should have assumed that appellees had abandoned their case. Did not appellees have equal reason to assume that complainant had abandoned his defense?

Complainant insists he is entitled to relief because appellees’ petition in the original suit is insufficient in law to support a judgment, and that therefore the judgment therein is void. ’ We have examined that petition as it appears in the record brought to us for review. Although we think it subject to special exceptions, we do not think it subject to general demurrer, and we are therefore unwilling to declare void the judgment based thereon.

The judgment is affirmed, and costs adjudged against appellant.