author: DUNKLIN, J.

text:
    HARRIS et al. v. SADLER et al.
    No. 12713.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1932.
    Rehearing Denied Dee. 3, 1932.

      Slay & Simon, of Fort Worth, and Seay, Seay, Malone & Lipscomb, of Dallas, for appellants.
    Todd & Crowley, Arthur Lee Moore, and Tom O. McMurray, all of Fort Worth, Sam Cleveland, of Granbury, and Ernest W. Bel-cher, of Stephenville, for appellees.
   DUNKLIN, J.

This appeal is prosecuted by Dr. Ohas. H. Harris, C. W. Barrier, Will S. Horn, K. P. O’Bannon, S. A. Woodward, and George E. Enloe, from a judgment rendered against them as defendants in favor of Mrs. J. M. Sadler and her husband, J. M. Sadler, plaintiffs, for damages alleged by them to have resulted from a surgical operation performed on plaintiff Mrs. Sadler.

The record shows that the defendants maintained a hospital in the city of Port Worth known as the Harris Clinic Hospital, where they were engaged in the practice of medicine and surgery, and on or about July 3, 1929, the plaintiff, Mrs. Sadler, went to the hospital for treatment, where, after an examination and test made by the defendants, her ailment was diagnosed as an infected bladder and an infected appendix, on each of which organs an operation was necessary. The defendants operated on her for those ailments on July 6, 1929, making the necessary incision in her side for that purpose. On July 7, 1929, 'she developed pneumonia, from which she recovered in a few days. On July 22, she had a hemorrhage, and it was necessary to pack the wound, which packs were later.removed on July 27th. On July 28th, the wound was again packed, and this packing was removed and the wound dressed on August 3d. On August 4th, she left the hospital and returned to her home. After her return home, which was on a farm near Granbury, she was under treatment of her family physician, Dr. Carmichael, for quite a while; such treatment being in connection with the condition of the incision made in Mrs. Sadler’s side. On advice of Dr. Carmichael, and on account of the fact that the incision had not fully healed but was still draining, she returned to the defendants’ hospital in Port Worth on March 29, 1930. On that date the defendant Dr. Harris examined the wound made by the incision and removed the scab that had formed thereon and also made an exploratory examination of the inside of the incision to discover and remove the cause of the infection, evidenced by the discharge from the wound, and immediately^ after that treatment, she returned to her home áfter instructions from Dr. Harris as to how to properly care for herself.

According to allegations in plaintiffs’ petition, the defendants negligently failed to remove from the incision so made in Mrs. Sad-ler’s side a piece of cloth which had been used in packing the wound after the operation was performed, and, as a result of the presence of the cloth, the wound became infected, and as a result thereof she sustained great physical and mental suffering; and she sought a recovery of damages therefor.

In addition to certain special exceptions.' which will be hereinafter referred to, and a plea of general denial, the defendants presented a special plea asserting that the injuries of which Mrs. Sadler complained, if sustained by her, were the result of other ailments with which she had been theretofore afflicted, and which were the sole cause of the injuries alleged in her petition. And there was a further special plea of contributory negligence on the part of Mrs. Sadler in failing to return to the hospital for further treatment prior to the day she did return, as she had been instructed and advised by the defendants to do, and in further failing to procure medical treatment for her wound before returning to the hospital.

Following are the special issues submitted to the jury, with their findings thereon:

“Special Issue No. 1. Question:’ At the time that the plaintiff, Mrs. J. M. Sadler, left the Harris Hospital on August 4th, 1929, do you find from a preponderance of the evidence that there had been left in the incision which had been made in her abdomen a rag, gauze or packing? Answer ‘Yes’ or ‘no.’
“Answer: Yes.
“Special Issue No. 2. If youi have answered No. 1 mo,’ then you need not answer this question, but if you have answered thj same ‘yes,’ then answer this question:
“Question: Do you find from a preponderance of the evidence that said rag, gauze or packing,'if any you have found in answer to Question No. 1 above, caused the plaintiff, Mrs. Sadler, to suffer any injury and damages? Answer ‘yes? or ‘no.’
“Answer: Yes.
“Special Issue No. 3. If you have answered Question No. 1 above ‘no,’ then youi need not answer this question, but if you have answered the said issue ‘yes,’ then answer this question:
“Question r Do you find from a preponderance of the evidence, that the act, if any, on the part of the defendants, their agents, servants, or employees, in leaving said rag, gauze or packing, if any you have found, in the incision in question was negligence, as that term is defined for you above? Answer ‘yes’ or ‘no.’
“Answer: Yes.
“Special Issue No. 4. If you have answered Special Issue No. 2 above ‘yes’ and have further answered Special Issue No. 3 ‘yes,’ then you will answer this question, but if you have answered either of said questions ‘no,’ then you need not answer this question:
“Question: Do you find from a preponderance of the evidence that the negligence, if any you have found as above inquired about, was the proximate cause, as that term has been defined for you above, of the injury and damages, if any you have found? Answer ‘yes’ or ‘no.’
“Answer: Yes.
“Special Issue No. 5. Question: Do you find from a preponderance of the evidence that the injuries and disabilities, if any, which the plaintiff, Mrs. J. M. Sadler sustained were the result of an infection that set up solely from the diseased condition of her body at the time of the operation? Answer ‘yes’ or ‘no.’
“Answer: No.
“Special Issue No. 6. Question: Do you find from a preponderance of the evidence that the foreign matter which was removed by Dr. Harris in March of 1930, consisted only of some threads in a scab which he took off the wound on Mrs. Sadler? Answer ‘yes’ or ‘no.’
“Answer: No.
“Special Issue No. 7. Question: Do you find from a preponderance of the evidence that the plaintiff, Mrs. J. M. Sadler, was instructed to report back to the defendants after she left the hospital on August 4th, 1929? Answer ‘yes’ or ‘no.’
“Answer: No.
“Special Issue No. 8. Question: Do you find from a preponderance of the evidence that Mrs. J. M. Sadler was guilty of negligence, as that term is defined for you above, in failing to report back to the defendants after she left the hospital on August 4th, 1929? Answer ‘yes’ or ‘no.’
“Answer: No.
“Special Issue No. 9. If you have answered Question No. S ‘no’ then you need not answer this question, but if you have answered ‘yes’ to the said question, then answer:
“Question: Do you find from a preponderance of the evidence that the injuries and disabilities, if any, which the plaintiff, Mrs. J. M. Sadler sustained were caused solely by reason of her negligence, if any you have found, in failing tot report back to the defendants after she left the hospital August 4th, 1929? Answer ‘yes’ or ‘no.’
“Answer: -.
“Special Issue No. 10: If you' have answered special issue No. 2 above ‘no,’ then you need not answer this question, but if you have answered the same ‘yes,’ then answer ■this question:
“Question: How much damages, if any, do you find from the .evidence was sustained by the plaintiff, Mrs. J. M. Sadler, as a proximate result of there having been left in her incision a rag, gauze, or packing, if any you have so found in answer to Question No. 1?
“For your guidance in answering this question, you are instructed as follows:
“In estimating the damages, if any you find from the evidence sustained by the plaintiff, Mrs. J. M. Sadler, upon the occasion in question, as a proximate result of a rag, gauze, or packing, if any, having been left in her incision, then you may state what amount of money, if paid now, in cash, in your judgment, will fairly and reasonably compensate the plaintiff, Mrs. J. M. Sadler, for the physical pain, if any, and the mental anguish, if any, endured by her as a proximate result of a rag, gauze or packing having been left in her incision, if any you have found, from the time she left the hospital on August 4th, 1929, up to the present time; and if you further believe from the evidence that as a proximate result of their having been left in her incision a rag, gauze or packing, if any you have found, that in reasonable probability the plaintiff, Mrs. J. M. Sadler, will thereafter suffer physical pain or mental anguish as a proximate result of there having been left in her incision a rag, gauze or packing, if any you have found, then you may take those matters into consideration, in estimating the damages if any you find for Mrs. J. M. Sadler, and in estimating the damages, if any you find, you will only take into consideration and consider the elements which has been set forth above for your consideration.
“Answer: Ten thousand dollars ($10,000.-00).”

Plaintiffs’ petition embodied these allegations:

“That at the time of said operation said plaintiff was a woman fifty years of age and that prior thereto she had been strong and in good health but that since said operation and on account of the leaving of the said cloth or rag in the incision as aforesaid that she has become weak and her entire health has become greatly damaged and undermined, her nervous system has been greatly impaired and her life has been shortened, that all of such injuries have been accompanied with great mental pain and anguish, that all of such injuries are permanent and will continue for the rest of her life, and that she will in the future suffeV great pain and anguish therefrom all to her great and permanent damage in the sum of $35,000.00.”

The defendants complain here of the overruling of their two special exceptions to those allegations, reading as follows:

“They specially except to paragraph 6 of said petition wherein the plaintiffs simply sue for a lump sum of $35,000.00, for fee reason that it fails to set out and itemize upon what the $35,000.00 damage is predicated, and fails to state of what items the said $35,000.00 consists, and of this special exception the defendants pray judgment of the court.
“They specially except to that part of paragraph 6 of said petition, wherein it is alleged that the plaintiff will suffer pain and mental anguish in the future, for the reason that it is not alleged that damage from such suffering is reasonably probable, and for the further reason that such an allegation and ■such facts are too uncertain and indefinite on which to base a measure of damages or a recovery of damages, and is immaterial and is calculated to inflame the minds of the jury and should be stricken out, and of this special exception the defendants pray judgment oí the court.”

It is insisted that the defendants had the right to be put upon notice of the respective amounts plaintiffs sought to recover for the different elements of damages thus alleged in the petition. Authorities cited by appellant include the following: Sedberry v. Verplanck (Tex. Civ. App.) 31 S. W. 242; Randall v. Rosenthal (Tex. Civ. App.) 31 S. W. 822; Dallas Consol. Electric Co. v. Hardy (Tex. Civ. App.) 86 S. W. 1053; Suderman & Bolson v. Woodruff, 47 Tex. Civ. App. 229, 105 S. W. 217; Cisco Oil Mill v. Van Geem (Tex. Civ. App.) 166 S. W. 439 — all of which announce the general rule that one seeking relief must set forth the grounds upon which it is based and also the amount sought to be recovered, in order that the opposite party may be apprised of his demand.

But the announcement in those former decisions, to the effect that an erroneous ruling in sustaining or overruling special exceptions to a pleading which are not in effect a general demurrer will result in a reversal of the judgment upon the theory of presumed injury to the complainant, has now been changed by an unbroken line of later decisions cited in support of the text in 3 Texas Jurisprudence § 878, p. 1254, in part as follows: “An error in overruling a general) demurrer is fundamental and therefore essentially prejudicial. But the improper overruling of a special exception may or may not be prejudicial, and the burden of showing prejudice is cast by the rule upon the appellant; the error is not presumed to have been harmful, and consequently to constitute reversible error, in the absence of a definite showing of injury. More precisely, the appellant must show that the error has probably led to an improper judgment, that some rule of procedure in his favor has been violated, or that, owing to want of fullness or particularity of pleading, he was taken by surprise by the evidence introduced, defects in the pleadings, or allegedly erroneous orders sustaining, overruling, or striking- special exceptions to the pleadings.”

And in Tex. Jur. Supp. (1931) pp. 132, 133, a number of other decisions are cited to the same effect. Also see 3 Tex. Jur. pp. 1246-1253.

And since the record shows that, when confronted with the testimony introduced by plaintiffs to prove the alleged physical and mental suffering and damages resulting therefrom, appellants did not claim surprise and seek a continuance for the purpose of procuring testimony to rebut that offered by plaintiffs, but proceeded to offer testimony at great length in denial of that offered by plaintiffs, with no claim made on the trial or in their motion for new trial that they had other testimony which was not offered, no injury is shown as a result of the ruling complained of, and therefore the assignments now under discussion are without merit.

Bepositions of Br. Carmichael were introduced in evidence, and following is an interrogatory with the answer thereto: “Q. Bid you or not again see Mrs. Sadler after you had at first advised her to return to Br. Harris, if you did.so advise her, and if so, about how long thereafter? A. I saw her again after I had first advised her to return to Br. Harris. I advised her about 6 or 7 months thereafter, and she was unable to go.”

Error has been assigned to the action of the court in overruling objections offered by appellants to the introduction of that answer, on the ground that the statement in the answer, “and she was unable to go,” was not in response to the question.

In 15 Texas Jurisprudence, p. 76, the following is said: “It is held in a long line of decisions that the objection that an answer to an interrogatory is unresponsive is one that goes to the manner and form of taking the deposition and must be made in writing and on notice, the objection coming too late at the trial.”

Appellants cite such decisions as Purnell v. Gandy, 46 Tex. 190, Woosley v. McMahan, 46 Tex. 64, and Lindsay v. Jaffray, 55 Tex. 626, to support their contention that the objection now under discussion did not go to the manner and form of talcing the deposition and therefore was permissible though made ‘for the first time orally when the deposition was offered. We shall not undertake to determine whether or not the decisions so cited present a different holding from those referred to in Texas Jurisprudence, since it is clear that Br. Carmichael, being a practicing physician who had treated the wound of Mrs. Sadler, was qualified to give his opinion, contrary to another objection; and, his opinion so given being competent testimony, appellants have shown no injury by the ruling complained of; and, under the doctrine announced in 3 Texas Jurisprudence, cited above, that ruling did not constitute reversible error, at all events.

For the same reasons we overrule a further assignment of error to the refusal of the trial court to sustain the same objections and on the same grounds to another answer of Br. Carmichael, to the effect that Mrs. Sadler was unable to go back to the defendants’ hospital after she had first returned to her home.

In the court’s charge, this definition was given: “By the term, Proximate Cause, as used in this charge, is meant that cause which in a natural and continuous sequence, unbroken by any new independent cause, produces the injury complained of and without which, the injury in question would not have occurred, and from which it ought to have been foreseen or reasonably anticipated by a person in the exercise of ordinary prudence that the injury complained of or some similar injury would result naturally and probably in the light of the attending circumstances. There may be more than one proximate cause. ‘New Independent Cause’ as used in the above definition is a cause or agency over which neither the defendants nor the plaintiffs have any control, and which cause or agency a person of ordinary prudence under the same or similar circumstances would not have reasonably foreseen, as likely to occur and bring about the result complained of, and which cause is of itself sufficient to produce the injury in question.” „ •

To the giving of that definition, the defendants presented the following exceptions:

“(1) Because such definition erroneously requires that it be such a cause as a person of ordinary prudence would not reasonably have foreseen as likely to occur and bring about the result complained of, whereas, as a matter of law, to be a new and independent cause this is not necessary, but it is sufficient if it be a cause over which defendant had no control and which is of itself sufficient to produce the injury in question.
“(2) Because some act of the plaintiff, over which these defendants had no control, could have been a new and independent cause so far as these defendants are concerned, but under the definition herein complained of it must have been some cause over which neither of the parties had any control.
“(3) Because said definition requires that such cause must of itself be sufficient to produce the injury in question, when, as a matter of law, it is not necessary that the new and independent cause be the sole and sufficient cause of the injury.”

If plaintiff’s injury resulted solely from some independent agency or condition which was not brought about either directly or indirectly by any default of the defendants, then the same would be deemed an independent cause of such injuries, whether or not plaintiff had control over such condition Or agency, and independently of the further question whether or not, in the exercise of ordinary care, she should have foreseen injuries complained of as a probable consequence; and in that respect the definition in question was erroneous. 22 R. O. L. § 18, p. 132, and section 26, p. 142. However, that error in the instruction is not a sufficient ground for a reversal of the judgment, since, as shown by the verdict, there was a specific finding by the jury that the injuries and disabilities for which Mrs. Sadler sued were not the result of an infection that set up solely from the diseased condition of her body at the time of the operation. That diseased condition of Mrs. Sadler was the only independent cause of her alleged injuries that was pleaded by the defendants; nor did the evidence introduced suggest any other. The contributory negligence of plaintiff pleaded by the defendants could not be deemed an independent cause, since necessarily it involved the concurring alleged negligence of the defendants; and the defense of contributory negligence was rejected by the jury, as shown by the verdict.

The record shows that defendants seasonably presented the following exceptions to the court’s charge:

“These defendants object and except to special issue No. 10, and particularly that portion of it which permits the jury to award damages for any physical pain or mental anguish which the plaintiff may have suffered up to the present time, when there is no evidence to support any recovery up to the present time but on the contrary all of the evidence including that of the plaintiff, shows that she has completely recovered from said disabilities, if any, at this time, and had recovered within about a period of three weeks from the time she made her second trip to the hospital in March of 1930, and further because said instruction expressly informs the jury that they may take into consideration any physical pain that she may suffer in the future, when there is no evidence to support this element of damage.
“These defendants further object to the said issue as worded, because the said issue permits the jury to take into consideration and expressly instructs them that they will take into consideration any mental anguish which she may suffer in the future, when there is no evidence in the record to support such element of damage.”

And assignments of error are presented here embodying the contentions made in those objections. In support of those contentions appellants have cited testimony at length which tends strongly to show that, after the end of a period of three weeks following Mrs. Sadler’s dismissal from the hospital the second time, there was a complete recovery by her from the infected condition of the incision and that thereafter she enjoyed good health, was able to perform her household duties, and suffered no further inconvenience or disability, and that up to the date of the trial she suffered no further physical or mental pain, and that there is no reasonable basis for a finding that she will sustain any such in the future.

In their briefs, appellants admit that the evidence was sufficient to sustain a finding of physical and mental pain prior to the expiration of the three weeks following Mrs. Sad-ler’s return home from her second trip to the hospital, but the point they stress under these assignments is that the evidence fails to show that any such physical and mental suffering continued up to the time of the trial and fails to show any probability of such suffering in the future. The following are some excerpts from Mrs. Sadler’s testimony concerning her condition after she had returned home from her second trip to the hospital:

“Q. Well, after that (her return home from the second trip to the defendant’s hospital) did your wound ever heal after that? A. Well, it was about two weeks that it turned black, and they had to work with me dreadfully for two weeks, to save my life. During that time I had a high fever. By the time that I got home, after having left the hospital on this occasion, I had a fever that was . so high that I did not know much what I was doing. I had pain all the time.
“Q. Now, after that two weeks period of time, tell the jury something about your condition. A. Well, after the two weeks, after they got the blood poisoning down and out, why, it healed up, and it never gave me any more trouble since. My wound healed up, the incision place healed up, and it never has rose any more.
“Q. How about your eating after that? A. I got so that I could eat all right.
“Q. Well, tell the jury something about your general condition, your general health, and how you got along about that time? A. Well, I have been so nervous ever since, I can hardly stand for any little racket, it just goes all over me, just shoots through me, my nervous system is all broken up. I was not nervous before the first operation was performed on me. I stood everything fine.
“Q. Now, after this piece of gauze was removed, after those two weeks period of time, after you got back home, did you get to where you could do your housework? A. Well, I could do my housework, just what little housework I have to do now, Mr. Sadler and I, and what I cannot do, I leave undone; we don’t have to have anybody to help us.
“Q. Are you able to get around all right now? A. Well, I get around, but still I suffer with nervousness.
“Q.- Can you give the jury some idea about how this nervousness affects you? A. Well, whenever any little excitement comes, or little knocking or something comes, wliy it just goes all over me, and makes me very weak, and I have to lay down, sit down, or fall down, any shock of any kind.
“Q. How is your sleeping now? A. Good, pretty good, considering.”

Mrs. Sadler further testified that before the operation she weighed 210 pounds and still weighed 210 pounds, hut that “as to whether or not I am a pretty vigorous and healthy woman now, I will say ‘no sir,’. I have no strength. I can sort of do the house work that Mr. Sadler and I have. I reckon I do weigh as much as I ever did.”

She further testified that her appetite was not altogether good; that she does not sleep extra well, but sleeps well enough, although unable to lift or carry anything.

Under the rule of decisions announced in 13 Texas Jurisprudence, § 270, p. 464, and section 274, p. 474, we are unable to say that the*objections noted above to the court’s instruction on the measure of damages present reversible error. See, also, 17 C. J. § 151, p. 828.

Nor are we able to say, as appellants insist, under all the facts and circumstances in evidence, that the amount of damages awarded by the jury is manifestly so excessive as to show that in assessing the same the jury were influe’nced by bias and prejudice, and that therefore this court should decree a reversal of the judgment and a remand of the case for another trial. 13 Tex. Jurisprudence, pp. 464, 474, 484.

The remaining assignments of error present complaints of improper arguments to the jury by counsel for plaintiffs. At the outset, it is to be noted that none of the objections to the arguments which are presented here was made at the time of the trial, but each bill of exception thereto contains specific recital that “the objection to the argument was made for the first time in defendants’ motion for new trial.” The motion for new trial was heard and overruled nearly two months after the trial. The decisions in Willis & Bro. v. McNeill, 57 Tex. 465, Floyd v. Fidelity Union Casualty Co., 24 S.W.(2d) 363, by the Commission of Appeals, and Texas Indemnity Ins. Co. v. McCurry, 41 S.W.(2d) 215, 78 A. L. R. 760, by the Commission of Appeals, with express approval by the Supreme Court, all announce the rule that it is the duty of the trial court in the first instance to require counsel to “confine the argument strictly to the evidence and to the arguments of opposing counsel,” as provided by rule 39, “Rules for District and County Courts,” and that objections to improper arguments may be made to the court for the first time after the conclusion of the argument, and that it is the duty of the court to then exclude the argument if improper. However, we have been cited to no decision and have found none holding that objections to arguments of counsel may 'be made for the first time in a motion for new trial. Manifestly, it is then beyond the power of the trial court to instruct the jury not to consider the argument; and it is our conclusion that, by reason of that fact, the right to complain of the arguments as improper was waived. Moreover, we have examined all the. arguments complained of which are shown in bills of exception and are convinced that none of them shows reversible error, especially in view of the qualifications appended to some of the bills show'ing that the arguments therein set out were in reply to arguments of like kind by counsel for the defendants. And the bills of exception not so qualified embody, in part, remarks which were clearly warranted by the evidence, while the objections made were to the arguments as a whole without segregating those portions stressed in appellants’ briefs as prejudicial, from other remarks shown in the bills which were warranted. ,

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

On Motion for Rehearing.

In Floyd v. Fidelity Union Casualty Co., 24 S.W.(2d) 363, opinion by the Commission of Appeals, which was cited in our opinion on original hearing, it was said in part: “Improper argument injecting into the case matters de hors record that are inflammatory, and calculated to prejudice rights of losing party before jury, may, in proper case, be complained of on appeal, although objection was urged for first time in motion for new trial.”

But the argument there complained of was objected to at the time it was made, and, upon objection thereto, it was excluded from the jury by an instruction from the court; the'objection was not made for the first time in motion for new trial. Hence the announcement just quoted was not really called for in that ease, and was overlooked by us on original hearing. The improper argument there referred to was a comment on evidence which had been offered and excluded by the trial court. Hence that decision is clearly distinguishable from this case.

In Robbins v. Wynne, 44 S.W.(2d) 946, 949, an opinion written by Justice Critz of the Commission of Appeals, with express approval by the Supreme Court, presents an extended and instructive discussion of many prior decisions with respect to improper ai'gument. In that case the court sustained an assignment to an argument made by counsel as to what a witness would have testified if she had been permitted to do so. It was held that, as a matter of law, that argument was calculated to injure the other side and was misconduct which would necessarily result in a reversal for the same reason as would govern where the jury hears evidence outside of the record while it is deliberating on a verdict.

In discussing assignments to other arguments alleged to be improper, it was held that it is not always necessary for the complaining party to object to an improper argument at the time it is made in order to reserve the right to complain of the same on motion for new trial and'on appeal, as error, following the decision in Willis & Bro. v. McNeill, 57 Tex. 465.- But in that connection the court said: “We hold that the correct rule is that, if the argument be such, or is made under such circumstances that, if objection is made at the time counsel 'making the argument can offer explanation therefor which will render such argument proper, or can make such amends as will render the same undoubtedly harmless, or,' if the argument be of such a nature that its proper withdrawal by counsel or instructions by the court to the jury to disregard will cure the error, and render its harmful effect free from doubt, then the objections should be made at the time, and failure to do so waives the error. On the other hand, if the argument be' such that the converse of the above propositions is true, then it would be idle to say that opposing- counsel should object at the time, when the objection might do nothing more than render the improper remarks more damaging than they would be if he remained silent.”

The statement made in our original opinion that we had found no decision holding that objection to improper argument can be made for the first time in a motion for new trial, and that failure to object to the arguments complained of in this case prior to the hearing of the motion for new trial was a waiver of right to complain of the argument here is withdrawn. But those arguments complained of which were not provoked by arguments of like kind from appellant’s counsel did not refer to facts not introduced in evidence, and were not of such character that any probable injurious effect therefrom could not have been removed and avoided by a withdrawal thereof by counsel or by an instruction from the court; and therefore the failure of appellant to object thereto at the time was a waiver of right to complain of same here, under the last quotation from Robbins v. Wynne, supra, even though it could be said that they were improper.

Appellant insists that the rule that an assignment of error to the admission of testimony as a whole will not be sustained if a part of the testimony is admissible, even though another portion is subject to the objection, .is not applicable to arguments of counsel which are complained of as improper. Appellant insists that our holding on that point is not sustained by any decision in this state. Whether or not that be true, we perceive no valid reason for changing our conclusion, since we believe that the same basic reason for the rule just referred to, applicable to the admission of evidence, applies and should apply to such arguments.

With the correction noted, the motion for rehearing is overruled.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    HIMES et al. v. HIMES et al.
    No. 12723.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 22, 1932.
    Rehearing Denied Nov. 26, 1932.
    McLean, Scott & Sayers, of Fort Worth, for appellants.
    Clark & Clark, of Fort Worth, for appellees.
   CONNER, C. J.

This litigation is between the children and heirs of G. W. Himes, deceased. G. W. Himes became non compos mentis about December 1, 1924, and continued so until his death on April 26,1929. He died intestate, owning the following property, to wit: A promissory note for $910 executed by appellant J. M. Himes and secured by a deed of trust upon 60 acres of land hereinafter described; $1,044.60 cash in bank; several rent houses; and 40 acres of land.

The record shows that, from the time G. W. Himes became insane until the date of his death, appellant J. M. Himes took possession of the property .specified and cared for his father. There was no administration, or necessity therefor, of the estate of G. W. Himes, and J. M. Himes during the period specified collected in rents from the houses that belonged to his father $810, and owed the further sum of $240 of rents on said 40 acres of land.

This suit was instituted by J. E. Himes and other brothers and sisters of appellant J. M. Himes for an accounting and partition of the property of their said father.

Appellant’s evidence was to the effect that the moneys in bank and the rents received from the houses as above specified were used by him for.the benefit and in the care of his father, and the appellees are not now and here complaining of this fact or seeking any recovery on account of said appropriation of the moneys in the care of their father. The vital issues now and here relate to the said note of $910 executed by J. M. Himes and the status of the 60 acres of land upon which the said trust deed rested. As to these items the appellant pleaded that his father had given him the promissory note for his care and attention to, him, and that the 60 acres of land upon which the trust deed rested constituted a part of his homestead, and therefore was not subject to the lien of the trust deed.

Among other findings not necessary to mention in view of what we have already said, the jury, in answer to special issues, found that, in addition to the moneys in bank and rents collected from his father’s rent houses, appellant was due as rents on the 40 acres of land mentioned $6Q a year for the years 1925 to 1928, inclusive, aggregating $240, that appellant had not páid the promissory note for $910, and that the 60 acres of land securing it by deed of trust was not at the time of the execution of the note and trust deed appellant’s homestead. Upon the verdict of the jury, the court entered judgment against appellant for the principal, interest, and attorney’s .fees due upon said note, which, aggregated $1,668.30, and found that this sum was. secured hy a deed of trust upon the CO acres of land therein described, foreclosed the lien, found the properties were incapable of partition, ordered the sale of the 40 acres of land that belonged to the deceased, and divided and apportioned the proceeds to the respective parties in shares, of which no complaint is made, and of which, therefore, no detailed statement is necessary. From the judgment so rendered appellant J. M. Himes has appealed.

But two controlling questions are presented for our determination. The first is whether under the circumstances the court erred in excluding appellant’s tendered testimony to the effect that his father had given to him the promissory note in litigation as alleged in his answer; second, whether the 60 acres of land upon which the trust deed rested was at the time of the execution of the note and trust deed a part of appellant’s homestead.

While the assignment of error raising the question first stated is perhaps not sufficiently specific to require consideration, we have nevertheless concluded to dispose of it.

The appellant, after pleading demurrers and a general denial, presented the following special plea: “Further answering herein, defendant would show the court that the note in the sum of $010.00 mentioned in plaintiffs’ second amended original petition has been fully paid and satisfied, as shown by the allegations hereinafter contained; and further, that the alleged lien created by the execution of a deed of trust on the part of this defendant on the 1st day of December, 1022, and the land described therein, as shown by said deed of trust (being the same land and premises mentioned and described in plaintiffs’ second amended petition) and the description of said land mentioned therein, which is of record in the deed of trust records of Tarrant County, Texas, in vol. 176, page 307, is void and of no force and effect, for the reason that said'property, and premises so described in said deed of trust and against which said lien is claimed, was at the execution of said deed of trust, and is now, and has been during all of said intervening times, the homestead of this defendant and his family; that this defendant at the time of the execution of said deed of trust, and now, and during all of the intervening times, has been a married man, living upon' said premises, using, enjoying and cultivating the same as a homestead in the support and maintenance of his family, which consists of his wife and two dependent children.”

Upon the trial the plaintiffs, appellees here, called the defendant John Himes'as a witness in their behalf, and he was interrogated by counsel for plaintiffs. In answer to questions in behalf of plaintiff, he testified that the signature to the deed of trust shown him was his; that he signed and executed it and got $910 in December, 1924. And he was asked the following question: “You have never paid that have you? Answer: No, sir.”

In answer to further questions in behalf of plaintiffs, he testified: “That it was his signature to the deed of trust in controversy; that he had signed and executed the $910.00 note; that he had already owed his father something like half of the amount of the note; that his father filed the deed of trust. That after his father was stricken he drew some of the checks but he did not ask his father about all of them. That he had not paid his father any rent on the 40 acre farm since 1924.”

Witness was also interrogated as to various other transactions and conversations by the plaintiff on direct examination which we do not think pertinent to the questions under consideration and which therefore need not be detailed.

After the lengthy direct examination, on cross-examination he was asked by his counsel the following question: “Q. He (meaning !G. W. Himes) told you and your wife that he wanted you to have everything that he had? A. Yes, sir; he said they all had turned him down, and he wanted us to have everything that he had.” '

To this counsel for plaintiffs objected, and the court sustained the objection. Counsel for defendant excepted to the ruling, stating that: “This is their witness; they put him on the stand, on the witness stand, and this is an exception to the general rule.”

Mr. Clark for plaintiffs: “We are not asking for any conversation.”

Mr. Binion for defendant: “And we here now would like to prove what and show what he did say.”

Defendant was thereupon examined by counsel for plaintiffs and the following ap-, pears:

“Q. And if you get the money now, when you sell your place, why then, are you not. going to pay.it? .A. Not going to pay the note?
•“Q. Yes. A. My father gave me the note.
“Mr. Clark: That was ruled out yesterday and he repeatedly makes that statement.
“The Court: You are instructed not to consider the answer of the witness, that his father gave him the note for any purpose.” ,

Thus far it is plain that all of the testimony of the defendant relating to the alleged gift was voluntary, .was properly excluded, and affords defendant no right to claim plaintiffs have relinquished the right granted them 'by article 3716.

On further redirect examination by counsel for plaintiffs, the defendant John Himes testified as follows:

“Q. He (meaning G. W. Himes) didn’t have •confidence enougli tfiat fie didn’t get you to come to town and sign up a deed of trust for' tfiis money tfiat you were borrowing off of fiim? A. No, but fie had mind enough to give it to me.
“Q. He bad mind enough to give it to you; fie took a lien on the land in order to see tfiat it was paid, didn’t fie? A. Yes, sir.
“Q. And you came to town and signed up, and fie took it over here? A. When fie saw tfiat I bad kept fiim, fie said, ‘John, you can have it.’ Hé said, ‘John I will give it to you.’ He said ‘you and your wife can have everything I have got.’ He said ‘you are the only ones tfiat will take care of me. They have all turned me down, and when you turn — ’
“Q. You mean that your father told you that his daughter, Mrs. Beeves back there had turned fiim down? A. Yes, sir, she did, honestly.
“Q. Why didn’t fie mark that note paid, if fie was going to let you have it; why didn’t fie mark it paid? A. He couldn’t write at all.
“Q. He couldn’t write; why didn’t you get some witnesses in there to tfiat? A. I never thought anything about it; I thought tfiat he had a right to do what fie pleased with his property.
“Q. You know that it was a cloud on the title, and after he died tfiat it would have ■to be cleared up, didn’t you? A. I never thought anything about that; I didn’t know anything about any law suit.
“Mr. Clark: Now, fie has volunteered statements as to what his father told him, and of course we are willing for it, if we can go in and show what the father said; otherwise we want the court to strike it out.
“The Court: Gentlemen of the jury: You will not consider for any purpose the statements made by the witness’s father to him about the property.”

No exception appears to have been taken to tfiis ruling.

While the question may not be entirely clear, we have concluded to sustain the ruling of the court excluding appellant’s testimony, to the' effect tfiat his father gave him the note in controversy.

Article 3716, Kev. Statutes, reads as follows: “In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of -a decedent arising out of any transaction with such decedent.”

It is plain from a reading of the statute that parties as therein classified may not testify against others as to “any transaction with, or statement by” a decedent, unless called to testify thereto by the opposite party. The mere fact that the plaintiffs in this case called the defendant to establish the existence of the note and trust deed in controversy and had him detail conversations with his father, independent of and having no relation to the alleged gift of the note to appellant, will not relieve him of the statute’s restrictive operation. The loan of money and the execution of the note and trust deed is entirely independent of the question whether or not it was later discharged in the way of a gift from his father. Appellant stresses the fact that plaintiffs’ counsel inquired whether the note had been “paid,” to which the witness answered, “No.”

It is said in the ease of Cook v. Baker, 45 S.W.(2d) 161, by section B. of the Commission of Appeals, that the Supreme Court’s policy is to strictly construe the language of the article prohibiting testimony regarding transactions with deceased persons.

The term “payment” has a variety of meanings, but its primary means conveys the idea of a money transaction. See Howe v. Mittelberg, 96 Mo. App. 490, 70 S. W. 396. We find the following in Words and Phrases, Eirst Series, Vol. 6, page 5249:

“The term ‘payment,’ in its legal import means the satisfaction of a debt by money, not by exchange or compromise, or an accord and satisfaction” — citing cases.

Again, it is said in Words and Phrases, First Series, vol. 6, page 5243, that: “The use of the word ‘pay’ might be consistent with an intention to make a gift, but, when used with reference to the discharge of an obligation, will not be held to be used with that intention” — citing cases.

The answer of the witness, therefore, should be construed as having its primary meaning and .not in the sense of a discharge of the note by gift. Indeed, the answer of the witness, together with other answers hereinbefore detailed, indicates that the witness had in mind that by the use of the term “paid” the note had not been discharged by the payment of money; in other words, the witness himself distinguishes between a “payment” and a “gift.” 'The term “payment” imports an act by the defendant with the legal owner or holder of the note, whoever he or they may be, and hence the answer of the witness that he had not paid the note does not necessarily require the conclusion that there was any transaction or conversation with the deceased, the father of defendant. It was held in the case of Haugen v. Johnson (Tex. Civ. App.) 282 S. W. 1115, writ dismissed, that the “holder of executory contract for sale and purchase of land is not, under Bev. St. 1911, art. 3690, precluded by death of grantees from testifying that contract notes were never paid.”

Hence, as we view the question, no transaction” or “conversation” of 'any character was developed by that answer.

This court, in an opinion by Associate Justice Dunklin in the case of Huggins v. Myers, 30 S.W.(2d) 565, 567, approved the following quotation from Jones on Evidence, vol. 4, § 784: “The incompetency of the adverse party may also be removed by his being cross examined as to the transaction in question by the representative; and he is thereby rendered competent to testify to the whole of that particular transaction. The reason for this is ■obvious. The statute makes any person a party to or interested in the result of a suit incompetent to testify to conversation with deceased persons. * * * If he cross examines such a witness as to such conversations, so as to bring out a partial statement of any such conversations, he thereby waives the statute, and on redirect examination the witness is competent to give the whole of such conversation or qualify or explain the same.”

We are not entirely agreed as to the effect of the questions by plaintiffs’ counsel to defendant as to why the note was not marked “Paid,” this testimony being noted above. However, a decision on this point is not imperative in view of our unanimous views as below set out. It will be noted from the excerpts above that, after said questioning, counsel for plaintiffs, being apparently uncertain of his situation under article 3716, moved the court to exclude the testimony as being voluntary, but offered in open court that the testimony remain before the jury, prpvided plaintiffs were allowed “to show what the father said”; i. e., develop their side of the father’s statements regarding the giving of the note to defendant. This right he undoubtedly had if he had opened the matter by questioning defendant. To this proposition the defendant was silent. The court thereupon excluded the testimony, and ■defendant made no objection, nor took any exception to this final ruling. Apparently, at least, counsel for defendant agreed with-plaintiffs’ counsel and the court that those questions and answers last quoted did not relieve defendant of the silence imposed by article 3716. Acting thereon, the parties and the court excused the defendant from the stand and proceeded in trial. Several times thereafter counsel for defendant, when defendant was later returned to the stand, asked him questions approaching this matter of the deceased having given defendant the note. Each time plaintiffs’ counsel objected and’was sustained by the court. On ¡none of those rulings did the defendant reserve any exception, nor does he bring any of this matter forward in his brief. It is plain, therefore: (1) That the parties have tried their case on an agreed theory of presentation as far as this matter 'is concerned, and this court should adopt that theory and dispose of it accordingly; (2) we are in accord that nowhere, after any serious question arose that plaintiffs had relieved defendant of the prohibition of article 3716, did the defendant save any exception to the court’s refusal to allow him to detail transactions or conversations with the deceased as to giving the note to defendant. Either of these grounds is sufficient reason upon which to overrule the assignment.

To this it may not be inappropriate to add that there is no evidence referred to showing that the father of the parties to this suit either before or after his insanity was affected with any other disease or malady requiring the services of a physician, hospital fees, or special efforts required for his proper care, and that a mathematical calculation of the amounts of moneys on hand and rents received and appropriated by the defendant will show that he received for the 4 ⅛ years his father lived after his mental incapacity about $37 a month for the care of his father, and, if to this we add the $240 of rents due from the defendant to the estate of his father and the amount due upon the promissory note in question, - aggregating $1,558.38, it would amount to about $67 a month for such care.

The further question relating to the issue presented in the pleadings of whether the 60 acres of land upon which the deed of trust rested were defendant’s homestead was disposed of in the trial court in harmony with the jury’s answer to the fourth special issue. This issue, together with the answer of the jury thereto, reads as follows: “Was the 60 acres of land described in the deed of trust introduced in evidence the homestead of John Himes and his family at the time he executed said deed of trust on the first day of December, 1922? Answer: No.”

The trust deed described the 60 acres in question, and among other things contains this recital, to wit: “The premises herein described is now my homestead, and has never been claimed, used or occupied as my homestead, the undersigned owning and occupying other property as his legal homestead.”

The trust, deed was signed by appellant alone, the wife not joining. The evidence shows without dispute that for many years the defendant J. M. Himes and his wife owned, occupied, and used as their homestead a tract of 109 acres of land, of which the 60 acres in question was no part. Eater, and some time prior to the execution of the trust deed, J. M. Himes purchased the 60 acres which were situated across a road from the 109 acres which defendant and his wife occupied as their homestead. There is a contention to tlie effect that the defendants are estopped from claiming the 169 acres as their homestead because of the recitation in the trust deed which we have quoted. In reading this quotation from the. trust deed, it is apparent, we think, that the term “now” is a clerical error, and that for “now” the reading should he “not,” otherwise the entire paragraph is in hopeless contradiction. While it is true that under a well-known rule of decision a like recitation in a trust deed may constitute an es-toppel against a person not in the actual occupation of a claimed homestead, we do not regard the issue of estoppel in this case, for the record not only tends to show that the father, G. W. Himes, at the time of the execution of the trust deed and thereafter, was living with the defendant and his wife, and fully acquainted with the situation and with the use to which the 60 acres was subjected, but the record also undoubtedly shows that the issue of estoppel was pleaded by the plaintiffs, and it was not submitted nor does it appear that the plaintiffs requested a submission of it. It was therefore waived under the decision of Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084.

Nevertheless, defendants having ■ pleaded as a substantive defense that the 60 acres constituted a part of their homestead, the burden was upon them to prove it. Defendants insist that the evidence is wholly insufficient to sustain the verdict of the jury against them on this issue. The only evidence tending to support the issue is that of the defendant and his wife. Appellant thus presents it in his brief:

“Q..Well, why did you put in this deed of trust that you acknowledged before a notary public that it was not your homestead, and that you did not claim it? A. I never noticed that being in there.
“Q, When did you first claim that it was your homestead? A. When I paid for it.
“Q. When you paid for it. How came you to sign the instrument before a notary public, that it was not your homestead? A. I do not know that I signed that it was not.
“Q. You don’t know that you signed that it was not? A. No.
“Q. Do you live on some property out of the southeast corner of the Rogers survey in Tarrant County? A. Yes, sir.
“Q. About 16 miles east of Fort Worth? A. Yes.
“Q. How long have you lived there, John? A. About twenty some odd years.
“Q. Have you and your family lived there all of that twenty years? A. Yes, sir.
“Q. You have been married during that time? A. Yes, sir.
“Q. Has your wife been living there? A. Yes, sir.
“Q. Is that the same place where you took care' of your father? A. Yes, sir.
“Q. Have you or have you not supported your family out there? A. Yes, sir, I supported my family.
“Mrs._ John Himes, the wife of John Himes, testified' that she was the wife of John Himes; that she lived near Euliss in Tar-rant county on a farm; that she did not know how large the place was, nor whether it was about 60 acres of land out of the southeast corner of the Rogers Survey -in Tarrant County, Texas; that she had lived out there about 30 ■ years; that the land was paid for; and that she had 5 children. That she thought they had about 169 acres out there. That the property she and John lived on was the only property that they own. That it was their home. That she had no other home. That they had always claimed it was their home and were still claiming it as their home. That they owned 169 acres which had been bought at different times; that they once owned 109 acres and later bought 60 acres. That she had lived on the 109 acres for some time before' they bought this 60 acres. That they then went across the road and bought 60 acres more. That they didn’t live on the 60 acres at all but it was connected with their farm, and that it was across the road. That their original homestead was on one side of the road and had the house and improvements on it, and years later they bought 60 acres across the road. That they had 109 acres in a tract of land to start out with, that had not been bought in one block but at separate times. That they started out with 40 acres and built that up to 109 acres by adding adjoining land to it; that she didn’t, remember when they bought the 60 acre tract. That they cultivated the 60 acre tract and used it and that it was under fence, and that the 109 acres is all one tract on one side of the road and the other 60 acres is on the other side of the road; that there was nothing between the 109 acres and the 60 acres but the fence and the road, and since they had acquired the 169 acres they had used same as their home and their farm, and that all of that tract of land was under cultivation, and that they had used and enjoyed and occupied the 169 acres as their (home ever since they had acquired it.”

Article 16, § 51, of our Constitution, in so far as applicable, provides that: “The homestead, not' in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; * ' * provided, that the same shall be used for the purposes of a home.”

In construing this portion of the article of the Constitution, we here quote from the ease of Autry v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748, opinion by Chief Justice Gaines of the Supreme Court: “In defining what shall constitute a homestead, section 51 of article 16 of the Constitution expressly provides that the rural homestead may be one or more parcels, but at the same time provides ‘that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family.’ It is clear, therefore, we think, before a homestead can be claimed upon land, it must he used for some one purpose of a home, either by cultivating it, using it directly for the purpose of raising family supplies, or for cutting firewood and such like. The alleged fact that the father of the defendants in error cultivated the tract in question, having been found against the defendants in error by the trial judge, we find no evidence that the land was used for the purpose of a home, other than that the proceeds were probably used in support of the family.”

In view of the evidence, it will be noted that the defendant John Himes failed to state that the 60 acres in question constituted any part of his homestead at the time of the execution of the trust deed and note involved. The effect of this evidence was that it would be his homestead “when he paid for it” ; and other evidence in the record shows that it had not been paid for at the time of the execution of the trust deed and note. It will be further noted that the only evidence that the 60-acre tract was ever used for any purpose was the statement of the wife “that they cultivated the 60' acre tract and used it, and that it was under fence, and that the 109 acres is all in one tract, on one side of the road and the other 60 acres is on the other side of the road; that there was nothing between the 109 acres and the 60 acres but the fence and the road and since they had acquired the 109 acres they had used the same as their home and their farm, and that all of that tract of land was cultivated, and that they had used and enjoyed the 109 acres as their home ever since they had acquired it.”

No other witness testified to any character of use of the 60 acres. The statement of the witnesses that the 60 acres constituted their homestead is but a legal conclusion that must be supported by specific evidence of such character of occupation or use as will, under the Constitution, impress it with the homestead right. The mere cultivation of the 60 acres without proof that the crops raised thereon or .the proceeds thereof were actually used for the purposes of the home is not conclusive.

Moreover, the only testimony in the record offered in support of defendant’s plea of homestead is that of defendant himself and wife, and, both are evidently highly interested witnesses. It has been held frequently that the testimony of interested witnesses, even though' uncontradicted, only raises an issue of fact for the jury. See Stone v. City of Wylie (Tex. Com. App.) 34 S.W.(2d) 842,. 845; Krueger v. Bankers Lloyds (Tex. Civ. App.) 45 S.W.(2d) 363 ; Wade v. First National Bank (Tex. Civ. App.) 263 S.W.(2d) 654, 656, writ dismissed.

In Stone v. City of Wylie, supra, the court held: “But, if it be conceded that the pleadings are sufficient in this respect, there is no evidence raising such an issue except that given by defendant in error. He being an interested party, his testimony, though not controverted, could do no more than raise the issue for the determination of the jury.”

In Wade v. First Nat. Bank, supra, practically the identical question here presented was determined by the court, and doing so the court said: “Appellants also complain of the action of the court in submitting in his general charge issue No. 4 and the four special issues submitted at their own request, upon the ground that the finding of the jury upon those issues wag contrary to ,the undisputed testimony. It appears that in the trial below an effort was made by appellants to prove that the Sessions tract of 101 acres, included in the written designation, had not been used for homestead purposes. The evidence offered in support of that contention is found in the testimony of Wade and his wife. Both of these were interested witnesses, and the court could not, in submitting the issues of fact, assume the truth of their testimony even though it was undisputed. Their credibility was involved, and became a matter for the jury to pass on. The written designation of the homestead, when filed and recorded as required by tire statute, becomes at least prima facie evidence of what constitutes the family homestead; and, unless this is impeached because of some evasion of the law protecting the homestead, it becomes conclusive of that fact.”

We are of the opinion, therefore, that the. verdict of the jury on the issue of homestead, approved as it has been by the trial court, cannot be disturbed.

We find no other question raised by appellant’s assignments of error which require discussion, and hence for the reasons stated all assignments of error are overruled, and the judgment below is in all things affirmed.

On Motion for Rehearing.

Our attention has been called to the fact that the judgment below included attorneys’ fees of 10 per cent, upon the note of $910 mentioned in the pleadings and in our opinion. It appears that there is no allegation in the petition of plaintiffs that the note provided for attorneys’ fees, and there is no prayer for the recovery of attorneys’ fees. The judgment therefore is fundamentally erroneous to this extent, and it is ordered that the judgment be corrected so as to omit recovery of attorneys’ fees. In other respects the motion for rehearing is overruled.


author: WALKER, C. J. LAWHON, J.

text:
    THOMAS v. DRIVER.
    No. 2280.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 25, 1932.
    Rehearing Denied Dec. 21, 1932.
    Gibson & Blackshear, of Laredo, for plaintiff in error.
    Hodges & Greve, of Nacogdoches, for defendant in error.
   WALKER, C. J.

In this case in the court below defendant in error, R. I. Driver, recovered a personal judgment against plaintiff in error, Woodlief Thomas, for the sum of $14,714.34, with foreclosure of chattel mortgage lien against certain personal property described in the judgment. The appeal complains only of the judgment of the lower court overruling the plea of privilege of plaintiff in error to be sued in Webb county, his alleged residence.

The following propositions of error are urged by plaintiff in error.

First: In due time plaintiff in error filed his plea of privilege in the district court, which was in due form. He insists that defendant in error filed no controverting affidavit. The transcript, as brought up by plaintiff in error, contains no controverting affidavit, but on motion of defendant in error we granted him permission to file a supplemental transcript which contains a controverting affidavit showing the order of the presiding district judge duly signed by him setting the hearing on the plea of privilege at 9. o’clock a. m. on the 2d day of October, 1931, and directing that nptice be served on plaintiff in error. On this issue the judgment contains the following recitation of facts: “This the 5th day of October, 1931, this cause came on to be heard first upon Woodlief Thomas’ plea of privilege, which had been set for hearing October 2nd 1931, but was postponed to this date, service of the controverting affidavit having been had in the manner required by law, plaintiff announced ready and defendant by Gordon Gibson, a member of the firm of Gibson & Blackshear, Attorneys, appeared as Amicus Curia» for the defendant Woodlief Thomas, the pleadings were presented and evidence thereupon heard and the Court found that the note sued upon was payable at Nacogdoches, Texas, and that the attorney Gordon Gibson represented the defendant Woodlief Thomas.”

The record affirmatively denies this proposition.

In this connection plaintiff in error has filed a motion to strike the supplemental transcript. The motion to perfect the transcript was filed and presented to us on the day this case was submitted in this court and by affidavit proof was made showing good cause for the delay in filing the motion. In so far as the motion to strike controverts the fact issues made by the motion to file, we expressly find the issues in favor of the motion to file.

Second: It is contended that plaintiff in error was not served with notice of the controverting affidavit. The record contains no copy of notice served on him, and as he made no personal appearance and filed no answer to the merits, and as this is a direct: attack upon the Judgment of the lower court by way of appeal, plaintiff in error contends that the failure of the record to contain a copy of the service is fatal to the judgment. The proposition of law relied upon by plaintiff in error does not control the case. There is no statement of facts in the record. The following pleading was filed in the lower court by Gordon Gibson, who purported to appear as amicus curise:

“R. I. Driver vs. Woodlief Thomas, et al. #7229
“In the District Court, Nacogdoches County, Texas.
“To the Honorable the Said Court:
“Gordon Gibson, a practicing attorney of the Laredo, Texas, bar, respectfully requests leave of this Court to appear herein as amicus curiae for the purpose of calling the attention of the Court to the fact that this Court is without jurisdiction to hear and determine the questions purported to be raised by plaintiff’s affidavit in this cause controverting the plea of privilege of the defendant Woodlief Thomas, because there has been no legal service of the controverting affidavit upon said defendant or any other person on whom such service might be made according to law and said defendant Woodlief Thomas is without legal notice of the time and place of the hearing of such issues.
“Gordon Gibson, Attorney at Law,
Laredo, Texas.”

When this pleading was filed the trial court, by the recitations of the judgment, duly heard the_ issues raised by the pleading and determined, first, that Mr. Gibson did not appear as amicus curise but as attorney for plaintiff in error. On this finding plaintiff in error was in court as if he had appeared in, person. Second, plaintiff in error being before the court for hearing on the issues made by the plea filed by Mr. Gibson, the trial court found, as shown by the excerpt from the judgment quoted above, that service of the controverting affidavit had been had in the manner required by law. In the absence of a statement of facts, plaintiff in error is bound by the trial court’s conclusion that he appeared in the lower court by his attorney, Gordon Gibson, and that he was duly served with notice of the controverting affidavit.

In his original petition defendant in error also made Atha Thomas of La Salle county a party defendant. Since Mr. Thomas is in no wqy a party to this appeal, we have no power to consider plaintiff in error’s proposition complaining of the ruling of the lower court as it related to Mr. Thomas.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing.

As against our conclusions stated in the original opinion, plaintiff in error insists that Mr. Gordon Gibson appeared as amicus curise and not as his counsel. The facts recited on the face of the record support our conclusions on this issue. While Mr. Gibson filed a plea in this case, in which he requested leave of the court to appear as amicus curise, it is recited in the judgment that he appeared as “amicus curiae for the defendant, Woodlief Thomas.” No such office is recognized in our jurisprudence as amicus curiae for a party litigant. If Mr. Gibson desired to appear in this case for any purpose, he should have made his request of the court, and, if not granted, stayed out of the case. The court was not required by law to permit him to appear as amicus curise. Having appeared without an order of the court fixing his status, it was clearly the province of the court to require of him an explanation of his presence. Upon inquiry, the court found that Mr. Gibson was not an amicus curise, “a friend of the court,” “a by-stander,” but that he represented plaintiff in error in his appearance. As we have no statement of facts before us, we do not know all the circumstances in evidence relied upon by the court to support this conclusion. But the fact recited by Mr. Gibson in his plea, that he was “a practicing attorney of the Laredo, Texas, Bar,” within itself would support the trial court’s judgment. When an attorney leaves his home and travels across the state of Texas from the city of Laredo, on the west, to the city of Nacogdo-ches, on the east, for the purpose of appearing in a particular piece of litigation, the trial court is justified in believing that he had made this journey not as “a friend of the court,” but as diligent counsel for his client. Of course, if the court had granted Mr. Gibson permission to appear as amicus curias, we would have an entirely different question before us and this case might fall within the rule announced by Chicago, R. I. & P. Railway Co. v. Neil P. Anderson & Co., 105 Tex. 1, 141 S. W. 513, Ann. Cas. 1915A, 198; International & G. N. Railway Co. v. Moore (Tex. Civ. App.) 32 S. W. 379; Elliott v. Standard Steel Wheel & Tire Armor Co. (Tex. Civ. App.) 173 S. W. 616. But, as Mr. Gibson voluntarily appeared in this case, without an order of the court fixing his status, his client must bear the consequences of his relation, in fact, to this litigation, and the trial court having fixed this relation as attorney for plaintiff in error, plaintiff in error is bound by the judgment.

The facts recited upon the face of the record herein bring this proposition of amicus curise within the rule announced by this court in Olcott v. Reese, 291 S. W. 261; Walker County Lumber Co. v. Edmonds, 298 S. W. 610; by the Fort Worth Court of Civil Appeals in Fort Worth & D. C. Ry. Co. v. Greathouse, 41 S.W.(2d) 418, and by the San Antonio Oourt of Civil Appeals in Flinn v. Krotz, 293 S. W. 625, 626. The last case clearly holds that an attorney, though purporting to appear as amicus curte, may bind his client by his appearance where the appearance is not made by permission of the court. The court said:

“There is no merit in appellant’s contention that the activities of Mr. Faulk as ami-cus curiae constituted an appearance in behalf of the defendant. In the absence of any showing by evidence or presumption that he was acting at the instance of the defendant, his pleas and motions were not binding upon the defendant and cannot be treated as an appearance by the latter. Hurd v. Inglehart (Tex. Civ. App.) 140 S. W. 119, and authorities there cited.”

All other matters complained "of by plaintiff in error in his motion for rehearing have had our most careful consideration and are overruled without further discussion.

For the reasons stated the motion on rehearing is overruled.

LAWHON, J.

(dissenting).

When the original opinion was filed in this case, I had some doubt as to the correctness of the holding that the attorney, Gordon Gibson, was acting as the attorney for plaintiff in error and not as amicus curias, and that the action of the attorney constituted a waiver of service of the controverting answer to the plea of privilege. I have examined the record more fully and am convinced that we were in error in so holding. The only appearance in the record by Gordon Gibson is a suggestion, as amicus curte, that there had been no service of the controverting affidavit. The trial court erroneously referred to this instrument as an appearance as amicus curia; for the defendant, Woodlief Thomas. The instrument does not permit of the construction placed upon it by the trial court, and there can be no presumption that there was any other instrument filed. The certificate of the clerk states that the transcript contains “a true and correct transcript of all the proceedings had in cause styled R. I. Driver v. Woodlief Thomas, et al, No. 7229.” It is true, as stated in the opinion of Chief Justice WALKER on motion for rehearing, that it was necessary for the trial court to authorize the appearance of an amicus curiae, and that the judgment of the court shows that no such authority was given. The suggestion of ami-cus curte, as shown in the transcript and as copied in the opinion of the court, contains a request that the attorney be allowed to appear as amicus curia;. Inasmuch as the instrument was filed and appears as a part of the proceedings in the cause, we must presume that the court admitted the'appearance as amicus curia;, otherwise, the suggestion could not have been filed.

The trial court, in its judgment, found that service of the controverting affidavit had been had in the manner provided by law. The record shows that this statement is not true. There is no evidence of any legal service on the plaintiff in error. The only appearance, therefore, was such action on the part of the attorney, Gordon Gibson, as would amount to a waiver of service. Waiver of service is quite different from, service according to law. The only duty an amicus curias can perform is to call the court’s attention to some matter, without the knowledge of which the court might be led into error. The amicus curte can only call the court’s attention to such matters as the court could act upon without such suggestion. Moseby v. Burrow, 52 Tex. 396; State of Texas v. Jefferson Iron Co., 60 Tex. 312; Hurd v. Inglehart (Tex. Civ. App.) 140 S. W. 119. He is not permitted to take charge of and conduct the litigation, and the record in this ease does not show that the attorney in the court below did more than to make the suggestion of want of service.

In International & G. N. R. Co. v. Moore (Tex. Civ. App.) 32 S. W. 379, on page 380, the court said: “The appearance of John A. Green, Jr., as amicus curte, although he may have been defendant’s regular attorney, did not bind defendant as an appearance; and it appears that the court did not consider his act as such an appearance, and appellee does not seem to claim that such was its effect. Birmingham Loan & Auction Co. v. First Nat. Bank, 100 Ala. 249, 13 So. 945 [46 Am. St. Rep. 45].”

In Elliott v. Standard Steel Wheel & Tire Armor Co. (Tex. Civ. App.) 173 S. W. 616, 617, it is said: “The third assignment is overruled. It is not believed that the appearance of the regular attorney as amicus curte to object to sufficiency of service * * * was' in this case an appearance of the company.”

The court cites International & G. N. R. Co. v. Moore, supra, and Olsen v. Insurance Co., 11 Tex. Civ. App. 371, 32 S. W. 446. The court must have known, in these cases, that the attorneys appearing as amicus curia; were, in fact, attorneys for the defendants, as this fact is found in both opinions. Notwithstanding this, the court holds that an attorney for a party who makes suggestion as ami-cus curte does not thereby waive service on the defendant. The Supreme Court, in Chicago, R. I. & P. R. Co. v. Neil P. Anderson & Co., 105 Tex. 1, 141 S. W. 513, Ann. Cas. 1915A, 198, recognized the right of an attorney for the defendant to appear as an amicus curte. There it was known by the trial court that the amicus curia; was the attorney for the defendant, and, on appeal, he appears as one of the attorneys of record for defendant in the court below.

In Olcott v. Reese (Tex. Civ. App.) 291 S. W. 261, and Walker County Lumber Co. v. Edmonds (Tex. Civ. App.) 298 S. W. 610, both opinions Raving been written by Judge Walker, now Chief Justice of this court, the court held that the defendants had entered their appearance prior to the suggestions by ami-cus curias. In Flinn v. Krotz, 293 S. W. 625, by the San Antonio Court of Civil Appeals, the opinion by Judge Smith, the court held that the activities of the amicus curiae did not constitute an appearance and waiver of service. There are expressions in all of these cases to the effect that an attorney cannot, under the guise of an amicus curiae, avoid the consequences of his appearance on that ground. These expressions were not necessary to a decision in any of the cases. The law provides a method of service and the courts should require such method to be pursued unless it has been clearly waived. I do not believe that an attorney who merely suggests to the court that there is.no service on his client thereby waives such service. This is especially true where he makes the suggestion as amicus curiae.

The record does not support, in my opinion, the finding that the defendant was served with notice of the controverting affidavit, or that the attorney appeared in any other capacity than as amicus curiae.


author: BARCUS, J.

text:
    SHAW, Banking Com’r, v. HEAD et al.
    No. 1295.
    Court of Civil Appeals of Texas. Waco.
    Dec. 8, 1932.
    John W. Goodwin and J. H. Brown, both of Austin, for appellant.
    Tirey & Tirey, of Waco, for appellees.
   BARCUS, J.

On September 24, 1931, appellant obtained judgment in the district court of Bosque county against J. P. Head for $4,000,v the amount due by him for an unpaid subscription to stock in the state bank of Walnut Springs, the subscription to said stock having been made on December 20, 1929. An abstract of said judgment was duly recorded in Bosque county on October 16, 1931. On November 20, 1931, execution was issued on said judgment and levied upon lots 11 and 12, in block 2 of the town of Walnut Springs as the property of appellee J. P. Head. On December 31, 1931, this suit was instituted by appellees J. P. Head and R. G. 1-Iead against the sheriff of Bosque county and James Shaw, Banking Commissioner of Texas, to restrain the sale of said property under and by virtue of said execution, R. G. Head claiming title to the property and J. P. Head claiming the property as his business homestead. The cause was tried to the court and resulted in a permanent injunction being issued restraining •the sale of said property. The banking commissioner alone appeals.

The record discloses that. J. P. Head was 76 years of age, had lived many years in Walnut Springs, and been in the service of the railroad company, from which employment he retired May 1, 1930. I-Ie owned lots 11 and 12, the property in controversy, on which about 1925 he built a business house and rented same to Carlton Bros, by the month and said tenant conducted a mercantile business in said property. At different times beginning in 1929, prior to the time J. P. Head retired from the railroad service in May, 1930, he discussed with Carlton Bros, the question of opening a rental and insurance business, using a portion of the building for his office, and they agreed thereto. At the time of his retirement from the railroad service, J. P. Head was in very poor health and he devoted some months at health resorts to regain his strength. In the fall of 1931 he opened his real estate and insurance business and occupied a portion of said building as his office and place of business. On December 2, 1929, J. P. Head by general warranty deed conveyed the property in question to his son, R. G. Head, retaining and reserving to himself for the period of his natural life the income and rents and use of said property.

The trial court -did not file its separate findings of fact and conclusions of law. In its judgment, however, it found that the deed from J. P. Head to his son, R. G. Head, on December 2, 1929, conveyed title to R. G. Head, free of all claims of every nature except the income, rents, and use of said property which was reserved in said deed by J. P. Head for his benefit during his natural life; that J. P. Plead was the head of a family and resided in Walnut Springs and was entitled to a business homestead and bad about May 1, 1930, impressed the property in controversy, together with the improvements thereon, as his business homestead.

Appellant, by proper pleading, raised the issue and in this court contends that the conveyance by J. P. Head to his son, R. G. Head, on December 2, 1929, was void under and by virtue of article 3997, Revised Statutes, which article provides that every gift of property shall be void as to prior creditors. Appellant’s contention is that the state bank of Walnut Springs, which was being liquidated by him, had notes and claims against J. P. Head that were due and payable prior to said date, and that, for said reason, said deed was as to the bank void. While there is some testimony tending to show that at the time J. P. Head executed the deed to his son, R. G. Head, he was indebted to said bank, no effort had been made to collect said debts, no suit had been brought thereon and J. P. Head testified that he was not in fact indebted to said bank. The judgment which appellant obtained against J. P. Head and on which the execution in question was issued, was on a claim that accrued after said deed was executed and delivered and said statute is not therefore applicable. Appellant is not entitled to have said deed declared void on an allegation that it holds a debt which was in existence prior to the time it was executed and delivered in the absence of an allegation and proof that it was attempting in some way to enforce the collection thereof.

Appellant further contends that there was no evidence to support the trial court’s finding that J. P. Head had impressed his life estate in said property as his business homestead. We overrule this contention. Under the record we think the evidence is sufficient to support the trial court’s finding on this issue.

We have examined all of appellant’s assignments of error and same are overruled. The judgment of the trial court is affirmed.


author: BAUGH, J.

text:
    McCORMICK et ux. v. WEST TEXAS LUMBER CO.
    No. 7812.
    Court of Civil Appeals of Texas. Austin.
    Nov. 30, 1932.
    Kerr & Gayer, of San Angelo, for appellants.
    Upton & Upton, of San Angelo, for appel-lee.
   BAUGH, J.

Appeal is from an order of the district court overruling appellants’ plea of privilege to be sued in Selileicher county, the place of their residence.

Appellee sued appellants on two promissory notes executed by them, payable to the order of appellee, in Tom Green county, and for foreclosure of deed of trust lien executed by them on real estate in Schleicher county, to secure the payment of these notes. Appellants’ plea of privilege was duly controverted by appellee. Upon the trial of the issue of venue, appellee proved the execution and delivery of the notes, and that they were payable in Tom Green couhty. Appellants thereupon offered in evidence a release executed by appellee, acknowledging payment of the notes and releasing the lien sought to be foreclosed, which had been executed prior to the filing of the suit, and had been duly recorded in Schleicher county. This evidence was excluded by the trial court, and exception duly taken.

It is tlie contention of the appellants that this evidence should have been-admitted, and that if it had been admitted would have shown that venue did not lie in Tom Green county.

We do not agree with this contention. Appellants admitted upon the trial the execution of the notes, and that they were payable in Tom Green county. The testimony offered was tantamount to a plea of payment, which was clearly a matter going to the merits of the suit and not determinative of the proper forum in which the suit could he brought. When the appellee proved the execution and delivery to it of a written, instrument payable in Tom Green county, it rebutted the prima facie case authorizing transfer of the, suit made by the plea of privilege. All matters, therefore, relating to payment of such notes, failure of consideration, or breach of contract otherwise, were matters of defense to the merits of the suit and not pertinent to the issue of venue. Had this testimony been admitted on the issue of venue, the appellee would doubtless have countered that the notes had not in fact been paid, and the question of whether anything was yet due upon them would then have been litigated on the issue of venue. In other words, it would have been necessary to have tried the case on its merits on the issue of venue. This the statute does not contemplate and the authorities do not sustain. Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.(2d) 810; Davis v. Texas Life Ins. Co. (Tex. Civ. App.) 22 S.W.(2d) 960.

In testing the issue of venue the contract sued upon must be looked to alone to determine that question, where undeniably executed by the parties to the suit. Russell v. Green (Tex. Civ. App.) 214 S. W. 448. And when looked to in this case it affirmatively appears that the district court of Tom Green county was the proper tribunal in which to try the case. The judgment of the trial court is therefore affirmed.


author: JONES, C. J.

text:
    SIMMS OIL CO. et al. v. BUTCHER.
    No. 11078.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 19, 1932.
    Rehearing Denied Dec. 17, 1932.

      Thompson, Knight, Baker & Harris, Dwight B. Simmons, and Robert Lee Guthrie, all of Dallas, for appellants.
    Walter M. Van Nort and Crate Dalton, both of Dallas, for appellee.
   JONES, C. J.

In a district court of Dallas county, appel-lee, W. T. Butcher, obtained a judgment of foreclosure and order of sale on a business lot in the city of Dallas, against appellants Simms Oil Company and Hopkins-Crandall, Inc., to satisfy a judgment indebtedness of §2,256.73, with interest at the rate of 6 per cent, per annum from September 25, 1926, and for the additional sum of $166.40 as court costs, against R. Carnahan, as surety on a supersedeas bond. Judgment for a like amount was obtained by Simms Oil Company against M. L. Jones and the National Bank of Arkansas, as executors of the estate of R. Carnahan, deceased, as warrantor of the title to the land. The Simms Oil Company and the executors have duly perfected an appeal to this court. For convenience, Simms Oil Company will be styled appellant, and M. L. Jones and the National Bank of Arkansas, as executors. The facts are as follows:

On or about September 25, 1926, appellee recovered judgment against one George E. Shuttles, in the district court of Dallas county, for the Ninety-Fifth judicial district, in the sum of $2,256.73. Shuttles perfected an appeal from this judgment to this court, executed a supersedeas bond with J. D. Crandall and R. Carnahan as apparent sureties, in the amount required by law. The cause was duly transferred from this court to the El Paso Court of Civil Appeals, and on December 8, 1927, the latter court affirmed the judgment of the district court, and entered the usual judgment against the sureties, whose names appeared on the supersedeas bond. This judgment was properly abstracted in Dallas county on July 5, 1928, and it was the statutory lien, created by the abstract of this judgment, appellee sought by this suit to foreclose. At the time the judgment was abstracted, R. Carnahan was the owner of the lot or parcel of land in question. During the same year and after the abstract of judgment was filed, Carnahan duly conveyed the land by warranty deed to Hopkins-Crandall, Inc., which latter company conveyed the land by warranty deed to appellant. After the judgment of aflirm-anee was rendered, Carnahan died, and M. L. Jones and the National Bank of Arkansas duly qualified as executors of his estate.

As an equitable defense to appellee’s suit, appellant alleged in its verified answer: “That the supersedeas bond described in plaintiff’s petition and alleged to have been executed by George E. Shuttles as principal, and J. D. Crandall and R. Carnahan as sureties, was not signed or executed by R. Carna-han, nor by any person authorized by him to sign or execute it for him; that said instrument in writing was made without R. Carna-han’s knowledge or consent, and that he has never at any time since ratified or confirmed the same.”

In their verified answer, the executors alleged : “ * * * That if the name of R. Car-nahan appears to have been signed to any such supersedeas bond as that described in plaintiff’s petition, the said R. Carnahan’s name to such bond was forged without his knowledge, that he never was a party to the appeal in which such purported supersedeas bond appears to have been filed, and that the purported judgment upon such forged signature to said alleged supersedeas bond is void and of no effect and force whatever; that no rights ever accrued against the said R. Carna-han, or against his estate or the representatives of such estate, by reason of said judgment which was void, and that the said W.T. Butcher’s assertion of a claim against any property owned at the time such purported judgment was rendered is of no force and effect and cannot constitute the basis of any claim either against the estate of the said R. Carnahan or against any property, the title to which has heretofore been warranted by the said R. Carnahan, for which reason the plaintiff is not entitled to recover either against Simms Oil Company or against the estate of R. Carnahan, or any other -persons perforce of the attempt to assert a lien by abstracting said void judgment.”

To each of the allegations above set forth, the court sustained a general demurrer and a special exception which had the force of a general demurrer. The special exception sustained is that the allegations constitute a collateral attack upon the judgment of the El Paso Court of Civil Appeals. This special exception contained matters that are in the nature of a plea in bar, and we conclude that such part of the exception was not sustained by the trial court. As the result of the ruling of the court on the general demurrer and special exception, appellants were not permitted to offer evidence on the issue of the forgery of the name of R. Carnahan to the supersede-as bond. Appellants duly excepted to the ruling of the court in this respect, and have assigned error only on this ruling. The ease was tried on the issues made by appellee’s pleading and the cross-action of appellants, and the judgment above described duly entered.

The allegations stricken from the pleadings of appellant and the executors sought to obtain relief from a judgment entered against R. Carnahan on an instrument alleged to have been forged as to him, and hence not binding on them. This pleading constitutes a collateral attack upon the judgment of the El Paso Court of Civil Appeals. Hence the question for decision is, Can an apparent surety on a supersedeas bond, whose name was forged thereto, establish the fact of such forgery, in a proceeding to enforce the judgment against him, in a collateral attack on the judgment entered against him by an appellate court as such surety?

For the purpose of this appeal, we must assume the truth of the allegations by the executors and appellant that Carnahan neither signed nor authorized the signing of his name to the supersedeas bond, and that his signature thereto was forged. The appellate court could obtain jurisdiction of the person of Carnahan as a surety on the supersede-as bond alone by his voluntary act of signing it. ' As such bond was not signed by him, he never became a party to the proceedings in which the judgment was entered, and no power to render judgment against him was ever vested in the appellate court. Such court having no power to render a judgment against Carnahan, the rendition thereof is void. The general rule of law is well established in this state that a judgment rendered by a court, even of general jurisdiction, is void, if such court had, at the time of the rendition of the judgment, no jurisdiction over the person against whom the judgment is rendered. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325.

However, not every judgment that is in fact void can be impeached by means of a collateral attack. The general rule is that, the infirmity of the judgment, in the respect that renders it void, must appear on the face of the record, and cannot be shown by evidence aliunde, except in a proceeding that constitutes a direct attack on the validity of the judgment. It is the settled rule of law in this state that, on any matter upon which the court must have passed in the rendition of the judgment against a party to the proceedings, such judgment, on a collateral attack, is immune from evidence aliunde the record. Crawford v. McDonald, supra, and cases therein cited. The jurisdiction over the person of a defendant litigant in a court of general jurisdiction rests either upon the due service of process on such litigant, or some act of his which amounts to voluntary submission to the jurisdiction of the court. Before judgment can be entered against such litigant, the court is bound to inquire into the regulariry and sufficiency of the service, and the fact that a judgment is rendered in the suit constitutes a conclusive presumption that the court did investigate the service and pronounced it valid, even though there is no recital of such fact in the judgment. The question of service vel non thus becomes an issue adjudicated by the court. In such a case, the record is held by our courts to import absolute verity, and cannot be contradicted by evidence in a collateral attack, to show that the defendant was not in fact served. Stapleton v. Wilcox et al., 2 Tex. Civ. App. 542, 21 S. W. 972.

Bearing in mind the fact that the jurisdiction of the appellate court, in the instant ease, could be obtained solely upon the voluntary act of Carnahan in signing the su-persedeas bond, if the appellate court must necessarily have passed upon the genuineness of his signature to the bond, before the rendition of judgment against Carnahan as a surety, then it would be conclusively presumed that the appellate court entered into such inquiry, pronounced the signature genuine, and in that event neither appellant nor the executors could contradict such presumed adjudication -of this jurisdictional fact in the collateral attack on the judgment. It is a fact, however, that appellate courts make no inquiry into the genuineness of.the signatures to an appeal bond, but accept such signatures as they are found in the record. Such courts do not, and ordinarily cannot, undertake to ascertain whether or not the sureties actually executed the instrument, for they have no means of making such an inquiry, unless an issue is directly made before such court of this fact. Stapleton v. Wilcox, supra; Waurika Oil Ass’n v. Ellis (Tex. Civ. App.) 267 S. W. 523.

As to the jurisdiction of the appellate court over Carnahan, to render the judgment against him as surety on the supersedeas bond, the case assumes the aspect of the rendition of a judgment against him with no inquiry being made as to the genuineness of his signature to the supersedeas bond, and no adjudication by the court of the fact of its jurisdiction over him. There is an obvious distinction between cases of the character of the instant case and cases in which a defendant in a suit attempts in a collateral attack to impeach a judgment rendered against him because of a claim that he was not actually served with citation. In the latter class of cases, the issue of service was actually adjudicated by the court, while in the instant case, as we have seen, there was no adjudication of such issue. In the one class of cases, our courts say the adjudication of service, as a matter of public policy, must be held final until set aside by a direct attack. Crawford v. McDonald, supra, and cases therein cited. In the other class of cases, in which the instant ease falls, our courts say that, as the matter of jurisdiction over the complaining person was never adjudicated by the court, the reason for the public policy rule, which controls the former class of cases, does not exist, and, the judgment against the complaining person being void, for want of jurisdiction, such person can attack collaterally the judgment against him in any proceeding in which such judgment is sought to be enforced. Stapleton v. Wilcox, supra; Waurika Oil Ass’n et al. v. Ellis, supra.

We therefore hold that the court erred in sustaining the general demurrer and special exception, striking out the allegations in the respective answers of the executors and the appellant to the effect that Carnahan’s name was forged to the supersedeas bond, and that for such error this case must be reversed and remanded.

Reversed and remanded.