author: CONNER, Chief Justice.

text:
    MARY COUTS BURNETT TRUST et al. v. SAMUELS.
    No. 12769.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1933.
    Rehearing Denied April 1, 1933.

      Slay & Simon, of Eort Worth, for appellants.
    Samuels, Foster, Brown & McGee, of Fort Worth, for appellee.
   CONNER, Chief Justice.

This suit was instituted in the county court by the appellant trust against A. W. Samuels to recover the sum of $498.30 as the balance remaining unpaid on an original indebtedness of $664.40.

The trial resulted in a judgment in favor of appellee Samuels, and the trust has appealed.

The facts, which were duly presented in the respective pleadings of the parties and proved on the trial, are substantially as follows: On the 22d day of January, 1930, Samuels was indebted to the appellant trust in the sum of $664.40, for which he executed his check, payable to the trust in said sum; the check .being drawn on the Texas National Bank of Fort Worth, Tex., which bank failed and closed its doors on January 31, 1930. The check was not presented for payment to the bank, which was located in Fort Worth within seven blocks of the office of the trust, on the following day or on any succeeding day thereafter until the 31st day of January, 1930. On February 1, 1930, the check went through the clearing house of the Fort Worth banks and was presented for payment to the Texas National Bank and then refused. It was further pleaded and shown that the failure of the Texas National Bank occurred on the 31st day of January, 1930, and on each and every day from the 22d day of January, 1930, up to and until the bank closed its doors, Samuels had to his credit in the bank more than enough to pay the check had it been presented by the payee. After the check had been presented to the Texas National Bank and after Samuels knew that said check had been so presented for payment and refused, he made a verbal promise to the secretary of the trust and to the attorney of the trust that he would make the check good and pay the amount of same.

It further appears that the bank, since the date of its failure and since the time of the subsequent promise to pay on the part of Samuels, made two payments to its depositors in the amounts of 25 per cent, gnd ten per cent., respectively, which aggregated the sum of $232.54. These two dividend payments were paid to the trust by Samuels, thus leaving an unpaid balance of $431.86 due upon Samuels’ original obligation which has never been paid.

The trial court concluded that the trust was negligent in failing to present the check to the bank on the day following its execution or within a reasonable time thereafter, and that as a result of the failure of the bank and of the negligence of the trust in presenting the original check for payment in due time, Sam-uels had lost the amount of the unpaid balance hereinbefore set forth.

The court further concluded that Samuels’ subsequent promise to pay the amount of the check was without a supporting consideration and did not constitute a waiver of the negligence found nor in any way waive or dispense with the necessity of the" due presentation of the check for payment, and judgment for appellee was accordingly rendered as stated in the beginning.

Section 186 of article-5947 of the Negotiable Instruments Act provides: “A check must be presented for payment within a reasonable time after its issue or the drawer will be discharged from liability thereon to the éxtent of the loss caused by the delay.”

Section 193 of article 5948 provides that: “In determining what is a ‘reasonable time’ or an ‘unreasonable time,’ regard is to be had to the nature of the instrument, the usage of trade or business (if any), with respect to such instruments, and the facts of the particular case.”

Under these provisions it seems clear that the court properly held the appellant trust was not 'entitled to recover on the check as such, for the court found that the delay of five days in the presentment of the cheek was an unreasonable delay constituting negligence, and this finding we think must be supported. The operating offices of the trust and the bank were in the same city and within a short distance of each other, and the delay of five days in the absence of any circumstances excusing the delay seems certainly sufficient to uphold the finding of an unreasonable delay. Indeed, the trust through its counsel admits negligence in this respect, so that we have only to determine whether the •court was in error in denying a recovery upon Samuels’ subsequent promise to pay tbe unpaid balance of the debt as evidenced by the chech.

In a determination of this question it is to be noted that it was agreed that there was an, original debt of $664.40 existing at the time the cheek was drawn. The execution and delivery of the check did not operate as an extinguishment of the original debt. The check merely authorized the bank to pay the drawee the amount shown on its face out of the moneys in the bank to the credit of Sam-uels. The difference, therefore, between the amount for which the check was drawn and the payments by Samuels of 25 per cent, and 10 per cent, dividends in his favor by the receiver of the bank’s assets constitutes that portion of the original indebtedness which has never been paid. This balance without dispute Samuels promised to pay after the admitted negligence of the trust in failing to present the check for payment within a reasonable time. He in fact did pay the amounts of the several dividends paid by the bank to him as one of its creditors.

It is insisted in behalf of appellee that such promise under the circumstances was without consideration and does not amount to a waiver on his part of the bank’s failure to' duly present the check for payment.

In R. C. L. vol. 3, p. 1242, § 469, the following is said: “The doctrine is well established that if an indorser with full knowledge that he has been discharged from liability by the failure of his indorsee to make proper demand and give due notice of non-payment, promises to pay the note or acknowledges his liability therefor, he thereby binds himself and may be proceeded against as if -his liability had been legally fixed in the first instance.”

In Corpus Juris, vol. 8, p. 709, § 993, it is said: “It is well settled that if the drawer or indorser, with full knowledge of the neglect of the holder to exercise due diligence, promises to pay the bill or the note, he is held to have waived the consequences of the laches and will stand in the same position as If he had been regularly charged by presentment, demand and notice.”

In the notes to the case of Sebree Deposit Bank v. Moreland, by the Kentucky Court of Appeals, 29 L. R. A. 305 (96 Ky. 150, 28 S. W. 153), will be found numerous cases declaring the doctrine announced in the authorities from which we have just quoted.

Our Negotiable Instruments Act treats promissory notes, bills of exchange, and checks as in the same category, and in the case of Stone v. Smith, 30 Tex. 138, 139, 94 Am. Dec. 299, the Supreme Court said: “A party to a bill of exchange, who has been relieved from responsibility thereon through failure of the holder to present it in proper time, may waive the consequences of such neglect. As where the indorser, after full, knowledge that he is discharged, promised to pay the bill, it will amount to a waiver.”

In principle we see no material distinction between the case of Stone v. Smith and the present one, and we have failed to find that that case has been overruled or modified by our own courts. It would seem that Samuels gave the strongest evidence of a purpose to disregard and waive the negligence of the trust in failing to present the check in due time, for he was not only informed of that fact, but he, after knowledge of that fact, himself paid to the trust the several dividends that had been declared in his favor by the bank and verbally promised to pay the remainder of the original indebtedness. The trial court concluded as a matter of law that there was no waiver and that the verbal promise was without consideration. But in the plaintiffs’ petition both the original indebtedness of $664.40 of Samuels and the facts relating to the check and its nonpayment are distinctly set forth in the plaintiffs’ petition with the general prayer for relief, and we conclude that the antecedent indebtedness declared upon constitutes a sufficient consideration to support the verbal promise. Section 25 of article 5933, of our Negotiable Instruments Act, provides that: “Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time.”

And cases such as appear in the report of the case of Sebree Deposit Bank v. Moreland, hereinabove cited, which hold that a subsequent promise to pay a bill of exchange will not bind an endorser who has been released by lack of notice, qualify the ruling by accepting instances where the subsequent promise is supported by a consideration.

We accordingly approve the trial court’s findings of fact but conclude that he erred in his conclusions of law, and that upon the uncontested facts of the case the judgment below should have been in favor of the appellant trust. It accordingly is ordered that the judgment below in favor of appellee be reversed and here rendered in favor of the appellant Mary Couts Burnett Trust for the sum of $431.86, together with.interest at the rate of 6 per cent, per annum from and after January 1, 1931, and all costs of suit.


source: Caselaw Access Project

author: CRITZ, Judge. CURETON, Chief Justice.

license: Public Domain

text:
    WOOD v. SPARKS et al.
    No. 1656-6116.
    Commission of Appeals of Texas, Section A.
    April 19, 1933.
    W. L. Eason, of Waco, for plaintiff in error.
    Allen V. McDonnell, of Waco, for defendants in error.
   CRITZ, Judge.

This suit was instituted in the district court of McLennan county, Tex., by N. Wood against Texas Mortgage & Investment Company, T. E. Hubby, W. P. Sparks, and others. The real controversy 'is between; Wood and Hubby. The case was tried in .the district court without a jury and resulted in a judgment for Hubby against the plaintiff Wood and all other defendants for a fore-closure of a mechanic’s lien on certain real property in McLennan county, Tex. No- personal judgment was rendered, but only a-judgment in rem against the real property.. The sale of the property under order of sale.exhausts Hubby’s right to collect the judgment.- On appeal by Wood, this judgment was affirmed by the Court of Civil Appeals. 42 S.W.(2d) 142, 144. Wood brings error.

The pertinent facts are undisputed. We are-therefore presented with a* mere question; of law. It is shown by the record that the Tbx-as Mortgage & Investment Company, whom we will hereafter designate the mortgage company, the then owner of the real property here involved, entered into a written mechanic’s lien contract with W. P. Sparks, whereby Sparks agreed to erect on the reaU property in question certain improvements! described in the contract. The consideration for such improvements as provided in the-contract was for $4,000. The lien contract secured this sum with interest, etc. The lie» contract also contained the following express-provision: “In any event, the Texas Mortgage & Investment Company shall not be held liable on said note secured hereby, or any renewal thereof; but as far as said’ company is concerned the payee, o-r his assigns, agree to look only to the property described herein for payment thereof.”

At the same time the lien contract was executed and delivered, and as a part of the-same transaction, the mortgage company executed and delivered to Sparks an instrument in writing- called in the lien contract a “promissory note.” This instrument is in ordinary form of a note, but as a part thereof contains the following provision or stipulation: “This note is given in- payment for the construction of certain improvements upon that certain lot or parcel of land situated in Mc-Lennan County, Texas, being all that certain lot, tract, piece or parcel of land situated in the County of McLennan, State of Texas, being known and designated as Lot No. I, Block 30, of Huaco Heights an addition to the City of Waco, McLennan County, Texas, to which reference is here made. The liability on and payment of this note is subject in all things to the terms of mechanic’s and material man’s lien contract between the ■parties hereto of even date, to which reference is made as a part hereof, this day contracted to be erected by W. P. Sparks for Texas Mortgage & Investment Company, a joint stock assn., and to secure the payment thereof, an express contract and Mechanic’s Lien is given by said contract upon said lands and improvements.”

The record shows that the above contract and “promissory note” were executed on March 4, 1929. It is also shown that on April 9, 1929, Sparks conveyed and assigned both the lien contract and the “promissory note” to Davis Lumber Company. On April 11, 1929, the original lien contract and the assignment from Sparks to Davis Dumber Company were duly filed for record in the office of the county clerk.

On the same day the above instruments were filed for record, the Davis Lumber Company, by written instrument in due form, transferred and assigned the above mechanic’s lien and “promissory note” to Wood. This assignment was in due form and transferred, assigned, and conveyed to Wood the lien contract and “promissory note..” This assignment was also filed for record on April II, 1929. At the time the assignment was delivered by Davis Lumber Company to Wood, they also purported to deliver to him the “promissory note,” but in fact delivered to him a forged instrument in its place. The forged instrument was like the original instrument in form. The lumber company actually retained in its own possession the real instrument. Of course, Wood did not know this, -but in good faith believed he was getting the true instrument.

After the above transactions and after the original mechanic’s lien contract, the transfer thereof from Sparks to Davis Lumber Company, and the transfer from Davis Lumber Company to Wood, had been duly recorded at the proper place in the office of the county clerk of McLennan county, Tex., and at a time when Hubby had full record notice of all such instruments and their contents, the Davis Lumber Company on June 11,1929, executed and delivered to Hubby a written assignment of the above mechanic’s lien ,and “promissory note,” and at the same time indorsed and delivered to Hubby the true note. This assignment was duly recorded on October 15, 1929. We take it that both Wood and Hubby paid a valuable consideration, and both acted in good faith.

It is also presumed from the record that Wood made no investigation at the time he bought the lien and “promissory note” to ascertain if the instrument delivered to him and purporting to be the true instrument was in fact the true instrument; but nothing occurred to excite his suspicion, and he took it in good faith believing it to be the true instrument.

As above shown, at the time Hubby had his transaction with Davis Lumber Company he had full record notice of the fact that Wood had purchased the lien and “promissory note,” but no actual notice thereof. Hubby was familiar with the signature of the maker of the “promissory note,” and at the time he purchased it he examined it for the purpose of satisfying himself that it was genuine. On finding that it was genuine he accepted it.

It is evident from the statement we-have made that the instrument designated above as a “promissory note” was not a promissory note at all within the meaning of our Negotiable Instruments Statutes (Rev. St. 1925, art. 5932 et seq.). It is further plainly evident that it was not a negotiable instrument at all, but simply and purely a part of a mechanic’s lien contract. The legal effect of the lien contract and instrument designated as a “promissory note” was simply and purely to create a lien for $4,000 against the property in question. No one was personally obligated to pay this lien: in case of default the holder simply had an action in rem against the property. These matters are all fully evident on the face of the lien and “promissory note.”

We think that it can hardly be controverted that when the Davis Lumber Company executed and delivered to Wood the written transfer and conveyance of the mechanic’s lien contract, and at the same time delivered to him the forged “promissory note,” as between the lumber company and Wood, Wood took and acquired all the rights and titles the lumber company had in the instruments executed by the mortgage company to Sparks and all the liens, rights, and titles the lumber company had in the land by virtue of such instruments. This was the condition of affairs when Hubby came on the scene.

It is the settled law of this state that when a lien is taken on land to secure a negotiable promissory note, the note itself is a negotiable instrument, and can be transferred and treated as such, but the negotiable quality of the note does not govern as to the lien securing it. On the other hand, it is a settled rule of this state that the law of notice controls for the purpose of determining the rights of the parties as regards the lien. Henderson v. Pilgrim, 22 Tex. 464; Moran v. Wheeler et al., 87 Tex. 179, 27 S. W. 54; Rogers v. Houston, 94 Tex. 403, 60 S. W. 869; Lewis v, Ross, 95 Tex. 358, 67 S. W. 405; Pope v. Beauchamp (Tex. Com. App.) 206 S. W. 928.

Under the above rule, where a note negotiable in form is secured by a lien on land, an innocent purchaser thereof is protected as such in so far as the personal obligation to pay the debt evidenced by the note is concerned, but in so far as the lien is concerned, such purchaser is charged in law with notice of duly recorded instruments. This is clearly the rule announced by our Supreme Court and the Commission in the above cited authorities.

In Moran v. Wheeler, supra, it is shown that one Sensing conveyed to one Wheeler two tracts of land. The deed recited the execution by Wheeler to Sensing of two promissory vendors’ lien notes. This deed was duly recorded. One of the above notes was indorsed and delivered to one Myer for value, and Myer for value indorsed and delivered it to Moran. Both indorsements were before maturity. It seems that no written transfer was given; at least none was recorded. Sensing then gave to Wheeler, without the knowledge or consent of Moran, an instrument in writing acknowledging the payment of the above two notes, including the one he had already transferred, and releasing the land in the deed and notes from the vendor’s lien. After these events, the Land Mortgage Company loaned Wheeler $25,000 secured by a lien on the land. The Land Mortgage Company had no notice except what appeared of record. Under such a record, our Supreme Court, speaking through Judge Brown, reviewed the authorities at great length and held that the Land Mortgage Company’s lien was superior to the vendor’s lien notes held by Moran. This holding was based upon the rule above announced by us. We quote the following from .the opinion; “The note sued upon is negotiable, which, in the hands of the plaintiff, was not subject to any equities existing between Sensing and Wheeler. But this does not protect it against equities arising in favor ' of subsequent purchasers without no<-tice, for a valuable consideration. For example, if the note had been in the form that it is, but there was no recital in the deed as to the purchase money being paid, the plaintiff’s rights against Wheeler to enforce the lien would have been the same; but in that ease, if another person purchased the land or took a mortgage for it for valuable consideration, without notice, the lien could not be enforced as against such subsequent purchaser. Hence its negotiable quality does not govern as to the lien, but the law of notice becomes the controlling rule for determining-the rights of the parties. It therefore becomes important to inquire what is the law of notice as applied in this case.”

After announcing the law above, Judge Brown proceeds to discuss the earlier case of Henderson v. Pilgrim, supra. We here quote that discussion: “In Henderson v. Pilgrim, 22 Tex. 464, one Means and his wife conveyed land to another Means, a brother. Notes were given for the purchase money, and a mortgage and deed of trust were executed to secure their payment. The notes were negotiable, and the vendor transferred them and the mortgage to a third party, giving a written assignment of the mortgage. Subsequently the vendor (the mortgagee) released the mortgage and trust deed, declaring that the notes had been paid. Pilgrim and Stewart bought .the land from the mortgagor, after the release of the mortgage, and paid a valuable consideration, having no notice of the assignment of the mortgage or transfer of the notes. It was held that the purchasers took a title as against the as-signee of the mortgage because it was not recorded, the assignment being held to be an instrument authorized to be recorded under our statute. The opinion is well sustained by authorities, of which we cite Smyth v. Ins. Co., 84 N. Y. 589; Philips v. Bank, 18 Pa. 394, 399; Ogle v. Turpin, 102 Ill. 148; Bowling v. Cook, 39 Iowa, 200; Ladd v. Campbell, 56 Vt. 529; and Welch v. Priest, 8 Allen [Mass.] 165. Some states have held a contrary doctrine, but generally the decisions are based upon the fact that the laws of those states do not authorize the recording of such assignments. Dixon v. Hunter, 57 Ind. 278; Watson v. Dundee Mortg. & T. Inv. Co., 12 Or. 474, 8 P. 548.”

The other cases above cited clearly • support the rule we have announced.

When we apply the -above rule of law to the facts of the case at bar, there is no escape from the conclusion that Wood's title to the lien in question is superior to the title here asserted by Hubby. It is evident that the instruments including the lien contract proper and the instrument designated as a “promissory note” created and evidenced nothing but a bare lien against the real property therein included. These facts clearly appeared upon the face of both instruments. There was no personal obligation created at all. It follows that the Davis Lumber Company had nothing to convey to either Wood dr Hubby but a bare lien or claim in rem against the land. At the time Hubby purchased this lien he had full record notice that it had already been transferred and conveyed to Wood. In other words, he had full record notice that the Davis Lumber Company had ¡already conveyed away the only thing they ■ever had to transfer. An examination of the record would have fully apprised him of all these facts. If the lien had been released at the time Hubby purchased it, under the circumstances he did, there could he no question but that he would have been' charged ■with notice of such release. We can see no reason why the same rule would not apply to a conveyance of the lien that applies to its release. Both instances,involve the same .rule of notice.

The Court of Civil Appeals announces the .-following rule: “However, the mere fact that •the instrument was nonnegotiable in the sense that a purchaser of negotiable paper who buys for a valuable consideration without notice, takes the same free of equities ⅛ favor of the maker, does not mitigate -against an assignment of the obligation evi-denced thereby by indorsement and delivery of the instrument. Whether" it be denominated a note or not, it was the primary obligation to pay and was the evidence of the ¡debt. The fact that it was made payable to W. P. .Sparks or order, evidences the intention of the parties that title thereto should ipass ¡by indorsement and delivery of the instrument, and such was the effect thereof. Revised Statutes, art. 5934, § 30. An assignee of a nonnegotiable or overdue note may acquire a good title thereto by the indorsement and delivery of the note, although he takes the same subject to the equities of the maker thereof. Sands v. Curfman (Tex. Civ. App.) 177 S. W 161; 8 C. J. 56; Buckley v. Collins, 119 Ark. 231, 177 S. W. 920; Gidden Motor Co. v. Johnston, 155 Miss. 328, 124 So. 367.”

We find no fault with the above rule in a proper case, and of course the statutory provision mentioned is valid. Furthermore," we hold that as between the Davis Lumber Company and Hubby the mere transfer of the purported “promissory note” would have transferred the lien. What we hold is that meither the rule announced -by the Court of ¡Civil Appeals, absent the statute, nor the ¡statute,, can have application to defeat the ¡rights of 'Wood. This is because Hubby bought nothing hut a lien at a time when he had full constructive notice that the lumber company had already parted with its title thereto.

We recommend that the judgments of the district court and Court of Civil Appeals be both reversed and judgment here rendered for N. Wood.

CURETON, Chief Justice.

Judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for plaintiff in error, as recommended by the Commission of Appeals.


author: CRITZ, J. CÜRETON, C. J. ORITZ, J.

text:
    ALPHA PETROLEUM CO. v. TERRELL et al.
    No. 1630-6363; Motion No. 10611.
    Commission of Appeals of Texas, Section A.
    Feb. 13, 1933.
    As Amended by Supreme Court Feb. 17, 1933.
    Rehearing Denied April 5, 1933.

      ffm. N. Bonner and Y. Childress, both of Wichita Falls, and Paul D. Page, Jr., John T. Garrison, Lawrence Dipper, William F. Grimes, León Sonfield, and Sewell, Taylor, Morris & Garwood, ail of Houston, for plaintiff in error.
    James Y. Allred, Atty. Gen., and Maurice Cheek, Asst. Atty. Gen., and John C. Jackson, of Houston, for defendants in error.
   CRITZ, J.

This suit was instituted in the district court of Montgomery county, Tex., by Alpha Petroleum Company, a Texas corporation, against the Texas Railroad Commission and certain other parties, to restrain the enforcement against it of the following two oil and gas rules of the Railroad Commission:

“Rule 24. Effective at 7 o’clock A. M., September 24, 1932, the amount of oil which each well in said field shall be permitted to produce daily shall be reckoned upon a combined acreage and per well basis as follows: Each and every well in said field shall be permitted to produce forty (40) barrels of oil per day and in addition thereto shall be allowed to produce the amount shown in the following table, column two (2) conforming to the acreage allotted to each well. No allowable production based on acreage will be granted on acreage units in excess of 20 acres per'well. No well in the field shall be given a daily allowable in excess of two hundred and forty (240) barrels regardless of acreage it drains.

The above is known as rule 24.

“Rule 1. Rule 37 adopted November 2(5, 1919, is hereby amended insofar as it applies to the Conroe or Strake Field in Montgomery County or extensions thereof, so as to hereafter read as follows:

“No well shall hereafter be drilled for oil or gas at any point less than 933 feet from any drilling or completed well, and no well shall hereafter he drilled for oil or gas at any point less than 466 feet from any property line or division line. In order to prevent the impairment of vested rights in the carrying out of this rule and to protect the owners of small tracts in the enjoyment of such rights, the Commission shall require the several owners of adjacent small tracts of less than 20 acres and the owners of larger tracts adjacent to such small tracts to combine or pool their acreage in such way as to constitute units of 20 acres or approximately 20 acres, and upon such equitable and reasonable terms as the Commission may prescribe after, notice to the owners of such adjacent tracts and after hearing. It is the purpose of this rule to limit the drilling of wells to one well to 20 acres or approximately 20 acres of surface ownership. This rule shall apply to the spacing of all wells not already actually spudded in on June 25, 1932. In order further to protect vested rights as against wells actually spudded in, drilling or completed on such date, and to conform to the irregularities in the shape of separately owned or combined tracts of 20 acres or approximately 20 acres, the Commission will, after hearing, grant exceptions permitting drilling within a less or shorter distance than hereinabove prescribed upon application duly filed fully stating the facts, notice of such application and hearing having been given to the owners of all adjacent leases affected thereby; provided that if the owners of all adjacent leases affected thereby waive in writing notice of hearing on or objection to the granting of such application, the Commission may proceed to determine such application without hearing. The mere filing of an application to drill prior to the effective date of this rule or of this order shall not entitle the party filing the same to a permit in exception to this rule or any special privileges to violate the same. Wells already spudded in prior to July 1, 1932, on 330 and 660 foot spacing under authority of the temporary rule as adopted by order of June 14, 1932, will be considered regular locations, and offsets thereto will be granted similar spacing.”

The petition prays for the issuance of temporary restraining orders or temporary injunctions, prohibitory or mandatory, and in either case to be made permanent on final hearing, to the 'end that plaintiff may be permitted to produce and transport its oil as heretofore without injury to its wells, and to the end that it may be permitted to drill at least one additional well on one of its leases, and that defendants and all of them be prohibited from instituting any suit against the plaintiffs for penalties, or for other relief of any character, other than to answer this suit, etc.

On September 23, 1932, the plaintiff’s petition was presented to the Honorable S. A. McCall, judge of said district court, who, in chambers, and without notice or hearing, indorsed thereon the following order:

“In Chambers
“At Conroe, Texas.
“This, the 23rd day of September, 1932, the foregoing petition coming on to be considered by the undersigned Judge, in Chambers, the same has been examined and considered, and I assume jurisdiction of this ease and order it filed.
“It is ordered, adjudged and decreed that a temporary restraining order issue against the Defendants, and each of them, as prayed for by the Plaintiff, to continue until the further orders of this court that may bo signed and entered herein. The parties are advised of the desire and purposes of the court to hear, at the convenience of the parties, any motion of any Defendant that may be filed and desired heard herein, and of the further desire and purpose of the court to hear such motion within ten (10) days of the date hereof, the Clerk will issue notice to the defendants forthwith; provided, however, that the Plaintiff shall first file a good and sufficient bond, to be approved by the Clerk, in the sum of one thousand dollars ($1,000.00), payable to the undersigned Judge of this court, for the use and benefit and protection of the Defendants named herein, and each of them, and otherwise conditioned as provided by law.
“S. A. McCall
“Judge of the 9th Judicial District of Texas.”

Bond was given as provided by the above order, and writ of injunction issued. The writ enjoined the Railroad Commission from enforcing only the rule first above quoted, known as rule 24, “until the further order of said court.”

We here copy the following from the opinion of the Court of Civil Appeals:

“Thereafter appellee, on October 1, 1932. presented to the Hon. S. A. McCall, judge of the Ninth judicial district, Montgomery county, Tex., a motion wherein it is recited that the Attorney General of the state of Texas had ordered a transcript of the proceedings in this cause from the district clerk of Montgomery county with the intention of perfecting an appeal from the order of September 23, 1932, and, while denying the right of appeal, stated that he did. not want any previous orders to lapse, and requested that, pending appeal, the former order be continued in full force and effect for a period of ten days, or until and if a valid appeal should be perfected to the Court of Civil Appeals at Beaumont, Tex. The district judge endorsed on said motion the following order:
“ ‘Fiat.
“ ‘In Chambers, Conroe, Texas.
“ ‘October 1, 1932.
“ ‘The above and foregoing motion having been presented to me on this the 1st day of October, 1932, and being of the opinion that said motion shows good causo for the extension of my order heretofore entered herein, on September 23rd, 1932, it is accordingly ordered that said temporary restraining order issued by me on September 23rd, 1932, be and the same is hereby in all respects extended for a period of ten days, and subject to the further orders of this court made #and entered herein. t
“ ‘The Clerk of the Court will issue appropriate notices.
“ ‘S. A. McCall, Judge of the 9th Judicial District, Montgomery County, Texas.’
“The original transcript, which did not contain the last order mentioned, was filed in this court on October 4, 1932, although the transcript was certified by the clerk of the Montgomery county district court on the 27th day of September, 1932, and delivered to an Assistant Attorney General. A supplemental transcript has been filed which contains the last-mentioned order. This appeal is before us on appellee’s petition and the two orders, as no evidence was heard by the judge of the court below.”

On final hearing in the Court of Civil Appeals [54 S.W.(2d) 821], that court held that the district court’s order here appealed from amounted in law to a temporary injunction, and was therefore appealable, and reversed and dissolved the same. Plaintiff brings error.

Viewing this record as a whole, and especially ⅛ the light of the writ issued on the court’s order, we hold that this appeal only involves the relief sought by the plaintiff as concerns rule 24 above quoted. Therefore what we shall say and the rulings we shall make are confined to such rule.

We agree with the holding of the Court of Civil Appeals to the effect that the order appealed from amounts, in ’ law, to a temporary injunction, and was and is, therefore, appealable. We shall therefore not concern ourselves further with that matter.

We are of the opinion that the Court of Civil Appeals was correct in reversing the judgment of the district court and dissolving the injunction here appealed from, for two reasons: (A) Because such order was issued without notice; and (B) because the district court of Montgomery county was without jurisdiction to enter it.

Addressing ourselves to the reason first above given for holding this injunction void, we call attention to the fact that the record shows affirmatively and conclusively that the temporary injunction here appealed from was issued against the Railroad Commission without notice or hearing, in direct contravention of the provisions of section 10, chapter 26, Acts First Called Session, Forty-Second Legislature, approved and effective August 12, 1931 (Vernon’s Ann. Civ. St. art. 6049c, § 10). This section provides as follows: “No injunction shall be granted against the Railroad Commission to restrain it from enforcing rules, regulations and orders made and promulgated by the Commission under the terms of this Act or of any conservation statutes of this State relating to oil or gas except after notice to the Commission and a hearing.

The case at bar is a direct appeal from an injunction granted by the district court of Montgomery county in absolute disobedience of the above mandatory statute. In this connection we wish to say that, as we understand the plaintiff’s petition, it does not allege any ground that would render rule 24 void on its face. Such being the case, we hold the provisions of the above statute are mandatory, and any temporary injunction granted in violation o'f its terms is void.

We now come to discuss our holding that the district court of Montgomery county had no jurisdiction to issue the temporary injunction here appealed from. This holding includes the further holding that such jurisdiction would be lacking, even had a notice and hearing been had. In this connection we deem it expedient to here quote section 8, chapter 26, Acts First Called Session, 42d Legislature, supra (Vernon’s Ann. Civ. St. art. 6049c, § 8). The section mentioned reads as follows: “Any interested party affected by any rule or order made or promulgated by the Commission, under the terms of this Act and who may be dissatisfied therewith, shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, as defendant, and ask for such relief as may be necessary to annul, correct or modify such rule or order so promulgated by the Commission. Such 'suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court. In all trials under this section, the burden of proof shall be upon the party complaining of such rule, regulation or order and such rule, regulation or order so complained of shall be deemed prima facie valid until otherwise shown.”

Under the plain terms of the above-quoted statute we are compelled to hold that any suit which seeks to annul, modify, or set aside any rule of the commission valid on its face, promulgated by authority of the terms of chapter 26, supra, § 15 (Vernon’s Ann. Civ. St. art. 6029), must be brought in a district court of Travis county, Tex., and that this requirement is one of jurisdiction, and not a mere question of venue. We further hold that, if the rule is one utterly void on its face, it may be attacked in any court otherwise having jurisdiction of the case. We finally hold, however, that, if it requires evidence to show the invalidity of the rule, it is not void on its face, and is not subject to collateral attack or to attack in any court, except a district court of Travis county.

In announcing the above rule, we wish to expressly state that we do not hold that i t lies within the power of the Legislature to, by statute, take away the constitutional jurisdiction of district courts. What we hold is that, where the suit is to enforce a right which exists only by operation of the statute, and not under the Constitution or the common law, it does lie within the power of the Legislature to designate a particular court as an exclusive tribunal to hear and determine such suit. In such a case where the statute, as this one does, provides that the suit shall be filed in a particular court, it demonstrates a conclusive legislative intent to designate such court as the only tribunal where such matter can be litigated, and, as said by our Supreme Court, speaking through Judge Cureton, in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1088: “In special proceedings not within the common-law jurisdiction, the court’s statutory designation of the venue is mandatory and jurisdictional.”

If the district court of Montgomery county has jurisdiction of a proceeding to set aside an order of the Railroad Commission, it must be conferred either by the Constitution, the common law, or by statute. It is clear that said district court is not vested with such jurisdiction by any provision of the Constitution, nor does it exist by reason of the adoption of the common law. It has not been conferred by the Legislature, as the statute enacted by that body limits jurisdiction in such cases to the district court of Travis county “and not elsewhere.” The courts are without authority to extend, a statute vesting jurisdiction in a particular district court to all district courts of the state. To do so would be a clear invasion of the legislative prerogative.

In the case at bar commission rule No. 24, supra, is not attacked on any ground that would render it void on its face; on the contrary, every attack made thereon requires the trial court to go behind the face of the rule and hear testimony in order to ascertain if the plaintiff’s grounds of attack are true. Where such an attack is made, in a case in which the rule must be set aside or annulled before the relief sought can be granted, no common law or constitutional jurisdiction is involved, but merely jurisdiction, which is created by the statute. On the other hand, if the rule is void on its face, it does not have to be set aside at all because a void rule is no rule at all, and therefore no bar to any character of relief.

■ We cite the following authorities in support of the rulings we have made with reference to jurisdiction: Section 8, c. 26, supra; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1087; Railroad Commission v. Weld et al., 95 Tex. 278, 66 S. W. 1095, 1097; Railroad Commission v. H. & T. C. Ry. Co., 90 Tex. 340, 38 S. W. 750; West Texas Compress Co. v. Panhandle & S. F. Ry. Co. (Tex. Com. App.) 15 S.W.(2d) 558, 561; Texas Steel Co. v. Fort Worth & Denver Ry. Co., 120 Tex. 597, 40 S.W.(2d) 78, 82 (Com. App. opinion adopted); Texas Steel Co. v. F. W. & D. Ry. Co. (Tex. Civ. App.) 45 S.W.(2d) 794; 1 C. J. p. 988, § 100; Galpin v. Page, 18 Wall. (85 U. S.) 350, 372, 21 L. Ed. 964; Morse v. Presby, 25 N. H. 302; Cunningham v. Robison, 104 Tex. 227, 136 S. W. 441, 442; Ex parte Towles, 48 Tex. 444; 7 R. C. L. p. 1032; Carlisle v. Mo. Pac. Ry. Co., 168 Mo. 652, 68 S. W. 898.

In Minghs v. Wadley, supra, our Supreme Court, speaking through Judge Cureton, construes several sections of the Workmen’s Compensation Law and expressly holds that suits arising thereunder are in derogation of the common law, and that the rights to be enforced and remedies provided are purely statutory. The opinion then proceeds to construe section 5 of article 8307, which provides that all suits to set aside the final award of the Accident Board shall be brought in the county where the injury occurred, and holds that such provision is jurisdictional and mandatory. We quote the following from the opinion:

“As to the county where suit to set aside an award may be brought, the statute is clearly mandatory. Revised Statutes, art. 8307, § 5, provides that the suit to set aside the final award of the board ‘shall’ be brought ‘in the county where the injury occurred.’ The language used is mandatory, and its purpose evident. Such a suit' of necessity involves the fact of the accident, the issue of the injury, and the wages of the claimant; all of which may be established with less expense, trouble, and delay in the county where the injury occurred than in any other county.
“Having in mind the general rule that workmen’s compensation acts are to be liberally construed to effectuate their beneficial purpose, there can be no doubt that, when the Legislature specified the county in which a suit to vacate an award should be filed as the county where the accident occurred, the specification was exclusive and intended to be jurisdictional. In fact, the statute itself declares that the rights of the parties are to be determined ‘by the provisions of this law.’ Besides, in special proceedings not within the common-law jurisdiction, the court’s statutory designation of the venue is mandatory and jurisdictional. Cunningham v. Robison, 104 Tex. 227, 136 S. W. 441; United States Fidelity & G. Co. v. Lowry (Tex. Civ. App.) 219 S. W. 222, 224 (dissenting opinion); Calverley v. Shank, 28 Tex. Civ. App. 473, 67 S. W. 435; 1 Corpus Juris, p. 988, §§ 100, 102; Carlisle v. Mo. Pac. R. Co., 168 Mo. 652, 68 S. W. 898.”

In Railroad Commission v. Weld, supra, our Supreme Court had before it a case involving then articles 4564, 4565, and 4566, R. C. S. 1895 (present articles 6452, 6453, and 6454). Then article 4564 provided, among other things, that the rates, charges, orders, rules, etc., of the commission should be held conclusive and accepted as reasonable and fair until finally found otherwise in a direct action brought for that purpose in the manner prescribed by then articles 4565 and 4566. Article 4565 provided that the action should be brought in the district court of Travis county, Tex. Article 4566 defined the burden of proof, etc. In discussing these statutes, Judge Brown, speaking for the court, used the following language:

“These articles provide an expeditious method for determining the reasonableness and justice of any rate, order, rule or regula-tioij which the commission might make, and at the same time permit the enforcement of the rates, etc., until the judgment of a court declaring them to be unjust and unreasonable has been rendered.
“This action was brought under articles 4565 and 4566, above quoted, and the court was therefore confined to the provisions of those articles in entering its judgment and granting relief. The only issue which was presented in this suit was, are the rates, rules, and orders put in question by the pleading, as applied to the character of shipments alleged in the pleadings, unjust and unreasonable? The jurisdiction of the court is limited to the determination of that issue.”

We think the above holding clearly indicates that the court intended to say that the action provided by the statutes discussed was a special one created by such statutes.

In Railroad Commission v. H. & T. C. Ry. Co., supra, our Supreme Court had before it a suit brought by the Railroad Company against the commission under the statutes discussed in the Weld Case, supra, to annul an order of the commission relative to the compression of cotton, etc. The railroad did not contend that the rule sought to be sSt aside amounted to the taking of property without just compensation or without due process of law. The Attorney General, on behalf of the commission, took the position that the action authorized by the statutes under which the suit was brought only contemplated that the rules of the commission could be set aside by the courts when such rules amounted to the taking of property without proper compensation or without due process of law. Judge Brown exhaustively discusses this contention, and demonstrates that the purpose and intent of the statutes mentioned were to confer on the court a statutory power or jurisdiction to review the orders, rules, etc., of the commission that did not exist under the Constitution, and did not exist absent the statute.

In West Texas Compress Co. v. Panhandle & S. F. Ry. Co., supra, the writer for Section A of the Commission of Appeals construed the same statutes under consideration in the Weld and H. & T. C. Ry. Co. Cases, supra, and held:

“By the imperative terms of the above-qdoted statute, which has many times been held to be valid and constitutional by the Supreme Court of this state, the rules, regulations, rates, etc., of the railroad commission are deemed to be reasonable, fair, and just, unless, and until, set aside in a direct proceeding brought for that purpose as prescribed by articles 6452, 6453, and 6454, R. C. S. 1925. The rule quoted is certainly not void as the commission has power and authority to make such rules. If, for any reason, it is unfair. or unjust, which question we do not pass on, such matters will have to be called in question and litigated in the manner and in the court prescribed by law; that is, in a district court of Travis county, with the railroad commission made party to the suit. Railroad Commission v. Weld, 95 Tex. 278, 66 S. W. 1095, M. K. & T. Ry. Co. of Texas et al. v. Railroad Commission (Tex. Civ. App.) 3 S.W.(2d) 489.
“By the plain and unambiguous language of article 6453, R. C. S. 1925, it is provided that, if any railroad company or other party at interest is dissatisfied with any rate, classification, rule, etc., adopted by the railroad commission, such dissatisfied party may file his petition, etc., in a court of competent jurisdiction in Travis county, against the commission as defendant. This statute is exclusive in its very nature. A construction that it is not exclusive would violate all known rules Of statutory construction, and lead to chaotic conditions with reference to the proceedings, rules, etc., of the commission. Certainly in the face of such provisions as are contained in articles 6452 and 6453, supra, collateral attacks on orders, rules, etc., of the commission cannot be tolerated.”

In Texas Steel Co. v. Fort Worth & D. R. Co., supra, Section A of the commission, speaking through the writer, again construed the statutes above discussed, and held that a suit brought to annul an order of the commission valid on its face must be brought in Travis county with the commission made a party. We quote the following from that opinion:

“We take it that the statutes above quoted mean what they say. It is not contended that the orders of the Railroad Commission here collaterally attacked are void on their faces, or that the Railroad Commission was without inherent lawful jurisdiction to act in the premises. If such contentions were made, they would be without merit.
“The various statutes above mentioned have been in force for many years, and time and experience have demonstrated their wisdom. The statutes providing against collateral attacks on the judgments and orders of the commission were necessary in order that the commission might properly function. The rules and rates of the commission are matters of general public interest, as well as interest to shippers and carriers. If an order of the commission, lawful on its face, can be collaterally attacked in the various courts and counties of the state on grounds such as those urged in the instant case, interminable confusion would result, and railroad companies, though honestly endeavoring to obey the law and the orders of the commission could be mulcted in large sums in damages and penalties, and the orders and rates of the commission rendered hazardous to obey.
“We think that a casual reading of the certificate will demonstrate that the orders of the commission here attacked as null and void are regular on their faces.- All the grounds urged to nullify such orders require the court to go behind them to ascertain the facts, and do not appear on the face of such orders. It lias long been settled in this state that such an attack is collateral.
“If an order of the commission regular on its face can be collaterally attacked on the ground of want of notice, or any other ground here urged, then the orders and rates of the commission could be rendered null and void in a proceeding in which the commission was never given an opportunity to be heard either on the facts or the law. Furthermore, different courts might reach conflicting conclusions as to the facts involved in the same order. This demonstrates the wisdom of the statute and the correctness of the rule here announced. The Legislature recognized in the beginning that to allow such attacks would lead to intolerable results, and foreclosed the right to do so by the statute prescribing the manner and the court in which the rules and rates of the commission can be subjected to judicial review. At this point we wish to state that we do not want to be understood as holding that we would hold these orders illegal in a direct proceeding. We do not pass on that matter, as we have no such proceeding here. What we do hold is that the orders here attacked are not subject to be called in question except in a direct proceeding brought in foil conformity with the provisions of article 6453, supra.”

The above opinion was adopted as the opinion of the Supreme Court.

In Texas Steel Co. v. Fort Worth & Denver Ry. Co., 45 S.W.(2d) 794, 796, supra, the Court of Civil Appeals at Fort Worth, in an opinion by Judge Buck, again construed the Railroad Commission statutes, and held: “These orders of the Railroad Commission attacked by appellant are within the jurisdiction of the Railroad Commission of Texas, under article 6448, Rev. Civ. Statutes. Therefore by article 6452 they are binding upon both the appellant and appellees in this case. Appellant in this suit is attempting to set aside the judgments and orders of the Railroad Commission of -Texas by a collateral attack. This cannot be done except by a direct attack In the Travis county district court, unless such orders were wholly void. West Texas Compress Co. v. P. & S. F. Ry. Co. (Tex. Com. App.) 15 S.W.(2d) 558; Producers’ Refining Co. v. M., K. & T. R. R. Co., 13 S.W.(2d) 679, by the Commission of Appeals, approved by the Supreme Court. The trial court of Tarrant county has no jurisdiction, either by direct or collateral attack, to set aside the orders of the Railroad Commission of Texas, unless such orders are wholly void, and we do not think such orders were wholly void.”

In 1 C. J. p. 988, supra, the rule is thus •stated: “It is competent for the legislature to provide a remedy in cases where none existed at common law, or in creating a new right to prescribe the remedy by which it is to be enforced, and limit jurisdiction of it to a particular tribunal, or to provide new remedies for pre-existing rights, and make such new remedies exclusive. Where a statutory remedy is prescribed for a particular purpose, it will be limited accordingly and cannot be used for other purposes, and in pursuing a statutory remedy the proceedings must conform to the provisions of the statute.”

In Galpin v. Page, supra, the United States Supreme Court announces the rule as follows: “The extent of the special jurisdiction and the conditions of its exercise over subjects or persons necessarily depend upon the terms in which the jurisdiction is granted and hot upon the rank of the court upon which it is conferred. Such jurisdiction is not, therefore, the less to be strictly pursued because the same court may possess over other subjects or other persons a more' extended * * * jurisdiction.”

In Morse v. Presby, supra, the Supreme Court of New Hampshire thus states the rule: “A court of general jurisdiction, however, may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law. and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special juris diction.”

In Cunningham v. Robison, supra, our Supreme Court had before it the construction of then article 3499, R. S. (1895), relating to the removal of the disabilities of minors over the age of 19 years. The statute then provided, as it now does, that the application should be made to the district court of the county where the minor resided. The statute limiting jurisdiction to the district courl of the minor’s residence was held to be mandatory and jurisdictional. We quote the following from the opinion: “The statute of this state herein copied above confers special jurisdiction upon the district court to remove the disabilities of minors ‘over the age of nineteen,’ and the jurisdiction is conferred upon the district court of the county in which ‘he may reside.’ It is apparent from this language that the two facts — that the minor is over 19 years of age and that he resides in the county in which the proceeding is had — are jurisdictional in their character, and must be made to appear in the record in order to sustain the action of the court in exercising that power. A district court has no authority to remove the disabilities of a minor under 19 years of age. Therefore it must appear that such minor is over 19 years of age at the time. Such court has no jurisdiction except over such minors as may reside within the county in which the court is held. Therefore, in order to give jurisdiction, it must appear that the minor resided in the county where the court that made the order was hold. Neither of these facts appear in toe record as presented to this court, nor, indeed, are they alleged in the pleadings of the relator in this court. Whether this court will permit the proof of such fact outside the record is not presented to us and we do not pass upon that question.”

In the separate opinion o'f Judge Oould in Ex parte Towles, supra, it is said: “The Legislature has seen fit to constitute the District Court a special tribunal for the trial of certain cases of contested elections. In trying such cases, the District Courts act under authority conferred by the statute, and not by virtue of any jurisdiction conferred by the Constitution.”

In 7 R. C. L., supra, the rule is thus stated: “The fact that a court is one of general jurisdiction does not necessarily mean that it cannot be made a court of special and limited jurisdiction in some cases, hut on the contrary a court of general jurisdiction may have special powers conferred upon it by a special statute; and, as these powers are not exercised according to the course of the common law, they do not belong to it as a court of general jurisdiction. In the exercise of such special statutory powers, a court of general jurisdiction will be regarded and ireated as a court of limited and special jurisdiction.”

In holding that a district court of Missouri had no jurisdiction over cases arising tinder a certain act of that state, the Supreme Court of Missouri, in Carlisle v. Mo. Pac. Ry. Co., 168 Mo. 652, 68 S. W. 898, 900, said: •‘When an act creates a new liability or gives a right of action, and at the same time prescribes the means by which, or the court in which, the right is to be enforced, resort cannot be had to any other means or court than that prescribed.”

We think the above authorities fully and conclusively demonstrate that the statute requiring suits to “annul, correct, or modify” the conservation rules of the Railroad Commission to be brought in a district court of Travis county, Tex., is jurisdictional by nature. and does not violate or contravene any provision of our state Constitution. We think further that any other holding would lead to intolerable confusion. If all district courts of this state had jurisdiction of such matters, different courts of equal dignity might reach different and conflicting conclusions as to the same rule. Manifestly, the jurisdictional provision under discussion was incorporated in the act for the express purpose of avoiding such confusion.

We recommend that the judgment of the Court of Civil Appeals, which reversed the judgment of the district court and dissolved the temporary injunction granted by it, be affirmed, and all writs issued by this court pertaining to this suit be set aside, vacated, and annulled.

CÜRETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals, and, because of the nature and importance of the question, the foregoing opinion in its entirety is adopted as the opinion of the Supreme Court.

On Motion for Rehearing.

ORITZ, J.

This case is before us on motion for rehearing filed by Alpha Petroleum Company, plaintiff in error. The plaintiff in error “repeats, re-adopts and re-assigns” all the alleged errors set forth in its application for the writ, and in addition thereto attempts to urge certain additional assignments! of* error not contained in the application and not heretofore urged. In respect to the matter of additional assignments we quote from the motion for rehearing as follows:

“Plaintiff in error repeats, re-adopts and reassigns each of the errors set forth in the application for writ of error heretofore filed and granted in this cause. In addition thereto it assigns the following errox-s and ui'ges the propositions hereafter set forth:
“First Additional Assignment of Error
“This honorable coui’t erred in so construing House Bill 25⅛ Acts 42nd Legislature, so as to deny plaintiff in error the right to maintain this suit ⅛ Montgomery county to protect its rights and property therein, because said act expi-essly provides that the Railroad Commission may maintain suits in Montgomery county to i-eeover penalties and for in-junctive relief against the violation of its order promulgated under said act aixd to deny plaintiff in error the reciprocal right to maintain a suit in Montgomery county embracing the same subject-matter is thus to deny it the equal protection of the law and due process of law guaranteed to it under the Constitution of the United States. * * *
“Second Additional Assignment of Error “The Supreme Court erred in holding that a litigant may not procure injunctive relief against the Railroad Commission without notice because of the provisions of House Bill 25, since said act does not require that any notice be given the defendant in any suit brought by the Attorney General. This construction of the act renders it unconstitutional and denies to petitioner the equal protection of the law and due process of law. * * *
“Third Additional Assignment of Error
“The court erred in this: Even if the first order entered by the district court of Montgomery county on September 28 was in fact (contrary to what it states upon its face) a tempoi*ary injunction rather than a temporary restraining order, then nevertheless the subsequent order entered, on October 1, 1938, reduced and converted said temporary injunction into a temporary restraining order.”

An examination of this record discloses that the above additional assignments of error were not presented to the Court of Civil Appeals in any form, and were not contained in the application for the writ of error, but are urged for the first time in this court in the motion for rehearing. Under such a record they come too late for consideration here. 3 Texas Juris, p. 1000, par. 714.

We have read and carefully considered said motion as touching the questions decided by us which were presented in the application for the writ and still adhere to the views expressed in our original opinion.

We recommend that the motion for rehearing be in all' things overruled.


author: PER CURIAM.

text:
    ALPHA PETROLEUM CO. v. TERRELL et al.
    Motion No. 10608; No. 6363.
    Supreme Court of Texas.
    Feb. 17, 1933.
    For former opinion, see 59 S.W.(2d) 364, which affirmed (Tex. Civ. App.) 54 S.W.(2d) 821.
    James Y. Allred, Atty. Gen., and Maurice Cheek, Asst. Atty. Gen., for respondents O. V. Terrell and others.
   PER CURIAM.

On February 13, 1933, in the above-numbered and entitled cause, this court adopted the opinion of Section A of the Commission of Appeals and entered the judgment therein recommended, 59 S.W.(2d) 364. The judgment as entered by this court affirmed the judgment of the Court of Civil Appeals [54 S. W.(2d) 821], which reversed the judgment of the district court, and dissolved the temporary injunction granted by such district court. The judgment of this court also set aside, vacated, and annulled all orders and writs heretofore entered by this court.

Since this adoption of the above opinion, it has been discovered that rule 24, as set out in said opinion, was erroneously quoted. The rule should have been quoted as follows:

“Rule 24. Effective at 7 o’clock A. M., September 24,1932, the amount of oil which each well in said field shall be permitted to produce daily shall be reckoned upon a combined acreage and per well basis as follows: Each and every well in said field shall be permitted to produce forty (40) barrels of oil per day and in addition thereto shall be allowed to produce the amount shown in the following table, column two (2) conforming to the acreage allotted to each well. No allowable production based on acreage will be granted on acreage units' in excess of 20 acres per well. No well in the field shall be given a daily allowable in excess of two hundred and forty (240) barrels regardless of acreage it drains.

The mistake is immaterial-, but the opinion is by special request of the Commission hereby corrected as above indicated. In all other respects the opinion stands as originally written.

Since the rendition of the judgment recommended by the Commission in the above opinion, the Attorney General has presented to this court a motion wherein he states that the Alpha Petroleum Company has completed certain' new wells in the field covered by the above rule since this suit was filed in the district court, and is producing oil from the said wells and its other wells in said field far in excess of the proration rules and orders of the Commission.

The Attorney General then prays that this court enter an order restraining the Alpha Petroleum Company from producing from any of its wells an amount of oil in excess of the allowable fixed by the orders and rules of the Railroad Commission, and, in the alternative, the.Attorney General prays that this court enter an order permitting him to institute suit for an injunction in the district court of Travis county, Tex., to restrain the Alpha Petroleum Company from overproducing in violation of the proration orders of the Commission.

It seems from the record in this case that, during the pendency of this suit in this court, the Attorney General instituted some character of suit in the district court of Travis county, Tex.', to enjoin Alpha Petroleum Company from violating the proration orders of the Commission, and this court entered an order prohibiting the further prosecution of that suit, and prohibiting the enforcement of any order theretofore entered in such suit, until and pending, the final determination of the suit. The prineipalMssue in the case was whether or not exclusive jurisdiction over the subject-matter lies in a district court of Travis county.

We are of the opinion that, when the Court of Civil Appeals at Beaumont entered its final order and decree dissolving the temporary injunction granted in this cause’ by the district court of Montgomery county, Tex., such order and decree of dissolution so entered by the Court of Civil Appeals became effective at once, and therefore no injunction has been in effect protecting the Alpha Petroleum Company from the proration orders of the Commission since the date of the dissolution thereof by the Couft of Civil Appeals. Duncan v. Boyd (Tex. Civ. App.) 288 S. W. 281. This question is ably discussed by Judge McClendon in the Duncan Case, supra, and no good purpose can be served by further discussion here. Furthermore, under the opinion of the Commission, which has been adopted by us. the injunction issued by the district court of Montgomery county in this cause was void in its ineipieney for want of jurisdiction in that court.

The order of this court prohibiting the Attorney General from proceeding with his case in the district court of Travis county was expressly annulled and vacated by this court by its judgment-of February 13, 1933, and is now no longer in force. The fact that the Alpha Petroleum Company still has a right to file a motion for rehearing in this cause does not have effect to keep alive the temporary restraining orders that have heretofore issued, but which the court has since annulled and vacated.

It appears from what we have said that there exists no necessity for this court to grant any of the relief sought by the Attorney General in the motion under consideration. The motion is therefore in all things overruled.

It is not intended by this opinion to intimate that we would grant the relief prayed for by the Attorney ^General if a necessity existed. It is not necessary for us to pass on that question.


author: CRITZ, J. CURETON, C. J.

text:
    ALPHA PETROLEUM COMPANY, Relator, v. Hon. Daniel WALKER et al., Respondents.
    No. 1629-6361.
    Commission of Appeals of Texas, Section A.
    Feb. 13, 1933.
    Wm. N. Bonner and V. Childress, both of Wichita Falls, and John T. Garrison, Paul D. Page, Jr., William F. Grimes, Lawrence Lip-per, and Sewell, Taylor, Morris & Garwood, all of Houston, for relator.
    James Y. Allred, Atty. Gen., and Maurice Cheek, Asst. Atty. Gen., for respondents.
   CRITZ, J.

This is an original application for mandamus and writ of prohibition filed in the Supreme Court by Alpha Petroleum Company, a corporation, against the members of the Court of Civil Appeals for the Ninth District at Beaumont, the Texas Railroad Commission, and the Texas Pipe Line Company, a corporation. The matters here involved relate to and grew out of the issues involved in Alpha Petroleum Company v. C. V. Terrell et al., 59 S.W.(2d) 364, this day decided by this section of the commission. The opinion in that ease disposed of all pertinent questions in this case.

We recommend that all orders heretofore made in this cause by the Supreme Court be vacated and annulled, and that the mandamus and writ of prohibition here prayed for be denied.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted as the opinion of the Supreme Court, and all orders heretofore made in this cause by the Supreme Court are hereby vacated and, annulled, and the mandamus and writ of prohibition herein prayed for refused, as recommended by the Commission of Appeals.


author: BAUGH, Justice.

text:
    ALPHA PETROLEUM CO. v. RAILROAD COMMISSION.
    Motion No. 7489; No. 7952.
    Court of Civil Appeals of Texas. Austin.
    March 6, 1933.
    Rehearing Denied March 18, 1933.
    Wm. N. Bonner, of Wichita Ealls, and Lawrence Lipper, of Houston, for appellant.
    James V. Allred, Atty. Gen., and Willis E. Gresham and Maurice Cheek, Asst. Attys. Gen., for appellee.
   BAUGH, Justice.

Appeal is from a temporary injunction granted without notice or hearing in favor of the commission against appellant restraining it from violating the order of the commission limiting and prorating the production of oil and gas in the Conroe oil field in Montgomery county, Tex.

The amended petition of appellee duly verified alleged that the commission had issued ■an order, pursuant to law, on December 31, 1932, effective January 5 to March 1, 1933, limiting the production of oil in said Conroe field to not more than 18,500 barrels daily, to be prorated among the wells in said field on a basis which took into consideration the number of acres on which each well was 'located; that appellant owned four designated wells, giving their location, in said field; that under said order appellant was at the time authorized to produce only 100 barrels daily from each well; that appellant was in fact producing 3,500 barrels of oil daily from each of two of said wells, and 300 barrels daily from each of the other two; that it had already produced several hundred thousand barrels of oil in excess of its .allowable under the 'commission’s orders, and was continuing to produce excess oil; and that such condition constituted an emergency justifying issuance of a temporary injunction without notice, for which it prayed, restraining appellant from violating the commission’s order regulating said field. The suit was by the commission by and through the Attorney General, and the injunction granted as prayed for.

The oil company, a corporation, prosecutes this appeal from said temporary injunction, and asks that this court issue the necessary orders superseding said decree of the trial court and prohibiting the appellee from prosecuting said cause in the district court, or applying to the district court for any order therein during the pendency of this appeal, to the end that the status quo may be maintained during the pendency of this appeal.

At the outset, it is pertinent to observe that the question of the validity of the particular order of- the commission as it relates to the Conroe field is not before us. The power and duty of the Railroad Commission to issue and enforce such orders to conserve the natural resources of the state is provided for and made mandatory by the Constitution and the statutes. Danciger Oil & Ref. Co. v. R. R. Commission (Tex. Civ. App.) 49 S.W.(2d) 837; section 59, art. 16, Constitution of Texas; title 102, R. S. 1925, as variously amended (see Vernon’s Ann. Civ. St. art. 6004 et seq.), particularly by chapter 26, p. 46, Acts 1st Called Sess., 42d Leg. (1931); and chapter 2, p. 3, Acts 1931, 4th Called Sess., 42d Leg. (1932). And where the commission has made and promulgated an order, it will be presumed, absent a showing to the contrary, that same was made pursuant to law after notice to all parties concerned and a hearing as provided for by law. See section 5, c. 2, p. 6, Acts 4th Called Sess. 42d Leg., 1932 (Vernon’s Ann. Civ. St. art. 6049c, §7).

Appellant first contends that it is the purpose of an ex parte temporary injunction to maintain the status quo of the parties and .property involved pending the determination of the suit, and that, since appellee’s petition shows that appellants were producing some 7,60.0 barrels of oil daily from its four wells when and before the injunction was applied for, the effect of the injunction— that is, to restrain it from producing more than 400 barrels from said wells — is to destroy the status quo, and that it is therefore the duty of this court to re-establish that status quo by suspending the order of the trial court. This contention cannot be sustained. This case is not analogous to a controversy between private parties where one threatens to destroy the property claimed by the other pending a hearing of the case. The status with which we are here concerned is that created by the order of the Railroad Commission, not that created by appellant’s violation of such order. If the order of the commission be unreasonable, unjust, or confiscatory, or otherwise invalid, as to appellant, or if appellant be dissatisfied with same, the law prescribes its method of relief. Section 8, p. 8, c. 2, Acts 4th Called Sess., 42d Leg., 1932 (Vernon’s Ann. Civ. St. art. 6049c, § 8). This act also provides, among other things, that “such laws, rule, regulation or order so complained of shall be deemed pri-ma facie valid until otherwise shown.” The law itself also makes it the mandatory duty of all parties affected by such commission orders to comply with the order. And, where any party violates such conservation statute or valid rule or order of the commission, the commission is expressly authorized to bring suit through the Attorney General to restrain such party from violating such order. Section 4, p. 49, c. 26, Acts 1st Called Sess., 42d Leg., 1931 (Vernon’s Ann. Civ. St. art. 6P49c, § 4).

Appellant contends, however, that since section 10, p. 52, c. 26, Acts 1st Called Sess., 42d Leg., 1931 (Vernon’s Ann. Civ. St. art. 6049c, § 10), provides that no injunction may issue against the commission to restrain it from enforcing its orders except after notice and hearing, no injunction can therefore issue in favor of the commission against an operator without a like notice and hearing. Otherwise, appellant insists, it would be denied due process and equal protection of the law in violation of State and Federal Constitutions (Const. Tex. art. 1, §§ 3, 19; Const. U. S. Amend. 14), and that the injunction granted by the trial court was therefore void. We are furnished with a copy of an opinion of the Commission of Appeals rendered February 13, 1933 (see 59 S.W.(2d) 364), in a suit between the same parties here involved, in which it was held that an injunction issued by the district court of Montgomery t uty against the commission without notice or hearing was void, and sustaining the validity of section 10 above referred to.

If this were a suit between private parties, or if only private property rights between the parties were involved, clearly rights and remedies granted by law to' one party but denied to the other would contravene the provisions oí the Constitution. Such, however, is not the ease here. The issues here involved are the private property rights of appellant on the one hand, and the authority of the state, through its designated agency, to enforce the police powers of the state in conserving in the public interest its natural resources, a duty grounded in the Constitution, and mandatorily imposed by statute upon the Railroad Commission. The cases cited by appellant consequently are not applicable; It is not necessary for the state to grant to a corporation, created only by its permission, or to an individual, with reference to his property rights, the same rights and remedies, as against the sovereignty, which the sovereignty reserves to itself for the protection- of the public interest. That is a self-evident proposition. And this applies to a remedy to be pursued as much as to a right to be enjoyed. The Legislature was clearly authorized therefore to deny to an individual injunctive relief against one of the agencies or arms of the government, except after notice and hearing, and at the same time provide that the courts, should the occasion demand, could grant such extraordinary temporary relief without notice.

A careful reading of the various conservation acts clearly discloses, we think, an obvious purpose of the Legislature not only to give the commission authority and power to regulate oil and gas production for purposes of conservation of these resources, but to invest the commission with authority and means to enforce and effectuate that power. Section 10 of the Acts of the 1st Called Session of the 42d Legislature was clearly designed to prevent individuals and corporations, except in the manner expressly provided by law, from interfering with or thwarting the commission’s methods of doing so, except after notice and a hearing. And the omission from the statute of such requirements as to notice and hearing when private parties seek to suspend the orders of the commission, when valid on their face, and issued pursuant to law, is significant. It indicates in our opinion a legislative intent that, where facts and circumstances, such as those alleged in this case, require it, the court may in the exercise of judicial discretion issue without notice or hearing such restraining orders as may be necessary to carry out the purposes of the law- That being true, the injunction issued in this case comes clearly within-the provisions of subdivision 3 of article 4642, R. S. 1925, and, in the absence of a showing of abuse of discretion of the trial court, .his order should be sustained.

The trial court’s judgment is affirmed.

Affirmed.

On Motion for Rehearing.

In addition to the grounds heretofore urged, appellant in its' motion for rehearing insists that the injunction granted is void because the appellee gave no injunction bond, and that same is required under article 4649, R. S. Prior to the Revision of 1925, this article of the statute provided: “If the state be complainant in any petition for injunction, no bond shall be required.” Rev. St. 1911, art. 4654. This last-quoted provision was omitted from the 1925 revision, and appellant contends that it manifests a clear legislative intent that thereafter the state, like any other litigant, should be required to give bond before such injunction might issue. Generally an injunction issued without bond is void. Ex parte Coward, 110 Tex. 587, 222 S. W. 531; 32 C. J. 312. And it is clear, we think, that, when the Railroad Commission, acting in its official capacity as an arm of the government, or an agency of the state, and by and through the Attorney General, brings such action, it does so on behalf of the state, and to all intents and purposes the state is itself a party to such litigation. See Herring v. Houston Nat. Exch. Bank, 113 Tex. 264, 253 S. W. 813; Stephens v. T. & P. Ry. Co.. 100 Tex. 177, 97 S. W. 309.

Whatever may’have been the purpose of the Legislature in omitting from article 4649, R. S., the provision expressly exempting the state from giving bond in injunction cases generally, we know of no authority empowering the Railroad Commission to execute a bond binding upon the state. Certainly no suit could be brought against the state on such a bond without exi>ress legislative consent, were such bond authorized to be made by the commission. We can see no more reason why the commission should -indemnify oil operators against loss that might result to them from the enforcement by the commission of its orders in one manner than in another. Certainly the state is not liable for property damage to operators resulting from a proper regulation of them by proration of their oil production. The commission is vested by statute with full power to do this; and the appellant is without recourse against the state, if in doing so in a legal manner it inflicts an injury upon appellant. Such is the inherent power of the state in the exercise of its police power, against which the regulated industry has no recourse. The commission’s order in the instant case is presumed to be valid and legal, and we must so treat it until the contrary is shown in the manner provided by the statute. If the state is not liable for injuries resulting to appellant from the enforcement of such order, why should the state be required to give bond to protect appellant in the steps which the Railroad Commission is authorized by law to use to effec--tuate such enforcement? We can see no logical reason why it should.

Section 4, p. 51, 1st Called Sess., 42d Legislature, 1931 (Vernon’s Ann. Civ. St. art. 6049c, § 4) was obviously and expressly intended to give to the commission an effective method for enforcing its orders. The same construction placed by us on these statutes in our original opinion with reference to giving notice before granting an injunction would, we think, apply with equal cogency to the giving of a bond. The fact that the Legislature provided that no injunction should issue against the commission at the instance of an oil operator, without first giving notice and making bond, and at the same time provided that an injunction might issue at the instance of the commission against an offending operator without requiring of the state either notice or bond, necessarily implies, we think, that such bond was not required.

An additional reason exists why appellant’s contention cannot be sustained. If the Railroad Commission or the Attorney General has no power to give a bond binding on the state, and such injunction cannot issue without it, that provision of the statute becomes a nullity. The act should be so construed, if same can reasonably be done, as to sustain its validity. The interpretation so placed upon it by us gives it vitality. That contended for by appellant nullifies it. And, where susceptible of a reasonable implication which would sustain its validity, it is our duty to so construe it.

The other contentions made by appellant in its motion were considered by us in our original opinion, and further discussion of them here pretermitted. The motion is therefore overruled.

Overruled.


author: LATTIMORE, Judge.

text:
    REED v. STATE.
    No. 15830.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    S. E. Rose, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for forgery; punishment, seven years in the penitentiary.

No testimony was offered by appellant. For the state it was shown that on May IS, 1932, appellant rented a typewriter and check protector for one day, which was delivered at his room at a hotel in Amarillo. Later that day an officer went to.said room and found appellant asleep on a bed. In the room witness found a check — the basis for this prosecution — being a check for $15 dated May 15, 1932, drawn on the First National Bank of Tulsa, Okl., payable to J. D. Beach, signed by “Noble" & Noble, Drilling Contractors, by Chas. E. Noble.” This check was introduced as Exhibit B. Witness said he also found about a hundred of “these checks” indicating, nine of which were filled out completely, and some of which were identical in form with Exhibit B; some were signed and some unsigned. Witness found no one else in the room.

The state introduced Sheriff. Hawkins of Hardeman county who said that at some time, date not given, he searched appellant in his office in Quanah, Tex., and found check Exhibit W, which -appears to be a check of date June 7, 1932, for $15, payable to J. D. Black, drawn on the First National Bank of Tulsa, Okl., and signed “Dillard & Dillard, Drilling Contractors, by Harry Dillard.” Witness said lie found also on appellant’s person a pad of cheeks, Exhibit O, ■which do not appear in this record, containing about 100 cheeks similar to Exhibit N, some filled and signed by Harry Dillard payable to various payees; some not filled out. The state introduced Givens, a printer, who said he lived at Childress, Tex., and that about June 9th he printed, for a man 'whom he believed to be appellant, a pad of blank checks in form like those designated as Exhibit O. Mr. Dindley swore that he was a druggist at Childress, Tex., and early in June, 1932, appellant came into his store, bought a package of cigarettes, a-nd told witness that he had an expense check,- and, if witness would handle it for him, he would buy a fountain pen. He sáid the check was like State’s Exhibit N. Witness cashed the cheek and sold appellant the pen. 1-Ie did not remember the name given by appellant. 1-Ie said he did not have the check, and had not gotten his pen back. A banker of Amarillo swore there was no such bank in Tulsa, Okl., as the Eirst National Bank of Tulsa. No witness testified as to similarity of handwriting on any of the instruments introduced. These were substantially the facts.

There are several bills of exception. The first evidences complaint of the admission of the testimony of the officer as to what he found in appellant’s room at the hotel. Objection being made, the court heard evidence out of the hearing of the jury, and came to the conclusion that there was sufficient evidence to justify the search of the room. Admittedly the officer had no warrant for the arrest of appellant, and no search warrant. 1-Ie testified that, having received information from the man who delivered the typewriter and check protector to appellant’s room, that aroused his suspicions, he called up officers at Lubbock and asked them if any forgeries had been recently committed in that city. They presently called him back and told him a- man bought a suit of clothes and gave •a forged check, and the descriptions given hack and forth as to- the man who bought said suit of clothes caused the officer to believe appellant was the same man who had bought the suit of clothes in Lubbock. However, the officer testified further that, after getting the information from Lubbock, he could have gone to the courthouse and gotten a search -warrant or warrant of arrest in five minutes. To our minds, the admissibility of the testimony of the officer was very doubtful because of the fact that he had no warrant of arrest. Of course, had he made a legal arrest, his contemporaneous search of appellant’s room and what he fi^und there would have been admissible.

We are of opinion the court incorrectly admitted the testimony of witnesses Hawkins, Lindley, and Givens. The court charged o-n circumstantial evidence, and told the jury as to State’s Exhibits C, N, O, V, W, X, Y, and Z, and also as to tbe testimony of witnesses Hawkins, Givens, and Lindley, that they could -consider same, if at all, for the sole purpose of aiding them in determining whether the defendant did or did not make the instrument in writing, Exhibit B, which is the alleged forged instrument heroin; also whether, if he did make it, it was made without lawful authority and with intent to injure and defraud; also that they should not consider or discuss any or all of said instruments other than Exhibit B for any other purpose than as indicated. Appellant excepted to 'this part of the charge for a number of reasons, most of which appear to be well taken.

Extraneous offenses, that is, offenses other than the one on trial, when provable under some of the exceptions recognized by many decisions of tbis court, are not admissible at all, unless it bo shown that same are themselves cases wherein the person was guilty of some such violation of law as that proof thereof was pertinent. Nothing could seem more hurtful or more unfair than to prove against the accused in any case facts which amount to but a part of proof necessary to make out an extraneous offense— hut which are enough to surround the party on trial with suspicion ¿nd an atmosphere of criminality. Crass v. State, 30 Tex. App. 481, 17 S. W. 1096; Windham v. State, 59 Tex. Cr. R. 366, 128 S. W. 1130.

Cases too numerous to mention hold that a man may not be convicted of a crime by proof of his guilt of other similar offenses of the same kind. Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Cone v. State, 86 Tex. Cr. R. 293, 216 S. W. 190; Cano v. State, 88 Tex. Cr. R. 271, 225 & W. 1097; Gregory v. State, 92 Tex. Cr. R. 579, 244 S. W. 615; Mayes v. State, 118 Tex. Cr. R. 615, 42 S.W.(2d) 65. There was no testimony offered by appellant as supporting -a claim of mistake or lack of criminal intent, nor was the state lacking in proof of appellant’s identity — in which event it has been held that in rebuttal of such claims the state might prove against the accused other similar offenses. Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80.

We observe that Chas. E. Noble did not testify, nor did Harry Dillard, that the checks purporting to have been signed by them were not genuine; nor was there proof save by inference that these were fictitious persons.

Because of-the errors above mentioned, the judgment is reversed, and the cause remanded.