author: ALEXANDER, J.

text:
    PLOUGH, Inc., v. MOORE et al.
    No. 1405.
    Court of Civil Appeals of Texas. Waco.
    Jan. 19, 1933.
    O. H. Woodrow, of Sherman, for appellant
    Terry Dickens, of Marlin, for appellees.
   ALEXANDER, J.

W. B. Moore and B. A. Moore brought this suit against Plough, Inc., a corporation, and C. C. Kelly, as constable, to restrain the defendants from levying upon and selling under execution certain property situated in the town of Reagan, Falls county, Tex., and claimed to be exempt to plaintiffs as their homestead. The trial judge, in chambers on an ex parte hearing, granted the temporary injunction as prayed. Plough, Inc., appealed.

The plaintiffs alleged that they were engaged in the drug business under the trade-name of Moore Drug Company, and that they owned, used, and occupied a building in the town of Reagan for the purpose of conducting said business, and that it was the only business conducted by them. They further alleged that they actually lived in said building and that said building constituted their business homestead as well as their residential homestead and was exempt to them from forced sale under the Constitution and laws of this state. The plaintiffs further alleged that Plough, Inc., placed in the hands of C. C. Kelly, constable, an execution issued out of the justice court of Grayson county and that said constable was attempting to levy same upon said property and to sell the same for the purpose of satisfying said judgment. They further alleged' that irreparable injury would result to them unless the injunction was granted.

The petition did not describe the building, and nowhere alleged that either of plaintiffs was married nor that either of them was the head of a family nor that there was any family relationship existing between them. Our constitutional exemption of the homestead from forced sale applies to, and is intended for the protection of, a family only, and not for the protection of those who may congregate under the common roof under mere contractual relations for social or business purposes. In order to obtain the benefits of the exemption, the family relationship or status must exist among those claiming the benefits of the exemption. This necessar. dly presupposes a condition of dependence, either in law or fact, by one or more members of the group upon the other as the head of the family. Constitution, art. 16, § 50; Revised Statutes, art. 3833; Roco v. Green, 50 Tex. 483, 490; Howard v. Marshall, 48 Tex. 471, 477; Whitehead v. Niekelson, 48 Tex. 517, 529.

One seeking to have property exempted to him as a homestead should allege the facts, and -not conclusions, from which the court could determine that a relationship of dependency actually existed, either in law or fact, between or among those occupying the property at the time the property became impressed with the homestead character, or otherwise show the existence of the family relationship. Ramsey v. Allison, 64 Tex. 697, 699. The mere fact that the two plaintiffs were associated together in a common enterprise or were living together in the same house and were using and claiming the property so occupied by them as a homestead, as alleged by them, did not entitle them to have such property exempted from forced sale either as a business or residential homestead in the absence of the existence of the family relationship.

The allegation that the property constituted their homestead and was exempt to them as such was a mere conclusion of the pleader and cannot be considered in the absence of allegations of fact showing that they were actually entitled to a homestead exemption. Schlinke v. De Witt County (Tex. Civ. App.) 145 S. W. 660, par. 4; Horne Zoological Arena Co. v. City of Dallas (Tex. Civ. App.) 45 S.W.(2d) 714, par. 6.

In passing on the sufficiency of a petition for injunction, especially where the injunction is granted on an ex parte hearing, the rule is that we should construe the petition most strongly against the pleader. The petition should allege all, and negative all, which is necessary to establish the right to the injunction. In Gillis v. Rosenheimer, 64 Tex. 246, our Supreme Court said: “The rule of pleading, that the statements of a party are to be taken most strongly against himself, is re-enforced in injunction suits by the further requirement that the material and .essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated,-from which it might be deduced that he •might not, under other supposable facts connected with the subject, thus be entitled to relief.” See, also, Harding y. W. D. Pearson & Co. (Tex. Com. App.) 48 S.W.(2d) 964, par. 7; Asphalt Belt Ry. Co. v. Uvalde Rock Asphalt Co. (Tex. Civ. App.) 256 S. W. 675; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Emde v. Johnson (Tex. Civ. App.) 214 S. W. 575, par. 4; Miller v. City of Ballinger (Tex. Civ. App.) 204 S. W. 1173; City of Paris v. Sturgeon, 50 Tex. Civ. App. 519, 110 S. W. 459; Schlinke v. De Witt County (Tex. Civ. App.) 145 S. W. 660, 665.

Since the petition wholly failed to allege the necessary facts entitling the plaintiffs to have the property exempt to them as a homestead, the trial judge erred in granting the temporary injunction.

The judgment of the trial court is reversed, and the injunction dissolved.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    ROTH v. CARRELL et al.
    No. 2787.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1933.
    Rehearing Denied Feb. 2, 1933.
    Austin O. Hatchell, of Dongview, and J. H. Synnott, of Dallas, for appellant.
    Harry P. Lawther and H. B. Sanders, both of Dallas, for appellees.
   HIGGINS, J.

This is an action for damages brought by the appellant, Miss Roth, against appellee's, Drs. Carrell, Driver, and Girard.

The petition is voluminous, but the material facts disclosed thereby and pertinent to the question presented may .be briefly stated as follows: The defendants are physicians and surgeons associated together as partners ; plaintiff was afflicted with the physical deformity commonly known as “bow-legs”; defendants held themselves out as experts in the correction of such defects; plaintiff consulted them respecting the correction of her defect and they represented, warranted, and guaranteed they could correct same without permanent injury to her, and she engaged them so to do; they operated upon her by breaking her left leg in three places below the knee and her right leg in four places below the knee; this operation failing to correct her defect, she consented to another operation in which it was proposed to break the left leg above the knee, and while she was upon the operating table and under the influence of anaesthetics they did break said leg; and, over the protest of her mother, who was present, also broke her right leg. Further allegations are made of negligent treatment by defendants and that she had been rendered a hopeless and permanent cripple as a result of such treatment.

Defendants filed demurrers, general and special, all of which were overruled except one to the effect that there was a misjoinder of causes of action in that the petition joined a cause of action for breach of warranty, which is ex contractu, and a cause of action for negligent acts of the defendants, which sounds in tort.

This demurrer was sustained, and the plaintiff declining to amend, her suit was dismissed.

In this state the practice is very liberal with respect to joinder of causes of action. Great latitude is allowed in uniting different demands in one suit. To the end that a multiplicity of suits be avoided, the courts of this state favor the joinder of all causes of action between the same parties, in the same right, and arising out of the same transaction. This rule applies though one of the causes of action is for breach of contract and the other sounds in tort.

The rule is thus stated in 1 Tex. Jur. title Actions, § 42: “While recognition is given to the general rule that a cause of action ex delicto and a cause of action ex contractu may not be joined in the same suit, under the liberal practice prevailing joinder of such causes is permitted if they have arisen out of the same transaction or if they relate to the same subject matter and are dependent mainly upon the same evidence. In other words causes arising in tort and in contract may be joined when they are so connected that they may be conveniently and appropriately litigated together.” See, also, sections 31 to 41 of the same authority and the numerous eases cited in support of the text.

The petition in this case shows an action for damages based upon facts arising out of the same transaction. Though it shows the cause of action asserted arises both upon breach of contract and in tort, there is no good reason whatever why the relief to which the plaintiff is entitled may not be asserted in a single suit.

Under our liberal practice plaintiff clearly had the right to do so. The exception was erroneously sustained.

Reversed and remanded.


author: HALL, C. J.

text:
    J. B. HIRSHFELD & CO., Inc., v. EVANS et ux.
    No. 3950.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1933.
    Rehearing Denied Feb. 8, 1933.
    Slough, Gibson & Slough, of Amarillo, for appellant.
    Lackey & Lackey, of' Stinnett, for appel-lees.
   HALL, C. J.

Mrs. A. D. Evans conducted a store in Borger known as the New York store and it is alleged that the stock of merchandise was her sole and separate property. She purchased goods from the appellant in the sum of $831.80 for the purpose of replenishing her stock of merchandise. Appellant filed this suit against Mrs. Evans and made her husband, Henry Evans, a 'party defendant, alleging that before the institution of the suit appellant’s attorney had conferred with Henry Evans and1 he had objected to the amount of the claim, but that Mrs. Evans and her husband objected only to two items, which it seems from the pleading were deducted before the suit was filed and the petition contains the further allegation that the merchandise had been received, for which they agreed to pay. It is not alleged that Henry Evans was connected in any way with the store or with the purchase of the merchandise included in the claim. The right to recover is, according to the allegations, predicated upon the fact that the goods were necessary in the proper conduct and management by Mrs. Evans of her store at Borger.

The court sustained a general and several special exceptions to the petition and the plaintiff failing to amend, judgment was rendered dismissing the action.

One of the exceptions is that no personal action could be maintained against Mrs. Evans because the petition failed to show compliance with the requirements of R. S. art. 4626.

We think the court properly sustained the exceptions.

With reference to the powers of a married woman to engage in the mercantile business, it is said in 23 Texas Jurisprudence § 266: “Technically a married woman may be a merchant or trader at will so far as immediate transaction of the business is concerned. That is, she may own merchandise and wares freely, may buy or sell them at pleasure, either for cash or on credit, may rent or lease buildings or employ clerks and other help needed. Her contracts of purchase, lease or employment do not bind her, but they do bind the other party.”

And further, in Id. § 268: “A married woman is not then liable as an ordinary merchant for her contracts of debt or otherwise in the transaction of the business.”

The pleading fails to show any consideration for the subsequent promise made by the husband, Henry Evans, to pay for goods previously sold to his wife and for which she was not responsible. So far as the pleadings show, it was a verbal promise and is further void under the provisions of the statute of frauds (Rev. St. 1925, art. 3995).

The judgment is affirmed.


author: BOND, J.

text:
    DENISON AUTO CO. v. MITCHUSSON et ux.
    No. 11097.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 28, 1933.
    Charles Reasonover, of Denison, for appellant.
    Asa M. Pearson, of Denison, for appellees.
   BOND, J.

It appears in the record that this suit originated in a justice court, where the amount in controversy and the judgment rendered is less than $100. The Courts of Civil Appeals have no jurisdiction of an appeal in such cases. Article 1819, subd. 2, Revised Statutes of 1925.

Appellant’s suit is based upon a note in the sum of $68, and- to foreclose a chattel mortgage on an automobile, alleged to have been executed by one of the appellees, Mrs. J. R. Mitchusson. The record on appeal does not affirmatively show that the amount of the note, or the value of the automobile, is sufficient to confer jurisdiction on this court. We cannot assume jurisdiction under the status of the record. This court has, in many instances, found it necessary and proper -to allow litigants further opportunity to perfect records and supply anything improperly omitted therefrom to reach the ends of justice; but as -the condition of this record, as presented, is such it does not show necessary jurisdictional facts, we can do nothing except to dismiss the appeal. For the reasons stated, the appeal is dismissed.

Dismissed.


author: HICKMAN, C. J.

text:
    CRIBBS v. POLK COUNTY.
    No. 1054.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 27, 1933.
    B. P. Reynolds and Jeff A. Powler, both of Throckmorton, for appellant.
    T. R. Odell, of Haskell, for appellee.
   HICKMAN, C. J.

Appellee Polk county is the owner of certain lands situated in Throckmorton county. It leased these lands to S. P. Odom for agricultural purposes for the year 1931 for a stated rental of $439.50, which was evidenced by Odom’s promissory note, payable to ap-pellee. The suit was upon this note and for the foreclosure of appellee’s alleged landlord’s lien upon certain wheat raised on the rented premises for the year 1931 and stored under the name of J. R. Cribbs with the Graham Mill & Elevator Company at Throckmorton. Appellant J. R. Cribbs was made a party to the suit under allegations that he was claiming a portion or all of said wheat and illegally trying to appropriate same to his own use and benefit. In the answer filed by Cribbs, he alleged a contract between him and Odom, under the terms of which Cribbs harvested the wheat for a stipulated price to be paid out of the wheat harvested at the prevailing market price of wheat delivered in the elevator at Throckmorton on the date of such delivery. He further alleged that, before harvesting same, he informed the duly authorized agent of appellee of his agreement with Odom, and that such agent agreed with him that he could ■ retain enough wheat in his possession to compensate him for his services, and that, acting in pursuance of said agreement, he rendered the services, by virtue of which he was entitled. to retain 390 bushels of the wheat. Upon the conclusion of the testimony, the court peremptorily instructed the jury to return a verdict in favor of appellee against Odom on the note and against both Odom and Cribbs for a foreclosure of the landlord’s lien. Odom filed no answer in the court below, and does not prosecute an appeal. Cribbs excepted to the judgment, and has brought the ease here for review, presenting three questions for our determination.

The first two questions presented relate to'the rulings of the trial court in excluding certain evidence offered by appellant. The bills of exceptions preserving these rulings do not show that the questions would have been answered or, if answered, what the answers would have been. It is well settled by many decisions that an assignment of error complaining of the exclusion of evidence will be overruled when the bill of exceptions taken to the ruling fails to show what the witness would have testified to. Absent this recital in the bill, no error is disclosed. Many authorities so holding are collated in 3 Tex. Jur. § 331, p. 470 et seq. The assignments presenting these questions are overruled.

The other question presented is that the evidence did not authorize the giving of the peremptory instruction. It is disclosed that the wheat was removed from the rented premises about two months before the institution of proceedings to foreclose the landlord’s lien. By the terms of article 5223, R. S. 1925, the landlord’s lien as to agricultural products continues so long as they remain on the rented premises and for one month thereafter’. It has the further provision, in substance, that, if such products are stored in public or bonded warehouses controlled or regulated by law within thirty days after their removal from the rented premises, the lien shall continue so long as they remain in such warehouses. This statute determines the existence of á landlord’s lieri, and at the expiration of the time therein named the lien ceases to exist, in the absence of foreclosure proceedings. Jenkins v. Patton (Tex. Civ. App.) 21 S. W. 693; Horton v. Lee (Tex. Civ. App.) 180 S. W. 1169.

The evidence is insufficient to disclose that Graham Mill & Elevator Company operated a public or bonded warehouse controlled or regulated by the laws of this state. This concern conducted a mill and elevator business in Throckmorton, but there is no showing that it conducted a warehouse, within the meaning of article 5223.

The trial court was therefore not authorized in giving the peremptory instruction, and its judgment will be reversed and the cause remanded.


author: PELPHREY, C. J.

text:
    O’CONNOR v. METROPOLITAN CASUALTY INS. CO. et al.
    No. 2779.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 26, 1933.
    Rehearing Denied Feb. 9, 1933.
    Bond & Porter, of Terrell, for appellant'.
    Seay, Seay, Malone & Lipscomb, of Dallas, for appellees.
   PELPHREY, C. J.

This suit was instituted January 15, 1931 by R. G. Davidson & Son against Eproson &. Co. and the Metropolitan Casualty Insurance Company, to recover the sum of $2,985.63 for labor performed in the building of highway No. 15 in Dallas county, Tex.

Appellant intervened seeking to recover from the same defendants the sum of $3,882.-72, which he claimed for labor performed on the same highway. It was agreed between the parties that Eproson & Co. entered into a contract with the state highway commission on May 14, 1929, to build the highway in question; that Eproson & Co. executed a bond for the faithful performance .of their contract to the state highway commission with the Metropolitan Casualty Insurance Company as surety; that Eproson & Co. sublet certain of the work to Davidson & Son and Jamesr O’Connor, agreeing to pay them 18 cents per cubic yard for excavating, 3 cents per cubic yard for overhauls, $18 per acre for clearing, and $26 per acre for grubbing; that the state highway commission had a local engineer in charge who super-1 vised and directed the work as it progressed; that O'Connor and Davidson & Son both completed the portion of the work allotted to them; that O’Connor excavated 54,345 yards of dirt that went into the roadway, cleared-3.55 acres of clearing, grubbed 3.55 acres of grubbing, and did 83.678 cubic yards of overhaul, amounting, under the prices agreed upon, to a total of $12,443.44; that each month, as the work progressed, the highway engineer furnished to Eproson & Co. and to the state highway commission an estimate of the amount of excavation, grubbing, clearing, and overhaul for the preceding month; that upon these estimates a total of $8,560.-74 was paid to O’Connor; that these monthly estimates were not made from actual measurements on the ground1, but were based upon the opinion of the engineer, and might have been more or might have been less than the actual amount of labor performed each month; that, after the road was completed, the engineer made actual measurements of the different kinds of work done, and furnished an estimate based thereon to Epro-son & Co. and to the state highway commission; that it was part of the duty of O’Con-nor to keep up the part of the road built by him until the engineer in charge should make his final estimate and accept the road as completed; that O’Connor finished his portion of the work about April 23, 1930; that the engineer’s final estimate on the road was made and the road accepted by the state on April 30, 1930; that thereafter, on May 6, 1930, the engineer made up an estimate as to the amount of work done by Davidson & Son and by O’Connor; that this estimate was the first practical means O’Connor had of knowing the amount of labor performed by him on the road; that the contractor and the subcontractor, as a practical matter, had to-depend upon the engineer in charge to furnish the final estimate in order to know the exact amount of work done on the highway; that it would have been highly impracticable to have measured the work done by cross-sectioning after each week’s or month’s work was completed; and that the final estimate shows that there was due O’Connor the sum of $3,882.70. Appellant was awarded a Judgment against Eproson & Co., but was denied Judgment against Metropolitan Casualty Insurance Company, and from that action of the court he has perfected his appeal.

Opinion.

The trial court found in his findings of fact that O’Connor had a subcontract covering certain work; that he commenced said work about June 10, 1929, and finished it about April 23, 1930; that on August 1, 1930, he filed a claim with the county clerk of Dallas county showing a balance due of $3,882.70; that such claim was filed more than 90 days after the performance' of the last item of labor therein set out; that such claim covered labor performed from December 26, 1929, to February 25, 1930, amounting to $2,097.29, and for labor performed from February 25, 1930, to April 23, 1930, amounting to $1,795.41.

Among the conclusions of law filed by the court, we find: “I conclude as a matter of law that the failure of James O’Connor to-file an itemized, verified claim for his labor with the County Clerk of Dallas County, Texas, within ninety days from the performance of the last item of said labor precludes his recovery against said bond.”

It thus appears that the court’s refusal to award O’Connor a judgment against the surety wa§ based upon the fact that he had not filed his claim in accordance with the provisions of article 5160, R. S.

Appellant’s propositions are: (1) That article 5160, does not require a subcontractor, laborer, or materialman to file his claim within 90 days after the furnishing of labor or material in order to hold the surety; (2) that, where a contract on public work is a continuing one, and the contractor or laborer lias no means of knowing the exact amount of labor performed, and has to depend entirely upon the engineer in charge to furnish him with a full and complete statement thereof on final completion of the contract, then the time within which to file his claim with the county clerk under the statute does not commence to run until such statement is furnished to him; and (3) that, where the contract is a continuing one and the contractor or laborer has to depend entirely upon the engineer in charge to furnish him a full and complete statement of the amount of labor performed by him, then the time specified by the statute does not commence to run until, by the use of reasonable diligence, such laborer or contractor could acquire and know the exact amount of labor performed by him.

Article 5160, Revised Statutes 1928 (Vernon’s Ann. Civ. St. art. 5160, and note), reads:

“Any person, or persons, firm or corporation, entering into a formal contract with this State or its counties or school districts or other subdivisions thereof or any municipality therein for the construction of any public building, or the prosecution and completion of any public work shall be required, before commencing such work, to execute the usual Penal Bond, with the additional obligation that such contractor shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract. Any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the State or any municipality on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claims and judgment of the State or municipality. If the full amount of the liability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then, after paying the full amount due the State or municipality, the remainder shall be distributed pro rata among- said in-tervenors. Provided* further, that no person or persons, firm or corporation shall he secured in the payment of any claim contracted prior to the execution of the contract that said bond, is given to secure, and provided further that all claims for labor shall be itemized and sioorn to by the owner or ■his authorised agent and filed with the contractor or with the county cleric of the county in which said worlc is being prosecuted within thirty days from the date that said claim accrued and became payable, and all claims for material shall be itemised and sworn to by the oumer or his authorised agent and, filed vMh the contractor or with the county cleric of the county in which said worlc is being prosecuted within thirty days from the date of the delivery of said material; and any claim filed after, said thirty days shall not be secured by said bond.’’

The Forty-First Legislature (1929), c. 226 (Vernon’s Ann. Civ. St. art. 5160) amended the italicized portion of the article to read:

“Provided further, that all claims for labor and material furnished to said contractor, and all claims for labor and material furnished to any contractor shall be itemized and sworn to as required by Statutes -as to mechanic’s lien claims, and such claims shall be filed with the County. Clerk of the County, in which said work is being prosecuted, within ninety days from the date of the delivery of said material and the performance of said work. The County' Clerk shall note on the mechanic’s lien record, the name of the claimant, tile amount claimed, the name of the contractor and the name of the county, school district, other subdivisions, or municipality with which the contract was made; and the County Cleric shall index the claim under the name of the contractor and under the name of the county, school district, other subdivisions or municipality with which the contract was made.
“Provided further that after completion and acceptance of completed project all moneys due- contractor under said contract shall be held by the State or its counties or school districts or other subdivision thereof or any municipality until such a time that satisfactory evidence is submitted and affidavits made by the contractor that all just bills for labor and material under this contract has been paid in full by the contractor.”

Appellant now argues that the Legislature, by omitting from the article the provision, “and any claim filed after said thirty days shall not be secured by said bond,” intended that failure to file his claim within ninety days should not be a bar to a claimant’s right to recover from the surety, but that the only reason for the present provision with reference to filing claims is to give to the creditors who -file their claims within the ninety days the first right to the proceeds of the bond, in the event it is not sufficient to satisfy all claims. We cannot agree that such was the intention.

As admitted by appellant, under the article, before amended, there could be no recovery as against the surety unless the claim had been filed within the thirty-day period. American Surety Company v. Axtell Co., 120 Tex. 166, 36 S.W.(2d) 715; American Surety Company v. Alamo Iron Works (Tex. Com. App.) 36 S.W.(2d) 714; Aetna Casualty & Surety Company v. Woodward (Tex. Com. App.) 36 S.W.(2d) 721. A reading of those' decisions will reveal that they were not based upon that portion of the statute which was omitted in the 1929 amendment, but were based upon the general provisions requiring the filing of claims.

We agree with appellee that the omitted portion was unnecessary in the article, and that the holding would have been the same in the absence of the provision.

The caption of the Act passed by the Forty-First Legislature, 1929 (chapter 226), reads:

“An Act to amend Article 5160 of the Revised Civil Statutes of 1925 as amended by the act of the 40th Legislature of 1927, First Called Session, page 114, Chapter 39, Section 1, providing more adequate and better regulations and provisions in connection with bonds where a person or persons, firm or corporation .enter into a formal contract with this State, or its Counties, or school districts, or any other subdivision thereof; or any municipality therein, for the construction of any public building, or the prosecution and completion of any public work; prescribing what bonds shall be executed in connection therewith and the obligations they shall contain relative to making payments to all persons supplying labor and materials in connection with the contract; providing more particularly what debts shall be secured by said bonds and providing for filing claims under oath with the county clerk in the county in which said work is being prosecuted, wnd fixing the time i/n which said claims must he filed in order to he secured hy said bond. * ⅜ * ”

We think it apparent from this announcement of the purposes of the amendment, and the conclusion we have reached as to the omitted portion being superfluous, that the Legislature had no intention of relieving claimants from the necessity of filing their claims within ninety days in order to hold the surety.

We therefore conclude that appellant was not entitled to a judgment against the surety ■in the absence of a showing that -he had filed his claim with the county clerk within ninety days after the labor was performed. Texas Company v. Schriewer (Tex. Civ. App.) 38 S. W.(2d) 141; Detroit Fidelity Co. v. Pippins et al. (Tex. Civ. App.) 47 S.W.(2d) 886; Detroit Fidelity & Surety Co. v. Moberly (Tex. Civ. App.) 52 S.W.(2d) 298.

Appellant’s second and third propositions are also untenable.

Conceding, as argued by appellant, that the nature of the work appellant was doing made it difficult for him to determine just the amount he had done, yet the duty rested upon him, if he wished to hold the surety, to file his claim within ninety days, and there is nothing in the statute which even suggests that it may be filed within ninety days from the making of the final estimate or that the time would not begin to run until the claimant could, by the use of reasonable diligence, know the exact amount of labor he had performed.

In this case, the final estimate was made by the engineer and the work accepted on April 30th. Granting that, by reason of appellant’s contract to keep the work dragged off, the shoulders built up, the low places filled, and to keep the finishing work up until the road was accepted, his work was not performed until the road was accepted, yet we find that his claim was not filed until August 1st, more than ninety days after the road was accepted.

We find no error in the court’s action in refusing appellant a recovery against the surety, and the judgment is affirmed.


author: RYAN, J. CÜRETON, C. J.

text:
    PURE OIL CO. v. CLARK et al.
    No. 1373-5961.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    See, also, 35 S.W.(2d) 838; 37 S.W.(2d) 1083,' 1088; 40 S.W.(2d) 962; 56 S.W.(2d) 852, 853, 855.
    Vinson, Elkins, Sweeton & Weems, C. A. Sweeton, and David T. Searls, all of Houston, and Wynne & Wynne, of Wills Point, for plaintiff in error.
    Beall & Beall, of Sweetwater, and MeEntire, Shields & Elam, of Canton, for defendants in error.
   RYAN, J.

Defendant in error, Cone Johnson Clark, was adjudged to be a person of unsound mind by the county court of Van Zandt county, on- September 18, 1928; on February 14, 1930, he, “joined by his next friend and his guardian ad litem, James M. Shields,” instituted this proceeding in the same court which had rendered the lunacy judgment to set the same aside as a void judgment.

Paul H. Stanford, county attorney, R. Clark, and the Pure Oil Company, a private corporation, were named parties defendant.

It was alleged by defendants in error that said judgment was obtained as the result of conspiracy and fraud, in that the Pure Oil Company, desiring to obtain, without paying the reasonable cash market value thereof, a lease upon certain real estate reputed to be oil and gas land owned by Cone Johnson Clark, caused him to .be adjudged a person of unsound mind, and, pursuant to said judgment, R. Clark to be appointed and qualified as guardian of his person and estate, and through said guardian obtained the desired oil and gas lease.”

It was further alleged, in substance, that the sole purpose of said lunacy-proceedings was to furnish a guardianship proceeding as a basis for the obtaining, through court orders, of a gas and oil lease and not for the purpose of protecting the ward, who was also a minor at the time.

The county court, on March 25, 1930, dismissed the'proceeding for the want of jurisdiction, to which action “the said Cone Johnson Clark and his representatives in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District.” Such appeal was perfected by the approval and filing of a proper bond, on March 27, 1930.

The Pure Oil Company then filed motion to dismiss the appeal, for the reasons: (1) There is no statutory ground for exercising appellate jurisdiction in this case; (2d) the ruling in the county court was a probate proceeding, and no appeal therefrom lies directly to the Court of Civil Appeals.

The Court of Civil Appeals overruled the motion to dismiss, and in reversing the judgment of dismissal, and remanding the cause for a hearing on the merits held that the petition filed by defendants in error is a direct attáck upon the lunacy judgment, institutes a civil suit to set it aside, and that appeal lies directly 'to that court from the county court’s judgment of dismissal. 35 S.W.(2d) 488.

■ Opinion;

In this state the proceedings' under which a person may be declared-insane and a guardian appointed for him have been revised, repealed, and added to, from time to time, until there is some confusion in just what comprises the statute. The original act as it appeared in the 1911 revision of the statutes (article 150 et seq.) was amended by the act of 1913 (Reg. Sess. c. 163) but a portion of the last act was subsequently declared unconstitutional and void (White v. White, 108 Tex. 570, 196 S. W. 508, L. R. A. 1918A, 339).

In the revision of 1925, several important articles of that statute, notably those relating-to the commencement of the proceeding, the apprehension of the suspected lunatic, and summoning of a jury, seem to have been omitted. Smoot’s Law of Insanity, p. 98. This refers to title 92, articles’ 5547 to 5561, Rev. Stat. 1925.

Under that title as deleted- there is no requirement providing for a preliminary affidavit or apprehension of the supposed lunatic; it is required, however, that the “cause” shall be docketed on the probate docket of the court in the name of the state of Texas as plaintiff and of the person -charged to be insane, as defendant, a trial by. jury of six. men had, certain special issues .submitted, and, upon verdict returned that the defendant is of...unsound mind and .that it is necessary that he be placed under restraint, judgment shall be entered adjudging the defendant to be of unsound mind and his committal for restraint ¿nd treatment to any insane asylum operated by the state or to any authorized agency of the United States government where such agency will acceptr such .person. Provision is then made for the cohv.eyanc.e of such person to such custody or to “some, relativl or friend of the lunatic” who will undertake the proper care and restraint with proper bond securing the same.

Under such proceeding only the question of insanity is involved, and no provision for an appeal is made; thé adjudication of insanity alone is merely incident to the commitment to an asylum or.other institution or person as héfeinbefore stated', and is not ap-pealable, unless made so by statute. Glenn v. State, 48 Tex. Civ. App. 229, 107 S. W. 621; Leonard v. Dallas County (Tex. Civ. App.) 292 S. W. 249 ; 32 C. J. 649; Smoot’s Law of Insanity, p. 124,

However, title 69, e. 12, Rev. Stat. 1925 (art. 4267 et seq.), relating to the appointing of guardians for lunatics and habitual drunkards provides a complete procedure in such matters.

Upon information, that a person of unsound mind or an .habitual drunkard is without a, guardian, -the county judge, if satisfied there is good cayse for the. exercise of his jurisdiction, may, by issuance of a warrant to the proper officer, cause such person to be brought before him (article 4267, Rev. .Stat. 1925); this may also be done upon the filing by any county officer of prophr information (articles 4268, 4269,' Rev.1 Stat. 1925). A jury is then impaneled to try the case and- decide whether-such person is of “unsound mind or is an habitual drunkard (article 4270).

There is a marked difference between this and article 5554, title 92, Rev. Stat. 1925, applicable to eases committing for restraint and treatment, alone. In the latter the jury must find not only that the defendant is of unsound mind, but also that it is necessary that'he be placed under restraint, whereas, under article 4270, no such finding of.necessity for restraint is necessary.

The jury having found the defendant to be of unsound mind, it is the court’s ■ duty, immediately and without further notice, tó apT point a guardian of the- person ■ and estate of such defendant in the, same manner as in the case of a minor (article 42⅜2, Rev. Stat. 1925), arid the provisions relating to the guardianship of the persons and. ¡estates .of minors are applicable to lunq.^ . guardian-ships, in so far as applicable '(article 4274, Rev. Stat. 1925).

It is also provided (article 4273, Rev. Stat, 1925) that for good cause shown, within ten days'after verdict returned, the court may set aside such verdict and grant a new tria], to ..either party, with the provisio that, when two juries have concurred in a case, the second verdict shall not be set aside.

Provision is also made for an -appeal,to the district court by article 4318, Rev. Stat., 1925, as‘follows: “Any person who may consider himself aggrieved by any decision, order, oi* judgment of the court, or by any order of the judge thereof, in relation to guardianships, may appeal to the district court, as a matter of right, without bond.”

Therefore an appeal lies to the' district court from the judgment of the county court with reference to the determination of a person’s sanity coupled with the appointment of a guardian for him. Hefley v. Hugen, 56 Tex. Civ. App. 273, 120 S. W. 956. As said by Judge Randolph, in Warrick v. Moore County (Tex. Civ. App.) 291 S. W. 950, 955; “The question as to whether a party is of unsound mind is a jurisdictional fact,.-to.be ascertained before such guardian can-:be appointed, and the order appointing such guardian is.based solely upon the ascertained fact of unsoundness of mind. Hence the finding as to the unsoundness of mind is as much a part of the probate proceedings as the order of appointment.”

That was a case of certiorari from the district court, to the county court, and it was there held that a person adjudged of unsound mind in a proceeding instituted in the county court, and wherein a guardian for his person and estate was appointed, can have the proceedings revised in the district court, this to include the question of unsoundness of mind, and upon such hearing in the district court- the cause is to be tried de novo.

The distinction between a trial where the question of insanity alone is merely incident to the commitment to an asylum and a trial where the adjudication of insanity is incident to the appointment of a guardian is that the latter trial partakes of the nature of a guardianship proceeding over which the district court has jurisdiction by express provision of the statute (articles 4318 and 4103) and by constitutional provision (article 5, § 8).

That appeal is not from the county court to the Court of Civil Appeals, but to the district court.

It is contended by defendants in error that they sought only to set aside the order adjudging Cone Johnson Clark ‘to be of unsound mind, on the ground that said judgment and all orders thereunder are void; that said proceeding was a new suit to set aside an alleged void judgment, and therefore the appeal was properly had to the Court of Civil Appeals.

We do not sustain such contention. Because of the guardianship an appeal would lie, but only to the district court. Article 4318, Rev. Stat. 1925. The statute so provides ; it also provides for the correction and revision of the county court’s orders by bill of review filed in that court (article 4328, Rev. Stat. 1925), and by certiorari from the district court (article 4329, Rev. Stat. 1925).

This is a direct appeal to the Court of Civil Appeals from a judgment of the county court dismissing a suit which was a direct attack to set aside a probate proceeding. In United States F. & G. Co. v. Buhrer, 103 Tex. 557, 131 S. W. 808, 810, on certified question, Judge Williams said:

“The jurisdiction given to the county court by section 16 of article 5 of the Constitution to appoint guardians and ‘to transact all business appertaining to deceased persons, minors,’ etc., is quite distinct from that given in the first part of that section over misdemeanors and ‘civil cases.’ The power given to the court by the article of the statute cited to review its orders upon bill of review is part of the jurisdiction which belongs to the court under the grant first mentioned. No other jurisdiction so to review orders of that character in this mode is given to any court; and it is given to the county court when transacting business pertaining to minors, and not when exercising jurisdiction over civil cases. A bill asking such a court to review its orders in a guardianship, after it has lost all power to change them otherwise than in the mode prescribed by this statute, must necessarily be treated as a proceeding under that statute, invoking the only power that the court has — a power included in that to transact ‘business appertaining to minors’ granted by the Constitution. And when the court hasi acted in the exercise of that kind of jurisdiction the only appeal allowed by the Constitution and laws is to the district court. * * *
“The present question is not whether or not a good cause of action was shown, nor as to the correctness of the judgment of the county court, but as to the kind of jurisdiction invoked.”

We have reached the conclusion that an appeal such as here sought should have been to the district court and not to the Court of Civil Appeals, and therefore recommend that the judgment of the Court of Civil Appeals be reversed, and the appeal to that court be dismissed.

CÜRETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and judgment rendered as recommended by the Commission of Appeals.


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

text:
    Cone Johnson CLARK et al., Plaintiffs in Error, v. The PURE OIL COMPANY et al., Defendants in Error.
    No. 1376-6002.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    See, also, 35 S.W.(2d) 488, 838; 37 S.W.(2d) 1088 ; 40 S.W.(2d) 962 ; 56 S.W.(2d) 850, 853, 855.
    Beall & Beall, of Sweetwater, and McEn-tire, Shields & Elam, of Canton, for plaintiffs in error.
    Vinson, Elkins, Sweeton & Weems, C. A. Sweeton, and David T. Searls, all of Houston, and Wynne &' Wynne, of Wills Point, for defendants in error.
   LEDDY, J.

The Court of Civil Appeals [37 S.W.(2d) 1083] has correctly disposed of this case for the reasons given in its opinion, and we therefore recommend that its judgment be affirm-éd.

CURETON, C. J.

The judgment of the Court of Civil Appeals is affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, C. J.

text:
    The PURE OIL COMPANY, Plaintiff in Error, v. Henry CLARK et al., Defendants in Error.
    No. 1374-5962.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    See, also, 35 S.W.(2d) 488, 838 ; 37 S.W.(2d) 1083, 10S8; 56 S.W.(2d) 852, 853, 855.
    Vinson, Elkins, Sweeton & Weems, C. A. Sweeton, and David T. Searls, all of Houston, and Wynne & Wynne, of Wills Point, for plaintiff in error.
    Beall & Beall, of Sweetwater, and McEn-tire, Shields & Elam, of Canton, for defendants in error.
   RYAN, J.

This is a companion case of Pure Oil Company v. Cone Johnson Clark et al., this day decided [56 S.W.(2d) 850], and involves the same questions there involved.

We therefore make the same recommendation as in that case, viz., that the judgment of the Court of Civil Appeals [40 S.W.(2d) 962] be reversed, and the appeal to that court be dismissed.

CURETON, C. J.

The judgment of the Court of Civil Appeals is reversed and judgment rendered as recommended by the Commission of Appeals.


author: LEDDY, J. CURETON, C. X

text:
    PURE OIL CO. v. CLARK et al.
    No. 1375-5965.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    See, also, 35 S.W.(2d) 488 ; 37 S.W.(2d) 1083, 1088 ; 56 S.W.(2d) 850, 852, 853, 855.
    Yinson, Elkins, Sweeton & Weems, C. A. Sweeton, and David T. Searls, all of Houston, for plaintiff in error.
    McEntire, Shields & Elam, of Canton, Beall & Beall,- of Sweetwater, and E. E. Hurt, of Dallas, for defendants in error.
    Mann, Neel & Mann, of Laredo, as amicus curte.
   LEDDY, J.

R. Clark was duly appointed guardian of the estate of Isabelle Clark, a person of unsound mind, on May 17, 1908, in cause No. 1684 on the probate docket of Van Zandt county, Tex. Upon the application of the said R. Clark he was by the same court appointed temporary guardian of Isabelle Clark on September 29,1928, in cause No. 4289 on the docket of said court, and' subsequently this appointment was made permanent. On February 7, 1929, said R. Clark was again appointed by the same court as temporary guardian of the same ward, In cause No. 4308 on the docket of said court, and said appointment was made permanent on March 5, 1929. R. Clark attempted to qualify as guardián by complying with the statutes of this state in each of these three proceedings. It is shown that the estate of the ward over which he was thus three times appointed guardian consisted of identically the same property.

The record discloses that R. Clark, as guardian of the estate of Isabelle Clark, a person of unsound mind, made two separate applications to the probate court of Yan Zandt county for authority to execute a mineral lease on the lands belonging to his ward. An order was entered under each of these applications authorizing him to execute such a lease, and a bond was executed under each application, as provided for by article 4192, subd. 4, R. S. 1925, as amended by the Acts of the Fortieth Legislature, c. 164, § 1 (Vernon’s Ann. Civ. St. art. 4192, subd. 4). One of these applications and the bond required thereunder showed the file number of cause No. 4289 and the others of cause No. 4308.

. Defendants in error, by certiorari proceedings in the district court of Van Zandt county, sought to have declared void the mineral lease executed by R. Clark as guardian of the estate of Isabelle Clark. In their petition it was alleged that the appointments of R. Clark as guardian of the estate of Isabelle Clark in causes No. 4289 and 4308 were void, because, at the time R. Clark was appointed guardian in each of said proceedings, he.had theretofore by valid order o'f the probate court in cause No. 1684 been appointed guardian of said ward’s estate, and had duly qualified as such, and that such appointment exhausted the power of the court to further appoint a guardian of the estate of said ward.

It is insisted by defendants in error that no valid mineral lease was executed by R. Clark, guardian of the estate of Isabelle Clark, covering the lands of his ward, for the reason that the applications for authority to lease, as well as the bonds executed thereunder, carried the file numbers of the void proceedings of causes No. 4289 and 430S instead of the file number of the valid guardianship proceedings in cause No. 1GS4.

It appears from the record that all proceedings in connection with the application bearing the file No. 4308', and the bond executed thereunder, were in full compliance with the statute regulating the execution of mineral leases by guardians; but it does not appear that the bond executed under the application bearing file No. 4289 was in compliance with the terms of the statute. There is no showing that the mineral lease was not sold for its fair market value, or that the ward suffered any injury by reason of the irregularity in the application and bond bearing a file number different from that- of the admittedly valid guardianship proceedings of cause No. 1684.

Disregarding mere form, and looking to the substance of the matter, the true situation is this: The probate court of Van Zandt county acquired jurisdiction over the estate of Isabelle Clark, a person of unsound mind, by the admittedly valid appointment and qualification of R. Clark as guardian in cause No. 1684. Such’ court therefore was legally empowered to authorize said guardian to execute a mineral lease on the lands of the ward, upon' a proper compliance by him with the statutes regulating the execution of such' leases. The duly qualified guardian made ap^ plication to the court having jurisdiction over the estate of the ward for authority to execute the mineral lease. After a full compliance with all requirements of the statute in connection therewith, the execution of the lease was duly authorized, and the guardian properly executed the same.

In the face of these facts, we are asked to declare these proceedings, which appear to be regular, with the exception of their file numbers, absolutely void. To accede to this request would be to give force and effect to mere form, with an utter disregard for the substance of the transaction. If the application and bond had borne no file number whatever, the validity of a lease executed thereunder would not have been affected. The filing of a proper application by the duly qualified guardian in the court having jurisdiction over the estate of the ward was sufficient to invoke suc-h jurisdiction under the pending valid guardianship.

If we assume the invalidity of the appointment of the guardian in causes No. 4289 and 4308, and the pendency of but one valid guardianship proceeding, that of cause No. 1684, the application for authority to lease and the court’s action thereon will be referable to the pending valid proceeding. This is true, notwithstanding the application for such lease and the bond executed thereunder erroneously bore the file number of an invalid proceeding. The numbering of the application and bond as under cause No. 4308 constituted a mere-irregularity not shown to have resulted in any injury ,to the ward’s estate.'

Where orders entered in a guardianship proceeding are not void for want of jurisdiction' they will not be set aside on account of mere irregularities, unless it be shown that the same operated to the injury of the ward. Thomas et al. v. Pure Oil Co. (Tex. Civ. App.) 297 S. W. 776; Hannon v. Henson (Tex. Com. App.) 15 S.W.(2d) 579. The action of the court upon the application to lease would have been exactly the same and the ward would have received the same compensation had the application borne the filé number of the valid guardianship proceedings in cause No. 1684.

The question here involved is similar to that decided by the Appellate Court of Indiana in Globe Mining Company v. Oak Ridge Coal Company, 79 Ind. App. 76, 134 N. E. 508, 509. In that case it appeared that a party, after t£e adjournment of the term of the court at which a judgment had been rendered against him, filed a proceeding in the nature of a bill of review, to set aside such judgment. This proceeding was given the same file number as the original cause. It was contended that the pleadings were .insufficient to entitle the plaintiff to the relief ■sought because the cause was not numbered as an independent suit. The court assented to the correctness of the proposition that the suit to set aside the judgment was a new and independent suit, and should have borne the number of a new suit, but held that the misnumbering of the cause did not operate to prevent the court from awarding, the relief prayed for. In passing on this question the court said: “But, wherever justice appears to demand it, courts should look through the form of a pleading to its substance, and thereby made it effective for the purpose intended, where this can be done without violating any statute or settled rule of practice.”

If at the time application was filed by R. Clark for permission to execute a mineral lease on-the land of his ward cause No. 1684 had been the only guardianship proceeding-pending in said court, we do not think it could have been seriously urged that the mineral lease made thereunder would have been void merely because the application and bond had been given erroneous file numbers. This is exactly the situation which would be presented if we assume the invalidity of the appointment of the guardian in causes 4289 and 4308. If such appointments were absolutely vpid, then the record would be in the same condition as if no such appointments had ever been made.

We therefore recommend that the judgments of the trial court and Court of Civil Appeals be reversed and judgment here rendered for plaintiff in error.

CURETON, C. X

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


text:
    CLARK et al. v. PURE OIL CO. et al.
    No. 1377-6003.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.
    See, also, 35 S.W.(2d) 488, 838 ; 37 S.W.(2d) 1083 ; 40 S.W.(2d) 962; 56 S.W.(2d) 850, 852, 853.
    Beall & Beall, of Sweetwater, and- McEn-tire, Shields & Elam, of Canton, for plaintiffs in error.
    Vinson, Elkins, Sweeton & Weems, O. A. Sweeton, and David T. Searls, all of Houston, and Wynne & Wynne, of Wills Point, for defendants in error.
   RYAN, J.

Application for writ of error was granted on July 22, 1931, conditioned upon the filing by applicants of a bond in the sum of $200 to pay the costs of the Supreme Court, the Court of Civil Appeals, and the district court, payable to the adverse parties in accordance with law.

Such a bond has never been filed, and we therefore recommend that writ of error herein be dismissed.

CURETON, C. J.

Writ of error is dismissed, as recommended by the commission.


text:
    GORMAN et al. v. GAUSE et al.
    No. 1386-5988.
    Commission of Appeals of Texas, Section B.
    Feb. 1, 1933.

      C. C. Gillespie, of Memphis, Tenn., Neal A. ’ Brown, of Edinburg, and Seabury, George & Taylor, of Brownsville, for plaintiffs in error.
    R. M. Bounds, of McAllen, and Graham, Graham & Graham, of Brownsville, for defendants in error.
   LEDDY, J.

On April 29, 1918, John P. Gause and 'Mamie Cato, in contemplation of their marriage, entered into a purported prenuptial agreement. Portions of the agreement pertinent to this controversy are as follows:

“They, Jno. P. Gause and Mamie Cato, if said marriage so intended shall be had and solemnized, do waive and declare void all the community laws of the State of Texas, so far as the property they now own or may hereafter become possessed of is concerned. They also contract and agree with each other that each may sell and dispose of the property now owned by them, or may hereafter acquire, as their separate estate free from the claims or any rights, demands or interest that the laws of Texas, may have given the other in such property, if this agreement and said contract had not been entered into and this agreement executed in lieu of and in the room of the provision of said laws, and hereby declair that no property so acquired will be community property, but belong to the party so acquiring same, separate from the other, except as herein agreed and provided. * * *
“In the event of the death of the said Jno. P. Gause, and should the said Mamie Cato survive him, it is agreed that an account of what property or estate they both have be taken in account, and divided into three equal parts, one-third to be given to his said daughter, Margaret, or her heirs, one-third to his said daughter, Minnie Elma, or her heirs, and one-third to the said Mamie Cato; but in the event she should depart this life, that part of the estate of Jno. P. Gause, that went to make up her one-third in said division, shall be returned to his said children or their heirs in equal moeties.
“In the event of the death of Mamie Cato, and she be survived by Jno. P. Gause, all of her property, both real and personal, shall be used and controlled and had for his benefit and use during his natural life, and after his death to revert to the heirs of Mamie Cato; and upon the death of Mamie Cato, if he should survive her, the said Jno. P. Gause agrees to probate her estate in the probate court where they may be at the time of her death, and return therein inventory of her estate, but in no event will he be required to execute a bond for such estate or such administrator, that being expressly waived by Mamie Cato.
“That upon the death of Jno. P. Gause, if Mamie Cato should survive him and become possessed of a part of his estate in the division as aforesaid, she shall invest such part of said estate in land or other staple property, taking the deed in her own name for life, remainder to Margaret and Minnie Elma Gause or their heirs.”

At the time of the marriage each party owned property of the value of approximately $8,000. During their marriage there was acquired by their joint efforts a community estate of the estimated value of $70,000.

With the exception of an apartment house situated in the city of Mercedes, all of the realty accumulated during the marriage was taken in the name of John P. Gause. The lot upon which the apartment house was constructed was acquired by Gause during the marriage. It was deeded by him to his wife through the medium of a trustee. A vendor’s lien was retained to secure the purchase price represented by a note for $2⅝699, which was executed by the wife, payable to the trustee, and by him indorsed to the husband. The sum paid for this property was its fair value of $2,500, plus $199 for drawing plans of an apartment house thereafter erected thereon.

On March 7, 1928, the said John P. Gause and his wife executed what purported to be their joint and mutual wills, in which it was recited that said parties had theretofore in a marriage contract agreed that all of the property each owned at that time and that which each might acquire during their marriage would be the separate property of the one so acquiring the same, and that it was the will of each that the survivor take all of the property, both real and personal, outstanding in their name, and no other. The will contained this further provision: “It is further our will and desire and we do here now bequeath to the legal heirs or legatees, if any, of the one departing this life before the other, all of our right, title and interest, in whatever kind and nature, in and to the property, of every kind and nature, that was seized and possessed of by the first deceased of us, as the case may be.”

The will contained the further provision that should Mamie O. Gause survive John P. Gause it was his desire that she use the homestead and household furniture during her life, with the remainder to his heirs.

On June 29, 1929, John P. Gause died, and ■on the 10th day of September, 1929, his will was duly admitted to probate on the application of Robert Ek Kirkpatrick; he being named in said will as independent executor thereof.

On July 22, 1929, during the pendency of the application to probate the will, Mamie 0. Gause filed in said proceeding notice of her intention not to claim anything under said will, and electing to take her property rights under the laws of this state.

Kirkpatrick, as independent executor, duly returned an inventory and appraisement of the estate of John P. Gause, which was approved on December 2, 1929. This inventory showed two pieces of property as separate property of John P. Gause valued at about $8,800. There were some 21 items of real estate listed as community property. The apartment house which was conveyed by Gause to his wife during their marriage was not listed in the inventory; but the note for $2,699 given by the wife to her husband as the purchase price of the lot was listed among the claims due the estate.

This suit was instituted by Mamie Gause Gorman and Minnie Elma Gause, the only heirs at law of John P. Gause, to establish their right to all of the property owned by John P. Gause at the time of his marriage, as well as all of the property accumulated during the marriage, with the exception of the apartment house and the homestead then occupied by Mamie O. Gause, which it was conceded she was entitled to use during her lifetime.

The trial court concluded that Mamie 0. Gause was not bound by the antenuptial contract, nor by the joint mutual will, or both contract and will construed together, and that she was not estopped from setting up her claim to a one-half interest in the com-mumty estate of John P. Gause, deceased. These conclusions resulted in a judgment awarding Mamie C. Gause a one-half interest in the community estate of John P. Gause, deceased, and one-half of said estate to his two daughters. In the judgment the note given John P. Gause by Mamie O. Gause as the purchase price for the apartment lot was canceled, and this property was treated as a part of the community estate. The judgment of the trial court was affirmed by the Court of Civil Appeals [36 S.W.(2d) 279].

The record exhibits a conflict as to whether the purported marriage agreement was executed before or after the marriage of John P. Gause and Mamie Cato. It seems that the parties entered into a written stipulation as to certain facts, with the agreement that this stipulation could be offered in evidence upon the trial. It contained a reservation that the parties might introduce evidence upon matters not specifically agreed upon. In this stipulation it was recited that the purported antenuptial agreement was executed on April 29, 1918, and that the marriage of the parties occurred on May 1, 1918. Upon the trial defendants in error were permitted, over the objection of plaintiffs in error, to offer testimony showing that said agreement was in fact executed on May 1, 1918, within a few hours after the marriage ceremony had taken place.

Under our view of the law applicable to the facts of this case it is immaterial whether this agreement was executed before or after the marriage. In either event, it was a void and unenforceable agreement. By it the parties sought to fix the status of property thereafter to be acquired during their marriage different from that prescribed by the Constitution and laws of this state. It has been repeatedly held by our courts that a husband and wife do not have the power, by mere agreement, made in advance, to change the status Of community property yet to be acquired to that of the wife’s separate property. Arnold v. Leonard, 114 Tex. 535, 273 S. W. 799, 802; Kellett v. Trice, 95 Tex. 160, 66 S. W. 51; Cox v. Miller, 54 Tex. 16; Green v. Ferguson, 62 Tex. 529; Brokaw v. Collett (Tex. Com. App.) 1 S.W.(2d) 1090; Armstrong v. Turbeville (Tex. Civ. App.) 216 S. W. 1101.

The same reasons which would deny the power of the husband and wife by contract to set at naught the laws of this state defining and fixing the status of property acquired during the marriage would operate to prevent their doing so by antenuptial contract, unless, as argued by plaintiffs in error, such a contract be authorized by the provisions of article 4610, R. S. 1925. This article reads as follows: “Parties intending to marry may enter into such stipulations* as they may desire, provided they be not contrary to good morals or to some rule of law; and in ■ no case shall they enter into an agreement, or make any renunciation, the object of which would be to alter the legal orders of descent, either with respect to themselves, in what concerns the inheritance of. their children or posterity, which either may have by any other person, or in respect to their common children ; nor- shall they make any agreement to ijnpair the legal rights of the husband over the persons of their common children. No matrimonial agreement shall be altered after the celebration of the marriage.”

•Under the very terms of this statute a contract of the nature of that under consideration is expressly px-ohibited. While certain agreements are authorized by this act to be made in contemplation of marriage, they are specifically limited to ones not “contrary to giod morals or to some rule of law.” Certainly the Constitution and statutes defining the status of property acquired during marriage constitutes a “rule of law.” The contract in question attempted to declare that property thereafter acquired by the parties under circumstances which the laws of this state would clothe with the status of community property should by virtue of the contract become the separate pi'operty of the one acquiring it.

In Arnold v. Leonai-d, supra, our Supreme Court declared that it was beyond the power of the Legislature to enlarge the separate property of the wife from that defined in the Constitution of this state. In discussing this question the court said: “Hence, when the Constitution says that as to property, not owned or claimed by the wife at marriage,it becomes her separate property when acquired in one of three specified modes, the Legislature is prohibited from saying that property acquired after marriage in some other mode may also -become the wife’s separate property.”

If the Legislatui’e is powerless to' enact a law enlarging the wife’s separate estate beyond its constitutional limits, it is clear that the provisions of the organic law cannot beset aside and such enlargement accomplished by the mere agreement of the parties made in' contemplation of marriage. Groesbeck v. Groesbeck, 78 Tex. 664, 14 S. W. 792.

It has been uniformly held by the decisions of our courts that a contract cannot impair the validity of any law (Hartford Fire Ins. Co. v. G. H. & S. A. R. Co. (Tex. Com. App.) 239 S. W. 919, American Refining Co. v. Gasoline Products Co. (Tex. Civ. App.) 294 S. W. 967), nor control or limit the provisions of a statute. Raywood Rice, Canal & Milling Co. v. Erp, 105 Tex. 161, 146 8. W. 155; Converse v. Miller, 33 Tex. 216; Shelton v. Marshall, 16 Tex. 344; Heirs of Hunt v. Heirs of Robinson, 1 Tex. 748; Texas Employers’ Ins. Ass’n v. Tabor (Tex. Com. App.) 283 S. W. 779; Hennessy v. Automobile Owners’ Ins. Ass’n (Tex. Com. App.) 282 S. W. 791, 46 A. L. R. 521; Paragon Oil Syndicate v. Rhoades Drilling Co., 115 Tex. 149, 277 S. W. 1036.

But it is argued that if we do not hold such an agreement entered into by the pai-ties in contemplation of marriage can be enforced, that provision of the statute (Rev. St. 1925, art. 4612) which authorizes the wife by marriage contract to “reserve to herself any property, or rights to property, whether such rights be in esse or expectancy” can be given no effect. We do not agree that this result follows such a declaration of the rule. We can conceive of many agreements, made in contemplation of marriage, dealing with rights of property in expectancy which would not contravene any provisions of the laws of this state. For instance, it might be agreed by such parties that the husband would convey to his wife one-half of all property thereafter acquired by him by gift, devise, or inheritance, or that a certain portion of the community estate, when acquired, would be-conveyed by him to the wife and made her separate property. . Such an agreement would not violate either the Constitution or statutes of this state defining separate and community property of the spouses. Under an agreement of this nature, the property when acquired would take the status given to it by law. It would then be subject to be disposed of in accordance with any prenuptial agreement of the parties. When property has been acquired and its status once fixed as separate or community property as defined by the laws of this state, the husband and wife are at liberty to make such disposition thereof as they please, or as they may have obligated themselves to do in an antenuptial agreement, provided only that the terms of such an agreement do not exceed the limitations specified in the statute authorizing the same.

Plaintiffs in error rely upon the decision of the Supreme Court of California in Snyder v. Webb, 3 Cal. S3, as being directly in point to sustain the validity of the marriage agreement involved in this case. It is trxxe that the court in that case upheld a contract very similar in ■ its provisions to the one under consideration. An examination' of that case, however, reveals that the marriage contract was properly sustained, because the statute of that state expressly authorized the execution of an antenuptial contract fixing the status of property different from that defined by law. The statute construed by that court defined the separate and community property of the husband and wife. The very act defining the same contained this clause: “In every marriage hereafter contracted in this State, the rights of husband and wife shall be governed by this act, unless there is a marriage contract containing stipulations contrary thereto.” Practice Act, § 14. It is thus seen that the California statute defining the status of property as community or separate applied only where the parties! had not by a marriage contract stipulated to the contrary. The parties were therefore free to stipulate as they might desire as to the status of property to be acquired during the marriage relation. Our statute confers no such privilege. On the other hand, it expressly prohibits an antenuptial contract’s containing any stipulation in reference to the property rights of the parties contrary to the laws of this state. '

The joint and mutual will of John P. Gause and wife cannot be given effect as the joint and mutual will of the parties while one of the parties survives, as it is subject to be revoked by the survivor. Wyche v. Clapp, 43 Tex. 543.

The will shows upon its face that it was made in pursuance of a void contract. It cannot, therefore, be given the effect of a contract or agreement to make mutual wills which might authorize a court of equity to establish a trust upon the estate of the defaulting party. Wyche v. Clapp, supra.

It is claimed that Mamie C. Gause, after her husband’s death, accepted benefits under their joint and mutual will, and was therefore estopped to deny the obligations of said will or to claim rights inconsistent therewith. This contention seems to be based upon the evidence showing that Mrs. Gause retained possession of the apartment house and collected rents thereon from June 11, 1929, the ■date of her husband’s death, to some time prior to the trial of thjs .case. It is shown that she filed notice in the probate court on July 22, 1929, that she did not claim under the will, and elected to take her property rights under the statutes • and laws of this state. Mrs. Gause made full accounting of the rents collected by her from the apartment house. All of such rents were shown without dispute to have been applied on thei expense of operating the apartment and to discharge the monthly payments on the loan against the property. In fact, the rents collected by her were insufficient by several hundred dollars to meet the payments on the loan and take care of the expenses of operating the apartment.

Mrs. Gause did not testify as a witness on the trial of this case. Kirkpatrick, the executor, testified that he did not inventory this property as belonging either to the com: munity or separate estate of John P. Gause. He said that he advised with a number of lawyers, but could not reach any satisfactory conclusion about listing this property. He does not claim that he made any demand of Mrs. Gause for the possession of the property, or that she refused to surrender possession thereof. For aught that appears from the record, Kirkpatrick of his own volition failed and refused to list the property in the inventory, or to take possession of it and collect the rents. Under such circumstances, it was necessary for some one to collect the rents and look after this property. The executor’s failure to do so was not shown to be through any fault on the part of Mrs. Gause. Under such circumstances, we do not think her action in collecting the rents and applying them to the expense of operating the apartment and to discharge the indebtedness against the same, which was held by the estate of John P. Gause, was sufficient as a matter of law to 'constitute an election upon her part to take under the will. This is especially true in the light of the fact that with the exception of about six weeks all of the rents were collected after she had filed written notice of her election not to take under the will, and that she would insist upon her community rights.

An election to taire under a will may be either express or implied. When not express, it is a question of intention which must be determined in the light of all the facts and circumstances surrounding the transaction. Mayo v. Tudor’s Heirs, 74 Tex. 474, 12. S. W. 117; Dunn v. Vinyard (Tex. Com. App.) 251 S. W. 1043; Owens v. Andrews, 17 N. M. 597, 131 P. 1004, 49 L. R. A. (N. S.) 1072, 1108 and note.

It affirmatively appears that no rights of third parties have intervened, and that no injury has resulted to any third party or to the heirs of John P. Gause because of the collection of these rents by Mrs. Gause. If the executor had taken possession of this property and collected the rents thereon, he would have been compelled to have made such disposition of the same as was made by Mrs. Gause; that is, to pay the expense of operating the property and to apply the balance to the payments due on the loan against the property.

Under the 'state of facts disclosed by this record, the question as to the intention of Mrs. Gause to accept under the will was one of fact to be determined by the trial court. That court found that she was not estopped by her conduct in the premises. There is ample evidence to sustain such finding, and the same is therefore binding upon this court.

Gertrude Overbey, through counsel for defendants in error, has filed a motion in this court suggesting the death of Mamie C. Gause; such death occurring subsequent to the filing of the application for writ of error in this court. It is also shown in such motion that the petitioner in cause No. 1297 in the probate’ court of Hidalgo county was appointed and has duly qualified as administra-trix of the estate of said Mamie C. Gause, deceased. The administratrix’s reguest to be substituted as defendant in error in tha place of Mamie 0. Gause is granted.

We conclude that the judgment of the Court of Civil Appeals affirming the judgment of the trial court should be affirmed, and we so recommend.

CURETON, C. J.

The judgments of the district court and of the Court of Civil Appeals are affirmed.


author: LEDDX, Judge. OURETON, Chief Justice.

text:
    NELSON v. DETROIT & SECURITY TRUST CO.
    No. 1399-6021.
    Commission of Appeals of Texas, Section B.
    Feb. 15, 1933.

      Cofer & Cofer, of Austin, for plaintiff m error.
    Templeton, Brooks, Napier & Brown, of San Antonio, for defendant in error.
   LEDDX, Judge.

Defendant in error brought this suit in the district court of Besar county against plaintiff -in error to recover upon a promissory note executed by the latter in the state! of Michigan; said note being payable to Henrietta Powers, a resident of that state.

Plaintiff in error, although duly cited, failed to answer, and judgment by default was rendered against him for the principal of the note, interest, and attorney’s fees.

Plaintiff in error sued out and duly perfected a writ of error to the Court of Civil Appeals for the Fourth District where the judgment of the trial court was affirmed, 38 S.AV.(2d) 360.

He now complains that the judgment by default rendered against him is void for the following reasons:

(1) Because the citation served upon him will not support a judgment by default, in that it describes defendant in error as “administrator with the will annexed of the estate of Henrietta Powers, deceased,” while the judgment by default was in favor of the Detroit & Security Trust Company “executor of the estate of Henrietta Powers, deceased.”

(2) Because there is a fatal variance between the original petition and the citation; it appearing from the petition that defendant in error is the executor of the estate of Henrietta Powers, deceased, while the citation shows it to be the administrator with the will annexed of said estate.

(3) Because it appears from the petition that the defendant in error was appointed administrator with the will annexed of the estate of Henrietta Powers, deceased, by the probate court of Bexar county, and said court was not authorized to make such appointment, as the allegations of the petition show that there is an executor duly acting and qualified in the state of Michigan of said will and estate.

(4) Because it was neither alleged in the petition nor proven upon the trial that defendant in error, Detroit & Security Trust Company, a foreign corporation, had complied with the statutes of the state of Texas relating to and permitting foreign corporations to act as executors in Texas; and, in the absence of such authority, it is not permitted to act as executor in Texas or to pursue or transact any business as executor in this state.

(5) Because it appears from' the petition that the “Security Trust Company” is the executor in the state of Miehigari of the estate of Henrietta Powers, deceased, and that the defendant in error, “Detroit & Security Trust Company,” is another corporation, successor to and of the Security Trust Company, and that the said Detroit & Security Trust Company is not the executor of said will and estate of Henrietta Powers, deceased, and hence could not be legally appointed in Texas as such.

Plaintiff in error did not appear in the trial court and challenge by proper plea the capacity in which defendant in error was acting in instituting and maintaining this suit. Under such circumstances, he is precluded from raising such question for the first time on appeal. Article 2010, subds. 2 and 3, R. S. 1925. Casey v. Ry. Co. (Tex. Civ. App.) 151 S. W. 856; Davis v. White (Tex. Civ. App.) 207 S. W. 679; Dolson v. DeGanahl, 70 Tex. 620, 8 S. W. 321; Kaack v. Stanton, 51 Tex. Civ. App. 495, 112 S. W. 702, 706; Young v. Meredith, 38 Tex. Civ. App. 59, 85 S. W. 32.

It is true that defendant in error’s petition designated itself as “Administrator, with the will annexed of the estate of Henrietta Powers, deceased.” However, said petition contained the additional allegation that defendant in error was “the duly qualified and acting executor in the State of Michigan of the estate of Henrietta Powers, deceased, made such under the terms of her last will and testament, and the order admitting the same to probate in the Probate Court of Wayne County Michigan, and holds ancillary letters and powers of administration over the estate in Texas under the probate of said will by the Probate Court of Bexar County, Texas, as prescribed by law; that as such it is the duly qualified and acting representative of the estate of Henrietta Powers, deceased, in the State of Texas.”

The citation was not void. The petition on file in this case alleged in general terms a full compliance with the laws of the state authorizing it to maintain a suit in our courts as the legal representative of the esi-tate of Henrietta Powers, deceased. The citation was sufficient to bring the defendant into court, and, as he failed to take exception to such citation at the proper time, he will not now be heard to complain. Crain v. Griffis, 14 Tex. 358.

Nor do we think there is any merit in the contention that the allegations of the petition are insufficient to support the judgment rendered in this ease, the mere fact that in one portion of the petition defendant in error designated itself as administrator with the will annexed of the estate of. Henrietta Powers, deceased, did not render void the judgment in its favor as executor of said estate. As heretofore shown, the petition upon which the judgment was based contained an allegation that the foreign will had been duly probated in the state of Texas as prescribed by the laws of this state. While this allegation was in general terms, it was sufficient to admit proof to show that defendant in error was duly qualified under the laws of this state to bring this suit as the legal representative of the estate of Henrietta Powers, deceased.

Upon the trial, defendant in error offered in evidence the ■ order of the probate court of Bexar county admitting to probate and record the last will of Henrietta Powers, deceased. The order contained this provision : ¡‘And it is further ordered, adjudged and decreed that ancillary letters of administration be granted upon said estate to the Security Trust Company applicant herein.” The. entry by the probate court of Bexar county of the judgment probating the will under- the statute created defendant in error the legal representative of the estate of Henrietta Powers, deceased. The fact that said order errpneously specified that letters of administration were granted instead of letters testamentary would not operate to prevent defendant in .error from exercising the powers granted by the statute to a foreign executor when a foreign will has been duly probated in accordance with the provisions of thé statutes of this state (Rev. St. 1925, art. 8301 et seq.). It is the admission of the will to probate which clothes the applicant with the power granted in the statute, and not merely the title by which he may be designated by the court.

The judgment by default is not void because it is in favor of the Detroit & Security Trust Company instead of the Security Trust Company. The order of the probate court shows that -the Security Trust Company, a foreign corporation, was created the legal representative of said estate 'by the probate court of Bexar county. The allegations of defendant in error’s petition show that the Detroit & Security Trust Company and the Security Trust Company is one and the same corporation; that it was formerly named and styled the Security Trust Company, but that its name had been changed to the Detroit & Security Trust Company. The mere change of name has no effect whatever upon the-identity Qf a corporation, or upon its property rights, or liabilities. 14 C. J. p. 321. The Detroit & Security Trust Company was in law the same corporation which was appointed as the legal representative- of the estate of Henrietta Powers, deceased.

When a corporation whose name has been changed brings a suit in its new name to enforce right-s accruing prior to such change, the only effect is to cast the burden upon it to allege and prove that there has been no variance in corporate identity. This requirement was fully met by -the averments in defendant in error’s petition.

Finally, it is insisted that defendant in error was not authorized to. bring this suit because it failed to allege and prove that it had complied with the statutes-of this state (Rev. St. 1925, art. 1529 et seq.) requiring a foreign corporation desiring to transact business in this state to obtain a permit. A permit 'to dc> business is only required when a foreign corporation desires to transact in this state the business authorized' by its charter. The cause of action involved in this suit did not arise or grow out of the transaction of any business in this state by defendant in -error. Under the rule of comity prevailing between states it was privileged, without obtaining a permit to do business, to use our courts to enforce an obligation made and to be performed in the state of its domicile. Cruncleton v. Chicago Portrait Co. (Tex. Civ. App.) 16 S.W.(2d) 851; Crisp v. Christian Moerlein Brewing Company (Tex. Civ. App.) 212 S. W. 531; Lee v. Galena-Signal Oil Co. (Tex. Civ. App.) 8 S.W.(2d) 1051; C. J. 14A; § 3983, and authorities there cited.

It has been rightly held that the bringing of an action by a foreign corporation to collect a debt contracted in another state does not constitute doing business within the meaning of the statutory provisions prohibiting such corporations ’ from -doing business without complying with the conditions prescribed by such statutes. Security Company v. Panhandle National Bank, 93 Tex. 575, 57 S. W. 22; Texas Land Co. v. Worsham, 76 Tex. 556, 13 S. W. 384; Cooper v. Ft. Smith, etc., R. R. Co., 23 Okl. 139, 99 P. 785; Creteau v. Foote, etc., Glass Co., 40 App. Div. 215, 57 N. Y. S. 1103.

We recommend that the judgment of the Court of CivU Appeals be affirmed.

OURETON, Chief Justice.

Judgment of the Court of CivU Appeals is affirmed. ■


author: .HARVEY, Presiding Judge. CURETON, 'Chief Justice.

text:
    BRUMMETT v. EVERTS.
    No. 1614-6022.
    Commission of Appeals of Texas, Section A.
    Feb. 15, 1933.
    W. D. Wilson, of Spur, for plaintiff in error.
    T. J. Sanders,' of Brady, for defendant in error.
   .HARVEY, Presiding Judge.

On July 11, 1929, W. W. Plournoy executed his promissory note to the plaintiff, in error, H. A. C. Brummett, for the principal sum of $100, together with 10 per cent, collection fees. The note fell due November 1, 1929, but before that time, Brummett transferred the note by unqualified indorsement; and subsequently Everts became the holder thereof in due course. After the note matured, Plournoy being insolvent, Everts brought suit in a justice court of Dickens county, against Brum-mett alone, to recover of him, as indorser, the amount due on the note. In the justice court, judgment was rendered in favor of Brummett. Everts prosecuted an appeal to the county court of said county, and that court rendered judgment in favor of Brum-mett. Everts then appealed to the Court of Civil Appeals, which court reversed the judgment of the trial court and remanded the cause.

It is not claimed that the note sued on was ever presented to the maker for payment, or that' any suit had ever been brought against, the maker. Nor was there any testimony- offered respecting these matters; nor respecting the matter of protest or notice of dishon-, or. In short, Everts relied solely on the fact of the insolvency of Plournoy, the maker, as dispensing .with presentment of the note to him for payment, and that presents the only question in the case. :

The note was a negotiable instrument. With reference to instruments of that character, the Negotiable Instruments Act provides that “presentment for payment is necessary * * * to charge the drawer and in-dorsers.” Subject to the various exceptions and qualifications specified in the -act, none of them being germane to this case, the presentment for payment is required to be made, on the day the instrument falls due, to the person primarily liable on the instrument. See R. S. art. 5937, § 70 et seq. There is no provision contained anywhere in the statute^ which purports to dispense with the necessity of presenting the instrument for payment in case the maker be insolvent. The contention is made, however, that articles 566 and 1987. have that effect. The first provides that “the holder of any * * * promissory note, assignable or negotiable by law, may secure and fix the liability of * * . * every endorser of such note, without protest or notice, by bringing suit” against the maker as there provided. The other article (1987) provides that an indorser may be sued without making the maker a party when the latter is "notoriously insolvent.” ;

It is to be noted that article 566 provides that the liability of the indorser may be fixed by suit against the maker, as there provided, “without protest or notice.” It does not say, however, that such liability may be fixed by means of suit, as there provided, without presentment of the instrument for payment. It is quite true that the same language as now contained in article 566 was contained, in a formerly existing statute (article 579, Revised Statutes of 1911), and the term “protest,” as used in the formerly existing statute, was construed to embrace, as a constituent element, the matter of demand or presentment for payment. Sydnor v. Gascoigne, 11 Tex. 449, and cases cited. But the same comprehensive meaning cannot be ascribed to the term, as used in the present statute, for the reason there are now coexisting statutes, contained in the Negotiable Instruments Act,' which specifically prescribe, as a distinct prerequisite to liability on the part of the indorser, the presentment of the instrument for payment. The term “protest” in article 566 must, therefore, be construed in connection with these coexisting statutes, and its meaning limited accordingly. That the Legislature did not intend tile term “protest” to comprehend the act of presentment fo« payment is further evidenced by the provisions of section 118 of article 5938, contained in the Negotiable Instruments Act;, which read: “Where any negotiable instrument has been dishonored it may be protested for non-acceptance or nonpayment, as the case may be; but protest is not required except in the case of foreign bills of exchange.” It is also provided in section 111 of the same article, that “a waiver of protest, whether in the case of foreign bill of exchange or other negotiable instrument is deemed to be a waiver not only of formal protest, but also of presentment and notice of dishonor.” Here, again, is legislative indication that, unless qualified by the context, the term “protest,” occurring in other statutory provisions relating to negotiable instruments, means simply the formal act of protest, and does not include presentment for payment as provided in the Negotiable Instruments Act.

It follows, from.what has been said, that Everts was not entitled to a recovery against Brummett, as indorser, in the absence of a showing that the note had been presented to Flournoy, the maker, for payment, as prescribed in the Negotiable Instruments Act, or that a state of facts existed which falls within- some exception prescribed in said act.

We recommend that the judgment of the Court of Civil Appeals, reversing the judgment of the trial court, be reversed and that the ‘judgment of the trial court be affirmed.

CURETON, 'Chief Justice.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed, as recommended by the Commission of Appeals..