author: ORITZ, Judge. CÜRETON, Chief Justice.

text:
    BRAMMER v. WILDER.
    No. 1621—6043.
    Commission of Appeals of Texas, Section A.
    Feb. 15, 1933.
    Campbell, Myer & Foster, of Houston, for appellant.
    Robert G. Harris, of San Antonio, and Sam Streetman, of Houston, for appellee.
   ORITZ, Judge.

Certified Questions.

This case is before us on certified questions from the Court of Civil Appeals at Galveston. The certificate fully states the case. It is as follows:

“We deem it advisable to certify for your decision the hereinafter stated questions which arise upon the following statement of facts disclosed by the record in this case, which is now pending in this court on motion for rehearing:
“The suit is brought by appellant as Independent Executrix and sole devisee of the estate 'of J. L. Brammer, deceased, against the appellee, H. S. Wilder, surviving partner ©f the firm of Brammer & Wilder, to determine the ownership and right of possession of the proceeds of a policy of life insurance on the life of J. L. Brammer issued by the Aetna Life Insurance Company on July 4, 1926, in which the firm of Brammer & Wilder is the named beneficiary.
“The pleadings and evidence sustain the following conclusions of fact upon which the controversy arises:
“The co-partnership firm of Brammer & Wilder was created in May, 1924, to carry on the business of the construction of roads, bridges, paving1, sewers, waterworks, and such other kinds of general construction: work as the partnership might desire to) undertake. Each of the partners contributed one-half of the capital of the firm, and by the terms of the partnership agreement had an equal share in the profits of the business, and were equally liable for its losses. The) partnership agreement contains the following provisions:
“ ‘It is mutually agreed between the parties hereto that this partnership contract may be terminated at any time at the will of either party hereto, by giving thirty (30) days written notice to the other party of his intention to terminate the partnership, or the partnership will be terminated by the death of either of the parties hereto.’
■ “The business of the firm seems to have been successfully and profitably conducted, though there has been no final settlement of its business affairs.
“In 1926 a controversy arose between the firm and Limestone County in which that county asserted a claim for damages against the' firm in a large sum for failure to comply with a roadbuilding contract between it and the county. With this claim pending, each of the members of the firm, on July 4, 1926, had his life insured in favor of the firm for ' 825,000.00. Each of these life insurance policies contains the following provisions:
“ ‘During the lifetime of the insured the right to receive all cash values, loans, and other benefits accruing hereunder, to exercise all options and privileges described herein and to agree with the company to any changes in or amendment to this policy shall vest alone in the insured (herein called the life owner), subject, however, to any assignment by said life owner. * * *
“ ‘The beneficiary may be changed as often as desired, and such change shall take effect on receipt at the Home Office of the Company, before the sum insured or any installment thereof becomes due, of a written request accompanied by the policy for endorsement. If any beneficiary dies before the insured, the interest of such beneficiary shall vest in the life owner alone unless otherwise provided herein.’
“No change was made in the beneficiary named in either of these policies after the organization of the corporation.
“The premiums on each of these policies were paid by, or out of the revenues of, the firm.
“The agent of the insurance company who procured the application for the issuance of the policies testified:
“ T had a conversation during the year 1926 with Mr. Wilder and Mr. Brammer with respect to life insurance. It was in the summer of 1926, in the Gunter Hotel, and the next day in my office in the Travis Building at San Antonio. I told them about the insurance policy I had and they said there was need for such protection, and they mentioned a law suit they had in Limestone County. That was mentioned by both of them, * * *' and they said in the event they had a large road contract, they could borrow a good deal of money on it.
“ ‘As a result of the conversation, they purchased $25,000.00 life insurance each, payable to the firm of Brammer and Wilder, partnership; composed of J. L. Brammer and H. S. Wilder. * * *
“ ‘They discussed the real worth to the partnership of the two men who composed the partnership, they discussed the real worth of! the policy. They referred to their financial ability and to their credit ability.’
“Suit on this claim was instituted against the firm in 1026, and a judgment obtained thereon after the death of X L. Brammer for the sum of $105,719.40, which judgment was pending on appeal to the Supreme Court at the time of the trial of this case in the court below.
“In this situation, on October 7, 1927, thel members of the firm signed and published, as required by the statute, the following notice of dissolution:
“ ‘Notice is hereby given that the partnership firm of Brammer and Wilder, composed of J. L. Brammer and H. S. Wilder of Houston, Harris County, Texas, is to be dissolved thirty (30) days from the date hereof, and the business is to be continued at the same place under the firm name of Brammer & Wilder, Incorporated.
“ ‘Of this all persons dealing with said firm will take due notice.’
“In pursuance of this notice a charter was applied for, issued, and filed on November 19, 1927, by which the corporation of' Bram-mer & .Wilder, Inc., was created, the purpose of the corporation as expressed in the Charter being ‘bo contract for the erection, construction or repair of any building, structure, or improvement, public or private, and erect, construct or repair same, or any part thereof, and to acquire, own, and prepare for use any materials for said purpose.’ Upon the creation of the corporation the partnership transferred to it $100,000.00 worth of the assets of the firm, including all of the cash in banks, and the machinery and tools used by the firm in carrying on its business, but did not transfer all of the firm assets, the value of those retained being $68,000.00. The debts of the partnership at that time, excluding the Limestone County claim, were shown to be $34,000.00. None of these debts were assumed by the corporation. At the time the corporation • was created on November 17, 1927, and up to the time of the death of J. L. Brammer on February 5, 1928, there existed debts owing to and by the firm and unfinished and incompleted contracts of the partnership. .In the interim there was no change in the two insurance policies taken out by the members of the firm on July 4, 1926.
“The appellant is the sole beneficiary and independent executrix named in the will of J. L. Brammer. This will has been duly probated and' appellant has qualified as executrix of the estate.
“By agreement of the parties the $25,000.00 insurance, on the life of Brammer was paid by the insurance company and turned over to George Hamman and invested by him in United States Treasury Certificates, which he holds in trust for 'the parties as their interest therein may be finally determined.
“The jury in the court below found upon sufficient evidence: That Brammer and Wilder intended when they formed the Brammer and Wilder Corporation and transferred to it the $100,000.00 worth of assets of the partnership to thereby dissolve and terminate the partnership; that debts were owing to and by the partnership ‘on and after November 19, 1927’; that debts were owing to and by the partnership ‘on and before February 5, 1928’; that there were unfinished contracts for the performance of work by the partnership on and after November 39, 1927, and ‘on and before February 5, 1928’; that ‘on and before February 5, 1928,’ thei'e was a contract between the partnership of Bram-mer & Wilder and W. L. Pearson & Company, Inc., by which the partnership undertook to perform road work for Pearson & Company under its contract with Hidalgo Ccmnty; that on and after November 19, 1927, Bram-mer & Wilder, as a partnership, was engaged in the business of locating and acquiring sand and gravel deposits for development and sale; that on and befoi’e February 5, 1928, Brammer & Wilder, as a partnership, negotiated for the sale of sand as ballast to a railroad.
“Upon the verdict and the facts before set out the trial court rendered a judgment which recites the findings of the jury, before set out, and adjudges as follows:
“ ‘It is therefore on this the 24th day of March A. D. 1930, considered and so ordered, adjudged and decree by the court, that the defendant H. S. Wilder do have and recover in his capacity as surviving partner of the partnership of Brammer & Wilder, consisting of the said H. S. Wilder and J. L. Bram-mer, now deceased, Houston, Texas, of and from the plaintiff, Mary Louise Brammer, in her capacity as Independent Executrix of the Estate of Jess Lee' Brammer, deceased, the proceeds of the policy of life insurance sued upon herein upon the life of the said J. L. Brammer, deceased, in the sum of Twenty-Eive Thousand Dollars ($25,000.00) as assets belonging to and owned by the said partnership of Brammer & Wilder, Houston, Texas.
“ ‘And it appearing to the court that the said proceeds of said life insurance policy were collected by the said defendant as surviving partner and as assets of the said partnership, but that thereafter the said plaintiff and defendant entered into a written agreement whereby the said proceeds were invested in United States interest bearing Treasury Certificates and that the said Treasury Certificates were placed in the hands of one George Hamman as trustee to hold the same to abide the result of this suit to test the ownership of the proceeds of said policy; the court is of the opinion that there should be a partition and distribution of the said United States Certificates in the proportion of one-half (1/2) to the said plaintiff and one-half (1/2) to the said defendant.
“ ‘It is accordingly, therefore, ordered, adjudged and decreed by the court that the said plaintiff as a part of the assets of the partnership of Brammer & Wilder, Houston, Texas, be and she is hereby awarded the right to demand and receive from the said George Hamman as trustee one-half of the! said certificates, together with the accumulated interest thereon to the date of the receipt thereof; and it is likewise ordered, adjudged and decreed by the court that the said defendant, H. S. Wilder, as a part of the assets of the partnership of Brammer & Wilder, Houston, Texas, be and he is hereby awarded .the right to demand and receive from the said George Hamman as trustee one-half of the said certificates, together with the accumulated interest thereon to the date of the receipt thereof.
“ ‘It is further ordered, adjudged and decreed by the court that should this judgment be appealed from that the said George Hamman as trustee hold the said certificates to abide the final determination of this cause.
“ ‘It is further ordered by the court that the defendant do have and recover against the. plaintiff all costs in this suit incurred, for which let execution issue against the said plaintiff. As against defendant Wilder in his individual capacity, it is ordered that plaintiff take nothing, it appearing that defendant as an individual asserted no claim to the monies involved in this suit.’
“Appellant, by her pleadings in the court below and her brief in this court, claims all of .the proceeds of this insurance policy on the theory that the beneficiary named in the policy having ceased to exist prior to the death of the insured, the policy became an asset of the estate of the deceased, and the appellant as executrix of the estate is entitled to possession of all of its proceeds, as assets of the estate.
“The appellee’s contention is that the partnership did not cease to exist until the death of Brammer on February 5, 1928, and that the insurance policy being payable to the partnership, all of its proceeds is a partnership asset which the surviving partner is entitled to have and hold.
“Upon this state of the record we respectfully certify for your decision the following questions:
“First. Did this court err in not holding that the expressed intention of the parties to dissolve the partnership and to organize a corporation to carry on its business, the organization of such corporation and the transfer to it of the greater portion of the assets of the firm, had the effect of dissolving the partnership existing at the time the insurance policies were issued so as to make the policies theretofore payable to the partnership payable to the insured’s estate, as provided in the policies in event of the death of the beneficiary therein named prior to the death of the insured?
“Second. Do the facts stated raise the issue as to whether the only purpose and intention of each of the partners in insuring his life for the benefit of the partnership was to protect each other against partnership debts, and to use the policies as security for loans to the partnership?
“Third. Upon the facts stated, is the interest of the appellee in the proceeds of the policy in suit limited to the right to have such proceeds applied as far as may be necessary to the payment of Brammer’s one-half of the debts of the partnership?
“The opinion of this court which accompanies this certificate is asked to be considered as a part hereof.”

. Opinion.

We think that the facts stated in the certificate show as a matter of law that the partnership of Brammer & Wilder had not been dissolved up to the time of the death, of J. L. Brammer. It is true that the two partner’s, J. L. Brammer and H. S. Wilder, stated in the notice of intention to incorporate, of date October 7, 1927, that they intended to dissolve such partnership thirty days from the date of such notice, and thereafter continue the partnership business as a corporation, but the undisputed facts, as shown by the certificate and the record, demonstrate that the intention stated in the notice was never fully carried out.

In connection with the above, the facts set out in the certificate show that the corporation of Brammer & Wilder, Incorporated, was in fa«t duly chartered, and a large part of the assets of the partnership transferred thereto. The certificate and the facts further show that the corporation, after its formation, took over and operated a large part of the business enterprises that had theretofore been operated by the partnership. On the other hand the facts stated in the certificate, which are fully supported by the record, and the findings of the jury, show that very valuable partnership assets were never transferred to the corporation, but remained the property of the partnership as such. The certificate and verdict, fully supported toy the record, further show that these assets remained the partnership property until Bram-mer’s death. Finally the certificate, fully supported by the record, shows as a matter of law that all during the time between the formation of the corporation and the death of ' Brammer, the partnership continued to conduct extensive business enterprises, and continued to use the joint properties of the two partners in so doing. We think these facts show as a matter of law that the partnership of Brammer & Wilder was never in fact dissolved, but wás an actual, active, legal, and living partnership up to the very moment of Brammer’s death.

The above holding is in accord with the holding of the Court of Civil Appeals in the opinion of that court which accompanies the record. We quote and adopt the following portion of that opinion:

“We cannot agree with appellant in these contentions. The finding of the jury that Brammer and Wilder, when they formed the corporation and transferred to it $100,000.00 of the assets of the partnership, intended thereby to dissolve and terminate the partnership is immaterial in view of the further findings showing that the partnership affairs were not wound up by the creation of the corporation and the transfer to it of the larger portion of the assets of the firm, and that the partnership continued to transact business as such and that at the time of Bram-mer’s death business and affairs of the partnership were incomplete and unsettled.
“Whatever may have been the intention of the parties in the organization of the Brammer & Wilder- corporation and the transfer of the larger portion of the assets of the firm to the corporation, in regard to the dissolution and termination of the business of the firm, the findings of the jury, which are amply supported by the evidence, conclusively show .that the firm did not cease to exist or die upon the organization of the corporation, and the provision in the insurance policy under which appellant claims its entire proceeds as beneficiary under the policy did not become effective.
“The intention to dissolve the partnership could not ipso facto effectuate its dissolution {Scott v. Kress [Tex. Civ. App.] 191 S. W. 714), and the evidence not only fails to show that the parties carried out their expressed intention, but affirmatively shows they continued to carry on their partnership business after the formation of the corporation.”

The second and third questions involve the construction of article 5048, R. C. S. of Texas 1925, and its proper application to the facts of the case at bar. The article is as follows: “Any corporation, partnership, joint stock association or any trust estate doing business for profit, may be named beneficiary in any policy of insurance issued by a legal reserve life insurance company on the life of any officer or stockholder of said corporation, joint stock association or trust estate; or any partnership or member thereof may be the beneficiary in any policy of insurance issued by a legal reserve life insurance company upon the life of any member of said partnership; or any religious, educational, eleemosynary, charitable or benevolent institution or undertaking may be named beneficiary in any policy of life insurance issued by any legal reserve life insurance company upon the life of any individual. The beneficiaries aforenamed shall have an insurable interest for the full face of the policy and shall be entitled to collect same. On all •policies of life insurance heretofore issued by legal reserve companies in which any of the aforenamed shall have been designated beneficiaries in the policies, said beneficiaries shall have an insurable interest to the full extent of the face of the policy and be entitled to collect same.”

As we understand the opinion of the Court of Civil Appeals it holds that the facts of this ease bring it under the rule of public policy announced by our Supreme Court in Cheeves v. Anders, 87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107. In that case the Supreme Court announced that, under the rule of public policy then in force in this state, a partnership had no insurable interest in the lives of its individual members except to the extent of their liabilities to the firm.

When we come to examine article 5048, supra, which became a law long after the i*endition of the opinion in Cheeves v. An-ders, it is evident from its clear and unambiguous language that it has changed the rule of public policy announced in the Cheeves Case, and put in force in this state an entirely different rule. It is well settled that the Legislature has the power, by legislative enactment, to .declare the public policy of tliis state. Am. Nat. Ins. Co. v. Coates, 112 Tex. 267, 246 S. W. 356 (Tex. Com. App. opinion approved).

An examination of article 5048 discloses that by its very terms it expressly authorizes any partnership or member thereof to be the beneficiary in any policy of life insurance issued by a legal reserve life insur-anee company upon the life of any member of such partnership, and that such beneficiaries “shall have an insurable interest for the full face of the policy and shall be entitled to collect same.” (Italics ours.) Language! could not more plainly express the legislative intent to, by statute, change the rule in Oheeves v. Anders and make the policy 'issued under the statute payable in full to the beneficiaries authorized therein without limitation as to debts. When we examine the provisions of this act as applied to other concerns than partnerships, the construction we have given the same becomes absolutely certain.

The terms of article 5048, supra, are so plain and unambiguous that it is needless for us to theorize on the reasons which probably moved the Legislature to enact it into law; it is sufficient to here state that the doctrine is generally predicated on the theory that, when one member of the partnership dies, the concern loses his skill and ability, as well as his peculiar knowledge of the particular business. It has also lost his constant efforts in upbuilding the business. Ruth v. Flynn, 26 Colo. App. 171, 142 P. 194.

When we construe the policy here involved in the light of the facts of this case, as diS; closed by the certificate, and the record, wé are unable to find any fact or circumstance which would remove it from the terms of the rule of public policy as announced by article 5048, supra.

We recommend that all three questions certified be answered “No.”

CÜRETON, Chief Justice.

Opinion of the Commission of Appeals answering certified questions adopted and ordered certified.


source: Caselaw Access Project

author: LATTIMORE, Judge.

license: Public Domain

text:
    Ex parte PEASE.
    No. 15449.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Griffin & Kimbrough, of McAllen, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

A grand jury of Hidalgo county, Tex., returned three indictments against Mr. Couch and one against Mr. Freeland, on April 30, 1932. A few days later Pease, applicant herein, published in his newspaper two articles and an editorial, all of which are set out in the record before us. Thereafter an affidavit was filed in the ninety-second district court of Hidalgo county, an investigation ordered, a committee appointed, and an order and judgment entered holding Pease in contempt of court by virtue of said publications, and punishment fixed at confinement in the county jail for three days and payment of a $100 fine. By application for a writ of habeas corpus Pease seeks release from confinement under said order.

The newspaper articles in question are long, and insertion thereof in this opinion and their publication in the law books hereafter, would be expensive, .even if interesting. We ¿ave read and considered all of them. One, entitled “Bounds Grand Jury Returns Indictments,” as we view it, merely states facts without much comment, none of which appears to be in disrespectful language, relative to said cases, save that in the concluding paragraph of said article is the statement as follows: “The general view over Hidalgo County is that these indictments were for political purposes, only.” It was in proof that it is usual and customary to refer to a grand jury, as the grand jury of the judge in whose court same is or has been functioning. To hold that placing said entitlement upon the article above mentioned was 'intended as some kind of statement that the judge had controlled or influenced the grand jury in the return of the indictments mentioned, would seem about as far fetched as any conclusion could possibly be. We entirely fail to see any reflection upon the judge of the court in the concluding paragraph of the article which is above quoted, and which had reference to the action of a grand jury that had adjourned.

Another of said articles entitled “This is pretty bad record — Maybe you can beat it,” sets out in extenso acts and things in the record of Mr. Ereeland, in language some what parabolic wherein while seeming to refer to the matters mentioned as the wrongdoings of Mr. Freeland, it is evident that the article was intended as praising and extolling Freeland. This article concludes as follows: “The-most serious crime that can be committed in Hidalgo County is to antagonize the democratic ring. ■ Every guilty man of that offense is a marked man and sooner or íáter he will be called to account if the democrats have the power.” It is difficult for us to see how any one could find aught in this article which by any sort of innuendo or interpretation could be construed as reflecting upon the judge of the court.

The editorial referred to was headed “Grand Juries” and consisted entirely in abstract statements of the views of the editor as to the high duties and motives which should actuate and move grand juries, jury commissioners and judges in the discharge of their duties; and a statement of the corresponding dangers, evils, and hurtful consequences when such officials are not moved by such disinterested and pure motives. No reference is made to any particular grand jury, jury commissTonér, or‘Judge by “ñamé^. location, act, or deed, and we confess ourselves unable to see anything therein which might not be appropriately read to his grand jury by any judge of any court upon their impanelment.

' ’ [4, 5] Without discussing the procedure in this case to any great extent, we observe that if the first affidavit by the foreman of the grand jury and two other members of said body, which was presented to the trial judge on the same day the newspaper articles weré published, and on which said judge ordered the contempt case against applicant to be docketed and number to be given to it, is to be taken as the affidavit on which this contempt proceeding rests, same was wholly insufficient for said purpose under authority of Ex parte Landry, 65 Tex. Cr. R. 444, 144 S. W. 962, because of the fact that said affidavit was made on information and belief, and set out none of the acts or publications of applicant'. We also observe that the order and judgment of the trial court entered on May 10th finding and adjudging applicant guilty of contempt for said publications, same being at most but constructive contempt, and applicant not being present, and no notice ever having been served upon him to appear, would be entirely void and without authority as such judgment; also that, if the judgment then so entered was made the basis for the judgment later entered on May 16th, in which reference is made to said judgment of May 10th, same would also be without authority of law.

We note that upon the hearing before the lower court on May 16th applicant, responding to his plea that he only published what was the truth, without intent to reflect upon either the judge of the ninety-second district court or his grand jury, offered to prove the truth of what he had published, evidently in so far as same related to any matter of fact stated in said publications, and that the court declined to allow such proof. It wa? formerly the rule that one sought to be held for contempt might make a sworn statement disavowing evil intent or contemptuous purpose, and thus place himself in such position as that this freed him entirely of the' imputation of contempt and entitled him to his discharge. Vol. 6, R. C. L., pp. 534, 535, and cases cited.

It is still the, rule in this state that one charged with contempt shall be allowed to ipove' the trufchjpf his..alieged_contemptuous utterance. Ex parte O’Fiel, 93 Tex. Or. R. 216, 246 S. W. 664. We think proof of the truth of the matters so published would have entitled applicant to his discharge upon the hearing before the court. We note the court refused to permit him to make such proof to which he took his proper bill of exception.

We enter into no extended discussion of the action of the court in striking out applicant’s motion to have the court recuse himself. The courts of this state seem to have committed themselves to the proposition that expressed prejudgment of a case will, not disqualify the judge in view of the restricted language of our statutes on disqualification, but in cases where the gist of the whole deT termination' is whether some matter be a contempt of the court, and offer is made in proper form to show that there has been expressed prejudgment of such matter by the very judge involved, it occurs to us that the vastly better practice would be from the very nature of the ease, to call on some judge whose honor or integrity has not been attached, or whose rulings have not been contemptuously treated, and submit the matter to his calm judgment, especially in cases of constructive contempt.

Inclining to the view that the matters of publication were not contemptuous, and having serious doubt of the validity of the proceedings herein, and being convinced that applicant should have been allowed to prove the truth of the matters and things so published by him, the prayer of applicant will be granted, the judgment of contempt will be set aside, and applicant will be discharged.


author: LATTIMORE, Judge. MORROW, Presiding Judge.

text:
    TURMAN v. STATE.
    No. 15366.
    Court of Criminal Appeals of Texas.
    Jan. 4, 1933.
    Rehearing Withdrawn March 8, 1933.
    T. B. Ridgell, of Breekenridge, and John Erhard, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

Our attention is called by the state’s attorney with this court to the fact that no notice of appeal appears to' have been given, or entered of record as required by the terms of article 827, C. C. P. We have carefully examined the transcript and find no notice of appeal.

Under all the authorities this court is without jurisdiction in such case, and the appeal will be dismissed.

MORROW, Presiding Judge.

Since the affirmance of the case and the filing of the motion for rehearing, the appellant has filed his written request, duly verified, asking that said motion be withdrawn.

- The request is granted, the motion for rehearing is withdrawn, and mandate will issue immediately.


author: CALHOUN, Judge.

text:
    SHEFFIELD v. STATE.
    No. 15733.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Walter F. Sehenck and Chas. C. Triplett, both of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus- • tin, for the State.
   CALHOUN, Judge.

Appellant was convicted of the offense of negligent homicide of the second degree; punishment assessed at a fine of $1,509.

The state’s attorney before this court has moved to dismiss this appeal because there appears in the record no final judgment. An examination of the record discloses that the motion must be sustained. There appears nothing in the record showing that a final judgment was ever entered upon the verdict of the jury. It is required by our Code of Criminal Procedure (see Code Cr. Proc. 1925, art. 76f>) that no appeal can he considered until the final judgment has been rendered in the court below. For the want of final judgment, this appeal must be dismissed.

We also call attention to a further defect. There is no notice of appeal shown in the minutes of the court. Attached to appellant’s motion for new trial appears the notice of appeal over the signature of the presiding judge; also docket entry shows that the motion for new trial was overruled and notice of appeal given. This docket entry, however, was never entered of record in the minutes of the trial court. To confer jurisdiction upon the appellate court, the record must show that notice of appeal was given in the prescribed manner and entered of record in the minutes of the trial court. A mere showing of a docket entry of notice of appeal will not suffice. Sections 122 and 123, Tex. Juris., vol. 4; Owsley v. State, 112 Tex. Cr. R. 641,18 S.W.(2d) 178; Ward v. State (Tex. Cr. App.) 16 S.W.(2d) 541. See, also, Brannan v. State, 76 Tex. Cr. R. 492, 175 S. W. 697; Bell v. State, 111 Tex. Cr. R. 456, 15 S.W.(2d) 9; Sauzeda v. State, 86 Tex. Cr. R. 461, 216 S. W. 1098.

The appeal will be dismissed.

Dismissed.

■ PER CURIAM.

The foregoing opinion of the Commission of Appeals has been^ examined by the judges of the Court of Criminal Appeals and ap-nroved by the court.


author: MORROW, Presiding Judge.

text:
    Ex parte FERNANDEZ.
    No. 15891.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Charles J. Stein, of Corpus Christi, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

By way of habeas corpus the appellant sought release from jail and appeals from an order denying such relief. He was convicted in the justice court, precinct No. 1, Nueces county, of a misdemeanor and his penalty assessed at a fine of $50 and costs amounting to $16.

On February 4th, after remaining in jail continuously for twenty-four days, the appellant applied to the district court of Nueces county for a writ of habeas corpus and for his release, reliance being had upon article 920, C. C. P. 1925, which reads as follows:

“A defendant placed in jail on account of failure to pay the fine and costs can be dis-' charged on habeas corpus by showing:
“1. That he is too poor to pay the fine and costs, and
“2. That he has remained in jail a sufficient length of time to satisfy the fine and costs, at the rate of three dollars for each day.
“But the defendant shall, in no case under this article, be discharged until he has been imprisoned at least ten days; and a justice of the peace may discharge the defendant upon his showing the same cause, by application to such justice; and when such application is granted, the justi.ce shall note the same on his docket.”

The statutory provisions with reference to the circumstances under which one convicted of a misdemeanor may be discharged are confusing to some degree. In article 793, O. C. P., 1925, it is provided that, when one was convicted of a misdemeanor and his penalty assessed at a fine which he was unable to pay, he could satisfy his fine by remaining in imprisonment until his debt was satisfied, with credit at the rate of $3 per day.. This statute 'was amended by the Acts of the 40th Legislature, First Called Session, chapter 68, § 1 (Vernon’s Ann. C. O. P. art. 793), in which it was declared that where a convicted person was unable to pay his fine he would secure his discharge by serving the time in jail at the rate of $1 per day. In several cases it has been held that under the amendment mentioned one would be required to serve time in jail at the rate of $1 per day until the balance of his sentence was covered. See Ex parte Hill, 111 Tex. Cr. R. 426, 15 S.W.(2d) 14; Ex parte Polly, 111 Tex. Cr. R. 431, 15 S.W.(2d) 16. Thet matter was discussed at some length in the case of Ex parte Rowley, 112 Tex. Cr. R. 163, 15 S.W. (2d) 1118. In the case of Ex parte Polly, supra, the conviction was in the El Paso county court at law. In Ex parte Hill, the conviction was in the district court of Falls county. In Ex parte Kowley, the conviction was in the county court at law of Wichita county.

The relator in the present appeal, as stated above, was convicted in the justice court of Nueces county.

The chapter in which article 920, supra, appears is one having reference to a judgment of conviction in a criminal action before a justice of the peace. From what has been said it is apparent- that the statutory enactments make a distinction on the subject in hand with reference to the conviction of a misdemeanor before the justice of the peace and the conviction of a misdemeanor in courts of higher jurisdiction. The reason for the distinction may he only a matter of conjecture. Since the statutory direction was definite in its terms, the duty of the court to apply it as written is mandatory. However, it may be said that the justice courts are limited by the Constitution (article 5, § 19) in criminal matters to a fine not exceeding $200, while under article 5, § 16, other courts are given jurisdiction in misdemeanors of much higher grade and with pen'alties far more severe.

From the foregoing, it is plain that the relator having been convicted in the justice court, being too poor to pay his fine, and having remained in jail more than ten days and for a time sufficient to discharge his fine, it is thought that the relator’s application for a writ of habeas corpus should have been granted.

The case of E!x parte Chapman, 82 Tex. Cr. R. 119, 198 S. W. 575, seems clearly in point as supporting the relator’s contention that he’was entitled to his release.

The judgment denying the release is reversed and the relator ordered discharged.


author: HAWKINS, Judge.

text:
    BOYD v. STATE.
    No. 15620.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    A. B. Geppert, of Teague, P. O. French, of Fairfield, and Ellen Victery, of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Appellant was charged with an aggravated assault upon W. A. Bell; the circumstance of aggravation alleged being that appellant was a person of robust health and strength and that Bell was aged and decrepit. Subdivision 4, art. 1147, P. C. 1925. Appellant was convicted, and his punishment assessed at a fine of $50 and sixty days in jail.

In Hallman v. State, 113 Tex. Cr. R. 100, 18 S.W.(2d) 652, it was held that the word “aged,” as used in the statute, in the absence of some definition thereof, was too indefinite. The only evidence in the record which might refer to the averment that the injured party was “decrepit” is found in the testimony of Bell, in which he says, “My physical condition is bad and I am not able to perform hard manual labor.” The statement just quoted was made in connection with describing an injury to his eye claimed to have been sustained by Bell at the hands of appellant. The description of his general health may have related to such condition at the time of the trial, and not when the assault was committed. See Knight v. State, 119 Tex. Cr. R. 23, 46 S.W.(2d) 1006.

Bill of exception No. 1 complains that an attorney representing the state in his argument referred to one defense witness as “the negro who had been convicted and served a term in the penitentiary,” in the absence of evidence disclosing such fact. This ought not to have occurred. The trial court did all he could to save the situation, by instructing the jury not to consider the statement, but it is doubtful if the jury could do so.

There are some bills of exception which complain of what appears to he purely negative testimony of witnesses who testified that they never saw Bell take a drink of whisky. There is no .recital in the bills nor in any qualification thereto, which would appear to make this bare negative statement admissible.

The judgment is reversed, and the cause remanded.


text:
    HURLEY v. STATE.
    No. 15516.

    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Herman G. Nami and Frank B. Vaughan, both of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for passing a forged instrument; punishment, two years in the penitentiary.

A note signed ostensibly by J. L. Farren was claimed to be a forgery, and appellant was convicted for passing same. Appellant while a witness admitted that he did pass said note to C, but claimed that when this was done he believed it to be genuine and that it had been signed by Farren. He said he did not know there was any question as to Farren having signed the note until this indictment was returned. He further said he received the note through the mail after having mailed to Farren a similar note for his signature. The defensive theories raised by this testimony were submitted to the jury in a manner apparently acceptable to appellant.

Farren testified that the signature on said note was not his, and that the first he knew of the existence of said note was when notified by O that he owned said note and wanted it paid; that he had bought said note from this appellant. Farren further testified that he at once came to San Antonio and saw both C and appellant, and that appellant told him “that was just a little crooked deal he had pulled and that he had already settled it, and I told him I didn’t want some one to be holding a judgment against me that I didn’t know about, and he said to forget it that he had everything fixed up.” Expert witnesses for the state swore that the note in question did not bear the genuine signature of Farren. They made comparison between the signature of the note and a number of Farren’s checks and notes with his genuine signature thereon.

Appellant has'seventeen bills of exception, each of which has been examined and considered, but none of which we deem to call for any extended discussion. Bills 1, 2, and 5 relate to questions asked C by the state as to how much he paid appellant for the alleged forged note. The matters may have been of some materiality ¿s supporting the proposition that appellant knew the note to be false and considered it of little value.

Bill of exception No. 3 sets out objections to the introduction of the alleged forged note, on the ground that it was payable to appellant’s wife, and that an attempted transfer of same by appellant to O would be illegal. We doubt the correctness of considering the legality vel non of such transfer, but call attention to the fact that a written transfer of the note to C by appellant and his wife was in evidence.

The matters set out in bill of exception No. 4 relate to rejected cross-examination of a state witness who testified as an expert as to the dissimilarity between the genuine signature of Farren and that upon the alleged forged note. The ground of objection seems to be that this witness claimed to know Far-ren’s signature by reason of having been connected with the bank where Farren did business, and appellant asserted that testimony to the personal knowledge of Farren s signature by said witness would be inadmissible in this ease because witness first acquired bis knowledge of Farren’s signature some time after tbe instant transaction. The matter seems of no materiality as affecting the testimony of the witness regarding the similarity of signatures.

The jury came back into the courtroom for further instruction after their retirement. Appellant claims that he was not present at the time they were instructed on this occasion. There was ample testimony, as set out in bill of exception 6, to support the court’s conclusion that appellant was present. No such facts are set out in bill of exception 7 as lead us to believe that the court exceeded his discretion in the matters set out therein; it being complained that the voice and manner of the state’s attorney was harsh in his examination of a defense witness, and that he was trying to browbeat the witness. We entertain the same view of the matters appearing in bill of exception No. 8.

Bills of exception 10 and 11 complain that the state’s attorney said to the jury that a man who would forge or pass a forged instrument was a low-down, common, stinking sneak. This was rather plain language, but expressive of the attitude of the state’s attorney toward a crime which has been characterized as a stab at the very vitals of the safety and stability of our commercial credit. The argument may have been an effort to do what Sam Jones said ought always to be done, “.Put your fodder on the ground so that everything from a giraffe to a hog can get at it.” Since the verdict of the jury gave appellant the minimum penalty, the homespun language of the state’s attorney evidently did not greatly excite the prejudice or passions of the jury.

Bills of exception 12, 13, 14, and 15 set out various complaints of the statement o'f the state’s attorney to the jury that the state was electing to prosecute on that count of the indictment charging the passing of a forged instrument for certain reasons, etc. To set out each complaint of this statement would lengthen our opinion without elucidating any legal proposition. Each of the bills is qualified. No exceptions were taken to the qualifications. As qualified, none of the bills presents error.

Bills of exception 16 and 17 complain of misconduct of the jury. The court states in his qualification to said bills that no testimony was offered upon the hearing of the motion for new trial supporting the contention made. The order of the court overruling the motion for new trial sets out that the court heard evidence. Same is not brought before us by any bill of exception or statement of facts.

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


text:
    DAY v. STATE.
    No. 15604.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    J. Lee Cearley, of Cisco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Possession of equipment for the manufacture of intoxicating liquor is the offense; punishment, one year in the penitentiary.

The state’s testimony in brief was as follows: J. R. Jenkins, sheriff of Borden county, with two other officers, on the night of March 23, 1931, went out to a pasture known as the Miller place, which was about 9 or 10 miles east of Gail. They started from Gail about 9 or 9:30 o’clock, and arrived at the place where they found a still about 11 o’clock. It was near a tank in a little creek. The still was between the tank dam and the creek. There was a boiler about one hundred steps from the tank and also a mash barrel full of mash. About 20 steps from the boiler was a pit with iron bars across it. The officers remained about 150 or 160 steps from the still during the balance of the night, and about 7:30 o’clock the next morning the witnesses saw the defendant, John Day, drive up in his car with a man by the name of Bob White. The appellant was driving, and stopped the car about 30 steps from the still, and both the appellant and White got out of the ear. They saw the appellant get the steel drum and drag it down to the pit and put it over tlie iron pit. The appellant then got two big paint buckets and started carrying mash from the barrel and putting it in the still. The other man with him, Bob White, took the car and brought some wood back in the car and unloaded it by the furnace. They then made a fire under the still. They also testified that there was a worm with the still that was connected and was ready to make liquor. They further testified that, after the appellant and White had the fire started, they got some fishing poles and went over the dam and. started fishing. They waited about an hour, and went and arrested the appellant and the man with him and took them back to where the still was in operation. At that time there had been run about an inch or an inch and a half of whisky in the half-gallon fruit jar. It was also in testimony that, when the appellant and the man White drove up in the car, they got out of the car and unloaded a sack of suger. There was no other .person seen in or near the still by the officers.

The appellant testified that he and his companion had gone to the dam for the purpose of fishing, and had no connection whatever with the still, and denied bringing any sugar to where the still was, and also denied making any'fire or starting the still in operation.

Only two bills of exception appear in the record. Bill of exception No. 1 deals with the action of the trial court in overruling appellant’s second application for a continuance, which was predicated on the ground that appellant’s attorney was suffering with a throat infection that made it difficult for him to be clearly understood in his speech, and his other lawyer was absent from court attending court at Eastland, Tex. It appears from the court’s qualification to the bill that the appellant’s counsel was present in court at the time the application for continuance was made, and, when it was overruled, conducted defendant’s case very ably, and there was no complaint from any one that said attorney could not be heard; that the jury was as close to counsel as the court, and the court distinctly heard every word by said counsel. It is further shown that no proof of any kind was offered in support of said motion. As thus qualified, the bill does not present error.

Bill of exception No. 2 complains of the action of the trial court in refusing to allow appellant’s counsel to examine the jurors in detail as to whether or not they were acquainted with the case, the companion case, and the nature of their relationship with the sheriff, etc. The trial court without objection qualified said bill to the effect that during the examination of one juror the court did instruct counsel for appellant to confine himself to the statutory questions, but at that time the juror had said that he had formed an opinion from what he had heard as to the guilt or innocence of the defendant, but that it would not influence his verdict, and the counsel was attempting to have the juror disqualified when the court instructed him that the proper question would be “that from hearsay or otherwise is there established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence him in his action in finding a verdict.” The qualification further shows that appellant’s counsel challenged said juror peremptorily, and his challenge was sustained. The qualification further shows that counsel again began to examine the jury as he saw fit without any objection from the state whatsoever, and was allowed to ask any question that he chose. We think it clear that the right to appear by counsel carries with it the right of counsel to interrogate each juror individually to the-end that he may form his own conclusion as to whether in the counsel’s judgment he would be acceptable to him or whether on the other hand he should exercise his peremptory challenge to keep him off the jury. See Reich v. State, 94 Tex. Cr. R. 449, 251 S. W. 1072; Barnes v. State (Tex. Cr. App.) 88 S. W. 805. But, as the matter is presented, it does not show that the appellant nor his counsel was denied the right to interrogate each juror individually so as to exercise his peremptory challenge. As the matter is presented, it is not deemed such as to warrant a reversal of the judgment.

No reversible error appearing in the record, the judgment is affirmed.

Affirmed.

PER CURIAM.

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


author: LEVY, Justice.

text:
    KOLP v. MACO OIL CO.
    No. 4291.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 16, 1933.
    Rehearing Denied Feb. 23, 1933.
    Fischer & Fischer, of Tyler, for appellant Kolp.
    Weeks, Hankerson & Potter, of Tyler, for appellee Maco Oil Co.
   LEVY, Justice.

The two cases here set out were consolidated and tried as one, and from the judgment therein rendered this appeal is prosecuted. C. F. Kolp filed suit on November 14, 1931, against Maco Oil Company seeking to recover as an indebtedness due and owing to him one-half of the operating costs in the oil production upon a certain lease upon 9.45 acres, called the Mayfield-Alford A Lease. C. F. Kolp also in the suit sought to have the reformation of a contract alleged to govern the operation of the lease. The Maco Oil Company filed a suit on January 26, 1932, against C. F. Kolp, seeking specific performance of a contract alleged to have been made up in a series of telegrams exchanged between Maco Oil Company, C.' F. Kolp, and Foster and Jeffreys. In the suit first mentioned, the Maco Oil Company by its answer specially classified the various expenses shown by 'the alleged account of C. F. Kolp admitting liability for certain items and denying liability as to the other items, and further specially denied the other allegations of the petition. In the second suit mentioned, the defendant C. F. Kolp, by his answer, denied that the contract of sale was ever consummated, apd further set up an alleged pa-rol agreement between the parties whereby the Maco Oil Company agreed that it would pay one-half the operating expenses incurred by C. F. Kolp in operating the Mayfield A Lease. The answer further entered special exceptions and a general demurrer to the petition of the Maco Oil Company. These exceptions, which the court overruled, are made the basis of the assignment of errors on appeal by C. F. Kolp.

After hearing 'the evidence, the casé was submitted to a jury upon special issues, and upon their answers thereto the court entered judgment in favor of the Maco Oil Company for specific performance of the alleged contract of sale vesting title to C. F. Kolp’s one-fourth of seven-eighths interest in a leasehold estate in the Maco Oil Company subject to an oil payment of $15,625 payable from one-eighth of seven-eighths of the oil produced from the two oil wells and other wells when drilled on the leased premises. The judgment further adjudged in favor of C. F. Kolp against the Maco Oil Company the 'sum of $4,971, with interest, as being the one-half of the operating expenses sued for. C. F. Kolp and the Maco Oil Company have each appealed from the judgment. It becomes unnecessary to make conclusions of fact or further statement of the case. The assignments of error bring in review for decision by this court the pleadings and the judgment.

The appellant C. F. Kolp’s assignment of error No. 1 complains of the overruling of special exceptions to the petition because the description of the lease was too indefinite to be located. It is believed 'that there was no error in overruling the exception complained of because the telegrams pleaded, making up a single transaction, considered in tlie light of each other, give a sufficient description of the lease so as to make definite by parol evidence.

The third assignment' of error by the appellant Kolp is to the point that the judgment decreeing title to the one-fourth of the oil production to the Maco Oil Company, and of awarding payment to O. E. Kolp of proceeds of one-eighth of seven-eighths of the oil production until $15,625 be paid, is contrary to and not warranted by the pleadings and the verdict of the jury. This assignment, it is concluded, should be overruled.

The second assignment of error complains of overruling the exception to the petition, which was, in substance, that the telegrams as set out and made the basis of the alleged agreement do not show a mutuality of assent between the parties as to the terms or condition of the sale, and method of payment of the consideration. It is believed that this exception should have been sustained. The original proposition, made by Mr. Poster to Maco Oil Company, as alleged in the petition, was to either buy or sell the interest of the party in the lease on the price stated, “payable out of oil to be taken out of one half of respective interest of the parties interested.” The telegram by Mr. Kolp expressed willingness to buy or sell interest “with understanding that payments out oil be based one one-fourth for your interest and one-eighth each for Poster and my interest.” Upon receiving this telegram, the Maco Oil Company, on November 4, 1931, made inquiry of Mr. Kolp as to “what date” the trade if carried out “will be effective.” To this telegram Mr. Kolp made answer that it would be effective either “November fifteenth” or “December first.” After further telegrams passed between the oil company and Mr. Kolp of daté November 5, 1931, the following telegram was sent by the Maco Oil Company to appellant Kolp at Tyler, Texas: “As outlined in your recent telegram we are hereby accepting your proposition and will buy your equity of ⅛ interest in the Mayfield-Alford Company in 9.45 acres lease known as 'the ‘A’ lease. We to pay you for same $15,625.00 payable ‘ out of ⅛ of the working interest of % of the oil from the two wells now on said lease if and when produced, saved and sold. We are to acquire a ½ interest in all properties now on said lease belonging to same or the two wells thereon free of all encumbrances and will be entitled to all oil run from said lease after 7:00 o’clock -a. m. November 7, 1931. We will have our attorneys prepare papers of transfer for your signature tomorrow. Please confirm this trade at once by telegram. We are also buying Prank Poster’s interest”

Up to this present telegram none of the telegrams had mentioned or stated anything about the purchase price, which was to be in oil, being payable out of “the oil taken from the two wells now on said lease.” The previous telegrams from both Kolp and Poster had proposed that the purchase price oil should be “payable out of oil” of the “respective interests” in the lease of the parties. In effect this was a counter proposition to C. P. Kolp. The Maco Oil Company on November 6th sent a telegram to C. P. Kolp at Tyler, reading: “Please let us have telegram accepting finally our proposition of last night to buy your interest in ‘A’ lease. This in order that we may close up same with you today.”

On November 6th, C. P. Kolp replied to this telegram to the Maco Oil Company: “In re tel this satisfactory provided I am paid in cash all moneys due me as of date the transfer papers are signed. Poster agreed to this.”

As far as pleaded, this ended the negotiations between the parties, except that it was alleged that the Maco Oil Company called C. P. Kolp on the telephone and made demand of him that he convey his interest in the lease to it on the terms of the telegrams to him, which C. P. Kolp refused to do. It' would seem clear that, in the absence of other allegations, the proposition respecting the limitation of the payment of the oil “from the two wells now on said lease” was never mutually assented to by the parties. It may not be said that the parties mutually assented that the payment of oil for the sale of the lease should be limited only to the oil produced “from the two wells now on said lease” rather than and instead of from the oil produced from the entire leased premises.

Maco Oil Company in its cross-appeal assigns as error that the verdict of the jury in respect to its finding of the amount due for operating expenses is contrary to the evidence. After consideration of the evidence, it is believed that the assignment should be sustained upon the ground that the proof offered in support of the account lacks definiteness of showing that the amount charged for each item in the account was a reasonable charge. The testimony of the witnesses does not affirmatively show that they had knowledge that the materials and labor set forth in the account were in fact expended upon the leased premises and of whether the materials that were furnished were new or secondhand.

The judgment of the district court is reversed, and the cause remanded as to both appeals; the costs of appeal by Maco Oil Company to be paid by C. P. Kolp and the costs of the appeal by C. P. Kolp to be paid by the Maco Oil Company.


author: PUT, Chief Justice.

text:
    CHANDLER et ux. v. WEIMERS.
    No. 8973.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1933.
    Rehearing Denied March 1, 1933.
    Douglas & Black, of San Antonio, and H. D. Barrow, of Jourdanton, for plaintiffs in error.
    C. S. Slatton, of San Antonio, and D. Morgan Williams, R. R. Smith, and A..N. Steinle, all of Jourdanton, for defendant in error.
   PUT, Chief Justice.

This is a writ of error from a judgment in the district court,- denying the probate of a will purporting to have been executed by Jo-hana Weimers, dated April 14, 1926. Probate of the will was contested by Charles B. Weimers, Guardian of .Christopher T. Weim-ers, a lunatic, confined in a hospital for the insane.

The facts show that Christopher T. Weim-ers, the husband of Johana Weiipers, was adjudged a lunatic and confined in the State Hospital for the Insane at San Antonio, Tex. He had been confined for many years, and his wife, Johana Weimers, lived on their farm in Atascosa county. Oil had been discovered on the land, and royalties for the oil were collected by an agent of Mrs. Weimers named Joe Kassler, to whom she paid 25 per cent, of the royalties. Kassler for years lived in the house with Mrs. Weimers. He died in March, 1926, and after his death C. M. Chandler and Lillie N. Chandler moved into the home of Mrs. Weimers. Mrs. Weimers, on April 14,1926, following the death of Kassler, and after the Chandlers had moved into- her home, executed the will sought to be probated in this suit, in which the bulk of her estate was left to the Chandlers. Six hundred dollars was bequeathed to four persons and all the balance left to the Chandlers. The property was averred, by the Chandlers, to be of the probable value of $5,000 or $10,000. They were not related to Mrs. Weimers, and she stated in the will, as her reason- for bequeathing the property as she did, that they take care of her in her old age and treat her with the kindness and consideration they had treated her in the past. They had lived with her probably a month -before she made -the will. It was shown that Mrs. Weimers loved Willie Munk more than any one in.the world, and yet he was bequeathed nothing, and his -mother, who had been dead many years, was bequeathed $200. There was expert testimony to the effect that Mrs. Weimers was of un-isound mind, and there was other testimony to that effect.

The jury found that Mrs. Weimers did not have mental capacity -to execute a will on April 14, 1926. There was evidence to support the -finding. It is utterly incredible that the seventy-five year old woman should have become so attached to a couple who- had only a short period before moved into her home. It is true that she had known them for quite a while before, and they had lived in a house of hers on the farm, but the evidence fails to disclose any foundation in reason, common sense, or gratitude, for such affection for the Chandlers as would induce the practical disinheritance of her husband and his and her relatives. Such an unnatural disposition of property can be looked to as evidence of unsoundness of mind of the testator, and this is intensified in this case by evidence that a boy that she loved -more than any one was entirely omitted from her will. Prather v. McClelland, 76 Tex. 587, 13 S. W. 543; Ency. Dig. Tex. Reports, p. 816. The evidence shows that the Chandlers were not satisfied- with the will -because the executor therein was also a witness, and so in September, 1926, procured from Mrs. Weimers the execution of another will, about nine days before she died. That will was not permitted to be probated by the county court, and, on appeal to the district court and this court, that judgment was affirmed. The cause was transferred by the Supreme Court to the Court of Civil Appeals at El Paso. That court affirmed the judgment of the district court in denying probate of the will made in September, 1926. Chandler v. Wiemers (Tex. Civ. App.) 4 S.W.(2d) 569. The only points presented in that case were improper argument and improper conduct of the jury. The judgment of the district court was affirmed. Nothing was presented to the Court of Civil Appeals, as to the propriety of the action of the courts in denying probate of the will, and necessarily, nothing was decided by that court. The decision of the court should have been invoked on the two vital questions as to mental capacity of the testatrix to execute a will and undue influence exercised by the beneficiaries of the will.

The jury in this case have decided that Mrs. Weimers was not mentally capacitated to execute the will of April 14, 1926, and we think all the circumstances bear out that conclusion. The jury also found that undue influence was exercised by the Chandlers upon Mrs. Weimers to induce her to give the whole of her fortune to them. They had no claim on the ground of relationship or favors done for testatrix. The only evidence that she recognized a debt of gratitude to them was the declaration in the will procured by them from her, and that was coupled with the consideration that they should care for her in her declining years. The records fail to show that the Chandlers had performed any 'such services for Mrs. Weimers as would induce a woman to disinherit all connected with her by blood or marriage and give thousands of dollars worth of property to unrelated persons. The testimony showed not only mental incapacity to execute the will, but that undue influences must have been used to lead the old woman into such an unnatural and unreasonable action.

The judgment is affirmed.


author: DUNKLIN, Justice.

text:
    WARD v. PRIDDY et al.
    No. 12749.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 24, 1932.
    Rehearing Denied Jan. 28, 1933.
    Taylor, Muse & Taylor, of Wichita Falls, for appellant.
    Williams, Neethe & Williams, of Galveston, and Bullington, Humphrey & King, E. C. De Montel, Weeks, Morrow & Francis, and Arch Dawson, all of Wichita Falls, for appellees.
   DUNKLIN, Justice.

This suit was instituted by J. C. Ward to recover on two certain promissory notes, one in the principal sum of $25,000, and the other in the principal sum of $30,000, each drawing interest at the rate of 8 per cent, per an-num, and each signed by the American Refining Company, a partnership composed of W. M. Priddy, N. B. Chenault, W. W. Silk, M. J. Bashara, P. P. Langford, R. M. Waggoner, and W. T. Willis, and payable to plaintiff’s order. The partnership and the members of the partnership firm were made defendants, with the exception that Mrs. Olga Bashara, independent executrix of the estate of M. J. Bashara, deceased, was made a defendant as the representative of his estate.

It was alleged that the American Refining Company was engaged in the general oil producing and refining business in Wichita Palls, Tex., and elsewhere, and it, together with all the members of the partnership firm, transferred all of that property to a creditors’ committee, composed of Fred W. Catteral, J. J. Perkins, F. F. Florence, Sam Householder, L. C. Hawkins, E. H. Eddleman, and J. C. Mytinger, and the creditors’ committee, together with the component member^ thereof, were likewise made defendants. It was alleged that the transfer of the property to the creditors’ committee was made with the understanding that it was to be operated by the assignee for the benefit of the creditors of the American Refining Company,.and particularly to secure the payment of the two notes above mentioned held by the plaintiff; and that those notes were made for money loaned by plaintiff to the American Refining Company, and the same was used in the operation of the business of the refining company, and by reason of the premises the other defendants and the creditors’ committee and each member thereof became liable therefor.

The principal defense urged by the defendant was that of estoppel by reason of a judgment rendered in the federal court in an insolvency proceeding, in which it was alleged that the plaintiff became an intervener therein, and accepted benefits of the judgment therein rendered.

The case was tried before the court without a jury, and plaintiff has prosecuted this appeal from a judgment denying him the relief prayed for.

The following are findings of fact and conclusions of law filed by the trial court:

“Findings of Fact.
“On the 4th day of May, 1927, and the 10th day of June, 1927, as alleged in the plaintiff’s petition herein, the defendants executed and delivered to the plaintiff the notes described in said petition in the amounts and upon the terms as in said petition alleged and in the capacities as alleged in said petition. Said notes were given for money borrowed from the plaintiff as alleged in said petition.
“Payments and credits have been made on said notes as alleged in paragraph 4 of said petition. The plaintiff placed said notes in the hands of his attorneys for collection and agreed to pay them the attorneys’ fees as alleged in paragraph 5 of said petition.
“The time said notes were executed, the defendants, W. M. Priddy, N. B. Chenault, W. W. Silk, W. T. Willis, P. P. Langford, R. M. Waggoner and M. J. Bashara, since deceased, were partners in a partnership known as American Refining Company and at the same time they were directors in a corporation known as American Refining Company, Incorporated; said partnership existed before the incorporation of said corporation, and said corporation when incorporated took over the. principal business of said partnership, which was the production and refining of oil and the marketing of gasoline and other oil products.
“On the 22nd day of August, 1927, in a certain cause filed on that date in the United States District Court of the Northern District of Texas, styled Universal Oil Products Company v. American Refining Company et al., No. 228, in equity, receivers were appointed to take charge of all the non-exempt assets of the individuals above named, as well as those of said American Refining Company, Incorporated, and all creditors of said defendants in said cause, hereinafter referred to as the federal case, were directed by the order of said court appointing said receivers to intervene in said cause, by proper petition addressed to said court; at said time said defendants in said federal case were indebted to a great number of parties, both individually and jointly and severally, as members of said partnership and as endorsers and guarantors on notes of said corporation, and all of said defendants and said corporation were at said time insolvent.
“Notice of said order was given to the plaintiff herein and that he placed his said notes in the hands of his attorneys, Bullington, Boone, Humphrey and King, and that said attorneys prepared and caused to be filed in said federal case for and on behalf of the plaintiff a petition of intervention on said notes, said petition having been filed with the clerk of the United States District Court of the Northern District of Texas on the 24th day of January, 1928, the master of chancery was appointed in said federal cause to hear and report findings on the interventions filed in said cause and on the 29th day of February, 1928, the plaintiff appeared before said master, was sworn, and gave evidence in support of his said intervention. Upon the evidence introduced, said master reported to his said court his finding and recommendation that the claim of J. C. Ward, the plaintiff herein on said notes, be allowed and that judgment be rendered in bis favor against tbe makers for tbe full amount except attorneys’ fees. On tbe 21st day of June, 1928, said court approved said finding and recommendation and rendered judgment in accordance with said recommendations of said special master and in said judgment directed and decreed that all writs issue for the proper enforcement of said judgment as if the same had originally been entered by said court.
“Said United States District Court in said suit on January 24,1929, made and entered its final judgment discharging said receivers and making final all the previous orders of the court entered in said cause.-
“While said cause in said federal court was pending, a large number of the creditors and interveners in' said cause entered into a voluntary association referred to in the record as the ‘creditors’ committee,’ the general purpose and object of which was the protection of and rights as ¿uch creditors in the properties and assets then held in receivership.
“The general plan of procedure was that said creditors entered into the written contract with the managers of their organization and with each other, shown in the record, the plan being to establish their claims by intervention in said cause and have their managing officers, hereinafter referred to as the committee, purchase for said association the properties at receivers’ sale and use their claims against the receivers as the consideration for said purchase.
“The plaintiff, J. O. Ward, signed the creditors’ committee contract and became a member of said organization, although he struck out the part of said agreement before signing it requiring him to surrender his notes to said creditors’ committee.
“The contract as signed by the plaintiff, J. C. Ward, along with all the other contracts of said creditors’ committee, authorize said committee to employ an attorney, or attorneys, and to take all actions and institute all proceedings of any nature as to the committee might seem best and to represent it generally in carrying out the plan, including the filing and defending of all actions at law, or proceedings in bankruptcy, or any other legal proceedings. Said committee did employ Honorable A. H. Britain as attorney, to intervene in said federal suit for and on behalf of the claims of the members of the creditors’ committee and to prosecute said claims in said cause so that the same might be established and made available for use in purchasing the properties at receivers’ sale in said cause, and that on the 26th day of January, 1928, said attorney did file in said cause a petition of intervention for said claims held by the members of said creditors’ committee, among which included in said petition was the two notes held by the plaintiff, J. 0. Ward, -and prayed for a judgment upon said notes and claims; the said A. H. Britain was present at the hearing before the special master in chancery at the time the Ward intervention was heard above referred to, and assisted in proving up the same before said master in chancery.
“After said claims of the creditors’" committee had been proved up and allowed in said cause, the receivers therein sold all of the properties then held by said receivers at public sale under the orders of said court and that said creditors’ committee, acting through their said managers, became the purchasers of said properties, Which were arid are of great value, and used largely as consideration therefor, the claims held by the members of said creditors’ committee against said receivers, including the claim of the plaintiff, J. 0. Ward, under the notes herein sued upon; after the sale of said properties, said creditors’ committee, through their said agents and managers, took charge of the same and since said date have been managing and operating the same for the benefit of the members of said committee, including the plaintiff herein ; that all of the credits shown on the plaintiff’s said notes, as alleged in his said petition, were made to him as dividends by said creditors’ committee after their purchase of said property at receivers’ sale, as aforesaid, which dividends were received and accepted by the plaintiff with full knowledge that they were the ratable payment on the obligation owing to plaintiff by the original debtors; that at no time did the creditors’ committee become liable upon said obligation, but only to distribute the proceeds from the sale of said properties, which obligation the creditors’ committee fully performed.
“On the 22nd day of June, 1928, said United. States District Court in said cause rendered and entered its judgment ratifying and confirming an agreement whereby the defendant, W. T. Willis, was discharged from all further liability as to all of the claims of the plaintiff and interveners in said cause, in which the plaintiff, J. C. Ward, was an inter-vener, and that by said judgment, the -said W. T. Willis was released from all such claims on the consideration set out in said judgment, which order was made final by the final order in said cause on January 24,1929.
“On May 18, 1928, said United States District Court in said cause No. 228 in equity rendered and entered its judgment ratifying and confirming an agreement whereby the defendant, W. W. Silk, was discharged from all further liability as to'all of the claims of the plaintiff and interveners in said cause, in which this plaintiff, J. C. Ward, was an inter-vener, and that by said judgment the defendant, W. W. Silk, was released from all such claims on the consideration set out in said judgment.
“Tbe said M. J. Bashara is dead and that the defendant, Mrs. Olga Bashara, is the duly appointed, qualified and acting independent executrix of the estate of the said M. J. Bashara, deceased; but that as such independent executrix she received from the estate of the said M. J. Bashara, deceased, no exempt property whatever of any value.

“Conclusions of Law.

“The plaintiff is not entitled to recover in this cause; the judgment heretofore rendered in the United States District Court in cause No. 228 in equity is in full force and effect; it is a valid and subsisting judgment; it is final; it was upon the identical cause of action sued upon herein and between the same parties, and is not subject to the collateral attack sought to be made upon it herein.

“The plaintiff was a party to said cause and is bound by the judgment rendered herein.

“Under the facts, the plaintiff is es-topped to deny membership in the creditors’ , committee arrangement, and he is not entitled to recover herein as against said association.

“The facts are insufficient to warrant any judgment against the defendant Olga Bashara.

“Under the orders and judgments made especially with reference to the defendants W. T. Willis and W. W. Silk, the plaintiff is barred from recovery against them upon the obligations herein sued upon.”

In reply to defendants’ plea setting up the judgment rendered in the federal court, the plaintiff alleged that the plea of intervention, filed in his name in that case, was filed without his authority, and therefore he was not bound by the judgment therein rendered. The plea of intervention was part and parcel of the judgment rendered in the federal court, and the plaintiff’s plea of non est factum was not verified as required by article 2010, subd. 8, Rev. Statutes, and therefore testimony in support of the plea was unavailing to the plaintiff because incompetent under the decision of Thomason v. Berry, 276 S. W. 185, by the Commission of Appeals. The report of the master in chancery recommending the payment of plaintiff’s claim, followed by the court’s entry approving it, amounted to a final judgment. Plaintiff could not recover on the notes in this suit after receiving payments under and by virtue of the judgment in the •federal court. Continental State Bank v. Waggoner (Tex. Civ. App.) 48 S.W.(2d) 1026. Furthermore, all of the findings of fact, recited above, had sufficient support in the evidence, and all assignments of error to the contrary are therefore overruled.

In this connection it may be noted further that the mere fact that plaintiff re- ' tained possession of his notes at the time he signed the agreement recited in the court’s findings was immaterial, since he was given full benefit of his claim to the same extent as if he had surrendered those notes at the time he executed the agreement; and the receipt by him of those benefits would be a ratification of the intervention in his favor, even though it be said that the plea of intervention in his behalf was filed without his authority.

And since plaintiff failed to establish by competent proof his plea of non est factum, noted above, decisions cited by him, to the effect that a judgment may be collaterally attacked if it appear that the court rendering it never acquired jurisdiction over the defendant, have no proper application here, in any event; the authorities so cited being such as Parker v. Spencer, 61 Tex. 155; Cooper v. Newell, 173 U. S. 555, 571, 19 S. Ct. 506, 43 L. Ed. 808; Batjer v. Roberts (Tex. Civ. App.) 148 S. W. 841; T. & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52.

For the reasons noted, the findings of fact and conclusions of law filed by the trial court are adopted as the findings and conclusions of this court; all assignments of error are overruled, and the judgment is affirmed.


author: GRAVES, Justice.

text:
    TUNSTALL et ux. v. C. E. CARLTON & CO.
    No. 9825.
    Court of Civil Appeals of Texas. Galveston.
    Feb. 23, 1933.
    Leroy L. Moore, of Crockett, for plaintiffs in error.
    N. H. Phillips, of Crockett, for defendant in error.
   GRAVES, Justice.

These findings of fact and law filed by the learned trial court sufficiently disclose not only the nature and result of the suit below but also the grounds upon which the judgment there was based; the record fails to show that any of the fact-findings were ever excepted to in such way as to permit the plaintiffs in error to question the sufficiency of the evidence to sustain any of them, as so stated; they are therefore binding as such upon 'this court, and, together with the appended conclusions of law, are in full as follows:

“Court’s Findings of Fact.
“1. I find that the defendant J. F. Tunstall on June 4th, A. D. 1930, executed and delivered to W. E. Carlton one certain promissory note in the principal sum of $315.00 with interest from maturity at the rate of ten per cent payable in two equal installments, the first on or before October 1st, 1930, the second on or before January 1st, 1931, providing that if said note is placed in the hands of an áttorney for collection or suit is brought on the same that ten per cent shall be added as attorney’s fees.
“2. I find that W. E. Carlton endorsed said note without recourse and delivered the same to plaintiff C. E. Carlton & Company prior to the filing of this suit and that C. E. Carlton & Company, a corporation, was at the date of filing suit herein and at the date of judgment herein the legal owner and holder thereof, and that said note at date of filing and at. date of judgment was principal, interest, and attorney’s fees wholly unpaid and that defendant was on the 18th day of August, A. ■ D. 1931, justly due plaintiff the sum of $373.-80, liquidated and proved by an instrument of writing bearing interest at the rate of ten per cent.
“3. I find that even date with said note the defendant J. F. Tunstall, in order to secure the payment thereof, did execute and deliver to C. E. Carlton, trustee, for the benefit of W. E. Carlton or other legal owner or holder of said note, a certain deed of trust wherein and whereby he did grant, sell and convey the following described property, situated, lying and being in the county of Houston and state of Texas, viz.:
“63.7 acres of land, a part of the Henry Gardner survey which was conveyed tó J. F. Tunstall by J. V. Marsh and wife by deed recorded in Book 83, page 545, of the Houston county, Texas, Deed Records, to which reference is made for further description, same being off the west end of said Gardner survey, said deed of trust being in usual form with covenants and warranties and rights of sale and containing the following recital and homestead designation:
“The said property constitutes no part of my homestead, my homestead consisting of 160 acres of the John McCarty survey, and 86 acres, a part of the Griffin survey and Joel Young survey bought from Blanchard where I now reside.
“4. I find that at the date of making said deed of trust that J. F. Tunstall and wife, Annie Tunstall, were lawfully married and were actually résiding on the John McCarty 160 acres of land above referred to; that they had both therefore joined in a designation of said 160 acres along with 40 acres of the land conveyed as in said deed of trust described as their homestead which designation neither of them have repudiated or changed, in so far as 160 acres is concerned until the making of said deed of trust, or for that matter at any time thereafter.
“5. I find that the defendants herein J. F. Tunstall and wife, Annie Tunstall, on the date of execution of the deed of trust above referred to, that is, on the 14th day of June, A. D. 1930, owned in fee simple 32 acres of land out of the said John McCarty survey and that they owned such interest in the remainder of said 160 acres as to justify J. F. Tunstall in designating all the same as their homestead, the reasons for this finding to be more fully developed in the subsequent findings.
“6. I find that at the date of the deed of trust aforesaid the legal title to all of the John McCarty survey except the 32 acres above referred to stood in the name of the aged mother of defendant J. F. Tunstall but that J. F. Tunstall had lived with her all of his life, she supporting him in childhood and he supporting her in manhood and in aid of his undertaking to support her having the free use of her property as well as his.
“7. I find that the said J. F. Tunstall borrowed the sum of about $700.00 for improvements of his homestead property, designating particularly the land to be improved as the land covered by the deed of trust above referred to and giving the same as security for said loan to the Federal Land Bank of Houston and by the invitation of his mother aforesaid using said money instead for the improvement of her 128 acres of land on the McCarty survey.
“8. I find that for several years prior to the execution of the deed of trust above dq-scribed that J. F. Tunstall had been rendering the whole of the John McCarty 160 acres of land in his name for taxes year by year and paying said taxes in his name as they accrued.
“9. I find that the mansion house and appurtenant improvements necessary for the enjoyment of the same were placed on the John McCarty 160 acres survey with full knowledge, consent and approval of J. F. Tunstall and wife, Annie Tunstall, and of the Mother of J. F. Tunstall, Mrs. - Tun-stall, all a long time prior to the execution of the deed of trust above described, and that said 160 acres of the McCarty survey has been actually a part of the rural homestead and place of actual residence of the said J. E. Tunstall and wife for more than ten years prior to the bringing of this suit and prior to the making of said deed of trust.
“10. I find that J. E. Tunstall on June 14th, 1930, acted in good faith and without intent to wrong or injure his wife in designating as his homestead 160 acres of the John, McCarty survey and 86 acres, a part of the Griffin and Joel Young survey bought from Blanchard.
“11. I find that the 86 acres, part of the Griffin survey and Joel Young survey, was situated contiguous to and adjoining to the 160 acres of the McCarty upon which J. F. Tun-stall and .wife actually resided and that the same, that is the said 86 acres of land, were of similar value and adaptability for use as a part of the homestead as the land conveyed in the deed of trust in question.
“12. I find that on the 24th day of March, 1930, J. F. Tunstall and wife, Annie Tunstall, executed and acknowledged before W. J. Patton an option to W. E. Carlton and J. W. Howard at Crockett, Texas, to lease the 127 acres in the John McCarty survey legal title to which was then standing in the name of Mrs. -Tunstall and that this they did by express request verbally made but not otherwise of the said Mrs. - Tunstall to them.
“13. I find that J. E. Tunstall and wife have lived all or practically all of their married life, - years, upon the John McCarty 160 acre survey with their mother Mrs. - Tunstall; that said three persons expect, so far as they or any of them now know, to continue to make their home on said property during the remainder of the life of the said Mrs.-Tunstall, and that J. E. Tunstall and wife will continue to make their home thereon after her death.
“14. I find that the 63 acres of the Gardner survey has a first and superior lien against the same in favor of the Federal Land Bank of Houston for the sum of about $600.00, and that neither the plaintiff nor the defendant herein have at any time intended that their dealings in said property should be to the prejudice of whatever rights the Federal Land Bank of Houston might have in and to the same.
“15. I find that the defendants J. F. Tun-stall and wife, Annie Tunstall, and Mrs. - Tunstall in all their dealings with each other have acted in good faith each- toward the other and I find further that as far as the evidence in this case shows that none of the three believed that any one or more of the others have acted at any time or in any manner with intent to injure or defraud the other or others.
“16. I find that W. E. Carlton, O. E. Carlton & Company and J. F. Tunstall in their dealings with each other have acted throughout in good faith with each other and entirely without intent on the part of any to mislead, injure or defraud the other or others.
“17. I find that prior to the making of the home designation by J. F. Tunstall and wife, Annie Tunstall, referred to in the 4th finding of fact that J. F. Tunstall had consulted attorneys of his own choice, namely, Messrs. Aldrich & Crook, attorneys at law, Crockett, Texas, who advised him that he could lawfully make by himself alone a homestead designation exactly as he did later make in the deed of trust sued upon.
“18. I find that on the date of the making of the homestead designation by J. F. Tun-stall and wife, Annie Tunstall, referred to in the 4th finding of fact that they both consulted attorneys of their own choice, that is, Messrs. Aldrich & Crook of Crockett, Texas, and that they, with full knowledge of the lands owned by the said J. F. Tunstall and wife and the character of title by which same was held, advised that such homestead designation would be lawful, valid and binding.
“Conclusions of Law.
“My conclusions of law based upon the facts above set forth are:
“1. That plaintiff should recover of defendants in all things as sued for.
“2. That defendant, Mrs. Annie Tunstall, should take nothing by virtue of her cross-action against the plaintiff herein. •
“3. That plaintiff have judgment against defendant J. F. Tunstall alone for $373.80, with interest at the rate of 10% from the 18th day of August, 1931, until paid, and for his costs.
“4. That plaintiff C. E. Carlton & Company has a lien against the land in plaintiff’s petition described superior to any right that Mrs. Annie Tunstall, his wife, can assert herein but subordinate to the rights of the Federal Land Bank of Houston, Texas, and that said lien should be and is by the decree herein foreclosed in behalf of plaintiff who shall have his order of sale and execution in terms of the law.”

Such being the state of the record as presented here, the sole question for this court to determine is whether or not the facts as so found below on the law justified the legal conclusions there made and the consequent judgment rendered; we are constrained to hold that they did, and cite the following authorities as supporting that determination, especially as resting upon the finding that plaintiffs in error had such interest in the 128 acres in the McCarty as justified them in designating that — along with the 32 acres in the same survey — as part of their homestead. Pearson v. Felps (Tex. Civ. App.) 53 S.W.(2d) 495, 496; Vaden v. Collier (Tex. Civ. App.) 253 S. W. 889; Crowder v. Union Nat’l Bank of Houston, 114 Tex. 34, 261 S. W. 375; Phillips v. Warner (Tex. App.) 16 S. W. 423; Wilkerson et al. v. McMurray (Tex. Civ. App.) 167 S. W. 275; Cullers v. James, 66 Texas 494, 1 S. W. 314; Temple v. Watkins Land Co. (Tex. Civ. App.) 81 S. W. 1188.

It follows that the judgment of the trial court should be affirmed, and it will be so ordered.

Affirmed.


author: ALEXANDER, Justice.

text:
    McCLOSKEY v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.
    No. 1315.
    Court of Civil Appeals of Texas. Waco.
    Feb. 2, 1933.
    Rehearing Denied March 9, 1933.
    P. H. Long and Marcus W. Davis, both of San Antonio, for appellant.
    F. C. Davis, of San Antonio, for appellee.
   ALEXANDER, Justice.

F. P. MeCloskey brought this suit against the railway company, and alleged, in substance, that in the year 1922 one A. L. 1-Iill held a claim against the railway company for damages for personal injuries theretofore sustained by him; that Hiil assigned one-half of his claim to MeCloskey in consideration of the services to be rendered by Me-Closkey in collecting the claim; that suit was filed on the claim and notice of McClos-key’s interest therein given to the railway company; that thereafter the railway company fraudulently and without notice to Me-Closkey settled with Hill by paying him the sum of $2,100 in settlement of his claim; that the railway company fraudulently represented to MeCloskey that the claim had been settled for the sum of $400; and that by reason thereof MeCloskey was induced to accept the sum of $200' in settlement of his interest therein. MeCloskey sued the railway company for the sum of $1,050, being one-half of the amount paid Hill by the railway company, less the $200 theretofore received by Me-Closkey. The verdict of the jury was favorable to the defendant, and judgment was entered accordingly. The plaintiff appealed.

The only issue submitted to and answered by the jury was as follows: “Did the receiver, Sehaff, by either of his agents, settle with A. L. Hill for $2,100.00 and pay him that amount in settlement of his claim?” To which the jury answered, “No.”

The appellant contends that the evidence was insufficient to support the verdict of the jury. Only two witnesses testified with reference to the amount that was paid Hill in his settlement with the railway company. Dr. Calloway, a witness for appellant, testified that the settlement took place in his office and that the claim agent of the railway company paid Hill $2,100. He testified that the payment was made in two checks, one for $100, which was made payable to Dr. Calloway in payment of the medical services theretofore rendered by him, and that the other cheek was payable to Hill. He testified that he saw both checks, but that he did not scrutinize very carefully the one that was delivered to Hill. Mr. Rankin, who was the claim agent for the railway company at the time of the settlement, testified in behalf of' the railway company. He testified that on account of the long lapse of time between the time of the settlement and the trial he was unable to remember the exact details of the settlement and could not produce the canceled checks, but he further testified, “I know I didn’t pay him $2,100.00, to the best of my recollection, I swear to that.” It thus appears that the testimony of the claim agent was in conflict with the testimony of Dr. Calloway. The burden was on the appellant to prove, as alleged by him, that the railway company paid Hill $2,100 in settlement of the claim. The jury resolved the conflict in favor of the appellee, and we do not feel at liberty to disturb the verdict of the jury.

The judgment of the trial court is affirmed.