author: LANE, Justice.

text:
    W. L. MACATEE & SONS v. CHAMBERS et al.
    No. 9909.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 18, 1934.
    Rehearing Denied March 1, 1934.
    I-I. L. Nicholson and E. R. Campbell, both of Houston, for appellants.
    S. H. German and Homer L. Bruce, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for ax>pellees.
   LANE, Justice.

W. L. Macatee & Sons, a copartnership, were engaged in the sale of building material in the city of Houston, Tex. Fred B. Chambers was a general contractor and was, at the time of the transactions forming the basis of this suit, a customer of Macatee & Sons, as he had been for many years theretofore, purchasing building materials from them in carrying out his contracts for the construction of buildings. Chambers had contracts with the Board of Education of the Houston Inde-, pendent School District of the City of Houston for the construction of two large school buildings, one the Sidney Johnston school building and the other a building located at the intersection of Merrell and Beauchamp streets, known as Travis school. The transactions forming the basis of this suit, however, are those relating- to the contract and construction alone of the latter building.

As a part of and connected with the execution of the contract to build the Travis school building and as required by article 5160 of our Revised Civil Statutes, Chambers, as principal, and Indemnity Insurance Company of North America, as surety, executed a bond guaranteeing the faithful performance of Chambers’ contract with the school board. Such bond is for $44,300. It recited that the contract had beep entered into between Chambers, as contractor, and the school board, as builder, of the Travis school building. The amount to be paid to- Chambers by the school board for the construction of said building was $88,598.

One pertinent part of the bond is as follows: “Now, therefore, the said principal and surety obligate and bind themselves that they »will faithfully perform said contract and make prompt payment to all persons supplying the principal with labor and material in the prosecution of said work. If the principal shall faithfully perform said contract according to the terms, covenants and conditions thereof, by the principal to be performed, and shall pay all sub-contractors, workmen, laborers, mechanics and furnishers of material, as their interests may appear, then this obligation shall be void; otherwise, to remain in full force -and effect.” (Italics ours.)

The bond also provides: “That should the obligees (laborers and others) be put to any expense for the enforcement of the contract or this bond, the same shall be paid by the principal and suretj' to the owner, sub-contractor, workmen, laborers, mechanics, and furnishers of material, as their interest may appear.”

In the construction of the Travis school building, Chambers had to have some one finance his pay rolls due to laborers engaged in the work of such construction. To procure such financial aid he applied to Macatee & Sons, from whom he had purchased a large amount of building material. Upon such application being made it was agreed between Macatee & Sons and Chambers that Chambers should make, or cause to be made, a weekly pay roll showing the amount due laborers who had for the respective week performed labor in the construction of the Travis school building, and that upon the same being presented to Macatee & Sons there should be firmly attached thereto and on the front thereof a-sheet of paper which should contain the following form of transfer: “The money covering the wages set out on the attached sheets having been paid to us by W. B. Macatee & Sons, we hereby assign to W. L. Macatee & Sons our respective claims for such wages, and subrogate them to all of our rights under such claims.” And that if such pay roll was so made and presented with such transfer attached, Macatee & Sons would turn over to Chambers money necessary to pay off the wages of the laborers, shown on the several weekly pay rolls, such money to be paid to the respective laborers, provided they should each sign the respective pay rolls with the aforesaid transfer attached thereto. Such pay rolls were made out, presented to Macatee & Sons by Chambers or his authorized agent, and the paper containing the transfer was firmly attached to and bn the front page of ■such pay rolls, and the necessary money mentioned was turned over to Chambers to be used in the payment of the laborers’ wages shown by the pay roll to be due them, respectively, upon their signing the pay roll.

With the money mentioned being in the hands of Chambers, W. W. Treloar, bookkeeper and timekeeper for Chambers, called the several laborers to whom wages were due, as shown by the respective pay rolls, to the window of his office, and upon their signing the pay roll with the transfer mentioned attached thereto, he would pay such laborer the wages due him. All and each of the laborers shown on the pay roll, except a few whose names were signed without authority and who will be hereinafter mentioned, signed the pay roll in person or by their marks before any payment was made to them.

The money advanced by Macatee & Sons,' paid to the laborers shown on the several pay rolls, not repaid, amounted to a total of $28,-142.45, which includes the sum of $5,337.85 paid to laborers who did not sign the pay roll and transfer, and also the sum furnished’to and personally used by Chambers himself, which amount is not now claimed to be a liability of the Indemnity Company, the bondsmen, to Macatee & Sons. The net sum paid to those w'ho signed the transfer, exclusive of Chambers and those not signing, was $22,804,-60. '

After these payrolls with the transfer at-' tached had been 'signed and the wages to the laborers paid, such transfer was delivered to Macatee & Sons.

There were nineteen of such transfers, one of which was executed on the 9th day of July, 1926, and the others one each at the end of each week thereafter up to November 11, 1926, covering a period of more than four months.

It was shown that on November 11, 1926, Chambers, the contractor, gave up the job and the surety, company took over the work and completed the building; that the surety company received from the school hoard that part of the contract price that Chambers had not received; that the school board paid to Chambers and the surety company together the entire contract price of $88,598; that the surety company paid all unpaid bills'on thé job, except the sum then claimed by Macatee & Sons amounting to $28,142.45, which it refused to pay, or any part thereof.

W. Jj. Macatee & Sons, a copartnership composed of W. L. Macatee, J. I. Macatee, George P. Macatee, Mrs. Mary Grünewald, and Mrs. Cora McEnnis, brought this suit against Ered B. Chambers, Indemnity Insurance Company of North America, hereinafter referred to as the Indemnity Company, and the Board of Education of Houston Independent School District of Houston, Harris County,-Tex., to recover from Fred B-. Chambers and the Indemnity Company the sum of $28,142.45, alleged to be the sum due to laborers for work performed on the erection of said school building, which was transferred to the plaintiffs by the several- laborers and Fred B. Chambers, and which said sum was by plaintiffs paid to said laborers and the said Chambers. They also sued for $2,814.25 as attorney’s fees.

'The plaintiffs substantially alleged the facts shown in our preliminary statement. They also alleged that the school board had on hand a part of the money agreed to be paid to Chambers under the building contract in the sum of $5,000, which should be paid to them.

Fred B. Chambers and the school board answered by general denials.

The Indemnity Company answered by a general denial and by specially alleging that the laborers furnishing the labor on the building, when they received the sum due them for their labor and signed the pay rolls (to which the transfer provision was attached),“did not know that the money being paid to them was being furnished by plaintiffs but thought and understood it was money being paid to them by the defendant Chambers, and not by plaintiffs or by anyone else, and did not know that said assignments were attached to said pay rolls, and in signing said pay rolls intended thereby merely to acknowledge receipt from the defendant Chambers of the amounts being paid to them and did not intend thereby to assign their said claims for wages due them to plaintiffs.”

It also alleged that the amounts sued for by plaintiffs had been fully paid to appellants by the school board.

The statement of the answer of the Indemnity Company, as above stated, is sufficient for a comprehensive understanding of its contentions made on this appeal relative to the plaintiffs’ suit. It, however, filed a cross-action against Fred B. Chambers, and alleged that Chambers failed to perform his contract and by reason of such failure it, as his surety, was compelled to take over the» job and complete the construction of the-school building, and that in so doing it necessarily incurred expenses in the sum of $9,868.18 over and above any sum it received from the school board, which said sum it paid with its own funds; that no part of such sum had been repaid to it. It further alleged that Fred B. Chambers, by a contract of date June 6, 1924, “granted a lien to it upon all tools, plant, equipment, and material of every nature” that he (Chambers) had upon the work or upon the site of the school building to secure the payment of all sums that might become due by Chambers to cross-plaintiff under and by virtue of said contract with the school board, and the bond executed by it as surety for Chambers, and that by virtue thereof it has a lien on all of said tools, plant, equipment, and materials to secure the payment of the- above i mentioned sum of $9,868.18 and any judgment that it might obtain against Chambers on account of the claims asserted by the plaintiffs against cross-plaintiff. It alleged that said tools, plant, etc., upon which it has its lien, is in possession of Chambers, and that it is not informed of what they consist, and for that reason it is unable to allege more specifically of what they consist. Cross-plaintiff prayed for judgment against Fred B. Chambers for the said sum of $9,868.18- with 6 per cent, interest per annum from the dates upon which the several sums comprising the sum of $9,868.18 were paid by it, -and that it have judgment against Chambers for any amount that plaintiffs may recover against it. It also prayed for a foreclosure of its alleged lien against Chambers.

The case was tried before the court without a jury, and judgment was rendered for the plaintiffs against Fred B. Chambers for the sum of $37,136.92, and for them against Chambers and the Indemnity Company for the sum of $790.78; such sum being the amount of wages shown on the pay rolls transferred to have been paid to W. M. Treloar; it being admitted that Treloar knowingly signed said transfer. Judgment was also rendered in favor of the Indemnity Company against Fred B. Chambers for two sums, one for $790.78, and the other for $13,097.32. Judgment was rendered denying any recovery against the school board.

W. L. Macatee & Sons alone have appealed.

No complaint being made by any one of the judgments rendered against Chambers in favor of the Indemnity Company, nor the one for the school board, such judgments are in all things affirmed.

Appellants, Macatee & Sons, insist that the undisputed evidence shows that the pay rolls, with the transfer heretofore mentioned firmly attached thereto, constitute a valid transfer of the wages shown to be due the laborers who signed such transfer to plaintiffs, including W. M. Treloar, which wages amounted to the sum of $22,142.45, including the amount of $790.78 due to Treloar for which judgment was rendered for plaintiffs, and therefore the court erred in not rendering judgment for them against the Indemnity Company for the full amount of the sum transferred to them by the laborers who signed such transfer, to wit, the sum of $22,804.60, instead of $790.78, together with interest thereon from the 5th day of July, 1927, up to July 13, 1932, af 6 per cent, per annum, and for 10 per cent, on the sum due as attorney’s fees, provided for in the aforementioned bond.

The only controversies as between Macatee & Sons and the Indemnity Company, as we see them, are these: Macatee & Sons contend that the pay rolls for the nineteen weeks, beginning on the 9th day of July, 1926, and ending on the 14th day of November of the same year, to which the transfer was attached, which were signed weekly by the wage-earners, constitute valid assignments of the wages of the signers to Macatee & Sons, and that by virtue of such transfers and the bond executed by Chambers, as principal, and the Indemnity Company, as surety, they are entitled to a recovery of the sums so transferred against the Indemnity Company, and that by virtue of the provisions of said bond they are also entitled to 10 per cent, on the sum recovered as an attorney’s fee.

On the other hand, the Indemnity Company contends: (1) That Macatee & Sons were not entitled to a recovery of any sum from the Indemnity Company, as it was not shown by the evidence that the laborers, other than Treloar, knew that Macatee & Sons were furnishing the money to Chambers, or that the alleged assignments were attached to the pay rolls, their claims for wages were not assigned to Macatee & Sons, and therefore the surety company was not liable to them for such wages, though, as a matter of fact, such wages were paid with money furnished by Macatee & Sons; and (2) that Macatee & Sons were entitled to no attorney’s fees by reason of expenses incurred.in this suit, as against the surety company, because the provision in the bond for the payment of expenses incurred in collecting such wages was an agreement to pay any expenses incurred by the laborers in enforcing the bond, and not an agreement to pay any expenses incurred by assignees of the laborers.

We think both of appellants’ contentions should be sustained. There is no evidence showing that the laborers were induced to sign the pay rolls by any false or fraudulent representation or concealment. The undisputed evidence shows that the instruments signed by the laborers consisted of ordinary pay rolls with the transfer papers attached to the front thereof. These instruments, nineteen in number, were presented to the laborers in plain view and were signed by them, one each week for nineteen weeks. In such circumstances, it is unthinkable that they still thought that they were signing only ordinary pay rolls as receipts. There were many of the wage signers, and not one of them testified that he did not know that the assignment or transfer was attached to the several pay rolls, nor did any one of them testify that he did not know what he was signing or that he thought he was signing ordinary pay rolls. The surety company was defending on the theory that the wages were not transferred by the signed instruments, because the wage-earners did not read the instruments signed by them, one each at the end of each week for nineteen weeks, and that they did not know its contents. Such being a fact, if such things were true, they were a defense only to the plaintiffs’ suit upon the assignments or transfers, and the burden was on the defendant to prove the existence of the facts relied on by it as a defense. In the absence of proof that one was induced to sign an instrument by false or fraudulent representations or concealment, the legal presumption is that he knew what he was signing, and in such case he cannot be heard to say he did not read the instrument, nor have it read or explained to him before signing it. 10 Texas Jurisprudence, p. 98; 13 Corpus Juris, at page 370, § 251; 13 Corpus Juris, 372; 6 R. C. L. p. 624, § 43; Patterson v. Yellow Cab Mfg. Co. (Tex. Civ. App.) 298 S. W. 918, 920; National Union Fire Ins. Co. v. Peck (Tex. Civ. App.) 296 S. W. 338; Keystone Pipe & Supply Co. v. Kleeden (Tex. Civ. App.) 299 S. W. 671, 673; Kansas City Packing Box Co. v. Spies (Tex. Civ. App.) 109 S. W. 432, 434; Clack v. Wood, 14 Tex. Civ. App. 400, 37 S. W. 188; Moerlein v. Scottish Mortg. & Inv. Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948; National Equitable Society v. Carpenter (Tex. Civ. App.) 184 S. W. 585. The holding in many other cases cited by appellants is to the same effect as those above cited.

In 13 Corpus Juris, p. 372, it is said: “A party’s mere ignorance occasioned by his limited intelligence and understanding of the language and of the contents of the contract which he voluntarily executes, is not, in the absence of fraud, a ground for avoiding it, although it is different from what he supposed; so where a parson cannot read the language in which a contract is written, it is ordinarily as much his duty to procure some person to read and explain it to him before he signs it .as it would- be to read it before he signed it if he were able so to do, and his failure to obtain a reading and an explanation of it is •such gross negligence as will estop him from avoiding it on the ground that he' was ignorant of its contents.”

In 10 Texas Jurisprudence, p. 98, it is said: “A party who negligently fails to read a contract which he signs may not avoid its binding effect by the plea that he was ignorant of or mistaken as to its contents; he must show something on the part of the opposite party Whereby he was prevented from reading it, or at least excused for his failure to do so.”

In Keystone Pipe & Supply Co. v. Kleeden, supra, the court quoted with approval from 13 Corpus Juris, § 248, the following: “The general rule of law is that a person is bound by an agreement to which he has assented wheré this assent is uninfluenced by fraud, violence, Undue influence or the like, and he will not be permitted to say that he did not intend to agree to its term®.”

It also quotes with approval the above quotations from 13 Corpus Juris, p. 370, § 240, and it also quotes with approval from 6 R. C. L. p. 624, § 43, the following: “It is not alleged that plaintiff’s representative, who executed the contract for plaintiff company, made any false representations as to the contents of the writing, nor that Kleeden, who represented the defendants, was illiterate, nor that there was any confidential relation existing between the parties who actually executed it.”

In Patterson v. Yellow Cab Mfg. 'Co., supra, it is said: “In the absence of fraud, misrepresentation, or concealment, the rule is-well established that one who can read and Who signs a contract without reading it, and under circumstances which do not preclude an exercise of due diligence upon his part to ascertain the contents of the contract, will not be heard afterward to say that he did not read it and did not understand its provisions. As was said by the Supreme Court of the United States in Upton v. Tribilcock, 91 U. S. 45, 23 L. Ed. 203:

“ ‘It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, nor did not know'what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the-words of 'his contract ; and, if he will not read what he signs, he alone is responsible for his omission.’ ”

In Kansas City Packing Box Co. v. Spies, supra, it is said: “It is a well-recognized and applied principle o-f law that, if a'person signs Or accepts a written contract with full opportunity of informing himself as to its contents, he cannot avoid liability on the ground that he was mistaken as to its contents, in the absence of fraud or misrepresentations.” .

In Moerlein v. Scottish Mortgage & Inv. Co., 9 Tex. Civ. App. 415, 29 S. W. 162, 948, it is said: “Appellants contend that, inasmuch as Mrs. Moerlein did not know the contents of -the deed of trust disclaiming homestead in the property, she would not be estopped. * * * If Mrs. Moerlein did not read the statements in the deed of trust, it was her fault. No one prevented her from reading them. Brown Bros, did not prevent her, and they had the same effect in deceiving them, and inducing them to loan the money, as if she had read and understood them. She cannot now be heard to say she did not know what she was doing. She was culpably negligent in not informing herself of the contents of the instrument she was signing.”

Other cases cited sustain the contentions of appellant.

That Macatee & Sons f-urnished the money in the payment of the pay rolls in question, and that the laborers signed the transfer in question, is undisputed. That there were no false or fraudulent representations or concealment made to or practiced upon any one of said laborers to induce them to sign the transfer must be conceded. We, therefore, conclude from the facts shown, and the law applicable thereto, that the instruments constitute valid transfers from the laborers to Macatee & Sons of their wages, resulting in Macatee & Sons becoming assignees of such wages who, under the terms of the bond executed by the Indemnity Company, are entitled to a recovery against the Indemnity Company for the sums shown by the pay rolls assigned to have been paid with money furnished by Macatee & Sons for such purpose, to wit, $22,-804.69, with 6 per cent, interest per annum thereon from the 11th day of November, 1926, to the entry of judgment in this cause by the lower court. Having reached such conclusion, the judgment awarding to .Macatee & Sons the sum only of $790.78 against' the Indemnity Company is reversed, and judgment is here rendered for Macatee & Sons against th’e Indemnity Insurance Company of North America for the principal sum of $22,804.60, together with .interest -at the rate of 6 per cent, per annum from the 11th day of November, 1926, to the date judgment was rendered in the trial court in this case.

Judgment is also here rendered in favor of Macatee & Sons against said company for 10 per cent, on the judgment rendered, principal and interest, as -attorney’s fee. '

It is also ordered that the total sum so awarded, principal, interest, and attorney’s fee, shall bear interest, from the judgment rendered in the trial court until the same is paid, at the rate of 6 per cent, per -annum.

Affirmed in part; and reversed and .rendered in part.


source: Caselaw Access Project

author: MARTIN, Justice.

license: Public Domain

text:
    RITTENBERRY v. CAPITOL HOTEL CO. et al.
    No. 4169.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1934.
    Rehearing Denied March 19, 1934.
    See, also, 41 S.W.(2d) 697.
    Monning & Akin, of Amarillo, for appellant.
    George S. McCarthy, of Amarillo, for ap-pellees.
   MARTIN, Justice.

In 1930 appellant filed suit and secured a judgment against appellees which, upon appeal to this court, was reversed. Appellant made application to the Supreme Court for a writ of error, which was dismissed for want of jurisdiction,' and motion for rehearing overruled on April 21, 1932. On February 23, 1933, appellant filed affidavit in proper form under article 1806, R. S., of his inability to pay costs or give security therefor and for an order from this court requiring the clerk to issue a mandate without payment of costs. The attorneys for -appellees thereupon, without filing any contest, requested time to investigate and take testimony, which was granted by this court. The evidence produced fully sustained appellant, and on March 22, 1933, this court ■ entered the following order: “This day came on to be heard the motion by appellee for issuance of mandate without payment of costs and the same having been duly considered by the Court, is hereby granted and it is accordingly ordered that the Clerk of this Court issue the mandate herein.”

1 In obedience to this order, the clerk of this court issued a mandate to the trial court on April 22, 1933. Motion was made by ap-pellees in the trial court to dismiss appellant’s cause of action because, under and by ■virtue of the terms of article 1867, R. S., more than one year had elapsed from the date of the final judgment until the issuance of such mandate. This motion was sustained, and appellant’s cause of action dismissed from the docket of the 108th district court of Potter county, from which appellant has appealed, and assigns as his only error the action of the court in so dismissing his cause.

Some of the testimony introduced in the court below on the hearing of this motion was that appellant’s attorneys, having discovered on April 19th that the mandate had not reached the court, visited the office of the clerk of the Court of Civil Appeals and inquired the reason for the delay, and was told that it was by virtue of the terms of article 1864, R. S., which gives'thirty days after the decision of a court for the issuance of .a mandate. Other material facts will appear in the opinion.

The fo.ur articles of. R. S. 1925 which it is believed control the questions presented are:

“Art. 1864. If no writ of error be sued out, or motion for rehearing be filed, within thirty days after the decision of the court has been entered in a Court of Civil Appeals, the clerk of " the court shall, upon application of either party and the payment of all costs, issue a mandate upon said judgment."
“Art. 1865. On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall not issue and deliver the mandate of the court, nor certify the proceedings to the lower court, until all costs accruing in the case in such appellate court have been paid, subject, however, to the provisions of the succeeding article.
“Art. 1866. If the party against whom the costs are adjudged shall make affidavit of his inability to pay the same or give security therefor, he may apply to the Court of Civil Appeals in which the case is pending for an order to require the clerk to issue the mandate or to certify the proceedings, as the case may be; which motion shall be granted by said court, unless the clerk or a party to the record shall controvert the truth of such affidavit and satisfy the court that such motion should not be granted.
“Art. 1867. In cases which have been reversed and remanded by a Court of Civil Appeals, if no mandate shall have been taken out and filed in the court where the cause originated within one year after the motion for a rehearing was overruled or final judgment rendered, then upon the filing in the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending that no mandate has been taken out, the case shall be dismissed from the docket.”

In this case a final judgment'was entered on April 21, 1932, which is the date of the order of the Supreme Court overruling a motion for rehearing, Dignowity et al. v. Court of Civil Appeals for Fourth Judicial Disk, 110 Tex. 613, 210 S. W. 505, 223 S. W. 165, and this though such order was one dismissing for want of jurisdiction, Texas Co. v. Chas. Clark & Co., 112 Tex. 74, 244 S. W. 995. It is claimed that,' since the one year mentioned in article 1867 had elapsed before the issuance of the mandate herein, the trial court correctly dismissed appellant’s suit, and the case of Davy Burnt Clay Ballast Co. v. St. Louis S. W. Ry. Co. (Tex. Civ. App.) 32 S.W.(2d) 209, is cited to sustain such action.

We are not able to agree to the correctness of this contention. The authority for the issuance of a mandate under’ articles 1864 and 1865, supra, rests upon entirely different grounds from that of article 1S66. In the first two of these the condition precedent is the application for a mandate and the payment of costs; in the last it is the affidavit of inability to pay costs or give security therefor, addressed to the court whose duty it is to judicially determine the applicant’s rights and refuse or grant his request. The one has to do only with acts of a litigant and a ministerial act of the clerk; the other with a judgment of the court itself. Under one of, these the delay is that of the litigant; under the other this may not be so at all. The one is controllable by a party to the suit; the other not necessarily so. The act of the clerk in the one instance is in response to the requests and acts of a private individual, but in the other he' acts under the orders of, and as an arm of, the court. Article 1867, supra, requires the presentation of a certificate from the clerk “where the cause was pending that no mandate has been taken out,” etc., in support of a motion to dismiss in- the trial court. Here a certificate was presented reciting substantially all the facts above, and concluding: “That in accordance with the provisions of article 1804, R. S., no mandate was issued from said Court of Civil Appeals to the trial court in said cause, until April 22, 1933.” This certificate in connection with evidence produced on the trial shows, we think, conclusively that the delay in issuing the mandate was not traceable to any act of appellant, but instead was the fault of this court, if any there was; that any error was the error of this court and its officers; that the entire situation was beyond the control of appellant; and that what followed the application for the issuance of a mandate was done by and in obedience to the orders of this court Instead of presenting a certificate as required that no mandate had been issued, that presented amounted to one that a mandate had been issued as a result of a judgment of this court, and under its. direction and the action of the trial court amounted therefore in effect to an order reviewing and setting aside such judgment and order of issuance. Whether right or wrong, error or otherwise, this court’s judgments are not reviewable by a trial court Moreover, we have not and could not be granted the authority to take from any litigant his property by arbitrarily delaying a disposition of litigation until limitation has deprived him of all right to assert a claim to it. To hold that appellant has lost his claim to litigate his property rights in the present controversy, not through any fault of his, but because a clerk acting presumably under the court’s orders has delayed the issuance of a mandate beyond the time fixed by statute, is to arm this court with the power of a despot over the property rights of citizens. The conclusion we reach is supported by the disposition made and the reasoning used in the Digno-wity Cases, gee Dignowity et al. v. Court of Civil Appeals for Fourth Judicial Dist., 110 Tex. 613, 210 S. W. 505, 223 S. W. 165. The case relied on by appellees above mentioned arose under-the first of the articles quoted, and is distinguishable in its .facts from, the instant case.

Many contentions are advanced- for a reversal by appellant in his brief, but the above furnish, wé think, sound and compelling reasons for such action, and other propositions will not be discussed.

The judgment of the trial court will be reversed and appellant’s cause of action ordered reinstated on the trial docket of the lOSth district court of Potter county.


author: SMITH, Justice.

text:
    YEAGER v. DALLAS COFFIN CO.
    No. 9256.
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1934.
    Rehearing Denied March 21, 1934.
    Van Haile McFarland, of Eagle Pass, for appellant.
    David E. Hume, of Eagle Pass, for appel-lee.
   SMITH, Justice.

This is the third appeal in this cause. Dallas Coffin Co. v. Yeager (Tex. Civ. App.) 19 S.W.(2d) 156; Yeager v. Dallas Coffin Co. (Tex. Civ. App.) 46 S.W.(2d) 1016. The first appeal was from a judgment denying recovery to the Coffin Company against Yeager for the value of a stock of goods alleged to have been acquired by Yeager in disregard of the Bulk Sales Law (art. 4001 et seq. R. S. 1925); the second appeal was from a judgment in favor of the Coffin Company; and this appeal is from a like judgment. In addition to the three trials resulting in appeals, the case seems to have been twice, tried without ap-pealable results. The cause, then, has been tried .five times, and .thrice appealed. The Coffin- Company filed no briefs in this appeal in answer to Yeager’s vigorous attacks upon the..judgment now before this court for review.

• As the cáse' is fully stated in the former opinions, a restatement of the nature of, the suit will not be made here, except such as becomes necessary to the determination of the specific questions now raised. The appeal is from a judgment rendered upon a. directed verdict, and is presented through two propositions of law.

It is provided in the statutes under consideration, that: “Every mortgage, deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.” Article 4000. And that: “The sale or transfer in bulk of any part or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conducting of said business otherwise than in the ordinary course of trade, and in the regular prosecution of the business of the seller or transferor, shall be void as against the creditors of the seller or transferor,” unless the purchaser shall give notice to the creditors of the seller in the manner therein prescribed. Article 4001.

This provision of the statute has been held to apply only “to merchandise which constitutes. the merchant’s current stock in trade, which is exhibited for sale indiscriminately in the usual course of trade.” Yeager v. Dallas Coffin Co. (Tex. Civ. App.) 46 S.W.(2d) 1016, 1017, and authorities there cited.

So has it been held, and we think properly, that as the Bulk Sales Law is in derogation of the common law, and of the right to alienate property without restriction, it should be strictly construed, and that those seeking to recover thereunder must bring themselves clearly within its provisions in order to invoke its protection and benefits. Axtell Co. v. Word (Tex. Cir. App.) 29 S.W.(2d) 421.

Under that doctrine appellant propounds his first proposition, that appellee was not entitled to recover 'here because it failed to show upon the trial “that any of the goods purchased by appellant from” the transferor were offered by the latter to the public for sale, and that by this omission appellee failed to bring its ease within the statute. And under this proposition appellant asserts that appellee adduced and offered no testimony showing any fact from which the court or jury could find that the merchandise in question was ever offered by the transferor for sale to the public, as provided by the statute.

This assertion of appellant was not contested here by appellee upon submission of the cause, but in its motion for rehearing appellee vigorously challenges it. To this end appellee cites certain evidence in the record now before this court, and invokes other evidence claimed to have been improperly omitted from the statement of facts, as well as findings of fact made by this court in a former appeal. We have held that the evidence presented upon this appeal failed to raise the issue of whether the stock of goods was shown to be of the character contemplated in the Bulk Sales Law, which must be strictly construed by the courts, and strictly pursued by parties invoking its projection.

This court cannot, as- a matter of course, consider bits of evidence which were inadvertently or otherwise omitted from the statement of facts.

Nor can this court resort to its findings of fact upon a former appeal for the purpose of determining this appeal, for no presumption prevails that the evidence at the trial now under consideration is the same as that presented in a former appeal. 3 Tex. Jur. ,§§ 942, 943.

By this process we are relegated to the showing made in appellant’s unanswered brief, that there was no evidence to bring the case within the contemplation of the Bulk Sales Law. Nor does the evidence quoted in appellee’s motion for rehearing satisfactorily refute appellant’s contention of no evidence. Mere conclusions remotely infer-able from isolated bits of testimony, such as appellee brings forward, do not meet the salutary rule requiring satisfactory evidence that a party has violated a statute so harsh in its restriction of the free right of barter and sale inherent in the citizen.

The result is that appellee failed to bring its case within the requirement that in order to recover under the Bulk Sales Law the creditor must show that the merchandise sought to. be subjected to the payment of the debt sued on constituted the debtor’s “current stock in trade, which is exhibited for sale indiscriminately in the usual course of trade, and which may not be legally mortgaged so as to impair the title of purchasers in this usual course of trade.” Yeager v. Dallas Coffin Co. (Tex. Civ. App.) 46 S.W.(2d) 1016, 1017; Axtell v. Word, supra. This being true, appellee showed no right of recovery, and judgment should have been rendered for appellant, upon his timely motion therefor. Accordingly, the judgment must be reversed, and in view of the history of the litigation, it is deemed proper to here render judgment for appellant. It is so ordered.

This opinion will be substituted for the original, now withdrawn.


author: G’QUINN, Justice.

text:
    BOWLES v. BOWLES.
    No. 2542.
    Court of Civil Appeals of Texas. Beaumont.
    March 2, 1934.
    Leland Cox, of Houston, for appellant.
    J. B. Johnson, of Beaumont, for appellee.
   G’QUINN, Justice.

This is a divorce case. J. H. Bowles sued Ida E: Bowles in the Fifty-Eighth district court of Jefferson county, for divorce. Defendant appellant answered by general demurrer and general denial.

The case was tried to a jury upon special issues, all of which the jury answered in ap-pellee’s favor, and upon which answers judgment was rendered for appellee, granting him a divorce.

Motion for a new trial was filed by appellant, which was overruled, from which order she has appealed.

The first and only assignment of error assents that the judgment is a default judg-. ment, taken in the absence of appellant and her counsel, asserting that said counsel had an agreement with? counsel for appellee that the ease would not be thus tried, but that the case would be set for a time certain, and appellant and her counsel notified so they could be present, and that such notice was given of the day set for trial, but given on the day set for trial when it was impossible for appellant or her counsel to be present for in that they each resided in the city of Houston, Harris county, and the case was to be tried at Beaumont in Jefferson county, and the notice did not give them time to reach Beaumont for the trial.

Judgment for divorce cannot be rendered by default, but only upon .full and satisfactory proof. Article 4632, R. S. 1925. It appears thkt the case was filed on March 23, 1933. On that same day, March 23, 1933, defendant appellant filed her answer. The case was set for trial on May 22, 1933, and notice given to counsel for appellant of the setting. When the ease was called, at the request of appellant the case was postponed and reset for May 29, 1933. When it was-then called, at request of appellant, the case was again postponed ■ and reset for June 5, 1933, and counsel for appellant notified that no further postponements would be agreed to, but that a trial would be urged. When the case was called on June 5, 1933, neither the defendant nor her counsel was present. Plaintiff appellee announced ready at about 9:30 a. m., but with consent of the court trial was passed until 2 p. m. of that day. Counsel for appellee wired counsel for appellant at Houston that the ease would be called-for trial at 2 p. m., and not postponed. This telegram reached counsel for appellant at 10:30 a. m. When the case was called at 2 p. m. neither appellant nor her counsel was present, and the case was tried to a jury-upon special issues, which were answered favorable to appellee, and judgment for divorce accordingly entered.

In appellant’s motion for a new trial it is alleged that counsel for appellee agreed with counsel for appellant to secure a setting of the case for some day during the week of June 5th, and would give counsel for appellant ample notice of the date of trial so that counsel could be pre'sent. As; evidence’, of this agreement, the following letter is included in the motion:

“June 3, 1933
“Bowles vs Bowles
“Mr. Leland Cox, Houston, Texas
“Dear Sir: This is to advise you that I will answer the docket Monday and will give you notice as to just about when the case will- be reached just as soon as it can be determined.
“I have also submitted your proposition to Mr. Bowles but he refuses to take any further steps about it, and so it looks like we will liave to go to trial and dispose of the case one way or the other,
“Very truly yours,
“James B. Johnson.”

The motion states that, when the telegram above mentioned was received, he communicated with his client and' she said she was sick and unable to come to his office, and that it was impossible for him to go to the 'home of his client and get her and drive to Beaumont in time for the trial at 2 p.m.; that it was not through any fault of his or of the defendant that they were not present at court. The motion was not sworn to.

The granting of the motion for a new trial was within the sound discretion of the court, and, unless abuse of this discretion is shown, his action will not be revised. We do not think any abuse is shown. The letter above set out put counsel for appellant upon notice that the case would be called on Monday June 5th, and that plaintiff would not agree to further postponement, and that the case would have to be tried. Counsel for appellant, by keeping in touch with his client prior to June 5th, if she were in fact sick and unable to attend court, 'could have filed motion for a continuance supported by proof of her illness, and had the case continued. He did not seem to know of her condition, and in the motion-'for new trial does not allege that in fact she was sick, merely alleging “th!at when I did communicate with Ida E. Bowlés; defendant, later she advised me that she’ was ill and unable to come to my office.”

The judgment is affirmed.


author: SELLERS, Justice.

text:
    TEXAS MUT. LIFE INS. ASS’N v. LASTER.
    No. 4434.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1934.
    Bartlett, I-Iarvey & Bartlett, of Linden, for appellant.
    Carney & Carney, of Atlanta, for appellee.
   SELLERS, Justice.

This is a suit by Mrs. Era S. Laster, as plaintiff, against the Texas Mutual Life Insurance Association, defendant, in which the plaintiff seeks to recover upon a certain policy of insurance issued by the defendant upon the life of Mrs. Vonnie Betts for the sum of $5,000, Mrs. Era S. Laster being the daughter of the insured and the beneficiary named in the policy. The case was tried before a jury and resulted in a verdict and judgment for the plaintiff. The defendant has appealed to this court.

The assignments of error will not be considered for the reason that there is no valid judgment appearing in the record. The clerics caption to the transcript is as follows:

“The State of Texas, County of Cass.
“In the ílistrict Court 'of Cass , County, Texas, September Term, A. D. 1932.
“At a regular term of the District Court, begun and holden within and for the County of Cass, at Linden, Texas, on the 5th day of September, A. D. 13 J2, and which was adjourned on the 22nd day of October, A. D. 1932, the Honorable Walter G. Russell, Judge of the 7th Judicial District of Texas, present and presiding, when the following cause came on for trial to-wit: ■
“No. 10,172.
“Mrs. Era S. Laster, Plaintiff, v. Texas Mutual Life Insurance Association, Defendant.”

The judgment entered from which the appeal is taken was dated November 22, 1932, and the order overruling appellant’s motion for new trial was dated November 30, 1932.' In this state of the record it clearly appears that the judgment in this case was rendered by the court and the order overruling the motion for new trial which contains the notice of appeal essential to give this court jurisdiction was overruled and both the judgment and the order were entered in the minutes by the clerk after the adjournment of the term of court at which the case was tried, and for this reason the judgment and the order overruling the motion for new trial were a nullity. Sinclair Refining Co. et al. v. McElree (Tex. Civ. App.) 52 S.W.(2d) 679.

There is contained in the transcript this order:

“No. 10,172.
“Era S. Laster v. Texas Mutual Life Insurance Association.
“In the District Court of Cass County, Texas, September Term, A. D. 1982.
“On this the 20th day of October, A. D. 1932, prior to the time for the expiration of the September Term, 1932, of this Court haying arrived, and the Court being in the midst of the trial of this cause, in that a motion for judgment is pending and cannot be disposed of within the regular term, the Court deeming it expedient and necessary to extend the term of said Court until the conclusion of the said trial and the disposition of said cause, the said term is accordingly extended until the disposition of the motion for judgment pending in this cause.
“Geo. W. Johnson, Judge.”

It is quité evident from the record that the judge presiding on the trial of this ease was the Honorable Walter G. Russell, judge of the Seventh judicial district, and not the Honorable Geo. W. Johnson who was the regularly elected judge for the Fifth judicial district, who signed the above order. The power to extend the regular term of a district court in order to complete the trial of a particular case is contained in article 1923 of the Revised Civil Statutes, and provides:

“Whenever a district court shall be in the midst of the trial of a cause when the time for the expiration óf the term of said court arrives, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. The extension of such term shall be shown in the minutes of the court before they aré signed. If the term is extended as herein provided, no term of court in any other county shall fail because thereof, but the term of court therein may be opened and held as provided by law when the district judge fails to appear at the opening of a term of court.”

The Legislature in enacting this statute has used language very clear and definite in providing in whom the power is lodged to extend the term of the district court for the purpose of completing a pending trial. Such power is in “the judge presiding,” meaning the judge before whom the cause is tried. The judge presiding in this case was Hon. Walter G. Russell, judge of the Seventh judicial district, and not the regular judge of the Fifth judicial district who entered the order extending the time. As stated by Judge Lattimore of the Court of Criminal Appeals in construing this statute in the case of McKenzie v. State, 12 S.W.(2d) 578, 579:

“If the Legislature had intended that such extending order should be made by the regular judge of áueh court, they could easily have so stated, instead of saying, as they did, that such order should be made by ‘the judge presiding.’ ”

The extending order being a nullity for lack of power on the part of the judge entering it to grant the order, the regular term of the court expired on October 22, 1932, before the judgment appealed from was rendered and the judgment and order appealed from were rendered and entered at a time not authorized by law.

The judgment appealed from being a nullity, it becomes our duty to reverse the judgment and remand the cause,. 3 Texas Jur. § 65, p. 130, and it is so ordered.


author: HICKMAN, Chief Justice.

text:
    SOUTHLAND GREYHOUND LINES, Inc., v. FRAUSTO et al.
    No. 1240.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 23, 1934.
    Rehearing Denied March 23, 1934.

      Templeton, Brooks, Napier & Brown,- C. R. I-Cennon, and Harper Maefarlane, all of San Antonio, for appellant.
    P. H. Long, of San Antonio, for appellees.
   HICKMAN, Chief Justice.

The appeal is from a judgment in favor of Frances Longoria Frausto and husband, Pablo Frausto, against Southland Greyhound Lines, Inc., for damages for personal injuries sustained by Mrs. Frausto while she was a passenger traveling from Fort Worth to San Antonio on a bus owned and operated by appellant. When the bus reached a point a few miles south of Austin, a fire broke out in the motor. The fire was extinguished before it- reached the part of the bus where the passengers were, and appellee sustained her injuries while endeavoring to leave the bus by being jostled and knocked down by other excited passengers. The allegations of the petition with reference to the negligence of appellant were as follows:

“That heretofore, to-wit, on or about the 20th day of June, A. D. 1931, plaintiff Frances Longoria Frausto was a passenger on one of defendant’s buses enroute from Fort Worth, Texas, to San Antonio, Texas, and when said bus reached a point on the Austin Road, about seventy miles from the city of San Antonio in Bexar County, Texas, said bus through some fault of defendant and its employees caught on fire, and by reason of said fire it became necessary for plaintiff and the other passengers, for tbeir own safety, to leave said bus, and while plaintiff was endeavoring to leave said bus, she was pushed from said bus, knocked down, trampled upon and severely bruised and injured by said other passengers who, by reason of said fire in said bus had become greatly excited and were making frantic efforts to leave said bus, and plaintiff was knocked and thrown with great force from said bus to and upon said road, and by reason of the facts herein-before alleged, plaintiff was seriously, painfully and permanently injured, as hereinafter alleged; plaintiffs aver that said Frances Longoria Frausto had nothing whatever to do with the control, management or operation of said bus, but that said bus was in the entire. control and management of the defendant and its employees, and plaintiffs do not know and therefore cannot allege what caused said fire on said bus, but aver that in the ordinary course of things said fire would not have occurred, and said passengers would not have become excited and would not have injured plaintiff, if the defendant and its employees in charge of said bus had exercised proper care, which was not done, and plaintiffs cannot more specifically allege- the acts of negligence of defendant that caused said fire and caused said passengers to injure said plaintiff than they have done -in this petition, but plaintiffs aver that the injuries 'inflicted on plaintiff Frances Longoria Frausto were directly caused and contributed to by reason of said fire.”

The case was submitted to the jury upon special issues. Issue No. 1 was as follows: “On the occasion referred to in the petition, was the fire on the defendant’s bus due to negligence on the part of the defendant?” To this issue the jury answered “No.” Issue No. la was not answered. It submitted the question of whether such negligence was the proximate cause of the injuries, and the jury was instructed to answer same only in the event it answered issue No. 1 in the affirmative. Special' issue No. 2 was as follows: “Did the defendant fail to exercise proper care for the safety of Mrs. Frausto after the bus caught fire?” to which the jury answered “Yes.” By its answers to special issues 2a and 2b, such failure was found to be negligence proximately causing the injuries, and the judgment rests alone upon this ground of negligence. To guide the jury in its answers to issues 1 and 2, the court gave the following instruction:

“In connection with Questions (1) and (2), you are instructed that it was the duty of the defendant, as a common carrier of passengers for hire, to exercise for the safety of its passengers that high degree of care which a very prudent person, skilled in the business, would exercise under the same or. similar circumstances. And a failure on the part of defendant to exercise that degree of care for the safety of its passengers would be negligence.
“You are further instructed that without direct proof of negligence, negligence may be inferred by the jury from circumstances shown by the evidence, if the jury believe the circumstances in evidence warrant such inference. But such inference (if any) would be rebutted if you should believe from the evidence that the accident could not have been averted by the defendant by the utmost'. care and foresight compatible with carrying on its business; which rebutting evidence need not be of prepondering weight, but would be sufficient if of equal weight with contrary evidence.”

To this instruction, as applying to issue No. 2, appellant timely made objection on the ground that the doctrine of res ipsa loquitur does not apply to any negligent acts committed by it after the fire was discovered. There was no objection made to this instruction that same constituted a general charge given in a case submitted upon special .issues, and there is no contention that.the charge was not correct in so far as same was made applicable to issue No. 1. We therefore do not consider those questions.

Appellee. and her witnesses testified to specific acts claimed to constitute negligence on the part of the servants of appellant after the fire under the hood was discovered. These specific acts were: Failure to open the back door of the bus; failure to cut off the gasoline at the emergency valve; failure to bring the bus to a stop more quickly; and bringing same to a stop by the side of a ditch. As to these specific acts of negligence, the jury was instructed “ * * ' * that without direct proof of negligence, negligence may be inferred by the jury from circumstances shown by the evidence. * * * ”

It is universally recognized that the burden of proving negligence is on the party alleging it, and that negligence cannot be inferred from the mere fact of injury. In some cases the thing itself affords evidence of negligence, but by this is not meant that the injuries afford such evidence. This dqc-trine, known as res ipsa loquitur, is quite generally expressed in this language: “Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from' want of care.” McCray v. Galveston, H. & S. A. Ry. Co., 89 Tex. 168, 34 S. W. 95; St. Louis, S. F. & T. R. Co. v. Cason, 59 Tex. Civ. App. 323, 129 S. W. 394; 45 C. J. 1193.

The specific acts, enumerated above, which form the support of the answer of the jury to special issue No. 2, if it has any support, were open to the observation of appellee and her witnesses, and were certainly as well known to them as to the appellant. They were distinct acts of negligence, wliicli siiould have been alleged and proved, unaided by any presumption or inference, and the instruction to the jury that it might infer negligence from the circumstances was clearly prejudicial. Missouri Pacific Ry. Co. v. Hennessey, 75 Tex. 155, 12 S. W. 608; Gulf C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538. The assignments presenting this question are sustained.

Appellee points out that the relationship of carrier and passenger existed between the parties at the time the injuries were sustained. That is doubtless correct, but the doctrine of res ipsa loquitur does not originate from the relationship of the parties, but from the nature of the act. McCray v. G., H. & S. A. Ry. Co., supra. The rule has probably been more frequently applied in cases where that relationship exists than in any other, but the very nature of the rule itself prevents its application generally to all cases of negligence on the part of the earner.

By reference to the pleadings above copied, it is disclosed that no specific acts of negligence were pleaded, and it is presented that we should reverse the judgment of the trial court and here render judgment in appellant’s favor, since it was found by the jury that the fire did not originate through its negligence. We shall not discuss this question at length. The case was pleaded and tried upon the theory that negligence of appellant would be inferred under the circumstances, because of the relationship existing between the parties, and we would not render judgment in a case tried upon the wrong theory where it does not clearly appear that no liability exists if tried upon the correct theory. The pleading was bad, but the trial court overruled all special exceptions thereto, and held it sufficient to present the issues submitted. A judgment will not generally be ' rendered in an appellate court against appellee on the insufficiency of his pleadings when the trial court has held them sufficient and he has not been called upon to amend.

The questions presented challenging the ruling of the court upon appellant’s plea in abatement, and upon the admission of certain objectionable testimony, will probably not arise upon another trial, and need not be here discussed.

On the issue of unavoidable accident, the burden of proof is on the plaintiff, and, upon another trial the issue submitting that question should be so framed as properly to place that burden. Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Com. App.) 7 S.W.(2d) 521; Forth Worth & R. G. Ry. v. Sageser (Tex. Civ. App.) 18 S.W.(2d) 246; Magnolia Coca Cola Bottling Co. v. Jordan (Tex. Civ. App.) 47 S.W.(2d) 901.

It is assigned that the court erred in overruling appellant’s special exception to appellee’s petition complaining of the joinder of Mrs. Frausto as a party plaintiff. The petition began in this language: “Now comes Frances Longoria Frausto, joined by her husband, Pablo Frausto, hereinafter styled plaintiffs.” The action was for damages for personal injuries sustained by Mrs. Frausto. This court considered this question in the case of Southern Ice & Utilities Co. v. Richardson, 60 S.W.(2d) 308. We there held that the case of Texas C. Ry. v. Burnett, 61 Tex. 638, reversing the judgment of the trial court on this ground, had been practically overruled as an authority in this state, and refused to reverse the case upon the sole ground that the wife was improperly joined in the suit. A writ of error has been granted in that case, and the question is now pending in the Supreme Court. We are reversing this case on other grounds, and are not called upon to determine whether we would reverse it on this ground alone. We do hold, however, that the better practice would' be to sustain such exceptions.

For the reasons assigned, the judgment of the trial court will be reversed, and the cause remanded.


author: DESLIE, Justice.

text:
    TORRES et al. v. DISHMAN.
    No. 1242.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 23, 1934.
    Rehearing Denied March 23, 1934.
    R. I-I. Mercer, of San Antonio, for appellants.
    ' Touchstone, Wight, Gormley & Price and R.obt. B.. Holland, all of Dallas, for appel-lee.
   DESLIE, Justice.

The plaintiff, Joe Torres, was injured in the course of his employment while working for a subcontractor, R. B. Heath, who carried workmen’s compensation with the Maryland Casualty Company. He alleged that he was negligently injured by an employee of the defendant Q. C. Dishman, in ■that the latter’s employee, in the course of his employment, negligently threw a board or timber from the top of a building, thereby hitting and seriously injuring the plaintiff. His claim for compensation was established and the Maryland Casualty Company .paid him $1,600 and his medical and doctors’ bills, amounting to $365.70.

•This is the usual suit by the injured party and the carrier of.the insurance against the alleged negligent third person claimed to he responsible for the injuries. Maryland Casualty Company intervened and sought reimbursement for the compensation 'paid. The trial resulted in a judgment in favor of the defendant, and the plaintiff and intervener appeal.

There are various propositions, and the facts relating to each and necessary to an understanding of our ruling on the same will be stated' in connection with the consideration thereof.

The defendant C. C. Dishman carried indemnity insurance with the Commercial Casualty Company. ' Torres and the Mary- ■■ land Casualty Company, intervener, filed this suit making both Dishman and the Com- ' mereial ■ Casualty Company defendants. Each defendant filed a plea in abatement setting up misjoinder of parties and causes of action. The trial court committed no error ’in-.passing on the pleas in abatement at a subsequent term of the court. The amended transcript discloses that these pleas in abatement were-passed at the preceding term by agreement and without prejudice to either party. The first proposition is overruled.

The appellant shows no error in the ruling of the trial court in sustaining the pleas in abatement-of the defendants, Dish-man and the Commercial Casualty Company, to the first amended original plea of intervention of the Maryland Casualty Company, joining said insurer as a defendant with C. C. Dishman, the insured. The Commercial Casualty Company carried the defendant Dishman’s indemnity insurance and was made a party defendant along with Dishmah in the suit for reimbursement filed by the Maryland Casualty Company against said Dishman, alleged to be the negligent third party (under section 6a, art. 8307, R. S. 1925) responsible for the injury to the employee, Torres. As noted, the pleas were based on a misjoinder of parties and causes. Upon the testimony introduced, the court sustained the pleas.

The contract of insurance held by Dish-man with the Commercial Casualty Company was one of indemnity, personal to the assured, and contained what is known as the nonaction clause. The ruling of the court was correct. Cuellar v. Moore (Tex. Civ. App.) 55 S.W.(2d) 244; Lander v. Jordan (Tex. Civ. App.) 59 S.W.(2d) 959; I. & G. N. Wood & Coal Co. v. Schilling (Tex. Civ. App.) 59 S.W.(2d) 1110; Neeson v. Bluth (Tex. Civ. App.) 63 S.W.(2d) 1046, 1047; Cannon Ball Motor Freight Lines v. Grasso (Tex. Civ. App.) 59 S.W.(2d) 337; Ray v. Moxon (Tex. Civ. App.) 56 S.W.(2d) 469.

The stipulation as to the injured party’s-rights under Dishman’s policy in the event of the insolvency or bankruptcy of the assured was not invoked as a basis for joining the Commercial Casualty Company as a defendant. The facts of the ease also rendered that provision inapplicable.

The ruling of the trial court was warranted by the opinion in Texas Landscape Co. v. Longoria (Tex. Civ. App.) 30 S.W.(2d) 423, but, in the more recent case of Cuellar v. Moore, supra, the same court that rendered the opinion in the Longoria Case repudiate ed the same, correctly stating the law in the latter case which is applicable to .the. policy of insurance here involved.

Propositions 4, 5, 6, and 7 pertain to> argument on the part of the appellee’s counsel. We have carefully examined the record,., and are of the opinion that no error is shown in either instance. The argument challenged by propositions 4 and 5 was in substance to be found in plaintiff’s first amended original petition and also intervener’s third amended original -plea of intervention. The argument, to which proposition 6 related traverses the-saane grounds covered by the pleadings of both plaintiff and- intervener, wherein they allege what the Workmen’s Compensation Law (Rev. St. 1925, art. 8306 et seq.) provided and what the rights of the intervener under-the law were. The thought being advanced by the argument was to the effect that the amount paid the injured employee under the-Workmen’s Compensation Law was not affected one way or the other by negligence of employer, employee, or any one else. The-context of the whole argument complained of does not warrant any other construction, as may be gathered from an excerpt from the attorney’s speech in this same connection: “The law very wisely provides even when the employee was guilty of contributory negligence that nevertheless he can recover compensation and it is immaterial whether his employer or anyone working for his employer or anybody else was negligent in causing those injuries to him; so that in that case where they paid him $1600, * * ⅜ the only issue was whether or not he was working in the course of his employment for Mr, Heath, and whether he was injured, and if so, how much.”

Further, the defendant Dishman was not a party to the employee’s suit for compensation. The language objected to, taken in connection with that portion of the attorney’s speech where found, is not susceptible to the interpretation given it in this proposition.

Neither did the attorney tetl the jury how to answer the issue No. 9. He stated that he thought thp issue would be “the controlling issue.” He then stated that the court had “submitted some other issues to you which, of course, I think are just as important,” etc. On objection, these statements were withdrawn by the attorney; and the court instructed the jury not to consider them.

Also the court’s qualification to the bill shows the argument was provoked, in response to that of appellant’s attorney. There is no merit in the proposition.

The defendant Dishman was the gefa-eral contractor on the construction work, and R. B. Heath was a subcontractor doing concrete work in connection with the same. Joe Torres was an employee of the latter and was struck by a piece of lumber alleged to have been negligently thrown from above by Dishman’s employees in the course of their employment. Dishman’s employees were charged with negligence in various ways, and Torres was likewise charged with contributory negligence in different respects. Under the testimony, and in response to issues 18, 19, and 20, respectively, the jury found that plaintiff, Joe Torres, at the time and upon, the occasion in question failed to ascertain that lumber was being thrown. down from above before going to the place where he was-injured, that such action on his part was negligence, and that such negligence was a proximate cause of his injuries. Appellants’ contention in proposition 8 is that the court by issue 18 submitted “a charge on the weight of the evidence,” and that the same “assumed or suggested that Joe Torres should ascertain that lumber was being thrown down from above before going to the place 'where he was injured.”

Of course, the court was submitting the case on special issues, under article 2189, R. S. 1925, and the issue could not be considered a charge of the law on any phase of the case under article 2187, R. S. 1925. There is no merit in that phase of the complaint.

From a study of the record and certain undisputed facts, it appears that the only controverted point here involved was whether Torres failed to ascertain that' lumber was being thrown down from above before going to the place where he was injured. On this point, he testified that he was aware of the fact that workmen were operating above, and, apparently with this in mind, he further testified that he holloed “wait upstairs” when he stepped from the inside of the building where he was working to the outside to get a board at the time and place he was struck. He testified to having holloed “look out” before stepping out. His testimony generally shows his familiarity with the surrounding conditions and attending dangers at the time and place of his injuries. The defendant in its pleadings charged him with negligently going into a place of known danger; In this state of the record, issue 18 was riot subject to the objection made, and, taken in connec: tion with issues 19 and 20 and the jury’s am swer to each, respectively, the charge of contributory negligence on the part of Torres was established. .

By the ninth proposition,' the sole com tention is made that issue No. 8 as submitted to the jury was a “charge on the. weight’ of the evidence.” The issue is as follows: “Do you find from a preponderance of the evidence that Joe Torres at the time and’ on the occasion in question walked into a place of known, danger? ” ■ It was not a charge ori the weight of the evidence as explained in tlie discussion of the eighth proposition. The defendant alleged that said Torres negligent^ ly walked into a place of known danger. The issue was warranted by the pleadings, and the evidence supports the jury's affirmative answer. The question as framed in no respects assumed that Torres walked, into a place of known danger, although the evidence is quite convincing that he knowingly did so. This contention is overruled, and the finding of the jury to this and the two following issues that Torres, at the time of his injury, walked into a place of known danger, that such action was negligence on his part, and that such negligence was a proximate cause of the accident and injury, established a second ground of contributory negligence.

By the tenth proposition, it is asserted that the court erred in-the submission of issue No. 11 on the ground that “it was a charge' on the weight of the evidence.” The issue inquired of the jury whether “Joe Torres failed to warn tliose engaged in throwing lumber down of his • intention to go to the place where the accident occurred.” For the reasons before given, it was not a charge on the weight oí the evidence. It was merely an issue under article 21S9. In this respect also the defendant alleged that said Torres negligently walked “into a place of known danger without first warning those engaged in throwing lumber down from above of his intention to enter the place where the accident occurred.” The issue was responsive to the pleadings and the testimony. As hereinbefore noted, Torres’ testimony discloses that he was cognizant of the danger of being hit by lumber being thrown by the workmen above. I-Ie testified that he “warned them” of his presence and that he “hol-loed” to them to “watch out upstairs,” etc. The jury evidently disbelieved the .plaintiff’s testimony, and their finding that he failed to so warn them of his presence, that such failure was negligence, and that such negligence was a proximate cause of his accident, convicts the plaintiff of contributory negligence for a third time.

By. the eleventh proposition, the contention is made that the court erred “in giving question No. 14 of its main charge over the appellant’s objection that said charge was on the weight of the evidence.” This question presented' the only issue of primary negligence submitted to the jury. It is as follows: “Do you find from a preponderance of the evidence that the employees of the defendant Dishman warned Joe Torres to 'stay away from the place where he was injured? ”

The appellant pleaded that the appellee’s employees were negligent in failing to give a warning before throwing the lumber to the ground, and in this same connection the ap-pellee alleged that Torres was negligent in failing to heed the warning of the appellee O. 0. Dishman, his agents, servants, and employees; to stay away from the place in question, “ * * ⅜ and, further, that he had been warped not to go to the place where the accident occurred prior to the happening of the accident * * ⅝ that all workmen in and around the building had been warned not to go to the place where the accident occurred during the progress of the work.”

The issue was warranted by the pleadings, and, as hereinbefore explained, it was not a charge on the weight of the evidence. It was not a charge at all. The issue contains no assumption prejudicial to the appellant. The issue does not “assume that there was a duty upon the part of Joe Torres to do what the employees of Dishman told him,” but it is not perceived how he could have disregarded such warning, if it had been given, without convicting himself of contributory negligence. The jury answered the foregoing question in the affirmative, and, in response to the three issues following, the jury found that Torres failed to heed such warning, that such failure to heed was negligence which was a proximate cause of the accident and injuries.

Regarding this last finding as being in response to an issue submitting the alleged primary, negligence, it is conclusive of appellant’s right of recovery. Its right of recovery is more definitely precluded by the foregoing answers of the jury to the issues submitting contributory negligence.

There is no merit in the twelfth proposition to the effect that the court erred in refusing to allow the defendant Dishman to testify that it was customary for men working as' the plaintiff 'was, to use boards such as the one that the plaintiff was “reaching for” when he was injured. In Dishman’s testimony, it appears that, while he did not dispute Torres’ right to get boards about the building for the concrete work, nevertheless he did dispute his right to get such boards at the time and place they-were being thrown from above. The materiality of the custom contended for by appellant is not made to appear.

The thirteenth proposition complains of the admission of testimony relating to settlement and release of claim by Torres against Dishman without pleadings as a basis for sa-me. When Dishman, the alleged negligent third party, was on the stand, he was asked on cross-examination by his counsel if Torres had filed a suit against him for damages by reason of the alleged negligent injuries here involved, and he (Dishman) was permitted to answer this in the affirmative, and to further testify that Joe Torres had been settled with and a release taken. The release signed by Joe Torres was admitted in evidence.

Ordinarily, to avail one’s self of settlement and release, the same must be pleaded, but in the instant case it appears to have been sufficiently alleged by the appellants themselves. In the intervener’s third amended original plea of intervention (after claiming therein by way of subrogation under section 6a, art* 8307, R. S. 19-25, the sums it had paid the injured employee Torres), it alleged that: “After this suit was brought by Joe Torres in accordance with the agreement between Joe Torres-and the Maryland Casualty Company, and after the Maryland Casualty Company ■had intervened, and after defendant O. O. Dishman had filed his answer, the Commercial Casualty Company, acting for C. C. Dish-man and on his behalf, paid $250.00 to Joe Torres for injuries caused by the negligence of employee of said C. C. Dishman. * ⅜ “ In this connection this intervenor would show to the court that on or about the 7th day of June, 1930, it paid Joe Torres $1600 in accordance with a judgment entered in this court, and at the time the said Joe Torres and this intervenor agreed that suit would be filed against O. C. Dishman .by Joe Torres, and that the Maryland Casualty Company would intervene, and. that any recovery would go first to. the Maryland Casualty Company until it was fully reimbursed as provided in Art. 8307, R. S. 1925. And in accordance with this agreement suit was entered by the plaintiff Joe Torres on June 9, 1930, and the Maryland Casualty Company intervened on the 13th day of June, 1930, and asked that it have its judgment in the sum of $1965.70, for the amount it had paid out to Joe Torres. Thereafter, on the 12th day of September, 1931, while said suit was still pending, the above amount was paid, as aforesaid, to Joe Torres, thereby recognizing that Joe Torres was injwecl by the negligence of the servant, agent or employee of said 0. O. Dishman, and that said C. C. Dishman was bound and obligated to pay the Maryland Casualty Company $2985.70, in accordance with article 8307 R. S. 1925.” (Italics ours.) $1,000 attorney’s fees is included in the sum sought.

Evidently this matter of settlement was injected into the case by the pleadings of the parties who now complain of the same. The attention of the jury was first called to it when these pleadings were' read.

When the plaintiff, Joe Torres, was on the witness stand, the attorney for himself and intervener, alluding to the settlement of his claim with the defendant, asked him if he did not “receive * ⅜ ⅜ money besides the ¡money the Maryland Casualty Company paid. ⅜ * ⅜ ” To this he answered “Tes.” He was then asked how much, and he replied $250. Thfen follows a controversy between the attorneys as to the admissibility of testimony on the question of who paid him the money, and for whom the money was paid. The court made certain rulings, whereupon the attorney for the appellants stated: “I will withdraw those questions, that is, the questions that were objected to, your Honor, I can prove it by another witness.” Thereafter the plaintiff- called the defendant O. C. Dishman as a witness, and the attorney for the intervener elicited the following:

“Q. You yourself did not pay Joe Torres any money, did you? A. I settled with him, yes sir.
“Q. I say, you did not pay it yourself, personally? A. I caused it to be paid.
“Q. But personally it did not come out of your money? A. Well, no, I did not pay it personally.”

In view of the appellants’ pleadings and the fact that these matters were first brought into the case by appellants, we are of the opinion that there is no merit in the contention here made. Their purpose in bringing it into the ease appears pretty clearly from that portion of their pleading wherein it is stated that, in making the settlement with Torres and paying iiim the $250, the defendant Dishman “thereby recognized that Joe Torres was injured by the negligence of the servant, agent or employee of said C. C. Dish-man.” This is a statement of the natural effect such testimony was likely to have, and such effect was beneficial r.ather than harm* ful to the appellants. Whether material and admissible or not, it had a very definite bearing on the question of negligence which plaintiff and intervener had taken the burden to’ establish.

Further, the testimony challenged by this proposition was merely cumulative of the testimony previously given by the defendant Dishman in response to questions propounded to him by the intervener’s attorney on direct examination. If there be any error in the admission of the testimony, it is harmless.

By the fourteenth proposition it is contended that, “where the workmen’s compensation carrier, after settling a claim for workmen’s compensation by paying $1,600.00 and the doctors’ bills of the claimant, sues a negligent third party who injured the claimant, it’should be allowed to prove the amount of the doctor bill without proving that it came within the twenty-eight day period, as the Maryland Casualty Company tried to do in this case.”

If we are correct in the conclusions herein-before reached, especially those involving primary negligence of the defendant and contributory negligence of the plaintiff, it is unnecessary to pass on this question. It becomes immaterial. The other points are decisive the appeal.

For the reasons assigned, the judgment of the trial court is affirmed.


author: LEVY, Justice

text:
    DENNIS et al. v. McCASLAND.
    No. 4455.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 23, 1934.
    Rehearing Denied March 1, 1934.

      Rowell & Rowell, of Jefferson, for appellants.
    A. G. Schluter, of Jefferson, for appel-lee.
   LEVY, Justice

(after stating the case as above).

It is believed it may not properly be held that the facts and special circumstances show, as a matter of pure law, insufficient reason for overruling the bill of review and refusing to grant a new trial in the cause. Under express provision of the statute, applications for new trial in general must be made during the term of the court at which the judgment or decision was rendered. Article 2092, as amended by Acts 1930 (5th Called Sess.) c. 70, ,§ 1 (Vernon’s Ann. Civ. St. art. 2092), and article 2232, R. S. The exception, as provided by article 2236, is in eases only in which judgment has been rendered on service by publication. As provided, by bill of review, as termed, the aggrieved party can make application to the court within two years after such judgment was rendered to grant a now trial and set aside the judgment, although the time for the filing of the motion in general for new trial has passed. In nature of proceeding it amounts to no more than a motion for new trial permitted by the statute, to be filed and heard after the judgment of the court and within two years after the judgment was rendered. Wiseman v. Cottingham, 107 Tex. 68, 174 S. W. 281; Wolf v. Sahm (Tex. Civ. App.) 120 S. W. 1114, 1116; 25 Tex. Jur. § 170, p.567; 17 Tex. Jur. § 24, p. 26. This method is not by its terms made the exclusive method by which a new trial may be obtained on service of process by publication. The statute is not mandatory, rather than of discretion, clearly entitling the complainant to a new trial simply because the judgment is rested on process by publication. As worded, there is imposed the condition “of the defendant showing good cause” in his application for’the granting of a new trial. This means that the applicant must show and prove a meritorous defense, Strickland v. Baugh (Tex. Civ. App.) 169 S. W. 181; Hunsinger v. Boyd, 119 Tex. 182, 26 S.W.(2d) 905, and an excuse for failure to avail of the legal remedy of appeal, Home Ben. Ass’n of Henderson County v. Boswell (Tex. Civ. App.) 268 S. W. 979; Hiltbrand v. Hiltbrand (Cal. Sup.) 23 P.(2d) 277. An element of “good cause” is the want of timely actual notice of the pendency of or rendition of judgment in the suit. Dunlap v. Wright (Tex. Civ. App.) 280 S. W. 276. A bill of review, therefore, is not available when a motion for new trial is timely available as here. The trial court’s conclusion, based on the special facts, may not be set aside. The applicant had actual notice of the rendition of the judgment, read it, and employed counsel to represent her in the litigation. Erom May 17th, the day she read the judgment, to June 4th, when the term of the court ended and the final adjournment of the court, there was open to her as much as nearly eighteen days within which to file a formal motion for new trial and to appeal therefrom.

The judgment is affirmed.


author: JOHNSON, Chief Justice.

text:
    DANIEL et al. v. SHARPE.
    No. 4583.
    Court of Civil Appeals of Texas. Texarkana.
    March 20, 1934.
    Rehearing Denied March 29, 1934.

      S. P. Sadler, of Dallas, for appellants.
    Pat Beadle, of Clarksville, for appellee.
   JOHNSON, Chief Justice.

On April 17, 1932, the appellee, Mrs. H. H. Sharpe, a -feme sole, as plaintiff, filed this suit in the district court of Red River county against defendants, Ernest N. Daniel and P. M. Steinkamp, doing business under the firm name of Concord Oil Company, a co-partnership. Plaintiff alleged that she was a resident of Red River county, Tex.; that) E. N. Daniel resided in Dallas county, Tex. ; and that P. M. Steinkamp was a nonresident of the state of Texas, residing and having his domicile in Jackson county, state of Missouri. Plaintiff’s suit was for $534 for account of board and lodging of employees of defendants, and which she had furnished at the special request of the defendants, and for which it is alleged defendants contracted and agreed to pay plaintiff at the rate of $1 per day for the board and lodging furnished by plaintiff to each of defendants’ employees. That contract was made between plaintiff and E. N. Daniel acting for the partnership. The account was stated and sworn to as well as the petition. It appears that citation, together with certified copy of the petition, was issued and served on E. N. Daniel “as agent of the Concord Oil Company, a copartnership composed of E. N. Daniel and P. M. Steinkamp,” by delivering the same to E. N. Daniel in person on April 20, 1933. On May S, 1933, E. N. Daniel filed his plea of privilege to be sued in Dallas county. May 10, 1933, plaintiff filed her controverting affidavit, in which she set out the allegations in her petition in full, and relied on subdivision 3 of article 1995, R. S. 1925, to sustain venue over the person of E. N. Daniel, which subdivision 3 provides: “If one or all of several defendants reside without the State or if their residence is unknown, suit may be brought in the county in which the plaintiff resides.”

Hearing on the plea of privilege and controverting affidavit was set down for July 10, 1933, and due notice thereof served on E. N. Daniel. The order and judgment of the court rendered July 10, 1933, shows that, when the hearing on the plea of privilege and controverting affidavit came on to be heard, the plaintiff appeared and announced ready thereon, but the defendant E. N. Daniel failed to appear, and the court proceeded with the hearing, and, after .having heard the evidence, overruled the plea of privilege and rendered judgment in favor of plaintiff, Mrs. H. H. Sharpe, and against E. N. Daniel and the Concord Oil Company, a copartnership composed of E. N. Daniel and P. M. Stein-kamp, for the sum of $534 and costs.

Appeal has been duly prosecuted by E. N. Daniel and the Concord Oil Company.

Under his first assignment of error appellant E. N. Daniel contends that, prior to* the hearing on the plea of privilege and controverting affidavit, P. M. Steinkamp, the nonresident defendant, was dismissed from the suit, thereby eliminating the only ground on which jurisdiction over the person of E. N. Daniel could be maintained. A copy of the entries on the judge’s trial docket appears in the transcript filed in this court; at the top of which is an undated entry, “Discont’d and dismissed as to P. M. Steinkamp.” But it does not appear from the record that any such order or judgment was entered upon the judgment records approved by the court. The order overruling the plea of privilege and the final judgment as actually entered in the minutes approved by the court and from which this appeal is perfected do not recite any order of dismissal as to P. M. Steinkamp. When in conflict with the entries on the judge’s trial docket, the judgment as finally entered on the approved minutes controls; that is to say, an entry on the court’s trial docket cannot vary the legal effect of the judgment as- shown on the judgment record, Stark v. Hardy (Tex. Com. App.) 29 S.W.(2d) 967; Noblett v. Olive (Tex. Civ. App.) 259 S. W. 305, for the reason that such entries on the judge’s trial docket do not constitute a judgment or decree of the • court, Stark v. Miller, 63 Tex. 164; Williams v. Land (Tex. Civ. App.) 300 S. W. 990.

Appellant E. N. Daniel further contends that the evidence was insufficient to sustain the judgment of the court overruling his plea of privilege. As we understand the record presented to us, it appears that the issue on the plea of privilege was 'heard along with the evidence on the main case, and that the cause of action as pleaded, including the facts .with respect to the nonresident domicile of P. M. Steinkamp, was fully developed; hence he is presumed to have considered all the evidence in the case in support of his order overruling the plea of privilege. This procedure is not objectionable when no injury is shown to defendant. Gilmer v. Graham (Tex. Com. App.) 52 S.W.(2d) 263; De Mars v. Montez (Tex. Civ. App.) 277 S. W. 402; Mercantile Bank & Trust Co. v. Schuhart (Tex. Civ. App.) 277 S. W. 1087.

Appellant further contends that, after overruling E. N. Daniel’s plea of privilege, the court erred in rendering judgment against E. N. Daniel individually, for want of the issuance and service of the proper citation. Pretermitting a discussion of the process, the manner of issuance- and service of which is noted in the statement of the case above, it is not thought that the action of the court in the respect complained of is error. The filing by a defendant of a plea of privilege constitutes an appearance. It is a waiver of any defect or want of service, and, when overruled, it places the defendant in court for all purposes. Ruby v. Martin (Tex. Civ. App.) 44 S.W.(2d) 824; Texas Employers’ Ins. Ass’n v. Evans (Tex. Civ. App.) 2 S.W.(2d) 566.

It appears in the record that on July 15, 1933, a draft of the judgment was prepared and submitted to the trial judge, and that it was by him signed and approved and filed with the clerk. This draft contained a recital of dismissal of the suit as to the defendant P. M. Steinkamp. On the same day appellant’s‘motion for new trial was heard, overruled, and notice of appeal given. On July 19, 1933, during the same term of court, the trial judge struck from the draft of the judgment that part reciting a dismissal as to P. M. Steinkamp, and the draft as so corrected was by the clerk recorded in the judgment record which was approved 'by the court. Whereupon appellants filed a subsequent or amended motion for new trial complaining of the action of the court in .the respect mentioned in addition to the other matters set up in their previous motion for new trial. This subsequent motion for a new trial heard during the same term of court, on July 24, 1933, was overruled and notice of appeal given, and upon which this appeal is perfected. On this hearing, July 24, 1933, the honorable trial judge testified for movants: “On Monday, July 1'7, 1933, I went to the District Clerk’s office and made the erasures which now appear on the original draft, which I am ordering sent up as a part of the record. I made these erasures without notice to any of the parties. The copy of the judgment mentioned in the motion for a new trial filed by Ernest N. Daniel on the 19th, and which the Clerk mailed to you (Judge Sadler) was not approved by me and no new judgment was rendered, but the erasure was made in the draft of the judgment as it was filed on the 15th instant.”

Under appropriate assignments, the appellants challenge the authority and assign as error the action of the trial judge in striking from the draft of the judgment the recital of dismissal as to P. M. Steinkamp, at the time and in the manner above set out, and without notice to appellants. The record does not show that the plaintiff dismissed her suit against P. M. Steinkamp, or that the court did in fact at any time pronounce or render a judgment of dismissal of the suit as to P. M. Steinkamp; and it is not shown that in striking from the draft of the judgment the recital of dismissal as to P. M. Steinkamp the honorable trial judge did other than thereby cause it to speak the truth with respect to his judgment actually rendered. The assignment cannot be sustained, for the reason that a court has absolute control over its judgments until in fact entered, recorded, and approved during the term of court at which they are rendered, Henderson v. Banks, 70 Tex. 39S, 7 S. W. 815, and a draft of a judgment is not an instrument as such having any legal import upon the judgment actually rendered and entered upon the approved minutes of the court. Though rule 48 for the government of district courts provides-that counsel for prevailing party shall prepare the form of the judgment to be entered, the court has. an independent concern over the correctness of its records to see that they speak the truth, and this valuable right and duty of the trial judge is not in any wise precluded by having signed and approved an incorrect draft of the judgment. In law it is that which in fact is pronounced by the judge and entered upon the approved records of the court that constitutes the judgment. It is not thought that articles 2228, 2229, R. S. 1925, or the case of Presidio Cotton Gin & Oil Co. v. Dupuy (Tex. Civ. App.) 2 S.W.(2d) 341, with respect to notice on application to correct the judgment, has application to the facts as here presented.

Appellants have made other assignments," all of which we have carefully examined, but, finding no error presented, they are respectfully overruled.

The judgment of the trial court is affirmed.