author: BLAIR, Justice. ORITZ, Judge. CURETON, Chief Justice.

text:
    STATE v. SAN ANTONIO PUBLIC SERVICE CO.
    No. 1763—6619.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
   BLAIR, Justice.

The state of Texas, upon the relation of its Attorney General, instituted this proceeding seeking to perpetually enjoin appellant, San Antonio Public Service Company, a Texas corporation, from doing certain acts alleged to be in violation of law and ultra vires of its corporate powers. The state alleged that appellant was incorporated under subdivision 60 of article 1121, R. S. 1911, as amended by the 35th Legislature (1917), c. 178, “for the purpose of constructing, acquiring, maintaining and operating lines of electric motor railway,” and “for the manufacture, supplying and selling of electricity and gas (artificial, natural, or both), for light, heat and power to the public and to municipalities” ; and that in violation of article 1349, R. S. 1925, inhibiting a corporation from employing “its stock, means, assets or other property, directly or indirectly for any purpose whatever other than to accomplish the legitimate business of its creation, or those purposes otherwise permitted by law”; and as ultra vires of its corporate powers, appellant was employing its means and assets: (1) In the purchase for sale and the sale of all kinds and character of electric and gas appliances, maintaining a department, salesrooms, and salesmen therefor, and employing in excess of $150,000 of its means' and assets for such purposes; (2) in the purchase and operation of large gasoline-propelled motor vehicles for transporting sight-seeing parties to points of interest within and more than five miles beyond the city limits of San Antonio, which operations were not authorized by its charter, or in connection with its street railway system, or over routes fixed and approved by the city of San Antonio or the commissioners’ court of Bexar county; and (3) in making loans to various firms and corporations, varying in amounts from $500 to $106,000, and aggregating $209,000 during the past four-years.

Appellant answered, in substance: (1) That as a part of its business of manufacturing, supplying, and selling electricity and gas to the public and as incident .thereto, it sold electric and gas appliances to its customers for the purpose of increasing its business and to accomplish the legitimate business of its creation; and that the $150,000, or less, so used was reasonable, and was less than one-half of one per cent, of its capital investment; (2) that it was fully authorized to operate the sightseeing busses by virtue of article 6548; and (3) that as -to lending money to the various firms and corporations named, all of such loans had been paid; and there was no allegation that appellant was threatening or intending to make further loans; and that in any event the loans were lawful.

A trial to the court without a jury resulted in judgment perpetually enjoining appellant from purchasing and selling electric and gas appliances and from operating the sight-seeing motorbusses; but the injunctive relief as to the alleged loans was denied. Appellant has appealed from the injunction granted against it; and the state has cross-assigned error with respect to the action of the court in refusing to enjoin appellant from making loans. .

Appellant was incorporated in 1917, for the-purposes aforementioned. Immediately upon its incorporation it took over the properties of the San Antonio Gas & Electric Company, a gas and electricity generating and distribution system; and the San Antonio Traction Company, an electric motor street railway system, and has continued the operation of these properties in San Antonio. On January 1, 1928, appellant acquired what is known as its South Texas Department, which includes electric systems acquired from other corporations or owners in some 30 towns adjacent to San Antonio, and serving Floresville, Boerne, New Braunfels, Stockdale, Falls City, Hondo, and other towns and villages; and in the same year extended its power lines to the city of -Seguin, under a contract to sell power to said city at wholesale when needed.

Prior to 1927, appellant and its San Antonio predecessor sold some gas and electric appliances, and especially those not carried by local merchants, such as large hotel ranges and burners for industrial plants. Prior to the purchase of its South Texas Department properties, appellant’s predecessors sold all kinds and character of electric appliances to their customers. As to gas appliances in 1927, and as to electric appliances in 1929, appal-lant entered into the purchase and sale of all kinds of such appliances in San Antonio ; and it has continued the policy of its predecessors of the South Texas Department properties of selling to its customers outside of San Antonio all kinds of electric appliances.

After this suit was filed appellant ceased selling gas and electric appliances in San Antonio proper, giving as its reason that the local merchants were rendering sufficient services to its gas and electricity customers with respect to appliances. However, appellant has continued to use space in its main office for demonstrating and displaying for various merchants of San Antonio, all kinds of gas and electric appliances, and to use its funds for paying salesmen to induce its customers to purchase such appliances from the merchants selling them.

In four of the towns of its South Texas Department, appellant maintains salesrooms and salesmen for its electric business; and also at Seguin, where it does not sell electricity to the public, but only sells power to the city when needed. In each of these four towns, local merchants also sell electric appliances to the customers of appellant; and both as to the San Antonio and the South Texas Department territory the trial court found that there is an adequate supply of electric appliances available from other merchants, at prices and on terms equal and similar to those offered by appellant:

The trial court also found that “it is not the universal custom in Texas” for utility companies to sell gas and electric appliances. This finding is not material. The material issue is whether the sale of such appliances is the usual method or means employed by utilities in the accomplishment of their main business of manufacturing and selling gas and electricity to the public. The evidence on' this issue shows that every privately owned electric company in Texas sells, and for many years has sold, electric appliances. That three of the ten municipally owned electric systems inquired about sell electric appliances or have sold them. That of the thirty-four gas companies operating in Texas, all except four sell gas appliances, and the four not selling appliances are related companies under one management, and one of tírese maintains a display of appliances in its main office.

The trial court further found as follows: “The sale of appliances is not the means usually and necessarily resorted to by utility corporations in order to supply gas and electricity for light, heat and power, and that the sale of such appliances by utilities is not a direct method of accomplishing the purpose of the incorporation; to the contrary, the sale of appliances by utilities tends only in an indirect manner to promote the interest of such corporation.”

This is a mixed finding of fact and of law. It is not sustained by ths evidence adduced. The evidence above detailed shows the sale of gas and electric appliances is the usual means or method employed by utilities in the extension of their service and in the accomplishing of their main business of manufacturing and selling gas and electricity to the public. Gas and electricity can only be consumed or used through proper appliances; and all witnesses questioned on the subject testified that the amount of gas or electricity sold from a gas or electric distribution system is related directly to the number of gas and electric appliances attached to the system. Typical of such evidence is that of witness Seaholm, manager of the city of Austin’s electric system, as follows: “The selling of electric appliances has contributed largely to achieving the approximation of an even load, and on account of the new development of electric appliances, it is becoming more possible every day through their increased use, to achieve the desired result of an even load throughout the twenty-four hours of the day. * * * For the development of the electric light business, and for the encouragement of low rates, it is important to all electric light companies and to their revenue and to their business, that there be as many appliances put on their lines as possible.”

The evidence also shows that it is a matter of primary-importance as to the number of appliances a utility company may get on a proposed extension of its service. That as to the extension of its electric lines to all the small cities and towns it is serving, and particularly with respect to the rural section where appellant is serving the farmer with electricity to operate water pumps, feed choppers, dairy appliances, electric stoves, electric refrigerators, washing machines, and electric irons, appellant is the only one undertaking to sell such appliances in such territory. That in the repair and replacement of worn or defective appliances, and in serving its customers with gas and electricity, appellant is directly interested in all such appliances; and that the sale of appliances in its South Texas Department territory could not be intrusted entirely to merchants carrying lines of appliances along with their other businesses. That the stockholders of appellant and its officers determined the method and the plans under which it was operating in selling appliances to its customers ; and that such method and plans were in their judgment proper and a legitimate means of carrying out its main business and to accomplish the purpose or business of its creation, to wit, the manufacturing, supplying, and selling of gas and electricity to the public. The evidence also shows that at least for the past twelve years most utility companies have engaged in the sale of gas and electric appliances as an incident to and as a direct means of accomplishing their main business of selling and supplying gas and electricity to the public.

The question is one of first impression in Texas as to whether a public utility corporation, engaged in manufacturing, supplying, and selling to the public gas and electricity for lighting, heating, and power purposes, may also engage in the purchase and sale of gas and electric consuming devices and appliances to its customers under its implied powers and as incident to the accomplishment of the business of its creation ‘ and as not being inhibited by article 1349, providing that “no corporation * * * shall employ or use its stock, means, assets or other property, directly or indirectly for any purpose whatever other than to accomplish the legitimate business of its creation, or those purposes otherwise permitted by law.” We have reached the conclusion that under the facts and rules of law applicable appellant had the right, except as to its appliance business at Seguin, to engage in the purchase for sale and the sale of gas and electric appliances in connection with and as being incident to its principal business of manufacturing, supplying, and selling gas and electricity to the public for heating, lighting, and power purposes.

It is manifest that article 1349, supra, authorizes a corporation to do whatever may “accomplish the legitimate business of its creation, or those purposes otherwise permitted by law.” The statute does .not necessarily add to or take from the general rule of implied powers of a corporation, but rather restates the rule by other appropriate language. That is, the rule of implied powers would authorize appellant to do those things which are incident to and reasonably necessary to the carrying out of the powers expressly granted. No distinction can be made between this rule and the provisions of the statute authorizing a corporation to do whatever may “accomplish the legitimate business of its creation.” Implied powers of a corporation are necessarily “those purposes otherwise permitted by law”; and we are clear in the view that the evidence detailed shows that the sale of gas and electric appliances tends directly to increase the use and consumption by the public of gas and electricity, and therefore* tends directly to “accomplish the legitimate business” of appellant, to wit, the manufacturing, supplying, and selling of gas and electricity to the public.

There is no important disagreement as to the general rule of law involved; but the disagreement arises with respect to the proper application of the rules to the facts of this case, which, as the authorities point out, is the chief difficulty in determining what are the implied powers of a corporation. It is agreed in this case that the power to sell gas and electric appliances to its customers using gas and electricity for lighting, heating,' and power purposes is not expressly granted by the charter of appellant; or by specific statute; but that if appellant has such power, it is by implication of law, as being incident to and as reasonably necessary to accomplish the legitimate business of its creation. The'authorities cited by both parties agree that the implied powers of a corporation, such as are necessary to effectuate or carry out the powers expressly granted, or to accomplish the legitimate business of its creation, are not limited to such as are indispensable for those purposes, but comprise all that are necessary in the sense of appropriate and suitable, including the right of reasonable choice of means to be employed. And the authorities further agree that the question presented is one of mixed law and fact; and that whether an act of a corporation comes within its implied powers must be determined in each case from all its facts and circumstances.

As above stated, the question presented is one of first impression in Texas. The authorities from other jurisdictions sustain our above conclusion, and no authority dealing directly with the question presented has been cited or found, holding to the contrary. The leading case sustaining our view is the ease of Malone v. Lancaster Gas Light & Fuel Co., 182 Pa. 309, 37 A. 932, 933, by the Supreme Court of Pennsylvania, wherein the stockholders sought to enjoin the issuance of new stock and increase the corporation’s bonded indebtedness on the ground that the money so acquired was for operating a department for the sale of gas consuming appliances; the court holding as follows: “It is argued for plaintiff that the charter purpose of the gas company is limited by the words ‘manufacturing and supplying illuminating and heating gas,’ and that nothing can be included which is not a necessary part or appliance for manufacturing or supplying. This is too narrow and literal a construction, and overlooks the fundamental -object of the corporation, — the manufacture and supply of gas to customers for profit. It would be of no use to manufacture gas if there were no customers to buy, and hence the company may fairly supply, not only the gas itself, but, incidentally, such appliances and conveniences as will induce new customers to use gas, or old ones to use more. This is a legitimate mode of extending the company’s business, in direct furtherance of its charter object. In-considering such questions, much weight must be allowed to the, judgment of- the parties most interested, — the officers and stockholders of the corporation- itself; and while they will not be permitted, as against the commonwealth or a dissenting , stockholder, to. go outside of their legitimate corporate business, yet, where the act questioned is of a nature to be fairly considered incidental or auxiliary to such business, it will not be unlawful because not within the literal terms of the corporate grant. This is the general rule even where corporate privileges are most strictly construed. ‘Corporations may transact, in addition to their main undertaking, all such subordinate and connected matters as are, if not essential, at least very convenient, to the due prosecution of the former.’ Green’s Brice, Ultra Vires (2nd Ed.) p. 86, c. 3, § 2, par. v.”

This rule was later quoted by the same court in the case of Commonwealth ex rel. Baldrige, Attorney General., v. Philadelphia Electric Co., 300 Pa. 577, 161 A. 344, which was a quo warranto proceeding contesting the electric company’s right to sell refrigerating machines operated by electricity, the court holding the sale of electric appliances to be within the implied powers of the company.

These two cases were followed by the district court of Shawnee county, Kan., in the case of Capital Gas & Electric Co. v. Boynton, Attorney General, and were referred to by the Supreme Court of Kansas in 137 Kan. 717, 22 P.(2d) 958, wherein the district court opinions are quoted and approved, where it was held that a corporation engaged in distributing gas to the public had as an incident to its main business the right to sell gas appliances.

in the case of Brooklyn Borough Gas Co. v. Prendergast (D. C.) 16 F.(2d) 615, 636, a suit to enjoin the enforcement of certain legislation with regard to regulation of gas rates, the master reported with respect to the right of the gas company to sell gas appliances as incidental to its business of selling gas, as follows:

“I am not unmindful that the appliance business may not be subject to regulatory control. Use of gas, however, without appliances is impossible. The development of such business is necessarily important to a .gas company in its gas sales. * * *
"Of course, a gas company does not have ¾ monopoly of the sale of appliances in its territory, as it has of the sale of gas. They' anay be purchased elsewhere, in or out of the territory. Possibly not all of the appliances would be purchased of the company. * * * Certainly no company could await the initiative of its prospective customers, nor the efforts of others to sell appliances before doing business. It would have to rely upon its own efforts and not those of others. Until the district is equipped with appliances, there could be no gas business. * * * ”

The report was copied as a part of the ■opinion of the court.

Like holdings were made in the cases of Customers v. Cohoes Power & Light Corp., P. U. R. 1921D, 421; New York Public Service Com.; Kings County Lighting Co. v. Prendergast (D. C.) 7 E.(2d) 192, affirmed by Supreme Court in Ottinger, Attorney General, v. Kings County Lighting Co., 272 U. S. 579, 47 S. Ct. 199, 71 L. Ed. 421.

The following cases hold that even a -municipality engaged in the sale of electricity to the public has, as incident thereto, the right to sell and install electric appliances for its customers, or the inhabitants using electricity: City of Mayfield v. Phipps, 203 Ky. 532, 263 S. W. 37; Andrews v. City of South Haven, 187 Mich. 294, 153 N. W. 827, 830, L. R. A. 1916A, 908, Ann. Cas. 1918B, 100, where it is held as follows: “It may well be contended that furnishing to customers taking electricity the necessary devices or equipment to produce heat, power, or light from the current is naturally incidental to and an implied power connected with the business of operating an electric light plant.”

The state cites as directly in point the following cases from other jurisdictions: Burke v. Mead, 159 Ind. 252, 64 N. E. 880, 884; Ex Parte Goodrich, 160 Cal. 410, 117 P. 451. Ann. Cas. 1913A, 56; Consumers’ Gas Trust Co. v. Quinby (C. C. A.) 137 F. 882; Keen v. Waycross, 101 Ga. 588, 29 S. E. 42; and Holton v. City of Camilla, 134 Ga, 560, 68 S. E. 472, 31 L. R. A. (N. S.) 116, 20 Ann. Cas. 199. Neither of these cases involves the question presented in this ease. The Burke-Mead Case determined the question of whether the corporations involved were created for two purposes in violation of the statutes of the state of Indiana; the court holding that the power to maisufacture and distribute electricity and the power to manufacture and sell all kinds of electric appliances were not incidental to each other, and were greater powers than those authorized by the statutes. The court expressly denied any attempt "to lay down any exact rule as to what is an incident of a principal power.”

In Ex parte Goodrich, the court simply held that a customer of a utility company cannot compel it to furnish him with electric light globes as a part of its service of supplying electricity, and merely finds as to where the required services of the utility, compans’1 begins and ends as; between it and the customer.

The case of Consumers’ Gas Trust Co. v. Quinby is another dealing with the Indiana statutes prohibiting a corporation from being organized for more than one purpose, and holds that a corporation organized for mining and selling natural gas could not expend large sums of money to maintain and operate an artificial gas manufacturing plant as an incident to its mining business.

The Keen v. Waycross Case holds that a city did not have the right under its charter to supply water for domestic purposes to also engage in a general plumbing business as incident to the water business. This case was distinguished from gas and electric appliance cases in the Andrews v. City of South Haven Case, supra.

The text-books and our court decisions sustain the doctrine of implied power of corporations in ‘accordance with the aforementioned rules. In the early case of City of Indianola v. Gulf, Western Tex. & Pac. Ry., 56 Tex. 594, it was held that “the power of a corporation * * * extends not merely to those which are absolutely essential or indispensable to the performance of the specified acts authorized by its. charter, but as well to those * * * useful to promote the main enterprise,” including “the choice of means which are reasonably promotive of the main purpose.” Sections 2184 and 2193, Thompson on Corporations; Cansfield and Wormser, Private Corporations (2d Ed.) 258; Green’s Brice’s Ultra Vires, 65 and 86.

In Comanche Cotton Oil Co. v. Browne, 99 Tex. 660, 92 S. W. 450, it was held that a corporation formed to erect, own, and operate a cotton-seed oil mill might also own and operate such cotton gins as might be necessary and proper as feeders for the oil mill under its implied powers.

In Sealy Oil Co. v. Bishop Mfg. Co. (Texi Com. App.) 235 S. W. 850, it was held that a! cotton gin company had as a part of its implied powers the right to buy and sell cotton seed.

In Kasch v. Farmers’ Gin Co. (Tex. Com. App.) 3 S.W.(2d) 72, 74, a cotton gin corporation was held to have the implied powers to buy planting seed in carload lots to sell to cotton farmers who patronized the gin. The court restated in succinct language the rule of implied powers of a corporation as follows: “To crystalize the rule, it may be said the implied powers of a corporation embrace those that are reasonably necessary, according to the usual methods of that particular business, to the successful prosecution of the specific business authorized, and is not limited to those things indispensably necessary to the business, provided always the benefits to be derived from the contract are direct, and not so indirect as to be remote.”

In the case of Texas & St. Louis Ry. Co. v. Robards, 60 Tex. 545, 48 Am. Rep. 268, it is held that a railroad corporation might use its assets for promotion of a hotel in a town served by the railroad, under the rule that “the power of a corporation to contract extends not merely to such subjects as are absolutely essential or indispensable to the performance of specified acts authorized by its charter, but also to such ⅞ * * as are designed and may be useful in promoting the main enterprise.” Jacksonville, etc., Ry. Co. v. Hooper, 160 U. S. 514, 16 S. Ct. 379, 40 L. Ed. 515. Under the same rule it has-been held that a land company engaged im selling town lots may use a part of its assets-to build a bridge in order to make the lots more accessible to the city. Fort Worth City Co. v. Smith Bridge Co., 151 U. S. 294, 14 S. Ct. 339, 38 L. Ed. 167.

In the case of Northside Ry. Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 1056, 53: Am. St. Rep. 778, it is held that the issuance by two corporations of joint bonds, dividing the proceeds, was equivalent to borrowing money and dividing it between them, each to be the surety of the other; was unlawful because not authorized by statute; but the court again declared the rule of implied powers of a corporation to be that “if the means be such as are usually resorted to, and a direct method of accomplishing the purpose of th-e incorporation, they are within its powers.” However, this case and the case of Bowman Lbr. Co. v. Pierson, 110 Tex. 543, 221 S. W. 930, 11 A. L. R. 547, cited by appel-lee, merely hold that the transactions involved were ultra vires of the powers of the respective corporations because the acts complained of constituted a lending of the credit of one corporation to the accomplishment o£ the purposes of another corporation or person.

In the case of Richardson v. Bermuda Land & Live Stock Co. (Tex. Com. App.) 231. S. W. 337, it is held that a corporation- engaged in raising, buying, and selling live stock, had as an incidental power the- right to use a part of its assets to promote a line-of railway which would serve the lands where the stock were kept and as- a means of marketing the stock.

Legion of authorities may be- cited' extending the rule of implied powers further-than the facts of this case extend it; and to paraphrase the language of Mr. Justice Greenwood, in the case of Country Club v. State of Tex., 110 Tex. 40, 214 S. W. 298, 5 A. L. R. 1185, that if it be true that a railroad corporation, a public service corporation, may use its assets to build a hotel in order to encourage more passenger traffic, we see no reason why appellant, also a public service corporation, may not use its means to promote the sale of gas and electric appliances in order to encourage more patrons, as well as to induce its present patrons to use more gas and electricity. We therefore conclude that it is within the implied or incidental powers of appellant to engage in the purchase and sale of gas and electric appliances to its customers of gas and electricity, except as to its appliance business at Seguin, Tex. Appellant does not sell electricity to the public at Seguin, and therefore has no customers at Seguin. It merely sells, when needed, power to Seguin to be distributed through the municipality’s system to the city’s customers or inhabitants.

With regard to both the method and the-amount of means or assets used in the sale of appliances, except as to the Seguin business, we hold that appellant is not exceeding either its charter powers or its implied powers. During the past four years appellant has had an operating capital of from one-half million to one million dollars. Its capital investment is thirty-five million. It has sustained no losses on its appliance' business, and there is no proof that the amount of capital used in the sale of appliances is endangering in any way the services which appellant is required to furnish the public. The use of $150,000 annually for the purchase and sale of appliances cannot therefore be regarded as the expenditure of an unreasonable amount to secure the increase it has accomplished in its business, and as a means of accomplishing the business of its creation. Richardson v. Bermuda Land & Livestock Co. (Tex. Com. App.) 231 S. W. 337; Northside Ry. Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 1056, 53 Am. St Rep. 778.

The proposition of the state that appellant may not invoke the custom of other like corporations of selling gas and electric appliances, as against the contention of the state that it is not authorized by its charter of statute to sell appliances, is correct; but the rule is well settled that a corporation may foster its legitimate business by all usual means; and that “if the means be such as are usually'resorted to, and a direct method of accomplishing the purpose of the incorporation, they are within its powers.” Northside Ry. Co. v. Worthington, supra; Texas Fidelity & Bonding Co. v. General Bonding Co. (Tex. Com. App.) 216 S. W. 144. There is no dispute in the evidence that the sale of appliances was the means usually resorted to and the most direct method of aceomplish-ihg the purposes of utilities engaged in manufacturing, supplying, and selling electricity and gas to the public. Nor does the fact that some other person or corporation may also be engaged in the sale of appliances, and may furnish adequate supplies of appliances on the same or equal terms as appellant furnished them to its customers, have any bearing upon the case; because if appellant has fhe right to sell appliances, it is not material as to whether others may provide the public with them. Texas & St. Louis Ry. Co. v. Robards, 60 Tex. 545, 48 Am. Rep. 268; Abraham v. Oregon & California R. R. Co., 41 Or. 550, 69 P. 653.

Nor is the rule contended for by the state, that “the doctrine of ultra vires is applied more rigorously to public and quasi public corporations than it is to private trading corporations,” applicable to this case. The rule controlling and which we have applied is stated in 10 Tex. Jur. 860, as follows: “In relation to public service corporations, the established rules of statutory construction are: first, that the grant of express statutory power to public service corporations carries with it ‘by necessary implication the grant of every other power necessary and proper to the execution of the power expressly granted’; and second, ‘that a public grant for public advantage must be construed liberally’, so as reasonably to effectuate the purposes of the grant.” Imperial Irr. Co. v. Jayne, 104 Tex. 395, 406, 138 S. W. 575, Ann. Cas. 1914B, 322; Humble Pipe Line Co. v. State (Tex. Civ. App.) 2 S.W.(2d) 1018; Texas Central Ry. Co. v. Bowman, 97 Tex. 417, 422, 79 S. W. 295; Ayres v. Gulf, C. & S. F. Ry. Co., 39 Tex. Civ. App. 561, 563, 88 S. W. 436; Stephens County v. McCammon, Inc. (Tex. Sup.) 52 S.W.(2d) 53.

Nor is the rule that because appellant is a corporation with power of eminent domain, its implied powers should be more strictly construed as to what business it may engage in, applicable here. If a railroad company, a corporation with power of eminent domain, may engage in the hotel -business as incident to its business of carrying passengers for hire, we see no reason why appellant, with like power of eminent domain, may not sell appliances to its customers, as incident to its business and in accomplishing its business of manufacturing, supplying, and selling gas and electricity to the public.

The trial court also erred in perpetually enjoining appellant from operating sightseeing busses in connection with its street railway- business. Article 6548 reads as follows : “Any corporation operating a street or suburban railway or interurban railway, and carrying passengers for hire, is hereby authorized to maintain and operate motor trucks or jitney lines in connection with their said business for the purpose of carrying passengers for hire on the public roads, streets, squares, alleys and highways within the corporate limits of any incorporated city or town under such regulations as may be prescribed by any such city or town, and on the public roads and highways within five miles of the corporate limits of any such incorporated city or town, under such regulations as the commissioners court of such county may prescribe.”

Appellant is engaged in operating a street railway system and carrying passengers for hire, and obviously the statute authorizes it to operate sight-seeing busses over the public roads and streets in San Antonio and within five miles of its corporate limits. The right to operate the busses is not conditioned under this statute upon whether the city or county has enacted regulations relating to such operations ;. and there is no evidence that either the city of San Antonio or the commissioners’ court of Bexar county has made any character of regulations relating to the operation of sight-seeing busses by appellant.

James V. Allred, Atty. Gen., A. R. Stout and Elbert Hooper, Asst.- Attys. Gen., and Everett L. Looney, of Austin, -for plaintiff in error.

Dan Moody, of Austin, and Templeton, Brooks, Napier & Brown, W. L. Matthews; S. J. Brooks, and Howard Templeton, all ¡of San Antonio, for defendant in error.

The state contends, however, that in any event appellant was required to amend its charter after the enactment of article 6548 in 1923, so as to avail itself of its provisions. This contention is not sustained. Article 6548 is a part of the title “Railroads” of the R. S. 1925, and is not a subdivision of article 1302, relating to the purpose clauses of corporations. It specifically authorizes an electric motor street railway corporation lite appellant to operate gasoline propelled mo-tor vehicles in connection with its street railway business. The law is settled that the powers of a corporation organized under general laws are not determined alone from its charter provisions, but are also determined from .the law under which it is organized or operates. It is also settled law that it is not necessary for the charter of a corporation to contain all the powers conferred by statute; nor is it necessary to amend the charter of a corporation to include powers conferred solely by statute, unless the act itself requires the amendment. Roaring Springs Townsite Co. v. Paducah Tel. Co., 109 Tex. 452, 212 S. W. 147; Texas Central Power Co. v. Jolly (Tex. Civ. App.) 246 S. W. 420; Kuehler v. Tex. Power Corporation (Tex. Civ. App.) 9 S. W(2d) 435; Mathis v. Pridham, 1 Tex. Civ. App. 58, 20 S. W. 1015; Wichita Falls Traction Co. v. Raley (Tex. Civ. App.) 17 S.W.(2d) 157; Thompson on Corporations (3d Ed.) § 188.

The trial court found that appellant was operating its motorbusses in transporting for hire sight-seeing parties to points “more than five miles without the limits of the City of San Antonio,” in violation of the provisions of article 6548. The state contends that this finding authorized the injunction. We do not find any evidence to support the finding that appellant was operating motorbusses beyond the five-mile limit. There was some evidence that appellant leased its large busses occasionally to another company that operated them beyond the five-mile limit; but the evidence is undisputed that appellant only operated busses in San Antonio and within the five-mile limit.

We do not sustain the state’s cross-assignment of error with respect to the action of the trial court in refusing to enjoin. appellant from mating certain loans. These loans had been paid, and there was no allegation or proof that appellant was threatening or intending to make any such loans at any future time.

The judgment enjoining appellant from maintaining an appliance business at Seguin is affirmed; but the judgment otherwise perpetually enjoining appellant from purchasing and selling gas and electric appliances to its customers, and from operating motorbusses for sight-seeing parties in San Antonio and within the five-mile limit, is reversed, and the injunction in that respect is dissolved.

Affirmed in part; in part reversed and injunction dissolved. .

ORITZ, Judge.

This suit was filed in the district court of Travis county, Tex., by the state of Texas against San Antonio Public Service Company; a Texas public service corporation. By its petition in the district count tlhe state' sought cancellation of the company’s charter and an injunction. The district court granted the injunction, but refused cancellation of the charter. On appeal by the company to the Court of Civil Appeals at Austin, that court, in an opinion by Judge BLAIR, in part affirmed and in part reversed and rendered the .judgment of the district court. 62 S.W.(2d) 585.

The attached opinion of the Court of Civil Appeals makes a very fair and comprehensive statement of the facts and law questions. ⅛ volved in this ease, and correctly decides such law questions. We therefore adopt the opinion 'of -the Court of Civil Appeals as the opinion of the commission.

We recommend that, the judgment of the Court of Civil Appeals be affirmed.

CURETON, Chief Justice.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    GROSS v. McCALLUM, District Judge, et al.
    No. 1759—6353.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
    Boone & Raymer, of Corpus Christi, for relator.
    Renfro, Ledbetter & McCombs, and James A. Kilgore, all of Dallas, for respondent Land Bank.
    Tom P. Scott and W. V. Dunnarn, both of Waco, for respondents Porterfield and others.
   HARVEY, Presiding Judge.

The relator, L. H. Gross, has applied to the Supreme Court for the writ of prohibition against the Honorable Claude M. Mc-Oallum, judge of the 101st district court of Dallas county, and the plaintiff in a certain suit pending in said court, to stop further proceeding in the last-mentioned suit. The ground alleged for the issuance of the writ of prohibition sought is to the effect that, at the instance of the plaintiff in the suit pending in said district court at Dallas, the judge of said court has appointed a receiver to take from the possession of the relator a certain farm in McLennan county, belonging to the estate of F. M. Porterfield, deceased. The suit at Dallas is for the foreclosure of a mortgage on said land, brought by the plaintiff therein against numerous defendants, including relator, as receiver aforesaid, and O. R. Porterfield, independent executor of the estate of F. M. Porterfield, deceased. It is alleged by the relator that, a short time pri- or to the commencement of the suit at Dallas, the district court of Nueces county, in a suit filed in the last-mentioned court, styled O. R. Porterfield et al. v. Florence A. Poorter- ' field et al., had appointed the relator as receiver to take possession, management, and control of all the property belonging to the estate of F. M. Porterfield, deceased, including said farm. The relator claims that, the farm being in the custody of the Nueces county district court, through the relator as receiver, the district court of Dallas county does not have jurisdiction to dispossess the relator. This calls for an examination of the relator’s petition for the purpose of ascertaining whether or not same .shows that the district court of Nueces county had jurisdiction to appoint a receiver as was attempted. In this respect the relator’s petition is ambiguous. It is by no means clear from the aver-ments of the petition, and the exhibits attached thereto, that the real object of the suit of O. R. Porterfield et al. v. Florence A. Porterfield et al. is not to have the estate of F. M. Porterfield, deceased, administered by the district court through a receiver. It appears that O. R. Porterfield, prior to the commencement of said suit in the district court of Nuoces county, was the duly appointed and acting independent executor of the will of F. M. Porterfield, deceased. The relator’s petition does not disclose that said O. R. Porterfield has fully performed the trust or that he has been discharged therefrom as the statutes prescribe. R. S. art. 3470 et seq.; Roy v. Whitaker, 92 Tex. 346, 48 S. W. 892, 49 S. W. 367. In no event would said district court’have jurisdiction to discharge the latter from the performance of his duties as independent executor and appoint an administrator in his place, in the guise of a receiver.

Because the relator’s petition does not clearly show that the district court of Nueces county has jurisdiction in the premises, if for no other reason, the petition for the writ of prohibition should be dismissed, and we so recommend.

CURETON, Chief Justice.

The opinion of the Commission of Appeals is adopted, and the petition for writ of prohibition is dismissed.


author: RYAN, Judge. CURETON, Chief Justice.

text:
    AMERICAN SURETY CO. OF NEW YORK et al. v. SHAW et al.
    No. 1416—6244.
    Commission of Appeals of Texas, Section B.
    March 14, 1934.

      Murphy W. Townsend and R. G. Scurry, both of Dallas, for plaintiffs in error.
    W. H. Flippen, of Dallas, John T. Gano, of Houston, Callaway & Reed, Frank A. Loftus, W. C. Scurry, Coke & Coke, and B. O. Baker, all of Dallas, and Lee, Lomax & Wren, of Fort Worth, for defendant in error.
   RYAN, Judge.

The record in this case is very voluminous, and in the interest of as much brevity as possible in this opinion, we refer to the statement by the Court of Civil Appeals. 47 S.W.(2d) 474.

From such statement, as well as the record, Which we have carefully examined, we gather:

1.The Terminal Building Corporation of Dallas, as owner, on or about August 25,1923, contracted with Watson Company for the construction of a building in the city of Dallas, known as the Santa Fé Building.

The American Surety Company was surety on the bond of Watson Company to the Terminal Building Corporation, assuring performance of the contract.

2. Watson Company sublet the brick, cement, stone, concrete, and masonry work to C. L. Shaw, the plastering to George W. Blue and H. G. Pittman (Blue & Pittman), and contracted with Lyle Clapper and Leland Clapper (Standard Concrete Tank Company) to provide and erect in place, and remove, after- being used, all necessary forms for the concrete work.

3. After due time the building was completed, according to plans and specifications, on December 14, 1925, and no questions are here presented as to the quality of the work done under the contract.

4. After the building was completed, controversies arose as to amounts under their contracts and for extra services, due to the various contracting parties, payment for which was delayed, and this suit involves only the amounts due for interest, as damages, on said amounts- due, during the period of such delay, extending more than two years, which delay was charged to dilatoriness, unfulfilled promises, and wanton disregard of the contractors’ rights on the part of the owner and Watson Company.

5. Alleging full performance of their respective subcontracts, Shaw as plaintiff and Blue & Pittman and Standard Concrete Tank Company as interveners, sued Watson Ctem-pany as general contractor, its surety, the American Surety Company of New York, and the Terminal Building Company, owner, to recover interest that accrued on the principal sums due them during the time payments wex-e delayed.

6. The position of Shaw is that such wanton delay in making prompt settlement, thus depriving him of the use of his money, constituted a tort; the measure of damages therefor being interest for the period of time during which he was denied such use. He alleged also that he finished his work on De-' cember 14, 1925, which was accepted by the architect on December 15, 1925, wherefore the amounts stipulated then became due, and that on January 5, 1927, the owner fully accepted his work under the contract and for exti-as, wherefore such amounts then became due and he was entitled to legal interest thereafter.

7. Blue & Pittman’s allegations are similar to those of Shaw; their work was completed on November 24, 1925; interest was claimed on amounts due for extra work and material from that date, and on work and material furnished under their contract, from sixty days after such completion. They alleged, in addition, broken promises and dilatory tactics on the part of the owner and of Watson Company, also a conspiracy between them and the architect of the building, who it was stated was a stockholder and pecuniarily interested in its ownership and in the payment of material and labor bills thereon, as a result of which, acceptance of their work and payments therefor were delayed until February 7, 1927, but no payment was made thereon until August 2, 1927, and then only partial.

8. The Standard Concrete Tank Company’s allegations, likewise, are similar to those of Shaw and Blue & Pittman. Interests is claimed from sixty days after completion of their work on November 30, 1926. It was charged that not until February 19, 1927, did the owner ratify acceptance of the work and payment therefor was delayed until April 19,1928.

9. Watson Company’s defense was that during the periods of delay, the supervising architect had failed to accept the work of the respective subcontractors, and the owner of the building had not indicated what amounts of money it was willing to allow for and on account of their work, and therefore the delay in payments to said subcontractors was the fault of the owner and recovery, if any, should be had only against said owner. In the alternative, Watson Company prayed judgment over against the owner for any such recovery as might be had against it (Watson Company).

10. The Surety Company adopted the answer of Watson Company and all demurrers, denials, exceptions, pleas and averments contained in said answer.

11. Terminal Building Corporation, owner, answered that while it had entered into contract with Watson Company for the construction work in question, it did not enter into any contractual relations whatsoever with plaintiff or interveners, and denied any conspiracy existed between it and the architect, as the result of which, payments to be made by it were delayed.

12. The trial court submitted special issues to the jury which resulted in findings:

(a)There were delays in payment to Shaw, Blue & Pittman, and to Standard Concrete Tank Company of the respective amounts of money due them; such delays were' caused by the acts or omissions of both Watson Corn-pany and the Terminal Building Corporation; that such delays resulted “in interest on said amounts, as damages,” to said parties (plaintiff and interveners).

(b) That each of said parties should receive interest on the respective amounts due, as damages, from February 12, 1926; that said parties should have been paid such interest, as damages, from sixty days after the completion of the job undertaken by each respectively, and the work of O. L. Shaw was accepted in writing by the architect, on December 14, 1925.

Special issues submitted at the request of Watson Company were answered by the jury:

(c) That the delay in making payments by Watson Company to Shaw, Blue & Pittman, and Standard. Concrete Tank Company, was occasioned by the acts or omissions of the Terminal Building Corporation.

13. The trial court, thereupon, on March 8, 1930, rendered judgment in favor of C. L. Shaw against the defendants Watson Company, the Terminal Building Corporation, and the American Surety Company, jointly and severally, in the sum of $8,669.46, a like judgment in favor of Blue & Pittman, in the sum of $3,185.98, and in favor of the partnership firm, Standard Concrete Tank Company, in the sum of $1,197.39. The court also rendered judgment over against the Terminal Building Corporation in favor of Watson Company and the American Surety Company, for the amounts recovered ag-ainst them by plaintiff and interveners below, and for such part thereof as they may be compelled to pay by reason of such recoveries. The Terminal Building Corporation was cast for all costs of suit.

14. The Honorable Court of Civil Appeals was of opinion that no liability attached to the Terminal Building Corporation, that the case below was tried on a wrong theory, resulting in excessive judgments against Watson Company and the surety, that the jury should have been instructed to find for plaintiff and interveners against Watson Company and the surety, interest on the amounts due each, respectively, only from the dates and as fixed by certain agreements reached in January and February, 1927, and accordingly reversed and rendered in part, and reformed and affirmed in part, the judgment of the trial court.

As so rendered, recovery was denied against the Terminal Building Corporation and allowed' against Watson Company and the American Surety Company, stírety, in favor of C. L. Shaw in the sum of $4,575.03, in favor of Blue & Pittman in the sum of $1,-560.65, and in • favor of the Standard Concrete Tank Company in the sum of $697.90.

All parties, except the Terminal Building Corporation, applied for and were granted writs of error.

Opinion.

The case was tried in the court below upon the theory that plaintiffs’ causes of action are based upon tort and plaintiffs recovered judgment on such theory.

The Court of Civil Appeals determined the case on the theory that the relations of the parties were purely contractual and their causes of action arose from alleged breaches of contract.

The rule is well settled that a case on appeal must be decided upon the same theory as that on which it was tried in the court below. Wolff v. M., K. & T. Ry. Co. (Tex. Com. App.) 289 S. W. 1000; Askey v. Power (Tex. Com. App.) 36 S.W.(2d) 446; Kistler v. Latham (Tex. Com. App.) 255 S. W. 983; Brigman v. Holt & Bowers (Tex. Civ. App.) 32 S.W.(2d) 220 (writ of error refused); 3 Tex. Jur. 168.

If therefore the Court of Civil Appeals correctly concluded that the judgment cannot be supported on the theory that plaintiffs had a cause of action in tort, the judgment below should- have been reversed and the cause remanded for a new trial on the correct theory. Smith v. Patton (Tex. Com. App.) 241 S. W. 109.

It cannot be doubted that the relations of the owner and Watson Company were based upon the contract between them, also that the relations of Watson Company and the subcontractors (plaintiffs below) were based upon their contracts, one with the other, and while there was no express privity of contract between the owner and the subcontractors, the subcontracts included the conditions of the main contract between the owner and Watson Company and it was made a pail thereof in so far as the same pertained to the particular work thereunder to be performed. Hartwell v. Fridner (Tex. Civ. App.) 217 S. W. 231.

The main contract between the owner and Watson Company contemplated the construction of the building in question according to plans and specifications prepared by Lloyd R. Whitson, architect. It was provided therein (among other things) that the compensation for extra work ordered by the owner should be the actual cost to the contractor plus 10 per cent., the amount to be certified by the architect. It was provided also that progress payments be made by the owner to the contractor, on the 1st and 15th of each month, of 90 per cent, of the value, proportionate to the amount of the contract of labor and material incorporated in the work and of material stored at the site, as estimated by the architect and on certificates furnished By him to the owner; the retained percentage of such progress payments to cease when equal to $100,000, after which the estimates for such progress payments should be paid in full.

The fairness and disinterestedness of.said architect was challenged hy plaintiffs.

In Manett v. Terminal Building Corporation, 120 Tex. 374, 39 S.W.(2d) 1, 77 A. L. R. 1122, a similar contract involving the same building and the same architect, as here, was under consideration by the court, and it was held that the provisions of the contract providing for the fixing by the architect of the price of extra work and of determining the amount of work under the contract as it progressed were invalidated by reason of the financial interest of the architect to reduce the cost of the buildings. With those provisions of the contract eliminated there was no method of determining what amounts were properly due the contractor as the work progressed, nor what sums should be allowed and paid for extra work. Under such circumstances, the contractor had the right to abandon performance of the contract and seek the aid of a court for the purpose of determining the reasonable value of the labor performed and material furnished in the construction of the building. See, also, Childress v. Smith, 90 Tex. 610, 38 S. W. 518, 40 S. W. 389.

So here, the architect never having approved the estimates, either progress or final, if he is disqualified, as charged by plaintiffs, because of his interest in the contract, they were entitled to recovery from and as work was completed and in accordance with the contract, and default having been made in such payments, they were entitled to recover interest from that time (Galveston, H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685; Funkhouser v. Preston Co., 290 U. S. 163, 54 S. Ct. 134, 78 L. Ed. -); in this case the contract provided for the final payment to be made sixty days after the contract is fully performed upon certificate of the architect to the owner. Manifestly, if the architect is an interested party and disqualified as a fair and impartial actor, his arbitrary refusal to furnish such, certificate should not work to the detriment of those furnishing labor and material under the contract.

The extent of work done, material furnished, and the estimates therefor were to be fixed by the architect, and upon such estimates only could the subcontractors obtain compensation from Watson Company. 9 C. J. p. 776. They were bound by the provisions of the main contract (7 Tex. Jur. 641) and therefore interested to the extent of having a fair and impartial architect

Until the architect furnished such estimates, Watson Company could not under its contract with them fix the amounts due. Alexander v. Good Marble & Tile Co. (Tex. Civ. App.) 4 S.W.(2d) 636; 9 C. J. p. 756, § 94. So long as this provision of the contract remained operative, the subcontractors as well as the contractor had to comply with its provisions and obtain the architect’s certificate so required before their right to payments, either progress or final accrued—the subcontractors from the contractor and the latter from the owner. While the owner, under its contract, was not hound to the subcontractor, it was bound to Watson Company, and Watson Company in turn was bound to the subcontractors, so that the current flow of payments dnd continuance of the work were blocked because of an interested and disqualified (as alleged) architect refusing to perform in the true spirit and fair intent of the contract and subcontracts.

It is no answer to say that the owner took upon itself the adjustment and settlement of the claims, and therefore whether or not the architect’s certificates were required as conditions precedent to payment becomes immaterial, because the complaint is that the owner acted in collusion with the architect for the very purpose of delaying payments and carrying out the related provisions of the contract, and delay did result

The main contract also provided that at any time during the progress of the work, on notification from the chief engineer of the Gulf, Colorado & Santa Eé Railway Company to the contractor, verbally or in writing, that the substitution is to be made, said chief engineer or his representative shall be the architect, within the meaning of the contract documents as to the uncompleted work or such portions thereof as may be specifically mentioned, and shall have and exercise all the powers and authority of architect, and where the notice of substitution covers only a part of the work, written notice may be subsequently given making substitutions as to any other part or all of the uncompleted work. The contract also provided that in ease of the termination of the employment of the architect the owner shall appoint a capable and reputable architect whose status shall be that of the former architect.

The contract further provided that “the architect shall have general supervision and direction of the work” with authority to stop the work whenever necessary to insure the proper execution of the contract, but the owner shall not be liable by reason of any such stoppage, provided if the chief engineer of the Gulf, Colorado & Santa Fé Railway Company, or his representative, be architect, the owner shall not be relieved of responsibility, if the stoppage is wrongful against the contractor.

Here, it appears that the owner, through its .representatives, with the chief engineer of the Gulf, Colorado & Santa Fé Railway Company, did undertake adjustment of the various claims, and the complaint is that their acts caused the delays, in delaying, postponing, and refusing to decide as to the reasonable cost of the work, and in controlling the architect and preventing him from accepting the work; the owner’s defense to this contention is based on the alleged failure and refusal of the contractor to submit proper estimates in compliance with the terms of the contract.

Therefore, we think these were issuable facts and should have been submitted to the jury, because if the contractor failed to do the things required of him under the contract, to be done, the owner would be justified in refusing to make the prescribed payments.

No issue was submitted to the .jury calling for a determination of whether the architect was fair and disinterested under the rule announced in Manett et al. v. Terminal Building Corporation, 120 Tex. 374, 39 S.W.(2d) 1, 77 A. L. R, 1122, nor whether the withholding of the certificate by the architect was fraudulent or in bad faith, or whether the owner waived the same, Alexander v. Good Marble Co. (Tex. Civ. App.) 4 S.W.(2d) 656.

If the owner waived such provisions of the contract requiring architect’s certificates as conditions precedent to payments, certainly Watson Company likewise waived the same. On the other hand, if as held by the Court of Civil Appeals, final payment was -not due Watson Company because of tbe failure to furnish architect’s final certificate, then likewise payment was not due the subcontractors because of their failure to furnish an architect’s certificate.

"These were questions of fact which we think should have been submitted to the jury.

If the architect’s certification was waived and the parties undertook settlement of their differences, then the further question arises, whether the company acted.in good faith in an honest endeavor to attain such settlement, and not because of and as a result of conspiracy with the architect to delay not only the payment but ascertainment of the amounts due. These, we think, were also questions of fact which should have been submitted to the jury.

It is settled law in this state that to induce a party to a contract to breach it to the damage of the other party is an actionable wrong. Raymond v. Yarrington, 96 Tex. 443, 72 S. W. 580, 73 S. W. 800, 62 L. R. A. 962, 97 Am. St. Rep. 914; Brown Hardware Co. v. Indiana Stove Works, 96 Tex. 453, 73 S. W. 800. Therefore, if the owner’s unlawful acts induced or contributed to a breach of the contracts between Watson Company and the subcontractors, the owner would be liable, and whether denominated in tort or ex contractu is immaterial under the rule recognized in this state of the right to sue in one action for breach of contract and damages for a tort, where both claims grow out of the same transaction añd are so connected that they may conveniently and appropriately be litigated together. Shirley v. Waco Tap Ry. Co., 78 Tex. 131, 10 S. W. 543; Houston & T. C. Ry. Co. v. Shirley, 54 Tex. 125; 1 Tex. Jur. 616.

The subcontractor, Shaw, is in a different position from the other plaintiffs below, in that he claims an acceptance of his work, in writing, by the architect, and recovery by him is sought by reason, among others, of such acceptance.

The surety company contends that the bond was executed for the sole benefit of the owner and no one else can maintain a suit on same to recover an unpaid claim.

This precise question was decided adversely to such contention in Cameron & Co. v. American Surety Co. (Tex. Com. App.) 55 S.W.(2d) 1032—the same form of bond was there involved.

We recommend that the judgments of the district court and Court of Civil Appeals be reversed and the cause remanded for a new trial.

CURETON, Chief Justice.

The judgments of the district court and Court of Civil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

’We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


author: SHARP, Judge. CURETON, Chief Justice.

text:
    PRINCE v. MILLER, District Judge, et al.
    No. 1720—6469.
    Commission of Appeals of Texas, Section A.
    March 4, 1934.

      McBride, O’Donnell & Hamilton and James Ralph Wood, all of Dallas, for relator.
    Critz & Woodward, of Cbleman, for respondents.
    Phillips, Trammel, Chizum & Price, of Fort Worth, amicus curiae.
   SHARP, Judge.

The relator invokes the original jurisdiction of the Supreme Court to secure a writ of prohibition against Hon. E. J. Miller, judge of the Thirty-Fifth judicial district, and J. N. Arvin, prohibiting them from in any way enforcing, or attempting to enforce by contempt proceedings, or otherwise, a writ of injunction issued against relator in cause No. 5866, styled J. N. Arvin v. Lloyds of Texas et al., or from treating said order and writ of injunction as valid for any purpose and from taking any steps whatsoever in that cause other than to dismiss same .from the docket and generally from the exercise of jurisdiction in said cause or the enforcing of any order, judgment, or decree made therein.

The following controlling facts appear: On May 16, 1930,' the. Attorney General of Texas filed in the Forty-Fourth district court of Dallas county a petition for the appointment of a receiver to wind up the affairs of Lloyds of Texas under article 5022, Revised Civil Statutes of 1925, as amended by the Acts of 1929, 41st Legislature, First Called Session, page 32, chapter 11, § 1 (Vernon’s Ann. Civ. St. art. 5022). On the same day the district court entered an order appointing W. D. Prince, receiver, to take charge of the assets of Lloyds of Texas, to collect all past-due debts owing to Lloyds, and to do and perform under the orders of the court such other and further acts as might be necessary. On May 19, 1930, Prince qualified as receiver by taking the oath and giving a bond as required by law, and he entered upon his duties.

At that time there was in possession of the attorney in fact of Lloyds the following collaterals which had been delivered 'to the attorney in fact by J. N. Arvin, one of the respondents herein, and the plaintiff in cause No. 5866, pending in the district court of Brown county. J. N. Arvin was one of the underwriters of Lloyds, and was one of the defendants in cause No. 86437 — B, styled R. L. Bobbitt, Attorney General, v. Lloyds of Texas et al., pending in the Forty-Fourth district court of Dallas county; the collaterals so deposited by J. N. Arvin with the attorney in fact being twenty-five shares of the capital stock of Brownwood Building & Loan Association evidenced by certificates 29,105, and 116 and two promissory notes signed by J. N. Arvin in the sums of $3,000 each, payable to the order of Thomas Investment Company or their successors, as attorney in fact for Lloyds of Texas.

On May 26, 1930, the district court of Dallas county for the Forty-Fourth judicial district entered an order directing the receiver to give notice to the underwriters, including J. N. Arvin, to pay within ten days the respective balances of their subscriptions; the order providing that, if such subscriptions should not be paid within ten days, the receiver should make sale of such securities for the best price obtainable, either at private or public s≤ that such notice was given by the receiver to certain underwriters of Lloyds, including J. N. Arvin.

On the 7th day of June, 1930, J. N. Arvin filed a petition in the district court of Brown county, Thirty-Fifth judicial district, said suit being No. 5866, and styled J. N. Arvin v. Lloyds of Texas. In this petition Arvin complained of various parties, including the receiver, and, among other things, alleged that he (Arvin) was the owner of the above listed collaterals and asked for cancellation of the notes and the return of the collaterals and securities to him on the ground that the same had been obtained from him by deceit and fraud, and he asked for an injunction restraining the defendant, W. D. Prince, as receiver, from selling, or causing to ¡be. sold, the securities, and from filing or prosecuting any suit or legal proceedings to enforce the two notes. Brown county was at that time the residence of J. N. Arvin, and he alleged that deceit and fraud were practiced on him in that county with reference to such securities. On the 7th day of June, 1930,1-Ion. E. J. Miller, judge of the Thirty-Fifth judicial district, issued the writ of injunction as prayed for by Arvin.

Some time after the appointment of said receiver by the district court of Dallas county wherein the underwriters of Lloyds appeared in that court and protested the appointment of such receiver, which was ' overruled, an appeal was made to the Court of Civil Appeals at Dallas and the order of the district court was affirmed (Lloyds of Texas v. Bobbitt, 40 S.W.(2d) 897) and writ of error was granted by the Supreme Court, but on hearing the court held that it was without jurisdiction to entertain an appeal thereof. Lloyds of Texas v. Bobhitt, 55 S.W.(2d) 803.

It further appears that the temporary injunction granted by the district judge of Brown county in this cause, of which the relator complains, was granted on June 7, 1930, and that the writ was served upon relator three years before the institution of this proceeding; and that no motion has ever been filed by the relator in the district court of Brown county to vacate the same; that the Supreme Court has never had or exercised any jurisdiction in respect to any matters involved in the two cases described above.

It is contended by relator that, when the application for the appointment of a receiver to take charge of the assets belonging to the Lloyds of Texas was filed in the district court of Dallas county and such receiver was appointed and he qualified as such by taking the oath and making bond as required by law, the district court of Dallas county acquired exclusive jurisdiction of the case, and that the district court of Brown county did not have jurisdiction of the matters involved in cause No. 5866 pending in that county, and, ’ because of the rule announced in the case of Cleveland v. Ward, 116 Tex. 1, 285 S. W.' 1683, 1069, the injunction issued in that cause is void; that therefore the Supreme Court should issue its writ of prohibition against the trial court, and Arvin as above stated.

The facts show that the suit filed in Dallas county was to appoint a receiver to take charge of the assets of Lloyds of Texas, qmong which were some notes signed by Arvin and some collaterals claimed by him. The receiver did not sue Arvin on his notes in Dallas county, and Arvin, claiming that the notes and collaterals were obtained by deceit and fraud, filed suit in Brown county for the return of the collaterals and the cancellation of the two notes. No contention is urged by Arvin that the appointment of the receiver by the district court of Dallas county is not valid nor is his power to act as such receiver questioned, but he merely contends that, by reason of the facts, he has a right to file suit in Brown county for the return of the collaterals and the cancellation of the notes.

The "statutes and decisions of this state authorize a suit against the receiver in his official capacity in any court having competent jurisdiction of the subject-matter. Such suit is subject to the venue statutes. The foregoing rule is subject to the limitation that the court, other than the one in which the receiver is appointed, may not make any order or take any action in such suit that will disturb the possession, control, or management of the assets by the receiver. As we understand the record, the question of venue has not been raised in the suit filed in Brown county. Therefore suit may be maintained by J. N. Arvin in the district court of Brown county against the receiver for the return of the collaterals and the cancellation of the two notes held by him because of the alleged fraud and deceit in obtaining them by Lloyds and its agents in Brown county, and the trial' court had the right to protect by proper process the subject-matter of the suit pending a final determination of the issues involved therein. Articles 2310 and 2311, Revised Civil Statutes 1925; Kirby v. Dilworth & Marshall, 260 S. W. 152 (Tex. Com. App.); Bowles v. Mitchell, 245 S. W. 74 (Tex. Com. App.); Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 430; Eaton v. Whisenant et al. 50 S.W.(2d) 1109 (Tex. Civ. App.).

It will be noted that the case presented here-is different from the case presented in Cleveland v. Ward, supra, in which case the Supreme Court granted a writ of prohibition-on the ground that it had first acquired jurisdiction of the controversy on an application for mandamus to compel a district judge to-try a lawsuit. In that case the various courts had enjoined one another from proceeding to trial on the merits of the case, and an application -was presented to the Supreme Court asking for a mandamus to compel one of the-courts to proceed to trial and at the same-time issue a writ of prohibition or injunction against the other judges of the various courts from interfering with the trial. As going to-show the condition existing in that case and' the background for the exercise of the court in issuing the writ of mandamus, we quote, as follows from the language of Chief Justice Cureton, who wrote the opinion in that case-for the court:

“Certainly if there was ever a case which, calls for action by this court, this is the ease. The record presents an instance of judicial stalemate without parallel in the history of the jurisprudence of this state, and perhaps, of any other state. The two cases pending-are between identically the same parties, except the Johnson County Case has one additional, apparently necessary, defendant. They involve the same subject-matter, identically. the same transactions, and the relief in one would be res adjudicata as to the relief prayed for in the other suit. The parties plaintiff in the Johnson County Case cannot proceed in that case1 without violating an injunction issued by the district court of Dq.1-las county; the judge cannot proceed without violating a writ of prohibition issued by the Court of Civil Appeals at Dallas, nor refuse to proceed without violating a mandamus issued by the Court of Civil Appeals at Fort 'Worth. The Dallas county district court cannot proceed to try that ease, nor can the plaintiffs in the case proceed with it without violating an injunction of the district court of Johnson county; and the judge of the Dallas county district court cannot proceed without violating a writ of prohibition issued by the Port Worth Court of Civil Appeals, nor refuse to proceed without violating a mandamus issued by the Court of Civil Appeals at Dallas. It is impossible for either of the trial courts or any litigant to do anything in the causes pending in the respective trial courts without being in danger of contempt, either of a trial court, or a Court of Civil Appeals, or both. The relief which might he granted in any appeal of the defendants in the Dallas County Case to the Court of Civil Appeals at Dallas is wholly inadequate to grant any substantial relief to any one, or untangle the instant judicial troubles.”

In the course of the opinion it was further said:

“That this court has power by mandamus to require a district judge or court to proceed to trial and judgment is settled by the Constitution, statutes and decisions. Revised Statutes 1925, art. 1734; Yett v. Cook, 115 Tex. 175, 268 S. W. 715 [281 S. W. 843]; Aycock v. Clark, 94 Tex. 375, 60 S. W. 665; Burgemeister v. Anderson, 113 Tex. 495, 259 S. W. 1078.
“Haying the power to issue the writ of mandamus directing Judge Ward to proceed to judgment, we necessarily have the correlative authority to make all other orders, including those for prohibition and injunction, to protect and make efficacious the exercise of that power by us. State Constitution, art. 5, § 3; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; City of Houston v. City of Palestine, 114 Tex. 306, 267 S. W. 663; Wells v. Littlefield, 62 Tex. 30, 31.” .

The record also discloses that the petition filed by Arvin in the district court of Brown county in Cause No. 5866 presents a bona fide controversy of which that court has jurisdiction and venue involving a number of issuable facts and the determination of certain principles of law applicable thereto. Also it is shown by the record that the writ of injunction issued by the district court of Brown county was granted on June 7, 1930; that the writ was served upon the relator three years before the institution of this proceeding; and that no motion has ever been filed by the relator to vacate same and no excuse shown for such delay.

We are not concerned here about the question of the power of the Supreme Court to issue a writ of prohibition in cases of active conflicting jurisdiction between district courts, where legal remedies are not effective. We have no such case here.. The injunction issued by the district court of Brown county- could have been appealed from or motion to dissolve could have been made. If an error was made ■by the trial court, the complaining party had a plain legal remedy by appeal. But neither remedy suggested was invoked. The injunction has stood unchallenged for several years. The remedies provided by law were therefore efficacious, and we see no reason why the original jurisdiction of this court should be invoked at 'this time. Even where the Supreme Court has the unquestioned power, the court does not grant extraordinary remedies where those provided by law are effective.

In the case of Love v. Wilcox, 119 Tex. 256, 28 S.W.(2d) 515, 521, in discussing section 3 of article 5 of the Constitution with respect to the Supreme Court issuing a writ of mandamus, Mr. Justice Greenwood said: “Ordinarily* rights may be enforced in a mandamus proceeding by suit in the district court, appealed to the Court of Civil Appeals, and brought to the Supreme Court by writ of error. Where these ordinary remedies are complete and adequate, the extraordinary original jurisdiction of the Supreme Court or of the Court of Civil Appeals cannot be successfully invoked. Buvens v. Robison, Land Commissioner, 117 Tex. 541, 8 S.W.(2d) 664; International & G. N. R. R. Co. v. Pleasants, 116 Tex. 568, 296 S. W. 282; Queen v. Lambourn Valley R. Co., L. R. 22 Q. B. Div. 463; Ex parte Riddle, 255 U. S. 450, 41 S. Ct. 370, 65 L. Ed. 725.”

We have carefully considered the petition filed herein by relator invoking the original jurisdiction of the Supreme Court to issue a writ of prohibition, and we conclude that it does not present súfficient facts to justify the' Supreme Court to issue a writ of prohibition as prayed for.

We therefore recommend that relator’s petition be refused.

CURETON, Chief Justice.

The opinion of the Commission of Appeals is adopted, and the writ refused.


author: SHARP, Judge. OURETON, Chief Justice.

text:
    McCURDY et al. v. GAGE et al.
    No. 1749—6586.
    Commission of Appeals of Texas, Section A.
    March 14, 1934.
    H. G. Corbin, of Gladewater, and W. Edward Lee, of Longview, for plaintiffs in error.
    Graves & Long, of Dallas, and Black & Graves, of Austin, for defendants in error.
   SHARP, Judge.

This case presents a controversy between two district courts of this state. A suit was filed in the district court of Gregg county by certain parties to cancel a certain mineral lease and instruments executed thereunder. Later, a suit was also filed in the district court of Dallas county by other parties to adjudicate certain mineral interests, and a receiver was appointed, who, acting under the authority of the court, drilled and operated on oil well. Subsequent to the appointment of the receiver by the district court of Dallas county, the pleadings in the district court of Gregg county were amended and new parties brought in, and that court also appointed a receiver to take over the property in possession and under the control and management of the receiver first appointed by the district court of Dallas county, and, in addition thereto, issued a writ of injunction forbidding any interference with the receiver appointed by the district court of Gregg county.

In due time, J. H. Gage and a number of the defendants in the cross-action and the receiver appointed by the district court of Dallas county filed their motion to vacate the orders appointing the receiver and granting the injunction, which was heard by the district court of Gregg county and overruled. From this ruling, Gage and others prosecuted their appeal to the Court of Civil Appeals at Texarkana, and the Court of Civil Appeals held that the motion made to vacate the orders appointing the receiver and granting the injunction should have been granted and such orders dissolved. 60 S.W(2d) 468.

A writ of error was granted in this ease upon the proposition that the Court of Civil • Appeals erred in holding that the district court of Gregg county was without jurisdiction to issue the writs of injunction complained of, since the district court of Dallas county ha'd appointed a receiver in a proceeding filed therein subsequent to the filing of a suit including the same subject-matter in.the district court of Gregg county.

The following controlling facts appear: On November 24, 1931, T. B. Bray and wife filed suit in the district court of Gregg county against W. E. McCurdy and others to cancel a certain mineral lease which had been executed by Bray and wife to certain of the defendants. The plaintiffs in that case alleged that the lease was placed in escrow and was never delivered, and possession of the lease was obtained through fraudulent means. The lease covered about four acres of land in the town of Gladewater, in Gregg county. They also alleged that their property was being drained by drilling operations on adjacent premises, and that, because of the recording of the lease, they were unable to enter into a contract with any one else for the protection of their property, and for that reason they were damaged in the sum of $10,000. It was also alleged that certain assignments of interests under said lease had been mhde to other persons who were joined as defendants. The prayer was to have the lease and all subsequent executed instruments growing out of the original lease canceled because of the fraud committed on the plaintiffs and for recovery of the $10,000 in damages.

On April 1, 1932, Bray and wife filed their amended petition. It is practically the same as the original petition, except that new defendants were joined and the instruments under which the new defendants claimed were described. This all grew out of the original lease sought to be canceled. The prayer of the amended petition was substantially the same as that contained in the original petition.

On April 8, 1932, T. J. Holcombe, who was not a party to the suit pending in the district court of Gregg county, filed a suit in the district court of Dallas county against J. H. Gage and many others who were not parties in the Gregg county suit, and also against-many plaintiffs and defendants in the case pending in Gregg county. It was alleged that plaintiff and defendants in that cause were the owners of all the minerals, royalties, etc., under a certain 3.7-aere tract of land conveyed by T. L. Bray and wife by warranty deed to J. H. Gage. The interests of all the parties interested in the mineral rights were specifically alleged, and it was sought to have an adjudication of such interests in the land and a distribution of the proceeds derived from the sale of the minerals produced from the premises. It was also alleged, because of conflicting claims to the mineral lease on the land, the plaintiff and the other owners of an interest in the minerals were unable to secure development of the property, and that the minerals were being drained by wells on adjacent tracts to the damage of those rightfully entitled thereto, and would continue to be drained unless a receiver should be appointed to take charge and develop the land. The court appointed a receiver who was duly qualified and took possession of the property and, with authority of the court, caused a well to be drilled on the land and was running the oil therefrom until stopped 'by an order issued by the district court of Gregg county. This record does not show that a plea in abatement setting up the pend-ency of the suit in Gregg county has been filed therein or that any steps have been taken by any of the parties in the district court of Dallas county to have the order appointing the receiver vacated.

On April 15, 1932, the Independent Supply Company filed an answer in the cause pending in Gregg county, and, in addition to a general demurrer and general denial, filed a cross-action therein for a foreclosure of a material-man’s lien alleging that, under a contract with George E. Bobb, he was in possession of the leasehold estate of the 4 acres of land, and was entitled to a lien thereon by reason of having furnished certain material.

On December 17, 1932, W. L. McCurdy and several other defendants in the case pending in the district court of Gregg county filed their amended answer and cross-action making the plaintiffs in the Gregg county suit and all of the parties to the suit in the Dallas county case, as well as the attorneys and the receiver appointed by the district court of Dallas county, defendants in the cross-action filed in Gregg county. McCurdy and others alleged that on November 24, 1931, they were the owners of an oil and gas lease on the land involved and were in possession of the property, but on that date the defendants in the cross-action unlawfully entered upon and dispossessed them of such premises and the leasehold estate and withheld from them the possession thereof, to their damage in the sum of $5,000. They prayed for a judgment for title and possession and for a writ of restitution of the premises. It was further alleged in the cross-action that the district court in 'Hallas county unlawfully appointed a receiver for the property, and that such receiver is running the oil from the well on the land and appropriating the proceeds from the sale to his own use, etc. They prayed for the appointment of a receiver by the district court of Gregg county to take charge of all property and for the issuance of an injunction against all parties involved in the suit pending in the district court of Dallas county and the attorneys therein from prosecuting that suit, until the further orders of the district court of Gregg county, and also prayed that the receiver appointed by the district court of Dallas county be enjoined from exercising any _ control whatever over the property and compelling him to turn over the property, books, receipts, etc., to the receiver to be appointed by the district court in Gregg county. On this application the district court of Gregg county, without notice to defendants in the cross-action, appointed the receiver and authorized him to take immediate possession of all the property, assets, books, contracts, and documents of the receiver, relating to said property, and that he was authorized to operate said well, make contracts with reference thereto, and collect the revenue derived therefrom, and, in addition, granted the injunction prohibiting any one from interfering with the receiver.

Plaintiffs in error contend that the suit filed in the district court of Gregg county involved the same subject-matter embraced in the suit filed in the district court of Dallas county, and, since both courts were of co-ordinate jurisdiction, the dominant ju-, risdietion of the subject-matter was acquired by the district court of Gregg county, to the exclusion of all other courts.

On the other hand, defendants in error contend:

(1)That the cross-action filed by plaintiffs in error is wholly insufficient to entitle them to any character of equitable relief, because it does not show by definite averments of fact that the Dallas -county case, at the time it was filed, constituted an invasion of the jurisdiction of the Gregg county court. It is not made to appear that the two cases involve the same cause of action or subject-matter.

(2) There is no evidence to support the equitable relief -awarded the plaintiffs in error in the district court of Gregg county.

(3) Plaintiffs in error are estopped to question the jurisdiction of the district court of Dallas county.

An analysis of the pleadings filed on November 24, 1931, by Bray and wife, in the district court of Gregg county, shows that the plaintiffs sought to cancel a certain mineral lease executed by them and certain instruments executed by virtue thereof, oh the ground that the lease was placed- in escrow and was obtained by fraud. No plea for the appointment of a receiver was made in that case. Holcombe, Gage, and many others were not parties to that suit, and it was not sought in that suit to adjudicate their mineral interests in the land in controversy.

On April 8, 1932, - Holcombe, who claims certain mineral rights under a warranty deed executed by Bray and wife to Gage, and not a party to the suit filed in the district court of Gregg county, filed the action in the district court of Dallas county against many persons not included in the Gregg county suit, to adjudicate their interests in the minerals in the 4 acres of land in controversy. 1-Ie described in detail the interests owned by such persons, and further alleged that the oil was being drained from under the land, and by reason thereof they were greatly damaged, and asked for a receiver to be appointed and that he be authorized to have a well drilled and operated. The court granted this application, and the receiver, acting under the orders of the court, had a well drilled which was operated.

Thus it appears that the suit filed by Bray and wife in Gregg county was to cancel the mineral lease and not to determine who owned the mineral estate. The suit in Dallas county was brought to determine the ownership of the minerals. A judgment in the Gregg county suit would not have determined who owned the mineral estate.

It is undisputed that the receiver appointed by the district court of Dallas county, acting under the orders of the court, took possession, control, and management of the 4 acres of land and drilled an oil well thereon and ran "the oil therefrom, and no plea in abatement was filed in that suit nor any steps taken to have the court vacate the orders made in .that case; that more than eight months after snch receiver was appointed, who, acting under the orders of the court, made certain contracts, and drilled a producing and paying oil well, certain parties amended their pleadings in the district court ■of Gregg county and filed a cross-action against the parties involved in the Dallas ■county suit. The cross-action, filed on December 17, 1932, does involve the same issues involved in the Dallas county case. There is no contention made that the district court ■of Dallas county was not acting in good faith in taking jurisdiction of the matters involved in that suit and in appointing a receiver to take charge of the property and to conserve and develop it to the best interests of those ■owning and claiming the mineral estate.

The rule is well settled that, where two ■actions involving the same subject-matter are brought in different courts having co-ordinate .jurisdiction, the court which first acquires jurisdiction, its power being adequate to administer full justice to the rights of all concerned, should retain such jurisdiction, undisturbed by the interference of any other court, •and dispose of the whole controversy. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1083, 1071; Texas Trunk Ry. Co. v. Lewis, 81 Tex. 8, 16 S. W. 647, 648, 26 Am. St. Rep. 776; Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.(2d) 1067.

In this state, as well as in courts of other jurisdictions, both federal and state, we have courts of co-ordinate jurisdiction, and it is highly important that the spirit of comity should at all times exist between such courts and a conflict of jurisdiction should ■be avoided. In order to maintain an orderly procedure and prevent unseemly conflicts between two courts when an action has been brought in one court and thereafter another action is filed in another court of co-ordinate jurisdiction, if it is thought that the two actions involve the same subject-matter, it is the duty of those engaged in the suit first filed to deal frankly with the court in which the second action is filed and in good faith make a full disclosure to the court with respect to what are the facts and issues involved in the case first filed in the other court. This is especially true with respect to receiv-erships. This was not done. If the two cases involve the same subject-matter when a plea in abatement is properly and seasonably filed in the case last filed, the latter court should sustain such plea. If the plea in abatement is not filed, it may be considered waived. Cleveland v. Ward, supra, and the authorities therein collated. Chief Justice Cureton, speaking for the court in the case of Cleveland v. Ward, held: “What has been said is not in conflict with the doctrine of various cases that the pendency of a suit in another jurisdiction must be seasonably pleaded in abatement, that the plea may be waived, and that final judgment by default, or, in the absence of pleading and proof of the pendency of a prior suit will be sustained. See the cases of Cook v. Burnley, 11 Wall. 659, 20 L. Ed. 29; Cook v. Burnley, 45 Tex. 97; Blassingame v. Cattlemen’s Trust Co. (Tex. Civ. App.) 174 S. W. 900; Cattlemen’s Trust Co. v. Blasingame (Tex. Civ. App.) 184 S. W. 574; McCoy v. Bankers’ Trust Co. (Tex. Civ. App.) 200 S. W. 1138. See, also, 1 Ruling Case Law, pp. 19, 20.”

The rule is well settled that, when a court of competent jurisdiction has, by appropriate proceedings, appointed a receiver to take charge of the property involved, then no other court of co-ordinate jurisdiction has power or authority to render any judgment which invades or disturbs the possession of the property while in the custody of the court which has taken it in possession. The court appointing the receiver is left undisturbed to administer same. Harrison v. Waterberry (Tex. Sup.) 27 S. W. 109; Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Ellis v. Water Co., 86 Tex. 111, 23 S. W. 858; 23 R. C. L. pp. 66 and 67, and authorities collated; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 28 S. Ct. 182, 52 L. Ed. 379. The case of Harkin v. Brundage, 276 U. S. 37, 48 S. Ct. 268, 274, 72 L. Ed. 457, involved a controversy between state court receivers and the receiver of a federal court over the possession of certain property. In that case the question was raised that one of the receivers had been irregularly appointed subsequent to the appointment of the first receiver, and Chief Justice Taft, speaking for the court, said: “ * * * When a receiver has been thus irregularly appointed on such a bill without objection, and the administration has proceeded to such a point that it would be detrimental to all concerned to discharge the receiver, the receivership has been permitted to continue because not seasonably objected to. Pusey & J. Co. v. Hanssen, 261 U. S. 491, 497, 509, 67 L. Ed. 763, 771, 773, 43 S. Ct. 454; Re Metropolitan R. Receivership (Re Reisenberg) 208 U. S. 90, 109, 111, 52 L. Ed. 403, 412, 413, 28 S. Ct. 219; United States v. Butterworth-Judson Corp., 269 U. S. 504, 513, 70 L. Ed. 380, 384, 46 S. Ct 179.”

However, subject to the venue statutes, the statutes and decisions of this state authorize a suit against the receiver in his official capacity in any court having competent jurisdiction of the subject-matter. This rule is' subject to the limitation that the court, other than the one in which the receiver is appointed, may not make any order or take any action in such suit that will disturb the possession, control, and management of the assets of the receiver. Articles 2310 and 2311, Rev. Civ. Stats. 1925; Kirby v. Hilworth & Marshall (Tex. Com. App.). 260 S. W. 152; Bowles v. Mitchell (Tex. Com. App.) 245 S. W. 74; Paine v. Carpenter, 51 Tex. Civ. App. 191, 111 S. W. 430; Eaton v. Whisenant et al. (Tex. Civ. App.) 50 S.W.(2d) 1109.

If the two cases in controversy involve the same subject-matter, that fact should have been pleaded fully in the Hallas county suit and the issue tested out in that court. The judgment of that court upon this question will be respected until vacated or set aside by proper procedure, where an effective legal remedy is available. Prince v. Miller (Tex. Com. App.) 69 S.W.(2d) 52. The court first acquiring jurisdiction of a cause of action should be liberal in permitting pleadings to be amended and amplified, new parties to be made, in order to determine all essential questions involved in the 'suit. But, if the two cases are not the same, involve separate and distinct controversies, as reflected by the pleadings filed in the two courts at the time the suit was filed in Hallas county, the jurisdiction of the district court of Hallas county could not be taken away by subsequently filing in the district court of Gregg county new pleadings raising a different cause of action from that contained in the pleadings filed prior to the filing of the suit in the district court of Hallas county. Under the well-settled principles of law, the district court of Gregg county, under the state of this record, did not have the power to appoint a receiver to take possession and control of the property already in the hands of the receiver first appointed and issue the writ of injunction, as was done.

For the reasons herein stated, we therefore recommend that the judgment of the Court' of Civil Appeals dissolving the orders of the district court of Gregg county appointing a receiver and issuing the writ of injunction be affirmed.

OURETON, Chief Justice.

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


author: CHRISTIAN, Judge.

text:
    PINKSTON v. STATE.
    No. 16521.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Morriss & Morriss, of San Antonio, for appellant.
    Lloyd W. Havidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for three years.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Joe Smith by beating and striking him with a piece of timber.

Heceased was killed near his camp at a time when he, appellant, and the others present were drinking intoxicating liquor-. The state’s testimony was to the effect that appellant and others had gone to deceased’s camp with some intoxicating liquor; that after the parties had been drinking for some time appellant and one of his companions attempted to carry one of the wómen who was staying at the camp to their car; that deceased interfered and appellant struck him on the head with a piece of timber, knocking him to the ground; that at the time appellant struck deceased, deceased was crawling' through the fence.

Appellant testified that as he was preparing to leave the camp one of the women expressed the desire to go with him and his companions, and followed them to the car; that he told her she could not go; that as they started to the car deceased ran toward them saying that he was going to cut their “guts” out; that deceased first lunged toward Haymon Everett, who got out of Ms way; that he then started toward him (appellant), and Everett hollered to him that deceased had a knife; that he (appellant) stumbled upon a piece of timber and reached down and picked it up, and as deceased approached him with the knife he struck him one blow with the timbea:; that as he approached him deceased said, “I am going to cut your guts out”; that he saw the knife in deceased’s hand and struck him to keep him from killing him; that when he struck deceased the knife flew out of his hand and he (appellant) reached down and picked it up and threw it under the fence; that “it was a long bladed knife.” Appellant was corroborated by the testimony of Haymon Everett and others as to the attack being made upon him by deceased with the knife. There was testimony to the effect that it was a hunting knife with a long blade which was used to skin large animals with. The officers found a knife near the camp of deceased by some mesquite trees, which knife was introduced in evidence. Appellant testified he thought it was the knife that deceased was attacking him with. He said: “It had a long blade. You can skin big animals with it.” The record shows that the knife introduced in evidence was a hunting knife.

Appellant timely and properly objected to the charge of the court on the ground that there was entire omission of any instruction upon the presumption from the use of a deadly weapon by the deceased. The court should have responded to the exception. Appellant was entitled to an instruction, in substance, that if deceased was armed with a knife and was advancing upon the defendant, and the jury believed the knife was an instrument calculated or likely to produce death or serious bodily injury, in the manner in which it was being used, that then the law presumed that deceased intended to kill the defendant. Mason v. State, 88 Tex. Cr. R. 642, 228 S. W. 952. Article 1223, P. C. provides: “When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

Manifestly, appellant’s testimony raised the issue of an attack with a weapon of the nature described in this statute. Strickel v. State, 117 Tex. Cr. R. 433, 33 S.W.(2d) 451; Hawkins v. State (Tex. Cr. App.) 32 S.W.(2d) 202.

Without setting out in detail the exception embraced in paragraph 14 of appellant’s objections to the charge, it is observed under the facts reflected by the record, the charge should have been amended in response to said exception.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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