author: HICKMAN, Chief Justice. ' PER CURIAM.

text:
    FERGUSON v. FERGUSON et al.
    No. 1337.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1934.
    Rehearing Denied March 30, 1934.

      See, also, 121 Tex. 119, 45 S.W.(2d) 1096; (Tex. Civ. App.) 66 S.W.(2d) 755; Ferguson v. Mauzey (Tex. Civ. App.) 69 S.W.(2d) 597.
    T. R. Odell, of Haskell, and Le Roy Paddock and Yern I>. Adamson, both of Dallas, for relator.
    E. V. Hardwick, of Stamford, and Davis & Davis, W. H. Murchison, Jr., and F. M. Robertson, all of Haskell, for respondents.
   HICKMAN, Chief Justice. '

This is an original proceeding filed in this court by A. M. Ferguson individually, and in his capacity as temporary administrator of the estate of Kate F. Morton, deceased, against Joe Lee’Ferguson, Lois Earnest Post, clerk of the district court of Haskell county, W. T. Sarrells, sheriff of Haskell county, and G. P. Humphreys, sheriff of King county. In substance the petition alleges that on the 23d day of October, 1933, a judgment was rendered in the district court of Haskell county in cause No. 4380 wherein relator was plaintiff, and respondent Joe Lee Ferguson, was defendant That thereafter on the 2d day of January, 1934, relator filed in the office of Mrs. Post, district elei'k, his petition for writ of error to remove the judgment to this court for review, and upon'the same day relator, in his individual’capacity, filed with said clerk a supersedeas bond, which was approved by her. That on the 6th day of January, 1934, the clerk issued a citation in error, which was on that day served upon respondent Joe Lee Ferguson, whereupon jurisdiction became vested solely in this court to determine the issues involved in said cause. That thereafter on the 20th day of January, 1934, respondent Joe Lee Ferguson ordered Lois Earnest Post, as district clerk, to issue two writs of possession in said cause and delivered one of them to respondent Sar-rells, sheriff of Haskell county, and one to respondent Humphreys, sheriff of King county, directing the said sheriffs immediately to place him in full and absolute possession of all the properties located in their respective counties, anfl decreed to him by the said judgment. That the sheriffs aforesaid are each now attempting and threatening to execute the writs and to oust and eject relator, both in his individual capacity and in his capacity as temporary administrator, from his and said estate’s possession of said property. ■

It is next alleged that, upon the issuance of said writs of possession, relator prepared and presented to respondent Lois Earnest Post, district clerk, a writ of supersedeas, requesting her to issue same directing Sheriff Sarrells, aforesaid, to suspend all further proceedings under the writ of possession delivered to him until the cause should be finally determined by this court; that the clerk refused, and still refuses, to issue said writ of supersedeas, or to recall the writs of possession, and each of the aforesaid sheriffs is attempting and threatening to ’ execute said writs of possession, and will do so .unless restrained and prohibited by this court. The allegation is made that respondent Joe Lee Ferguson is wholly insolvent and cannot be made to respond in damages, and that relator has no adequate remedy at law.

Follow then the allegations that the jurisdiction of this court is being invaded, and that, unless an injunction is issued, relator will be deprived of his right to have said judgment reviewed by this court, or, if said injunction should be by this court refused, the question will have become moot; that this court, in the protection and ’ safeguarding of its jurisdiction, should cause to be issued and served a temporary injunction restraining and enjoining each of the defendants, their agents, representatives, attorneys, deputies, and employees, from further executing, or attempting to execute, the writs of possession, or any other process of any kind or character out of the district court in said cause, save and except the writ of super-sedeas, until the final determination of the cause by this court and by the Supreme Court, if a writ of error thereto should be had. Further prayer was that a mandatory injunction, or mandamus, issue to Lois Earnest Post, district cleric, commanding her instanter to issue. the writ o-f supersedeas.

The petition does not set out in full the judgment in cause No. 4380, which it is claimed was superseded by the bond filed and approved on January 2, 1934, but a part, of the judgment disclosing its general nature is embodied therein. It was a judgment adopting as the judgment of the district court an award theretofore made by three arbitrators, W. B. Oombest, T. E. Ballard, and - — ' Luttrell. The award was embodied in the .judgment. It discloses that the arbitrators were selected by A. M. Ferguson and Joe Lee Ferguson and Judge I. O. Newton, of Seymour, in accordance with the agreement and contract of A. M. Ferguson and Joe Lee Ferguson dated September 17, 1932, and approved by Hon. Joe A. Jones, county judge of Haskell county. The award disposes of many issues. Each of the parties thereto had a large number of claims against each other and the estate which were disposed of. After a disposition of all these various claims and the awarding of various unvalued choses in action, the board of arbitrators proceeded to partition the residue of the property, both real and personal, of the estate of Kate F. Morton, deceased, valued at more than $200,-000, between A. N. F'erguson and Joe Leo Ferguson, the residuary legatees of said estate. The bulk of the property awarded to A. M. Ferguson is personal property, and the bulk of that awarded to Joe Lee Ferguson is real 'estate.

The bond claimed by relator to have superseded o? stayed the execution of the judgment of the trial court was in the penal sum of $1,000, and conditioned as follows: “That the said A. M. Ferguson, in his individual capacity, plaintiff-in-error, shall prosecute his said writ o’f error with effect, and, in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence, or decree, and pay all such damages as said court may award against him, and in addition to said provisions herein recited and not placing the responsibility and liability thereof upon or within the penal sum of $1,-000 hereinbefore named, conditioned further that the said A. M. Ferguson, in his individual capacity, shall, in case the judgment is affirmed, pay the said Joe Lee Ferguson, defendant-in-error, the value of the rent or hire of such real property, in any suit which may be brought therefor.” There is not brought with the application a certified copy of the bond filed in the court below, but the allegation is that Lois Earnest Post, as clerk of the district court, indorsed thereon that she had fixed the probable amount of the costs in the trial court, Court of Civil Appeals, and Supreme Court, at $250, and approved “the foregoing bond.” There is attached to respondent’s reply to the application an affidavit by Mrs. Post in which she states that she estimated the costs at $500, and not at $250, as alleged, and that she approved the bond as a cost bond only; that she was advised by an attorney of relator that it was a cost bond only; that she had never approved same as a supersedeas bond and had never been requested to do so. Further statement is that she was later informed that a contention was being made that she had approved the bond as a super-sedeas bond; that she thereupon discussed the matter with- the attorneys for the respective parties, who agreed that she should indorse her approval thereon as follows: “Approved as a cost bond only, and not as a supersedeas bond,” which she did. It is not claimed that the trial judge fixed the amount of a supersedeas bond, neither is it claimed that he was ever called upon so to do.

The applicable statutes are as follows:

“Art. 2270. An appellant or plaintiff in error, desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond to be approved by the clerk, payable to appellee or defendant in error, in a sum at least double the amount of the judgment, interest and costs, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him. .
“Art. 2271. Where the judgment is for the recovery of land or other property, the bond shall be further conditioned that the appellant or plaintiff in error shall, in ease the judgment is affirmed, pay to the appellee or defendant in error the value of the rent or hire of such property in any suit which may be brought therefor.”

It is now the settled law of this state that article 2270 does not except from its operation any class of. judgments. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326; Lawler v. Wray (Tex. Civ. App.) 8 S.W.(2d) 524; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A. L. R. 1103. Since the appeal was not from a money judgment, that statute does not prescribe the amount of the supersedeas bond. In such cases it is necessary fo-r the court to fix the amount thereof. Hill v. Halliburton, 32 Tex. Civ. App. 21, 73 S. W. 21; Houtehens v. Mercer, supra. In the last-cited case, a mandamus was issued directing the district judge to fix the amount of a supersedeas bond, a thing which would not have been done if the fixing thereof was within the discretion of the relator or the clerk. The only way to stay the execution of a judgment, other than one for money, is by filing a bond approved by the clerk in the penal sum fixed by the court. There is absent from this petition the essential allegation that the trial court had fixed the amount of the bond.

As we understand the applicant’s theory, it is that the bond is sufficient under the provisions of article 2271, above copied. The argument is made that the judgment sought to be superseded was one for the recovery of land or other property, and that, in order to supersede such a judgment, no penal sum need be stated in the bond, but that the liability of the sureties is for the value of the rent and hire of the property, which liability may exceed the penal sum named in the bond. If the contention is correct, it would be idle to have the amount fixed; hut we cannot agree with this contention for several reasons. In the first place, the sole object of naming the. penalty in a bond is to fix the limit of the liability of the signers, and no recovery can be had on such bond against the principal or sureties beyond the penalty named. Grand Lodge, A. O. U. W. of Texas v. Cleghorn, 20 Tex. Civ. App. 134, 48 S. W. 750; Edwards v. Adams (Tex. Civ. App.) 122 S. W. 898; Locke v. Beal (Tex. Civ. App.) 257 S. W. 302; Chesley v. Reinhardt (Tex. Civ. App.) 300 S. W. 973. In the case last above cited there was a provision in a bond whereby the principal and sureties undertook to “further obligate themselves to pay any and all attorney’s fees,” etc. The contention was made that the effect of this provision was to enlarge the measure of recovery beyond the penalty named, but it was held that its effect was merely to impose an obligation to pay such fee, provided it would not enlarge the recovery beyond the amount of the penalty. The provision of article 2271 is that, where the judgment is for the recovery of land, or other property, the bond shall be further conditioned. That article should not be construed as providing a further olligation than that named in the next preceding article. It does not deal with the obligation, but only with the conditions of the bond. The adding of a further condition does not have the effect of increasing the obligation. A “condition,” as applied to a bond, is the expression of an event or contingency, upon the happening of which the obligation attaches. The limit of liability on the bond tendered by relator was $1,000.

In the second place, should we be mistaken in our construction of this statute, and should it be considered that the bond in question was not limited by the penal sum therein, named, our conclusion would not be altered. The answer swore away the equities of the bill. According to the affidavit of the district clerk, she approved this bond as a cost bond only. That is to say that she was satisfied with the solvency of the sureties to the , amount of $1,000. If the bond should be construed as obligating the sureties in a greater amount than that, the same has not been approved by the clerk. We recognize that there is some conflict between the statements in the application and those in the affidavit of Mrs. Post, and we do not undertake to pass upon the credibility of the parties; but in order to grant the mandamus prayed for, the essential facts must be undisputed. Such writ will be issued only when a clear right thereto is shown.

In the third place, the judgment in the instant case was not for the recovery of land or other property, but for a partition and division thereof, for which reason article 2271 has no application.

It is further contended that the appeal was by A. M. Ferguson in his fiduciary capacity as temporary administrator, as well as by him individually, and that the effect of the filing by him in that capacity of a petition in error was to stay the proceedings in the court below without the necessity of any bond whatever. An examination of the judgment reveals that it was rendered between the parties thereto as individuals. The effect of the judgment was to set aside property of the estate of Kate F. Morton, deceased, to Joe Lee Ferguson individually, and another part to A. M. Ferguson individually; the two being the residuary legatees. As above stated, the petition states that only part of the judgment is set out therein, but the part so set out affirmatively discloses that the controversy was between the individuals Joe Lee Ferguson and A. M. Ferguson as to certain claims of each, and for a partition and distribution of. the residue of the estate. The estate, as such, had no concern about bow the property was distributed. It cannot be held that such judgment is one against relator in his fiduciary capacity.

At the conclusion of his brief filed herein, relator prays that, in the event it should be adjudged that the bond heretofore filed herein is insufficient as a supersedeas bond, leave be granted him to file an amended bond, under such terms and on such conditions as this court may prescribe. We are not authorized to grant this prayer. The trial court alone has the power to fix the amount of a supersedeas bond. There exists no authority in this court to do so.

j The application for injunction is denied.

On Rehearing.

PER CURIAM.

The motion for rehearing challenges the correctness of the court’s holding on practically all questions decided in the original opinion, and each has been given a careful reconsideration. However, we are of the opinion that only one question decided should have a fuller discussion. That question is presented by the contention that the petition in error was filed by A. M. Ferguson in his capacity as temporary administrator, and that, therefore, no bond of any character was required to supersede the judgment of the court below in so far as same affected the estate.

There are pending in this court a number of motions between the same parties and involving the same subject-matter. It is impossible to consider these motions separately without taking cognizance of the contents of each. The record, as presented in these several motions, discloses this history of the litigation: On September 17,1932, A. M. Ferguson and Joe Lee Ferguson executed a contract called “Arbitration and Partition, Agreement.” This agreement recites the facts relative to the settlement of the estate of Kate F. Morton and of the litigation between the parties. Joe Lee Ferguson and A. M. Ferguson are the residuary legatees under the will of Mrs. Morton. It would be of no value to set out all the terms of the agreement to arbitrate, but, among other things, it provides that the property should be partitioned between them as individuals, and that: “It is further understood between the parties hereto that, as to the real estate so set aside by the partition, that each party may go into possession of his respective share subject to the lien fixed by any valid bequest in said will and any debt due by the estate.” The agreement further provided that the award of the board of arbitration would be final and no appeal would be taken therefrom. The relief sought in this court in the case at bar is an injunction to prevent respondent Joe Lee Ferguson from taking possession of the real estate awarded to him by the board of arbitration, which award was adopted by the judgment of the district court. The title to this real estate is not affected and the rights of the estate are not lost by the taking of possession of the real estate by Joe Lee Ferguson. The only interest the estate could have, as such, in the matter would be to preserve sufficient property thereof to satisfy the indebtedness of the estate and the legacies provided by the will. These debts and legacies could not be defeated by the act of Joe Lee Ferguson in taking possession of the real estate awarded to him. The estate, as such, cannot be concerned with how it is distributed as between the two residuary legatees.

Further, in order to show his right to the extraordinary writ of injunction in this court, it devolved upon relator to allege facts showing that his substantial rights would be violated but for the issuance of such injunction. The record brought to this court discloses that the judgment from which the writ of error is being prosecuted was one merely adopting the award of the board of arbitration. No facts are alleged showing any right of appeal by A, M. Ferguson, as administrator or individually, from such judgment. R. S. 1925, art. 233. The record is further insufficient to show any right in A. M. Ferguson, as administrator, or otherwise, to institute the suit in the district court, in that there is no showing that the petition alleged the existence of fraud or other exceptional facts authorizing the court to set aside the award. This court’s authoz-ity to issue the writ prayed for is limited to one purpose, and that is the protection of its own jurisdiction pending determination of the main case. There is no sufficient showing that we have jurisdiction of the main case, or that, if we have such jurisdiction, our judgment would become moot because of the fact that Joe Lee Ferguson has possession of this real estate at the time our judgment is rendered. By the terms of the agreement to arbitrate, the property, while in the possession of Joe Lee Ferguson, would still remain subject to any valid order of the court. Such right of possession does not by the terms of the agreement carry with it the absolute title free of claims against the estate. It follows that the estate will not suffer by the possession of respondent

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: HIOKMAN, Chief Justice.

license: Public Domain

text:
    FERGUSON v. MAUZEY et al.
    No. 1338.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 9, 1934.
    Rehearing Denied March 30, 1934.
    See, also, Ferguson v. Ferguson (Tex. Civ. App.) 69 S.W.(2d) 592.
    T. R. Odell, of Haskell, and Le Roy Paddock and Vern D. Adamson, both of Dallas, for relator.
    E. V. Hardwick, of Stamford, and Davis & Davis, W. H. Murchison, Jr., and F. M. Robertson, all of Haskell, for respondents.
   HIOKMAN, Chief Justice.

This is an original application for mandamus filed in this court by A. M. Ferguson, individually and in his capacity as temporary administrator of the estate of Kate F. Morton, deceased, against the Hon. A. S. Mauzey, district judge of the thirty-second judicial district, sitting in the district court of Haskell county by exchange of benches with the Hon. Clyde Grissom, judge of said court, and also against Mrs. Lois Earnest Post, clerk of the district court of Haskell county, and J. V. Hudson. The application alleges in substance that, by a judgment dated the 25th day of October, 1933, the district court of Haskell county, Judge A. S. Mauzey sitting, appointed J. V. Hudson receiver of ail the property belonging to the estate of Kate F. Morton, deceased. TÉat an appeal was prosecuted to this court, and by our judgment entered therein on December 8, 1933, we reversed the judgment of the trial court and dissolved the receivership. The case was numbered 1290 on the docket of this court, styled A. M. Ferguson v. Joe Lee Ferguson and reported in 66 S.W.(2d) 755. Motion for rehearing was by us overruled and no writ of error to the Supreme Court was prosecuted. Our judgment has, therefore, become final. The costs of the appeal have been paid by relator and mandate issued and returned. to the trial court.

The application alleges the foregoing facts and then alleges.that the receiver, J. V. Hudson, has refused and Still refuses to deliver said property to the relator until ordered and directed to do so by the Hon. A. S. Mauzey-. It is further alleged that a motion was filed in the court below and presented to Judge Mauzey praying for an order upon the receiver to turn over to relator, as temporary administrator, all the property belonging to said estate and in the possession of said receiver, which motion has been in effect denied. The relief sought in this court is a writ of mandamus directed to the Hon. A. S. Mauzey, district judge, J. V. Hudson, and Lois Earnest Post, clerk, directing them immediately to do each and every act necessary to have the judgment and the decree of this court enforced, and directing Judge Mauzey to enter an order to the said J. V. Hudson, receiver, directing him without delay to return and deliver said property to i*elator.

It is unnecessary to set out in detail the answers of the respondents. Among other allegations of the answer filed by Judge Mauzey is the following in substance: That heretofore in cause No. 4380 on the docket of the district court of Haskell county the court rendered judgment approving and adopting as the judgment of the court the report of a board of arbitration partitioning and dividing the estate of Kate F. Morton, deceased, between A. M. Ferguson and Joe Lee Ferguson, the residuary legatees. That no supersedeas bond has been filed in that cause, and Joe Lee Ferguson has filed in the district court of Haskell county an application asking that the receiver turn over the property to him and to A. M. Ferguson, respectively and individually, in accordance with the award made by the board of arbitration. A desire is expressed by Judge Mauzey to be instructed as to his duties in the premises, and he specially disclaims any intention of disobeying the mandate of this court. Some interesting questions of law are presented in the'answers of respondents, but for the reasons below assigned, we shall not discuss them at this time.

This court has this day released an opinion styled A. M. Ferguson v. Joe Lee Ferguson et al., 69 S.W.(2d) 592, involving the same property which is involved in this suit. In that ease A. M. Ferguson, relator herein, sought an original injunction and mandamus in this court staying the execution of the judgment rendered in the district court of Haskell county in cause No. 4389, adopting the report of the board of arbitration, and, further, seeking mandamus against Lois Earnest Post, district clerk, commanding her to issue a writ of supersedeas to stay the execution of said judgment pending an appeal therefrom to this court. That application was based upon the contention that a supersedeas bond had been filed and approved in cause No. 4380. As is reflected by our opinion, the application was denied. The effect of that judgment is to authorize the sheriff to deliver to Joe Lee Ferguson the land awarded to him by said judgment. Were we to grant the mandamus prayed for in this suit, the effect thereof would be for us to issue two conflicting orders; the one authorizing the delivery of the land to Joe Lee Ferguson in accordance with the award of the board of arbitration, and the other directing the delivery of all of said property to A. M. Ferguson as temporary administrator. Both of these judgments could not be respected and executed. Manifestly, therefore, we cannot grant the relief prayed for herein.

The application seeks a writ of mandamus against Mrs. Lois Earnest Post, district clerk, commanding her to issue an execution against Joe Lee Ferguson for costs paid in this court by relator as a condition precedent to having the mandate issued. The allegations in the application are supported by an affidavit attached thereto made by one J. W. Gidney whose connection with, or interest in, the litigation is not disclosed. That affidavit, omitting the formal part, is' as follows:

“I, J. W. Gidney, of lawful age, being duly sworn, state that on January 24th, 1934, I delivered a copy of the following to the Olerk of the District Court of Haskell County,. Texas, to-wit:
“ ‘Joe Lee Ferguson vs. A. M. Ferguson et al. No. 4394. In the District Court of Haskell. County, Texas. ■
“ ‘To Mrs. Lois Post, Clerk of the District, Haskell County, Texas.
“ ‘Whereas on the 20th day of January, mandate was duly returned in the above entitled and numbered cause and all costs was by the Court of Civil Appeals for the-Eleventh Supreme Judicial District of Texas, adjudged against Joe Lee Ferguson all of which you have due and legal notice.
“ ‘Now,-Therefore, A. M. Ferguson, defendant in the trial and appellant in the Court of Civil Appeals for the Eleventh Supreme-Judicial District of Texas, in his individual, capacity and in the capacity of temporary administrator of the estate of Kate F. Morton, deceased, hereby requests and demands that you as Clerk of the District Court o£ Plaskell County issue writ of execution against Joe Lee Ferguson for all costs in this-cause expended, instanta.
“ ‘A. M. Ferguson, Individually.
“ ‘A. M. Ferguson, Temporary Administrator of the estate-of Kate F. Morton, deceased.
“ ‘Haskell, Texas.
“ ‘January 24, 1934.’
“And that on delivery thereof I requested-the said Olerk of the District Court to deliver possession of said execution to me in order that I might deliver the same to the Constable of Haskell County, Texas for execution.
“In response to said written request, and to my verbal request the said clerk replied in substance, T will let you know tomorrow.’ And did not deliver the execution to me this day, as requested.”

This affidavit was dated on' the 24th day of January, 1934, the same day that Mr. Gidney delivered the written request to the clerk to have the execution issue. It does not put Mrs. Post in default. It shows no refusal on her part to issue an execution, but merely shows that she postponed the question for a day. We would not issue a writ of mandamus commanding an officer to perform an act unless it was shown that such officer had refused to perform an official duty.

Besides the application is addressed to the wrong court. If Mrs. Post refuses to issue execution for these costs, application should be made to the district court for an order directing her to do so. It is that court’s duty to execute the judgment of this court after mandate has been returned.

Por the reasons above assigned, the application for mandamus as to each party will be denied.


author: WALKER, Chief Justice.

text:
    REPUBLIC INS. CO. v. DICKSON.
    No. 2504.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 22, 1934.
    Appellee’s First Motion Overruled March 7, 1934.
    Appellee’s Second Motion and Appellant’s Motion Overruled March 14, 1934.

      Smithdeal, Shook, Spence & Bowyer, of Dallas (J. Louis Shook, of Dallas, of counsel), for appellant.
    Dallas Ivey, of Center, for appellee.
   WALKER, Chief Justice.

On the 9th day of July, 1932, appellant, Republic Insurance Company, issued and delivered to appellee, J. W. Dickson, its policy of fire insurance in the sum of $1,200 for a premium of $11.75 paid by appellee, whereby it insured for a period of one year against loss by fire appellee’s certain dwelling house; situated in the town of Teneha, Shelby county. When the policy was issued appellee and his family were occupying the house as their home. Shortly thereafter ¡he and his family moved out of the house, and on July 14th following L. A. Rivers moved in as his tenant and so occupied the house until the 22d day of the next September when he moved out. From that day the ¡house remained vacant until October 14, a period of twenty-two days, when it was totally destroyed by fire. Appellee brought this suit against appellant in the district court of Shelby county to recover the principal amount of the policy, interest, and costs of suit, pleading the issuance of the policy, the destruction of the house by fire, etc. Appellant answered ''by general and special demurrers and general denial and specially that the policy contained the following warranties which appellee breached, thereby rendering the policy absolutely void: (a) The insurance was effective on the horise only “while occupied by owner and not otherwise as a dwelling”; (b) “this entire policy, unless otherwise provided by agreement indorsed hereon or added ¡hereto, shall be void ⅜ ⅜ ⅜ if a building herein described, be or become vacant for a period of exceeding ten days or unoccupied for a period of exceeding thirty days.” To this answer appellee replied by pleas of waiver and estoppel; appellant answered by excepting to the sufficiency of these supplemental pleas. Judgment was for appellee for the amount sued for on the verdict of a jury finding that (a) the house in question was not occupied by the owner as a dwelling from July 15, 1932, until October 14, 1932, the date of the fire; (b) lihat the house was not occupied by the owner as a dwelling on October 14, 1932, the date of the fire; (e) the house was occupied by L. A. Rivers as a tenant of appellee “from fourteen days of July, 1932, to twenty-two days of October, 1932”; (d) the house was not vacant “for more than ten days next preceding October 14, 1932, the date of the fire”; (e) appellee’s local agent, Jack Motley, knqw that the house w-as not occupied by the owner; (f) this agent first acquired this knowledge on September 3, 1932; (g) this agent was not informed by appellee that the house in question was oc^ cupied by L. A. Rivers as his tenant.

The warranty covering the occupancy of the building was as follows: “$1,200.00 on the One story Shingle roof Frame Building and additions attached thereto, including foundations, permanent piping and fixtures for heating, lighting and water service, while occupied by owner (‘owner’ or ‘tenant’) and not otherwise, as a dwelling.”

It thus appears that the policy was to be effective while the occupancy was either by “owner” or “tenant,” and therefore the insured did not breach the warranty by renting the house to L. A. Rivers and permitting him to occupy it as ¡his tenant. The explanar tion for writing the policy in this form may be found in the following testimony of Mrs. Dickson, wife of appellee:

“Q. Mrs. Dickson, you are the wife of the plaintiff in this case, W. J. Dickson? A. J. W.
“Q. J. W.? A. Yes, sir.
“Q. Where do you live now, Mrs. Dickson? A. Gladewater, Gregg County.
“Q. On or about the 9th day of July, 1932, where did you live at that time? A. I lived in Tenaha.
“Q. Did you live in a house that is described here as being five blocks southeast of the square? A. Yes, sir.
“Q. Well, about that time, did you go and have a talk with Mr. Jack Motley about anything particular? A. I did.
“Q. About that house? A. I did.
“Q. Just tell the jury what it was. A. On the 9th day of July, I went to the bank and asked Jack Motley to insure my house, and he did.
“Q. Just go ahead and tell the jury what was said between you and he. A. He asked me when we were planning to move — we were planning to move to Gladewater, and I told him in just a few days — I did not know what day — and he asked — and I asked him to have my house insured, and he asked did I have anybody to go into it, and I said No, and he said ‘if I know or hear of anyone, I will bring them down’, and he did on Monday or Tuesday of the next week — He brought Mr. Kamack down to my house — he ought to know when — On Saturday — and we moved on Thursday, I think, and it was Monday or Tuesday or Wednesday that Jack brought Mr. Kamack down there to the house.
“Q. Did you rent the house to Mr. Kam-ack? A. No; because he would have to go back to El Dorado.
“Q. Who did you rent the house to? A. Aubry River.”
We overrule all assignments and propositions on the issue that the change of occupancy from “owner”' to “tenant” breached one of the express warranties of the policy.

Under the statement made above the insured'house was vacant a period of twenty-two days, from September 22d to October 14th. Appellant pleaded that it was vacant for that period of time, and appellee admitted the fact in his pleadings. The testimony was without controversy that it was vacant. Mrs. Dickson testified that, when she moved out in July, she left one old piece of furniture in the house, which was probably there when the house was burned. ‘But her testimony was that she and her husband had moved to Gladewater, Gregg county, and there established their home. This testimony by Mrs. Dickson did not raise an issue that the house was not vacant, but only confirmed the testimony of all the other witnesses. 26 C. J. 215, title, “Eire Insurance,” § 261. Notwithstanding this state of the pleadings and the evidence, the jury found, as above stated, that the house was not vacant “for more than ten days next preceding October 14, 1932, thé date of the fire.” On appellant’s assignments against this finding it is set aside and the fact found, as it actually was, that the house was vacant from September 22d to October 14th.

This vacancy made the policy absolutely void. The law on this proposition is thus stated by 24 Tex. Jur. 958, art. “Insurance”: “Undoubtedly, a contract of fire insurance validly may contain-a provision that the policy shall Ue void, or that the insurer shall not ■be liable, if the building is vacant or unoccupied beyond a stated time.”

The text is well supported by the following authorities: Galveston Ins. Co. v. Long, 51 Tex. 89; National Union Fire Ins. Co. v. Richards (Tex. Civ. App.) 278 S. W. 488; Commercial Union Assur. Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S. W. 628.

As the breach of the warranty against vacancy rendered the policy absolutely void, it was not necessary for appellant to plead tender or offer to return to appellee the unearned premium on his policy as part of and in connection with its plea of invalidity. In Phenix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. 825, 8 Am. St. Rep. 566, it was held that an insurance company “need not offer to return the premium paid on a policy before insisting on its invalidity by reason of breach of conditions contained in it.” See, also, Alsup v. Hawkeye Securities Fire Ins. Co. (Tex. Civ. App.), 300 S. W. 223, 225; Interstate Fire Ins. Co. v. Sorrells (Tex. Civ. App.) 295 S. W. 242; Veal v. Fire Ass’n of Philadelphia (Tex. Civ. App.) 30 S.W.(2d) 715, 721; Phenix Ins. Co. v. Willis, 70 Tex. 12, 6 S. W. 825, 8 Am. St. Rep. 566; Connecticut Mutual Life Ins. Co. v. Rudolph, 45 Tex. 454. It follows under the proposition just discussed that the trial court correctly overruled appellee’s exceptions to appellant’s special answers of breach of warranties.

The controlling point in this case is whether or not appellant was estopped to assert the invalidity pleaded by it or whether or not it had waived the breach of the warranties thus pleaded. The special exceptions urged agáinst appellee’s pleas of waiver and estoppel, to the effect that they were indefinite and uncertain as to the facts and circumstances relied upon to constitute waiver and estoppel and as to the agency by which these acts were committed, should have been sustained; but the rulings thereon were immaterial, in that appellant was fully advised during the trial of all circumstances relied upon by appellee and of the names of the agents who committed the acts of estoppel, and because it further appeared that appellant had these very agents in court as witnesses in its behalf; and there is no suggestion of surprise or injury, resulting to appellant from the overruling of its special exceptions.

The additional facts in support of appel-lee’s'pleas of waiver and estoppel are as follows: Tenaha was a small town with a population of five or six hundred. On the 7th day of October, after the house became vacant on September 22d, it was inspected by Mr. Jack Motley, appellant’s local agent at Tenaha, who wrote the policy, and Mr. Fred Pierce, appellant’s special agent whose duty it was to visit the local agencies and inspect their risks. By this inspection, of course, Mr. Motley and. Mr. Pierce, in their capacities as appellant’s agents, learned that .the house was vacant; but they did not learn from this inspection, and were not otherwise informed, when it became vacant, that is, whether or not at the time of then-inspection .it had been vacant one day or ten days, and there was no proof that this information was acquired by them at any time before the house was destroyed by fire. At the time of their inspection they parked their automobile immediately across the street from this house, in the driveway of Mrs. Butler, whom Jack Motley well knew and who saw him and Mr. Pierce while they were inspecting the house. She knew when the house became vacant, and, had they inquired of her, she would have told them; but they failed to make this inquiry and to make any effort of any kind to ascertain that fact. The record is conclusive that after the inspection and before the fire appellant made no effort to cancel the policy, did not notify appellee that he had breached the vacancy warranty of his policy, but continued to act in all respects as if the policy was in full force.

The law is that: “A waiver or estop-pel may be predicated upon the silence or inaction of the company where it is apt to mislead and does mislead insured.” 32 C. J. 1346; British America Assur. Co. v. Francisco, 58 Tex. Civ. App. 75, 123 S. W. 1144; Alabama State Mutual Assur. Co. v. Long Clothing Co., 123 Ala. 667, 26 So. 655. In this state it has also been held that, where the company acquires knowledge of facts that operate to forfeit its policy and does not cancel the policy, but retains the unearned premium, it will be held to have waived the condition and will be estopped to assert the forfeiture. Ætna Ins. Co. v. Eastman (Tex. Civ. App.) 236 S. W. 763: Hartford Fire Ins. Co. v. McLemore, 7 Tex. Civ. App. 317, 26 S. W. 928. Silence on the part of the company when, had it acted, the insured could have secured other insurance, as appellee could have done in this case, will operate as an estoppel or waiver of the breach of the warranty. Glasscock v. Des Moines Ins. Co., 125 Iowa, 170, 100 N. W. 503; Lutz v. Anchor F. Ins. Co., 120 Iowa, 136, 94 N. W. 274, 98 Am. St. Rep. 349; Patterson v. American Ins. Co., 164 Mo. App. 157, 148 S. W. 448.

On these general principles of law we conclude that, if Mr. Pierson and Mr. Motley knew the warranty against the vacancy had been breached and then permitted their company to retain the unearned premium, and by their silence prevented appellee from securing other insurance, appellant would be estopped, as a matter of law, from asserting the breach of the warranty against vacancy, and would be held, as a matter of law, to have waived the breach.

But to constitute a waiver or estop-pel the insurer must have knowledge of the facts, quoting from Dossett v. Eranklin Life Ins. Co. (Tex. Com. App.) 276 S. W. 1097, 1099: “The notice or knowledge which waives, in legal contemplation, must be of the falsity as to the identical fact represented to be true. This notice or knowledge must be as broad, as comprehensive, as extensive, as the representation. This means that the knowledge of falsity must extend to so much of the representation as is material. Both the knowledge and the representation must pertain to the same material fact.”

As applied to the facts of this case, mere knowledge of the agents, acquired from their inspection of the house or otherwise, that it was vacant on the 7th of October, did not operate as ¿ waiver or estoppel; such notice must have gone further and advised them that it had been vacant for mox-e than ten days at the time of their inspection. This conclusion necessarily follows because the policy gave appellee the right to hold his house vacant for ten days, and certainly no presumption arose from the vacancy on October 7th that it had been vacant for more than, ten days.

The issue was clearly raised against appellant’s agents that, in 'the exercise of ordinary diligence at the time of their inspection of the building, they could have discovered that it had been vacant for more than ten days. The fact that Mr. Jack Motley, appellant’s local agent, could have acquired this essential information cannot be imputed to appellant. As to him, the rule is thus stated by 24 Tex. Jur. 816, title, “Insurance”: “Nor is it sufficient to bind the insurer that its agent might have learned through the exercise of ordinary diligence, of facts material to the risk.” Continental Ins. Co. v. Cummings (Tex. Civ. App.) 95 S. W. 48; same case, Supreme Court, 98 Tex. 115, 81 S. W. 705; Ætna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S. W. 915.

But this principle does not control the conduct of the special agent, Mr. Pierce. He was sent by appellant to Tenaha for the specific purpose of inspecting this house and the other houses covered by its policies. It can be reasonably said that one of the purposes of his inspection was to ascertain whether or not appellee was performing his part of this insurance contract. The warranty against vacancy was one of the most material provisions of the policy, as it affected both appellant and appellee. On this proposition ’ it must be borne in mind that Mr. Jack Motley, through information acquired in his capacity as appellant’s agent, knew that appellee was at that time living in Gladewater, Gregg county, and that the house was a “tenant house,” which information was imputed to appellant and to its special agent, Mr. Pierce. Being a corporation, appellant could act only through its officers •and agents. In making this inspection, Mr. Pierce was acting as a general agent, delegated with the highest authority appellant ■could bestow upon him for this purpose. We think the law required Mr. Pierce, at the time of his inspection, to exercise ordinary diligence to ascertain whether or not the warranties of the policy had been breached, and the facts raised an issue against him as to whether or not he had discharged this duty. All the issues submitted to the jury were upon undisputed facts; that is to say, there was no controversy whatever in the testimony as to any issue thus submitted. By many of its propositions appellant complains of the refusal of the court to submit the issues of waiver and estoppel. The facts found by the jury were insufficient to support the trial court’s conclusion against appellant on these issues. The determining issue in this case was whether or not Mr. Pierce, at the time of his inspection, in the exercise of ordinary diligence, could have discovered that the house had been vacant for more than ten days. We think appellant’s exceptions were sufficient to call to the court’s attention this omission in the charge and therefore, under Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.(2d) 1084, the judgment is without support.

For the reasons stated, the judgment of the lower court is reversed, and t'he cause remanded for a new trial.

On Rehearing.

Appellant’s motion to correct the statement of facts in relation to the conditions of the -warranty of occupancy is overruled. We have no power to correct a statement of facts, properly certified to us from the lower court. On that proposition this court said in Janes v. Gulf Production Co., 15 S.W.(2d) 1102, 1104, citing Commission of Appeals opinion in Gerneth v. Lmbr. Co., 300 S. W. 17: “Only the lower court has jurisdiction to correct such a mistake.” An order by the lower court correcting the statement of facts should be made before the case is submitted in the appellate court. However, appellant is not prejudiced by this order, as the judgment of the lower court is reversed on all issues and appellant can show the true recitals of all warranties and other conditions of the policy upon another trial. Appellant’s motion for rehearing is also overruled. Appellee’s motion to withdraw his second motion for rehearing, filed on March 10th, is granted.


author: LEVY, Justice

text:
    NEAL et al. v. HOLT et al.
    No. 4395.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 8, 1934.
    Rehearing Denied March 1, 1934.

      J. W. McDavid, of Henderson, R..' PI. Whil-den, of Houston, J. M. Holmes, of St. Louis, Mo., and Thompson, Mitchell, Thompson & Young, of St. Louis, Mol, for appellants.
    Ed Yarbrough, of Henderson, J. L. Gog-gans, James F. Gray, and T. Whitt'Davidson, all of Dallas, for appellees.
   LEVY, Justice

(after stating the case as above).

In order to render a sale by a guardian of a ward’s real estate effectual to confer a valid right, the probate court must have acquired active jurisdiction by the presentment of a proper application by the guardian of the estate. The same rule applies alike to estates of a minor and estates of persons of unsound mind. Tile application for sale by the guardian becomes the first step or the commencement of the proceeding for the court to acquire and exercise jurisdiction. What shall be the purposes for which the guardian may make application for order of sale of real estate is prescribed by the statutes. Articles 4195, 4196, R. S. In the instant case the guardian by his application undertakes, first, to disclose to the probate court the following facts: That before the guardianship proceedings had been instituted, and while he was in a state of mind “not legally ca-pacitated” to do so, William S. Holt, the person of unsound mind, for a consideration executed a deed conveying his undivided interest in the land to C. M. Holt, who subsequently deeded it to W. E. Neal, and that W. E. Neal actually paid full consideration to C. M. Holt for it. Next following is stated the purposes of the sale, with recommendation of the guardian in respect thereto, namely: That “it now appears that the conveyance as to the interest of said ward, William S. Holt, in the two tracts of land herein described is void and of no effect,” and, for that reason, “your petitioner, Guardian of the Estate of William S. Holt, is of the opinion that the said interest of her ward, William S. Holt, should be legally conveyed to said W. F. Neal, who is rightfully and legally entitled to ownership and possession of said interest, having discharged his obligation by payment of all indebtedness against him, the said W. F. Neal, for said interest.” The prayer asked the probate court specially for grant of authority to effectuate the purposes stated, empowering the guardian “to convey the interests of the said ward” in the land and “to sell for cash” by implication to the named subsequent purchaser W. F. Neal. Upon that application the probate court made and entered an order authorizing the guardian to make sale of the ward’s interest in the land “at private sale for cash.” The order recites the purposes for which the .sale was authorized to be:

“It further appearing to the court that the sale of the' real estate of said ward is advisable and necessary and that said application should be granted, and that it is more advantageous to said estate to sell the land mentioned in said application.”

The order recites no other purposes than above quoted. It is plain from the language of the application of the guardian that the interest in the land of the insane ward was not asked to be sold for one of the purposes mentioned in the statutes, either of support and maintenance, or payment of his debts or liens against the property or taxes, or because the land in which the ward has an undivided interest had better be sold than held undivided. Article 4195, R. S. And it is manifest from the order of the probate court that the probate court never granted to the guardian the power to sell the land for any one of the purposes mentioned therein. The statute does not by its terms confer, besides the purposes specially mentioned, the additional power to make a sale or order a sale of the real estate of an insane person whenever it is made to appear to the court that such sale would be “advisable and necessary” or “advantageous to said estate.” It is not a provision of the statute that the guardian may sell, and the probate court may order sale of, the real estate, or any part of it, of the lunatic whenever the interest of the lunatic would be materially or essentially promoted thereby. And, further considering the circumstances affirmatively disclosed in the guardian’s application, it may not be held that the particular real estate mentioned was at the time of the application property of the és-tate which had passed into the possession of the guardian and under the control and supervision of the guardian and the probate court. It was not under the immediate administration of the guardianship. There had been conveyance of the land by the insane person himself previous to the guardianship, and the purchaser under the grantee was holding actual possession thereof. The requisites or essentials' of contracts generally apply to contracts of insane persons. The rule is that a contract, and as truly a deed, of an insane person entered into prior to the appointment of a guardian, is not conclusively void. A deed of an insane person so made may only at most be deemed voidable. Williams, Guardian, v. Sapieha, 94 Tex. 430, .61 S. W. 115, and numerous other cases following that case.

The title would stand in the grantee until such grantor disagrees to the transaction upon sanity. And, in legal effect, until rescinded by judicial action brought for the purpose, the apparent legal title stood, not in the lunatic ward, but in the grantee of the deed or the purchaser under him. The guardian, under the statutory authority to take possession of all property belonging to the ward, may be deemed to have the incidental power to bring suit to rescind the voidable sale made by his ward. Article 4168 expressly gives the guardian the right to recover possession of all property to which the ward has a “title or claim.” But until the necessary steps are taken of rescission by suit and decree tbe land could not be regarded as within the possession of the guardian and under the immediate control and supervision of the guardian and the probate court. Therefore, in the view of such legal situation of the land and the terms of the guardian’s application for sale, it may not be held that the land itself was in the possession and under the authority and jurisdiction of the guardian and the probate court subject to contract or conveyance in respect thereto by the guardian, or a purpose was presented for which a sale is authorized by the statute.

Reasonably construed, the application of the guardian and the order of the probate court thereupon must be considered as in the prime purpose of empowering the guardian to make to the subsequent purchaser, W. P. Neal, a guardian’s deed to the same land conveyed by the insane ward previous to the guardianship, but while he was insane. There was to be a new sale upon a new consideration, in confirmation or affirmation of the previous deed by the ward. The rescission or interference with the previous sale by the insane person was in no wise sought. The intention was, as plain as any language could possibly be, of making absolutely effectual through a guardian’s deed upon a consideration the previous sale by the insane ward. Such purpose for a sale is not authorized or derived from the statute. And it is believed the authority of the probate court to order a conveyance under guardian’s deed of the land to effectuate the purposes stated is not fairly implied. It is not doubted that a voidable deed may be rescinded in a suit 'brought for the purpose by the grantor himself when restored to reason, or by his guardian or legal representatives. The express authority is conferred upon the guardian to reduce all property of the ward to possession and to take control and supervision thereof. Such proceeding is merely to conserve the estate of the ward, by destroying voidable deeds, and- retaining the property. But there is a distinction between a disaffirmance or avoidance of a voidable deed and a ratification or valid affirmation thereof; the effect of ratification or affirmance being to shut off the right to disaffirm, and making the previous conveyance valid and binding. The right of affirmance is a personal right of a minor or án insane person, not exercisable during the existence of his disability, but upon the removal of the disability, of the minor becoming of age* and the,insane person restored to sanity. The right of election to do so rests solely with such insane person upon removal of the disability. And, in the absence of express statutory provision making .it the subject of a probate, sale, neither the guardian nor the probate court could sell or dispose, of the right, as in its nature of a right in real estate, to disaffirm and recover back the land. And it is concluded that, in the absence of express statutory provision, neither the guardian or the probate court, nor all together, can ratify or confirm a conveyance of land by the ward made previous to the guardianship, but while he was insane. The powers of the probate court, in respect to the estates of minors, and as truly estate of a person of unsound mind, are all conferred by statute. Whatever the statute authbrizes the probate court to do, it may rightfully do. And it is as certainly plain that, if the probate court orders a sale of land when the circumstances do not exist, which, under the law authorizes it to do so, it acts, in doing so, without authority. If the order of sale was a nullity, the confirmation of such sale could not legalize it. It was clearly within the power of the probate court, and the district court upon appeal sitting in probate, to set aside and vacate the orders upon the petition of the guardian. Article 4328, R S. And, in another point of fact, as found by the trial court, as respects the purchaser, there was failure of compliance with the terms of the sale, requiring as to him the setting aside of the order of confirmation of the sale of the ward’s land. It is expressly provided by the statute as a prerequisite of conveyance to the purchaser the compliance by the purchaser with the terms of purchase. Article 4220, It. S. .

The further and final question arises of whether or not the Shell Petroleum Corporation is in the position of a bona fide purchaser, and can set up such defense against the exercise by the probate court of jurisdiction to set aside the probate orders in controversy for legal invalidity. The most general statement of the doctrine of bona fide purchaser describes the purchase as one made in good faith for a valuable consideration and without notice. The purchaser may pay a valuable consideration, act in good faith, and yet he may have notice of matters or circumstances which vitiate the title of the immediate predecessor under whom he claims. It is an elementary doctrine, therefore, that, independently of valuable consideration and of good faith, notice will destroy‘the character of a bona fide purchaser and defeat the protection otherwise given to it. It specially appears, by affirmative finding of tbe trial court, that the Shell Petroleum Corporation, through its representatives, “prior to the time it paid W. E. Neal $2,500.00 for an oil and gas lease on this property,” had actual notice, through abstracts of title, of the lunacy proceedings, the contents of the guardian’s application, and the orders of sale and confirmation. Ry such circumstances notice would be charged of adjudication of insanity of the ward, an order of sale and sale under it of the ward’s land for purposes not authorized by statute, a previous sale of the same land by the ward before guardianship, although while insane. These facts, all apparent upon the probate record, would show and give notice that the probate court was not authorized to act as it did act. It could not be held that a sale in conformity with the order and a formal order of confirmation would pass the title to the purchaser, who was the grantor of the Shell Petroleum Corporation. The jurisdiction of the probate court was never rightfully called into exercise. Can the defense of bona fide purchaser be made available in the probate proceeding as a remedy against the vacation of the invalid probate orders? The doctrine of protection to a bona fide purchaser is not a rule of property, but is merely a rule of inaction. 2 Pomeroy, Eq.. Jur. (14 Ed.) § 743. It is only available by way of defense, and enforces no right and does not determine the question of title between the parties. It means that equity will refuse to interfere to aid the plaintiff in his suit, because, under the circumstances of the case, it would be unconscientious for him to have what he is seeking to obtain. Id., § 738. It seems to he the rule that whenever the orders of sale of the probate court are voidable through irregularities, which do not affect the validity or fairness of the sale, the probate court may, upon the plea of innocent purchaser, in its discretion either decline to set aside and vacate the merely voidable order or set it aside upon the condition attached of refund of the purchase money paid for the ward’s property. Kendrick v. Wheeler, 85 Tex. 247, 20 S. W. 44. The sale emanating from probate proceedings which are merely voidable, and the estate having passed to a subsequent bona fide holder by an apparently valid title, the principles of equity in clear conscience would sustain the claim of the subsequent bona fide purchaser in not setting aside the order of sale of the ward’s property, or in canceling the order of sale, which has the legal force and effect of reclamation of the land from the purchaser, to require refund of the purchase money. Upon such a state of facts the ward cannot, as a matter of clear right, have the sale set aside, although irregularities are shown. There is complete and effectual execution of the potvers given to the probate court of administration upon the land. In the present case, though, the probate orders in controversy were not merely voidable, but were void as without the jurisdiction of the probate court to entertain and make. The right to relief, as to this defense, cannot be rested solely on the ground that the subsequent purchaser and his grantor innocently dealt with the property under guardianship administration. If the guardianship orders were void, the subsequent purchaser nor his grantor would not acquire title or equitable right in the land. They would acquire no interest or estate in virtue of guardianship proceedings that in good conscience should prevail against the claim of the ward who is the legal innocent owner. Such persons would not have a legal estate to protect. There is no equity to deny the setting aside of the order of sale and effect the reclamation of the land to the ward. Quoting from 2 Pom-eroy, Eq. Jur. § 735: “When the original owner has done or omitted something by which it was made possible that his property should come into the hands of a bona fide holder by an apparently valid title, it may be just to regard him as estopped from asserting his ownership, and thus to protect the subsequent purchaser. But when the prior legal owner is wholly innocént, has done and omitted nothing, it certainly transcends, even if it does not violate, the principles of equity to sustain the claims of a subsequent and even bona fide purchaser.”

The case of Halbert v. Heirs of Young (Tex.Sup.) 6 S. W. 747, 748, would seem to indicate the real rule which would entitle the protection of bona fide purchaser to be “that the orders and decrees of the probate court for Hallas county, while voidable, were not void.”

It is here noticed, in order to avoid misconception of the extent of the ruling herein, that the claim of W. E. Neal and his lessee, the Shell Petroleum Corporation, under the deed from the insane person made before guardianship proceedings were begun, is not in any wise involved in this controversy or affected in any particular by the ruling herein. Such deed and such title thereunder as the grantees may have acquired does not arise under or out of the guardianship proceedings.

It is believed the trial court has correctly decided the case, and the judgment is accordingly affirmed.


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

text:
    FIRST NAT. BANK IN DALLAS v. PIERCE.
    No. 1675—6159.
    Commission of Appeals of Texas, Section A.
    March 21, 1934.
    Coke & Coke and Thomas G. Murnane, all of Dallas, for appellant.
    Levens, McWhorter & Howard, of Dubboek, for appellee.
   HARVEY, Presiding Judge.

The Court of Civil Appeals for the Seventh district has submitted the following certificate containing certified questions:

“C. A. Pierce, plaintiff, filed this suit in the District Court of Lubbock County against W. A. Myrick, Sr., H. W. Stanton, George C. Wolffarth, and the First National Bank in Dallas, having its residence and principal place of business in Dallas County, Texas, as defendants.
“The Bank filed its plea of privilege to be sued in the county of its residence. This plea was overruled by the Trial Court and appeal had to this Court.
“The appellant, by two propositions, presents to us alleged errors of the Trial Court in overruling defendant Bank’s plea of privilege. The first is that plaintiff’s controverting afiidavit to defendant’s plea of privilege was insufficient as a compliance with the terms of article 2007, R. C. S., 1925.
“The second is that the plaintiff’s petition and proof discloses three distinct and sever-able causes of action, — one against the Bank, which, if good at all, could only be based upon a claim for unlawful conversion of money and certain notes growing out of a transaction occurring wholly within Dallas County, had wholly between the Bank and defendant Myrick, involving the negotiation and transfer of certain negotiable notes at a time when Myrick was lawfully vested with the title to said notes and authorized to deal with them ; a second cause of action against the defendant Myrick for breach of express contract and failure to faithfully account to plaintiff for plaintiff’s share of the proceeds of their joint enterprise; and a third cause of action based upon trespass to try title against defendant Stanton for purchasing certain lands while charged with notice of the contract between Myrick and plaintiff in regard to the title to said lands; that said causes of action were not joint and the defendant Bank was not a necessary party to the proceedings in Lubbock County.
“The plaintiffs canse of action, as set ont In his petition, is a suit, first as against Wolf-farth, his alleged partner, in the matters and things involved in the suit, and he, Wolffarth, is made a party defendant because it is alleged he refused to join in the suit against Myrick, Stanton and the Bank. The controverting affidavit by plaintiff alleges substantially that plaintiff and defendant Wolffarth were the owners of certain vendor’s lien notes, describing them, aggregating a sum in excess of $20,000.00; that plaintiff and Wolf-farth negotiated a loan with the defendant Myrick in the sum of $11,631.23, and placed the $20,000.00 vendor’s lien notes with My-rick as collateral security for said loan; that Myrick, at the time of placing of the vendor’s lien notes as collateral, had the right to collect sufficient money therefrom to pay off the ,$11,631.23 indebtedness to him, and the balance in vendor’s lien notes was to be trans-. ferred and surrendered back to plaintiff and Wolffarth; that Myrick put the $11,531.23 note, together with the collateral notes pledged, and pledged them and each of them with the defendant, First National Bank in Dallas, to secure an indebtedness due and owing by Myrick to said Bank. That the said Bank is and has been at all times since in possession of said notes and said Bank, at the time of the placing of said notes with it by Myrick, had both actual and constructive notice that said notes belonged to the plaintiff and Wolffarth and had knowledge that same were placed and pledged with the defendant Myrick as collateral security to his, Myrick’s debt. That Myrick, with the knowledge and consent of the Bank, collected notes in excess of $16,000.00; that the notes held by the Bank, have never been credited with any sums paid to defendant Myrick and the Bank; that the Bank had knowledge of all of the collections made by Myrick, but had negligently failed to make any credits on said $11,531.23 note, or said collateral notes, and failed and refused, and still fails and refuses, to deliver the same or any part of said notes to plaintiff or defendant Wolffarth. Plaintiff further in said controverting plea alleged that the Bank and Myrick should be required to account to him for such sums collected on the collateral notes, both principal arid interest, and to account to him for the value of the lands taken by deeds in satisfaction of any or all notes and indebtedness that they have collected and surrendered, and to account to him for all lands taken under foreclosure, as well as all the rents, etc.
“There is evidence that would warrant the Trial Court in finding that the Bank in Dallas had actual notice that Myrick held the vendor’s lien notes as- collateral and there is evidence sustaining plaintiff’s cause of action as pleaded by him.
“In the opinion of this Court, the decision of the questions at issue before us depends upon the construction to be given to article 1995, subdivision 29a, which reads as follows;
“ ‘Whenever there are two or more defendants in any suit brought iii any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.’
“In the case of Cobb v. Barber, 92 Tex. 309, 47 S. W. 963, the Supreme Court held that where a suit was rightfully brought against a defendant who resided in the county in which the suit was brought, that the plaintiff had the option to join with such defendant in that suit another defendant who resided in a different county, provided he was a proper-party to the suit.
“Subsequent to the rendition of that decision, the Legislature amended article 1995 by adding subdivision 29a to it.
“We therefore ask for a construction of this subdivision 29a- and propound to Tour Honors the following questions:
“First; Does this amendment permit the making of a party defendant in a suit brought in a county other than the county of his residence, if he be a proper party to the litigation, or does it require that such defendant be a necessary party to the litigation?
“Second: Is the defendant, First National Bank in Dallas, a proper party to the litigation, or is it a necessary party thereto?
“Third: Is the issue of venue herein governed by article 1995, subdivision 4 or is it governed by said subdivision 29a?”

Subdivision 29a of article 1995 appears to have been enacted as an additional exception to the provision of said article which says that: “No person who is an inhabitant of this State shall be sued out of the county' in which he has his domicile.” The new exception thus created does not purport, in terms, to change in any respect the previously existing exceptions prescribed in said article, and we do not think that such a purpose is fairly implied. The purpose of the new exception, as disclosed by its terms, was not to restrict the meaning or operation of any pre-existing exception contained in the article, but to leave them all in full operation as before. It is reasonably clear that the term “necessary parties” is used in the new exception in the strict sense of the term; that is to say, as embracing “only those persons without whose presence before the court no adjudication of any of the subject matter involved in the litigation can be had.” Townes, Texas Pleading (2d Ed.) 258. The very fact that this is the meaning of the term “necessary parties,” as used in the new exception, tends to exclude the idea that the Legislature intended the provisions of the new exception to modify or in anywise control the operation of the provisions of the old exceptions. For it may he fairly presumed that, if the new enactment were intended to dominate or vary the meaning or operation of said pre-existing provisions, the Legislature, because of momentous and far-reaching results that would follow, would have more clearly disclosed such intention, and would not have left same to be discovered by uncertain implication.

With reference to the present suit, it is clear enough that the First National Bank of Dallas is not a necessary party, within the meaning of subdivision 29a; consequently venue, as to the bank, does not lie in Lubbock county by virtue of this subdivision of the statute. However, this conclusion does not foreclose the matter of venue. For reasons to .be stated, there can be no doubt that, as to the bank, venue lies in said county by virtue of subdivision 4 of said article 1995. That subdivision provides that: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” ■

This suit embraces a cause of action against the bank and Myriek, for trespass, involving property belonging to the plaintiff and Wolffarth. Although the trespass occurred in Dallas county, and the bank is domiciled there, Myriek resides in Lubbock county where the suit was brought. The bank and Myriek'jointly committed the trespass and are jointly and severally liable therefor. In respect of liability for the trespass, neither the bank nor Myriek may not be an absolutely necessary party to the suit against the other, but both are proper parties. Whatever seeming discord may exist among the authorities as to the effect of subdivision 4 in other respects, all agree that, by virtue of this subdivision, a suit to enforce a joint and several liability against two or more defendants may be brought in the county where one of said defendants resides.

What has been said is intended to relate exclusively to the matter of venue as presented in the certificate, and same furnishes a sufficient answer to the questions certified. We recommend that they be so answered.

CURETON, Chief Justice.

The opinion of the Commission of Appeals-answering the certified questions is adopted and ordered certified.


author: LATTIMORE, Judge.

text:
    NELSEY v. STATE.
    No. 16532.
    Court of Criminal Appeals of Texas.
    March 21, 1934.
    David E. Hume, of Eagle Pass, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   LATTIMORE, Judge.

Conviction for trespassing; punishment, a fine of $100.

It is charged in the complaint that appellant, about the 21st of November, 1933, in the-county of Maverick and state of Texas, unlawfully entered upon the inclosed land of Mack Burleson, without the consent of the owner, proprietor, or agent in charge of said land, and did therein hunt with firearms.

Our attention is attracted to the fact that there is not the slightest evidence of want of' consent on thé part of the owner of the inclosed premises. For this law to be violated, the hunting or fishing must be without the-consent of the owner.

The prosecution will 'be reversed, and the cause remanded.


author: LATTIMORE, Judge. HAWKINS, Judge.

text:
    WILLIAMS v. STATE.
    No. 16464.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 28, 1934.

      Quinton Wright, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, death. This is the second appeal. See 5S S.W.(2d) 125, for former opinion. Between the statement of the facts appearing in said former appeal and those in the instant case, there seems little difference, save certain additional testimony adduced by the state to which reference may be later made.

The record reveals that the learned trial judge was unable to agree to many of appellant’s bills of exception, and to a large number of them he has certified said inability, and has filed in lieu thereof certain other bills of exception. It is also certified, and this may in part account for the failure to file or attempt to file bystanders bills, that while the bills of exception were in course of preparation and approval, appellant’s attorney was seriously injured, and that he was confined in the hospital and unable to give his personal attention to the case. The first three bills of exception were prepared by the trial judge, each bearing the statement that he could not approve said bills as originally presented to him, and that appellant refusing to agree to any qualification, the court had prepared said bills as his own and filed them accordingly. We have examined each bill and none of them reflect error. In substance the first urges that because of statements made in qualifications placed by the trial judge upon bills of exception taken during the former trial of appellant, said judge was regarded by appellant as having expressed opinions which per se disqualified him from sitting upon this trial. The second bill set up that the jury wheel, from which was drawn the special venire in this case, was not filled according to law in that Tom Graham, criminal district clerk of Harris county, was not present when the wheel was filled. The facts adduced upon the hearing of the motion to quash the venire show that the wheel was properly filled, in the presence of the trial judge, the district clerk of Harris county, and other officials named in the statute. It is shown that Harris county has a district clerk, and also a criminal district 'clerk. The statute makes no mention of the necessary presence of a criminal district clerk. The next bill was to the introduction of two photographs, one of the building in which deceased was killed by the entrance into his neck and body of a load of buck shot; the other being of a window in one of whose panes was a jagged hole with shattered edges. The objection seems based on' the failure to produce a photographer and by him prove up said pictures, but we see no need for this since two witnesses who saw the house where deceased was killed before and after the homicide attested the fact that said pictures accurately portrayed both house and window as same were after the killing. Gibson v. State, 53 Tex. Cr. R. 370, 371, 110 S. W. 41; Young v. State, 49 Tex. Cr. R. 213, 92 S. W. 841.

Bill of exceptions No. 4 shows a complaint of testimony, the objection to which seems to have been raised for the first time in appellant’s motion for new trial. In the court’s qualification it is stated that when objection was made to this testimony, the jury was instructed not to consider it. Bill 5 sets out the fact that on the night of November 16, 1931, being the night of the alleged homicide, officers, for another offense, arrested appellant, who lived about a mile from where Mr. Bennett, deceased, lived. That these officers toot appellant to the home of one Sad-ler, about one hundred and fifty yards from where Bennett lived; that they let appellant get out of their car and go in to see Sadler. The exact complaint is that one of the officers having charge of appellant on said occasion was permitted to testify, “The last we saw of him he was about one hundred and fifty or two hundred yards from the old man’s house and going that way.” The qualification to this bill shows that appellant was arrested that night for making threats against one Richardson, and was taken by the officers to Sadler’s place to get Sadler to make his bond for said offense; that Sadler lived about one hundred and fifty or two hundred yards from the home of deceased, and while at Sadler’s appellant escaped from the officers. We do not think the testimony inadmissible. In this connection attention might be called to the fact that in the testimony of Yictoria Jackson, later herein referred to, she said that on the night in question appellant told her that he had intended to kill old man Richardson and went down there for that purpose, but Richardson’s dogs bayed and he went over to old man Bennett’s and saw him in there writing a letter and shot him.

Bill of exceptions 7 set out objections to the testimony of state witness Myers in reference to an alleged confession, the witness stating that he read the same to appellant and that appellant read it himself. The objection was to the last portion of the answer of the witness as being a conclusion and opinion. The court declined to strike that part of the testimony of the witness. We see no error in the matter.

Bill of exceptions 8 complains of a statement of witness Myers in that said witness was asked if he saw officer Dinkins catch Sarah Wade by the arm and tell her to get into the automobile. Witness answered that he did not, and testified that they (meaning Sarah Wade, sister of the defendant and Mary Williams, wife of the defendant) got in said automobile voluntarily. The objection was to the statement that “they got in voluntarily.” We see no materiality in the matter, and no sufficient ground for exception.

Bills of exception 6 and 9 to 16, inclusive, are bills prepared by the court in lieu of refused bills. All of same have'been carefully reviewed. In none of them does there appear anything in which we are even in doubt as to its admissibility. To review these individually would lengthen this opinion beyond reason.

Bill of exceptions 17 complains that while appellant’s wife was on the stand as a witness in his behalf, she was asked certain questions, to which appellant objected because the witness was his wife, and the questions involved new matters which were not inquired into on direct examination. The bill is qualified .by setting out the questions asked and the testimony given, and both questions and answers seem entirely to relate to matters about which the witness testified on her direct examination.

Bills of exception 18, 19, 22, 23, 24, and 25 are also bills which were prepared and filed by the court in lieu of refused bills. Each of these bills has been carefully examined and is deemed to contain nothing worthy of discussion and nothing which presents any error.

Bill of exceptions No. 20 sets out that Victoria Jackson was called as a witness on behalf of the state, and testified that appellant had told her that he had killed Mr. Bennett, deceased, and had thrown the gun in a hole of water in the bayou, a few hundred yards from Bennett’s house. Thereafter appellant took the stand in his own behalf and denied having made any such statement to Victoria Jackson, and was asked on cross-examination by the state’s attorney, how Victoria Jackson knew that he had thrown the gun in that hole if he did not tell her about it. Appellant’s counsel objected because it would be a conclusion and opinion of the witness based on hearsay, and was prejudicial and inflammatory. Victoria Jackson having testified as set out, and appellant having denied that he made the statement to her, it seems to us entirely proper to have cross-examined him in the manner set out in said bill of exceptions.

Bill of exceptions No. 21 sets up that after being arrested, officers took appellant several miles from Houston and at a point on the bank of a bayou appellant signed a penciled statement in the nature of a confession. Appellant while on the stand as a witness was asked some questions regarding where he went the night that he escaped from some officers. 1-Ie was asked if he did not tell the officers who took him out on the bayou that he went to the Bennett house that night. Objection was made to this on the ground that the-written statement of the appellant above referred to spoke for itself, and ^liat any oral statements made by appellant were made while under- arrest and were inadmissible. The qualification of the court shows that the state was merely asking appellant, on cross-examination, in reference to statements made by him to the officers at the time they took his written confession, which statements appear to be embodied in the confession.

Bill of exceptions No. 26 brings forward objection to a statement of officer Dink-ins that part of the time while thfey were out on the bank of the bayou he was looking for the gun where “he said he throwed the gun in the bayou.” The objection was made that the answer was not responsive. In his qualification to this bill the court states that in appellant’s confession, which was admitted in evidence, he said that after shooting Mr. Bennett he threw the gun in the bayou. We see nothing deemed erroneous in the matter complained of.

Bill No. 27 sets up objection to the state reopening the case and introducing the witness Mr. Myers, who testified that he gave appellant the statutory warning before appellant signed the penciled confession referred to, and that he heard officer .Spradley give him the'same warning. In his qualification the court certifies that Mr. Spradley did not testify in this ease, and that it having b.een observed that the written confession contained the statement that appellant had been warned by both said Myers and Spradley, the court permitted the state to reopen the case to prove by Mr. Myers that Spradley did in fact also warn appellant. We think this matter entirely within the discretion of the court. Bill of exceptions No. 28 is substantially the same as bill No. 27.

The complaint of certain testimony appearing in bill of exceptions No. 30 seems to have been raised for the first time in the motion for new trial, which would not be sufficient to bring the matter forward for review.

Bills of exception Nos. 31 to 35 were all prepared by the court and filed in lieu of refused bills which were prepared by appellant and presented to the court, and all of same relate to the confessions of appellant introduced in evidence and the charge relating to same. Bill 31 sets out that when the state offered appellant’s written confession, upon request the jury was retired, and in their absence Mr. Myers gave testimony which is set out, showing that the statutory warning was given appellant before he made such confession. It further appears that appellant’s attorney said he wanted to put appellant on the stand opposing the voluntary character of said confession. The state’s attorney said: “We have no objection, bur if defendant takes the stand, he takes it for all purposes.” Appellant further did not offer himself or any other witness on the point, but said, “We except.” We think this bill presents no error.

Bill of exceptions No. 32 sets out exception to the charge in regard to a penciled confession of appellant introduced by the state, the state witnesses having sworn that appellant was duly warned before he signed same, and that it was voluntarily made. Looking to the court’s charge as given in this case, we note that the court, after having told the jury in general terms that a statement made in jail or under arrest would be inadmissible, unless it be shown that the party making same had been warned by the persons to whom it was made that he did not have to make it, and that if he did it could be used in evidence against him, then told the jury as follows:

“Now, if you believe from the evidence beyond a reasonable doubt, that the defendant made the penciled statement introduced in evidence by the State purported to have been made to the witness R. R. Myers and Arch Spradley and he signed the same and that he had been warned as set out in said purported statement by R. R. Myers and Arch Sprad-ley prior to the time he signed said statement that he did not have to make any statement at all and that any statement made by him could be used in evidence against him on the trial of the case concerning which the same was made and that the statement was voluntarily made by the defendant and without compulsion, violence, threats or persuasion or through fear or by reason of any promises, then you may consider the statement so made,, in connection with the other testimony in evidence in the case in determining your verdict. Otherwise, you will not consider such statement for any purpose whatsoever. * *

“If the jury believes that the defendant, made the first, or penciled statement, and at the time of so doing he was influenced or induced to make the same by reason of threats-to hurt, injure or kill him, or by demonstration of any kind made by any person present at the time said statement was made, if the same was made, or at any other time prior to the making of said statement, then you will not consider the same for any purpose whatsoever.”

We see no merit in this bill. The same objection and the giving of the same charge in regard to the same matters appears in bill of exceptions No. 33, which complains of a typewritten confession signed by appellant and introduced by the state. We think; said charge fully protected appellant’s rights and presented the law.

In hill of exceptions No. 34 appellant sets out his objection to the charge for its failure to tell the jury that both'officers, Myers and Spradley, must have given to appellant the statutory warning before he made the typewritten confession referred to. This seems without merit, especially in view of the fact that the court told the jury in his charge that they could not consider such confession except upon their belief that both of said officers had so warned appellant before he signed said confession. Substantially the same matter appears in bill of exceptions No. 35, which further presented exceptions to the typewritten confession. The court certifies in said bill that the typewritten confession was an exact copy of the One written in pencil, the testimony showing that the penciled confession was made out on the bank of the bayou where, according to the state, appellant had gone with the officers to show them where he had thrown the gun with which it was claimed the killing was done; the other confession was a typewritten copy of said penciled confession, typed after the parties came back to town, both being signed by appellant and witnessed by a number of persons who testified.

In addition to the confessions of appellant made to the officers in writing, which the state introduced, one Victoria Jackson, a negro woman, was also put on the witness stand, and testified that she lived near appellant, and had known him for several years. She said shortly after hearing that Mr. Bennett was killed, she went down in the neighborhood of Richmond, the county seat of Fort Bend county, where she saw appellant. She asked him what he was doing down there, and he said he was scouting from the laws. She asked him what for, and he said that they had him accused of killing old man Bennett, that he called 'old man Bennett the chicken ranch man. She asked appellant if he was guilty, and he commenced to cry, throwing his head down. She said that she asked him again, “Did you do it?” He said: ■“That is what they say.” She said she kept on asking him did he do it; that he hung his head down again; that she told him to hold up his head and talk to her, and he said “Women folks are so funny.” “I said ‘Well, did you, did you do it,’ and he said ‘Yes.’ ” “He said the old man — he said he went to William Richardson’s house to kill William Richardson first, and William Richardson’s dog bayed at him, barked at him, and he left William Richardson’s house and went to old man Bennett’s house and he was sitting up there writing a letter and old man Bennett heard somebody walking on a stick out there and he reached and pulled the shade down and about that time the shot was made. Johnnie (appellant) made the fire. * * * 1-Ie said he rushed on in the house and went in his pockets; * * * he said after he went through his pockets he thought he heard somebody walking and he went on up the road then and he came to the hole what we used to fish in, a hole in the bayou where we fished at, and he said he dropped the gun in the hole there.” In addition to this testimony given by Victoria Jackson, we note that appellant put on the witness stand one Belton Davis. On cross-examination by the state Belton Davis testified that in November, 1931, he lived on a farm near Richmond; that on November 17th appellant came to his. place and stayed until nearly Christmas. He said every time a white man who looked like an officer appeared, appellant would hide; would run when he saw a man hunting, seemed worried, told witness the law was looking for him for killing an old chicken man in Houston near Rosslyn Heights. He said that Victoria Jackson came down there, and he heard her talking to appellant; they were talking low. talking about the killing.

We have tried to give this case the careful consideration that ought to be given to any case wherein a citizen is sought to be deprived of his liberty, and especially when by the verdict of the jury he is to be deprived of his life. We have found no error in the record, and the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

Appellant renews his complaint registered by bill of exceptions No. 1. Said bill reflects that on April 18, 1933, when this case was called for trial, appellant filed a written motion to disqualify the presiding judge, said motion being based on the following incident The case had been tried before at a prior term of court and on June 18, 1932, the judge had overruled appellant’s motion for new trial, incorporating in the order his finding on certain issues of fact which were controverted by the state, and also certain other findings regarded by appellant as expressive of the individual opinion of the’ judge as to appellant's guilt. Tlie record shows that the court had no personal knowledge of the case, and that whatever expression indicating his belief of appellant’s guilt, or other findings which were incorporated in the order overruling the motion, were toased upon the evidence heard by the court. The Order was regarded by appellant as being unauthorized under article 768, O. 0.. P., which reads:

“In granting or refusing a new trial, the judge shall not sum up, discuss or comment upon the evidence in the case, but shall simply grant or refuse the motion, without prejudice to either party.”

On June 25, 1932, appellant filed a motion to have the order of June 18th expunged from the record, and requested that in lieu thereof the drder simply show that appellant’s motion for new trial had been overruled. The trial judge refused to expunge the order complained of. Appellant urges that the refusal of the court to change the order, and the findings and expressions contained therein, worked a disqualification of the judge. The bill of exception in question brings forward complaint of the action of the judge in declining to hold himself disqualified. Article 758, C. C. P., has been the subject of comment by this court on more than one occasion. A violation of its provisions will n'ot call for a reversal of a judgment where complaint has been registered in the particular trial then being reviewed unless injury is shown. Rains v. State, 7 Tex. App. 588; Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985; Rocha v. State, 43 Tex. Cr. R. 169, 63 S. W. 1018, 1020.

Section 11, art. 5, of the state Oonstitution reads in part, as follows:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity 'or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”

Article 552, O. C. P., reads as follows:

“No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree.”

In Berry v. State, 83 Tex. Cr. R. 210, 203 S. W. 901, this court expressed the opinion that the grounds of disqualification of a judge set out in the Oonstitution and statute mentioned appeared to be exclusive, citing in support thereof a number of authorities. Prejudice of the trial judge against the accused does not disqualify the judge, neither does expression of the judge indicating his belief in accused’s guilt.- The effect of such belief or opinion, when shown to exist, calls for a close scrutiny of the judge’s ruling in the case at hand. Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965; Gaines v. State, 38 Tex. Cr. R. 202, 42 S. W. 385; Drechsel v. State (Tex. Cr. App.) 39 S. W. 678. The complaint brought forward in bill of exceptions No. 1 cannot be sustained and was properly disposed of in our original opinion.

In the two confessions of appellant which were introduced in evidence by the state it was recited that appellant was warned by both officers Myers and Spradley. The latter.was not present at the trial. Myers testified that both he and Spradley gave the warning. By bill of exceptions No. 27 appellant brings forward complaint because Myers was permitted to testify, Over objection, that it was hearsay, that he heard Spradley also give appellant the proper -warning. Usually the warning is proven up by the party giving it, but we see no reason why proof thereof cannot be made by any witness who was present and heard it. A somewhat similar question was before the court in Ortego v. State, 58 S.W.(2d) 825, where the point was made that the correctness of the translation of a confession from Spanish into English could be -proven only by the person doing the translating. The point was overruled.

We think appellant’s suggestion that he was deprived of counsel cannot be sustained. The suggestion is predicated upon the following unfortunate occurrence. After the trial, counsel prepared many bills -of exception and turned them over to the trial judge for his approval. Many of the bills the court did not think it proper to approve without qualification. Before counsel could assent or dissent to the proposed qualifications, he suffered serious injuries in an automobile accident and was for a long time totally unable to attend to any business whatever. In order that appellant be not deprived of his bills the court prepared bills of his own in lieu of many which he intended to qualify. The presumption prevails, in the absence of any showing to the contrary, that the hills prepared by the court correctly reflected the record. In view of such presumption it follows that appellant has been deprived of no right which could have -been protected by counsel had he not sustained the accidental injuries mentioned.

Because of the death penalty having been assessed we have again examined carefully all of the bills of exception and find none of them reflect error upon which a reversal could ’be based. The statement of facts has likewise been again reviewed. The evidence to our minds amply sustains and warrants the verdict assessing the extreme .penalty.

Counsel for appellant is to be commended for his zeal in behalf of his client. He has left nothing undone which could have been accomplished in his behalf. The facts were not of his making. They reflect a murder without excuse and for no cause except the hope of gain.

The motion for rehearing is overruled.