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(248 S.W.) 50; that in refusing to issue the license the case would be presented than tlie one at bar. city had neither divested the plaintiff of a Or, if, upon application to the city commisriglit nor deprived him of his property. sioners to grant him a license, and their

[3] In 19 R. C. L. p. 975, $ 272, it is said: refusal to do so, it is shown that their ac"When an occupation is of such a character tion is not warranted under the law, and is that a municipal corporation under a general discriminatory, unreasonable, and arbitrary, grant of the police power is justified in regu- a different case would be presented. But as lating it in the interests of the public health, ) to the case presented in the record before morals, safety, or welfare, and, as an incident us, we find no error in the refusal of the to such regulation, in requiring a license to be district judge to issue the temporary intaken out by all who seek to engage therein, junction prayed for, and the judgment bethe power of the municipality to revoke such a

low is affirmed. license whenever in the opinion of the municipal authorities the public interests require such action is inherent, and may be exercised without previous notice to the holder of the license and without affording him an opportunity to be KENNEDY et al. V. MCCAULEY. * heard. In such case the licensee has no re

(No. 2068.) dress, provided the action of the municipal authorities was not arbitrary, tyrannical, unrea- (Court of Civil Appeals of Texas. Amarillo. sonable, or based upon false information."

Feb. 7, 1923. Rehearing Denied

Feb. 28, 1923.) This rule applies to a license levied and collected for the purpose of paying for the!!. Gaming Cw49(1)-Contract for future de

livery not presumed gambling transaction. police regulation of the occupation license, and does not apply to a license levied for ton or other commodity is not presumed to be

A contract for the future delivery of cotthe purpose of raising revenue.

a gambling transaction. [4] There is nothing in the record to support the contention of appellant that the 2. Gaming Cw12_Contract to deliver at fu.

ture date not invalid. ground, or at least the only ground, the city of Cisco had for revoking his license was

A bona fide agreement mutually to deliver his violation of the ordinance prohibiting cotton at a fixed price, on a day certain, is not the owner or driver of any motor vehicle Code 1911, arts. 538-547.

invalid, as one dealing in "futures" under Pen. to knowingly carry intoxicating liquors for beverages, or to carry women for immoral 3. Principal and surety P35–Extension of

time sufficient consideration for execution of purposes. If the city commission had the power and authority to revoke the license

note by surety. of the plaintiff for any reason that would

The execution of a note by a surety to sehave authorized them to refuse to issue the cure the payment of a previous obligation was license in the first instance—and we believe there was a 12 months' extension of time grant

supported by a sufficient consideration, where this to be undoubtedly the law—there is ed the principal. nothing in the record to show or suggest that one or more of such reasons did not

Appeal from District Court, Collingsworth exist in the instant case. Appellant may County; J. A. Nabers, Judge. have been a reckless driver, or he may have been in the habit of getting drunk while

Action by G. W. McCauley against L. A. driving his car, or information may have

Kennedy and another. Judgment for plaincone to the city commissioners of the ex- tiff, and defendants appeal. Affirmed. istence or occurrence of any number of acts

See, also, 236 S. W. 752. on the part of appellant, which in good con R. H. Templeton, of Wellington, and science would have authorized said city com- Benson & Benson, of Bowie, for appellants, missioners to revoke the license theretofore C. C. Small, of Wellington, for appellee. issued. When notified to appear before said commissioners, the plaintiff refused or fail KLETT, J. The judgment for principal, ed to do so, and we do not think that he is interest, and attorney's fees was rendered now in a position to complain of the action against appellant L. A. Kennedy, as princiof the city council in revoking his license, pal, and appellant R. Q. Kennedy, as surety, or of the action of the district judge in re-on a promissory note of $1,500, sued on by fusing to issue the temporary restraining the appellee G. W. McCauley, as plaintiff, in order prayed for.

the district court of Collingsworth county. While the conclusions above stated au- The appellant L. A Kennedy defended the thorize and require us to aflirm the juds- suit on the ground that the note was given ment below, yet if plaintiff upon a hearing in settlement of a gambling transaction and on the merits can show that the action of was void under the laws of Texas, prehibitthe city commissioners was arbitrary, un- ing contracts in "futures,” in that the note reasonable, or tyrannical and is discrimi- was executed in pıyment of the difference natory against the appellant, a different between the contract price and market value Ew For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error dismissed for want of jurisdiction April 4, 1923.

of 25 bales of cotton, which, it is claimed, , App.) 230 S. W. 844; Clark v. Merriam & appellant L. A. Kennedy had contracted to Milliard Co. (Tex. Civ. App.) 223 S. W. 869; deliver to appellee in the future, but which Life Insurance Co. v. Stuart (Tex. Civ. App.) the parties mutually understood was not ac- 1 201 S. W. 1091. The above holding elimi. tually to be delivered. The appellant R. Q. nates the appellant's further contention that Kennedy claimed there was no consideration the note sued on is void because given in for his signing the note as surety, in that the settlement of a gambling transaction. debt which he promised to pay was the gam The sufficiency of the evidence to show that bling debt of another, and past due when he there was a bona fide agreement to make an signed the note given to cover said debt. actual delivery of the cotton is assailed. As

The trial was before the court without a already indicated, the testimony on this isjury. No findings of fact or conclusions of sue was conflicting, but ample to sustain law appear in the record. The evidence the judgment of the trial court. Kennedy v. shows that, in the spring of 1919, defendant McCauley, 236 S. W. 754. L. A. Kennedy contracted in writing to de. [3] The appellant R. Q. Kennedy advances liver to appellee on November 20, 1919, 25 the proposition that the execution of a note bales of cotton at 17 cents per pound, though by a surety to secure the payment of a previcotton had a market value of 22 cents per ous obligation is without consideration. This pound when the agreement was made. The proposition cannot be sustained, in view of contract had been misplaced at the time of the facts of this case, for the reason that trial, but proof of its contents was parol the 12 months' extention of time granted to testimony. At the time of delivery, the the principal was a sufficient consideration cotton had a market value of 39 cents per to bind the surety. Bonner Oil Co. v. Gaines. pound. Appellee failed to deliver the cotton 108 Tex. 232, 191 S. W. 552, Ann. Cas. 1918C, on the date agreed upon, and on December 10.574; Hanney v. Moody & Co., 71 S. W. 325. 1919, appellant L. A. Kennedy and appellee Finding no reversible error, the judgment settled their contract by appellant L. A. is affirmed. Kennedy promising to pay appellee $2,500. As part of the settlement, the appellee agreed to accept the note sued on, with the understanding it would be signed by appellant TWO STATES TELEPHONE CO. v. HURR. Q. Kennedy and made payable 12 months

LEY. (No. 2644.) after its date. Accordingly the note was executed, delivered, and accepted as agred (Court of Civil Appeals of Texas. Texarkana. upon. There was a dispute in the testimony

Feb. 28, 1923. Rehearing Denied

March 8, 1923.) as to whether or not there was an intention or agreement to make actual delivery of the I. Electricity aw 19(5)-Finding that fire was cotton. The appellants say in their brief: caused by contact between telephone and elec"The plaintiff, McCauley, testified that an ac

tric light wires sustained. tual bona fide intention for the delivery of the

In an action against a telephone company cotton was made. The defendant L. A. Kenne. for the value of household goods destroyed by dy, the other contracting party, testified that it fire, evidence held sufficient to support a find. was agreed to settle on the market.

*ing that the fire originated from telephone wires The attorneys who prepared the contract tes coming in contact with electric light wires. tified they thought it provided for delivery of 2. Appeal and error w930 (2)—Jury instruct. the cotton.” Page 13, Appellant's Brief.

ed to find value of plaintiff's property assum

ed not to have included property she did not [1, 2] The appellants' first and principal contention is that a contract for the future

Where the greater part of property, for delivery of cotton or any other commodity is the loss of which plaintiff sued, was hers indipresumed to be a gambling transaction. The vidually, and the amount recovered was less contention must be overruled, as it omits than that to which she was entitled according elements necessary to create a wagering con. to her testimony as to the value of her own tract. All issues of fact being resolved in property, it must be assumed that the jury, favor of the judgment rendered, we find that which was instructed to find the value of "plainthe parties to this appeal made a bona fide tiff's property," did not include property she

did not own. agreement actually to deliver the cotton at a fixed price on a day certain. Such a 3. New trial com 108(2)-Newly discovered tes. contract is not condemned as one dealing

timony held insufficient to authorize new trial. in "futures." Penal Code, arts. 538-547;

Testimony of a witness, discovered after Smith v. Duncan (Tex. Com. App.) 209 S. w. the trial of an action in which plaintiff had 143; Cleveland v. Heidenheimer, 92 l'ex. 108. judgment for the value of household goods de 46 S. W. 30; same case (Tex. Civ. App.) 44 telephone wires coming in contact with elec

stroyed by fire, found to have been caused by S. W. 551; same case (Tex. Sup.) 17 S. W. tric light wires, that when he first saw the 524; Puckett v. Wilson Bros. (Tex. Civ. App.) building the smoke was coming through the 211 S. W. 642; Fenter v. Robinson (Tex. Civ. / roof, held insufficient to authorize a new trial

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(248 S.W.) as requiring a different finding as to how they were heard at or about the time the fire origfre originated.

inated, indicating an unusual condition in

the telephone instrument. The fire apparAppeal from District Court, Hopkins Coun- ently originated about where the wires were ty; Geo. B. Hall, Judge.

located in the house. It was shown that Action by Mrs. Mayme Hurley against the there was no other probable cause for the Two States Telephone Company. Judgment fire. While the finding of the jury upon that for plaintiff, and defendant appeals. Af- issue would be more satisfactory if based firmed.

upon stronger circumstances, we cannot say Clark & Sweeton, of Greenville, and Dial, it was without sufficient legal support. Melson & Davidson, of Sulphur Springs, for

[2] Concerning the second question, the eriappellant.

dence showed that a part of the property Connor & Ramey, of Sulphur Springs, for burned belonged to the community estate of appellee.

the appellee and her deceased husband, and

à part belonged to her two minor children. HODGES, J. The appellee filed this suit The greater part of it, however, was hers to recover the value of household goods de individually. The total amount sued for was stroyed by fire in February, 1920. At that over $5,000. The amount recovered was $1,time she occupied a rooming house on one of 500, which is less than that which the plainthe principal streets in Sulphur Springs, Tex. tiff under the evidence had a right to recover The fire occurred at about 11 o'clock at night. if her testimony as to the value of her own She seeks to recover the sum of $5,641.75, property be correct. In the question submitthe alleged value of the furniture, wearing ted the court required the jury to find the apparel, and other property destroyed. It value of the “plaintiff's property." We must is alleged that the fire originated because of assume, in the present state of the record, the negligence of the appellant in permitting that this instruction was obeyed and that the its telephone wires to come in contact with jury did not include in that valuation prop a beavily charged electric light wire belong- erty which the plaintiff did not own. ing to another corporation. The house oc

[3] Appellant claims that after the trial it cupied by the appellee was situated on the discovered a witness who would testify to south side of College street. The telephone new and important facts. An examination wires in entering the building passed under of the affidavit of this witness discloses that the wires of the electric light company. In his testimony would not, if true, require a response to special issues, the jury found different finding upon the important issue as (1) that the wires of the appellant going into to how the fire originated. When he first the house occupied by the plaintiff came in saw the building, according to his statement, contact with the electric light wires; (2) that the smoke was coming through the roof of such contact was the result of negligence on the house. He knows nothing about where the part of the appellant in the construction the fire first broke out. His testimony is not and maintenance of its line; (3) that such materially different from that which was adnegligence was the proximate cause of the duced upon the trial. fire; (4) that the actual value of the plain The judgment will be affirmed. tiff's property destroyed was $1,500.

The telephone company has appealed, and presents three principal grounds for a reversal of the judgment: (1) That the evidence was insufficient to sustain a finding

CALDWELL et al. v. FARRIER et al. that the fire originated from the telephone

(No. 6878.) wires; (2) that the appellee was allowed to (Court of Civil Appeals of Texas. San Anrecover for the loss of property she did not tonio. Feb. 7, 1923. Rehearing own; (3) that a new trial should have been

Denied Feb. 28, 1923.) granted upon the ground of newly discovered 1. Partition 643—“Cotenancy” used without evidence. These will be discussed in the or regard to distinction between different forms der above stated.

of tenancy in statute as to venue of partition [1] The evidence relied upon to show the suits. cause of the fire was in the main circumstan “Cotenancy," which is broad enough to tial. The telephone wires passed under and comprise both tenancy in common and joint tenin close proximity to a primary and heavily ancy, was used in Vernon's Sayles' Ann. Civ. charged electric light wire a short distance St. 1914, art. 1830, exception 13, as amended

inn. Civ. St. from the residence that was burned. Flashes by Laws 1919, c. 93 (Vernon's of light had been seen by observers to pass that when the "cotenancy" of any of the par

Supp. 1922, art. 1830, exception 13), providing between the telephone wires of the appellant ties to a partition suit is established or beand electric light wires at or about the point comes an issue of fact, it shall not be held that where they crossed. Noises emanating from the real purpose was to try title, so the telephone instrument in the residence require that the suit be brought in the county

w For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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as to

where the land is (exception 14), without re- , Humble Pipe Line Company, and the Magnogard to any distinction between the different lia Petroleum Company, with offices and forms of tenancy; the object of partition pro- agents in Breckenridge, Stephens county, and ceedings being to enable persons owning prop- the Sinclair Pipe Line Company, with office erty, whether as joint tenants, coparceners, or tenants in common, to end the tenancy and and agent in Breckenridge. This is an apallot each his part of the property.

peal from a judgment denying appellants a

change of venue from Live Oak county to 2. Partition om 14-Any cotenant may demand Stephens county, where the land is situated partition.

and all the appellants reside except H. D. Any cotenant may demand partition as a House, who lives in Live Oak county. matter of right.

The general provision in regard to suits for 3. Partition Om 43-Venue lies in any county the recovery of land or damages thereto, suits in which any defendant resides,

to remove incumbrances upon the title to Under Vernon's Sayles' Ann. Civ. St. 1914, land, and suits to prevent or stay waste on art. 1830, exception 13, as amended by Laws lands is that they must be brought in the 1919, c. 93 (Vernon's Ann. Civ. St. Supp. 1922, county in which the land, or a part thereof, art. 1830, exception 13), authorizing partition may lie. · Article 1530, exception 14, Vernon's suits in any county in which any defendant resides, though one or more may assert an ad- Sayles' Civ. Stats. In exception 13, of artiverse interest in, claim ownership of, or seek cle 1830, as amended in 1919 (Laws 1919, c. 93 to recover title to the land, unless the real [Vernon's Ann. Civ. St. Supp. 1922, art. 1830, purpose is to recover title to land in another exception 13]), it is provided: county, but providing that, if a cotenancy is estabilshed or becomes an issue of fact, it shall property may be brought in the county where

“Suits for the partition of lands or other not be held that the real purpose is to try such lands or other property or a part thereof title, a partition suit may be brought in a county in which onc defendant lives, though of the defendants reside, and any such suit for

may be, or in the county in which one or more the land is not located therein, where it ap- partition of lands or any other property may pears from plaintiffs' pleading that an issue as be brought and prosecuted in the county of the to cotenancy exists; exception 13, as amend- residence of any one or more of the defendants, ed, being no more in conflict with exception 14, notwithstanding any one or more of such dercquiring that suits to recover land or damages fendants may assert an adverse interest in thereto, etc., be brought in the county where such property, or claim to be the owner there. the land is, or Rev. St. art. 6097, than before of, or seek to recover the title to the same, the amendment.

provided that nothing herein shall be construed

to fix venue of any suit whose real purpose is Appeal from District Court, Live Oak to recover the title to land other than in the County; M. A. Childers, Judge.

county where such land, or part thereof, may lie, Suit by Mrs. Jennie Farrier and others but whenever, on the trial of the case, the coten

ancy of the parties or any of them is establishagainst C. M. Caldwell and others. From a

ed, or becomes an issue of fact, it shall not be judgment denying a change of venue to an held that the real purpose of the suit was to other county, defendants appeal. Afirmed. try the title of the land.”

A. S. Hardwicke, of Dallas, Wilson & Alred, of Breckenridge, and T. H, Miller, of George It is clear from the language of the amendWest, for appellants.

ment that the object and aim thereof was to • Sid. B. Malone, H. S. Bonham, and L. D. fix the venue of partition suits, not only in Stroud, all of Beeville, for appellees.

counties where the land or other property

might be, but also in those where one of the FLY, C. J. This is a suit ostensibly for defendants might live, and while it is propartition of a part of block No. 74, in the vided that venue could not be fixed in any town of Breckenridge in Stephens county, county except where the land is situated Tex., and for an accounting with C. M. Ca

where the real purpose is to recover title, well and judgment for the amount of money that is so conditioned as to destroy much of received by him from the sale of shares of its vitality. oil rightfully belonging to appellees, which On its face, this suit is one for partition was instituted by Jennie Farrier, joined by and not an action of trespass to try title, and her husband, F. M. Farrier, and Joseph B. the question of whether it is in reality such White, who reside in Live Oak county, an action or not is the only issue in the case, Myrtle Brown, joined by her husband, Boli- because it was in effect admitted that H. D. var Brown, who reside in Hood county, and House did own an interest in the land and Byron White, who resides in San Patricio resided in Live Oak county, which fact would county, suing for themselves and as the next place the venue for an action to partition friends of Charley Richards, Jr., a junior, land. An attorney for appellants admitted, residence unknown, and Charley Richards, and such admission is embodied in the stateSr., residence also unknown, against H. D. ment of facts, that no effort would be made House, residing in Live Oak county, C. M. to show that the assignment of an interest in Caldwell, residing in Stephens county, the the land was not made in good faith, and

(248 S.W.) that, so far as the plea of privilege is con-| fore the enactment of the amendment of 1919, cerned, the question could not be raised, and consequently shed no light on the proper which of course eliminates the question so construction to be placed upon it. The amendfar as this appeal is concerned.

ment of 1919 is the last expression of the The facts show that H. D. House is a resi- Legislature on the subject, and authorizes dent of Live Oak county, Tex., that an in the prosecution of this suit in Live Oak terest of one ninety-sixth in the land in con- county, troversy was conveyed to him in good faith The judgment is affirmed. by Joseph B. White, and that he is the owner of the same. None of the appellees has lived on the land in question in the last five years.

11,3] In arriving at whether the real purpose is to try title and not merely to parti- DENBY TRUCK CO, v. THOMPSON et al.* tion the statute quoted, makes the decision

(No. 2072.) on the question as to whether cotenancy is established an issue of fact, and the determi- | (Court of Civil Appeals of Texas. Amarillo. nation of this case must rest on that issue. Feb. 7, 1923. Rehearing Denied March 7, Appellants seek to draw a distinction be

1923.) tween cotenants and tenants in common, but 1. Pleading mill-Overruling plea of priviwe have nothing to do with any such distinc lege without serving defendant with notice tion, if any now exists. Cotenancy is a term of filing controverting affidavit and order setbroad enough under modern interpretation to ting it down for hearing held reversible error. comprise both tenancy in common and joint In an action by the owner of a motor truck tenancy, and was no doubt used by the Legis- against mortgagees for wrongfully taking the lature in its broadest sense, without regard truck, in which defendants filed a plea of to any subtle distinction between the techni- privilege to be sued in the county of their cal different forms of tenancy. 7 Ruling Case residence, after which plaintiffs filed a controLaw, Cotenancy, $g 1, 2, pp. 809, 810. The verting affidavit that the action was for tresobject of partition proceedings is to enable passes committed in the county where suit

was brought, and the court noted an order setthose who own property as joint tenants or ting a hearing on the affidavit, rendering a coparceners or tenants in common to end the judgment, without further appearance of tenancy and allot to each his part of the prop defendants, overruling the plea of privilege, erty, and partition and cotenancy are used and on the merits for plaintiffs, without servby the Legislature to include all the forms ing notice on defendants of the filing of the of tenancy. Any cotenant may demand par- controverting affidavit and the order setting tition as a matter of right. 20 Ruling Case the hearing thereon, as required by Rev. St.

Art. 1903, was reversible error, there being no Law, $ 27, p. 743. And under section 13, as presumption of service of the notice, regardamended, when the question of cotenancy is less of a recital in the judgment that defendestablished, or even is an issue of fact, it can- ants were duly served. not be held that the real purpose of the suit

2. Pleading mill-Notice of affidavit contro. was to try title to land. The pleadings of ap verting plea of privilege and order setting it pellees show that an issue exists as to coten for hearing jurisdictional. ancy and venue would obtain, "notwithstand Under Rev. St. art. 1903, providing for ing any one or more of such defendants may service of notice on defendants of filing of an assert an adverse interest in such property or affidavit controverting a plea of privilege to claim to be owner thereof, or seek to recover be sued in the county of defendants' residence, the title to the same.” In other words, if the issuance and service of regular judicial process status of the case is to be fixed by the plead- as provided for by article 2119 is jurisdictional. ings, it would be by those of the plaintiff rath- 3. Pleading mill-Facts stated in affidavit er than by those of the defendant. The de controverting plea of privilege to be sued in fendant cannot transform a suit for partition county of defendants' residence held sufficient into one of trespass to try title by his plead to maintain venue in county where suit was ings as formerly, and that is about all that begun. appellants have to depend on in this case. The

In an action by owners of a motor truck statute as amended in 1919 is no more in con- against mortgagees of the truck for taking the flict with exception 14 of the same article, truck, in which defendants filed a plea of privinor with Rev. St. art. 6097, than it was lege to be sued in the county of their resibefore the amendment. If the real object of dence, a controverting affidavit by plaintiff's to

the effect that the suit was for damages for the suit is. to try title to land, it must be trespasses committed in the county in which brought in the county in which the land or a suit was begun stated facts sufficient to mainpart thereof is situated, but if it appears tain the venue in the county in which the suit that a cotenancy in the land exists, it shall was begun. not be held that the real purpose of the suit is to try title to the land. All of the deci Error from District Court, Deaf Smith sions cited by appellants were rendered be- I County; Reese Tatum, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error refused April 25, 1923.

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