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bought and used in the 'transportation of territory in the school district squght to be crechildren to and from school. The school ated, before such district shall be created, money belonging to district No. 2 of Har- shall each pass an order describing the terridin county was transferred to Tyler coun- tory [of the district) desired to be created into ty and the school operated under this agreeing the course and direction with the exact

such school district by metes and bounds, givment for five years. The agreement of the length of each line contained in such descriplocal trustees of said two districts to con- tion and locating each corner called for upon solidate was reduced to writing, approved the ground, and shall also give the acres of by the county superintendents of both Har- each survey and parts of surveys of lands condin and Tyler counties, and filed with the tained in such district, together with a map superintendent of Tyler county, but was showing the conditions upon the ground as never placed of record at any place and described in the field notes, giving the num

ber of acres of land contained in each survey could not be found at the trial. The writ- and parts of survey contained in each county; ten agreement did not contain any stipu- also, showing the exact position and location of lation as to how long the agreement was to the county line in the territory created into a last. It was contended by appellants that common county line school district. The said it was only temporary, that the arrange-order of each commissioners' court shall also ment was brought about by the fact that designate and name some one of the counties the schoolhouse in district No. 2 of Har- having territory included in the description of

such common county line school district to mandin county had burned, and there being no

age and have control of the public school in place for them to have a school was the such common county line school district. The cause of the agreement, and that the ar- said common county line school district shall rangement was to continue only until they have no authority or power until the said orwere so situated as to rebuild and have a der of the commissioners' court has been passed school of their own; while the appellees by each commissioners' court of each county contended that the consolidation was to

having territory included in such common counbe permanent. After five years the trus- ty line school district; provided, that no comtees of district No. 2 of Hardin county pro-ated with a less area than 16 square miles, and

mon county line school district shall be creceeded to make arrangements for a build- shall be laid out in as near the shape of a ing and a resumption of their own district square as is possible, and in no event shall school, and gave notice of such fact to the the length of such district be greater than the Tyler county authorities; but the Tyler width plus one-third of the width of such discounty authorities refused to recognize their

tricts." right to do so, and brought this suit to re

Thus the law remained until the Act of strain them, resulting as above stated.

1917, chapter 196, § 1 (Vernon's Ann. Civ. As we view the record and construe the St. Supp. 1918, art. 2815a), which reads: law, the determining question is: Was there a valid and legal consolidation of the Acts of the Thirty-Second Legislature, be

“Section 1. That section 50a, chapter 100, two common school districts into a consoli- amended so as to hereafter read as follows: dated common school county line district ?

“Sec. 50a. The boards of county school trusCommon school county line districts were tees of the several counties of the state of first authorized by Act of the Twenty-Ninth Texas shall have full power and authority to Legislature in 1905 (Acts 1903, $ 55, p. 277). create common school districts, to contain terThis act required that a petition setting forth ritory within two or more counties of this the boundaries of the proposed district, signed state. In creating a common county line school by a majority of the qualified voters with- of each county having territory in the school

district the boards of county school trustees in said boundaries and approved by the [district] created, shall each pass an order decounty superintendent of public instruction scribing the territory desired to be created into of each county in which any part of the such school district by metes and bounds, giving proposed district lay, should be presented the course and direction with the exact length to the commissioners' court of any one of of each line contained in such description and said counties, and that said commissioners' locating each corner called for upon the ground, court should have authority to establish such and shall also give the acres of each survey and school district according to said petition. trict, together with a map showing the condi

parts of survey of lands contained in such disThis remained the law as to the creation of tions upon the ground as described in the field common school county line districts until notes, giving the number of acres of land con1911, when same was amended, or rather tained in each survey and parts of survey consuperseded, by the Act of 1911 (Acts 1911, p. tained in each county; also showing the exact 200 [Vernon's Sayles' Ann. Civ. St. 1914, position and location of the county line in the art. 2815a]). This act provided :

territory created into a common county line

school district. The said order of each board "Sec. 50a. The commissioners' courts of the of county school trustees shall also designate several counties of the state of Texas shall and name some one of the counties having terhave full power and authority to create com- ritory included in the description of such common school districts, to contain territory with mon county line school district to manage and in two or more counties of this state. In cre have control of the public school in such comating a common county line school district the mon county line school district.

(248 S.W.) shall have do authority or power until the said | cal trustees of common school district No. order of the board of county school trustees 2 of Hardin county and common school dishas been passed by the board of county school trict N. 40 of Tyler county simply agreeing trustees of each county having territory in- to consolidate the two districts, and that cluded in such county common line school dis- the school in the consolidated district thus trict; provided, that no common county line school district shall be created with a less area formed should be maintained in thąt porthan nine square miles, and shall be laid out | tion of said district known as district No. in as near the shape of a square as possible, 40 of Tyler county, and managed by the and in no event shall the length of such dis- officials of said district in Tyler county, trict be greater than the width 'plus one-half which agreement was reduced to writing of the width of such district."

and signed by the local trustees of said [1] “Board of county trustees" was cre- two districts and approved by the county ated by Act of 1911, p. 34, § 4, and made a superintendents of said two counties. No body corporate. This act was amended in action was asked of, nor was any taken by, 1915 (Acts 1915, c. 36, p. 68, § 2, now article the commissioners' courts of either Hardin 2749a, Vernon's Ann. Civ. St. Supp. 1918)

or Tyler counties, as was then (1915) re

The attempted consolidaby completely re-enacting and amending the quired by law. whole subject covered by the original act. tion, in the manner and by the parties It rested the management and control of

aforesaid, being wholly unauthorized, was the public free schools in each county of unlawful, being contrary to the express prothe state in five county trustees. It also vision and policy of the lawma mere nul

lity. Article 2815a, Vernon's Sayles' Ann. have them the powers theretofore vested in the commissioners' courts to subdivide the Civ. St. 1914; Davis v. Parks (Tex. civ. county into school districts, make changes App.) 157 S. W. 449. This was not an imin district lines, and to consolidate two or perfect exercise on the part of said local more districts for the establishment of rural school officials of a power they lawfully pos high schools. It required the county super- sessed, but was an attempt to act without intendent, who was made ex officio secre

power. Hence the act done was a nullity tary of the board of county school trustees, been done. Sydnor v. Roberts, 13 Tex. 616,

and is to be considered as if nothing had to keep an accurate and complete record

65 Am. Dec. 84.
of all changes made in school district lines,
and in the consolidation of school districts,

[2] Appellees contend that though the disa certified copy of which should be trans- tricts were consolidated by the agreement mitted to the county clerk, who was re

of the local trustees of said districts, the quired to record same in a book kept for local officers of both districts and "all the that purpose, designated the “Record of

school officials of both Tyler and Hardin School Districts,” and gave the district counties recognized such consolidated dis

trict as a valid district from the time of its court supervisory power and control of the board of county school trustees in creating, attempted creation in 1915 until a short time changing, and modifying school districts. It before the institution of this suit," and therethus appears that the board of county school by "ratified and confirmed the consolidation trustees did not have the power to create

of said district.” county line school districts until the act of

The local trustees of the two districts 1917 above quoted.

and the county superintendents of the two Appellants' first proposition is:

counties being without power to create the "The trial court erred in adjudging school consolidated county line school district in district No. 2 of Hardin county, Tex., and school the manner attempted, their effort could not district No. 40 of Tyler county, Tex., to be be given validity by the recognition of any consolidated, because the evidence showed, and officials. Fayette County v. Krause, 31 Tex. the court so found, that the judgment of the Civ. App. 569, 73 S. W. 51; Davis v. Parks court is based upon the action of the school (Tex. Civ. App.) 157 S. W. 449; Tomlinson v. trustees of said districts, who were without Hunnicutt (Tex. Civ. App.) 147 S. W. 612. authority to consolidate said districts."

[3] Appellees further insist that appellants This contention must be sustained. The having made the agreement with appellees to law has never given the local trustees of consolidate the two districts, and having for school districts the power to alter or change a number of years acquiesced in same, and their districts or to consolidate them as said district No. 40, Tyler county, having was here attempted.

The power to create gone to the expense of employing another conmon county line school districts by con- teacher to accommodate the patronage from solidation or otherwise was at first lodged / district No. 2, Hardin county, and having in the commissioners' courts of the various built an additional room to the school buildcounties , and remained there until the act ing for that purpose, and having bought and

It is admitted that the operated a transfer wagon to transfer the district here in question, consolidated coun- children of district No. 2. Hardin county, to ty line district No. 40, 'Tyler county, was and from said school, and that said parties attempted to be created in 1915 by the lo- having accepted said privileges of said con

of 1917, supra.

solidation are estopped from denying the va-, court dissolved. Appellees have filed a molidity of said district.

tion for rehearing alleging error: We do not think the proposition sound. [5] First. That this court was without juThe agreement entered into by the local risdiction to hear and determine the appeal, school officials of the two districts being un- for the reason that the appeal bond of appelauthorized by law, was illegal because in lants was defective in several particulars get contravention of the policy of the express law out in the motion. They particularly object(article 2815a), and therefore impossible of ed to the sufficiency of the bond on the ground performance. Not having the power under that Tyler county school district No. 40 was the law to consolidate the districts in the not named as one of the payees in the bond. manner attempted, it was legally impossible Tyler county school district No. 40 was not of consummation, and hence void. 29 A. & E. a party to the suit. It is not named as plainEnc. of Law (20 Ed.) 1071; Elliott on Con- tiff in the petition. The objection to the tracts, $ 1060. Nor can estoppel supply the bond that same is not made payable to the want of power. Whitlock v. Gosson, 35 Neb. county school board of Tyler county is with829, 53 N. W. 981. Moreover, as a general out force. The record discloses that plainrule, estoppel by simple contract cannot be tiffs, without objection on the part of appelpredicated on an invalid contract. 16 Cyc.lants, dismissed their suit as to said party. 720; Association v. Monroe (Tex. Civ. App.) Furthermore, without discussing the other 53 S. W. 1029. A contract that is void can objections offered by appellees to said bond, not become effective merely by ratification. we think appellees are not in position to inElliott on Contracts, & 1089; Rue v. Rail- sist upon any of their objections to said bond. way Co., 74 Tex. 475–480, 8 S. W. 533, 15 Am. The transcript herein was filed in this court St. Rep. 852; Murchison v. White, 54 Tex. November 16, 1922. By agreement of the 81; Mitchell v. Porter (Tex. Civ. App.) 194 parties, the cause was advanced, and on DeS. W. 986. Furthermore, the act of the local cember 21, 1922, was submitted on briefs and trustees of the two districts, although ap- oral arguments for both parties, and judgproved by the county superintendents of the ment rendered January 4, 1923. No motion two counties, being wholly unauthorized by was made to dismiss for want of proper bond, law, was without force or effect-void—and nor was the jurisdiction of this court in any cannot be waived or ratified. Murchison v. way questioned until this motion for rehearWhite, 54 Tex. 81; Elliott on Contracts, 8 ing was filed herein by appellees. The objec1068; Tomlinson v. Hunnicutt (Tex. Civ. tion to the bond, if at all well taken, comes App.) 147 S. W. 612. Legal incapacity cannot too late. Court of Civil Appeals Rules 8 and be removed by fraudulent representations, 9 (142 S. W. xi); Gilbough v. Stahl Building nor can there be an estoppel involved in the Co., 91 Tex. 621, 45 S. W. 385; Hugo v. Sefact to which the incapacity relates that can fel, 92 Tex. 414, 49 S. W. 369; Richer Lee & take away that incapacity. Keen v. Coleman, Co. v. Collins, 81 Tex. 662, 17 S. W. 378. 39 Pa. 299, 80 Am. Dec. 524.

What we have said here disposes of ap[4] But appellees insist that if the con- pellees' third allegation of error. solidated district was not formed in the man

[6] Second. Appellees insist that we erred ner required by law, nevertheless it was val- in rendering judgment against them and genidaied by the provisions of article 2749a of erally for appellants dissolving the injuncVernon's Ann. Civ. St. Supp. 1918.

tion, because school district No. 2 of Hardin A sufficient answer to this contention is county and Hardin County State Bank, dethat said act only purports to validate dis- fendants below, failed to give notice of aptricts “attempted to be established by the peal, and not having given notice of appeal, proper officers of any county and heretofore

were not entitled to relief, and that as to recognized by such county authorities as such school district.” It is manifest that in the them the judgment should be affirmed.

It is true that the transcript does not show instant case, as we have above held, the con

that said defendants gave notice of appeal, solidated common school county line district was not attempted to be established by the til in this motion for rehearing by appellees.

but same was not called to our attention unproper officers of the counties interested. The

As a matter of fact, they did give notice of proper officers were the commissioners' courts of Hardin and Tyler counties, and it is ad- appeal, as is shown by a certified copy of the mitted that they never took any action what trial judge at the time of the rendition of the

entry on the judge's trial docket made by the ever in the matter, nor did they ever recog- judgment, and as is also shown by the affidanize said district by any official act.

vit of the attorney who tried the case for deThe judgment of the court below is revers

fendants, both of which are attached to appeled, and the injunction dissolved.

lants' answer to appeliees' motion for re

hearing, and asked to be considered in conOn Motion for Rehearing.

nection with and in supplement to the tranAt a former day, this cause was reversed script here. The certificate of the clerk of

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(248 S.W.) trial docket is regular, and the entry made a reversal as to all of the defendants. Verby the trial judge shows:

non's Sayles' Civil Statutes, art. 1997; Bur"All parties announced ready. Demurrers

leson v. Henderson, 4 Tex. 49; Dickson v. beard and taken with case, on full hearing de- Burke, 28 Tex. 117; Brown v. Robertson, 28

fendants' exceptions overruled and judgment for Tex. 555; Tynberg v. Cohen, 76 Tex. 409, 12 plaintiff, to all of which defendants except and 13 S. W. 315; Hamilton v. Prescott, 73 Tex.

in open court give notice of appeal to the 565, 11 S. W. 548; Thompson v. Kelley, 100 Court of Civil Appeals for the Ninth Supreme Tex. 539, 101 S. W. 1074; Nasworthy v. Judicial District, at Beaumont, Tex."

Draper, 9 Tex, Civ. App. 650, 29 S. W. 557; Counsel for appellants in their answer to Reed v. Cavitt, 10 Tex. Civ. App. 373, 30 S. the motion for rehearing, state that the judg- W. 575; Ferguson v. Dickinson (Ter. Civ. ment of the trial court was prepared by the App.) 138 S. W. 221; Telegraph Co. v. Long attorneys for appellees on the eve of ad-(Tex. Civ. App.) 183 S. W. 421. journment of the court for the term, and that

[8] Fourth. Appellees vigorously insist that the attorneys for appellants resided in an

we erred in holding that the only way in other county, and not baving been furnished which county line school districts could be with a copy of the judgment, were not aware consolidated was in the manner pointed out that such omission appeared in the judgment

in our original opinion, and also erred in until after the court adjourned for the term, holding that “the law has never given the but that it was understood and agreed that local trustees of school districts the power the judgment should show that all the de- to alter or change their districts or to confendants excepted thereto and gave notice of solidate them,” as was attempted in the inappeal, and that, in fact, such notice was stant case; appellees insisting that such congiven. The judgment as drawn and entered solidation could be had by the agreement of of record specified the names of the defend the trustees of the districts sought to be conants that excepted to the judgment, and gave solidated, asserting that “the second way of notice of appeal, but omitted to name Hardin consolidating districts is set forth in section county school district No. 2 and Hardin 54, bulletin 48, of the School Laws of Texas, County State Bank. The entry on the trial being article 2762 of Vernon's Sayles' Civil docket, however, shows that all the defend- Statutes," and quotes the same as follows: ants, in fact, excepted to the judgment and “By agreement of trustees, except as herein gave notice of appeal, and therefore were provided, no part of the school fund apporproperly before this court and entitled to the tioned to any district or county shall be transrelief granted. The jurisdiction of this court ed, that districts lying in two or more counties

ferred to any other district or county; providdepends upon the fact that notice of appeal and situated on the county line, may be conwas actually given and not upon the record solidated for the support of one or more schools of such fact. Vernon's Sayles' Civil Statutes, in such consolidated district; and, in such case, art. 1593; Western Union Telegraph Co. v. the school funds shall be transferred to the O'Keefe, 87 Tex. 423, 28 S. W.945; Gilbough county in which the principal school building 5. Building Co., 91 Tex. 621, 45 S. W. 385; for such consolidated district is located; and Williams V. Knight Realty Co. (Tex. Civ. in a school district may be transferred to an

provided, further, that all the children residing App.) 217 S. W. 755-757; Luse v. Parmer other district, or to an independent district, (Tex. Civ. App.) 221 S. W. 1031; Maury v. upon such terms as may be agreed upon by the Turner (Tex. Com. App.) 244 S. W. 809. trustees of said districts interested."

[?] Moreover, whatever may be said as to the failure of the defendants, Hardiu county

Appellees strongly contend that, school district No. 2 and Hardin County State

"The above article clearly confers upon the Bank, to give notice of appeal (the perfected trustees of said districts, to, by agreement, record shows such notice was, in fact, given), consolidate such districts for the purpose of but if said defendants had not given such maintaining one or more schools, etc.” notice and had in no manner attempted to [9] We have not been favored with a copy appeal from said judgment, still the judg- of “Bulletin 48 of the School Laws of the ment against them could not be affirmed, for State of Texas," section 54 of which purports there was but one question, one issue in liti- to be article 2762 of the Revised Civil Statgation, and that was the validity of the so- utes, nor do we know by whom or by what called consolidated county line school dis- authority same was issued; but we will say trict

. It was the only question in which any that there is no such article in the Revised of the parties litigant was interested, and its Statutes as is quoted by appellees and claimdetermination affected all of one side or the ed to be article 2762, Vernon's Sayles' Civil other alike. The interest of the parties de Ştatutes. Article 2762 is section 92 of the fendant was not severable, and hence the Acts of 1905 (Gammel's Laws, vol. 12, p. 288),

an entire and inseparable and does not contain the words “by agreement judgment, and if any one of the parties de- of trustees,” beginning the article as quoted fendant appealed and obtained judgment fa- by appellees. It is true that in the Revised vorable to the one appealing, it operated as Statutes there is a headline to said article

judgment was

one.

reading that way, but same is no part of the 5. Insurance 723(7)-Misrepresentation or
article itself, never was, and the headline, we mistake as to family history does not vitiate
take it, was placed there by the publisher life policy not conditioned to be void on such
merely to call attention to the provision in ground.
said article permitting the transfer of funds A misrepresentation or mistake as to fam.
and children from one district to another. ily history will not vitiate a life insurance pol.
Furthermore, the article, 2762, does not even

icy conditioned to be void on certain grounds,

of which incorrectness of family history is not attempt to provide for the consolidation of county line school districts, but merely deals with the transfer of school children and 6. Insurance w819(2)—Hearsay testimony as school funds from one district to another “up

to death of assured's brother held too un.

certain to justify forfeiture of policy. on such terms as may be agreed upon by the trustees of said districts interested,” and not say testimony of plaintiff as to a brother of

In a suit on a life insurance policy, hearin any way affecting or providing for the the assured having died was too uncertain to consolidation of districts.

justify forfeiture of the policy on the ground No error having been shown, the motion is of misrepresentations as to family history. overruled.

7. Insurance Om815(4)-Forfeiture not per

mitted where no allegation of misrepresen

tations in application. SOVEREIGN CAMP, W. 0. W., v.

Where it is not alleged that representations
HUBBARD. (No. 6571.) *

made in the application for a life insurance pol(Court of Civil Appeals of Texas. Sau An- icy were false, the policy will not be forfeited tonio. May 26, 1921. Rehearing

on such ground. as forfeitures are not faDenied June 18, 1921.)

vored and should never be permitted except

under full allegation and proof. 1. Pleading Om 403(3)-Plaintiff's pleadings as aided by defendant's answer held good on

Error from District Court, Bexar County: general demurrer.

J. T. Sluder, Judge. In a suit on a fraternal benefit certificate, plaintiff's pleadings, as aided by defendant's Action by Amadeo S. Hubbard against the answer attacking the certificate on the ground Sovereign Camp, Woodmen of the World. alone that it was not delivered to deceased Judgment for plaintiff, and defendant brings whlie she was in good health, but not denying error. Affirmed. that all other conditions were complied with, held good on general demurrer; every intend

E. D. Henry, John H. Bickett, Jr., and L ment of the pleader being read into the peti- M. Bickett, all of San Antonio, for plaintiff tion.

in error. 2. Insurance 724(1)-Benefit society held

Wm. H. Russell, of San Antonio, for de estopped to assert nondelivery of policy to fendant in error. assured. Where under the terms of the constitution

FLY, C. J. This is a suit by defendant in and laws of a fraternal benefit society a life insurance certificate issued by it was not valid error, Hubbard, to recover on a policy for unless delivered to the assured, the society $500 on the life of his deceased wife, Maria was estopped to set up nondelivery as a de- P. Alba de Hubbard, which policy was issued fense where it delivered the certificate with by plaintiff in error, a fraternal beneficiary out protest or notice to the beneficiary, ac- society or association. The society filed a cepted payment of dues from him, and did not general demurrer, and four special excepcall his attention to the requirement.

tions, and answered that on April 1, 1919, it 3. Insurance Ow724(1) - Parol waiver of con- issued the certificate sued on to Maria Pa

dition good though required to be in writing tracinio Alba de Hubbard that it was granted where no evidence showing no written waiver. on condition of the payment of the stated

In a suit on a life insurance certificate is- monthly premium named in the policy and sued by a fraternal benefit society, where plain- further consideration of the delivery of the tiff proved a parol waiver of a condition re- certificate during the lifetime and good quiring delivery of the policy to the assured, health of the member; that the certificate, and there was no allegation or testimony that a waiver in writing, signed by the commander the articles of incorporation, and the consti. or clerk, was not made, plaintiff could recover;

tution and laws of the Sovereign Camp of the a parol waiver being good, though required to society and all amendments which might be in writing.

thereafter be made contained the entire con4. Insurance 723(7) -Incorrect history of tract between the parties. It was further al

applicant's family does not vitiate life policy leged that the certificate provided that it where no falsity or intent to deceive.

should be delivered to the member in person Where there was no evidence of any fal- while in good health. It was alleged that the sity or intent to deceive in the assured's rep- certificate was never delivered to Mrs. Hub resentations in her application for a life in- bard in person, and that about April 20, some surance policy as to her family history, an in- three weeks after the certificate was issued, correct history did not vitiate the policy. Mrs Hubbard became sick and remained in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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