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M. Martin, Lum Jones, Wiley Williams, Lumor has gained more by his possession than he Colbert, and appellee, Jess Martin, relative has expended in improvements, they will not to the alleged gift, cannot be said to be evi- avail him as a ground for specific execution. dence of a gift free from ambiguity and Wack v. Sorber, 4 Wheat. 387; Eckert v. Eckdoubt. The testimony of these witnesses is ert, 332; O'Reiley v. Thompson, 2 Conn. 271." not such full, clear, and satisfactory evi

Alleged parol gifts, asserted for the first dence as is required to take a parol agree time after the death of the donor, to be upment for the transfer of title to land out of held ought to be above question or suspicion the statute of frauds, nor it is sufficient to at all times; but more especially when they warrant a finding that William Martin had render inoperative, as they would in this given appellee the land claimed by him, or

case, the provisions of the will made by the that he had unconditionally promised it to alleged donor. The evidence to support them him in the future. But, on the contrary, the ought to be full and clear and free from unevidence as a whole shows that William certainty, for the temptation to seize upon Martin had and retained charge and con- statements made by the deceased alleged dotrol of said land, making rental contracts

nor might be too often yielded to under the with tenants, cultivating a part thereof year influence of interest or promptings of averafter year; that he contracted during said ice, and produce most grievous wrongs. The years for the clearing of parts of said land, facility with which such alleged gifts are giving to the tenants so clearing the same sometimes proved is suggestive of great cauuse of the land so cleared by them, respection in weighing the evidence adduced to tively, for one year for their labor; that he sustain them. To doubt them ought to be to assessed the land for taxes, and paid all tax- deny them. es due thereon up to date of his death; and that he alone paid the interest due on the

“ 'Around every other disposition of the prop$8.000 debt against the entire 99874-acre erty of the dead the legislative power has

thrown safeguards against fraud and perjury. tract.

Around this mode (donatio mortis causa) the The testimony of appellee, J. M. Martin, requirement of actual delivery is the only subthe only witness who testified as to the val- stantial protection, and the courts should not ue of improvements which he alleges he weaken it by permitting the substitution of made on the land, clearly shows that the convenient and easily proved devices.' Keepers value of such improvements was of insig- v. Fidelity Title & Deposit Co., 56 N. J. Law, nificant amount, and much less than the val. 303 [28 Atl. 585), 23 L. R. A. 184 [44 Am. ue of the rents of the land.

St. Rep. 397].

"Mindful of the facility with which, after "To constitute a valid gift inter vivos, there the alleged donor is dead, fraudulent claims of must be a gratuitous and absolute transfer of ownership may be founded on pretended gifts the property from the donor to the donee, tak- of his property, asserted to have been made ing effect immediately, and fully executed by while he was living, it is but a salutary precaua delivery of the property by the donor and an tion which demands explicit and convincing acceptance by the donee. Such gifts can have evidence of every element needed to constitute no reference to the future, but go into immedi- a valid donation, whether it be a donation inter ate and absolute effect. 14 Am. & Eng. Ency. vivos or mortis causa. Even then fraudulent Law (2d Ed.) p. 1015."

claims may prevail, but the rigid requirement "It has been said that, to establish a gift by of the clearest proof will at least diminish the parol, the proof must be clear and free from

number." Whalen v. Milholland, 89 Md. 212, all ambiguity and doubt. Combest v. Wall, 43 Atl. 43, 44 L. R. A. at pages 212, 213. 102 S. W. 147." "In order to remove a parol contract for the

We are of the opinion that the evidence sale of land from the operation of the statute adduced to prove the alleged gift of the 160 of frauds, its terms and conditions must be clear and free from all ambiguity and doubt, acres of land claimed by appellee is too inand it must be established by full, clear, and conclusive and vague to support the appelsatisfactory evidence. Snover v. Jones, 172 s. lee's claim. W. 1122.”

For this and other reasons we have assign

ed, the judgment of the trial court in favor In Ann Berta Lodge v. Leverton, 42 Tex. of appellee is reversed, and judgment is here at page 26, it is said:

rendered in favor of appellant for the entire "It is well settled, when the purchaser has 99844 acres of land sued for by her. been fully compensated for his improvements, Reversed and rendered.

207 S.W.-13

torney in criminal cases to be taxed against MONK, Judge, et al. v. CROOKER. the defendant, but providing that no fees should (No. 7605.)

be taxed unless the city attorney prosecuted in

person, will not be construed as forbidding fees (Court of Civil Appeals of Texas. Galveston. to be taxed in favor of the district attorney of Nov. 14, 1918.)

such county, allowed him under Vernon's

Sayles' Ann. Civ. St. 1914, arts. 345a, 345b; 1. MANDAMUS Cw151(2)--NECESSARY PARTIES Code Cr. Proc. 1911, arts. 1177, 1179, 1180. -MUNICIPALITIES.

The city was not a necessary party in man-8. DISTRICT AND PROSECUTING ATTORNEYS damus by district attorney to compel judge and 5(1)-FEES-CITY COURTS. clerk of corporation court to permit petitioner Although a city in Harris county could, unto prosecute all criminal cases, and to tax costs der Code Cr. Proc. 1911, art. 1177, provide in such cases in his favor, although city ordi- that no fees should be allowed attorneys prosenances attempting to deny him such right were cuting criminal cases in the city court, it could involved.

not fix a fee to be taxed in cases prosecuted by

the city attorney, and then deny the district 2. STATUTES 279_PLEADING-NECESSITY.

attorney of the county a right to fees, in view In mandamus by district attorney to com- of Vernon's Sayles' Ann. Civ. St. 1914, arts. pel the judge and clerk of a city court to per- 345a, 345b; Code Cr. Proc. 1911, arts. 1179, mit plaintiff in the future to prosecute all crim- 1180. inal cases in such court, and to require the clerk to tax fees in the future in plaintiff's fa- 9. CRIMINAL LAW Cw252(1) MUNICIPAL vor, but not to recover any fees, it was not nec

COURTS-NOTICE OF COMPLAINT. essary to specifically plead in the petition the The judge of a municipal court need not state statutes giving him such right.

notify the district attorney of the filing of

criminal complaints in his court. 3. PLEADING E 403(2)-OMISSIONS–CURE BY ANSWER,

10. DISTRICT AND PROSECUTING ATTORNEYS In mandamus against city officer, wherein

Ow7(1)-DISQUALIFICATION OF DISTRICT ATthe right sought was based on city ordinances,

TORNEY-CITY ATTORNEY. the officer could not complain of an order over

A city attorney in Harris county may proseruling a plea in abatement on the ground that cute cases in the city court under state law, plaintiff did not specially plead the ordinances, where the district attorney is disqualified or rewhere the officer specially pleaded such ordi- fuses to act, in view of Vernon's Sayles' Ann. nances in his answer.

Civ. St. 1914, art. 345a. 4. MANDAMUS m187(4) - APPEAL-MATTERS Error from District Court, Harris County ; REVIEWABLE-SAVING OBJECTIONS.

William Masterson, Judge. In mandamus a party who did not object to

Mandamus by John H. Crooker, Criminal the court's deciding the case on the evidence District Attorney for Harris County, to combefore it, and did not offer any further evidence, cannot complain that there should have pel W. E. Monk, Judge, and 0. M. Smith, been a further hearing on the facts, if the Clerk, of the Corporation Court of Magnolia facts before the court were sufficient to sustain Park, to permit plaintiff to prosecute all the judgment.

cases in such court, and to tax fees in his

favor. From a judgment in favor of plain5. MANDAMUS Cw164(3)-DENIALS AND FAIL

tiff, defendants bring error. URE TO DENY.

Reformed and

affirmed. In mandamus by district attorney to compel judge and clerk of the city court to per- A. C. Van Velzer and John B. York, both mit him to prosecute all criminal cases in such of Houston, for plaintiffs in error. court, where the judge specially denied an al

John H. Crooker, H. H. Cooper, T. J. Harlegation in the petition that he refused to per- ris, Ewing Boyd, L M. Williamson, and mit the plaintiff to prosecute cases in his court, but did not deny an allegation in a veri- Frank Williford, Jr., all of Houston, for de

fendant in error. fied supplemental petition that he purposely set cases so that plaintiff or his assistants could not be present, the district court was authorized, in

PLEASANTS, O. J. This is a suit for manthe absence of other evidence, to find that the damus brought by John H. Crooker, crimjudge refused to recognize plaintiff's right. inal district attorney for Harris county, 6. MANDAMUS 187(9)-APPEAL-HARMLESS

against W. E. Monk, judge, and O. M. Smith, ERROR.

clerk, of the corporation court of Magnolia If the facts in mandamus did not show that Park, an incorporated town in Harris county. defendant had denied plaintiff a right com

Plaintiff's petition alleges, in substance, manded by the judgment to be accorded him, that by the acts of the Legislature creating the defendant was not prejudiced thereby, the office of criminal district attorney it was where the writ was properly granted upon oth- provided that the district attorney and his er grounds.

assistants should have the exclusive right to 7. DISTRICT AND PROSECUTING ATTORNEYS

prosecute criminal cases in all the courts of 5(1)-COMPENSATION-FEES.

Harris county, and to receive the fees providAn ordinance of the town of Magnolia Park, ed by law therefor; that the said corporain Harris county, fixing the fees of the city at- tion court of Magnolia Park was a court au

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

thorized by law to try criminal cases and has Plaintiff filed a supplemental petition on been for more than two years; that the fee the 19th day of May, 1917, in which he alprescribed by law for criminal cases in said leged that the ordinances pleaded by defendcourt was $5 for all pleas of guilty, and $10 ants had all been passed since the filing of his for all convictions on pleas of not guilty, and petition, and alleged that the defendants purthat defendants refused to permit plaintiff posely set the cases in said court without any to appear in said court and prosecute said opportunity for plaintiff or his assistants cases therein, and have refused, and now to be present, and that defendants knew refuse, to tax fees provided by law for con- plaintiff was always ready and willing to apvictions therein in favor of plaintiff. It is pear and prosecute said causes, and that such further alleged that plaintiff was at all times conduct and acts were purposely done to preready to perform the duties of such prosecu- vent plaintiff and his assistants from being tor in said court, by himself and through his present and conducting the trial of cases in assistants. The prayer of the petition is for said court, and that such conduct amounted a writ of mandamus compelling the said to a practical denial of plaintiff's rights. Monk to permit plaintiff to prosecute all cas- | This supplemental petition was sworn to, and es in said court, and requiring the said Smith was not in any manner denied by defendants. to tax the fees provided by law. This peti. This cause had been passed from April 5th, tion was verified by the oath of the plaintiff. from time to time, at the request of the de

To this petition the defendants filed a plea fendants, until the 19th day of May, when in abatement on the ground that the corpora- their pleading was first filed, and was tried tion of Magnolia Park was a necessary par- on that date on said pleading, together with ty to the suit. They also presented several exhibits attached to defendants' answer, and exceptions to the petition, one of which was the admission in court by the plaintiff that to "so much of said petition as alleges the he did not claim the right to prosecute matright in plaintiff to collect fees from the deters covered by ordinances of the city of fendants, or by or through defendants, or Magnolia Park which did not involve an infrom said municipality, because same are fraction of the penal laws of the state of Texmore conclusions of the pleader, and areas, and defendants' admission that the did vague and indefinite, and do not set up any not deny the right of plaintiff and his ascharter, ordinance, or statute or other fact sistants to appear and control the prosecuupon which said conclusions depend."

tion of offenses against the state laws or of The plea in abatement and all exceptions local ordinances which were covered by or to the petition were overruled by the trial in violation of the state law; and thereupon court.

the court entered its judgment in favor of The answer of the defendants, which was plaintiff, awarding him a writ of mandamus sworn to, specifically denied that the law requiring the defendant Monk, as judge of gave none other than the district attorney the the municipal court of Magnolia Park to perright to prosecute criminal cases in said mit the plaintiff, as criminal district attorney court, or gave him the right to prosecute all of Harris county, Tex., and his assistants in criminal cases in said court. It further de- office, to exclusively control, manage, and nied the allegations of the petition that the conduct the prosecutions as prosecuting atdistrict attorney had the right to receive torney in all cases of prosecutions for violathe fees for prosecutions in said court, and tions of the state laws of Texas, and for vio that the defendant Monk had refused to per- lation of the ordinances of said municipality mit the district attorney or his assistants to in all cases where said ordinances cover or prosecute in said court, and that defendant involve offenses which are penal under the Smith has refused to tax fees allowed by state law, and requiring the defendant Smith law to plaintiff. It is further alleged that to tax as costs in each case of such prosecuthe ordinance of such city covers many desig- tions such fee for the said criminal district nated subjects enumerated therein, and pro- attorney as he is entitled to according to vided for fines for infractions thereof, not law, as prayed for in plaintiff's petition herecovered by the state law, and that there is no in. provision of law for the taxation of a fee Appellants' first assignment predicates erfor the district attorney, and that the plain- ror upon the refusal of the court to sustain tiff had never begun a prosecution before the plea in abatement. such court, and that plaintiff was so inac- [1] We cannot agree with appellants' concessible to such court as to practically deny tention that the corporation of Magnolia the aid of counsel thereto. Further allega- Park was a necessary party to this suit. It tion, that the ordinances of the city prevent is true that the ordinance pleaded by deand prohibit the taxing or collecting of a fee fendants, which was passed by the city counfor plaintiff, was made; that the defendant cil of Magnolia Park, attempted to prevent Smith taxes fees as provided by ordinances, the district attorney from prosecuting cases and under the direction of the defendant in the corporation court by providing that Monk, and if said Monk directed him to do in cases not prosecuted by the city attorney 50, and said ordinances permitted him to do the fees provided by the ordinances for the 80, he would tax fees for plaintiff.

prosecuting attorney should not be taxed

against the defendants, and that the inter- and the admissions of the parties. No exceppretation and validity of this ordinance are tion was taken by the defendants to the the main issues in this suit; but no judg-court's deciding the case upon the evidence ment is sought against the city, and it cer- before it, and no further evidence was offertainly is not the law that in every suit ed by the defendants. If the facts before against an officer of a city or town in his the court are sufficient to sustain the judgofficial capacity, in which the construction ment, appellants' complaint, made after the or validity of an ordinance of the city or judgment was rendered, that there should town is involved, that such corporation is a have been a further hearing on the facts, will necessary party to the suit, and we are cited not be heard when, without objection, they to no case which so holds. In the case of permitted the case to be decided upon the Howth v. Greer, 40 Tex. Civ. App. 552, 90 | pleading and the evidence before the court. S. W. 211, which was a suit by the county The only fact put in issue by the pleadings attorney of Jefferson county against the re- and evidence which formed any basis for the corder, city attorney, city marshal, and city judgment rendered was whether the defendsecretary of the city of Beaumont for man- ant Monk had refused to permit appellee to damus to compel said officers to permit the prosecute state cases in the corporation count attorney to prosecute state cases in the court. Monk expressly denied this allegarecorder's court of the city, and to collect tion of the petition. In answer to this denial and pay over to plaintiff the fees provided by appellee pleaded under oath that, while Monk ordinance for the prosecuting attorney in had not expressly refused to allow him to such cases, the city of Beaumont was made a prosecute such cases, he had in effect done party defendant. The question of whether so by arranging the docket of the court and the city was a necessary, or even a proper, calling the cases for trial at a time when it party to the suit was not raised, and was was impossible for appellee or any of his asnot passed upon or considered by the court in sistants to be present. . This sworn statement disposing of the appeal.

of appellee was not denied. We think the [2, 3] The second assignment of error com- trial court was authorized, upon this state plains of the ruling of the court in refusing of the evidence, to find that defendant Monk to sustain defendants exceptions to the al- had refused to recognize plaintiff's right to legations of the petition that plaintiff had the conduct the prosecution of state cases in right under the law to a fee of $5 for each the corporation court. If this holding is not conviction on a plea of guilty, and $10 in sound, and the mandamus granted should not each conviction on a plea of not guilty, be have commanded Monk to accord appellee cause such allegations "are conclusions of a right which had not been denied him, the the pleader, and are vague and indefinite, mandamus having been properly granted upand do not set up as a fact any charter, ordi- on other grounds, the inclusion of this comnance, or statute or other fact upon which mand in the judgment cannot possibly injure said conclusions depend."

appellant Monk.. The cases of Teat v. McWe do not think the trial court erred in Gaughey, 85 Tex. 486, 22 S. W. 302, De Poyoverruling this exception. Plaintiff is not ster v. Baker, 89 Tex. 155, 34 S. W. 106, and seeking in this suit to recover any fees, and Clark v. Terrell, 98 Tex. 15, 81 S. W, 4, which therefore he was not required to plead facts hold that in an original mandamus proceedwhich would entitle him to such recovery. ing in the Supreme Court a mandamus will In so far as his right to prosecute cases in be denied if an issue of fact is presented, the corporation court, and to have fees taxed have no application to this suit. in prosecutions which he may hereafter con- The defendant Smith admitted in his anduct in said court, is conferred by the stat- swer that he had refused, and still refuses, ute law of the state, he was not required to to tax any fees for appellee in state cases specially plead such statute. In so far as progecuted by appellee in the corporation the rights claimed by him were conferred by court, and defended his action solely upon the ordinances of the corporation of Mag- the ground that by the ordinances of the cornolia Park, his failure to specially plead such poration of Magnolia Park he was forbidden ordinances was supplied by defendants, who to tax such fees. These ordinances were specially pleaded all of the ordinances upon specially pleaded by him, and, as before the subject, and made certified copies there- stated, were attached to his answer as exof, attached as exhibits, a part of their an- hibits, and submitted to the court as evi. swer.

dence upon the trial of the case. [4-6] The third assignment, by which ap | This brings us to the discussion of the pellants complain of the judgment on the main questions in the case, viz., the conground that evidence was heard upon the struction of the ordinances, and whether or issues of fact raised by the pleadings and the not the corporation was authorized by ordimandamus was granted as prayed for, with- nances to prohibit the taxing of fees allowed out any trial on the fact issues raised by the by law for the district attorney in state cases pleadings, is without merit. The judgment prosecuted by him in the corporation court. recites that the case was heard upon the Article 345a, Vernon's Sayles' Civil Ştatpleadings and the exhibits attached theretoutes, which creates the office of criminal dis

trict attorney of Harris county, contains the a fee of $5 shall be allowed the county atfollowing provisions:

torney. "And he shall have exclusive control of all defendant Smith fixes fees for the city at

[7] One of the ordinances pleaded by the criminal cises wherever pending, or in whatever court in Harris county that now has juris- torney for prosecuting criminal cases in the diction of criminal cases, as well as any or all corporation court at $10 upon conviction upcourts that inay be hereafter created and given on a plea of not guilty, and $5 upon convicjurisdiction of any criminal cases, and he shall tion on a plea of guilty, to be taxed as costs collect the fees therefor provided by law. He against the defendant, and provides that, in shall also have control of any and all cases

case the city attorney does not prosecute in heard on habeas corpus before any civil dis- person, no fee shall be allowed, taxed, or coltrict court of Harris county, as well as before lected from the defendant. We think the prothe criminal court of said county. The criminal district attorney of Harris county shall vision of this ordinance forbidding the taxhave and exercise, in addition to the specific ing of fees where the city attorney does not powers given and duties imposed upon him by prosecute can only be properly construed to this act, all such powers, duties and privileges | apply to the taxing and collection of fees within said criminal district of Harris county for the city attorney, and it was not intendas are by law now conferred or which may ed by the ordinances to forbid the taxing of hereafter be conierred upon district and county fees allowed by law to the district attorney attorneys in the various counties and judicial in cases in the corporation court which the districts of this state. It is further provided law makes it his duty to prosecute. that he and his assistants shall have the exclusive right, and it shall be their sole duty to

Another of the ordinances pleaded is as perform the duties provided for in this act,

follows: except in cases of the absence from the county

"Be it ordained by the city council of the of the criminal district attorney and his as- city of Magnolia Park, that where by ordinance sistants, or their inability or refusal to act; it is the duty of an official of said city to do and no other person shall have the power to perform the duties provided in this act, or to any act or perform any service for or in the

name or on behalf of said city, and compensarepresent the state in any case in Harris coun- tion is provided therefor to such official as fees ty, except in case of the absence from Harris

or otherwise, in case such official fails or recounty, or the disability or refusal to act, of fuses to perform such duty or act therein, and the criminal district attorney and his assist

some other person, whether he be official of ants."

said city or of the district or state, or other

wise, acts therein or performs the duty or Article 345b of said Statutes makes the fol- service of the official of said city, such other lowing provision, among others, for the pay- shall not be entitled to compensation therefor, ment of fees to said district attorney:

and no fee or costs shall be taxed therein in

his behalf." "The criminal district attorney shall also receive such fees in misdemeanor cases, to be

[8] This ordinance by express terms depaid by the defendant and by the county, as is nies any compensation to any state or county now provided by law for district and county officer who performs any service on behalf attorneys, and he shall also receive such compensation for other services rendered by him of the city which by any ordinance it is as is now, or may hereafter be, authorized by made the duty of a city officer to perform. law to be paid to other district and county at- Under the provisions of these ordinances, torneys in this state."

appellants contend that the appellee is not

entitled to have the fees allowed him by law Article 1177 of the Revised Criminal Stat- for prosecuting state cases in the corporautes of 1911 (Code Cr. Proc.) provides that tion court taxed as costs against the defendthe attorney who represents the state in a ant in the case. If this was the purpose of criminal action in a justice's, mayor's, or the city council in passing the above-menrecorder's court shall for each conviction re- tioned ordinance, and they are so construed, ceive a fee of $10, unless otherwise provided we do not think they are valid. The city by the ordinances of any incorporated city council had authority by ordinance to proor town.

vide for different fees for prosecuting atArticle 1179 of said Statutes provides that, torneys in the corporation court than those where a conviction is had upon a plea of fixed by the statute, and if the council saw guilty before a justice, mayor, or recorder, fit they might have provided that no fees the attorney representing the state shall be should be taxed against defendants in cases allowed a fee of $5.

prosecuted in the corporation court. But Article 1180 provides that no fee shall having fixed fees in such cases, just as they be allowed the attorney unless he is present are fixed in the statute, we do not think they representing the state on the trial, or has were authorized to provide that such fees. taken some action therein for the state, or is could only be taxed when the cases were present and ready to represent the state, prosecuted by the city attorney, and must be provided, when pleas of guilty are entertain- remitted when the county attorney in the pered and accepted in the justice court at some formance of his duty has conducted the time other than a regular term of the court, / prosecution of the case.

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