Citations
- 91 Tex. 651
Full opinion text
BROWN, Associate Justice.
This suit was commenced in the District Court of Harris County against W. O. Ellis and others, and the venue was changed from Harris County to Galveston, where it was finally tried. Eugene Williams, as temporary administrator of W. O. Ellis, made himself a party to the suit and continued to defend it until the final trial was had, without any objection being interposed that he had not authority to do so. It is objected by the temporary administrator, that, before judgment was rendered in this cause, his appointment as such administrator had ceased, and that therefore no judgment should have been rendered against the estate, of W. O. Ellis. The Probate Court which appointed Williams temporary administrator, had the authority, at the next succeeding term, to continue the appointment, and Williams appeared in the case and acted as such temporary administrator after the succeeding term had passed, claiming to be the temporary administrator of the estate. It will be presumed in support of the judgment that the Probate Court did, in accordance with the statute, continue the appointment of Williams as temporary administrator, and that the terms of his appointment empowered him to appear and defend the case.
It is also claimed that the District Court of Harris County erred in changing the venue of the case to Galveston County, instead of to Port Bend County', and that the judge of that court erred in refusing to file conclusions of fact and law upon the trial of the motion for change of venue.
Article 1333 of the Revised Civil Statutes is in the following language: “The jury shall render a general or special verdict as may be directed by the court, and the verdict shall comprehend the whole issue or all the issues submitted to them; and upon a trial by the court, the judge shall, at the request of either of the parties, also state in writing the conclusions of facts found by him separately from the conclusions of law, which conclusions of fact and law shall be filed with the clerk and shall constitute a part of the record; and in all cases where a special verdict of the jury is rendered or the conclusions of fact found by the judge are separately stated, the court shall, unless the same be set aside and new trial granted, render judgment thereon, and it shall be sufficient for the party excepting to the conclusions of law or judgment of the court, to cause it to be noted on the record in the judgment entry that he excepts thereto; and such party may thereupon take his appeal or writ of error without a statement of facts or .further exceptions in the transcript, but the transcript shall in such case contain the special verdict or conclusions of fact and law aforesaid and the judgment rendered thereon.” It will be seen tnat the findings of fact mentioned in the foregoing article are in connection with the verdict of a jury, and the same results are to follow upon the return of the verdict of the jury or the filing of conclusions of fact by the judge. By the terms of the said article judgment is to be rendered upon conclusions of fact and the party .aggrieved is secured the right of appeal therefrom. We think that it appears from the terms of this article that conclusions of fact are required only upon final trial, and the Court of Civil Appeals correctly so held. There is in the record no statement of the evidence introduced upon the trial of the motion for change of venue and we have no data upon which to base a review of the action of the court on that motion. It will be presumed in favor of the action of the court that the venue was correctly changed to Galveston County.
The suit was based upon a promissory note dated December 20, 1890, payable eight months from date, at the City of Houston, for the sum of $7500, to W. 0. Ellis or order, and signed by A. C. Petri. The note was given for the purchase money of one-half interest in a lot in the City of Dallas, and A. C. Petri at the time executed and delivered to W. O. Ellis a deed of trust empowering him to sell the lot in case there was default in the payment of the note.
On the 22nd day of August, 1891, the note being then the property of the defendant in error, a bank doing business in the City of Houston, and being in the possession of the said defendant bank, E. Raphael, a notary public, undertook to protest the same under the statute. The protest contains the following statement: “By this public Instrument of Protest Be it Known, That on the 22nd day of August, A. D. 1891, at the request of The Planters and Mechanics National Bank, holder of the original note whereof a true copy is on the reverse hereof written, I, E. Raphael, a Notary Public in and for the County of Harris, State of Texas, duly commissioned by letters patent under the Great Seal of the State aforesaid, and sworn, presented said note at the office of W. O. Ellis and to-and demanded of him payment therefor; which was refused, (W. 0. Ellis is not in the City, and has no office here).” It then proceeds to state in substance that the notary does publicly and solemnly protest the said note as well against the drawer or maker of the same as against all others whom it doth or may concern, concluding with the proper certificate, under the seal of the notary public, and accompanied with a copy of the note attached thereto, stating the fees of protest and such things as were necessary. The entry made upon the notary’s record was as follows: