er, 173 N. C. 479, 92 S. E. 324. The rule in So far as our investigation discloses, the Texas, applicable to transactions and con- case of Loving v. Place, supra, by the El Paso tracts made in violation of a particular stat- court is the only case in Texas applying the ute, is first enunciated in the case of Hunt rule in the Hunt-Robinson Case to the statv. Robinson, 1 Tex. 749, and, as a full state- ute here invoked. That court holds thatment of the rule and its application can best "There is no doubt that the Legislature by be made by quotation from Justice Lips- the statutes intended to and did make it uncomb's opinion, we make such quotation. In lawful to transact business under an assumed that case our Supreme Court, in passing on name, and, being unlawful to do it, there is no the validity of a sale of land where the act of reason why the courts should lend their aid to Congress of Coahuila and Texas forbids the the enforcement of a contract made in violation alienation of certain lands as follows: "No of law. Hunter et al. v. Patterson et al., 162 new settler, Mexican or foreigner, shall, un-Ky. 769, 173 S. W. 120, L. R. A. 1915D, 987, 988, should rule this case. der any title or pretense, sell or alienate the land or water that falls to his share, until after six years from the time of taking possession' (Laws of Coahuila and Texas, 191)" -holds that the contract for the sale of the land, in face of such prohibition is illegal and void. In making this holding, the Supreme Court also held that: It is "a rule of universal application, that to undertake to do an act forbidden by the law of the place where it is to be done, is an invalid agreement, and imposes no legal obligation. There is a moral obligation, in the absence of penalty, to obey the law. Courts are organized under the law and are required to administer it; and, it would seem to be an anomaly were they so far to sanction its violation, as to give effect to a contract forbidden by the very law that they are bound to respect The principle to be deduced from the authority last cited [Chitty on Contracts, 3d Am. Ed.] is, that for certain causes, the enforcement of a contract may be suspended, without invalidating the contract; and, further, that if impediments to contracting exist at the time it is entered into, it invalidates the contract, even after the removal of the impediment. and enforce. "It seems that a distinction was once made in the English courts, when the law only forbid the doing an act, and when it imposed a penalty for doing it. A contract in violation of the first was not valid, whilst the latter did not destroy the obligation by contracting to do the act forbidden by law, under a penalty. But the current of authority is now destructive of any such distinction, holding all contracts against law alike invalid. Chitty on Cont. 230, 231; 5 Term Rep. 242; 5 B. & A. 335. My object in referring to the last authorities is to show that in the English courts there is no longer any distinction between a law merely forbidding an act, and one forbidden under a penalty. The same authority will show that the distinction once attempted between things mala prohibita and mala in se, cannot be sustained; that either invalidates a contract." While the case is distinguished from the one he is considering, Roberson v. Sterrett, 96 Tex. 183, 71 S. W. 385, 73 S. W. 2, Chief Justice Gaines recognizes the law to be as stated in Hunt v. Robinson, supra. The rule laid down in Brown v. Simpson's Heirs, 67 Tex. 228, 2 S. W. 644; Holmes v. Johns, 56 Tex. 49, and authorities therein cited, ap Mr. Page, in his Law of Contracts, vol. 2, p. 1178, § 682, lays down the rule to be that where the act in question is forbidden by the written law, such prohibition may be either express or implied, and that contracts to perform such acts will be unenforceable. 6. R. C. p. 701. "When a statute intends to prohibit an act, it must be held that its violation is illegal without regard to the reason of the inhibition, of the morality or immorality of the act; and that is so without regard to the ignorance of the parties as to the prohibiting statute." We therefore hold that the appellants were prohibited from enforcing their demand by suit, and also that the transaction of the sale of the gas, when asserted by the offending party, was, and is, absolutely void. It is not necessary here to discuss the status of the other parties to the contract. [3] The appellants' contention that, because they simply owned a gas well and that the only alleged business transaction was the operation of the lease, appellants were not conducting a business, within the terms of the assumed name statute, is overruled. The sale of the gas to appellee was a daily and recurring transaction. They had their gas to sell and, finding one purchaser, made a contract with it to take all of its gas, instead of having to sell it to many customers. Certainly this was transacting business, and comes within the statute. [4, 5] The proposition that appellants could establish their cause of action without the aid of the illegal transaction, and were therefore entitled to recover, cannot be sustained. The proposition as presented in the abstract is correct, if it was true that they could establish their case without the aid of the illegal transaction, but is not correct as applied to the facts of this case. The very transaction upon which this suit is based was forbidden by law, and therefore void as to the asserting party. In order to recover, they must recover upon a transaction resting under the condemnation of the law. Hence they cannot establish their cause of action without the aid of such transaction. Stone v. Robinson (Tex. Com. App.) 234 S. W. 1095; (273 S.W.) fense, to warrant setting aside default, determined by allegations of motion. Bisso, 92 Tex. 221, 222, 47 S. W. 637, 71 Am. | 6. Judgment 163-Issue of meritorious deSt. Rep. 837; Oliphant v. Markham, 79 Tex. 543, 547, 15 S. W. 569, 23 Am. St. Rep. 363. We therefore affirm the judgment of the trial court. FIRST NAT. BANK OF MORGAN v. SOUTH- (Court of Civil Appeals of Texas. Dallas. 1. Appeal and error 722 (1)—Appeal may be predicated on assignments of error in motion for new trial. Where interlocutory judgment of default has been entered, an appeal may be predicated on assignments of error in motion for new trial denied by court and contained in record, without repeating assignments by filing formal instrument provided in Vernon's Sayles' Ann. Civ. St. 1914, art. 1612, which is only required in absence of motion for new trial. 4. Judgment 161-Answer to merits need not be filed to warrant vacation of default judgment for hearing on plea of privilege. In view of Vernon's Ann. Civ. St. Supp. 1918, art. 1903, and Vernon's Sayles' Ann. Civ. St. 1914, art. 1833, answer to merits need not be filed on or before filing plea of privilege, and failure to file answer to merits does not defeat right to have default judgment set aside for hearing on plea of privilege filed after judgment, if delay is sufficiently excused, and meritorious defense alleged. 5. Judgment 163-Excuse for delay, in filing answer on motion to set aside default, must be shown by proof. On motion to set aside default judgment, in determining question of excuse for delay in filing answer, court will look not only to allegations in motion, but also to proof offered thereunder. On motion to set aside default, issue, as to whether party has meritorious defense, will be determined on allegations of motion, rather than by hearing evidence. 7. Judgment 145 (4)—Motion for new trial, after default judgment, held to allege meritorious defense. In action against collecting bank for delivering to debtor release of security before payment, allegations on motion for new trial and to set aside default judgment that debtor had subsequently paid obligation to creditor, held to show meritorious defense. 8. Judgment 143(15)-Failure to file plea of privilege, within time required, excusable. Where officer of bank, who attended to its litigation, became ill, and as a result services of attorney were not secured until an employee happened to run across matter, and attorney on same day prepared plea of privilege and mailed it to clerk of trial court, fact that plea was not filed until shortly after hour citation was returnable, and default judgment entered, held excusable. On Motion for Rehearing. 9. Appeal and error ~113(3)—Judgment, denying hearing on plea of privilege after default judgment, held appealable. Where plea of privilege has been filed after time for filing, and default has been entered, judgment, refusing motion to set aside default and hear plea, held appealable. 10. Appeal and error 719(1)-Refusal of plea of privilege without evidence held fundamental error. and default had been entered, and court on moWhere plea of privilege was filed too late, tion to vacate the judgment assumed to pass on the issue raised by the plea and controverting affidavit, refusal of plea and denial of change of venue, without hearing any evidence, held fundamental error, reviewable without assignment of error. Appeal from District Court, Dallas County; Louis Wilson, Judge. Action by the Southwest National Bank of Dallas against the First National Bank of Morgan. Judgment by default for plaintiff. From an order overruling a motion to set aside an interlocutory judgment, and determine a plea of privilege, defendant appeals. Reversed and remanded, with instructions. H. J. Cureton, of Meridian, for appellant. VAUGHAN, J. Appellee, the Southwest instituted this suit against appellant, as deNational Bank of Dallas, as plaintiff below, fendant, on the 8th day of January, 1924, and alleged in its petition, filed on that date, that appellee held and owned a promis For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes sory note executed by one R. G. Cate, payable to appellee, at Dallas, Tex., on which there was owing and due appellee more than $1,200; that said R. G. Cate was the duly qualified and acting cashier of appellant, with full power to receive and act upon collections and receive and deliver securities, and to receive and make collections; that on January 25, 1922, said note was secured by a mortgage lien on certain real estate situated in Waco, Tex., then of the reasonable value of $1,500 or more; that on said date appellee executed a release of said lien and forwarded same by mail to the said R. G. Cate, Cashier, First National Bank of Morgan, Tex., with authority to deliver said release upon payment of $1,200 to appellee to be applied on said note, and that appellant received said release and delivered same to the owner of said property and said release was thereafter, on the 28th day of January, 1922, filed in the office of the county clerk of McClellan county, Tex., and was immediately recorded in the deed records of said county, and that appellant failed to remit said sum of $1,200, or any part thereof, to appellee. Citation was duly issued on said petition January 8, 1924, returnable at 10 o'clock a. m. Monday, the 11th day of February, 1924, and was duly served on the 14th day of January, 1924, at 9 o'clock a. m. On February 11, 1924, at 10 o'clock a. m., no answer or other plea having been filed by appellant, a judgment by default with writ of inquiry was rendered by the court at the request of appellee. On February 14, 1924, appellant filed its motion to set aside said default judgment and to grant it a new trial, asking that its plea of privilege filed on the 11th day of February, 1924, under the circumstances hereinafter stated, be heard and sustained. In this motion no attempt was made to allege the existence of a meritorious defense to appellee's cause of action, and no answer attempting to set up such defense was filed. On February 21, 1924, appellant filed its amended motion for a new trial along the lines of the original motion, in addition thereto enlarging and extending in some respects the allegations contained in its original motion, but not necessary at this time to be noticed. On February 28, 1924, appellee filed a reply to appellant's motion for a new trial, verified by the affidavit of J. W. Royal, its vice president, and R. L. Stennis, its attorney of record. This reply shows that appellant was cited to answer at or before 10 o'clock a. m. on February 11, 1924, and by law was required to appear and answer appellee's petition at or before 10 o'clock a. m. on said date, and at and before the filing of appellant's plea of privilege and before answer was filed by appellant, a judgment by default with writ of inquiry was rendered by said plea of privilege was not filed until after 10 o'clock a. m. February 11, 1924, and not until after said judgment by default had been rendered. Without waiving its rights under said judgment by default, appellee, at the time, filed a controverting affidavit replying to appellant's plea of privilege, alleging that on January 25, 1922, it owned and held a certain note in writing executed by H. C. Cate, etc., and payable to appellee in Dallas county, Tex., secured by a deed of trust lien on certain real estate in McClellan county, Tex., and agreed to release said real estate from said lien upon the payment to appellee of the sum of $1,200, and that said release was delivered to appellant on the 26th day of January, 1922, under instruction and authority from appellee to appellant in writing to deliver said release upon the payment of said $1,200 to appellee on said note, and that appellant received said release under said written instruction and agreed and undertook and bound itself to carry out said instructions for the delivery of said release upon payment to appellee in accordance with the terms of said note of $1,200, and that appellant delivered said release and same was recorded and appellee's lien on said property thereby lost, and that appellant, by its said acts, undertook and obligated itself to pay to appellee, in Dallas county, Tex., said sum of $1,200; that appellee's suit against appellant is on a contract in writing, which by its express terms, was and is to be performed in said county of Dallas, and which appellant assumed, and for the payment of which it is liable. On March 7, 1924, appellant filed its second amended motion for new trial, wherein appellant moves the court to set aside and hold for naught the judgment and decree theretofore rendered in this cause on February 11, 1924, and grant it a new trial, for the following reasons, to wit: (a) Because appellant's attorney prepared its plea of privilege on February 9, 1924, the day on which the citation issued out of said cause and served on appellant reached its attorney, and, on the same day, deposited said plea contained in an envelope properly addressed to the clerk of the district court of Dallas county, postage prepaid, in the United States post office at Meridian, Tex., and that same was delivered to and received by the clerk of said court on the morning of February 11, 1924; (b) because appellant was delayed in placing said citation in the hands of its attorney earlier than February 9, 1924, because of the serious illness of its vice president, C. McCullough, who had active charge of the affairs of appellant bank, including the matter of looking after appellant's defense to appellee's suit, and, while looking after same, became ill on January 28, 1924; (273 S.W.) appellee's claim, and is entitled to have its plea of privilege considered and duly passed upon and, upon trial, to present its defense to the cause of action upon its merits. That appellant's defense consists of, (1) that the release in question, forwarded to R. G. Cate, as cashier of appellant, as alleged, related to the personal and private business of the said R. G. Cate and one H. C. Cate, in which the appellant had no interest; that at said time the said Cates were indebted to appellee in the principal sum of two notes, one for $6,000 and one for $2,000, and that whatever the said R. G. Cate did in reference to said release, he was acting in his own private interest and antagonostic to the rights of appellant and could not bind it; (2) that whatever the said R. G. Cate may have done with said release as to delivery and the recording of same, he later, on March 18, 1922, paid off and settled in full the said two notes and all indebtedness due to appellee by selling and transferring, by bill of sale of that date, to appellee, 35 head of registered Hereford cattle, and that all indebtedness due and owing by said H. C. Cate and R. G. Cate was thereby settled in full, and said cattle received, accepted, and disposed of by appellee in full satisfaction of said debt. This case arose under subdivisions 1 and 7, § 1, c. 105, p. 215, Acts 38th Legislature (1923) relating to procedure in civil district courts in counties having two or more district courts with civil jurisdiction only, and whose terms continue three months or longer. Appellant's plea of privilege was duly sworn to on the 9th day of February, 1924, and in all respects complied with the requirements of the law; therefore, on its face, showed that the venue of the suit against appellant was with the district court of Bosque county, and not with the trial court. March 15, 1924, appellant's second amended motion was presented to and heard by the trial court, and on said date overruled, and appellant's plea of privilege denied, the trial court being of the opinion, and finding, that said plea of privilege was filed too late. This order of the trial court affirmatively shows that a writ of inquiry was awarded, but that no final judgment had been rendered. Therefore this appeal is from the interlocutory order denying appellant's plea of privilege, and not from the order awarding the judgment by default with writ of inquiry. for a new trial, which was denied by the court, The above article reads, in part, as follows: "That where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error." And provides further "That all errors not distinctly specified are waived." This applies to assignments of error contained in the record, whether in the form of a motion for a new trial, or presented by a separate and distinct document filed with the clerk of the trial court, as the assignments of error upon which the appeal is to be predicated. In either form, only the errors distinctly specified can be considered; while, on the other hand, errors so specified will be considered in either form presented by the record. [3] Appellee further objects to propositions presented on this appeal being considered, on the ground that the assignments are too inOn definite and that appellant makes no attempt to specify any error committed by the court. The following provision of the above article amply takes care of this objection, to wit: An assignment "shall be sufficient which directs the attention of the court to the error complained of." Appellant's assignments, as contained in its brief and based on its motion for rehearing, are, in our opinion, sufficient to designate the error complained of and sought to be redressed on this appeal, although same may not be as artistically or as fully presented as same might have been. [1, 2] At the threshold we are met with appellee's objection to the court considering any of the propositions presented by appellant, on the ground that the record in this cause does not contain any assignments of error as a basis for said propositions. Appellant filed its motion for new trial, which contained specific assignments of error claimed to have been committed in the proceedings had in the court below as grounds for the granting of the prayer of its motion. Appellant's motion Appellant's motion for a new trial is bottomed on its claim of right to have the judgment by default set aside that its plea of privilege may be heard and determined on its merits, which right was denied by said judgment being entered, and which cannot be secured as long as said judgment continues in force. Appellant, in support of this position, claims (a) that in its motion the existence of a meritorious defense to appellee's cause of action is alleged; (b) that said mo tion, and the evidence introduced in support thereof, show a sufficient excuse for the delay in filing the plea of privilege to entitle same to be considered as having been duly filed within the time required by law in order to be heard and duly determined on its merits. [4] Under the law it was not incumbent on appellant to file its answer to the merits of appellee's cause of action on filing its plea of privilege, although it would have been the better practice to have filed both pleas at the same time, observing the due and proper order of pleading in reference thereto. The orderly and timely filing of a plea of privilege stays further proceedings for a certain length of time within which the plaintiff in the cause has the right to file a controverting affidavit, and, if no controverting affidavit is filed, the only order that the trial court can enter is one sustaining the plea and transferring the cause to the court of the county in which the venue rests under the allegations of the plea (article 1903, Vernon's Ann. Civ. St. Supp. 1918), and the defendant presenting such plea of privilege has the right to withhold the filing of his answer to the merits until the completion of the transfer, as ordered, by the filing of a transcript of all the orders made in said cause, together with the original papers filed therein, with the clerk of the court to which the transfer is ordered (article 1833, Vernon's Sayles' Ann. Civ. St. 1914), but must have same on file in the court to which the cause is transferred before the plaintiff has the right to obtain judgment by default, or, if cause be not transferred, to file such answer immediately on the plea being overruled. Therefore, the failure of appellant to file, or attempt to file, an answer to the merits before the judgment by default with writ of inquiry was awarded, cannot have the effect to deny to appellant the right to have same set aside in order that its plea of privilege may be properly heard and determined, provided a sufficient excuse for failure to file the plea of privilege in time is shown, and in its motion to set aside said default judgment a meritorious defense to the cause of action is alleged. If so, appellant's motion should be granted, to the end that its plea of privilege may be presented and determined that the cause may be tried to the merits in the forum having jurisdiction of the parties and the cause. Huntsville (Tex. Civ. App.) 151 S. W. 1116; [7] The allegations in appellant's motion, as to the existence of a meritorious defense are as follows: "Because the defendant has a good defense to plaintiff's claims and is entitled to have its plea of privilege considered and duly passed upon, and upon a trial hereof to hear the evidence of defendant in defense of the cause of action upon its merits; that if the release in question was forwarded to R. G. Cate as cashier of defendant as alleged, then that the same related to the personal and private business of the said R. G. Cate and H. C. Cate, and about which this defendant had no interest; that at said time the said Cates were indebted to plaintiff in the principal sum of two notes, as mentioned in said letter, that is one for $6,000 and one for $2,000, and that whatever the said R. G. Cate did, he was acting in his own private interest and antagonistic to the rights and interests of defendant and could not bind the defendant; and that whatever the said R. G. Cate may have done with reference to said release or in the matter, he later paid off and settled in full the said two notes and all indebtedness due to plaintiff, by selling and transferring by bill of sale to the plaintiff 35 head of Hereford cattle, all of which is shown by bill of sale duly accepted by plaintiff and recorded on March 18, 1922, on the bill of sale records of Bosque county, Tex.; that said amount claimed herein and all indebtedness due and owing by said H. C. Cate and R. G. Cate was thereby settled in full and said cattle were received, accepted and disposed of by plaintiff in full satisfaction of said debt * Appellee's suit is based upon a claim for damages in which it is claimed that it sent to appellant's cashier, by mail, a certain release of vendor's lien to be taken out of the bank upon payment of $1,200 to appellee. Appellant's motion shows that all indebtedness between R. G. Cate and H. C. Cate and appellee was settled afterwards by selling to appellee a certain herd of Hereford cattle. If the debt, to secure the payment of which the lien existed on the land, was settled in full after the lien thereon had been released by the wrongful delivery of the release by appellant, as alleged by appellee, then appellee has no cause of action, as the pay. ment of the indebtedness secured by the lien [5, 6] In passing on the above propositions, thus released was in full satisfaction of all it is clear that the authorities are very much demands in favor of appellee growing out of in uniform in holding that on the issues as the wrongful delivery of said release. The to the cause of the delay in filing an answer allegations and the affidavits in support of the court must look, not only to the allega- the meritorious defense as alleged are suftions in the motion on this point, but also ficient, definite, and certain on this point. to the proof offered thereunder, and, on the Wheat v. Ward County, etc. (Tex. Civ. App.) other hand, on the issue as to the meritorious 217 S. W. 713; Winniford v. Lawther, sudefense, the court must look more to the al- pra; Lawther Grain Co. v. Winniford, sulegations of the motion on this issue rather pra; E. P. & S. W. R. Co. v. Kelley, 99 Tex. than undertake to hear the evidence consti- 87, 87 S. W. 660; Holliday v. Holliday, 72 |