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cr, 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- Kv. 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 pos

Mr. Page, in his Law of Contracts, vol. 2, session' (Laws of Coahuila and Texas, 191)” p. 1178, § 682, lays down the rule to be that -holds that the contract for the sale of the where the act in question is forbidden by the land, in face of such prohibition is illegal written law, such prohibition may be either and void. In making this holding, the Su- express or implied, and that contracts to perpreme Court also held that:

form such acts will be unenforceable. It is "a rule of universal application, that to

6. R. C. p. 701. "When a statute intends to undertake to do an act forbidden by the law prohibit an act, it must be held that its vioof the place where it is to be done, is an in- lation is illegal without regard to the reason valid agreement, and imposes no legal obliga- of the inhibition, of the morality or immorality tion. There is a moral obligation, in the ab of the act; and that is so without regard to sence of penalty, to obey the law. Courts are

the ignorance of the parties as to the prohibitorganized under the law and are required to

ing statute." administer it; and, it would seem to be an anomaly were they so far to sanction its vio We therefore hold that the appellants were lation, as to give effect to a contract forbidden prohibited from enforcing their demand by by the very law that they are bound to respect suit, and also that the transaction of the sale and enforce.

The principle to be of the gas, when asserted by the offending deduced from the authority last cited (Chitty on Contracts, 3d Am. Ed.] is, that for certain party, was, and is, absolutely void. It is not causes, the enforcement of a contract may be necessary here to discuss the status of the suspended, without invalidating the contract; other parties to the contract. and, further, that if impediments to contracting [3] The appellants' contention that, beexist at the time it is entered into, it invalidates cause they simply owned a gas well and that the contract, even after the removal of the the only alleged business transaction was impediment.

the operation of the lease, appellants were "It seems that a distinction was once made in the English courts, when the law only forbid not conducting a business, within the terms the doing an act, and when it imposed a pen

of the assumed name statute, is overruled. alty for doing it. A contract in violation of The sale of the gas to appellee was a daily the first was not valid, whilst the latter did not and recurring transaction. They had their destroy the obligation by contracting to do gas to sell and, finding one purchaser, made the act forbidden by law, under a penalty. But a contract with to take all of its gas, inthe current of authority is now destructive of stead of having to sell it to many customers. any such distinction, holding all contracts Certainly this was transacting business, and against law alike invalid. Chitty on Cont. 230,

comes within the statute. 231; 5 Term Rep. 242; 5 B. & A. 335. My object in referring to the last authorities is

[4, 5] The proposition that appellants could to show that in the English courts there is no

establish their cause of action without the longer any distinction between a law merely aid of the illegal transaction, and were thereforbidding an act, and one forbidden under a fore entitled to recover, cannot be sustained. penalty. The same authority will show that The proposition as presented in the abstract the distinction once attempted between things is correct, if it was true that they could es. mala prohibita and mala in se, cannot be sus- tablish their case without the aid of the iltained; that either invalidates a contract."

legal transaction, but is not correct as ap

plied to the facts of this case. The very While the case is distinguished from the transaction upon which this suit is based one he is considering, Roberson v. Sterrett, was forbidden by law, and therefore void as 96 Tex. 183, 71 S. W. 385, 73 S. W. 2, Chief to the asserting party. In order to recover, Justice Gaines recognizes the law to be as they must recover upon a transaction resting stated in Hunt v, Robinson, supra. The rule under the condemnation of the law. Hence laid down in Brown v. Simpson's Heirs, 67 they cannot establish their cause of action Tex. 228, 2 S. W. 614; Holmes v. Johns, 56 without the aid of such transaction. Stone Tex. 49, and authorities therein cited, ap v. Robinson (Tex, Com. App.) 234 S. W. 1095; proves the rule laid down in the Hunt Case. Read v. Smith, 60 Tex. 379, 382; Wiggins v.

(273 S.W.) Bisso, 92 Tex. 221, 222, 47 S. W. 637, 71 Am., 6. Judgment mw 163—Issue of meritorious de St. Rep. 837; Oliphant v. Markham, 79 Tex. fense, to warrant setting aside default, deter543, 547, 15 S. W. 569, 23 Am. St. Rep. 363. mined by allegations of motion.

We therefore affirm the judgment of the On motion to set aside default, issue, as to trial court.

whether party has meritorious defense, will
be determined on allegations of motion, rather
than by bearing evidence.
7. Judgment em 145(4)-Motion for new trial,

after default judgment, held to allege meriFIRST NAT. BANK OF MORGAN v. SOUTH.

torious defense. WEST NAT, BANK OF DALLAS,

In action against collecting bank for deliv(No. 9341.)

ering to debtor release of security before pay.

ment, allegations on motion for new trial and (Court of Civil Appeals of Texas. Dallas.

to set aside default judgment that debtor had March 28, 1925. Rehearing Denied

subseguently paid obligation to creditor, held May 30, 1925.)

to show meritorious defense.

8. Judgment @ 143(15)--Failure to file plea 1. Appeal and error Om722(1)-Appeal may be of vilege, within time required, excusable. predicated on assignments of error in mo

Where officer of bank, who attended to its tion for new trial.

litigation, became ill, and as a result services Where interlocutory judgment of default of attorney were not secured until an employee has been entered, an appeal may be predicated happened to run across matter, and attorney on on assignments of error in motion for new same day prepared plea of privilege and mailed trial denied by court and contained in record, it to clerk of trial court, fact that plea was not without repeating assignments by filing formal filed until shortly after hour citation was reinstrument provided in Vernon's Sayles' Ann. turnable, and default judgment entered, held exCiv. St. 1914, art. 1612, which is only required cusable. in absence of motion for new trial.

On Motion for Rehearing. 2. Appeal and error E722(1)-Appellant may 9. Appeal and error w113(3) - Judgment, de. file assignments of error independent of those nying hearing on plea of privilege after de. specified in motion for new trial.

fault judgment, held appealable. Appellant may file assignments of error in

Where plea of privilege has been filed after dependent of those specified in motion for new

time for filing, and default has been entered, trial, where based upon and germane to some judgment, refusing motion to set aside default ground embraced in motion, but only errors and hear plea, held appealable. specified in either of those forms will be con

10. Appeal and error ww719(1)--Refusal of sidered.

plea of privilege without evidence held funda

mental error. 3. Appeal and error w724(1)-Assignment,

Where plea of privilege was filed too late, directing attention of court to error com

and fault had been entered, and court on moplained of, sufficient.

tion to vacate the judgment assumed to pass Under Vernon's Sayles' Ann. Civ. St. 1914, on the issue raised by the plea and controvertart. 1612, assignment of error, directing atten- ing affidavit, refusal of plea and denial of change tion of court to error complained of, is suffi- of venue, without hearing any evidence, held funcient, although not so artistic as might have damental error, reviewable without assignment been.

of error.

4. Judgment 161-Answer to merits need Appeal from District Court, Dallas Coun

not be filed to warrant vacation of default ty; Louis Wilson, Judge. judgment for hearing on plea of privilege.

Action by the Southwest National Bank In view of Vernon's Ann. Civ. St. Supp. I of Dallas against the First National Bank 1918, art. 1903, and Vernon's Sayles' Ann. Civ. of Morgan. Judgment by default for plainSt, 1914, art. 1833, answer to merits need not tiff. From an order overruling a motion to be filed on or before filing plea of privilege, and failure to file answer to merits does not de- set aside an interlocutory judgment, and defeat right to have default judgment set aside termine a plea of privilege, defendant apfor hearing on plea of privilege filed after judg- peals. Reversed and remanded, with instrucment, if delay is sufficiently excused, and tions. meritorious defense alleged.

H, J. Cureton, of Meridian, for appellant.

Stennis & Stennis, of Dallas, for appellee. 5. Judgment w 163-Excuse for delay, in filing

answer on motion to set aside default, must be shown by proof.

VAUGHAN, J. Appellee, the Southwest

National Bank of Dallas, as plaintiff below, On motion to set aside default judgment, in determining question of excuse for delay in 'fil-, instituted this suit against appellant, as deing answer, court will look not only to allega. Í fendant, on the 8th day of January, 1924, . tions in motion, but also to proof offered there and alleged in its petition, filed on that under,

date, that appellee held and owned a promis

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

sory note executed by one R. G. Cate, pay- , said plea of privilege was not filed until aftable to appellee, at Dallas, Tex., on which er 10 o'clock a. m. February 11, 1924, and there was owing and due appellee more than not until after said judgment by default had $1,200; that said R. G. Cate was the duly been rendered. qualified and acting cashier of appellant, Without waiving its rights under said judgwith full power to receive and act upon col- ment by default, appellee, at the time, filed lections and receive and deliver securities, a controverting aflidavit replying to appeland to receive and make collections; that on lant's plea of privilege, alleging that on JanJanuary 25, 1922, said note was secured by a uary 25, 1922, it owned and held a certain mortgage lien on certain real estate situated note in writing executed by H. C. Cate, etc., in Waco, Tex., then of the reasonable value and payable to appellee in Dallas county, of $1,500 or more; that on said date appel. Tex., secured by a deed of trust lien on cerlee executed a release of said lien and for- tain real estate in McClellan county, Tex., warded same by mail to the said R. G. Cate, and agreed to release said real estate from Cashier, First National Bank of Morgan, Tex., said lien upon the payment to appellee of the with authority to deliver said release upon sum of $1,200, and that said release was depayment of $1,200 to appellee to be applied livered to appellant on the 26th day of Janon said note, and that appellant received said uary, 1922, under instruction and authority release and delivered same to the owner of from appellee to appellant in writing to desaid property and said release was there- liver said release upon the payment of said after, on the 28th day of January, 1922, filed $1,200 to appellee on said note, and that apin the office of the county clerk of McClel- pellant received said release under said writlan county, Tex., and was immediately record ten instruction and agreed and undertook ed in the deed records of said county, and and bound itself to carry out said instructhat appellant failed to remit said sum of tions for the delivery of said release upon $1,200, or any part thereof, to appellee. Cita- payment to appellee in accordance with the tion was duly issued on said petition January terms of said note of $1,200, and that appel8, 1924, returnable at 10 o'clock a, m. Mon- lant delivered said release and same was re. day, the 11th day of February, 1924, and was corded and appellee's lien on said property duly served on the 14th day of January, 1924, thereby lost, and that appellant, by its said at 9 o'clock a. m. On February 11, 1924, at acts, undertook and obligated itself to pay to 10 o'clock a. m., no answer or other plea hay- appellee, in Dallas county, Tex., said sum of ing been filed by appellant, a judgment by de- $1,200; that appellee's suit against appellant fault with writ of inquiry was rendered by is on a contract in writing, which by its exthe court at the request of appellee.

press terms, was and is to be performed in On February 14, 1924, appellant filed its said county of Dallas, and which appellant motion to set aside said default judgment and assumed, and for the payment of which it is to grant it a new trial, asking that its plea liable. of privilege filed on the 11th day of February, On March 7, 1924, appellant filed its sec1924, under the circumstances hereinafter ond amended motion for new trial, wherein stated, be heard and sustained. In this mo- appellant moves the court to set aside and tion no attempt was made to allege the exist- hold for naught the judgment and decree ence of a meritorious defense to appellee's theretofore rendered in this cause on Febcause of action, and no answer attempting ruary 11, 1924, and grant it a new trial, for to set up such defense was filed.

the following reasons, to wit: (a) Because On February 21, 1924, appellant filed its appellant's attorney prepared its plea of amended motion for a new trial along the privilege on February 9, 1924, the day on lines of the original motion, in addition which the citation issued out of said cause thereto enlarging and extending in some re- and served on appellant reached its attorspects the allegations contained in its origi- ney, and, on the same day, deposited said nal motion, but not necessary at this time to plea contained in an envelope pro

rly adbe noticed.

dressed to the clerk of the district court of On February 28, 1924, appellee filed a reply Dallas county, postage prepaid, in the United to appellant's motion for a new trial, veri- States post office at Meridian, Tex., and that fied by the affidavit of J. W. Royal, its vice same was delivered to and received by the president, and R. L. Stennis, its attorney of clerk of said court on the morning of Februrecord. This reply shows that appellant was ary 11, 1924; (b) because appellant was decited to answer at or before 10 o'clock a. m. layed in placing said citation in the hands of on February 11, 1924, and by law was re- its attorney earlier than February 9, 1924, quired to appear and answer appellee's pe- because of the serious illness of its vice prestition at or before 10 o'clock a. m. on said ident, C. McCullough, who had active charge date, and at and before the filing of appel- of the affairs of appellant bank, including lant's plea of privilege and before answer the matter of looking after appellant's dewas filed by appellant, a judgment by de- fense to appellee's suit, and, while looking fault with writ of inquiry was rendered by after same, became ill on January 28, 1924; the trial court against appellant, and that| (c) because appellant has a good defense to

(273 S.W.) appellee's claim, and is entitled to have its for a new trial, which was denied by the court, plea of privilege considered and duly passed is contained in the record, therefore constiupon and, upon trial, to present its defense to tutes the assignments of error on which this the cause of action upon its merits. That appeal is predicated: it not being necessary appellant's defense consists of, (1) that the to repeat the assignments of error contained release in question, forwarded to R. G. Cate, in the motion for new trial by the filing with as cashier of appellant, as alleged, related the clerk of the court below the assignments to the personal and private business of the of error in a formal instrument provided for said R. G. Cate and one H. C. Cate, in which in the first paragraph of article 1612, V. S. the appellant had no interest; that at said T, C. S., same being required only in the abtime the said Cates were indebted to appel-sence of a motion for new trial.

One aplee in the principal sum of two notes, one for pealing is not required to rely upon the as$6,000 and one for $2,000, and that what- signments of error specified in his motion for ever the said R. G. Cate did in reference to new trial, but is at liberty to file, independsaid release, he was acting in his own private ent thereof, his assignments of error, to be interest and antagonostic to the rights of ap based upon and germane to some ground empellant and could not bind it; (2) that what- braced in his motion for new trial. ever the said R. G. Cate may have done The above article reads, in part, as follows: with said release as to delivery and the re "That where a motion for new trial has been cording of same, he later, on March 18, 1922, filed that the assignments therein shall conpaid off and settled in full the said two notes stitute the assignments of error and need not and all indebtedness due to appellee by selling be repeated by the filing of the assignments and transferring, by bill of sale of that date, of error.” to appellee, 35 head of registered Hereford

And provides furthercattle, and that all indebtedness due and ow

“That all errors not distinctly specified are ing by said H. C. Cate and R. G. Cate was

waived." thereby settled in full, and said cattle received, accepted, and disposed of by appellee in This applies to assignments of error confull satisfaction of said debt.

tained in the record, whether in the form of This case arose under subdivisions 1 and a motion for a new trial, or presented by 7, § 1, c. 105, p. 215, Acts 38th Legislature a separate and distinct document filed with (1923) relating to procedure in civil district the clerk of the trial court, as the assigncourts in counties having two or more dis-ments of error upon which the appeal is to trict courts with civil jurisdiction only, and be predicated. In either form, only the errors whose terms continue three months or long-distinctly specified can be considered; while, er. Appellant's plea of privilege was duly on the other hand, errors so specified will be sworn to on the 9th day of February, 1924, considered in either form presented by the and in all respects complied with the require-record. ments of the law; therefore, on its face, [3] Appellee further objects to propositions showed that the venue of the suit against ap- presented on this appeal being considered, on pellant was with the district court of Bosque the ground that the assignments are too incounty, and not with the trial court. On definite and that appellant makes no atMarch 15, 1924, appellant's second amended tempt to specify any error committed by motion was presented to and heard by the the court. The following provision of the trial court, and on said date overruled, and above article amply takes care of this obappellant's plea of privilege denied, the trial jection, to wit: An assignment "shall be court being of the opinion, and finding, that sufficient which directs the attention of the said plea of privilege was filed too late. This court to the error complained of.” Appelorder of the trial court affirmatively shows lant's assignments, as contained in its brief that a writ of inquiry was awarded, but that and based on its motion for rehearing, are, no final judgment had been rendered. There in our opinion, suflicient to designate the erfore this appeal is from the interlocutory ror complained of and sought to be redressed order denying appellant's plea of privilege, on this appeal, although same may not be as and not from the order awarding the judg- artistically or as fully presented as same ment by default with writ of inquiry.

might have been. [1, 2] At the threshold we are met with ap Appellant's motion for a new trial is bota pellee's objection to the court considering any tomed on its claim of right to have the judgof the propositions presented by appellant, on ment by default set aside that its plea of the ground that the record in this cause does / privilege may be heard and determined on not contain any assignments of error as a its merits, which right was denied by said basis for said propositions. Appellant filed judgment being entered, and which cannot be its motion for new trial, which contained spe- secured as long as said judgment continues cific assignments of error claimed to have in force, Appellant, in support of this posibeen committed in the proceedings had in the tion, claims (a) that in its motion the existcourt below as grounds for the granting of ence of a meritorious defense to appellee's the prayer of its motion. Appellant's motion | cause of action is alleged; (b) that said mo

tion, and the evidence introduced in support, Huntsville (Tex. Civ. App.) 151 S. W. 1116; thereof, show a sufficient excuse for the delay Winniford v. Lawther (Tex, Civ. App.) 232 in filing the plea of privilege to entitle same S. W. 853; Lawther Grain Co. v. Winniford to be considered as having been duly filed | (Tex. Com, App.) 249 S. W. 198. within the time required by law in order to [7] The allegations in appellant's motion, be heard and duly determined on its merits. as to the existence of a meritorious defense

[4] Under the law it was not incumbent on are as follows: appellant to file its answer to the merits of appellee's cause of action on filing its plea of

"Because the defendant has a good defense privilege, although it would have been the to plaintiff's claims and is entitled to have its

plea of privilege considered and duly passed better practice to have filed both pleas at the upon, and upon a trial hereof to hear the evisame time, observing the due and proper or- dence of defendant in defense of the cause of der of pleading in reference thereto. The action upon its merits; that if the release in orderly and timely filing of a plea of privi- question was forwarded to R. G. Cate as cashlege stays further proceedings for a certain ier of defendant as alleged, then that the same length of time within which the plaintiff in related to the personal and private business of the cause has the right to file a controvert- the said R. G. Cate and H. C. Cate, and about ing affidavit, and, if no controverting affidavit said time the said Cates were indebted to plain

which this defendant had no interest; that at is filed, the only order that the trial court tiff in the principal sum of two notes, as mencan enter is one sustaining the plea and tioned in said letter, that is one for $6,000 and transferring the cause to the court of the one for $2,000, and that whatever the said R. county in which the venue rests under the G. Cate did, he was acting in his own private allegations of the plea (article 1903, Vernon's interest and antagonistic to the rights and inAnn. Civ. St. Supp. 1918), and the defendant terests of defendant and could not bind the

defendant; and that whatever the said R. G. presenting such plea of privilege has the Cate may have done with reference to said reright to withhold the filing of his answer to lease or in the matter, he later paid off and the merits until the completion of the trans- settled in full the said two notes and all infer, as ordered, by the filing of a transcript debtedness due to plaintiff, by selling and transof all the orders made in said cause, togeth- ferring by bill of sale to the plaintiff 35 head er with the original papers filed therein, with of Hereford cattle, all of which is shown by bill the clerk of the court to which the transfer of sale duly accepted by plaintiff and recorded is ordered (article 1833, Vernon's Sayles' of Bosque county, Tex.; that said amount claim

on March 18, 1922, on the bill of sale records Ann. Civ. St. 1914), but must have same oned herein and all indebtedness due and owing file in the court to which the cause is trans- by said H. C. Cate and R. G. Cate was thereby ferred before the plaintiff has the right to settled in full and said cattle were received, obtain judgment by default, or, if cause be accepted and disposed of by plaintiff in full satnot transferred, to file such answer imme- isfaction of said debt diately on the plea being overruled. Therefore, the failure of appellant to file, or at

Appellee's suit is based upon a claim for tempt to file, an answer to the merits before damages in which it is claimed that it sent the judgment by default with writ of inquiry to appellant's cashier, by mail, a certain rewas awarded, cannot have the effect to deny lease of vendor's lien to be taken out of the to appellant the right to have same set aside bank upon payment of $1,200 to appellee. in order that its plea of privilege may be Appellant's motion shows that all indebtedproperly heard and determined, provided a

ness between R. G. Cate and H. C. Cate and sufficient excuse for failure to file the plea of appellee was settled afterwards by selling privilege in time is shown, and in its motion to appellee a certain herd of Hereford cattle. to set aside said default judgment a merito If the debt, to secure the payment of which rious defense to the cause of action is alleged. the lien existed on the land, was settled in If so, appellant's motion should be granted, full after the lien thereon had been released to the end that its plea of privilege may be by the wrongful delivery of the release by presented and determined that the cause may appellant, as alleged by appellee, then apbe tried to the merits in the forum having ju-, pellee has no cause of action, as the pay. risdiction of the parties and the cause. 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 tuting the defense. Gillaspie V. City of Tex. 581, 10 S. W. 690; Scottish Union &

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