
    PIERCE v. WILLSON et al.
    (No. 475-3924.)
    (Commission of Appeals of Texas, Section B.
    June 28, 1924.)
    I.Mandamus <&wkey;57(l) — When conflict of decisions of Courts of Civil Appeals authorizes mandamus to require certification of questions.
    A conflict of decisions of Courts of Civil Appeals, authorizing mandamus to issue under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1623, to compel certification of questions determined, must be on very question decided, and not in reasoning by which conclusion is reached.
    2. Courts &wkey;>247 (7) — Decisions of Courts of Civil Appeals held not in conflict so as to authorize mandamus to compel certification of questions.
    Determination of Court of Civil Appeals, concerning waiver of landlord’s lien, held not in conflict with decisions of other Courts of Civil Appeals, so as to authorize mandamus to issue under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1623, to require certification of questions decided.
    3. Mandamus &wkey;>!72 — On mandamus to require certification of questions determined as conflicting with other decisions, correctness of decision not involved.
    On petition for mandamus under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1623, to compel Court of Civil Appeals to certify questions on ground decision in conflict with decisions of other Courts of Civil Appeals, correctness of decision is not involved.
    Appeal for mandamus by Mrs. J. IC Pierce against Samuel P. Willson and others, as Justices of the Court of Civil Appeals at Tex-arkana, and another, to require certification of questions determined in 245 S. W. 745,
    Writ denied.
    Henry E. Pharr, of Commerce, and Clark & Sweeton, of Greenville, for appellant.
   POWELL, P. J.

In the Court of Civil Appeals Mrs. J. IC Pierce was the appellee and O. C. Sewell the appellant. The nature of this cause has been correctly, stated by the ■Court of Civil Appeals in the following language:

“Appellee owned 150 acres of land in Hopkins county, which she rented to one E. E. Sewell for the year 1920. In February, March, and June of that year she loaned money to said Sewell to enable him, she claimed, to make a crop on the land, taking his promissory notes therefor and a mortgage on the' crop and on other personal property to secure the payment of the notes. In February, 1921, she commenced a suit against said Se-well in the district court' of Hopkins county to recover a sum she claimed to be due her as rent and $864.83 she claimed to be due and unpaid on the notes, and to foreclose the mortgage lien and a landlord’s lien which, she asserted, existed on the property, including the seven bales of cotton in controversy here, valued at $350. At the time she instituted the suit appellee sued out a writ of sequestration which was levied on the seven bales of cotton. Appellant claimed to be owner of the cotton, and filed a claimant’s affidavit and bond to try the right of property therein as provided by the statute. Rev. St. arts. 7769 to 7795. The claim affidavit and bond were returned to the county court, and the case made thereby was tried by that court on issues made up as directed! by the statute. Article -7780. After hearing the testimony, the court instructed the jury to return a verdict for appellee, and, the jury having complied with the instruction, rendered judgment in her favor against appellant and the sureties on his claim bond for $364, the value of the cotton and interest thereon, and for $35, being 10 per cent., of such value, as damages she was entitled to by force of the statute. Article 7747.”

It will be observed that the cause under consideration is between the relator and a son of the original -tenant who rented 30 acres of this land through his father.

Three opinions were written by the Court of Civil Appeals in this case, each by Chief •Justice Willson. The first opinion concluded as follows:

“The mortgage E. E. Sewell made to ap-pellee is not in the ree'ord sent to this court, hut it appears that it covered only the cotton grown by E. E. Sewell on the land. Therefore it may be said it appeared as a matter of law that appellee had no claim on the cotton in controversy 'by virtue of the mortgage. It follows that the court erred when he instructed the jury to find for the appellee and rendered judgment in "her favor for the value of the cotton, for the fact, if it was a fact, that appel-lee had a landlord’s lien on the cotton, did not warrant the judgment; as mere lienor without right to possession, the only relief appellee was entitled to as against appellant was a foreclosure of the lien and a-sale of the property in a proper proceeding for that purpose.
“The judgment will be reversed, and judgment in appellant’s favor will be rendered.here, but without prejudice^ to any right appellee may have against him, predicable on the relationship of landlord and tenant.”

Counsel for Mrs. Pierce then filed a motion for rehearing, which was granted, and the judgment of the trial court thereupon affirmed. This second opinion can be found in 244 S. W. 1034. In this latter opinion the court withdrew its first opinion from the files. Hence it was not published. In this second opinion the court said:

“We are still of the opinion, after further consideration of the record in connection with appellee’s motion for a rehearing now pending before us, that the cotton in controversy, for the reason stated, was not subject to the mortgage, but think we erred in concluding that ap-pellee could not in such a proceeding assert a landlord’s lien on the cotton if she had one as against appellant.”

Upon the rendition of this second opinion, counsel for O. C. Sewell filed a motion for rehearing, which was granted, and the judgment of the trial court reversed and rendered in favor of the said Sewell. See 245 S. W. 745. Thereupon counsel for Mrs. Pierce again filed a motion for rehearing, and in the alternative a request that certain questions he certified to the Supreme .Court. Both of these motions were overruled in due course. Whereupon, upon proper petition, the Supreme Oourt permitted petition for mandamus to be filed by Mrs. Pierce against the justices of the .Court of Civil Appeals at Texarkana and O. C. Sewell. Therefore this is an original petition for mandamus to require aforesaid Court of Civil Appeals to certify to the Supreme Court certain questions determined by the former, upon the allegation that the holdings of the Court of Civil Appeals in the instant case are in conflict in the respects hereafter mentioned with those of other Courts of Civil Appeals. Article 1623, Vernon’s Sayles’ Revised Civil Statutes of Texas 1914.

When does the “conflict” of decisions authorize the writ of mandamus to issue under aforesaid article of our statutes? We refer to a few decisions of our Supreme Court upon this point.

In the case of McCurdy v. Conner, 95 Tex. 246, 66 S. W. 664, Chief Justice Gaines says it must appear that “practically the same issue of fact” was presented upon the trial of each of the cases; further, that “substantially the same-proposition of law” must be involved in the two eases.

Our Supreme Court, in the later case of McKay v. Conner, 101 Tex. 313, 107 S. W. 45, speaks as follows:

“It is evident from the foregoing statement that in neither of the cases cited to show a conflict was the point involved which was decided in the case in which it is sought to compel the Court of Civil Appeals to certify the question. When one court decides a question' one way, and another court makes a contrary ruling upon the same question, there is a conflict. Hence, unless the question be the same, there can be no conflict. But counsel have labored in argument strenuously to show that the principles announced in the cases cited necessarily lead to a conclusion adverse to that arrived at by the Court of Civil Appeals in the present case. But we do not think that such, is the fact. Besides we are of opinion that the conflict must be upon the very question decided and not in the reasoning by which the conclusion is reached.”

In the very recent case of Garitty v. Rainey, 112 Tex. 369, 247 S. W. 825, Chief Justice Cureton says:

“The conflict in decisions of Court's of Civil Appeals which will authorize this court to issue a writ of mandamus and require certification must be upon a question of law involved and determined, and such that one decision Would overrule the other if both were rendered by the same court. The conflict must be well defined. An apparent inconsistency in tine principles announced, or in the application of recognized principles, is not sufiicient. The rulings must be so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other. In other words, the rulings alleged to be in conflict must be upon the same question, and unless this is so there can be no conflict. Coultress v. City of San Antonio, 108 Tex. 150, 179 S. W. 515; McKay v. Conner, 101 Tex. 313, 107 S. W. 45.”

In its last decision in the instant case the Court of Civil Appeals says it had assumed, -because the parties seemed to treat it as true in presenting the case, that the evidence showed that article 5475, the statute conferring the landlord’s lien, had "been complied with, and also that the cotton in controversy was grown by O. C. Sewell on the 30 acres of land turned over to him by his father. The court then says, upon an examination of the testimony, it finds that neither of above assumptions was warranted; in the first place, that Mrs. Pierce had only testified that she furnished E: E. Sewell this money to enable him to make the crop, but did not go further and testify that such advances were “necessary for that purpose” as provided by the statute; in the second place, that it did not appear from the record that the cotton in ■ controversy was grown on the 30 acres of land above described.

Summing up the nature of its last decision, the Court of Civil Appeals goes on to say:

“We have, then, a case in which appellant wholly failed to show that he either owned or was entitled to the possession of the property in controversy, and in which appellee failed to show that she had a lien on it to secure the advances she made to appellant. In that condition of the record the judgment should be affirmed if the burden of proof was on appellant, and it should be reversed if it was on appellee.”

The .Court of Civil Appeals proceeds to hold that the burden of proof in both respects was upon Mrs. Pierce, and enter the judgment of reversal aforesaid.

We shall now take up the respects in which it is alleged above decision conflicted with decisions of other Courts of Civil Appeals, and see if there is really any conflict which meets the test laid down by our Supreme Court to govern the issuance of a writ of mandamus of the kind here prayed for.

In the first place, relator contends that the decision is in conflict with the opinions of the Courts of Civil Appeals in the cases of Edwards v. Anderson, 36 Tex. Civ. App. 611, 82 S. W. 659; Trout v. McQueen, 62 S. W. 928; Marrs v. Lumpkins, 22 Tex. Civ. App. 448, 54 S. W. 775; Horton v. Lee (Tex. Civ. App.) 180 S. W. 1169.

As shown by the quotations in the petition for mandamus, the holding in ábove cases is simply that a landlord, unless he waived it, has a landlord’s lien, created by statute, on all the products grown upon the rented premises, whether raised by the original tenant, subtenant, or assignee,-.and regardless of whether the landlord did or did not consent to such subletting. This rule was laid down by our Supreme Court in case of Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481.

In its second opinion in the instant case the Court of Civil Appeals expressly recognized this rule, following it in this language:

“The most appellant could with any reason contend for was that therg was testimony tending to show that he cultivated the 30 acres of land as the assignee or subtenant of E. E. Sewell with appellee’s knowledge and consent. It seems to be the law that if he was either such an assignee or subtenant appellee had a lien on the crop grown by him on the land, unless she waived it, and there was no testimony whatever that she did waive it. Forrest v. Durnell, 86 Tex. 647, 26 S. W. 481; Edwards v. Anderson, 36 Tex. Civ. App. 611, 82 S. W. 659; Trout v. McQueen (Tex. Civ. App.) 62 S. W. 928; Horton v. Lee (Tex. Civ. App.) 180 S. W. 1169.”

It will be observed that respondents are not only not in conflict with the decisions cited, but thoroughly in line therewith.

In the last opinion in the instant case the court did not recede in any way from this ruling, but based its final decision upon the question already set out by us. In this ruling, they are not in conflict with the decisions heretofore listed. The latter decisions do not even remotely discuss, directly or indirectly, the questions which formed the basis of the final decision- rendered by the respondent court.

In the second place, relator contends that the Court of Civil Appeals in its last opinion held that, even though the testimony showed, without dispute, that appellee furnished to her tenant the sum of money sued for to enable him to make a crop on said rented premises, and although no issue was raised in the court below as to whether said advancements were necessary for said purpose, nevertheless, it was incumbent upon appellee to show that said advancements by her to her tenant were necessary for the purposes of planting, gathering, and marketing the crop on said premises, in order for her to establish a landlord’s lien on the crops raised on said premises. In doing so, relator insists that the decision is in conflict with other Courts of Civil Appeals in the cases of Green v. Scales, 219 S. W. 274; Bank v. Mill & Elevator Co., 207 S. W. 400; Hazelrigg v. Naranjo, 184 S. W. 316; Sullivan v. Fant, 160 S. W. 612; Pullman Co. v. Cox, 56 Tex. Civ. App. 327, 120 S. W. 1058.

In only one of these last-mentioned cases does it appear that the relation of landlord and tenant existed, and that is the case of Green v. Scales. In that case the landlord assumed the burden of proof. Opposing party contended that the evidence failed to show that the tenant was indebted to the landlord for supplies furnished for that year in any amount. The landlord was the only witness upon that point, and merely exhibited on the stand an itemized list of supplies furnished. The court held that a prima facie case was made out. It did not place the burden of proof in this connection upon the tenant. Nor did the court state that it was necessary for the landlord to show only that the advances were made by him to enable the tenant to make a crop. It did not say that it was not incumbent upon him to show further, as provided by the landlord statute. that such advances were “necessary” for that purpose. This last question was not presented to or discussed by the court. The decision is not in conflict with the opinion rendered by respondents. They do not overrule each other in any sense, as we see it. The opinion in the case of Green v. Scales does not expressly or by implication, directly or indirectly, rule upon this question. It was not urged before that court, so far as the opinion shows. Therefore it was not “involved and determined” there. Garitty v. Rainey, supra.

The other eases cited in this connection as being in conflict with the instant case are not landlord and tenant cases in any sense. Therefore the facts are not “practically” the same. That being true, it is not necessary to go into them to determine whether .or not they present a conflict authorizing the issuance of this writ. Eor, they could not do so.

In the third place, counsel for relator contend that the Court of Civil Appeals, in tne instant case, held that, although the record discloses that the cotton in controversy was on appellee’s farm, and that her tenant’s rights on said farm had expired more than two months prior to the time said cotton was levied on, yet said cotton was not in the possession of appelleei, and that the burden of proof was upon her. It is urged by relator that such a holding is in conflict with the opinions of Courts of Civil Appeals in the cases of Groesbeck v. Evans, 83 S. W. 430, and Briggs v. Briggs (Tex. Civ. App.) 227 S. W. 511.

Respondents, in their final opinion herein, refer to the case of Groesbeck v. Evans in the following language:

“Appellee argued that the effect of that testimony [its- location on the rented premises when writ was levied] was to establish as a matter of law that the cotton was in her possession when the writ was levied, and cited Groesbeck v. Evans, 40 Tex. Civ. App. 216, 83 S. W. 430, as authority supporting her contention. And unquestionably the statement in the opinion of the court when that case- was first before it, ‘that the crop [quoting] of a tenant who is indebted to his landlord for rents, supplies, or advances must be considered in the possession of the landlord so long as it remains upon the rented premises,’ does support the contention, on the theory that it appeared that appellee’s tenant was indebted to her for ‘rents, supplies, or advances.’ But the statement was dicta only, was qualified on motion for a rehearing (40 Tex. Civ. App. 216, 88 S. W. 889), and overruled on a subsequent appeal of the case (Evans v. Groesbeck, 42 Tex. Civ. App. 43, 93 S. W. 1005).”

As confirming Judge Willson’s statement about the status of the Groesbeck Case, We quote from the last opinion of Judge Pleasants (93 S. W. 1005) therein as follows:

“This is the second appeal of the cause -and upon, the former appeal we held that either of the grounds above stated was sufficient to entitle appellee to maintain the suit, and that a general demurrer to his pleadings should not have been sustained. Groesbeck v. Evans, 83 S. W. 430, 11 Tex. Ct. Rep. 445. We also held in the opinion on that appeal -that the crop of a tenant who was indebted to his landlord for rents, supplies, or advances should, so long as it remained upon the rented premises, be considered to be in the possession of the landlord as against a creditor of the tenant who sought to subject it to his debt, and that if such creditor should levy upon the crop and remove it from the rented premises the landlord could, as a lienholder in possession of the property, maintain an action for the trial of the right of property under the statute authorizing such proceedings. The language used in the original opinion on that appeal was too broad and unqualified to accurately express our meaning, but in a supplemental opinion subsequently filed in the case (88 S. W. 889, 13 Tex. Ct. Rep. 659) we qualified the expressions of the original opinion and declared our holding to be as above stated. The decision of the question of the right of a landlord to maintain an action for the trial of the right of property by virtue of his lien and the provision of the statute which prohibits the tenant removing the crop from the rented premises without the consent of the landlord was not necessary for the disposition of that appeal, nor is it necessary in the determination of the case now before us. We have, however, been impressed with the force of appellant’s argument upon the question, and have reached the conclusion that the reason upon which our former decision upon this point was based is not sound, and that the conclusion then reached cannot be reconciled with former decisions of our higher courts, which, while not directly deciding this question, have announced a different rule in cases involving the same principle. In our former discussion of the question we gave too much importance to the provision of the statute prohibiting the removal of the crop from the rente'd premises without the consent of the landlord. That provision cannot be properly construed as affecting the question of the landlord’s possession or right of possession, and, while the seizure and removal of the crop upon execution against 'the tenant' is an invasion of the landlord’s right which .he could protect by proper proceedings, it does not invade his right of possession because he had none by virtue of his statutory lien, and therefore he could not resort to the statutory remedy of a trial of the right of property. To the extent above indicated our former opinion is overruled, but as before stated the question is not involved on this appeal.”

It is not necessary for us to determine whether or not a decision of the Court of Civil Appeals, occupying the rather unique and unusual status of this decision in Groesbeck v. Evans, is such a decision as would authorize the Supreme Court to issue a writ of mandamus on ground of conflict. Looking solely to the original Opinion of the Court of Civil Appeals in the Groesbeck Case, it will be seen that such decision is not in conflict with the instant case. Counsel for relator rely upon this language in the original opinion in the Groesbeck Case:

“We know of no case in which the question has been expressly, decided, but we are of opinion that the crop of a tenant who is indebted to his landlord for rents, supplies, or advances must be considered in the possession of the landlord so long as it remains upon the rented premises.”

This language was merely dicta, and, as applied to the facts in that case, did not hold that the landlord was entitled to the possession of the crop of a tenant, as against the tenant, as long as it remained on the rented premises, and in that way possibly affect the burden of proof in a suit between landlord and tenant as to where the crops were grown. The opinion merely held that, as between the landlord and a creditor of the tenant under a writ of execution, the landlord had such possessory rights in the crop as to prevent its removal from the premises by such creditor. This is the way we construe the original opinion in the Groesbeck Case. There was no issue involved as between the landlord and tenant or subtenant,. nor was there any issue involved as to the burden of proof or sufficiency of the evidence as to where the crops were grown. Judge Pleasants construed this original opinion just as we do. In 40 Tex. Civ. App. 216, 88 S. W. 889, referring to the language now under discussion, he said:

“This language is too broad, and, if taken literally, is an erroneous statement of the law. All that we intended to hold, as is shown by the opinion when read as a whole and applied to the facts of the case, was that the landlord had such possessory rights in the crop as would entitle him !to prevent its removal from the premises by a creditor of the tenant under a writ of execution, and to maintain an action for the trial of the’ right of property in order to have the property, if so removed, returned to the premises. The landlord has no right of possession as against the tenant, and a levy upon the tenant’s interest where the crop is not removed from the premises would be valid.”

Therefore, since the original opinion in this Groesbeck Case involved a different state of facts, and did not determine any question before the court in the instant case, it presents no such conflict as would warrant the issuance of a mandamus. As shown in our opinion in a quotation from McKay v. Conner, supra, the conflict must be upon the very question decided, and not in any reasoning by which the conclusion is reached.

The other opinion referred to as being in conflict on this point was written by respondents themselves, just as the instant case was. Our statute does not authorize a mandamus against a Court of Civil Appeals because it writes an opinion in conflict with a prior decision of its own. But, in fairness to respondents, it should be said here that the decisions in these two cases are not in conflict.

In the fourth place, relator contends:

“Respondents herein, the Court of Civil Appeals aforesaid, in the last opinion, reversed and rendered the case on an issue that was not developed in the trial court, and their decision on said question is in conflict with the decision of the Court of Civil Appeals of the Fifth District in the case of Dunlap v. Squires, 186 S. W. 843, and is in conflict with the decision of the Court of Civil Appeals of Texas in the case of Allen v. Anderson & Anderson, 96 S. W. 54.”

Counsel' for relator also quote as follows from the opinion in Dunlap v. Squires (Tex. Civ. App.) 186 S. W. 843:

“It is further contended, in effect, that we were in error in holding that it appeared that the case had been fully developed and in rendering judgment, for that reason, in favor of the appellants. A further careful review of the record upon appellee’s motion for a rehearing has led us to the conclusion that this contention should be sustained. This court has heretofore held that, where it does not conclusively appear that the case was fully developed in the trial court, the appellate court, instead of rendering judgment, must remand the cause for another trial. Allen v. Anderson & Anderson, 96 S. W. 54. A re-examination of the statement of facts a,nd record convinces us that it does not so appear in this case. The judgment of this court rendering judgment in favor of appellants will therefore be set aside, and the judgment of the county court will be reversed, and the cause remanded.”

It is true that respondents, upon reversing this case, rendered same rather than remand it. But, they do not discuss the proposition involved in above quotation from Dunlap v. Squires. The court does not say that it finds that the case was not fully developed, and that from an examination of the entire record it appears that justice would probably be better subserved by a remand of the case.' If the court had made these findings, and then rendered final judgment, its decision would have been in direct conflict not only with the eases cited by relator but numerous others. But the court has pot so held, arid has not conflicted as alleged by relator with other decisions to the contrary. We have no statement of facts before us, and cannot say that this case was not fully developed on the former trial, and that justice would probably be better subserved by a remand of this case. Therefore we are in no position to say that the decision rendered by respondents, even by implication, conflicts with the aforesaid opinions as alleged.

This petition for mandamus was filed before the act of 1923 (Acts 38th Leg. c. 48) was passed by our Legislature, amending article 1623 of our statutes so as to authorize a mandamus when an opinion of the Court of Civil Appeals conflicts with a former opinion of our Supreme Court. But, if it should be held that this act of the Legislature could be held to affect this proceeding, it would not affect the result. In connection with the propositions we have discussed, only two Supreme Court decisions were cited by relator. We mentioned one of them, and showed it did not conflict with the decision in the instant case. The other was upon an entirely dissimilar state of facts, and could not possibly conflict with this case so as to authorize the issuance of a writ of mandamus. This other case from the Supreme Court cited by counsel is that of Bailey v. Hicks, 16 Tex. 222.

It should not be necessary for us to say that we do not pass upon the correctness of this decision by the iCourt of Civil Appeals. That issue is not involved in an action of this kind. Garitty v. Rainey, 112 Tex. 375, 247 S. W. 825. We merely hold that this petition for mandamus shows no such conflict as warrants the granting of this extraordinary writ against a Court of Civil Appeals.

After carefully considering this petition, we think the mandamus prayed for should be denied, and we so recommend.

CURETON, C. J.

The opinion of the Commission of Appeals is adopted, and writ of mandamus is refused.' 
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