Western Co. v. Sheppard

citation, that presumed alleged rea- and it will be for him answer filed an pro- found, conformity counsel, with his had trial court he, in appellant’s that son controversy motion, no such order that overruling said posed settlement of a sought promises judgment The counsel were made. appellee’s said suit to volved in him to be expressly set aside recited waiting to hear been that had he service of citation was proposed settlement defendant to the with reference face, every regular upon way in its rendition of notified when he was therefore not void. Appellant’s counsel judgment. said default had been that it alleged in said motion record no statement contains any- he knew all cases that customary in adduced court either facts in the trial at practice that general thing about hearing judgment said default agree to to community counsel opposing hearing was of the mo rendered or on the that, counsel could of cases setting a must, tion set said judgment to We aside. case was setting agree not on a therefore, construe court’s action the trial case set the customary court for the trial to appellant’s overruling to set aside motion said motion date. for trial on a suitable judgment said finding as an affirmative appellee’s alleged appellant defense as a that, upon facts, the court hearing suit, he filing of that, prior to the suit alleged among he found that said custom involved in land acquired title had attorneys County Harris not take he had purchase and that said contract judgments by exist; that default did not no Mrs. with $300 credited Jones promises representations fraudulent had said over appellee had taken him by appellee’s been made counsel and that contract. appellant did not a meritorious have de court, appellee’s fense 1944, cause of 26, trial action. February On evidence, and hearing pleadings, “after It follows that the action of the trial appellant’s counsel”, denied argument overruling court in appellant’s motion to set without judgment, aside motion to set said judgment be, things, ,aside must af- Appellant has findings of fact. specific firmed. action appeal from this prosecuted this Affirmed. the trial court. this state that It is well settled judgment de complaining of party trial fault, for new in motion either Review, must not Bill of equitable an appearing prevented from was that he show cause of ac to said urging a defense entered, judgment time tion at WESTERN CO. et v. SHEPPARD al. et al. fraud, mistake un accident or by some 9440. No. part, but negligence on his he with mixed just defense show he has must also Appeals Court of Civil of Texas. Austin. v. Brown St. cause action. May 31, 1944. Tex.Civ.App., etc., Mary’s Temple, cited; 531, there and authorities S.W.2d Rehearing Granted Part and in Part al., Tex.Civ.App., et Arenstein Jencks 831. 179 S.W.2d 14, Overruled June 1944. Appellant’s January filed on motion is, think, inadequate as of Review. While counsel equitable Bill motion contends in his appellant file an answer said cause his failure the fact he had been lulled was due security by the failure sense of into a counsel to communicate with him appellee’s suit, ato settlement of said reference he allege any fraudulent acts or does by appellee’s counsel which promises would ap answer for his failure file an justify duly he been served pellant after had

SKI, poration, plaintiffs, Comptroller, sued the Attorney Treasurer, and the State occupation General of recover Texas to pro- taxes them under theretofore test, provisions and under the collected 1941, 184, p. 269, Leg., Acts Art. Art. 47th Ch. XVI, Vernon’s Texas Civil Stats. They sought 7060a. clared unconstitutional to have de- said viola- because VIII, 1, tion Art. Sec. of the Constitu- Texas, Ann.St., tion of and on Vernon’s ground the further that vague, Act was said and valid because too uncertain; indefinite valid, but then court that the setting declaratory judgment enter a forth computing formula and cal- culating the taxes due under said Act. was close jury, Trial the evidence, dismissed, jury was judgment denying court ap- entered a pellants recovery by them, taxes Act, sustaining ting culating validity and set- guidance forth a formula for cal- tax; appeal. hence The this cross-assign defendants below error as to declaratory portion of the trial court’s judgment. Appellants present points may which following condensed main con- into the tentions : occupation 1. That the tax levied is an tax. controversy As to there no it need not be further considered. occupation Act, 2. That the taxed itself, both in the language of the Act manner ap- which conducted pellants, is a pursuit” “mechanical within of the meaning VIII, 1, of Art. Sec. Texas, against Constitution of tax prohibited the Constitution. being 3. That inhibited by the Consti- against tution engaged individuals in such pursuit, mechanical against hold it valid corporate appellants would also vio- n Dallas, Marshall, and L. D. Herbert provisions VIII, 2, late the of Art. Sec. appellants. Hawkins, Breckenridge, for requiring the Constitution of Texas occupation Sellers, Atty. Gen., Dug- Thos. B. Grover equal taxes be and uniform Moorhead, Attys. Dean Asst. gan and R. subjects. class Gen., appellees. 4. That the Act is unconstitutional be- Hart, Austin, curise. amicus H. vague, J. cause indefinite too and uncertain adequately in that it does not define the BAUGH, duty per- terms service furnished and Justice. formed, adequately fix nor show Company, Appellants, Western taxed, thing to be nor the manner of ascer- composed Robert L. Wood partnership, tainment of such tax. Chiles, Blair, Jr., H. E. W. individu- H. Company, Process 5. That the statute void ally, the Chemical because it Independent- no distinction corporation, and makes between Texas intrastate commerce, Company, interstate Torpedo cor- nor it Ohio does Eastern

§53 pursuit; types in a mechanical these two portion tax as between Jack State, 557, son v. 55 Tex.Cr.R. 117 S.W. of commerce. 818, wherein the same court held that a 6. That whether not barber engaged. latter so case pur- were mechanical (cid:127)or of wells quoted the Texas court followed should have were fact issues suits holding Supreme Court Louisi jury. been submitted to Hirn, ana State 46 La.Ann. declaratory judgment does 7. That the applying So. provision a similar of sufficient authorize the deduction constitution that State. expense by appellants incurred items of question as what constitutes furnished computing the tax on pursuit frequently a mechanical has been duty performed. Supreme before the Court of Louisiana. provides: “Every 1(b) Sec. of the Act Other than the Texas cases above cited person engaged in State in the busi- this Georgia, one from all and decisions direct any furnishing perform- or ness of ly question appear on the been have ing any duty for a considera- for others rendered Words & 926; the Louisiana courts. See compensation, any tion devices, tools, with the use of or Phrases, Perm.Ed., 26, p. Vol. equipment, or instruments 281, Tung, 183 State La. 163 So. mechanical, otherwise, electrical, or or 101, 1030, 100 and A.L.R. annotations there chemical, any electrical, means or mech- of under. The mere fact tools, that mechanical per- process anical when such service is mechanic, or the service of a are util cementing formed in of connection employed performance or ized in the any gas seat casing of oil or well or ultimate service or carrying involved in shooting or formations of of question business or vocation in is not surveying testing wells or the or of itself of determinative clas the in on or other sands formations the earth sification thereof. The and business serv wells, any gas report such oil or shall here comparatively ices involved are of re pay the 20th of month each and origin cent development; and and obvious Comptroller, Austin, Texas, in his office ly not known to the framers of the Consti equal an occupation tax to two and two- This, tution in however, 1876. does not (2.2) per gross tenths cent of the amount prevent application terms used as received said service furnished then intended tions if such new new changed condi duty performed, during the calendar month changed condi preceding.” next tions come purpose, within the meaning and 1(a) provides Sec. thé intent the framers of the Constitution. “person” term individuals, shall include Marshall, Travelers Ins. Co. v. 124 Tex. partnerships, firms, associations, joint stock 45, 1007, 76 S.W.2d 96 A.L.R. 802. companies corporations. Cohn, 53, In State v. 184 La. 165 So. appellants All 449, 451, engaged Supreme wherein the Court of occupation business of shooting or acid- Louisiana held “beauty specialist” that a izing only oil wells. With minor not engaged varia- in pursuit, was the court a mechanical tions all them substantially use reaffirmed a former test laid down methods, equipment, materials following language: it in the ply principles the same operation. Ac- term employed ‘mechanical’is “The to in- idizing of such distinctly wells ais dif- business, dicate that calling, or occu- process ferent from that the pation in must view one which cannot be 'formations explosives. thereof with utilized unless resort is had use of So far as we ascertain, machinery, have been able to force, some appliance or instrument of constitutions power, two ex manual-work, states aid of pressly levy inhibit the occupation physical tax in undertaking, some in which the those in mechanical pursuits, superior intervention interaction of a n —-Texasand Louisiana. provision required; This oc mind is words, other curs adopted in all expression constitutions means that the occupation Texas must and has unchanged object remained one which the since the be realized is adoption. Only 1876 dependent appear two cases to not its confection on the ex- provision have arisen under Texas, this controlling intellect, ertion of a but rather State, —Mullinix v. adaptation Tex.Cr.R. helping 60 on the of some mechan- S.W. wherein the ism, Court auxiliary of Criminal or use of some tool or in- ** * Appeals held photographer that a strument. was not gas pro- injected penetrated in the acid art is mechanical “A useful or recommenda- ducing make zone. We then con- body are more hands which the cerned than ” * * * setting advisibility tions as to the brain. packer gas oil between the zone cases numerous review of After another treat- giving zone and the well fol the rule restated then the court If this treatment ment into zone. the oil forego by the as stated test “The lows: of oil increasing the flow results extent factory, whether is authorities ing definitions gas-oil is then satis- that the ratio predomi quality intellectual or not -If, good. on the oth- well performing skill manual nates over hand, remains gas-oil ratio still er men If the calling. particular duties tal squeeze cement high, we then recommend a pursuit controlling, then the aspect is procedure A is job gas zone. like If skill profession. aas classified is high water-oil ratio ex- indicated where a tools, hands, manipulation of ists. mental emphasized over machinery acidizing is the latest de- “Selective aas calling classified side, then the velopment treating. acid the art pursuit.” mechanical completed pro- pro- Many where the wells are rea- sound and believe We coming from two or more duction ducing be that should one test sonable necessary separ- to horizons. It is case. instant plied the in pay by zones the use of ate these various a mechanical an acid treatment the other zones. May packer given Comptroller, dated and each zone to the a letter apart president separate of Whitney, vice 1943, R. G. Company, Process Chemical appellant, the wells, acidizing oil process of the described studying each well to determine the “In follows: company, as by his in adaptability of to determine the acid and make, analysis of depths com- treatment to to the drilling a well “In necessary today, grade the of oil encountered operators by oil the monly drilled of heavier many reason that some different strata the the penetrates bit the drill or many oil, particularly, grades dif- with a composed those of earth layers of content, very prac- sulphur a thick high cause It is the formations. geological ferent samples when mixed the emulsion the oil is with to obtain driller well the oil tice of pene- of treatment. is ad- course It formations acid these different each visable, therefore, acidizing treating pro- well in a bit. Before by drill the trated type an emul- samples ducing make crude to use oil secure these well we the a detailed termine stratum and, breaking compound conjunction de- in with analysis of them to sion laboratory particular acid treatment.” the not each or whether bearing formation an oil layer is Chiles, Jr., partners one of H. E. the not it is whether or so, determine to if Company, Western testified that he was the and, if treatment an acid susceptible to petroleum engineer; graduate that his a firm maintained a staff of about perme- porosity the so, determine to em- It content. saturation oil ability and drivers, ployees, including truck mechan- analysis that a determina- by means of this ics, treaters, draftsman, geologist, a acid re- quantity the as to made tion is employees. He testified their office that well obtain the particular that quired in business was sale of the chief acid production. in increase possible largest well, who determined the owner of determines the method analysis also This used, be what strata or forma- amount to particular treating the use should one acidized, that, part as a tion should be slow fast treatment well, whether sale, shipment rail to the near- made, whether there trucks, treatment should point, shipping transfer there to est treating well into water danger of is and, placing appellant, and then plug so, back well to whether necessary complete wells, was the sale. place a blanket toor water avoid he stated that On cross-examination keep so as to the acid the hole bottom alcohols, ammonia mixture of bifluoride and section. water away from with the muriatic acid chemicals was. other necessary; specially treated, and that constructed study has been we well “After connections, equip- trucks, pumps, and other first treatment. obtained results the Frequently, He also were used. admitted ment find that this treatment owner, his requested well com- when jesulted high gas-oil is called what drilled, well, formations pany tests of made indicating that too much ratio §55 itself quantities and the shot which is hold shot as recommendations used, laterally down and what strata its force confine mixtures of acid necessary- will vertically. stead of I believe that cov- and used should be treated roughly procedure.” er equipment to confine means, entire materials and proper strata. acidization to equipment In enumerating used in uni- were not mixtures used processes and shooting process, the witness named wells, affected were form equipm'ent reels, and described such as formation, oil-gas character of chains, centrifugal pump, cogwheels, trans- ratio, ratio, and other under- oil-water take-off, gauge, torpedo mission pressure published price ground In its factors. line, meters, hook, pulley, measuring der- list, “Ex- Company advertized Western line, galvonometer, rick testing bomb out- technically trained crews. perienced and fit, squib, jack squib, casing squib, line elec- Equipment. Mechanical Latest Finest squib, bumper squib, tric box a “whole full leading acid- under all operate Licensed tools,” sand, peagravel, of hand the use En- Specialized Service. patents. izing cal-seal, chap catches, safety cog latches, Acidizing. Treatments Tailor- gineered etc. intro- The exhibits for each well.” made While the witnesses testified that testimony evidence, relat- and the duced practically every the decision instance thereto, ing show also shot, to when a well should be what for- specially constructed well there is used mation, explosives quantity takeoff; compressors, power trucks owner; be used was well made designed specially engines, pressure gauges, appellants merely followed his valves, unions, con- types hose various instructions; the hazardous nature of the tools, nections, etc. pulleys, process, necessary safety precautions, H. Blair appellants W. Only the special equipment, the uses of the and the Company Torpedo are Independent-Eastern required, beyond materials demonstrate shooting of wells engaged business doubt, process requires we think that such Smith, shooter for explosives. T. B. with special training, knowledge, scientific ex- Torpedo Company, pro- described the the cess as follows: skill, pert precaution and extreme for the the time when we “At lives, safety equipment property of and location, usually on a li- up drive a first on service, performing obviously such we test shells nitroglycerine shot quid the controlling called for the “exertion of a leak. we is no Then sure there make to tellect” in the of a mechanical use means well see that it depth of the to measure the involved, wherein the “intellectual —one says it He depth is. knows owner the the is predominates quality the manual skill over be and we will supposed it to deep is how performing particular the the duties of right depth. the that is whether see or calling,” and is true both as to the flag put a on the will measuring we After acidizing shooting and the of oil wells. a line, cage weight a as to by using torpedo In an brief it amicus curiae is and on occasion we torpedo down drag the pro urged expressly since statute that the place the shell in of dummy run a will occupation that the vides taxed is that will the actual shell make sure weight to performed any devices, “with the use of are over we preliminaries After go. the tools, equipment,” instruments or etc. in liquid either the will load the shells and of itself it limited the is to of use nitroglycerine and lower them or solidified devices, is, tools, etc., therefore, such run, theOn the hole. bottom of the pur its terms limited to a mechanical time bomb is asked pamp or shot it is is, devices, suit. That that use of the will run the time bomb required, we or tools, etc., prescribed upon is a limitation they of number hours stated set imposed, confining the tax it use of goes the shot off work before wish pursuing of the desig the stated methods pamp- of work or amount on depending occupation. nated With this we do not top the shot. If is it they on want ing agree. The any statute levies the tax on go ahead and make will open we shot an individual, person, whether partnership, or it, drop light and or it is squib and jack corporate “engaged the business of fur more, any it used to occasion rare any nishing performing service any or squib pumper a line run would * * * duty in connection with the ce- topOn the shot. squib to detonate any menting casing seat of oil hung keep oi- umbrella there is bomb acidizing shooting or the gas well going into the gravel from shells sand * * of such wells The pamping top formations to confine vague Act so and indefinite by the use of methods stated as invalid. contention appear rather to render it This occupation was conducted defining mak- is not sustained. The words service and purpose of to be duty occupation usage gen- taxed are words of common particular ing specific the erally well upon manner understood. fact their a limitation rather than as application particular pursued. This set occupation is of facts in which the particular may use, occupation in- a be somewhat after clearly indicated carry- language difficult does not render the specific methods dicating certain business, indefinite or uncertain. Either “or oth- of the words ing on such the tax apply intended to the gross was erwise.” process receipts of the entire predicated contention The next wells, acidizing including the-costs ma- engaged individuals assumption that on the terials; or it intended to be limited carrying mech are in such business gross receipts to performed from serviced exempted pursuit are therefore anical actual or shoot- tax; such the Constitution well, ing of exclusive the cost of the corporation engaged in tax a that to same business contravene explosives processes. acid or used It such discriminatory, would be presumed Legislature, must be provi constitutional the State act,, passed when it was familiar with equal and “shall sion that such taxes the manner in which business was such con- subjects” class uniform The record discloses ducted. acidizing are that in the ; con VIII, 2) well as (Art. as Secs. process large quantities of acid protection equal clause travene the used, amounts and mixtures de- Constitution, are 14. Amend. We Federal pendent upon the character and thickness however, convinced, that the oc fully so strata; bearing of the oil and that the taxed, light evi cupation so pellants so were more- interested by all of is carried on how it dence placing sale the acid than it in pursuit, anot mechanical appellants, is the well. There thus involved in the necessary dis not deem it that we do appellants factors,— business one a sale of the such two would, to whether question as cuss the acid; and the other a Supreme Court holdings of under the of Louisiana placing same in the well Federal District and of the manner, by equip- of their own use Dyers v. Cleaners & Court in White skill, etc., ment, accomplish toas the de- 1017, 1018, F.Supp. be valid Hughes, 7 major portion sired result. The corporations even appellant against the gross receipts for undertaking overall the pur against an individual though invalid used; was for the materials furnished and If, con occupation. as we suing such ,well charge “servicing” the and the appellants clude, the none of only with materials such constituted a. pursuit, con mechanical as purely in a portion aggregate of' the minor total language by of the Con templated stitution, the charge, gross though the two items were not of this issue be consideration segregated in such specifically overall or unnecessary. comes charge. Legislature, cognizant, If gross the matters, levy of these had intended to the Shortly after the Act became ef on the cost the tax both materials used Attorney General rendered an fective the performing such service and on the- Comptroller which by the opinion, performed acidizing well, the service that the tax due on the effect guided, to Since, easily provided. have how- could ever, so performed duty furnished or service the should emphasizes language used the the by gross measured amount be in connection with term service the shoot- cost of the used. materials less the received acidizing process, separable ing an item there were continuous differ Thereafter delivery of from the sale and materials and appellants Comptrol between ences used, could have been made a dis- should be deducted as what items ler toas service; without such tinct transaction lays and Upon of the materials. the costs part express language the tax on the Attorney trial, General withdrew the his duty performed,” furnished or “service view that de and took the no opinion would, receipts think, gross taxed we be allowed, but that be should ductions services, for such not in- received those subject receipts were gross entire of the materials cluding the value urge that facts and used Appellants these tax. interpretation originally was the Such show that the in themselves circumstances Attorney General law, placed on interpret Comptroller could seg- trial the well head. In the regation of such Comptroller, absence and specific serv- was, think, one. and the fixation of a court, we charge, expressly tax- ice since the statute a sale both involves a transaction Where service, only regardless of the dom- es laws, ques- service, tax under sales and tions inant value of the materials element of transac- how such have arisen as to used, practical most reasonable These matters classified. be tion should charge arriving method of would at the service with the in connection considered were fair between the difference be the Ref. Co. Humble Oil & tax in chain store acid and reasonable market value of the livered de- State, Tex.Civ.App., S.W.2d gross at the well the total head State, Light Co. v. Power & in Central charge; value cannot be or if such market Tex.Civ.App., wherein 165 S.W.2d established, so then actual intrinsic its instance, sale, in the one held that the determining value such at the well head. with connection accessories in automobile the market or actual value of the elements automobiles; and, in the servicing considered, entering into same should be equipment other, electrical sale only not in the trial those undertaken be enumerated furnishing of electrical with the connection formula, any others court’s service, main though only incidental to the fairly reasonably entering into vendors, brought business of the value, actual, whether market or terms, meaning stallations within the shooting materials used ing process or acidiz- establishment, as used mercantile store or in the well head. delivered at the Law, Vernon’s Store Tax Chain These include such items elements should lllld, licensing purposes. Ann. P.C. art. materials, original as cost cost of trans- insurance, demurrage, evapora- portation, tion, classification of In such cases the equipment, pro wear and tear on or a should transaction as a sale the ordinarily overhead, profit rata reasonable cost of by the dominant determined sale, any on the other reasonable prop If value of involved. factors necessary entering into element of cost the well own materials furnished to erty or at the value of such materials delivered by him is the dominant er and acidizing ready well head be used gross charge; and paramount factor in the process. connection with service rendered in explosives While a well delivery after well head is on at the skill, greater greater degree of thereto, involves hazards, transaction ly incident then the safeguards precaution more generally regarded a sale. On should against dangers involved than does hand, involved after other if the service whole, process; considered as a materials the well head is reach appears for a different clas- reason important factor in the no valid dominant most from that process ma sification of that the value -of the the transaction and application acidizing; nor for the only plied to incident thereto and terials used is determining gross gross a different rule part minor constitutes charge, receipts service involved. As for the the transaction is dominant then separate acidizing, a of ly be so classed. The the and should case a service easily fixed either a process charge could be on acidizing record in the shows that gross charge or percentage en basis of the prime appellants the so the concern of explosives acid; of used. quantity gaged and that on the basis of is in sale of the the value of the does not show The record gross charge, for both the sale and in the explosives consist- explosives Such used. placing in the service rendered same the well liquid and solidi- nitroglycerine, both generally ed of charge was es the service chiefly fied, dynamite, latter used well, approximately per timated at though $70 nitroglycerine. Appel- detonating the segregated gross ov for from not employees did court Blair had no charge the trial lant erall for both. While Apparent- shooting process himself. entire prescribe judgment in its a undertook to chiefly confined to was ly business his arriving of the for at the value formula average testified that his He small shots. service, impracticable lay to down it seems $200, from per well was to charge apply $150 which would formula in detail a fixed in quantities what state of he did not though appears good No reason all instances. Smith, B. shooter used. T. explosives why engaged in such business he so those Torpedo Com- Independent-Eastern for segregate each not should could not average well varied pany, testified that the charge for such service instance a fixed 1,500 quarts liquid of nitro- 300 to price from their from the sales of materials 858 only to the quarts of could well have been limited 400 500 and from to glycerine State, performed the lan required the services in this nitroglycerine, solidified guage persons in this dynamite. applying it to pounds all of 20 100 from to of use The well, rendering services State such shoot required to average time interpreted intending 4 reasonably can as from premises, was be on the after arrival apply only performed to in this bomb services to hours, use of time unless the to 7 placed interpretation owner, which State. Such was the the well was directed inter Comptroller. it As so charge of $77 an additional case preted places any it in burden on for no wise charge made The made. was $150 that some (conceding commerce “according to the size interstate was process entire appellants, determined business of the named The well owner of the shot.” may clearly commerce) The such explosives be used. involve quantity of the price think, would, be Torpedo Com- a valid enactment. we It published list say Leg a strained that the for construction to charge of pany $60 minimum shows per islature undertook to tax a service liquid nitroglycerine, quarts $250 5 of state, beyond quarts its formed another quarts, and all in excess matter power charge open do. Even if two an extra quart, with per $1.75 constructions, requiring validity gives which it trips to wells that per day on $40 down, which it well. rather than one strikes day’s drive to the than one more applied. City Land great portion of should be Waco Obviously, shots a small 631, ingham, From 138 Tex. 157 S.W.2d service. charge for the was however, list, may be rea- authorities therein cited. price published approximately $1.50 sonably assumed appellants fail Not did the explosive fair value per quart is a any objection discharge make shot of 800 average sized On an used. jury, request the submission of $1,- be charge would published quarts, the any jury, issue of fact to the the issue be value $1,200 would wells, acidizing whether computed at explosives used $1.50 circumstances, con under all the facts and gross portion of per quart, a dominant pursuit” stituted “mechanical as conclude, therefore, charge. We Constitution, clearly term-is used in the arriving at the value method of question court law shooting a well applied service should .in' jury one of fact for determination. acidizing. inas disposes What have said above Act is that the contention The appellees’ cross-assignment urging that un- distinguish between failure void for gross der said Act deductions from re- no is not commerce intrastate interstate and ceipts computing authorized Company had Western

’sustained. portion tax. That trial de- court’s operations on its the tax paying been claratory judgment, setting forth a for- Mexico, on which constituted New tax, computing mula for so modified busi its total percentage of ly a small from the overall to authorize deductions transported from acid was ness. Some charge both gross materials and serv- New Texas Seagraves across ices, fair market value of materials acidized in that and wells line Mexico wells; or if such used delivered at opera the New Mexico Taxes on State. reasonably market value cannot tained, ascer- however, tion, were not demanded gross then deduction from such paid voluntarily by were Comptroller, fair actual or value charge intrinsic interpretation own under its company said of such materials used Independent- witness for the A modified, the law. wells. shooting of such As thus Company testified that Torpedo judgment trial Eastern of the court is affirmed. happens” that wells acid- it “sometimes are Modified and affirmed. state with company one acid by his ized Rehearing. for Appellants’ On Motions state. No instances another bought from however. given were Appellants in their 'motions for urge, among things, other rehearing conclusion the serv our Under subject be reversed and well should remanded at the case performed ice affirmed, materials, for the reason that the the value tax, the instead computing the amount of the tax on such interstate move formula of such effect court, due, by laid down this differs materials used would tax ment of Comptroller in com- by that used incidental. While purely most sem involved; collecting the puting and taxes fully developed was not case amount the trial show the correct legally such taxes them under due adopted this court. formula sued, among they Having are correct. paid by things, other them the taxes to recover protest, they be entitled under would any portion to recover thereof so they legally them in of what were excess required pay. there- motions Said judg- granted fore that extent. The affirming judgment ment of this court trial court therefore aside set the cause is reversed and remanded amount, trial any, court to determine what paid by taxes heretofore pellants they may protest show them- under other re- selves entitled recover. In all spects said motions are overruled. part overruled. part

Granted LUMBER CO. et v. KIRBY

SOUTHERN al. LUMBER CORPORATION.

No. 4233. Appeals Beaumont.

Court of Civil of Texas. 22, 1944.

June Rehearing July 13, Denied 1944. Lufkin, A. Denman, M. K. W. Huffman, Beaumont, appellants. Wilcox, Fountain, Cox, Gaines &

Houston, appellee. COE, Chief Justice. try title trespass suit This Corporation, appel- Kirby Lumber

which court, lee, sued South- plaintiff the trial al., appellants, Company et Lumber ern court, claiming title trial defendants George Clark specific 160 acres ato survey, metes described league one-third petition upon amended in their bounds containing trial, .the they went title, trespass try allegation usual plead the statute of limitations specifically years, 25 with the alterna- of tive possession title and plea for the George tract said 3.13-acre defined survey year statute of under the Clark limitations, to be a such tract alleging

Case Details

Case Name: Western Co. v. Sheppard

Court Name: Court of Appeals of Texas

Date Published: May 31, 1944

Citation: 181 S.W.2d 850

Docket Number: No. 9440.

Court Abbreviation: Tex. App.