author: PER CURIAM.

text:
    Jackie WARREN et al., Petitioners, v. Mrs. Mary Ann WALTER et vir, Respondents.
    No. B-97.
    Supreme Court of Texas.
    April 12, 1967.
    Phenix & Wilder, James N. Phenix, Henderson, for petitioners.
    Jack N. Price, Longview, for respondents.
   PER CURIAM.

The opinion of the court of civil appeals, 409 S.W.2d 887, states the nature of the case and applicable law as follows:

This is an appeal from the judgment of the trial court granting a bill of review, setting aside and holding for naught a default judgment previously rendered. The judgment appealed from recites that the court granted a new trial on the merits, but the judgment affirmatively shows that there has never been a final determination of the case on the merits. This judgment is interlocutory and not appealable. In their petition for bill of review, plaintiffs not only alleged reasons relied upon for re-opening the judgment by default, but pleaded the case so that the court could have determined the issues presented in the original action and this should have been done. Two trials, one to vacate the judgment by default and another on the merits of the original action, are not permitted, but every issue raised on both phases of the case must be disposed of on one trial, and the judgment rendered will be an effective substitute for the judgment vacated.”

Because of the interlocutory character of the trial court’s judgment, the court of civil appeals dismissed the appeal.

We agree with the holding of the court of civil appeals that the judgment of the trial court is interlocutory and not ap-pealable, and accordingly approve the judgment dismissing the appeal. However, we are not satisfied that the opinion of the court of civil appeals has correctly declared the law in its statement that “Two trials, one to vacate the judgment by default and another on the merits of the original action, are not permitted, but .every issue raised on both phases of the case must be disposed of on one trial * * *.” Cases cited by the court of civil appeals in support of the quoted holding were decided before adoption of the Texas Rules of Civil Procedure, including Rule 174(b) which confers broad discretion on trial courts to order a separate trial “of any separate issue.” The holding is not an essential predicate for the judgment of dismissal, and our refusal of writ of error “no reversible error” is not to be regarded as either an approval or disapproval of the holding. Rule 483, Texas Rules of Civil Procedure.


source: Caselaw Access Project

author: GRIFFIN, Justice. POPE, Justice

license: Public Domain

text:
    Alberto CASTILLEJA, Petitioner, v. Severa CAMERO, Respondent.
    No. A-11518.
    Supreme Court of Texas.
    April 19, 1967.
    Rehearing Denied May 24, 1967.
    See also Tex., 414 S.W.2d 431.

      F. B. Godinez, Jr., Alamia & Perkin, Willis G. Perkin, Pharr, Kelley, Looney, McLean & Littleton, Jackson Littleton, Ed-inburg, for petitioner.
    Henrichson & Bates, E. G. Henrichson, Edinburg, for respondent.
   GRIFFIN, Justice.

This suit was filed in the 93rd District Court of Hidalgo County, Texas, by Severa Camero against Jose and Famelisa Castille-ja, husband and wife, and Alberto Castille-ja, their son. Severa Camero sought to recover $17,000.00 which represents one half of the proceeds from a lottery ticket that won in the Mexican National Lottery of September IS, 1964. The case was tried before a jury but before its submission to the jury a non-suit was taken as to Jose and Famelisa Castilleja. Special issues were then submitted to the jury and answered in favor of plaintiff, Severa. Based on answers to the special issues and on the evidence presented, the trial court rendered judgment that plaintiff, Severa, recover the $17,000.00 from defendant, Alberto Castille-ja. Defendant was also permanently enjoined from assigning, removing, dissipating, secreting, or hiding that portion of the proceeds found to belong to plaintiff. This judgment was affirmed on appeal, 402 S.W. 2d 265. Alberto Castilleja is petitioner here. We affirm.

Severa and the Castilleja family are neighbors and reside in Edinburg, Texas. On or about September 11, 1964, Severa and Famelisa agreed to jointly purchase a lottery ticket in the Mexican National Lottery of September 15, 1964. Famelisa was to go the Reynosa, Mexico, the following day to purchase the joint ticket as well as tickets for several others. The tickets in the lottery were of different prices, and Sev-era and Famelisa agreed to buy a $4.00 ticket for which Severa contributed $2.00. Famelisa went to Reynosa where she purchased seven tickets in the lottery, two of which were numbers 33870 and 33512. When she returned she told Severa that the ticket which they jointly owned was number 33870, and she gave Severa a written memorandum to that effect. On September 15, 1964, the lottery drawing was held in Mexico, and ticket 33870 was declared a winner of $40,000.00. When Severa asked for her share of the proceeds Famelisa denied joint ownership in the winning ticket. She said that ticket 33870 was the ticket she bought for her son, Alberto,- and that ticket 33512 was the one jointly owned. Famelisa gave the winning ticket to her son, Alberto, who went to Mexico; collected the money, $34,000.00 after taxes by the Mexican government; and deposited it in his personal account in the Banco Longoria in Reynosa, Mexico.

The above facts were disputed by petitioner, who contended that Severa contributed only $1.00 toward the purchase of a $4.00 lottery ticket. He also contended that although Famelisa had originally told Severa they jointly owned ticket 33870, this was a mistake which was corrected before the drawing. According to petitioner, he considered 33870 his “lucky number” and that ticket had been bought for him. Famelisa, it was said, realized her mistake and told Severa before the drawing that 33870 was her son’s ticket and 33512 was the jointly owned ticket. However, the jury found that Severa contributed $2.-00 toward a $4.00 lottery ticket, and that the ticket purchased for joint ownership was 33870.

The cause of action asserted by Severa is for conversion of the $17,000.00 fund in question. In the trial court she proved that she was owner of the fund and that it is being withheld from her. This is not contested. The basis of this appeal is that in order for Severa to prove her title and right to the fund, she had to rely on and prove an illegal transaction. Petitioner argues that because of this Severa’s cause of action cannot be enforced.

The Court of Civil Appeals agreed that the contract between Severa and Famelisa, and by which respondent acquired title, was based on an illegal transaction and unenforceable in Texas courts. However, the court held that the cause of action against Alberto was not dependent upon the contract since he was a stranger to the transaction between Severa and Famelisa. The court further held that as a stranger to the transaction Alberto could not raise the defense of illegality.

The agreement between Severa and Famelisa to jointly purchase a ticket in the National Lottery of Mexico and to divide the proceeds, if any, was not an illegal contract. It neither violated nor aided in the violation of any gaming statute of Texas. The only other jurisdiction involved was Mexico. In Mexico the purpose of the contract had the express approval of the Mexican government in that the Mexican government has a revenue interest in the lottery. Thus the agreement was to do a lawful thing — participate in the National Lottery of Mexico, in a lawful manner — by going to Mexico. This meant that the partnership, in the form of one or more members, had to go to Mexico, buy the tickets in Mexico, and collect the proceeds, if any, in Mexico. It is at this point, collection from the lottery, that Severa’s right and title to the money arose, and at this point Texas had not been involved in any manner other than as the place where the agreement was made.

Thus the transaction upon which title is based is one which related solely to Mexico and which required performance in Mexico. A contract which is made in one jurisdiction but which relates to and is to be performed in another jurisdiction is governed by the law of the place of performance, Seiders v. Merchant’s Life Ass’n, 93 Tex. 194, 54 S.W. 753 (1900); Fidelity Mut. Life Ass’n v. Harris, 94 Tex. 25, 57 S.W. 635 (1900); Byers v. Brannen, 30 S.W. 492 (Tex.Civ.App., 1894, writ ref.). There is both testimony and demonstrative evidence in the record which establish that the lottery which was the subject of this contract was sponsored by the Republic of Mexico for the purpose of raising public welfare revenue and is therefore legal in that country.

Petitioner relies principally on the case of Crutchfield v. Rambo, 38 Tex.Civ.App. 579, 86 S.W. 950 (1905, writ ref.), for his position that this contract is part of, an illegal transaction, contrary to the public policy of Texas, and unenforceable in Texas courts. In that case the parties bought several tickets in the Honduras National Lottery and then agreed that if either won, the winner would divide the proceeds with the other. A ticket held by one of the parties did win, but he refused to divide according to the agreement. The court refused to enforce the claim because the contract was based on an illegal transaction. This case is easily distinguishable from the case at bar. In Crutchfield the entire transaction, i. e. the sale and purchase of the lottery tickets, the collection of the prize, and the agreement to divide the proceeds, took place in Texas. Since no other jurisdiction was involved, it had to be governed by Texas law. In that case an agent of the Honduras lottery was in Fort Worth, Texas, selling tickets. This was a specific violation of Article 394 of the Texas Revised Penal Code (1895), which was based on Article 3, § 47 of the Vernon’s Ann.St. Texas Constitution (1876). Although the buying of the tickets constituted no penal violation, the selling of them did. Thus the parties to the contract were engaged in and aiding in the violation of Texas law. This tainted any agreement they made pursuant to the purchase. A claim based upon or collateral to an illegal transaction is unenforceable. Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 13 Am.St.Rep. 787, 789 (1888); DeLeon v. Manuel Trevino & Bro., 49 Tex. 88, 30 Am.St.Rep. 101 (1878); Russell v. Kidd, 37 Tex.Civ.App. 411, 84 S.W. 273 (1904, writ dism’d). As stated above, the agreement in the present case did not relate to or involve Texas law. There was no illegal transaction involved.

The question presented to this Court is whether the Texas courts will recognize this foreign right, a valid claim arising in another jurisdiction, upon which title is based and which gives rise to this cause of action for conversion. It has been demonstrated that Texas law is not involved; thus it becomes necessary to decide whether Texas policies or Texas interests are sufficiently involved to deny recognition of the right by Texas courts. We hold that they are not. The test for refusing to enforce a right lawfully arising in another jurisdiction has been stated in this manner: “To justify a court in refusing to enforce a right of action which accrued under the laws of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other reason the enforcement of it would be prejudicial to the general interests of our own citizens.” State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232, 67 A.L.R. 2d 758 (1958) quoting Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11, 16 N.W. 413, 414 (1883).

The question of Texas public policy in regard to enforcement of claims arising in other jurisdictions and which relate, directly or indirectly, to gambling transactions has been the subject of several cases. Bond v. Hume, 243 U.S. 15, 37 S.Ct. 366, 61 L.Ed. 565 (1917); and Jacob v. Hyman, 286 F. 346 (C.C.A. 5 1923), dealt with the enforcement of claims arising from dealings in cotton futures. The courts held that a federal court sitting in Texas could enforce such a claim, governed by the law of another jurisdiction, without offending Texas public policy even though Texas had statutes prohibiting such “wagering” transactions. Garza v. Richmond, 249 S.W. 889 (Tex.Civ.App., 1923, n. w. h.); and Springer v. Sahara Casinos Company, 322 S.W. 2d 33 (Tex.Civ.App., 1959, w. o. j.), are cases in which a party sought to enforce a check given by a Texas resident for gambling purposes in another jurisdiction. The checks were denied enforcement, but these cases are distinguishable from the present case. From the facts stated in Garza and Springer, it appears that these checks were on Texas banks and therefore payable in Texas. Checks are governed by the same conflicts rules as are contracts, 10 C.J.S. Bills and Notes § 47. Therefore these checks were contracts to be performed in, Texas and governed by Texas law, 10 C. J.S. § 49.

There are numerous cases which hold that rights arising from gaming transactions occurring in Texas will not be enforced because to do so would be contrary to public policy, but that policy is not here involved. The laws of Texas and the policies upon which they are based are concerned with the events taking place within our borders. When the laws and policies of another sovereign are involved, a different standard is applied, State of California v. Copus, supra.

In applying the facts of the case at bar to the standard referred to above,' it cannot be said that recognition of the event which is indirectly involved here, and which gave rise to Severa’s title, is against “good morals or natural justice.” This is especially so when such a position would require protecting a person who has converted the property of another. Conversion is an act which is indeed contrary to natural justice. It cannot be said that recognition of the event giving rise to title is “prejudicial to the general interests of our own citizens.” Neither the interests of a third party, as if this right arose from a contract to swindle, nor the rights of the public generally, as if this right arose from a contract to violate the antitrust laws, are involved. However, it can be said that Texas has a strong public policy against conversion of property. The strength of that policy is demonstrated by the fact that exemplary damages may be recovered when the conversion is accompanied by the elements of fraud and oppression, Gordon v. Jones, 27 Tex. 620 (1864). This policy against conversion is the paramount interest involved here.

Having established that there is no taint in this transaction which prevents enforcement of the right arising therefrom, it follows that petitioner has unlawfully converted funds belonging to respondent. We hold that respondent has ownership of and a lawful right to $17,000.00 of the specific fund now on deposit in the Banco Longoria, Reynosa, Mexico, to the account of Alberto Castilleja, and that ownership right is enforceable in the courts of Texas. The judgments of the trial court and Court of Civil Appeals are affirmed.

CALVERT, C. J., and POPE, J., dissenting.

POPE, Justice

(dissenting).

I respectfully dissent. The majority has incorrectly identified the contract upon which plaintiff Severa Camero sued and must rely. The majority holds that the contract upon which plaintiff sued and recovered judgment was a Mexican contract where lotteries are legal. The contract between the lottery ticket owners and the Mexican National Lottery is one contract. The contract between the ticket holders themselves to share in and divide equally .any winnings from the lottery is a distinct and separate contract. Plaintiff asserted no action against the Mexican National Lottery. Her action is based upon her contract of partnership in ticket No. 33870 which she made with Famelisa in Texas.

The majority has, by reason of its first error in selecting the wrong contract upon which plaintiff relies, concluded that the contract was performable in Mexico rather than Texas. The contract sued upon was performable in Texas. Plaintiff Severa Camero and Famelisa made a contract of co-ownership of the ticket and to share equally in any lottery prize. That contract was made in Edinburg, Texas. Performance on that contract meant an equal division of the lottery prize. The contract was admittedly made in Texas. The presumption is that the parties contracted with reference to the law of the place where the contract was made, which was in Texas. Fidelity Mutual Life Ins. Co. v. Harris, 94 Tex. 25, 57 S.W. 635 (1900); Cantu v. Bennett, 39 Tex. 303, 304 (1873); 17 C.J.S. Contracts §§ 20, 257 (1963). The governing rule is summarized in Stumberg, Principles of Conflict of Laws (3rd ed. 1963):

“ * * * In a bilateral contract, when each party is to perform his promise in a different place, the rule necessarily breaks down, and the courts have usually felt compelled to refer the question of validity to the place of making. And when no place of performance is named in the contract, it is often necessary, in seeking the place of performance to resort to artificial standards and to presume that the contract was performable where made or at some other place.”

The majority therefore builds upon a false premise when it holds that “the transaction upon which title is based is one which related solely to Mexico and which required performance in Mexico.”

The case of Crutchfield v. Rambo, 38 Tex.Civ.App. 579, 86 S.W. 950 (1905, writ ref.) refused enforcement of an agreement to share in winnings from the lottery in Honduras, where lotteries were also legal. The plaintiff, Crutchfield, sued Rambo for one-half of the prize won by a ticket. Each party purchased lottery tickets and agreed that if any of the tickets won, the other party would share equally in the prize. The court identified the contract upon which the plaintiff sued. The contract to share in the proceeds was made in Texas and though it concerned the Honduras lottery, the court held it was not a contract governed by Honduras law. The majority has here held that the contract is governed by the Mexican law. Crutchfield held and recognized that it was the Texas contract between the parties which was sued upon and that Texas law governed rather than the law of Honduras.

The majority distinguishes Crutchfield because the lottery tickets were sold in Texas which was a violation of the Texas penal law. There, as in this case, it was the purchaser who asserted rights. There, as here, a purchaser of a lottery ticket violated no section of the Penal Code. There, as here, the argument was made that a purchaser should be permitted to recover in his action upon the lottery ticket since he violated no law. This was the argument to which the court addressed itself and rejected, saying:

“The trial judge held that the contract between the parties to divide the proceeds arising from a drawing in a lottery was contrary to law and public policy, and should not be enforced. We think the conclusion was correct. Lotteries are condemned by the laws of this state, and punishment is provided for those who establish lotteries or who may be engaged in the sale of lottery tickets, and it follows that any contract dependent upon lottery tickets is manifestly contrary to public policy. The contract in this case was based upon the chance of drawing a prize through one or more of the tickets they had purchased, and it would not matter, if, as contended, the parties had formed a partnership and had bought the tickets; the law would not lend itself to compel an accounting between partners engaged in a scheme to make -money that is condemned by the laws of the state. There can be no force in the argument that buying lottery tickets is not prohibited by the laws of Texas, and consequently a contract based on the purchase of such tickets would not be obnoxious to public policy. The law, in condemning the sale of lottery tickets, put the stamp of disapproval upon the whole transaction, and the buyer, although no penalty is attached to his act, is engaged in violating one of the statutes of the state. Suppose that a ticket bought by some person should draw a sum of money, but it should be withheld from the purchaser of the ticket, no court would aid the collection of the money from the lottery, for the reason that the buyer and seller would be in pari delicto, and could not enforce their contracts in the courts of the state.”

The determinative test for the right to recover on a gaming contract is stated in Crutchfield as it was in Oliphant v. Markham, 79 Tex. 543, 15 S.W. 569, 23 Am.St. Rep. 363 (1891). That test looks to the plaintiff’s cause of action to determine whether the plaintiff “requires any aid from the illegal transaction to establish the case.” Beer v. Landman, 88 Tex. 450, 31 S.W. 805 (1895). See, Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947); Oliphant v. Markham, supra; Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526 (1888) ; Read v. Smith, 60 Tex. 379 (1883); Hall v. Edwards, 222 S.W. 167 (Tex.Comm.App. 1920, judg. approved) ; Norman v. B U Christi & Co., 363 S.W.2d 175 (Tex.Civ.App.1952, writ ref.' n. r. e.); Crutchfield v. Rambo, supra; Russell v. Kidd, 84 S.W. 273 (Tex.Civ.App. 1904, writ dism’d); 26 Tex.Jur.2d Gaming and Prize Contests § 65 (1961). The rule is succinctly stated in Hall v. Edwards, supra:

“The authorities are agreed that a court will not lend its aid, in any manner, toward carrying out the terms of an illegal contract, and, when a plaintiff cannot establish his cause of action without relying upon such contract, he cannot recover.”

Plaintiff, Severa Camero, must rely upon her illegal contract with Famelisa to share in the winnings of the lottery. The issue between her and Alberto was the ownership of lottery ticket 33870. This was her theory of recovery and the issues which were submitted to the jury. The issues necessarily form the basis for her judgment and demonstrate this to be her theory:

“Special Issue No. 1. Do you find from a preponderance of the evidence that Famelisa Castilleja purchased ticket No. 33870 for the benefit of the plaintiff, Sev-era Camero and the defendant, Famelisa Castilleja?
“Special Issue No. 2. What do you find from a preponderance of the evidence was the amount paid by plaintiff, Severa Cam-ero to the defendant, Famelisa Castilleja on or about September 11, 1964?”

The majority, after its error in holding that plaintiff relies upon a Mexican contract which is performable in Mexico, makes further error in rejecting Texas’ public policy and holding that it will enforce the lottery contract which is not prohibited by the policy. For support of this proposition, the majority cites State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 232 (1958). The court in Copus was treating a policy situation about which all Texas law was previously silent. There were no constitutional provisions, statutes, or cases which- guided the court in declaring the policy of Texas. The court was called upon to write upon a clean slate. Certainly, as held by the court, Texas has no strong policy reasons to forbid enforcement of a California judgment which required a son under a California statute to support his father during the time the son lived in California. In our case we -do not have a Mexican judgment. The policy of this state about gambling and lotteries, on the other hand, has been declared by Constitution, statutes and cases, is easily discernable, and has been consistent and unchanged for mor’e than a-oentury.

Texas policy about lotteries is declared by our Constitution, statutes and judicial decisions. Those are the proper repositories of a state’s public policy, District Grand Lodge No. 25 Grand United Order of Odd Fellows v. Jones, 138 Tex. 537, 160 S.W.2d 915 (1942), and not “the varying opinions of lawyers or judges as to the demands or interest of the public.” Southern Pac. Co. v. Dusablon, 48 Tex.Civ.App. 203, 106 S.W. 766 (1908, no writ).

Lotteries have been denounced as contrary to public policy in every Constitution of Texas since 1845. Article VII, § 17 of the 1845 Constitution expressly declared that:

“* * * No lottery .shall be authorized by this State; and the buying or selling of lottery-tickets within this State, is prohibited.”

This provision prohibiting lotteries appeared unchanged in the Constitutions of 1861, 1866, and 1869. But because this provision was so narrowly drawn, it was easily and freely evaded by the employment of the so-called gift enterprise. Consequently, when the framers of the present Constitution met in the 1875 constitutional convention, they sought to remedy this abuse of the lottery laws by adopting Article III, § 47 which provides that:

“The Legislature shall pass laws prohibiting the [1] establishment of lotteries and gift enterprises in this State, [2] as well as the sale of tickets in lotteries, gift enterprises or [3] other evasions involving the lottery principle, established or existing in other States.”

By adopting § 47, it is evident that the framers intentionally declared “not only lotteries, but ‘gift enterprises and other evasions involving the lottery principle’ as contrary to the public policy of the state, and made it the duty of the Legislature by penal laws to prohibit their operation.” City of Wink v. Griffith Amusement Co., 128 Tex. 40, 100 S.W.2d 695 (1936). In compliance with this mandate, the Legislature enacted ‘art. 654, Vernon’s Ann.P.C., which makes the establishment arid operation of a lottery, as well as the sale of lottery tickets, a criminal offense.

The majority holds that lotteries are legal in Mexico; therefore Texas courts will enforce a Mexico gaming contract. Garza v. Richmond, 249 S.W. 889 (Tex.Civ.App.1923, no writ) holds directly to the contrary. Richmond played roulette in Mexico and gave a check for $300.00 to Garza who ran the gaming house. The court refused to enforce the check though roulette was a legal enterprise in Mexico. California refuses to enforce gambling contracts made in Nevada where gambling is legal. Braverman v. Horn, 88 Cal.App.2d 379, 198 P.2d 948 (1948) ; Hamilton v. Abadjian, 30 Cal. 2d 49, 179 P.2d 804 (1947).

Texas courts, applying their own public policy, have denounced things done and authorized to be done beyond the borders of Texas in many instances though lawful outside of Texas. In Wilson v. Smith, 373 S.W.2d 514 (Tex.Civ.App.1963, writ ref. n. r. e.) the court struck down a provision of a Texas testamentary trust which authorized the establishment of a clinic-hospital which was in violation of the Medical Practice Act, the Chiropractic Act, and the Hospital Licensing Act of Texas. The fact that the proposed clinic-hospital was to be established in the State of California where it would be entirely lawful did not persuade the court to ignore the Texas public policy. Taylor v. Leonard, 275 S.W. 134 (Tex.Civ.App.1925, no writ) held that a contract for the sale of California land made by a Texas married woman while she temporarily resided in California would not be enforced because the enforcement of the California contract would contravene Texas public policy. Accord, Bramwell v. Conquest, 2 S.W.2d 995 (Tex.Civ.App.1928, no writ). A Minnesota contract that was legal in that state but illegal in Texas was not enforced in Texas because it contravened our public policy. Watkins Co. v. McMullan, 6 S.W.2d 823 (Tex.Civ.App.1928, no writ). Accord, Byrd v. Crazy Water Co., 140 S.W.2d 334 (Tex.Civ.App.1940, no writ).

It is unfortunate that the court has applied the law and policy of Mexico in .a-case in which Mexico is not the forum, none of the parties is or was citizens of Mexico, and the case does not concern a contract made in Mexico. The Mexican National Lottery and Mexico have no concern or interest in this dispute. It is unfortunate that Texas courts are required to apply the law of a foreign jurisdiction to a dispute between its own citizens. It is unfortunate that in doing so Texas holds that its own policy is inferior to that of a foreign jurisdiction. In my opinion Texas is the only jurisdiction which now has any interest in this dispute, and its own public policy should apply. See, Currie, The Conflict of Laws, p. 183-184 (1963).

I would reverse the judgments of the courts below.

CALVERT, C. J., joins in this dissent.


author: GRIFFIN, Justice.

text:
    Alberto CASTILLEJA, Petitioner, v. Severa CAMERO, Respondent.
    No. A-11519.
    Supreme Court of Texas.
    April 19, 1967.
    Rehearing Denied May 24, 1967.

      F. B. Godinez, Jr., Alamia & Perkin, Willis G. Perkin, Pharr, Kelley, Looney, McLean & Littleton, Jackson Littleton, Ed-inburg, for petitioner.
    Henrichson & Bates, E. G. Henrichson, Edinburg, for respondent.
   GRIFFIN, Justice.

This suit was filed in the 93rd District Court of Hidalgo County, Texas, for a writ of mandamus to compel payment of funds to the District Clerk of Hidalgo County, Texas. The trial court granted the writ and the Court of Civil Appeals affirmed, 402 S.W.2d 272.

The companion to this case, Castilleja v. Camero, Tex., 414 S.W.2d 424, and numbered A-11518 in this Court, was decided in favor of Severa Camero, respondent here. In that case the trial court found that petitioner had a specific sum of money in the Banco Longoria, Reynosa, Mexico, $17,000.00 of which belonged to respondent. In addition to the judgment awarding the respondent $17,000.00, the trial court issued a permanent injunction directing the petitioner not to assign, remove, dissipate, secrete or hide that sum except that the sum could be assigned to the District Clerk as a supersedeas bond. No such assignment was made, and no supersedeas bond was filed.

After the appellate process in A-11518 had been started, the respondent instituted this suit in which the following was alleged: 'execution 'faadrieen issued on the judgment in A-11518 and returned nulla boná, the petitioner was insolvent, the specific fluid in which respondent was awarded an interest was in Mexico and out of the jurisdiction of the court, and that petitioner threatened to leave the jurisdiction of the court. The prayer was for writ of mandamus requiring the petitioner to transfer $17,000.00 of the fund in the Mexican bank to the district clerk to be held until final judgment in A-11518. The writ of mandamus was granted.

Petitioner contends that granting the writ of mandamus was error in the following respects: It required him to make a super-sedeas bond which is supposed to be a voluntary act, it required him to make a super-sedeas bond in a separate and distinct cause, and the district court was without authority to grant such a writ when the judgment was for the recovery of a specific sum of money. Petitioner also asserts that it was error for the Court of Civil Appeals to affirm the district court upon the basis of petitioner being a “constructive trustee” of the fund. We disagree with petitioner’s contentions; consequently the writ in this case was granted only because the writ in A-11518 was granted.

The ownership of the fund which was the subject of litigation between these parties was in dispute, and the fund was in danger of being lost or depleted. The injunction which was a part of the judgment in A-11518 did not protect the fund because the fund was in Mexico and out of reach of either respondent or the court. Petitioner testified in the hearing on the writ of mandamus that he did not intend to satisfy the judgment in A-11518 if that case was finally decided against him. Under such circumstances a court can order payment of the disputed funds into its registry until its ownership is determined, Ex Parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961).

It is correct that making a super-sedeas bond is voluntary, Rule 364(a), 385 Texas Rules of Civil Procedure, and that this writ of mandamus had the effect of re-quiring a supersedeas bond. However, the fact that the performance of the act required by the writ of mandamus will have such an incidental effect is not grounds for denying the writ, Laidlaw Bros. v. Marrs, 114 Tex. 561, 273 S.W. 789 (1925). It is of no significance that this was done in a separate cause. The entry of orders, after appeal, which are not inconsistent with the original judgment may be made to conserve the property which is the subject of appeal, Ex Parte Lohmuller, 103 Tex. 474, 129 S.W. 834, 29 L.R.A.,N.S., 303 (1910). Nor is it significant that the property required to be deposited is money, Ex Parte Preston, supra. The judgment in A-11518 is not a money judgment; respondent was awarded ownership of a specific fund.

Petitioner relies on Renger v. Jeffery, 143 Tex. 73, 182 S.W.2d 701 (1944) to support his first two points of error. That case is so factually different that it can have no application to the present case. In Renger the original action was brought on certain notes and for foreclosure of the liens they represented. Judgment was rendered for the plaintiff, and this was affirmed by the Court of Civil Appeals. The Supreme Court affirmed the judgment of the Court of Civil Appeals, and this action became final on May 19, 1943. Then on October 19, 1943, the defendant in the original suit filed a second suit in which he sought to restrain the order of sale executing the first judgment. The trial court denied this action and the defendant in the original suit asked that a supersedeas bond be set. The bond was set and made, and the trial court ordered the first judgment superseded. Thus the order was to supersede a judgment that had become final. This Court held that such an order was unenforceable and void because the rules relating to supersedeas bonds contemplate suspension of a judgment before it becomes final, not a final judgment, Rules 364, 368 and 385, T.R.C.P. In the present case the writ of mandamus does not affect the judgment in A-11518, it merely conserves the property pending final judgment.

In affirming the judgment of the trial court, the Court of Civil Appeals below explained that the judgment in A-11518 was not a money judgment but was for specific property. The explanation included the statement that there was not a debtor-creditor relationship between petitioner and respondent, but rather petitioner was a constructive trustee of the fund. Petitioner now urges this as reversible error because “constructive trustee” was not pleaded. The Court of Civil Appeals’ analysis was correct, its characterization is immaterial.

The judgment of the trial court and Court of Civil Appeals are affirmed.


author: GREENHILL, Justice.

text:
    Calvin N. CLYDE, Jr., Administrator, Petitioner, v. Rayburn M. HAMILTON et al., Respondents.
    No. A-11713.
    Supreme Court of Texas.
    March 29, 1967.
    On Rehearing April 26, 1967.

      Fred V. Meredith, Terrell, for petitioner.
    Robert M. Kennedy and G. H. Kelsoe, Jr., Dallas, Harrington & Harrington, H. M. Harrington, Jr., Longview, for respondents.
   GREENHILL, Justice.

This case requires a decision as to the respective rights of a life tenant and the remaindermen in the proceeds from three oil and gas leases under the will of Mrs. Ava Elizabeth Cobb Cain. It also involves the construction of two agreements between the life tenant and the remainder-men in which they attempted to settle at least a part of their problems. The area upon which they did not reach agreement, as we view the record, is that dealing with royalties and bonuses on oil wells opened before and after the death of the testatrix, Mrs. Cain, and the vesting of the life estate in her husband, Mr. W. W. Cain. The will itself did not make provision for the distribution or impounding of the royalties and bonus, and hence we are called upon to allocate a part of them under the “open mine” doctrine.

Mr.. Cain, the life tenant, ...died in 1961, and this suit was brought in 1962 by Rayburn Hamilton, a remainderman, against Calvin Clyde, Jr., the administrator of the estate of W. W. Cain. Other remainder-men joined Hamilton in the suit, and there was a question between them as to their taking; Per stirpes or per capita under the will. That question was not brought here.

The trial court, sitting without a jury, entered a judgment for Mr. Clyde, the administrator, holding that W. W. Cain, the life tenant, was entitled to all the bonus and royalties from .the three wells or leases in question. The Court of Civil Appeals sitting at Waco reversed that judgment; and as applicable to the questions before us, rendered judgment awarding the remaindermen all of the bonus and royalties from those wells. 405 S.W.2d 850 (1966). That court incorrectly considered that all the wells or leases were “opened” after the death of Mrs. Cain and the vesting of Mr. Cain’s life estate. We are of the opinion that the result of the holding of the Court of Civil Appeals was correct to the extent that it held the remaindermen were entitled to the royalties and bonus on the two wells or leases opened after the death of the testatrix, but it was wrong in its holding as to the well or lease opened before the death of the testatrix. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand the cause to the district court for an accounting and the entry of a judgment.

The first contention of the administrator of Cain’s estate is that Cain was entitled to all the royalties and bonus on all three of the wells or leases in question because of agreements made between himself and the remaindermen after the death of the testatrix, Mrs. Cain.

The holographic will of Mrs. Cain appointed her husband independent executor without bond. The remaining portion is very brief. It states:

“I hereby give & bequeath to my husband for his lifetime all property of every kind wherever situated. Inherited property shall remain intact & revert back to my heirs as designated unless circumstances of need necessitate otherwise.”

The will did not define “inherited property” which should be kept intact and revert to her heirs. Mrs. Cain’s estate consisted of community and separate property. We are concerned only with three wells or leases on that portion of her separate property which was an undivided one-fourth interest in the estate of her deceased father, H. S. Cobb.

In December of 1945, after Mrs. Cain’s death but before her will had been probated, the remaindermen beneficiaries and Mr. Cain entered into a written agreement construing the will of Mrs. Cain and attempting to eliminate any ambiguity in its interpretation. The agreement stated that it was the mutual desire of Cain and the remaindermen to vest in Cain the full title to all of the community property of Cain and his wife and to all of her separate property “save and except” her interest in the H. S. Cobb estate. The beneficiaries thereupon conveyed to Cain all their undivided interest as remaindermen under Mrs. Cain’s will in (1) the community property of Mrs. Cain and W. W. Cain and (2) the separate property of Mrs. Cain “save and except only any interest we might have under her [Mrs. Cain’s] said will as re-maindermen after the life estate of W. W. Cain in her share in the estate of H. S. Cobb, dec’d.”

In April of 1948, after Mrs. Cain’s will had been probated, the same parties, referring to the above. agreement entered into an additional agreement. It provided that by the words “inherited property,” as used in the will, Mrs. Cain had intended to refer only to her undivided interest in the estate of her father, H. S. Cobb; that she intended that her husband, W. W. Cain, should have a life estate in such undivided interest; and that she intended to vest fee simple title in W. W. Cain in all of her community and separate property, except for the above-mentioned interest. Cain then made gifts of $21,000 and interests in real estate not here involved in consideration of his and his deceased wife’s love and affection for the remaindermen, and in consideration of “their [the heirs] harmonious and cooperative agreements and interpretation of said will * * The agreements of 1945 and 1948 are more fully set out in the opinion of the Court of Civil Appeals. 405 S.W.2d 852-853.

The two agreements were drawn by an attorney. As we read them, they construed the will as giving to Cain a fee simple title to all of his wife’s property, both separate and community, except for her interest in the Estate of H. S. Cobb. With regard to this undivided interest of Mrs. Cain in her father’s estate, the two instruments specifically reserved the rights of the remaindermen; they clearly interpreted the will as giving Cain a life estate in such interest, with the other beneficiaries receiving the remainder.

At the beginning of the first agreement, the remaindermen stated that it was their desire to vest fee simple title in Mr. Cain in all of his wife’s separate property and her one-half of all their community property, “save and except” Mrs. Cain’s interest in the estate of her father, H. S. Cobb, this interest to be held by Mr. Cain for his life and then to revert to the remainder-men. The remaindermen then conveyed to Mr. Cain all of their interest in all real property in Mrs. Cain’s estate, both community and sepárate. Next they proceeded to “transfer, sell, assign and deliver” to Mr. Cain all of their “undivided interests and claims, by remainder or otherwise,” under Mrs. Cain’s will, “in and to the personal property of the estate” of Mrs. Cain, “consisting of,” among other things, money on deposit in certain checking and savings accounts, war bonds, and royalties. [All emphasis herein is ours.] Continuing in the same sentence, the remaindermen stated that it was their intention to transfer and assign to Mr. Cain all of their interest, if any, in the personal property of Mrs. Cain’s estate, “save and except only any interest we might have under her said will as remaindermen after the life estate of W. W. Cain, in her share of the estate of H. S. Cobb, dec’d.”

We do not agree with the administrator that by using the term “royalties,”' as above indicated, in the first agreement the remaindermen waived, assigned, or conveyed their right to unaccrued royalties or bonuses on wells opened after the death of Mrs. Cain and the vesting of Mr. Cain’s life estate. First, royalties in the sense that they are here involved, i. e., unaccrued royalties and the right to them, are not personal property. They are a return of corpus, and a right to future royalty payments is an interest in land. Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021 (1934). Therefore, even if we can say that the remaindermen conveyed any royalties from the Cobb estate lands to Mr. Cain, the only royalties conveyed were those that had been paid prior to Mrs. Cain’s death and were personal property at the time of her death. Secondly, the saving clause (“save and except * * * ”) must be taken as modifying the first part of the sentence, in which the remaindermen conveyed to Mr. Cain all of their undivided interests and claims in the personal property in Mrs. Cain’s estate, and excepting therefrom any interest they had as remaindermen to the Cobb estate lands; therefore, the remain-dermen did not convey any rights they had to royalties and bonuses from wells opened after Mrs. Cain’s death and the vesting of Mr. Cain’s life estate.

The second agreement does not refer specifically to royalties. It affirms the first agreement, and in so doing states that in the first agreement the remainder-men granted and conveyed to Mr. Cain any and all interest or claim they might have as remaindermen (or otherwise) under Mrs. Cain’s will “save and except only the individed interest owned by decedent [Mrs. Cain] in the estate of H. S. Cobb, dec’d. * * * ” The second agreement clearly does not convey to Mr. Cain any right of the remaindermen to royalties or bonuses on mines opened after the death of Mrs. Cain and the vesting of Mr. Cain’s life estate.

We agree with Mr. Clyde, Cain’s administrator, that it was clearly the intention of the remaindermen beneficiaries “to give to Mr. Cain a life estate (in the common understanding of the term) whereby he would be entitled to everything in the nature of profits or income from the estate throughout his lifetime.”

The administrator has an additional point, though he does not argue it, that the remaindermen are estopped to claim any royalties or bonus because they joined in executing oil and gas leases. We cannot agree. These remaindermen beneficiaries already owned other undivided interests in the Cobb estate. They had an independent right as life tenants to join in the execution of such leases. In fact it was important that they did join, and they did not estop themselves by such action. The administrator had other arguments below on laches and limitations which were not brought here.

Open Mine Doctrine

The general rule of property law is that a life tenant may not dispose of the corpus of the estate. It is to be preserved for the remaindermen. At common law, the life tenant was impeachable for waste, and he could not ordinarily open a new mine without the joinder of the remaindermen. In this state, minerals are part of the land, and royalties and bonuses are part of the consideration for the sale of the land. The royalties and bonuses, therefore, are corpus which is to be preserved for the remaindermen. The life tenant, however, is entitled to the interest or income derived from the investment of the royalties and bonus. Mitchell v. Mitchell (first appeal), 151 Tex. 1, 244 S.W.2d 803 (1951); Davis v. Bond, 138 Tex. 206, 158 S.W.2d 297 (1942); Swayne v. Lone Acre Oil Co., 98 Tex. 597, 86 S.W. 740, 69 L.R.A. 986 (1905); Woodward, The Open Mine Doctrine in Oil and Gas Cases, 35 Texas L.Rev. 538 (1957).

An exception to the rule that the life tenant is entitled to nothing but interest on the royalties and bonus is found in the “open mine” doctrine. At common law, if mines or pits were open at the time the life estate began, it was not waste for the life tenant to continue digging for his own use; and the proceeds were regarded as a profit from the land. When the settlor of a trust or a testator had opened the mine, and he gave no directions as to the impounding or expenditure of the proceeds from the mine, the law presumed an intent that the life tenant could expend or dispose of them as the settlor or testator could. So the proceeds did not become part of the corpus to be preserved for the remainder-men. Royalties and bonus, under these circumstances, belong to the life tenant. Youngman v. Shular, 155 Tex. 437, 288 S.W. 2d 495 (1956); Woodward, The Open Mine Doctrine in Oil and Gas Cases, supra; Guittard, Rights of a Life Tenant in Production and Use of Oil and Gas, 4 Texas Bar Journal 265 (1941); Annotation, 18 A.L.R.2d 98 (1951).

The opinion of the Court of Civil Appeals in this case recognized these principles, but, as stated, it treated all of the royalties and bonus as if they came from wells opened after the death of the testatrix and the vesting of her husband’s life estate. It awarded all of the royalties to the remaindermen, apparently upon the mistaken belief that all the “mines” (wells or leases) had been opened after the death of the testatrix. As we read the record, the undisputed evidence shows that at least one of the wells (leases) in question was producing when Mrs. Cain died.

The Court of Civil Appeals awarded the remaindermen beneficiaries $18,920.52 in royalties and $1,875 in bonuses. As stated previously, we are concerned with but three leases. One lease was of a tract known as the Renoveze Survey, in Wood County. This lease was executed for a bonus of $7,500 after Mrs. Cain’s death and after the time of the vesting of Cain’s life estate ; and it is clear that the remaindermen beneficiaries are entitled to Mrs. Cain’s one-fourth interest in such bonus, amounting to $1,875. There apparently are no royalties from this lease.

Of the two remaining leases, one was executed to the Rudco Oil Company, and it will be referred to as the Rudco lease. Lewis and Mucher obtained the third lease, and it is referred to as the L & M lease. The amounts paid to Cain as royalties on these two leases and the identity of the payors must be ascertained from the testimony of Rayburn M. Hamilton and two ledger books in which Cain kept meticulously complete, though very confusing, records of the royalty payments he received on these two leases as well as others.

The Rudco lease on the “Hawkins lot,” apparently in the Hawkins Field, was executed in 1941 before Mrs. Cain’s death and the vesting of Cain’s life estate. Humble Oil & Refining Company drilled a producing well on this lease and began paying royalties thereon. Sometime in 1946, R. Lacy, Inc., began purchasing the oil from this well and paying the royalties on such production.

The L & M lease on the “railroad right-of-way tract” in the Hawkins Field was executed sometime after Mrs. Cain’s death and the vesting of W. W. Cain’s life estate. Lewis and Mucher paid royalties on the production from this lease until 1956, when it appears that R. Lacy, Inc., purchased the production from the lease and began paying the royalties.

In determining the amount of royalties collected by Cain to which the remainder-men beneficiaries are entitled, the Court of Civil Appeals added those royalties paid by the Lacy company on the Rudco lease (approximately $10,000) to those paid by Lewis and Mucher and the Lacy company on the L & M lease (approximately $9,000). Thus the Court of Civil Appeals erroneously awarded the remaindermen beneficiaries almost $10,000 in royalties, for production from a lease (Rudco) executed before Mrs. Cain’s death and the vesting of Cain’s life estate, to which Cain was entitled under the “open mine” doctrine.

The remaindermen contend, however, that under Rule 419, Texas Rules of Civil Procedure, Mr. Clyde, the administrator of the estate of the life tenant, Cain, is precluded from attacking the correctness of the amount of royalties awarded to them. Rule 419 provides: “Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court [of Civil Appeals] as correct unless challenged by opposing party.” The remaindermen say they asserted in their appellants’ brief that they were entitled to approximately $18,900 of royalties and $1,875 of bonus, and that the appellee (the administrator, Clyde) did not challenge the figure. The appellee said in his brief that the beneficiaries were not entitled to any bonus or royalty. This was a challenge of appellants’ statement. It would have been helpful to the court if the appellee had stated that in any event, the appellants were only entitled to a lesser amount than the figure claimed. He did so on motion for rehearing in the Court of Civil Appeals, where he there pointed out why the amount awarded was not correct. Rule 419 merely says that the Court of Civil Appeals “may” accept any statement made by the appellant in his brief as correct unless it is challenged by the appellee; and the motion for rehearing afforded that court an opportunity to correct its error.

The state of the record before this Court is not such that we can render a judgment for particular amounts to the respective parties. That can best be done in the trial ■court. Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to the district court with instructions to determine the amounts ■due the estate of the life tenant and the re-maindermen, and for the entry of a judgment based thereon.

ON MOTION FOR REHEARING

Our original opinion in the above cause set out the respective rights of the parties but concluded by stating that we could not render a judgment in this Court because of the state of the record. The cause was remanded to the trial court for an .accounting. Thereafter the parties reconciled their differences in the light of the •opinion. In accordance with the agreement of the parties, judgment is here rendered -that Respondents Rayburn Hamilton et al. •do have and recover from the Petitioner, Calvin N. Clyde, Jr., Administrator, the following sums: $9,002.35 for royalties paid the life tenant from the lease executed and drilled after the vesting of the life estate; '$1,875.00 paid the life tenant as bonus for the execution of an oil and gas lease after 'the life tenancy began; and $2,093.85 interest, a total of $12,971.20. It is further ordered that the costs be retaxed; and, pur-suant to the agreement of the parties, it is ordered that all costs in all courts are taxed against the Petitioner Clyde, and that Respondents do have and recover of and from the Petitioner their costs in all courts.

      . It is not clear from the record exactly how many wells there were. The parties refer to leases by name rather than to particular wells; and the accounting figures are by leases rather than wells. We do not have before us any questions as to whether particular lands were leased for oil and gas before and after or whether some wells were brought in ' after the death of Mrs. Cain on lands leased before her death. See Youngman v. Shular, 165 Tex. 437, 288 S.W.2d 495 (1956).

      . No point or argument is presented that the testatrix by providing that her inherited property should “remain intact,” intended that all royalties should he impounded for the remaindermen, thus making the open mine doctrine not applicable. See the second appeal in Mitchell v. Mitchell, 157 Tex. 346, 303 S.W.2d 352 at 354 (1957). In Mitchell, the will said the principal ' of the trust should be kept intact and be allowed to accumulate for the benefit of the remaindermen. The holding was that since the testatrix specifically provided for the impounding of the royalties for the remaindermen, the open mine doctrine, which is one of presumed intent, was not applicable.


author: SMITH, Justice.

text:
    W. Dave JOHNSON, Petitioner, v. C. N. AVERY, Jr., et al., Respondents.
    No. A-11428.
    Supreme Court of Texas.
    Nov. 16, 1966.
    Rehearing Denied Dec. 14, 1966.

      Long, Aronson & Coleman, Moore & Johnson, Austin, for petitioner.
    McKay & Avery, Charlie Dye, Austin, for respondents.
   SMITH, Justice.

This appeal presents for determination a question of conflict of jurisdiction between two district courts in Travis County over a controversy involving the same subject matter. The first suit was filed by the respondents in the 126th District Court of Travis County, Texas. Subsequent to the filing of the first suit the second suii involving the same subject matter was filed in the 53rd District Court. Respondents filed a plea in abatement in the second suit asserting the pendency of the first suit. In opposition to the plea in abatement petitioner alleged that respondents fraudulently induced petitioner’s attorney to delay tne filing of petitioner’s suit. The 53rd District Court overruled respondents’ plea in abatement and ordered the parties to proceed to trial on the merits in that court Subsequently, and after a hearing, the 126th District Court issued a temporary injunction enjoining petitioner from taking further action in the 53rd District Court. On appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, that court affirmed the judgment entered by the 126th District Court (the first suit) granting the temporary injunction. One Justice dissented. 400 S.W.2d 825. We reverse the judgments entered in the 126th District Court and the Court of Civil Appeals.

In disposing of the question involved, it is unnecessary to detail the nature of the cause of action. We confine our statement to a brief recitation of the pleadings in and the actions of the courts below.

The holding in the case of Anderson v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937) is controlling here. That case presented a record practically identical to the record presented in this case. In that case, as in this case, the plea in abatement filed in the second suit and the reply thereto raised an issue of fact as to whether the suit filed in Wheeler County, Texas, was filed prior to the suit filed in Dallas County, Texas, as a result of fraud practiced by the plaintiffs in the Wheeler County case on the attorney in the Dallas County case, the contention being that the alleged acts of fraud caused the opposing attorneys to delay the filing of the suit in Dallas County. The real question at issue in Anderson and in the present case is which court ought to be allowed to exercise active jurisdiction. Clearly the 53rd District Court has that right.

While this Court in the Anderson case reannounced the well settled rule of law that where a suit has been first filed in a court of competent jurisdiction, and such court has all necessary parties before it, it has the prior right to exercise jurisdiction of such case, and no other court in which a subsequent suit is filed has the power to interfere, this Court, nevertheless, stated another well settled rule of law which we think operates as an exception to the above stated general rule, which is that “ * * * a party may be guilty of such conduct relating to the matter as to estop himself from asserting the prior active jurisdiction of a court in which a suit is first filed over another court in which a suit is subsequently filed involving the same subject-matter * *

This Court had occasion to reexamine the Anderson case in 1958 in the case of Wheeler v. Williams, 158 Tex. 383, 312 S.W.2d 221. In Wheeler, we declined to follow the exceptions to the general rule stated in Anderson, but only because of the factual distinction between the two cases. In Wheeler, we pointed out the absence of issues of bad faith, fraud, etc. Such as were stated to be involved in the Anderson case. We said in Wheeler that the exception to the general rule stated in Anderson “went to the very heart of the issues involved in the Anderson case and no doubt prompted this Court to hold that the reply and contest of the plea in abatement raised pertinent issues of fact, and that such issues ought to be tried in the District Court of Dallas County where the second suit was pending.” The facts in the present case bring it squarely within the exception to the general rule announced in Anderson. The injunction must be dissolved. We reiterate that we are not passing upon the merits. This Court said in Anderson that “[t]he district court of Dallas County [the second court] did properly exercise its power and jurisdiction to pass on and determine the above plea in abatement, reply thereto, and contest thereof, and all pertinent facts. Such court, in exercising its jurisdiction, overruled such plea in abatement, and its order in such matter, being purely interlocutory, can only be reviewed by an appellate court when a final judgment is rendered in the case. It follows, under the circumstances of this record, that the district court of Dallas County should not be interfered with until it has finally tried the case, and until it has been finally determined whether it was in error in its action in overruling the plea in abatement. Of course this will have the effect of postponing any action in the Wheeler County case until final judgment in the Dallas County case. It may be that on appeal, should there be one, the appellate court will determine that the district court of Wheeler County should be allowed to hear and determine the litigation in preference to the district court of Dallas County. We do not decide that question, but leave it for final decision when, and if, the Dallas County case is appealed.”

The above holding applies with equal effect to the present case. Therefore, the injunction granted by the 126th District Court is dissolved. All costs are adjudged against the respondents.


author: CALVERT, Chief Justice.

text:
    Philip J. MOULTON et al., Petitioners, v. ALAMO AMBULANCE SERVICE, INC., Respondent.
    No. A-11487.
    Supreme Court of Texas.
    Jan. 11, 1967.
    Rehearing Denied March 8, 1967.

      Lieck & Lieck, Jack Leon and Eugene H. Lieck, Arch B. Haston, San Antonio, for petitioner.
    Lang, Byrd, Cross, Ladon & Oppenheimer, Paul M. Green, San Antonio, for respondent.
   CALVERT, Chief Justice.

This case grew out of a three-vehicle collision at the intersection of East Commerce and Cherry Streets in the City of San Antonio, an intersection controlled by a traffic signal. Philip J. Moulton sued Alamo Ambulance Service, Inc. and Louie Cardenas and by his suit sought a joint and several judgment against the defendants for damages for personal injuries sustained in the collision. A jury trial resulted in findings that both defendants committed acts of negligence proximately causing the injuries sustained by Moulton and fixing his damages at $10,000. Cardenas filed a motion for judgment notwithstanding the verdict, and the motion was granted. The judgment rendered by the trial court awarded Moulton a recovery of his damages from Alamo but decreed that he take nothing from Cardenas. Only Alamo appealed.

In its appeal, Alamo complained of both facets of the trial court’s judgment. The court of civil appeals held that the trial court erred in granting Cardenas’ motion for judgment notwithstanding the verdict and in rendering judgment absolving Cardenas of liability. It then held that the trial court also erred to the prejudice of Alamo in refusing it permission to file a trial amendment. On the basis of these holdings, the court of civil appeals reversed the judgment of the trial court and remanded the cause for a new trial. 402 S.W.2d 200. Separate applications for writ of error were filed by Cardenas and Moulton and both applications were granted. We affirm the judgment of the court of civil appeals.

At the time of the collision, Alamo’s station wagon, operated by its employee, Dickie Wolfe, was proceeding west on Commerce Street; Cardenas’ Buick was proceeding north on Cherry Street, and the van occupied by Moulton was headed south on Cherry Street but was stopped just north of the intersection while Moulton was waiting for clearance to make a left-hand turn easterly into Commerce Street. Alamo’s station wagon and Cardenas’ Buick collided near the center of the intersection. Following this collision, Cardenas’ Buick continued northerly for thirty-two feet and collided with Moulton’s van.

Neither of the defendants pleaded that Moulton was guilty of negligence in any respect. Therefore, the crucial questions with which the jury was concerned related to the conduct of the two defendants preceding the collision with Moulton’s van and the damages to be awarded. Each of the defendants sought to establish, primarily, that negligent conduct of the other was the sole proximate cause of the plaintiff’s injuries, and, secondarily, was a contributing proximate cause. The jury found that no negligent act or omission of either defendant was the sole proximate cause. They found that Alamo’s driver was operating its station wagon at an excessive rate of speed, failed to keep a proper lookout, failed to apply his brakes and entered the intersection when the traffic light facing him was red, and further found each of the negligent acts or omissions was a proximate cause of the collision. The jury also found that Cardenas accelerated his automobile immediately prior to his collision with the plaintiff’s van, and that this act was negligence and a proximate cause of the collision. The trial court disregarded the jury findings against Cardenas on the ground that they were not supported by the evidence.

We consider first the application of Cardenas. The only questions presented by the application are whether there is evidence supporting the jury finding of acceleration of his automobile by Cardenas and whether the act of acceleration was negligence. We agree with the holding of the court of civil appeals on these questions. The evidence hearing on the questions and the applicable law are set out in the opinion of the court of civil appeals and need not be restated here. See 402 S.W.2d 200, 202-203. The “loss of control” cases cited by Cardenas are not controlling because loss of control of his automobile by Cardenas after the collision with Alamo’s vehicle is not established either as a matter of law or by a jury finding.

Moulton’s application insists that the court of civil appeals erred in reversing the trial court’s judgment in so far as it awarded him a recovery of damages from Alamo.

As heretofore noted, the court of civil appeals reversed the judgment against Alamo because of the refusal of the trial court to permit Alamo to file a trial amendment. Tender of the trial amendment and refusal of the trial court to permit its filing were made in the following circumstances. Moulton was employed at the time of the accident by a vending machine company and a necessary part of his duties was to get down on his knees and service and clean the vending machines. The most serious injury suffered by Moulton was to one of his knees. His doctor, Lloyd E. Berry, testified at the trial that to relieve ill effects of the knee injury he prescribed “heat, rest and elevation of the leg,” and advised Moulton “to stay off the knee and take care of it.” The evidence would support a conclusion by the jury that Moulton continued to perform his duties, using his leg and working on his knee, and thus aggravated his knee injury to such an extent that he lost his job because he could no longer perform his duties acceptably and was still suffering pain at the time of trial, more than eighteen months after the injury. The doctor’s testimony would also support a reasonable conclusion that Moulton’s knee injury would probably have healed within a brief period of time if he had followed his doctor’s advice. After the close of all the evidence, Alamo tendered its trial amendment in which it pleaded that Moulton had failed to mitigate his damages, and had in fact contributed to cause an injury of greater severity to himself than that which he received in the accident “by failing to exercise the care of an ordinary prudent person in following competent medical advice to prevent the further aggravation of, or in the alternative, the complete healing of such injury.” The answer on which Alamo went to trial contained no such plea but did contain a general denial.

The reasoning of the court of civil appeals in holding that the trial court abused its discretion in refusing to permit the filing of the trial amendment was as follows: An injured person is not entitled to recover damages from a wrongdoer for consequences of an injury which can be avoided by the exercise of ordinary care; mitigation of damages is an affirmative defense as to which a defendant is not entitled to submission to a jury of special issues under Rules 277 and 279, Texas Rules of Civil Procedure, in the absence of a written pleading of failure to mitigate; the testimony which would support a finding that Moulton failed to minimize his damages was admitted without objection, and the issue was therefore tried by consent; and in the absence of a showing that Moulton was surprised by the testimony, Rule 67, Texas Rules of Civil Procedure, required that the trial amendment to Alamo’s answer be allowed so that justice might be done. We recognize the universality of the rule that an injured ue't-son cannot recover damages which can be avoided by that care and treatment of his injury which an ordinary prudent persoq would exercise in the same or similar circumstances ; but we hold that mitigation of, damages in this situation is not an affirmative defense, and thus that the trial court did not err in refusing to permit Alamo to file its trial amendment.

The cases cited by the court of civil appeals in support of its holding that mitigation of damages in a personal injury suit is an affirmative defense are City of Fort Worth v. Satterwhite, 329 S.W.2d 899 (Tex.Civ.App.—Fort Worth 1959, no writ) ; Maywald v. Perry, 254 S.W.2d 431 (Tex.Civ.App.—Galveston 1953, writ ref’d n. r. e.); and Houston E. & W. T. Ry. Co. v. Jones,. 1 S.W.2d 743 (Tex.Civ.App.—Beaumont 1927, writ ref’d). The problem was not considered or discussed in Satterwhite. In that case failure to mitigate was affirmatively pleaded. In Jones the court held there was neither pleading nor proof that the plaintiff’s injury was aggravated by any supervening cause and that the defendant was, for both reasons, not entitled to a charge thereon. In West Lumber Co. v. Keen, 221 S.W. 625 (Tex.Civ.App.—Beaumont 1920), reversed on other grounds, 237 S.W. 236 (Tex.Com.App.1922), it was indicated that mitigation is an affirmative defense. Other cases in which the holding, has been made or indicated are Baker v. Cobb, 221 S.W. 314 (Tex.Civ.App.—San Antonio 1920, writ dism’d) and Missouri, K. & T. Ry. Co. v. Smith, 49 Tex.Civ.App. 610, 108 S.W. 1195 (1908, no writ). A contrary holding was made in City of Waxahachie v. Connor, 35 S.W. 692 (Tex.Civ.App.1896, no writ), in which the court held that evidence of failure to mitigate was admissible under a general denial. The holding in Connor is in harmony with Stipp v. Tsutomi Karasawa, 318 S.W.2d 172 (Mo.1958), in which the Supreme Court of Missouri held that evidence of failure to mitigate damages is admissible in personal injury cases under a general denial. The question has never been directly decided by this court and thus is an open one in this state. We hold that failure to mitigate damages by care and treatment of personal injuries is pot an affirmative defense which must be specially pleaded to let in evidence of stjch failure and to entitle the wrongdoer tQ pyoper court instructions.

Rule 94, Texas Rules of Civil Procedure, requires that a pleading to a preceding pleading shall set forth affirmatively nineteen listed pleas “and any other matter constituting an avoidance or affirmative defense.” Mitigation of damages is not one of the listed pleas. Each of the nineteen listed pleas would defeat, in whole or in specific part, the underlying cause of action or defense asserted in the preceding pleading. Unlike the listed pleas, failure to mitigate damages would not defeat the underlying cause of action in whole or in specific part, in personal injury cases. A wrongdoer is liable to an injured person for all damages proximately caused by his wrongful or negligent acts, and failure of the injured person to care for and treat his injuries as a reasonable prudent person would under the same or similar circumstances will not defeat in whole or in part the cause of action for damages thus proximately caused. Testimony that Moulton failed to heed and follow the advice of his doctor was admissible under Alamo’s and Cardenas’ general denials which put in issue the amount of the damages alleged by Moulton to have been suffered by him as a proximate result of the negligence of the two defendants. The rule by which we have been guided in reaching our conclusion was announced by this court in W. L. Moody & Co. v. Rowland, 100 Tex. 363, 99 S.W. 1112, 1115 (1907), as follows:

“The defendant may, by a general denial, put the plaintiff upon proof of the facts alleged in the petition, and, under such general denial, the defendant would be entitled to introduce evidence which tended to disprove the facts alleged in the plaintiff’s petition, and to rebut evidence offered by the plaintiff. If a defendant desires to introduce evidence of a fact which does not tend to rebut the facts of the plaintiff’s case, but which show[s] an independent reason why the plaintiff should not recover upon the case stated and proved, then such defendant must plead the facts which will avoid the legal consequence of plaintiffs case, else the testimony will not be admissible * *

There is a strong policy reason for holding that a failure to mitigate damages in a personal injury case is not an affirmative defense. Affirmative defenses, when supported by evidence, entitle the pleader to special issues embodying the defense, and a holding that in personal injury cases failure to mitigate is an affirmative defense would result in a proliferation of special issues in an area already mired in a prolixity of complicated issues. The record in this case is an excellent illustration of the special issue problems which would be encountered by such a holding. Alamo requested two special issues which inquired (1) whether Moulton “failed to follow competent medical advice as a person of ordinary prudence in the exercise of ordinary care would have followed under the same or similar circumstances,” and (2) whether such failure, if any, was a proximate cause of “Moulton’s injuries [damages?].” Since the jury was required in answer to submitted special issue No. 45 to find the amount of money which as damages would fairly compensate Moulton for his injuries proximately caused by the accident, it is obvious that had the requested issues been submitted to the jury and answered favorably to Alamo, the answers would not have defeated Moulton’s right to recover the sum found by the jury in answer to issue No. 45. And if Alamo had requested and obtained submission of a third issue in answer to which the jury found the money value of the damages proximately caused by Moul-ton’s failure to follow the advice of his doctor in the care and treatment of his injuries, the sum so found could not be deducted from the sum found by the jury in answer to issue 45 because that issue related alone to damages proximately caused by the defendants’ negligence.

In Gulf, C. & S. F. Ry. Co. v. Mannewitz, 70 Tex. 73, 8 S.W. 66, 67 (1888), we said that failure of an injured person to care for and treat his injuries as a reasonable prudent person would under the same or similar circumstances was “a branch of the doctrine of contributory negligence.” It is a branch of that doctrine only in the sense that damages resulting from such failure are ultimately not proximately caused by the wrongdoer’s acts or omissions, but by the injured person’s own subsequent negligence, and are thus not recoverable from the wrongdoer. Restatement, Torts § 918 (1939); 22 Am.Jur. 2d Damages §§ 30-32, 38 (1965). The wrongdoer is adequately protected against liability for damages of the latter class by a properly worded damage issue and instruction which limits the recovery of the injured person to those damages proximately caused by the wrongdoer’s acts or omissions and exclude recovery of those proximately caused by the injured person’s own negligence in failing to mitigate.

Having held that the court of civil appeals erred in reversing the trial court’s judgment because of the refusal of the trial court to permit the filing of the trial amendment, we must look to Alamo’s brief in the court of civil appeals to see if the judgment of that court can be affirmed on any other ground. Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298 (1956). When we do so, we find that Alamo also assigned error in the court of civil appeals to the action of the trial court in overruling an objection to special issue No. 45, the damage issue.

Special issue No. 45 required the jury to find from a preponderance of the evidence a sum of money which, if paid in cash, would “fairly and reasonably compensate the plaintiff for the injuries, if any, proximately caused by the accident in question.” The court instructed the jury that in arriving at their answer they could take into consideration certain elements of damages “and none other.” The instruction listed the elements which could be considered as past and future physical and mental pain and suffering, and loss of earnings and impaired earning capacity, which were found to have been proximately caused by the accident. On the basis of the testimony heretofore detailed, the instruction was incomplete and therefore defective because it did not exclude from consideration in arriving at the sum to be awarded, such damages, if any, as may have been proximately caused by the failure of the plaintiff to care for and treat his knee injury as a reasonable prudent person would have done in the exercise of ordinary care under the same or similar circumstances. The defendant was entitled to have such damages affirmatively excluded. See Dallas Ry. & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938). Considering the nature of the elements of damages to be considered by the jury, the question is ruled by Ector rather than by Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862 (1948). Alamo was not required to request an exclusionary charge in substantially correct wording in order to complain of the error on appeal; proper objection was sufficient predicate for complaint. Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92 (1955).

Alamo objected to the issue and the instruction given in connection therewith because the jury was not instructed that Moulton was not entitled to recover damages “which could have been avoided by following competent medical advice when under the same or similar circumstances a person of ordinary prudence in the exercise of ordinary care would have complied with such advice in his own interest.” We hold that the objection was sufficient to call the court’s attention to the defect in the charge and that the trial court erred in refusing to give an affirmative exclusionary instruction. As applied to the evidence in this case, we would find no serious fault with an instruction couched in the quoted language; but we observe that the better practice generally would be to instruct the jury that in arriving at its answer to the issue it should not include any sum for physical and mental pain and suffering, loss of earnings, etc., if any, proximately caused by failure of an injured person to care for and treat his injuries, if any, as a reasonable prudent person would in the exercise of ordinary care under the same or similar circumstances. See West Lumber Co. v. Keen, 221 S.W. 625, 629 (Tex.Civ.App.—Beaumont 1920), reversed on other grounds, 237 S.W. 236 (Tex.Com.App.1922). An exclusionary instruction in the suggested language will cover situations in which there is evidence of negligence on the part of the plaintiff in failing to consult a doctor, in failing to consult a doctor as soon as a reasonable prudent person would, in failing to follow a doctor’s advice, or simply in failing properly to care for and treat injuries which do not require the attention of a doctor.

We also hold that the error in failing to give an affirmative exclusionary instruction is reversible error under Rules 434 and 503, Texas Rules of Civil Procedure, in that it probably caused the jury to return a verdict for a greater amount of damages than it would have done if the instruction had been given. As given, the instruction imposed no affirmative restraint upon argument that all of Moulton’s pain and suffering, past and future, loss of earnings and reduced earning capacity were proximately caused by the defendants’ negligence.

The judgment of the court of civil appeals is affirmed.

      . Emphasis ours throughout unless otherwise indicated.


author: HAMILTON, Justice.

text:
    TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 12, Petitioner, v. John Lee McMILLEN, Respondent.
    No. A-11258.
    Supreme Court of Texas.
    Nov. 16, 1966.

      John Davenport, Austin, for petitioner.
    James R. Sloan, Austin, for respondent.
   HAMILTON, Justice.

This is an appeal from a summary judgment rendered in a suit for delinquent taxes in favor of the respondent, John Lee McMillen. The Court of Civil Appeals has affirmed. 397 S.W.2d 540. We reverse the judgment of the Court of Civil Appeals and remand the cause to the district court for a trial.

Petitioner Water District sued respondent McMillen to recover ad valorem taxes for 1960 through 1963 in the principal sum of $2576.00 alleged to be owing it by reason of respondent’s ownership of 342 acres of land lying within the District.

Respondent moved for summary judgment, denying that his property was ever included within the District. In his supporting affidavit he stated that he had examined the records of the Water District and knew that the 342 acres in question were not included in the District upon its original organization; he did not find nor has he been shown any petition for inclusion subsequent to its formation, nor has he or anyone else filed any such petition since he acquired ownership of the property in question. He further stated that he found no minutes reflecting such a petition, or any action by the Board of Directors to include said land within the boundaries of the District, and that he has examined the records of the County Clerk of Travis County, Texas, and found no filing of any petition to add such land to the District.

Petitioner filed two controverting affidavits, one by Otto Olle, one of the grantors of the property in question to respondent John Lee McMillen, the other by Cal Willi-ford, a former member of the board of directors of the Water District. Olle stated that, prior to conveying said tract of land to , respondent, he filed a petition for inclusion of the tract in the district with the board of directors, said petition describing the tract of land by metes and bounds. Williford stated that at the time the petition was presented the board of directors found that it would be to the advantage of the District to grant, and did in fact grant said petition. He further stated that the petition was among the minutes of the board of directors in January of 1960 when all of such records were turned over to respondent John Lee McMillen, the newly elected secretary of said District.

Petitioner contends that the two affidavits presented to controvert respondent’s motion for summary judgment raised a fact issue as to whether a petition for inclusion within the District had been filed with and acted upon favorably by the Board. The Court of Civil Appeals held to the contrary for two reasons: First, the affidavits of Olle and Williford are secondary evidence of the contents of the purported petition and minutes of the board of directors, which matters are directly in issue, and therefore inadmissible under the best evidence rule; second, even if the affidavits are admissible they are insufficient to show a substantial compliance with Vernon’s Tex.Civ.Stat. Ann. Art. 7880, Sec. 75, which sets forth the requirements for adding land to a water district.

Texas Rules of Civil Procedure,, rule 166-A(e) requires that affidavits, supporting or opposing motions for summary judgment set forth such facts as. would be admissible in evidence. Secondary evidence of the contents of a document directly in issue is inadmissible unless non-production of the original document is. accounted for. Hill v. Taylor, 77 Tex. 295, 14 S.W. 366 (1890); Coleman v. Smith, 55 Tex. 254 (1881); Dikes v. Miller, 24 Tex. 417 (1859) ; Guadalupe & San Antonio. Rivers Stock Ass’n v. West, 76 Tex. 461, 13 S.W. 307 (1890). .

The production of the original document is excused when it is established to the satisfaction of the court that the document in question has been lost or destroyed. Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609 (1951); Hotman v. State, 217 S.W.2d 890 (Tex.Civ.App.1949, no writ). Loss or destruction may be established by proof of search for the document and inability to secure it. Clifton v. Lilley, 12 Tex. 130 (1854) ; Ruby v. Von Volkenberg, 72 Tex. 459, 10 S.W. 514 (1889); De Garcia v. Johnson, 265 S.W.2d 692 (Tex.Civ.App.1954, writ ref’d). Where petitioner’s affidavits state that a petition was filed, granted and among the minutes when delivered to respondent, and respondent swears that he has made a careful search of the records and is unable to locate it the court could conclude that the petition was lost or destroyed. For the purpose of this proceeding, this is sufficient to consider the controverting affidavits for any relevant purpose. They raise a fact issue .as to whether a petition for inclusion of the land within the District was filed with and approved by the Board.

The Court of Civil Appeals held, further, that if the affidavits may be considered for the purpose of showing the contents of the application they are insufficient to show a substantial compliance with Art. 7880-75, supra, in that there is no showing that the petition was signed by the owner ■of the 342 acres, that the petition was executed in the manner provided by law for the conveyance of real estate, or that the board of directors of the District found that the water supply, canals, etc., were sufficient to supply the included lands without injury to lands in the District. We disagree with this holding of the Court of Civil Appeals. The question is not whether the affidavit shows affirmatively that the contents of the application were sufficient to show substantial compliance with the statute, but rather whether the affidavits show affirmatively that the application was not in compliance with the statute. The failure ■of the affidavits to describe the application as including all the provisions prescribed by statute is not affirmative proof that the application did not contain the prescribed provisions. Therefore the affidavits will not support a summary judgment for respondent based on the ground that they fail to show compliance with the statute in every respect.

It does appear without contradiction that the purported petition for inclusion of the land was not filed with the county clerk as specified in Art. 7880-75. If recordation in the office of the county clerk in the county in which the land is situated is required for substantial compliance with the statute, then the land was not included within the District and the taxes were not lawfully assessed. The case of Lovett v. Cronin, 245 S.W.2d 519 (Tex.Civ.App.1951, no writ), involved a similar recording provision applicable to the creation of water districts — Art. 7880-12. The question was whether the failure to file the petition for the creation of a district as specified in the statute made the creation of the district void. The Court of Civil Appeals held that the filing of a petition with the county clerk in such a case performs no function except to give notice of its contents; the failure to file was at most an irregularity which did not make the creation of the district void. By the same token, the purpose of the recording provision of Art. 7880-75, supra, is to impart constructive notice of the inclusion of the land within the district. The recording provision should therefore be construed in conformance with Tex.Rev.Civ.Stat.Ann. Art. 6627, relating to the recording requirements in sales and other conveyances of land. So construed, action to add land to a water district will be void only as to creditors and subsequent purchasers for a valuable consideration without notice, where the petition is not recorded as specified in the statute. Respondent does not contend that he purchased the land in question without notice that it had been added to the water district. Williford’s affidavit asserts that respondent stated, when he applied for the installation of water meters on the land, that at the time he purchased said tract it had been included within the water district.

Having held that a fact issue was raised as to whether a petition for including the land in question within the District was filed with and approved by the board, and that the affidavits are not sufficient to establish noncompliance with the statute, we hold that the trial court was in error in entering summary judgment for respondent. We reverse the judgments of the trial court and the Court of Civil Appeals and remand the cause.


text:
    David S. DIAMOND et ux., Petitioners, v. Allen BORENSTEIN et al., Respondents.
    No. B-67.
    Supreme Court of Texas.
    March 15, 1967.
    Paxson & Santiesteban, Robert E. Kennedy, John G. Lay, El Paso, for petitioners.
    Potash, Cameron, Bernat & Studdard, El Paso, for respondents.
   PER CURIAM.

We approve the court of civil appeals’ holding that the Legislature by repealing art. 1299, Vernon’s Ann.Civ.St., removed the requirements of the husband’s joinder and the wife’s privy acknowledgment for -an effective conveyance by the wife of her separate non-homestead property. 410 S.W.2d 457. The Legislature, however, did not repeal arts. 6605 and 6608 which state the manner and form of a married woman’s acknowledgment. Those two articles must still be observed for purposes of recordation, notice and other instances expressly required by law. In the present case, the wife’s defective acknowledgment of the deed of trust did not render it void and unenforceable as between the parties to the transaction. The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: POPE, Justice.

text:
    Ex parte John Kenneth MULLINS.
    No. B-179.
    Supreme Court of Texas.
    April 26, 1967.
    Jordan, Davis & Barlow, Conway Jordan, Jr., League City, for relator.
    Fuhrhop & Green, John R. Green, Dickinson, for respondent.
   POPE, Justice.

Relator, John K. Mullins, instituted this habeas corpus proceeding after the Court of Domestic Relations of Galveston County adjudged him in contempt and committed him to the Galveston County jail for disobedience of that court’s order to pay child support. Relator urges that the contempt and commitment orders are based upon a void child support order because the Court of Domestic Relations Number Three of Harris County, which granted the divorce, has exclusive jurisdiction over child support orders. We sustain relator’s contention.

Relator, Mullins, sued his wife, Marguerite Elaine Mullins, for divorce in 1961. The suit was filed in the Court of Domestic Relations Number Three for Harris County, and that court granted relator’s prayer for divorce and awarded him the custody of the three children born of the marriage. The decree was silent about child support. The mother moved to Galveston County, and in 1963 she instituted a new action in that county to obtain custody of the three children. See, Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940). The Court of Domestic Relations for Galveston County awarded custody of the children to the mother. On August 19, 1966, the mother filed a motion in the Domestic Relations Court of Galveston County seeking child support. She filed her motion in the same court as a part of the former custody suit. After a hearing, the court ordered relator to pay $150.00 per month as child support. Relator’s challenge to the court’s jurisdiction to adjudicate and order child support was overruled on December 12, 1966. Relator complied with the order until December 1966, but then refused to make further payments. The mother instituted contempt proceedings, and after hearing, the Galveston court ordered relator committed to jail for three days and thereafter until he purged himself of contempt by paying all past due child support in the amount of $275.00.

The Court of Domestic Relations Number Three of Harris County, which granted the divorce between relator and his wife, has exclusive jurisdiction to make orders concerning child support. Subsequent motions to change or modify child support orders constitute a continuation of the original cause of action for divorce and must be filed in the original divorce suit. Ex parte Goldsmith, 155 Tex. 605, 290 S.W.2d 502 (1956); Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954); Ex parte Roberts, 139 Tex. 644, 165 S.W.2d 83 (1942); Ex parte Taylor, 137 Tex. 505, 155 S.W.2d 358 (1941).

The fact that the original divorce decree did not adjudicate child support does not alter this rule. In Goldsmith, supra, the original decree failed to order an adopting parent to support an adopted child but did order his support of his two natural children. In Roberts, supra, the original decree failed to provide for the support of an unborn child. In Taylor, supra, the original decree failed to order support for a child that was living at the time of the divorce. In each of these cases, the nonpaying father was released on habeas corpus after being committed to jail for contempt of a child support order rendered in an action independent of the original divorce suit.

Article 4639a, since its adoption in 1935, has been consistently construed as granting exclusive jurisdiction to change and amend support orders to the court which rendered the original divorce decree. In 1961, article 4639a was amended so as to provide that a jury finding about custody must not be contravened by the trial court. Acts 57th Leg. p. 663, ch. 305. The statute was otherwise unchanged. The caption of the bill omits any reference to jurisdiction for hearing actions concerning support payments. It states only that it is an amendment to provide “that jury determination of child custody may not be contravened by judgment of the court upon granting a divorce * * *»

Since jurisdiction for hearing a motion to change or amend a child support order “lies in the court originally granting the divorce”, Ex parte Webb, supra, the Court of Domestic Relations for Galveston County lacked jurisdiction and its support order was void.

The relator is discharged from custody.