author: HAMILTON, Justice.

text:
    Ex parte Lewis F. HATCH, Relator.
    No. A-11440.
    Supreme Court of Texas.
    Jan. 25, 1967.

      L. H. Klaeveman, L. Alvis Vandygriff, Austin, for relator.
    Jon N. Coffee, Carl C. Hardin, Jr., Austin, for respondent.
   HAMILTON, Justice.

This is an original habeas corpus proceeding. The relator, Lewis M. Hatch, was adjudged to be in contempt of court for failure to make certain support payments ordered under the authority of Article 4639a-!. The question presented is whether the statute applies to an attempted modification of a prior divorce decree where the child in question was already 18 or more years of age at the time the statute became effective.

The statute is as follows:

“Art. 4639a-l. Children Requiring Custodial Care
“In addition to all other requirements, each petition for divorce shall further set out, if such is a fact, that (1) an unmarried child, born of the marriage sought to be dissolved, is physically or mentally unsound and requires custodial care, and (2) that such child cannot adequately take care of or provide for himself, and (3) that such child has no personal estate or income sufficient to provide for his reasonable and necessary care. If the Court shall find all of such has been proven by full and satisfactory evidence the Court may require and enforce support payments for such child, whether a minor or not, subject to the power and authority of the Court to alter, change, suspend, or otherwise revise its judgments as the facts and circumstances may require and in the manner required by law.”

The act became effective 90 days after August 8, 1961, date of adjournment of the Legislature.

In 1958 relator had filed a petition seeking a divorce from Mildred N. Hatch in the 126th District Court of Travis County, Texas. A judgment was rendered on October 28, 1958, granting a divorce to Mildred N. Hatch on a cross action. The judgment found that there were two daughters who were issue of the marriage, Carna Mary, “who must have permanent care and medical attention”, and Christine Ann. Relator was ordered by the judgment to pay to Mildred N. Hatch the sum of “$350.00 per month, same being $175.00 per month for each child, according to the terms and conditions contained in the agreement filed in this cause and such agreement, signed by the parties to this cause is hereby referred to and made a part of this judgment by reference and subject to the further orders of this Court.”

The agreement provided that the payments for the use and benefit of Carna Mary “shall continue until she is married or becomes self-supporting; and if she marries and the marriage is terminated, she then not being self-supporting, such payments will be resumed and shall continue until she is self-supporting, or remarries.” It further recited:

“In the event the parties hereto determine that it is necessary or desirable for Carna Mary to have custodial care out of the home, the parties shall agree upon the institution in which she is to receive such care, and, in lieu of the payments imposed above upon First Party [Relator] with respect to Carna Mary, First Party agrees to pay the fee required by such institution, and in addition to such fee, agrees to pay to Second Party [Mildred N. Hatch] for the use and benefit of Carna Mary, the sum of $50.00 per month.”

In 1962, after the passage of Article 4639a-l, supra, Mildred N. Hatch filed a petition praying that relator be ordered to pay certain arrearages for support, certain medical expenses, that Carna Mary be placed in an appropriate institution for her welfare and care, and that the Court enter such order or orders as it deems necessary pursuant to Article 4639a-l. After a hearing, the court ordered, on July 2, 1962, that the former Mrs. Hatch have judgment against relator for certain arrearages in child support. In addition, the court entered an “interlocutory order” finding that Carna Mary Hatch had been adjudged a person of unsound mind and that it was necessary that she be institutionalized immediately. It provided for the placing of Carna Mary in one of several institutions, for the payment of expense by relator, and further that “nothing herein shall be construed to relieve [relator] from his obligation to pay the monthly payments for the use and benefit of Carna Mary Hatch and Christine Ann Hatch as set out in the contract agreement * * ‡»

In April, 1966, Mildred N. Hatch filed a petition, application for bill of discovery and affidavit of contempt, alleging that relator had failed to make certain support payments for the benefit of Christine Ann and Carna Mary. On May 4, 1966, the court found that relator had not paid the $50.00 per month to Mildred N. Hatch for the benefit of Carna Mary for a period of 34 months and gave judgment for $1700.00; furthermore, the court found relator in contempt of court for his failure to pay the $1700.00 as ordered. Relator was placed in the custody of the sheriff of Travis County, Texas, and filed his petition for writ of habeas corpus before this Court.

At the date of divorce Carna Mary was 16 years old. At the date Article 4639a-l became effective she was 19 years old. She was 20 when the suit to modify the divorce decree was filed, and 24 years of age when relator was adjudged to be in contempt.

Relator contends inter alia that the contempt jurisdiction of the trial court was not effectively invoked and the order adjudging relator in contempt is void.

Article 4639a gives the court continuing jurisdiction to modify the amount of child support to age 18. Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954). This statute also gives the court ordering support payments “full power and authority to enforce said judgments by civil contempt proceedings.” A contempt proceeding is the only remedy for enforcement of such an order. See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957); Youngblood v. Youngblood, 163 S.W.2d 731 (Tex.Civ.App.1942, no writ). If the decree incorporates an agreement between the parents as to child support, the decree is enforceable by contempt only to the extent authorized by statute; that part of the decree which goes beyond the authorization of the statute is enforceable only by the ordinary processes of law. Mobley v. Mobley, 221 S.W.2d 565 (Tex.Civ.App.1949, no writ); see also Murray v. Murray, 350 S.W.2d 593, (Tex.Civ.App.1961, no writ); Morgan v. Drescher, 219 S.W.2d 488 (Tex.Civ.App.1949, writ ref’d n. r. e.). In the instant case the support order contained in the original decree could be enforced only by contempt proceedings for failure to make payments due before the child reached eighteen years of age. Thereafter, relator’s liability, if any, for subsequent payment was contractual.

The question is narrowed to whether the enactment of Article 4639a-l conferred jurisdiction on the 126th District Court of Travis County to enforce the $50.-00 per month child support order by contempt. Article 4639a~l provides that the “Court may require and enforce support payments”. (Emphasis added.) When the Legislature provided that the court may enforce its support orders, it necessarily meant enforcement by contempt. We hold that Article 4639a-l confers jurisdiction on the court to enforce its support orders for children requiring custodial care by civil contempt proceedings.

The case of Smith v. Givens, 97 S.W.2d 532 (Tex.Civ.App.1936, no writ), is similar in many respects to the present controversy. There the court granted a divorce to the wife in 1934. Article 4639a, providing for child support orders enforceable by contempt, was enacted in 1935. Thereafter the wife filed in the same court, adopting the docket number of the original divorce suit, a petition setting up the precedent facts, alleging that she, the mother, was unable to support, care for, and educate the child of the marriage (then about 12 years of age), but that the former husband was so able, and prayed for judgment directing him to pay $10.00 into the registry of the court each week. The Court of Civil Appeals held that the divorce decree was final, that the petition seeking child support was an independent suit, and that Article 4639a was only applicable as ancillary to a pending divorce action. Therefore the judgment of the court ordering child support payments was void, and enforcement thereof was enjoined. Smith v. Givens was cited with approval by this Court in Bowyer v. Bowyer, 130 Tex. 257, 109 S.W.2d 741 (1937). Other cases by this Court also support the conclusion that Article 4639a applies only to divorce actions wherein the decree has not become final. See Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940); Bowyer v. Bowyer, supra; Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953.

Respondent, Mildred N. Hatch, contends that the rule of Smith v. Givens does not apply in this case, because the court retained jurisdiction over the child support order until Article 4639a-l was enacted and the decree modified; since that article merely provided a statutory remedy for a common-law liability, the court could modify its decree to conform to its provisions.

We disagree. The only authority the court had to retain jurisdiction to modify and enforce the child support order was by virtue of Article 4639a, supra. This statute gave the court authority to order child support and modify such order, until the child reached 18 years of age; and only such order that was entered prior to the time the child reached such age was enforceable by contempt proceedings. The court could not extend its jurisdiction by incorporating the agreement providing for payment of support beyond eighteen years of age. See Mobley v. Mobley, supra, Ex parte Birkhead, supra.

Respondent contends that the cases of DuPre v. DuPre, 271 S.W.2d 829 (Tex.Civ.App.1954, no writ) and McGowen v. McGowen, 273 S.W.2d 658 (Tex.Civ.App.1954, writ dism’d) hold that a divorce decree can be modified after the passage of a statute providing for contempt proceedings even after the child in question has become 18. In both of these cases the trial courts permitted modification of support orders to conform to the amendment of Article 4639a raising the age limit from 16 to 13 years. However, in neither case had the child for whom support was ordered reached 16 years of age before the enactment of the amendment. These cases do not hold that a child support order may be modified and thereafter enforced by contempt when the court has lost continuing jurisdiction thereof before enactment of the statute.

Article 4639a has been consistently held not to apply to divorce decrees which became final prior to the enactment of the statute. Smith v. Givens, supra; Ex Parte Roberts, 139 Tex. 644, 165 S.W.2d 83 (1942); Bowyer v. Bowyer, supra. Article 4639a-l requires a consistent construction. It was enacted to provide for the continued support of children needing custodial care. See Tex.Laws 1961, 57th Leg., 1st C.S., ch. 31, p. 135, § 4. It is necessarily cumulative of the provisions of Article 4639a. It creates a power in the court to require and enforce support payments that the court did not theretofore possess. It would be highly inconsistent to say that the creation of a similar power under Article 4639a did not affect divorces wherein the court retained no jurisdiction to modify the decree, and hold in this case that Article 4639a-l did apply even though the court retained no jurisdiction to modify the support order. We therefore hold that Article 4639a-l does not confer jurisdiction upon the trial court to modify support orders to conform to its provisions, and require and enforce support payments for children requiring custodial care who were already 18 years of age when the statute became effective.

The case of Cuellar v. Cuellar, 406 S.W.2d 510 (Tex.Civ.App.1966, no writ), appears to conflict with the holding in this case. In Cuellar the divorce was granted in 1948. At the time of a hearing on a motion to amend the prior divorce judgment in November, 1965, the child requiring custodial care was 23 years of age. The Court of Civil Appeals held that the trial court had jurisdiction of the subject matter of the motion, under the provisions of Article 4639a-l, without mentioning the fact that the child in question must have been at least 18 years of age when the statute became effective on November 6, 1961. We expressly disapprove this holding,

We hold that the District Court of Travis County, Texas, was without jurisdiction to adjudge relator in contempt of court in this proceeding. Consequently, the relator is discharged.

      . Tex.Rev.Civ.Stat.Ann. art. 4639a-l (Supp.1966). All references to statutes herein are to Vernon’s Texas Revised Civil Statutes Annotated.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Charles Ray PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 40041.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Lawrence R. Green, Dallas, for appellant.
    Henry Wade, Dist. Atty., Scott Bradley, John H. Stauffer and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is robbery; the punishment, twelve years. Notice of appeal was given on February 25, 1966.

The testimony for the State reveals that the appellant and two male companions, Palmer and Thompson, arrived on foot at a service station in the city of Dallas at 4:00 a. m. on the day of the robbery. At this time the lone attendant observed that they were acting “like they were good friends.” The trio went to a pay telephone booth at the side of the station, and subsequently the appellant and Palmer separately asked the attendant for change allegedly for the purpose of using the telephone to call a taxicab. As a taxicab arrived at the station, Thompson who was sixteen years of age at the time, entered the station, asked for change, then at gun point told the attendant, “Man, give me all of it.” Thompson then removed from the cash register the sum later determined to be $37.25 in ten and five dollar bills and quarters. The attendant was forced to lie on the floor and Thompson left. Shortly thereafter, the appellant entered the front door of the station, looked around and left through the side entrance. The attendant, who did not see the three men leave, immediately called the police to report the robbery, and gave a description of the men first to the police dispatcher and later to the officers who arrived on the scene. The attendant testified the money was taken without his consent and that he, at the time, was in fear of his life or bodily injury.

Floyd Robinson, the taxicab driver, testified he received a call to the service station in question. Arriving at the station at 4:15 a. m., he observed the attendant who soon disappeared from view and three Negro men. Shortly thereafter, two of the Negro men came out of the station and got into the cab. One of the men had a gun in his hand and a handful of greenbacks. Upon inquiry they told the cab driver that the other Negro man still in the station was with them. When told that the cab driver could not take them where they wanted to go, the two men got out of the cab. The cab driver left and reported the matter to the police.

Acting on information over the police broadcast as to the robbery and the age, clothing, height, race and sex of the three individuals who had fled, a patrol car saw three men fitting the description an estimated mile from the service station approximately 45 minutes after the robbery. One officer testified that as the officers approached the trio, “one boy (Thompson) tried to get away.” Appellant and his companions were apprehended and searched. The search revealed that the appellant had nineteen dollars crumpled up in his front pockets. The other two had money wadded in their front pockets. The money in five and ten dollar bills and quarters in possession of the trio approximated the amount stolen from the service station.

The appellant insists that he was illegally arrested without a warrant and that the trial court erred in admitting into evidence, over his objections, the fruits of the search of the appellant and those arrested with him.

We are not in accord with this contention. It is well settled an arrest which is lawful carries with it the right to make a search and seizure incidental thereto. Jones v. State, 171 Tex.Cr.R. 608, 352 S.W.2d 270; Carrizales v. State, 152 Tex.Cr.R. 499, 215 S.W.2d 342.

A review of the facts indicates that a police broadcast informed the officers, four or five times prior to the arrest, regarding the number of persons involved in the robbery, their approximate age, height, race and sex as well as three distinguishing articles of clothing. The suspects fitting this description were seen together in the early morning hours within 45 minutes of the robbery and within a mile thereof. As the officer approached, one of the suspects attempted to leave the scene.

It appears to us that under these facts and circumstances the arrest without a warrant was authorized, and carried with it the right to search. Therefore, the evidence of what the search revealed was admissible. Article 14.04 (215) Vernon’s Ann. C.C.P.; Jones v. State, supra; Carrizales v. State, supra; Pennington v. State, Tex.Cr.App., 364 S.W.2d 376; Stickney v. State, 169 Tex.Cr.R. 533, 336 S.W.2d 133; Tunnell v. State, 168 Tex.Cr.R. 358, 327 S.W.2d 590; Hatfield v. State, 161 Tex.Cr.R. 362, 276 S.W.2d 829; Beeland v. State, 149 Tex.Cr.R. 272, 193 S.W.2d 687.

The Court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and authorized the jury to convict appellant upon a finding that he committed the offense by making an assault upon the inj ured party or by putting him in fear of life or bodily injury.

In his remaining contention the appellant insists the evidence is insufficient to sustain his conviction as a principal to the robbery, and that the verdict of the jury is contrary to the law and the evidence.

Testifying in his own behalf, appellant substantially admitted the facts adduced by the State testimony, but denied having anything to do with the robbery. He claimed that he had no knowledge of Thompson’s intent to rob the service station attendant, though he had been with Thompson earlier in the evening and knew he had a gun. He contends that he re-entered the station to determine if Thompson had injured the attendant, and fled on foot because he was scared and the other two followed.

Appellant denied that he and his companions divided the money taken fiom the station, but he volunteered on direct examination the information that the first time the trio stopped after running from the station that Thompson had said, “I got nearly all the money out of the register. Do you want to split it here or where?”

The intent of the accused must be ascertained and determined from his words, acts and conduct. Thomas v. State, 168 Tex.Cr.R. 225, 324 S.W.2d 869; Bailey v. State, 139 Tex.Cr.R. 260, 139 S.W.2d 599. Further, the agreement of the parties to act together in an unlawful act or design may be established by circumstantial evidence. Scott v. State, 161 Tex.Cr.R. 268, 276 S.W.2d 525. Appellant’s actions before, during the time, and after his companion committed the robbery were sufficient to support the conclusion that all parties were acting together under a previously formed design to rob. Westfall v. State, Tex.Cr.App., 375 S.W.2d 911. The evidence is sufficient to support the jury’s verdict. See Russell v. State, Tex.Cr.App., 396 S.W.2d 117; Pace v. State, 171 Tex.Cr.R. 219, 346 S.W.2d 339; Smith v. State, 167 Tex.Cr.R. 217, 320 S.W.2d 12; Smith v. State, 166 Tex.Cr.R. 575, 317 S.W.2d 60; Lopez v. State, 165 Tex.Cr.R. 165, 305 S.W.2d 371.

The judgment is affirmed.


author: MORRISON, Judge. BELCHER, Commissioner. DICE, Commissioner.

text:
    Donald David TUTTLE, Appellant, v. The STATE of Texas, Appellee.
    No. 39702.
    Court of Criminal Appeals of Texas.
    June 8, 1966.
    Rehearing Denied Oct. 19, 1966.
    Second Motion for Rehearing Denied Nov. 30, 1966.
    Third Motion for Rehearing Denied Feb. 15, 1967.

      Emmett Colvin, Jr., of Waldie, McDowell & Colvin, Dallas (on motion for rehearing only), for appellant.
    Henry Wade, Dist. Atty., Harryette Bercu, Curtis Glover, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, twelve years. Notice of appeal was given December 29, 1965.

Officer Cavender testified that on the night in question, armed with a search warrant, he searched appellant’s apartment and found a plastic box which contained a substance which appeared to be marihuana. The chain of custody was properly established and Dr. Morton F. Mason, Director of the Dallas City and County Criminal Investigation Laboratory, testified that he conducted a test on a portion of the substance in the plastic box introduced as State’s Exhibit No. 1, and found it to be marihuana.

There was testimony concerning the giving of a written confession by appellant, but none accompanies the record, and we find it unnecessary to discuss the same.

Appellant did not testify, but called his wife, who stated that the officers found the plastic box in her child’s toy box. She stated that she had inspected the child’s box on the day preceding and State’s Exhibit No. 1 was not in it. She further stated that on the day of the search one J. H. Whitman had spent an hour in their apartment during which time he asked her if she wanted to smoke some marihuana, but that she had declined.

No formal bills of exception accompany the record, and an examination of the informal bills fail to reflect error.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING.

BELCHER, Commissioner.

It is now contended that the marijuana found in the apartment was not sufficient in quantity to support a conviction.

Dr. Mason testified that the marijuana in the plastic box, State’s Exhibit No. 1, weighed 63 milligrams, which was sufficient to make a very small cigarette. This quantity was sufficient to support the conviction for the possession of marijuana.

For the first time, it is now insisted that appellant’s written statement was erroneously admitted in evidence in violation of the due process clause in that it is undisputed that he signed it after the officer taking it promised he would release appellant’s wife who was then in custody; and that the trial court again erred in not resolving the issues on the voluntary nature of the statement following an independent hearing.

The written statement is not contained in the record, its contents are not revealed, and there is no showing that the jury ever knew its contents. In the absence of the written statement, the above contentions cannot be appraised. However, the record shows that following the independent hearing, the court concluded that from the testimony said statement was voluntarily made and was admissible in evidence.

Error is urged by the trial court’s failure to grant a mistrial when the state asked a question which amounted to an assertion of fact that appellant remained silent while under arrest in face of a statement that appellant had committed a prior offense.

This matter arose during the state’s examination of Officer Cavender, to-wit:

“Q What did she (appellant’s wife) say to you detective Cavender?
“A She wanted to give a statement saying the marijuana was her’s, because she could get probation and he couldn’t.
“Q Did she say anything else ?
“Appellant’s Attorney: We object to any further statement.
■“The Court: Sustain the objection.
“Q Was there anything else said as part of that sentence you have just told us?
■“Appellant’s Attorney: Your Honor, we object to that.
■“The Court: I think he can finish the sentence that she said.
“Q At any rate, Donald David Tuttle here, did not give a statement?
“Appellant’s Attorney: We object to that and move for a mistrial and ask that the jury be instructed not to consider it.
“State’s Attorney: Thank you, that’s all.
“The Court: I will sustain your objection, annd instruct the jury not to consider that last question and overrule your Motion for a mistrial.”

From the record as presented, the refusal of appellant’s motion for a mistrial was not error.

The motion for rehearing is overruled.

Opinion approved by the Court.

OPINION ON APPELLANT’S SECOND MOTION FOR REHEARING

DICE, Commissioner.

Appellant’s written confession introduced in evidence at the trial as state’s exhibit #2 is now included in the record, and we shall discuss his contention that the court’s action in admitting it in evidence constituted a denial of his rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States.

The record reflects that prior to admitting the confession in evidence, in which statement appellant admitted that he possessed the marijuana in question, a hearing was held by the court — in the jury’s absence — on the question of its admissibility.

Appellant did not testify at the hearing.

Officer Earnest E. Taylor, the person to whom the confession was made, testified that prior to making the statement he gave appellant the statutory warning and told him that he could call his lawyer. Appellant stated that he did not want to call an attorney.

The testimony of Officer Taylor shows that following the search of appellant’s apartment on the night of April 19, 1965, the appellant and his wife and one Johnny Charles Johnson were arrested and taken to jail. On the morning of April 21, appellant gave the statement introduced in evidence. After the statement was made, appellant’s wife and Johnson were released from custody.

While being examined on voir dire in the jury’s absence, the officer testified in part as follows:

“Q Mr. Taylor, didn’t you tell this defendant you were going to file on all three of them unless he would sign the statement? A No sir.
“Q Unless one of them signed the statement? — No conversation about that whatsoever.
“Q The conversation we had out there was that all three of them would be filed on.
“Q All three of them would be filed on? A. Yes sir.
“Q Did you ever tell this defendant you would not file on his wife ? A After he tole me the marijuana was his I told him.
“Q And that was before he signed the statement wasn’t it? A Yes sir.
* ⅝ ⅜ * ⅜ ⅝
“Q Other than that did you say something to him about the giving of the statement? A He told me that it was his marijuana and he asked me if I would turn his wife and Johnny (Miarles Johnson aloose if he told me that it was his marijuana and he said that his wife and Johnny Charles Johnson didn’t know anything about it. And I told him that I didn’t want to file on them if it was his, and send them to the penitentiary — if it was his that I would take his statement.
“Q Well, did you say anything to him about giving you a statement if it was not his marijuana? A Yes, i told him if it wasn’t his marijuana, he shouldn’t give the statement.
“Q All right, did you tell him tha_ unless he signed the statement you would file on his wife and this Johnson? A Not at that time, I didn’t, no.
“Q Okay— A This was something that he asked me about. He asked me if he gave a statement would I turn them loose and I told him that I would.
“Q Did you tell him that unless he gave you a statement that all three of you would go to the penitentiary? A I did not.
* * * * * *
“Q Who else claimed the marijuana? A Becky Tuttle.
* ⅜ * * * *
“Q And didn’t you say that unless he admitted it that you would file on all three of them, and— A Yes, we were going to file on all three of them.
“Q And didn’t you tell her that if you had found it in her pocket you wouldn’t file on her? A No sir, that is not true.
“Q But you did promise this guy you would release his wife if he would sign it — before he signed it, didn’t you? A Yes sir.
“Q And that was done down at City Hall the next day and before the written instrument was made wasn't it ? A Yes sir.”

At the conclusion of the hearing, the trial court found that appellant’s statement was voluntarily made and should be admitted in evidence. Such finding appears on page 27 of the statement of facts, and reads:

"THE COURT: After hearing the testimony of the officer, direct and cross examination, it is the opinion of the Court that the Statement was voluntarily made and should be admitted into evidence.”

Testimony was then presented to the jury with reference to the execution of the confession and its voluntary nature, and the confession was admitted into evidence.

The court in his charge submitted to the jury, under appropriate instructions, the issue as to the voluntary nature of the confession.

We first overrule appellant’s contention that the court erred in admitting the confession in evidence in violation of his rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States, because it was undisputed that appellant signed the statement after the officer taking the same promised he would release appellant’s wife from custody if he would sign the statement.

While it was undisputed that appellant signed the confession after Officer Taylor promised to release his wife from custody, there is no undisputed evidence that such promise induced appellant to make and sign the statement.

Appellant did not testify, as heretofore noted.

Under the record, an issue was raised as to whether the statement was “voluntarily made without compulsion, persuasion, promises or fear” — which issue was submitted to the jury.

No objection was made to the court’s charge, and we find no fundamental error therein.

In admitting the confession in evidence, the court did not err. Mainer v. State, 151 Tex.Cr.R. 532, 208 S.W.2d 900; McCutcheon v. State, 159 Tex.Cr.R. 61, 261 S.W.2d 329.

We also overrule appellant’s contention that the court erred in failing to resolve the issues relative to execution of the confession and make an independent finding before admitting it in evidence, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

The court’s finding that the confession was voluntary did resolve the issues presented and was sufficient compliance with the requirements of Jackson v. Denno, supra, and Lopez v. State, supra. See: Ex parte Gomez, Tex.Cr.App., 389 S.W.2d 308, decided by this court on March 31, 1965.

McIlwain v. State, Tex.Cr.App., 402 S.W.2d 916, cited by appellant, is not here controlling, because in that case the court made no finding as to the voluntary nature of the confession and resolved no fact issue which may have been raised by the evidence with reference to statements read to the accused by the police officer.

We also overrule appellant’s contention, raised for the first time in his second motion for rehearing, that he “has been denied his right of review on appeal by failure of his retained counsel on original submission to effectively represent him, in violation of his rights under the 14th Amendment to the Constitution of the United States.”

The motion for rehearing is overruled.

Opinion approved by the court.


author: MORRISON, Judge.

text:
    Jerry L. JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40006.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1967.
    Rehearing Denied Feb. 15, 1967.

      Billy Hall, Littlefield, for appellant.
    William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation. Appellant was originally convicted in the District Court of Oldham County for the offense of robbery by assault and sentenced to five years. Such sentence was probated, and thereafter, within the term of probation, appellant was convicted of the offense of burglary in Los Angeles County, California. Upon the completion of his term of confinement in California, appellant was returned to Oldham County, where his probation was revoked.

Appellant contends upon four grounds that the trial court abused his discretion in revoking probation:

1. No sworn application for revocation was filed in Oldham County. Reliance is had upon Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449, and McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748. While this Court did call attention to the fact that petition to revoke probation in Pollard was not sworn to by the prosecutor, we have concluded that the fundamental grounds for the reversal of that case was that the application was couched in such general terms as to give the probationer no notice of what terms of his probation he was charged with having violated.

In the case at bar the State introduced the affidavit of the Sheriff of Oldham County executed prior to the hearing on revocation, in which he swears that appellant was convicted of the offense of burglary on the 15th day of October, 1965, in the Superior Court, Department South E, Long Beach, California, and that he was then confined in Los Angeles County.

In McBee, supra, the state’s motion to revoke probation, filed during the probationary period, alleged the commission of one offense, while the proof showed another offense. In the case at bar the offense set forth in the Sheriff’s affidavit and in the District Attorney’s motion to revoke probation both alleged the California burglary conviction, and the judgment of the California Court found appellant guilty of burglary.

An examination of Section 8 of Article 42.12, Vernon’s Ann.C.C.P., fails to reveal any requirement that there be an application for revocation or that if one is made that it be sworn to by the prosecuting official. The application for revocation in the case at bar is similar to Form #2809, Willson’s Criminal Forms, 7th Edition.

2. No order had been entered setting the hearing on the application to revoke. The record before us reveals that the Court inquired of appellant as to his identity, informed him of the nature of the hearing and then inquired, “Are you ready to be heard?”, whereupon appellant’s counsel replied, “We are ready, Your Honor.” We have concluded that appellant may not be heard to complain on appeal when he indicated his willingness to proceed at the time of the hearing.

3. The Court erred in permitting the introduction into evidence of the extradition papers, because they had not been filed with the clerk or delivered to appellant prior to the hearing. Reliance is had upon the terms of Article 51.13, Sec. 3, V.A.C.C.P., and Article 3731a, Sec. 3, Vernon’s Ann.Civ.St. This is not an extradition proceeding, and therefore Article 51.-13, supra, can have no application. Article 3731a, Sec. 3, supra, provides that copies of the papers be delivered to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copies. Appellant in no way indicated that he was surprised at the introduction of the extradition papers, nor did he ask for a postponement. We find in this record that the Sheriff testified that he attended a hearing in California at which time the appellant was turned over to him, as well as the State’s motion to revoke probation, among other papers, including the Sheriff’s affidavit described above. This fact further rebuts any contention that appellant was surprised. See Foster v. Texas Department of Public Safety, Tex.Civ.App., 398 S.W.2d 836.

4. The State failed to prove that appellant was the same person who had been convicted in California. Duly authenticated records from California were introduced, among which was a picture of appellant, plus a physical description, including tatoos and missing fingers, as well as a recitation of appellant’s burglary conviction in that state. Clearly this was sufficient information to enable the Court to look at the appellant before him and conclude that he was the same person who had been convicted in California.

Finding no abuse of discretion on the part of the trial court in revoking appellant’s probation, the judgment is affirmed.


text:
    Ex parte Arnold G. HOBBS.
    No. 40069.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.

      Vernon E. Fewell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Joe S. Moss and Ted Hirtz, Asst. Dist. Attys., Houston, John J. Dillon, Atty. Gen. of Indiana, Donald R. Ewers, Asst. Atty. Gen., Indianapolis, Ind., Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an extradition proceeding.

At the hearing respondent introduced the executive warrant of the Governor of this State together with an indictment returned by the Circuit Court of Noble County, Indiana, charging relator with the crime of embezzlement and the judgment finding relator guilty and assessing his punishment at confinement in the Indiana State Prison for fifteen years and assessing a fine of $1,000.00. It was stipulated that relator was the same person named in the instrument theretofore introduced. Relator offered no evidence.

The executive warrant of the Governor of this State, which was regular on its face and which was introduced into evidence, made out a prima facie case, and it became incumbent upon relator to offer evidence to rebut the same. This he did not do.

Since, according to the statement of facts approved by relator’s counsel, the evidence was closed at the time the respondent rested, the trial court was not, nor are we, under any obligation to discuss relator’s questions of law advanced by him which did not relate to the evidence which was before the court.

The judgment is affirmed.


author: CADENA, Justice.

text:
    WAGON WHEEL CLUB, INC., Appellant, v. RESTAURANT EQUIPMENT & SUPPLY CO., Appellee.
    No. 14562.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 25, 1967.
    Michael Rizik, Phillip Palmer, San Antonio, for appellant.
    Biery, Biery, Woods & Davis, San Antonio, for appellee.
   CADENA, Justice.

This is a suit upon a sworn account filed by appellee, Restaurant Equipment & Supply Co., against appellant, Wagon Wheel Club, Inc. The County Civil Court at Law of Bexar County, sitting without a jury, entered judgment in favor of appellee for the amount of the debt, $335.31, and for $175.00 for attorney’s fees.

The only point of error in appellant’s brief complains of “the error of the Court in entering judgment for Appellee contrary to the law and facts.”

The point is too general to be entitled to our consideration. Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App., 1962, writ ref’d n. r. e.), and authorities therein cited.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    Edward R. BIRNBERG et ux., Appellants, v. Josephine B. SPARKS et al., Appellees.
    No. 250.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 29, 1966.
    Rehearing Denied Jan. 26, 1967.

      Harold Alberts, Corpus Christi, for appellants.
    Richard A. Hall, of Branscomb, Gary, Thomasson & Hall, Corpus Christi, for ap-pellees.
   OPINION

GREEN, Chief Justice.

This suit was brought by appellants Edward R. Birnberg and wife against appel-lees for an injunction, declaratory judgment and damages based on conflicting claims concerning a 10 foot wide strip of land along the rear of appellants’ home lot. At a hearing on motions for summary judgment filed by plaintiffs and defendants, the court entered its decree granting defendants' motion, and overruling plaintiffs’. This appeal is from such judgment.

Prior to July 15, 1952, Agnes Pope, a feme sole, owned a tract of land consisting of 63.289 acres in Corpus Christi, Texas. By deed dated July 15, 1952, she conveyed such tract to Jackson S. Ryan, Trustee, except that she retained to herself fee title to two parcels of land described by metes and bounds, and designated as First Tract of 3.07 acres and Second Tract of 3.62 acres. A vendors lien was retained on the property sold to secure the unpaid portion of the purchase price. The issues on this appeal particularly concern First Tract, title to which was kept by Agnes Pope, and title to which is claimed by appellees under deed from the Agnes Pope Estate, more fully explained hereafter, and a portion of the land conveyed to Ryan immediately south of said tract, designated Lot 7, Block 3, on the plat shown herein, owned by appellants.

On September 5,1952, a plat of the 63.289 acres, including the land sold and that which was retained by Agnes Pope, was filed with the County Clerk of Nueces County, and placed on record in the Map Records of said county, Volume 14, page 43. It contains signed certificates of Jack Ryan, Trustee, Agnes Pope, and of W. W. McClendon, Registered Professional Engineer who surveyed this property and prepared the plat, and approval certificates of the Director of Public Works, Corpus Christi, Texas, of the Zoning and Planning Commission of Corpus Christi, and of the County Engineer of Nueces County, Texas, and the certificate of the county clerk that the plat was filed and recorded in her office as aforesaid. The plat shows the property to have been surveyed and subdivided as Pope Place, Subdivision Unit 1. A portion of this plat containing First Tract retained by Agnes Pope and Block 3 of Pope Place, a part of the property sold to Ryan, is incorporated herein. Also shown are the description and dedication certificates of Jack Ryan, Trustee, proved to be the same person as Jackson S. Ryan, Trustee, and Agnes Pope, which accompanied and were a part of the plat. Block A shown on the plat including the area marked Alley and Planting Strip is the same property as First Tract, title to which was retained by Agnes Pope, such having been established by the affidavit of surveyor W. W. McClendon.

By written instrument filed December 5, 1952, and recorded in Vol. 574, page 442, Deed Records of Nueces County, Texas, Jack Ryan, Trustee, made reference to the plat and gave notice of the subdivision of the property purchased by him into lots and blocks with intervening streets, avenues, drives, parks, parkways and easement ways, for the purpose of creating a high-class, restricted residential section and addition. This instrument contained many restrictions and conditions concerning the use of lots in said subdivision, and provided that “Nothing in these restrictions shall be taken to apply to Blocks ‘A’ and ‘B’ designated as Retail Area which blocks are under separate ownership.” In addition to the signature and acknowledgment of Jack Ryan, Trustee, this instrument was signed and acknowledged by Agnes Pope in the following language:

“THE STATE OF TEXAS j COUNTY OF NUECES f
KN° ALL MEN BY THESE PRESENTS :
That, AGNES POPE, a feme sole, the mortgagee of the property described in the above and foregoing restrictions and known as POPE PLACE, UNIT I, an addition to the City of Corpus Christi, in the County of Nueces, and State of Texas, does hereby RATIFY AND CONFIRM in all things the foregoing limitations, restrictions and covenants affecting said POPE PLACE, UNIT I, and does, by these presents subordinate any and all liens held by her upon said property to said limitations, restrictions and covenants. And the said Agnes Pope, as mortgagee, does furthermore adopt and in all things CONFIRM the dedication of streets and avenues as shown on the plat of said Pope Place, Unit I.
IN TESTIMONY WHEREOF, witness the hand of the said Agnes Pope, a feme sole, acting herein by and through its officers hereunto duly authorized, this 4th day of December, A. D. 1952.
/s/ Agnes Pope
“THE STATE OF TEXAS \ COUNTY OF NUECES J
BEFORE ME, the undersigned authority, a Notary Public in and for Nueces County, Texas, on this day personally appeared AGNES POPE, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the said Agnes Pope and that she executed the same for the purposes and consideration therein expressed, and in the capacity therein stated.
GIVEN under my hand and seal of office, this 4th day of December, A. D. 1952.
/s/ Georgia Louise Neuner
(Seal)
Notary Public in and for Nueces County, Texas
(GEORGIA LOUISE NEUNER)”

This written instrument contains the following provisions specifically pleaded by plaintiffs:

“b. ‘9. All easements and planting strips adjacent to lots in any and all blocks may be used as driveways or for rear entrances in addition to the use of same as easements or planting strips.’
“c. T2. All improvements shall be constructed on the lots so as to front the street . except that entrances to garages on all lots may enter either from the front or side street or alley. * * * ’
“e. ‘PLANTING STRIPS. Planting strips are designated for the benefit of adjacent owners and the upkeep of them shall be the responsibility of said owners and the use or uses of same shall be granted to abutting owners for the same purposes as set out for easements.’ ”

Appellants own as their home Lot Seven (7) Block Three (3) Pope Place, Unit No. 1, and the rights and appurtenances thereto in anywise belonging. The deed dated October 12, 1953, by which they secured title made reference to the map recorded in Volume 14, page 43, map records of Nueces County for more particular description. See plat incorporated here for location of this lot within the bounds of the property conveyed to Jack Ryan, Trustee, and for its relation to First Tract, or Block A, and to the Planting Strip.

Prior to the purchase of this lot by appellants, Jack Ryan, Trustee, and Agnes Pope caused to be erected a wooden fence which ran along the southeast, south and southwest sides of the 20 foot area marked Alley on the plat, which fence except for damage to it during hurricane remains standing. The construction of this fence was alleged as a fact in appellants’ sworn petition, and confirmed by appellees in their answer, in which they ask for order of the court permitting them to remove same.

Appellees are the owners of Block A except Lot 12, having acquired title from the Agnes Pope estate by deed dated February 8, 1965 to “All of Block ‘A’, Pope Place Unit 1, Save and Except Lot No. Twelve (12), a subdivision of the City of Corpus Christi, Texas, according to the map or plat thereof, recorded in Volume 14, page 43, Map Records of Nueces County, Texas”, which deed further states “This grant is made expressly subject to any valid and subsisting restriction which may now be outstanding of record against said property.”

Appellants in their sworn pleadings alleged their title to Lot 7, Block 3, and plead easement and user rights in the planting strip and alley by virtue of the recorded plat and the covenants contained in the written instrument filed December 5, 1952, executed by Ryan and Agnes Pope and heretofore referred to. They alleged that appellees threatened to remove the fence separating the alley from the planting strip, and replace it between appellants’ north line and the south edge of the planting area, thus depriving appellants of access to or use of said 10 foot strip. They sought a declaratory judgment as to their beneficial rights in said 10 foot strip, and an injunction enjoining appellees from exercising control over the planting strip and from depriving appellants of the rights to use same, from moving the fence, and for damages. By supplemental petition sworn to by plaintiff Edward R. Birnberg they alleged limitation title to such 10 foot strip adjoining their lot by reason of the 3, 5, and 10 year statutes. In a second supplemental petition, sworn to by appellants’ attorney, they plead estoppel against the heirs, dev-isees, assignees and grantees of Agnes Pope by reason of the deed restrictions and conveyance by reference to said plat and restrictions to deny the right of user of said planting strip to appellants; and also that the alley is the dividing line between Block A and Block 3. We consider this second supplemental petition as a pleading only, and not as evidence, since it does not contain statements of facts which the affiant would be qualified as a witness to substantiate on a trial of the case. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

Appellees answered pleading their title to Block A, including the area marked planting strip and alley, except Lot 12, and affirmed their intention, subject to the order of the court, to remove the fence to the north boundary of appellants’ lot.

The trial court in granting appellees’ motion for summary judgment decreed that appellants (plaintiffs) recover nothing by reason of their various claims, and that as to such claims appellees go hence without day; he further adjudged that the property retained by Agnes Pope in her deed to Ryan is not subject to the terms, provisions, dedications, restrictions or provisions for easements contained in the instrument executed by Jack Ryan, Trustee November 18, 1952 and acknowledged by Agnes Pope as mortgagee December 4, 1952, heretofore mentioned in this opinion, and that appellees are entitled to move, remove or rebuild any fence or fences located on the platted planting strip shown on the plat a portion of which is incorporated herein.

Appellants’ first point of error is to the effect that the trial court erred in refusing their motion and in granting appellants’ motion for summary judgment because of their pleading and proof of limitation title. Appellants offered no evidentiary facts sufficient to establish a limitation title, or even raise a fact issue, although the burden was on them to do so. There was neither allegation nor evidence as to when appellants moved onto Lot 7, or when they commenced making it their home, or how long they had occupied same. There was no factual evidence of any occupancy of or use of the planting strip at any time, nor was there any clear and satisfactory proof of a claim thereto adverse to the rights of others. Their first supplemental petition sworn to on personal knowledge by plaintiff Edward R. Birnberg states mere legal propositions and conclusions in the words of the appropriate statutes. For example, their sole evidence of a ten year limitation title is the allegation, after describing the strip,

“ * * * they have had peaceable, continuous and adverse possession of such lands and tenements, cultivating, using and enjoying the same for more than ten (10) years after Defendants’ alleged cause of action accrued or their Grantors’ cause of action accrued and before the commencement of this suit, during which period these Plaintiffs have had such lands and tenements actually enclosed.”

The statements of their claims under the three and five year statutes are equally general.

The terms “peaceable”, “continuous” and “adverse possession” are legal conclusions, and although permissible under the statute as pleadings, they are required to be sustained by evidence of facts. Orsborn v. Deep Rock Oil Corp. et al., 153 Tex. 281, 267 S.W.2d 781, 787; Cook v. Winter, Tex.Civ.App., 207 S.W.2d 145, writ ref. n. r. e. An affidavit based on legal conclusions and containing insufficient fact testimony to raise an issue of fact will not warrant the overruling of opponent’s motion for summary judgment. Rule 166-A(e); Box v. Bates, Tex.Sup.Ct., supra. Appellants’ first point is overruled.

Appellants in their second, third, fourth, and fifth points of error and the statements and arguments thereunder assign as error of the trial court in overruling their motion for summary judgment, and in granting appellants’ motion the propositions of estoppel of appellees as grantees from Agnes Pope to deny their rights in the planting strip; of the plat making the alley the dividing line between Block A and Block 3; and of easement rights in said strip being acquired by reason of the deed restrictions and covenants and the recorded plat. We shall first consider these points and the statements and arguments thereunder as they bear on the assigned error of the court in granting ap-pellees’ motion for summary judgment.

The affidavit of W. W. McClendon, the surveyor who surveyed and platted Pope Place Subdivision Unit No. 1, established without controversy that the area designated Planting Strip and Alley on the plat were within the boundaries of First Tract, title to which was retained by Agnes Pope. Hence any easement or rights of user to such areas which plaintiffs-appellants may have secured by reason of the recorded plat and the restriction covenant document would have to come to them by virtue of the actions of Agnes Pope, since Ryan acting alone could not convey any rights to property not owned by him.

The burden of proving that there was no genuine issue as to a material fact was upon appellees, and all doubts as to the existence of such genuine fact issue must be resolved against appellee, the movant for summary judgment. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., Tex., 391 S.W.2d 41.

The evidence discloses that Agnes Pope and Jack Ryan, Trustee, acted together in the matter of developing this property from acreage to a fully platted subdivision. She sold the land to him, keeping title to two tracts totalling 6.69 acres in herself, and retaining the vendors lien on the property sold. Ryan’s land was to be developed as choice residential property, while her parcels were relieved of such restrictions so that they could be sold as retail business property. All of the property of both parties was surveyed by McClendon and platted together on the one map, and Ryan’s land and Agnes Pope’s land as so platted became Pope Place, Subdivision Unit No. 1. All parties to this suit depend for their asserted rights on the same plat, recorded in Volume 14, page 43, Map Records of Nueces County, Texas. The certificates of Jack Ryan as owner of Pope Place except Blocks A and B, and of Agnes Pope as owner of Blocks A and B and mortgagee of the remainder of Pope Place as written and acknowledged on the plat have already been copied herein. Lots 1 to 11 inclusive, Block A as platted abut to the south and southeast on a 20' wide area marked Alley; and a broken line shown by the evidence to be a fence placed there by Ryan and Agnes Pope separates the alley from a 1CK wide area designated Planting Area. This last strip lies adjacent to Block 3 of Ryan’s property, and to Lot 7 owned by appellants.

The certificates of Ryan and of Agnes Pope on the plat each refer to restrictions and dedications dated September 5, 1952. The record contains no instrument of that date; however it does contain the document heretofore mentioned executed by Jack Ryan Trustee on November 18,1952 and by Agnes Pope on December 4, 1952, and recorded in Volume 574, page 442, Deed Records, Nueces County, Texas. This instrument expressly refers to use by abutting owners of easements and planting strips in the language heretofore quoted. Since there are only two areas in the plat of Pope Place marked for use as planting strips, and both are on the boundary line and within the areas retained by Agnes Pope, one in Block A and the other in Block B, these are of necessity the planting strips to which the instrument referred. The southerly edge of the area marked Alley in Block A adjoins the planting strip, and is separated from it by the heretofore mentioned fence, so it is a fact issue as to whether or not the term “abutting owners” as used in the document referred to owners of lots in Block 3. Neither Block A nor Block B as subdivided on the plat have any lots abutting on the planting strips shown therein.

It is well settled that if one owning land exhibits a map of it on which a street, park, alley or other easement way is clearly defined, and building lots be sold by him with reference to a location on such street, park, alley or other easement, this operates as an immediate dedication, and such place becomes charged with servitude incident to such easement. Dykes v. City of Houston, Tex., 406 S.W.2d 176, 181; Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849; Manziel v. Railroad Commission, Tex.Civ.App., 197 S.W.2d 490, writ ref. As stated in Judge Pope’s concurring opinion in Dykes, supra, the purchasers of the lots have rights with reference to the plat which are not shared by the public at large.

It is stated in Drye v. Eagle Rock Ranch, Inc., Tex.Sup.Ct., 364 S.W.2d 196, 209, that the owner of land under some circumstances may be estopped to deny the existence of an easement by making representations which have been acted upon by a purchaser to his detriment; and estoppel in pais is not necessarily dependent upon a dedication, and may arise and exist independent of it, citing Harrison v. Boring, 44 Tex. 255 at page 266; Wolf v. Brass, 72 Tex. 133, 12 S.W. 159; 3 Tiffany Real Property (3rd ed.) 312 et seq., Easements § 800. See also City of Dallas v. Crow, Tex.Civ.App., 326 S.W.2d 192, on rehearing, 197, writ ref. n. r. e.

It is true, as stated by appellees, that appellants did not buy their lot from Agnes Pope, and that their grantor did not own the land upon which the easement is alleged to exist. Appellees further argue that the restrictive covenant agreement by its very terms did not apply to Block A. However, since we are passing upon a summary judgment, and are determining whether the trial court’s construction of the plat and written document as a matter of law is correct, and that no fact issues exist which could cause it to be construed more advantageously to appellants, we must consider the actions and intent of Agnes Pope in the light most favorable to appellants. Considering the joint actions of Ryan and Agnes Pope as heretofore stated, and all other facts and circumstances in evidence, we find that genuine fact issues do exist concerning the intent of Agnes Pope with reference to the platting of her property in question, and the matter of estoppel of appellees as grantees who purchased their property with express reference to the plat in question and subject to any valid, subsisting restrictions which may have been outstanding of record against the property from denying the asserted rights of appellants to use of the planting strip.

It may be conceded that the restrictive covenant is capable of the interpretation placed on it by the trial court. We feel that reasonable minds, considering all of the evidence, might also reach a different construction. In forming our conclusion as to the existence of fact issues, we consider among other factors the following: Agnes Pope is the common source of title to all parties to this suit; the close cooperation with and joint action with which she and Jack Ryan Trustee worked to get this property platted and placed on the market as one subdivision evidenced by one duly recorded plat; the fact that she presumably knew that residential lots in Pope Place Subdivision Unit No. 1, and particularly lots in Block 3 adjoining the planting area would be sold by reference to the recorded plat; the fact that appellants’ property was bought by reference to the plat, as also was appel-lees’ property; the fact that the wooden fence was constructed with her agreement on the southern and southeastern edge of the area marked Alley so as to leave a 10 foot strip of her property between the alley and the property line of Block 3 and was so platted on the map; all other facts as shown by the plat of Block A; the fact that paragraph 22 of the restrictive covenant agreement provided only that nothing in the restrictions shall be taken to apply to Blocks A and B, designated as Retail Area under separate ownership, and, since the restrictions under the subhead containing such paragraph dealt with residential use as distinguished from business use, it could have been intended that paragraph 22 referred only to such nonbusiness use restrictions. We find such interpretations feasible especially since under the heading “Planting Strips” it was provided that “Planting strips are designated for the benefit of adjacent owners and the upkeep of them shall be the responsibility of said Owners and the use or uses of same shall be granted to abutting owners for the same purposes as set out for easements. All subject to other uses and restrictions as may be set out elsewhere herein.” As shown by the plat, there were no lots in Block A which abutted on the area designated Planting Strip. Although Agnes Pope signed and acknowledged this document as mortgagee, she was at the same time owner of Block A) and presumably knew that the references to the planting strip necessarily concerned her property. We feel that due to the evidence concerning her relationship to and involvement in all of Pope Place Subdivision Unit No. 1, a fact issue exists as to whether she and her grantees are bound by the provisions concerning the easements and planting area abutting the property of appellants.

We hold that the record does not show as a matter of law that Agnes Pope, when she executed her certificate attached to the recorded plat and executed and acknowledged the written document in evidence did not intend that purchasers of lots in the same position as appellants acquired no easement rights in the adjoining area denoted “Planting Strip”; nor does it establish as a matter of law' that she, her heirs or assigns should not be estopped from denying the appellants such rights.

The trial court erred in granting appel-lees’ motion for summary judgment. Due to the presence of material fact issues, appellants’ motion for summary judgment was properly overruled.

Judgment reversed and remanded.


author: WILSON, Justice.

text:
    PACIFIC COAST ENGINEERING COMPANY, Appellant, v. TRINITY CONSTRUCTION COMPANY, Appellee.
    No. 4550.
    Court of Civil Appeals of Texas. Waco.
    Jan. 5, 1967.
    Rehearings Denied Jan. 26, 1967.

      Karl E. Kraft, Bobbitt & Kraft, Houston, for appellant.
    Barrow, Bland, Rehmet & Singleton, T. Watt Murrah, Houston, for appellee.
   OPINION

WILSON, Justice.

Plaintiff appeals from a judgment for defendant rendered after the trial court sustained the latter’s motion to disregard a jury finding. We reverse.

Defendant, Trinity Construction Company, entered into a contract requiring fabrication and installation of hydraulically operated slide gates to control outlet of water from the Canyon Dam reservoir. By subcontract, plaintiff, Pacific Coast Engineering Company, fabricated the gates. The price to be paid Pacific by Trinity was $233,800. All of it was paid except 10% retained by the Government. The gates were installed by Trinity. Plaintiff alleged one of them was improperly installed; that parts of the gate were returned to it by Trinity for reconditioning. Pacific sued Trinity for the $23,380 balance due on the fabrication contract, the value of its reconditioning work, expenses and attorney’s fees.

Trinity answered that Pacific had failed to perform its contract to fabricate one of the gates in accordance with the specifications, and this failure was the sole cause of the damage to the gate, resulting from a malfunction when the gate was first tested, which necessitated the reconditioning work and expenses. It filed a cross-action alleging the gates had been installed by it in accordance with plaintiff’s recommended procedure, but the gate had been damaged in the field test; that plaintiff refused to repair the gate and defendant incurred costs and expenses resulting, for which it sued.

The jury answered “we do not” to an issue asking whether it found from a preponderance of the evidence that Pacific fabricated the gate in accordance with the plans and specifications. It answered a second issue inquiring whether it found from a preponderance of the evidence that the failure to so fabricate resulted in the failure of the gate, “we do not”. The court disregarded the second finding upon Trinity’s motion which asserted there was no evidence supporting it, overruled Pacific’s motion for judgment on the verdict, and rendered judgment that Pacific take nothing and Trinity recover its expenses, as found by the jury, incurred as a result of the failure of the gate. Pacific waived its motion for new trial, and its points complain of the sustaining of the motion to disregard the second finding, and rendition of judgment thereafter contrary to Pacific’s, motion for judgment on the verdict.

Trinity’s basic position is that the first jury answer (failing to find from a preponderance of the evidence that Pacific fabricated the gate according to plans and specifications) required rendition of a take-nothing judgment against Pacific, irrespective of the second answer. Its argument is that since Pacific was seeking recovery on a contract, proof and finding of complete performance as the plans and specifications required was a prerequisite to recovery.

We do not agree. The evidence establishes that the plans and specifications called for some extremely minute tolerances and clearances of decimal dimensions, and specified others as large as ⅛". It is undisputed that in the completed gate there were three variances from the designed clearances specified. But it is without question that Pacific commenced and completed fabrication of huge expensive and complex mechanisms which were, or could be made functionally operational at relatively small cost; and that Trinity paid 90% of the contract price therefor. The evidence establishes that Pacific substantially performed the contract, despite the fact that it did not strictly meet every specified clearance requirement with perfect and unerring exactitude. The jury was obviously justified in failing to find that Pacific manufactured in accordance with the plans and specifications. -As the issue was worded, any other answer would be difficult to rationalize. Admittedly there was some nonconformity, which the jury failed to find caused damage.

But Pacific was not required to show undeviating conformity to specifications in order to recover. In Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208, 213, the Supreme Court said, “Such precision cannot, we think, be demanded in the performance of . contracts, or any other affair of life.” The Court adopted the rule that if there is a substantial fulfillment, “the builder should be entitled to receive the reward of his labor” and it should be considered as a full performance as regards the builder’s right to recover on the conrtact.

The measure of the contractor’s recovery, where there is such substantial performance, “is the contract price, less the reasonable cost of remedying the defects or omissions in such way” as to make the work conform to the contract. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 850, 38 A.L.R. 1377; Garland Grain Company v. Bailey, Tex.Civ.App., 393 S.W.2d 945, 948, writ ref. n. r. e., and authorities cited.

Trinity urges the rule in Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061, 1066, 106 S.W. 876, 22 L.R.A.,N.S., 364, and cases which follow it. The decision (where the contractor failed to complete after the work collapsed because of alleged defects in the plans and specifications) fixes the party upon whom the loss falls if a structure is destroyed before completion of the contract, regardless of the cause, unless by the owner’s wrong. The rule is not applicable to this case.

The jury failed to find that any omission by Pacific to manufacture the gate in accordance with the plans and specifications resulted in the failure of the gate. It should be remembered that a negative answer to issues 1 and 2 prefaced by the words, “Do you find from a preponderance of the evidence” means only that the jury failed to find the matters inquired about from a preponderance of the evidence. C. & R. Transport, Inc. v. Campbell (Tex.Sup.1966), 406 S.W.2d 191, 194.

The case at this juncture, as it stood before the court on motions for judgment and to disregard the second finding, was (a) the jury failed to find the gate was built in accordance with plans and specifications; (b) the undisputed evidence established substantial compliance with the plans and specifications by Pacific; (c) the jury failed to find that any omission to meet the plans and specifications caused the failure of the gate. In this posture Pacific was entitled to recover the undisputed balance due on the contract, less necessary remedial expense. Trinity then says the second answer concerning causation is without support in the evidence. In our opinion there is evidence in the record to support the negative answer to the second issue.

Trinity’s expert engineer witness testified that in his opinion there were three combined causes for the failure of the gate and its consequent damage: (1) failure of Pacific to machine a protruding brass seal flush with the gate leaf, (2) a .068" displacement of the gate stem to one side, (3) “excessive metal left on” adjacent to a “bonnet” guide. There is additional evidence in the record which would have supported an affirmative, rather than a negative answer to the second issue.

There is evidence of probative force in the record, however, which supports the conclusion that other causes — not the failure to comply with plans and specifications in all respects — induced the functional failure of the gate. There is testimony that there was no grease or other lubricant applied by Trinity at “the lantern ring” at the water seal within a stainless steel sleeve where the damage to the gate occurred, although lubricant was required by the specifications: The “packing and the lantern ring were as dry as a bone”. The friction between monel and stainless steel without lubrication, the testimony was, “is the crux of the reason for the damage.”

There was proof and admission that Trinity did not level and plumb the gate “bonnet” vertically, nor align the structural units with shims in installation, as the specifications required; and that it made no attempt “to determine the alignment of the gates before or after concrete was poured, notwithstanding the designed clearances involved were .004" and .0125" between the “gate leaf stem” and the oil and water glands or seals. There was evidence the installation by Trinity resulted in misalignment of the gate frame and “bonnet” so that the guides were not in the same plane, and the gate frame was “tipped” at an angle or "dogleg” to such an extent that the jury was authorized to decide, in view of the microscopic tolerances, that the misalignment produced the damage.

Pacific adduced evidence that the lower gate stem nut had been installed by Trinity tight against the gate leaf, and the leaf was rigidly and inflexibly attached rather than sufficiently loose to permit movement of the stem. There is evidence from which the jury could properly deduce that except for this improper installation enough clearance would have remained despite fabrication variance to avoid malfunction and damage. We do not interpret the record, as does Trinity, that the court sustained objection to the entire answer of one witness concerning this matter; nor do we agree that this answer is entitled to less weight, or none, because it came on rebuttal.

The damage issues submitted were not predicated on causation; they inquired only as to the reasonable value of necessary expenses incurred by Pacific and those incurred by Trinity as a result of the failure of the gate. There is consequently no basis for ascertaining the liability vel non of the parties for the damages or remedial expense, whether the answer to the second issue be given effect or disregarded.

Pacific, as contractor, had the burden “to furnish the evidence to properly measure the deductions allowable necessary to remedy the defects and omissions” resulting from failure to comply literally with plans and specifications. Atkinson v. Jackson Bros., Tex.Com.App., 270 S.W. 848, 851; and to obtain a jury finding thereon. We believe we are not authorized to render judgment for Pacific for the amounts of expense and attorney’s fees found by the jury and the balance due on the contract price, since there is no finding as to causation, and no waiver of the ground of recovery under Rule 279, Texas Rules of Civil Procedure. The presumed finding provision of that Rule is not applicable here because the trial court was not authorized to make findings in support of a judgment which should not have been rendered. There is no factual determination of the basis for determining what portions of Pacific’s repair expense, if any, is attributable to defects in fabrication.

Although the damage issue on Trinity’s cross-action for expenses incurred because of failure of the gate evoked a jury finding as to amount, it did not afford a basis for determining a right to recovery. It would be necessary for us to conclude further that an affirmative answer to the second issue is required as a matter of law. That conclusion is not justified.

In this state of the record, since the case was not fully developed and was tried and submitted on an erroneous theory, we believe the holding in Atkinson v. Jackson Bros., above that “it is equitable to reverse and remand” the case should be applied.

Reversed and remanded.


text:
    William T. PIERCE et ux., Appellants, v. SOUTHERN PACIFIC COMPANY et al., Appellees.
    No. 4583.
    Court of Civil Appeals of Texas. Waco.
    Jan. 5, 1967.
    Rehearing Denied Jan. 26, 1967.
    Moore & McCarty, Ennis, for appellants.
    W. T. Satterwhite, Ennis, Jackson, Walker, Winstead, Cantwell & Miller, D. L. Case, Dallas, Forrester Hancock, Waxa-hachie, for appellees.
   OPINION

WILSON, Justice.

Plaintiff appeals from an order sustaining defendants’ plea in abatement and dismissing the action on the ground plaintiff had no justiciable interest in the subject matter of the litigation. We affirm.

Plaintiff plead that in 1947 defendant Southern Pacific Company, as owner, dedicated a two-block area of its right-of-way in the City of Ennis for park purposes and as a public memorial to its employees who died in World War II; that Southern Pacific purchased and erected a monument, and named the park for plaintiff’s son who was the first war casualty among its employees; that the park and monument were intended to be a memorial to plaintiffs son and others who sacrificed their lives in the war; that plaintiff had attended dedicatory exercises before a large audience at the railroad’s invitation, and the park and monument had “a special place in plaintiff’s heart and life,” and “sacred memories were awakened in viewing the spot where the memorial stood and where the park was located.”

It was alleged the railroad and other defendants were using the park for purposes inconsistent with the dedication by removing grass and trees and replacing them with gravel and scrap roofing material, alleged to constitute a nuisance; that they were using portions of the park site for a used car and parking lot; and that they had removed the monument to another location in the park. Plaintiff pleaded in the alternative that she asserted a right of action as a class representative. Injunction was sought restraining the sale or use of the area for any other than park purposes. There was evidence indicating that the City of Ennis took no formal action on plaintiff’s invitation to join as party plaintiff in the action.

Plaintiff relies, as authority for the right to assert the action, on a series of cases applying the injunctive remedy to an inconsistent use of property devoted to cemetery purposes. In the cases cited, however, the cemetery was owned by private associations, or plaintiffs were trustees or owners of private property rights in the cemetery. These decisions have no application here, where the land is alleged to have been a public park and plaintiff admits there are no property rights involved.

It is undisputed and admitted on oral argument that plaintiff has no private property right in the land in controversy; that no property damage is involved; that there is no invasion or deprivation of any right apart from that suffered by the public generally. The only right involved is the right to the use and enjoyment of the park and to have it maintained as a public memorial. This right does not differ from that of the general public. The applicable test of plaintiff’s right to bring the action is whether the right sought to be preserved is shared in common with the public. No action “lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself.” City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 and see cases cited, Scott v. Board of Adjustment, Tex.Civ.App., 393 S.W.2d 837, at p. 839, reversed on other grounds, Tex.Sup., 405 S.W.2d 55.

It may well be that plaintiff has a sentimental or emotional interest in the subject matter which exceeds in degree and intensity that of many other members of the public. With this interest the trial court was doubtless sympathetic, as are we, but, as held in San Antonio Conservation Soc. v. City of San Antonio, Tex.Civ.App., 250 S.W.2d 259, 264, writ refused: “It is the nature of the wrong, injury or damage which controls and not the extent.”

Appellant apparently sought to act as class representative of nine other mothers, the names of whose sons appear on the monument. These, of course, have no greater justiciable interest than appellant. Other individual citizens of the City of Ennis for whom appellant may have purported to act as class representative are subject to the same rules applied above, and their status was not alleged to be such as would confer additional authority on plaintiff to bring the suit for them.

An action such as this, under the circumstances alleged, may only “be brought by the lawfully constituted guardian or guardians of the public interest.” City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754. We cannot discard a settled rule merely because it dictates a result which may seem harsh to a single litigant.

Appellant’s points are overruled.

Affirmed.


author: McDONALD, Chief Justice.

text:
    READER’S WHOLESALE DISTRIBUTORS, INC., Appellant, v. Phillip HANDEL, d/b/a S & H Refrigeration & Air Conditioning Co., Appellee.
    No. 4560.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1966.
    Ross, Banks, May & Cron, John A. Cavin, Houston, for appellant.
    Phillip Handel, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff, Reader’s, Inc. from a take-nothing judgment against defendant Handel, in a suit on a sworn account.

Plaintiff sued defendant on a sworn account for $4,109.94 for air conditioners sold to defendant. Defendant denied the account under oath, and asserted he was not indebted to plaintiff.

Trial was to the court without a jury which entered judgment that plaintiff take nothing. The trial court filed findings and conclusions pertinent of which follow:

FINDINGS OF FACT
1) Plaintiff negotiated the sale and sold the air conditioning units to the owners of Graustark Apartments.
2) Plaintiff knew at the time of negotiation and at the time of sale that defendant was acting as serviceman for installation of the units sold to the owners of the apartments.
3) Defendant at the times prior and subsequent to the sale of the units, disclosed to plaintiff he was acting for the owners of the apartments.
4) Defendant was never an authorized dealer of plaintiff.
5) Plaintiff had numerous conferences directly with the manager of Grau-stark Apartments for financing and payment of the air conditioning units.
6) Plaintiff, prior to sale, never checked the credit standing of defendant.
7) Plaintiff, prior to the sale, never extended credit to defendant except through credit balances which defendant had aquired for his labor on warranty replacements of defective air conditioners.
8) Plaintiff relied solely on the representation of the owners of Graustark Apartments that the air conditioners would be paid for before making delivery.
9) Plaintiff knew at all times that defendant was acting for the owners of Graustark Apartments.

The trial court concluded that defendant was not personally liable to plaintiff.

Plaintiff appeals, contending there is no evidence to support the trial court’s findings 1, 2, 3, 5, 6, 8 and 9, and that same are against the weight and preponderance of the credible evidence.

Plaintiff is a wholesale distributor for Westinghouse. Defendant is an installer and servicer of air conditioning equipment. Graustark Apartments were equipped with Westinghouse air conditioners which defendant had been servicing. Plaintiff agreed to repair some of the equipment, and defendant received money for taking the air conditioners out of the apartments, and reinstalling them after they were repaired. Defendant made certain repairs on some of the equipment, and the manager of Graustark Apartments furnished the money to pay plaintiff for parts used in such repairs. Thereafter, Graustark Apartments needed 19 new air conditioners; defendant talked to plaintiff about such situation, and plaintiff delivered the air conditioners to Grau-stark Apartments, but billed same to defendant. Plaintiff has never been paid for the air conditioners.

Plaintiff’s manager testified that defendant admitted owning the account, and plaintiff billed the air conditioners out as “sold to” defendant.

Defendant testified he “never agreed to pay for these. I never had any credit at Reader’s. I never assumed any liability for these air conditioners”; and the understanding was between plaintiff and defendant that the “financing was supposed to have been between plaintiff and Graustark.”

The record reflects defendant was not to make a profit off the sale, but was to receive only labor charges of $10 per unit for installing them.

There is evidence that plaintiff negotiated directly with the apartment owners, and that there was discussion of the owners executing a note calling for payments to plaintiff; and that plaintiff wrote the apartment owners requesting payment, and threatening suit unless payment be made.

Plaintiff’s sworn account was denied under oath by defendant, thus plaintiff was put to proof of its claim by legal and competent evidence. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325; Marr v. Craddock, Tex.Civ.App., 406 S.W.2d 278.

The trial court believed the evidence favorable to defendant, and we think such evidence ample to sustain the trial court’s findings and judgment.

All plaintiff’s points and contentions are overruled.

Affirmed.


text:
    The CITY OF HOUSTON et al., Appellants, v. WESTERN EQUIPMENT RENTALS, INC., Appellees.
    No. 4553.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1966.
    William A. Olson, City Atty., Ralph A. Keen, Asst. City Atty., Houston, for appellants.
    Boone & Cox, Houston, for appellees.
   OPINION

WILSON, Justice.

Appellant sued appellee corporation for taxes alleged to be delinquent. After trial without a jury the court rendered a judgment that appellant take nothing. We affirm.

Appellant’s evidence consisted of a certified copy of a “delinquent tax statement” apparently purporting to show taxes due by appellee on construction equipment for the years 1960-1964 in specified amounts; and testimony concerning attorneys’ fees. Appellant’s charter provides that a certified statement of the taxes due on any property made from the tax rolls shall be prima facie evidence that the tax is due, and that prerequisites pertaining to levy and assessment have been complied with.

The evidence of appellee was that its home office was in another county, although various pieces of equipment owned by it were in Houston at intervals during the tax years involved. There was evidence that the manager of the corporation lived and officed in Houston, where lease records and bank accounts were kept, and lease payments were made; that equipment was usually returned to Houston when it was removed from a job, and was repaired there.

There are no findings of fact, and the basis for the trial court’s judgment is not stated. Appellee suggests no tenable ground in support of the judgment. If it is to be sustained it must be on the basis that the property has not been assessed in the county “where situated” as required by Art. VIII, Sec. 11, Texas Constitution, Vernon’s Ann.St.

Tangible personal property, under this provision, is taxable at the domicile of the owner unless it has acquired a situs for taxation elsewhere. Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778, 781. At common law personalty was taxable only at the domicile of the owner, regardless of its actual location, and “This is still the basic principle upon which the taxation of personal property rests”, said Chief Justice Cureton in that case.

Under the constitutional provision, the words “where situated” do not by their own force determine the situs of personalty to be where it is physically located. City of Dallas v. Texas Prudential Insurance Co., 156 Tex. 36, 291 S.W.2d 693, 695. But the actual situs for taxation of “certain classes” of tangible personal property has been determined to be “where they are permanently kept.” Great Southern Life Ins. Co. v. City of Austin, id., 781, syl. 12. See State v. Crown Central Petroleum Co., Tex.Civ.App., 242 S.W.2d 457, writ ref.; City of Dallas v. Overton, Tex.Civ.App., 363 S.W.2d 821, 825, writ ref. n. r. e.; 84 C.J.S. Taxation § 115, pp. 224, 225; 110 A.L.R. pp. 707, 717; Cooley, Taxation, (4th ed.) Sec. 452; 6 Baylor L.Rev. (1954) 324, 327.

The trial court’s implied findings that the corporation was domiciled in another county, and the property was not located or kept in the taxing districts with the requisite degree of permanency support the judgment. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643, syl. 1.

Affirmed.


author: TIREY, Justice.

text:
    Carmen DeCATO, Appellant, v. KREBS CONSTRUCTION, INC., et al., Appellees.
    No. 4555.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1966.
    Rehearing Denied Jan. 12, 1967.

      Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellant.
    Barrow, Bland & Rehmet, R. F. Wheless, Jr., Sam L. Sterrett, Jr., Carl Rector, Houston, for appellees.
   TIREY, Justice.

Carmen DeCato has appealed from the order dismissing his application to file a plea of intervention in a suit filed on the 16th day of June, 1964 by Krebs Construction, Inc., and C. P. K. Development Company against International Realty & Leasing Corporation, and J. A. B. S. Equities, Inc., to recover $45,000.00 held in escrow by American Title Guaranty Company. The escrow funds were designated earnest money deposits provided for under three separate contracts, copies of which were attached to plaintiffs’ original petition. The defendants, International Realty and J. A. B. S. Equities, Inc., were the only parties to file answers. Each answer consisted of a general denial. No answer was filed by American Title Guaranty Company, it being agreed that such company would pay the funds in escrow in accordance with the Court’s judgment. De-Cato’s original plea for intervention was filed on the 19th day of February, 1965. In this plea his grounds for recovery were: “Intervenor would show to the Court that the various amounts of money involved in this suit sought by the plaintiffs and held by American Title & Guaranty Company are in truth and fact funds of this in-tervenor, and for which intervenor should have judgment against all of the defendants in intervention.” On the 17th day of January, 1966 the court sustained plaintiffs’ exceptions to DeCato’s plea of intervention, and the order provided: “Carmen DeCato, is hereby given thirty (30) days from January 17, 1966 to amend his petition in intervention, in default of which such petition will be stricken by the court.” Intervenor’s second amended petition was filed on the 14th day of March, 1966. On the 14th day of March, 1966 the court entered an order wherein it decreed that the plea of intervention should be stricken and dismissed DeCato as a party to the cause, to which intervenor excepted and objected. This order was entered on the 22nd day of March, 1966. Thereafter on the 28th day of March, 1966 the cause proceeded to trial and in the judgment we find this recital : “that the facts and the law are with the plaintiffs, and that the plaintiffs should have judgment against the respective defendants as prayed for, on the agreements sued upon and attached to the petition of plaintiffs.” And the court decreed that the Krebs Construction, Inc., have judgment against International Realty & Leasing Corporation in the sum of $14,000.00, and against American Title Guaranty Company for a certain note placed in escrow for $14,000.00, and American Title Guaranty Company was directed to endorse and deliver such note to Krebs Construction, Inc. The judgment further provided that Krebs Construction, Inc., have judgment against J. A. B. S. Equities, Inc., for the sum of $15,000.00, and against American Title Guaranty Company for $15,000.00 deposited in escrow with such company; and further decreed that the plaintiff, C. P. K. Development Company have judgment against International Realty and Leasing Corporation in the sum of $16,000.00, and against American Title Guaranty Company for the sum of $16,000.00 deposited in escrow with such company and adjudged all costs against defendants jointly and severally. There was no appeal from this judgment and it became final.

The order of dismissal is assailed on three grounds. They are substantially to the effect:

(1) The court erred in dismissing appellant’s pleas;
(2) The court abused its discretion in so doing;;
(3) The court erred in denying DeCato' the right to introduce evidence and cross-examine witnesses and participate in the case.

We affirm.

After a careful review of this record we are of the view that it shows that appellant-intervenor, Carmen DeCato, did not allege a cause of action showing that he was entitled to make a recovery in this cause or defend same in his own right and he was not a proper party to this suit. DeCato was not a party to the contracts sued upon and did not plead any facts setting forth any legal right on which he could base a claim in his own name or in his behalf. Plaintiffs’ suit was against corporations and DeCato’s allegation that he was entitled to the funds is only a legal conclusion. Our view of DeCato’s allegation is to the effect that the facts alleged by him (assuming without deciding that they were true) show that his status is that of one of several remote investors in these defendant corporations and that no privity of contract or right of action upon these contracts existed in his behalf or in his own name. The defendant corporations sued had made an appearance and had attorneys of record who filed answers in their behalf. We think the trial court did not abuse its discretion in dismissing the plea of intervention. See Watkins v. Citizens’ National Bank, 53 Tex.Civ.App. 437, 115 S.W. 304 (n. w. h.), January 14, 1909; Stansell v. Fleming, 81 Tex. 294, 16 S.W. 1033 (June 1891); Burditt v. Glasscock, 25 Tex.Supp. 45 (1860). In the Burditt case we find this statement:

“There was no privity between him and the plaintiff. His right of action against the defendant, if he have one, is upon an independent contract between himself and the defendant, distinct from that between the plaintiff and defendant on which the suit was brought. That cannot give him a right to intervene between the parties to this suit.”

It is well settled that the court on sustaining exceptions has a right to refuse further leave to amend and can dismiss. This rule was announced by our Supreme Court in City of Fort Worth v. Gilliland, 140 Tex. 616, 169 S.W.2d 149 (March 31, 1943), Comm. of Appeals, opinion adopted. See also Texas Rules of Civil Procedure, Rules 63 and 166.

Each of appellant’s points have been considered, and each is overruled.

The judgment is modified to provide that the dismissal is without prejudice to appellant’s right to file such suits as he deems necessary for his protection, and as modified, is affirmed.

All costs of appeal are taxed against appellant.