author: RICHARDS, Justice.

text:
    Juan D. GALAVIZ, Appellant, v. C. H. LANGDEAU, Receiver of Highway Insurance Underwriters, Appellee.
    No. 10903.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1961.

      Richard Kaufman, Arthur Mitchell, Austin, for appellant.
    Cecil C. Rotsch, F. William Colburn, John R. Grace, Austin, for appellee.
   RICHARDS, Justice.

Suit was brought by Juan D. Galaviz, appellant, against C. H. Langdeau, Receiver of Highway Insurance Underwriters, appel-lee, to recover the value of a 1955 Mack truck, Motor No. END 673-4897, which was destroyed by fire in Milam County on or about January 13, 1957 and which had been insured by Highway Insurance Underwriters, hereinafter referred to as Highway, prior to receivership, under a policy issued to Jesse Kirk, Jr., who was alleged to be appellant’s agent. Appellant in his original and first supplemental petitions alleged that he was the owner of the truck in question although the legal title was in the name of Jesse Kirk, Jr.; that in April, 1957 appellant came to Highway’s office and made an affidavit that he was the owner of the truck and that the proceeds from the policy issued by Highway to Kirk insuring the truck were due and payable to him. On May 27, 1958, Highway was placed in receivership under the provisions of Art. 21.28 of the Insurance Code, Vernon’s Civil Statutes, in Cause No. 110,221, styled State of Texas v. Highway Insurance Underwriters et al., in the 126th District Court of Travis County, Texas and appellee was duly appointed Receiver.

Appellant further alleged that although he had duly filed a claim with Highway before appellee had been appointed Receiver of the insurer, the Receiver failed to notify appellant of the receivership and his appointment as required by Section 3(a), Art. 21.28 of the Insurance Code and that it was not until November 30, 1959 that appellant first learned that appellee was taking the position that appellant owned no interest in the truck and was therefore not entitled to any notice to file his claim under the statute and since he had duly performed all of the terms and conditions of the policy of insur-anee and made demand for payment of the fair and reasonable value of the property at the time of the loss, he was entitled to damages in the sum of $6300.00. In appellant’s first trial amendment filed December 21, 1960 the amount of damages was increased to $8950.00.

In his first amended original answer, ap-pellee specially excepted to appellant’s allegations (1) that the policy of insurance was issued to Jesse Kirk, Jr. as appellant’s agent; (2) that appellant had complied with all of the jurisdictional requirements to bring the suit under the provisions of Art. 21.28 of the Insurance Code; (3) that the suit was filed within the time provided by Art. 21.28; (4) that appellant had performed the terms and conditions of the policy of insurance on his part to be performed and (5) to the prayer for money damages since the only relief sought was an order of the Court directing the Receiver to approve appellant’s claim as a general unsecured creditor for a sum certain.

The case was tried to the Court without a jury and on December 21, 1960 at the close of the testimony after appellant had rested but before appellee had rested, ap-pellee moved the Court to strike all of the testimony in the record with reference to an assignment of the proceeds of the policy of insurance issued by Highway for the reason that the testimony was not supported by the pleadings. Appellant then informed the Court of his intention to file a trial amendment in writing which was permitted by the Trial Court, who declined to announce judgment at that time. On January 6,1691 appellant filed his second trial amendment and on January 18, 1961 appellee filed a motion to strike such trial amendment.

After a hearing on the motion to strike on February 23,1961 the Trial Court entered judgment on March 13, 1961 (1) sustaining appellee’s special exceptions to plaintiff’s original petition, (2) sustaining appellee’s motion to strike all testimony and other evidence offered by appellant which was not supported by the pleadings on file on Decern-her 21, 1960, (3) sustaining appellee’s motion to strike appellant’s trial amendment and (4) that appellant take nothing by his suit, from which judgment this appeal has been perfected.

Appellant urges two points of error by the Trial Court in entering the “take nothing” judgment, the first being that there was error in refusing to place appellant’s claim on the Receiver’s list of claims for payment in administering the receivership because there was a reasonable excuse for the delay in filing his claim with the Receiver since appellant had fulfilled all the requisites necessary to file such claim with the Receiver. The second point of error is based on the action of the Trial Court in striking appellant’s second trial amendment after the same had been filed with leave of Court in conformity with the evidence introduced upon the trial of the cause.

Since appellee states in his brief that appellant’s first point is entirely dependent upon his second point because unless error is shown by the action of the Trial Court in striking appellant’s second trial amendment, then no error is reflected by the Court’s action in refusing to place appellant’s claim on the Receiver’s list of claims for payment in. the administration of the receivership, we will first discuss and dispose of appellant’s second point of error.

In order to pass upon this point it is unnecessary to state in detail the evidence adduced by appellant upon the trial since it is apparent from appellant’s second trial amendment that the only evidence presented upon the trial which was alleged in the second trial amendment which constituted a variance from the original pleadings on file on December 21, 1957 is that in his original pleadings appellant alleged that he was the owner of the truck in question although the legal title was in the name of Jesse Kirk, Jr., while in the trial amendment he alleged that on or about April 15,1957 in consideration of valuable services performed by appellant during the course of his employment by Kirk and for other valuable consideration Kirk orally assigned to appellant all rights to the insurance proceeds for the damage to the truck in question including the rights to collect any judgments against Highway whether in a suit instituted by Kirk or by appellant.

In fact, appellee concedes in his motion to strike appellant’s second trial amendment that the amendment completely repleaded all the facts upon which appellant attempted to recover against appellee, whether the facts were already contained in previous pleadings or not.

The testimony of appellant’s witnesses, including appellant himself, together with the exhibits introduced in evidence, are to some ■ extent contradictory but considering all of the pleadings including the second trial amendment and the evidence adduced upon the trial by appellant, only one question was presented for the Trial Court’s decision: Did appellant have a reasonable excuse for his failure to file a claim with the Receiver in the receivership proceedings for his interest in the proceeds of the insurance policy issued by Highway to Kirk as the insured for the loss and damage to the 1955 Mack truck, Motor No. END 673-4897 as provided in Secs. 3(a) and 3(b), Art. 21.28 of the Insurance Code?

Appellant contends that in accordance with the provisions of Rule 66, Texas Rules of Civil Procedure, which provides that “if evidence is objected to at a trial on the ground that it is not within the issues made by the pleading, * * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits,” the Trial Court erred in granting appellee’s motion to strike the trial amendment after having granted leave to appellant to file it.

It is clear from the pleadings and the evidence that all appellant sought to do was to file a claim with appellee for whatever interest he may have had in the proceeds of the insurance policy covering the truck in question as a result of the fire which occurred January 13, 1957. Whether such interest was an equitable interest as pleaded in his original petition or the interest which he acquired by assignment of Kirk’s interest in the proceeds of the policy, his cause of action as asserted in his original petition as well as in his second trial amendment was that he was entitled to file his claim for such interest in the receivership proceedings after the time prescribed for the filing of claims under Secs. 3(a) and 3(b), Art. 21.-28, because of the failure of appellee to send him a notice of the receivership proceedings and his appointment as Receiver as required by Sec. 3(a), Art. 21.28.

As stated above, after appellant had rested but before appellee had rested, appellee moved to strike all of the testimony and other evidence offered by appellant which was not supported by the pleadings on file on December 21, 1960, which motion was passed upon by the Court at that time. Immediately following the motion to strike appellant orally requested the Trial Court for leave to file his second trial amendment, which request was granted by the Trial Court without any objection by appellee. The second trial amendment was filed on January 6, 1961 and on January 18, 1961 ap-pellee filed his motion to strike the second trial amendment. After appellant had filed his second trial amendment appellee did not at any time request the Trial Court to grant a postponement to enable him to meet or rebut the evidence previously introduced and which was alleged in the trial amendment as authorized by Rule 66.

If the Trial Court had refused to permit appellant to file his second trial amendment when requested by appellant on December 21, 1960 appellant could have assigned such refusal as error before this Court, but having granted appellant leave to file his trial amendment under Rule 66, the Trial Court then granted appellee’s motion to strike the same amendment which he had previously granted appellant leave to file.

The source of Rule 66, T.R.C.P. is Federal Rule 15(b), 28 U.S.C.A., with minor changes. While it is true that the. application of this rule is within the discretion of the Trial Judge, nevertheless the decisions of the Federal courts construing how such discretion should be exercised are highly persuasive. In Robbins v. Jordan (U.S.C.A., D.C.), 181 F.2d 793, it was held that such discretion is to be exercised liberally in favor of justice. This interpretation of Rule 15(b) has been consistently followed by the appellate courts of Texas in construing Rule 66. Butcher v. Tinkle, Tex.Civ.App., 183 S.W.2d 227, 229, no writ history; Shaw v. Tyler Bank & Trust Co., Tex.Civ.App., 285 S.W.2d 782, 790, error ref. N.R.E. Where leave to amend has been granted as in the instant case, application for a continuance based on surprise must be made as a ground for reversal and the error of the Trial Court, if any, consists in denying the application for the continuance and in not permitting the trial amendment to be filed. Texas City Terminal Ry. Co. v. McLemore, Tex.Civ.App., 225 S.W.2d 1007, 1010, error ref. N.R.E.

In the exercise of its discretion in granting or refusing the leave to file a trial amendment under Rule 66, the Court has two options: (1) to deny the trial amendment when it is obvious that the party has failed to prepare his case with diligence or has failed to amend his pleadings in order to deprive the opposing party of an opportunity to meet and defend the new matter so presented, or (2) to grant leave to file the trial amendment and permit the opposing party to withdraw his announcement of ready for trial and then order a postponement or continuance to permit both parties to prepare for trial. 2 McDonald Texas Civil Practice, Sec. 8.07, p. 737 and cases cited.

Since no findings of fact or conclusions of law were requested by either of the parties and since the judgment does not recite the grounds upon which the Court granted appellee’s motion to strike the second trial amendment, the motion to strike must be carefully examined to ascertain whether any of the grounds set forth therein is sufficient of itself to justify the action of the Court in sustaining the motion.

The first ground alleged is that the evidence adduced upon the trial and the allegations in the trial amendment are contrary to the facts produced on the hearing of appellee’s motion for summary judgment and therefore the allowance of the trial amendment after the introduction of the evidence and after both sides had rested is “prejudicial to and constitutes an unfair surprise of the defendant insofar as his rights in this cause is concerned.” The transcript does not contain either the motion for summary judgment, the evidence introduced, or any of the proceedings had at the hearing or the Court’s ruling on the motion for summary judgment. The sole basis of appellee’s first ground is that the introduction of all of the evidence is prejudicial to and constitutes an unfair surprise to appellee.

Rule 66 provides that the Trial Court may grant a postponement to enable the objecting party to meet the evidence which was not within the issues made by the original pleadings but which was pleaded in the trial amendment. No request for postponement was made by appellee at the time appellant requested leave to file his trial amendment. Certainly having been fully advised as to all of the evidence upon which appellant based his cause of action and appellant’s case having been fully developed on December 21, 1960, appellee cannot be said that his rights have been prejudiced and that he has been unfairly surprised at the hearing before the Court some two months thereafter on February 23, 1961. Since appellee did not file and present a motion for continuance prepared upon the ground of surprise when the trial amendment was filed on January 6, 1960, such motion is essential before the filing of a trial amendment will constitute reversible error. Dirks v. Dirks, Tex.Civ.App., 302 S.W.2d 471, 474, error dism. We find no merit in appellee’s first ground.

Appellee’s second ground of his motion to strike is that the cause of action alleged in the second trial amendment constitutes a complete change from the cause of action alleged in the original and first supplemental petition because the second trial amendment bases appellant’s cause of action on the assignment by Kirk to appellant of the proceeds of the policy on or about April 15, 1957 instead of being based upon his claim filed with Highway prior to the receivership and that since he had received no notice required by Sec. 3(a), Art. 21.28, he was excused from filing his claim within the one year period specified in Sec. 3(b), Art. 21.28. Therefore the cause of action alleged in the second trial amendment constituted a complete departure and wholly new cause of action and to allow appellant to file such trial amendment after the case had been tried and fully developed would be prejudicial to and would constitute an equitable and unfair form of surprise to appel-lee. It is our opinion that the trial amendment did not change the cause of action previously alleged by appellant and the second ground is without merit.

The third ground for striking the trial amendment is that it is not a trial amendment of pleadings previously on file because it is an attempt to replead all facts upon which the appellant seeks recovery against appellee whether or not the facts were alleged in previous pleadings and that the amendment also prays the Court to cite ap-pellee to appear and answer that the receivership approve appellant’s claim as a creditor for $8950.00 and in the alternative that appellant recover judgment against the Receiver for damages in the same amount. Here appellee admits that the trial amendment fully complies with the provisions of Rule 66 and the fact that in such amendment there is a prayer that appellee be cited to appear and answer does not of itself constitute an admission that there is an entirely new, separate and distinct cause of action alleged by the trial amendment. This ground is without merit.

As the final ground for striking the trial amendment appellee alleges that after appellant had rested his case and appellee had urged his motion to strike all testimony not supported by the pleadings then on file, appellant’s counsel stated to the Court that he had discovered the change in facts regarding his cause of action which resulted in a change in the theory of the cause of action on the night before the trial on December 21, 1960 but that notwithstanding such discovery appellant announced ready for trial on December 21, 1960 when he could have apprised the Court of the change in facts and requested a postponement to allow a re-pleading in which case appellee would not have been put to trial on the original pleadings and would have had an opportunity to prepare his defense and replead, if necessary, to meet the change in the cause of action and therefore by prompt and diligent action appellant could have obviated the necessity of repleading his cause of action after the hearing on the merits and after both sides had rested.

After appellant had filed his trial amendment on January 6, 1961, appellee did not request postponement nor did he request a postponement before the hearing on February 23, 1961. Instead appellee elected to “rest his oars” on his motion to strike the testimony which had not been previously ruled upon by the Court. We are of the opinion that this ground is also without merit.

When the Trial Court granted leave to appellant to file his second trial amendment, the Trial Court was acting within his discretion under the provisions of Rule 66 as construed by the authorities hereinbefore cited. However, since appellee failed to object to the Trial Court’s ruling in granting permission to file the trial amendment and failed to file a motion for continuance upon the ground that the allowance of such amendment would prejudice him in maintaining his defense upon the merits, appel-lee’s rights were in no way prejudiced as is demonstrated by the various grounds urged by appellee in his motion to strike the trial amendment. By sustaining appellee’s motion to strike the trial amendment after having granted permission to file it, the Trial Court committed an abuse of discretion. In view of this holding, it is unnecessary to rule upon appellant’s first point of error.

Since the Trial Court erred in granting appellee’s motion to strike the trial amendment, the judgment is reversed and the cause remanded to the Trial Court for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: CHADICK, Chief Justice. DAVIS, Justice.

license: Public Domain

text:
    STATE of Texas, Appellant, v. Madison RAYBURN, Judge of the County Court at Law of Harris County, Texas, et al., Appellees.
    No. 7363.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1961.
    Rehearing Denied Dec. 29, 1961.

      Will Wilson, Atty. Gen., L. P. Lollar, H. Grady Chandler, Joseph G. Rollins, Asst. Attys. Gen., Austin, for appellant.
    Dow & Dow, M. Leon Kalvort, Houston, for appellees.
   CHADICK, Chief Justice.

This is a mandamus action originating in a District Court of Harris County. Judgment was entered in the trial court sustaining a plea in abatement and dismissing the petition. Such judgment is reversed and judgment here rendered reinstating the petitioner’s action for trial on its merits.

The State of Texas is appellant here and-the appellees are the respondents named below. The appellees’ brief contains the following résumé of the facts and proceedings antecedent to the appeal, and it is adopted for the purposes of this opinion. “Special Commissioners in condemnation proceedings by relator filed their award with the Judge of the County Court at Law of Harris County, Texas, the Honorable Madison Rayburn, on the 8th day of September, 1960. The condemnees, who are the owners of the condemned property, and along with Judge Rayburn, are respondents herein, are K. B. Johnston and wife, Lois Johnston, and E. H. Radcliff and wife, Gertrude Rad-clifif. Condemnees consulted Dow & Dow, attorneys of Houston, Texas, on Monday, September 19, 1960, and on that day con-demnees’ objections to the award of the Special Commissioners were filed. The tenth day after the filing of the Special Commissioners’ award had fallen on Sunday, September 18, 1960. 'On November 7, 1960, relator, the State of Texas, filed with Judge Rayburn of the County Court at Law of Harris County, Texas, its motion that he cause the award of the Special Commissioners to be made the judgment of the Court. On December 2, 1960, a hearing was held before Judge Rayburn on the relator’s motion, and at the conclusion of this hearing Judge Rayburn announced that the motion to enter the award of the Special Commissioners as the judgment of the Court would be overruled because the objections of the condemnees had been filed within the time permitted by law; and on December 19, 1960, Judge Rayburn made, entered and signed his order to this effect.

“On January 10, 1961, relator complained of Judge Rayburn’s ruling that condemnees’ objections were timely filed by filing in District Court a petition in mandamus directed against Judge Rayburn and naming con-demnees also as respondents, and praying that mandamus issue requiring Judge Rayburn to cause the award of the Special Commissioners to be made the judgment of the County Court at Law. On February 6, 1961, condemnees filed their answer to relator’s petition in mandamus and this answer contained a Plea in Abatement with prayer for dismissal of relator’s petition. A special hearing on respondent’s Plea in Abatement was set for March 3, 1961, and on that day the Judge of the 157th Judicial District Court of Harris County, Texas, at the conclusion of such hearing, announced that the Plea in Abatement to abate relator’s petition and dismiss the action would be sustained and granted. An order to that effect was signed by Honorable Phil Peden, Judge of the 157th Judicial District Court of Karris County, Texas, on March 10, 1961. From such order, relator perfected this appeal.”

The plea in abatement urged by the respondents in the District Court was based solely on the grounds that the County Judge in the exercise of judicial discretion had determined that the condemnees’ objections to the commissioners’ award were timely filed and the condemnation suit was currently pending for trial in the County Court.

The briefs and arguments of the parties are in general agreement that the condemnation proceeding in County Court was administrative in character and so remained unless the condemnees’ objections were timely filed within the ten day period allowed by Sec. 6, Art. 3266, Vernon’s Ann. Tex.Civ.St. They appear to agree that in the absence of timely filed objections the County Judge was under a ministerial duty to record in the minutes and make the commissioners’ award the judgment of the County Court as directed by Sec. 7, Art. 3266, V.A.T.S.

The parties’ seeming general agreement in this respect is in harmony with the pronouncements of the majority in Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, as these extracts from the majority opinion indicate:

(p. 936). “An action to condemn land is a special statutory proceeding, wholly administrative in nature, at least until the commissioners’ decision is filed with the county judge. The course which it takes after the filing of their award is governed by Sections 6 and 7 of Art. 3266, Vernon’s Ann. Tex.Civ.Stat., * * *.
■ (p. 937). “By the express terms of Section 6, the filing of timely objections confers jurisdiction upon the county court to hear and determine the issues in the exercise of its judicial powers. It thus is clear that the proceeding becomes a civil case if objections are filed within the prescribed period, and either party has the right to appeal from a final judgment thereafter entered by the county court. * *
(p. 938). “Section 7 of Art. 3266 requires the county judge, if no objections are filed within ten days, to cause the award to be recorded in the minutes and make the same the judgment of the court. No jurisdiction is conferred upon the court to do anything more than accept and adopt the award as its judgment, and this follows by operation of law and the ministerial act of the county judge. * '* *”

In keeping with the law as expressed above and the record in this case, it is apparent that the District Judge’s order sustaining the plea in abatement can be sustained only if the condemnees’ objections were timely filed. In the absence of timely filing the County Judge was under an obligation to perform the ministerial duty of filing the award in the minutes and making it the judgment of the county court.

The appellees invoke the terms of Rule 4, Vernon’s Ann.Texas Rules of Civil Procedure to enlarge the time period prescribed by Sec. 6, Art. 3266 for filing condemnees’ objections. Rule 4 governs in the computation of time in civil judicial proceedings in those instances where an act is required or allowed to be done within a specified time by other Rules of Civil Procedure, court orders or applicable statutes. See Nunn v. New, 148 Tex. 443, 226 S.W.2d 116, 117. Ihe case here is not concerned with time specified by a Rule of Civil Procedure or a court order. The inquiry then is whether or not Rule 4 has application for other reasons.

The Pearson case supra makes it obvious that the condemnation proceeding in county court was administrative through the tenth day after the commissioners’ award had been filed. The condemnees filed nothing to change its character within that period of time. Nunn v. New, supra says: “The rule has long been firmly established in this State that where a statute requires that an act be done within a specified time * * * the last day will not be excluded and the length of time thereby extended when that [last] day falls on a legal holiday or Sunday, unless the statute so provides.” Reference to Sections 6 and 7, Art. 3266 shows no provision saving the sections from the application of the rule quoted. It must be held that the proceeding retained its administrative character at the time the objections were filed on the eleventh day, and lay outside the purview of Rule 4 as applied to civil judicial proceedings.

The next inquiry then is to determine whether the language “or by any applicable statute” used in Rule 4 might cause the rule to govern procedure in a condemnation proceeding during its administrative phase in county court. Rule 2 excludes from the scope of the Rules of Civil Procedure “ * * * any statute in effect immediately prior to September 1, 1941, and not included in the ‘List of Repealed Statutes/ [that] prescribed a rule of procedure in any special statutory proceeding differing from these rules * * and provides that the statutory procedure shall continue to govern in the special proceedings. The statutes under which this condemnation proceeding was instituted were in effect prior to September 1, 1941, and the procedure prescribed differs from that of the rules. Again, the conclusion is inescapable that Rule 4 did not govern in the proceeding at the time condemnees’ objections were filed.

As further reason why Rule 4 should control in this case the appellees point out that the condemnee is deprived of the full ten days allowed by Sec. 6, Art. 3266 when the last day of the period falls on Sunday unless the time is enlarged in accordance with Rule 4, as filing condemnees’ objections on Sunday would have the effect of instituting a civil suit on Sunday contrary to the prohibition in that respect contained in Rule 6.

It is not thought that Rule 6 has the effect the appellees urge. In the previous discussions it has been established that condemnation proceedings are of special statutory origin and the procedure of the statute govern over Rules of Civil Procedure during the proceeding’s administrative phase. Rule 6 cannot change the express terms of the Sec. 6, Art. 3266. Fitzgerald v. City of Dallas, Tex.Civ.App., 34 S.W.2d 682, 683, wr. ref., shows the distinction between commencing a suit, as contemplated by Rule 6, and the effect of objections to the commissioners’ award in a condemnation proceeding, where it is said:

“ * * * appellants did not, by the filing of their objections, institute a suit, but only removed the proceedings to condemn their property from the effect of the decision of the special tribunal to a regularly constituted law court to have the damages sustained by reason of the condemnation of their land adjudicated in the county court according to the established forms of regular court procedure.”

City of Amarillo v. Adams, Tex.Civ.App., 342 S.W.2d 371, err. dism’d, an original mandamus proceeding filed in the Court of Civil Appeals, is cited by the appellees as authority sustaining the proposition that Rule 4 may be invoked to enlarge the time allowed by Sec. 6, Art. 3266 for filing the condemnees’ objections to the award when the tenth day of the period allowed falls on Sunday. The preceding discussion explains why this court does not accede to the appellees’ proposition.

The appellees make no concession, but argue that if the court concludes Rule 4 does not enlarge the time for filing objections under the circumstances of the record, that the District Court order of abatement may be sustained upon another ground. That is, that the county judge exercised a judicial discretion in the hearing at which he determined that the objections were timely filed and that entry of a judgment on the award was not proper; in that he decided incidentally all questions concerning the jurisdiction of his court,, and assumed to exercise jurisdiction.

There is a significant parallel in the county court procedure following filing of the commissioners’ award in the Pearson case, supra, and in this case. In both the county judge held a hearing several weeks after the commissioners’ award was filed. In Pearson it was agreed that objections to the award were not timely filed; while here, as previously discussed, there was-not a timely filing as a matter of law. The purpose in Pearson was to determine the nature of the judgment to be entered on the commissioners’ award. In the present case the purpose of the hearing was to determine whether or not the condemnees’ objections to the award were timely filed and the judgment, if any, to be entered. In Pearson it was argued in the Supreme Court as it is here that [159 Tex. 66, 315 S.W.2d 938] “the county court assumed jurisdiction and the proceeding became a civil case when the judge held a hearing.” The Supreme Court rejected that argument and concluded that the county judge’s hearing did not change the administrative nature of the condemnation proceeding at that stage, nor convert it into a civil case. It said:

“There is nothing which the court, as distinguished from the county judge in his administrative capacity, can hear and determine by the exercise of its judicial powers. * * * This conclusion is inescapable in view of the provisions of Arts. 3266 and 3268 and is also consistent with our holdings * * *»

The county judge’s duties with respect to making the commissioners’ award the judgment of the county court were ministerial and the hearing held was in an administrative proceeding in which there could be no exercise of judicial discretion. Upon failure to perform this ministerial act required of the county judge by statute the condemning authority was authorized to compel performance by mandamus. See Pearson. v. State, supra. The district court in which the mandamus action was filed had jurisdiction to issue the writ. See City of Big Spring v. Garlington, Tex.Civ.App., 88 S.W.2d 1095, N.W.H. The appellees’ motion to abate should not have been sustained.

The trial court’s order sustaining the plea in abatement and dismissing the appellant’s petition is reversed and the appellant’s mandamus action in the trial court is reinstated for trial on its merits.

FANNING, J., concurs.

DAVIS, J., dissents.

DAVIS, Justice.

I dissent. The County Court at Law of Harris County entered an order in which it found that it had jurisdiction of the appeal in the condemnation proceeding. Under such finding, until the County Court at law passes upon the condemnation proceeding, there is no jurisdiction in any other court. At the hearing in the District Court, the only thing that was considered was the plea in abatement. The District Court sustained the plea in abatement and dismissed the case. This court has no jurisdiction of the appeal save and except to decide whether or not the District Court was correct. 4 Tex.Jur.2d 242, Sec. 746, and cases cited thereunder.

Condemnation law is “cold-blooded”. It allows the taking of one’s property for public use. There are certain proceedings through which the public must go. The only recourse by the condemnee is to exercise his right of appeal. In this case, the special commissioners filed their award September 8, 1960. The condemnees had ten days after that date to file notice of their appeal. The tenth day fell on Sunday. Under no theory of reasoning could they have filed their appeal on the tenth day. The statute does not limit them to nine days. Rule 4, V.A.T.R.C.P., provides that in such cases the appeal may be filed on Monday. This, they did. This case is directly in point with City of Amarillo v. Adams, Tex.Civ.App., 342 S.W.2d 371, err. dism’d. In that case, the condemnees filed their notice of appeal on the eleventh day, the tenth day falling on Sunday. The Court of Civil Appeals held that the notice of appeal was timely filed. With their holding, I agree. The opinion of this court is directly in conflict with the opinion of City of Amarillo v. Adams, supra.

Since the District Court of Harris County did not pass upon the question of whether or not a writ of mandamus should be granted, I think the judgment is entirely correct, and should be affirmed.

      . “6. If either party be dissatisfied with the decision, such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.”

      . “7. If no objections to the decision are filed within ten (10) days, the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the court and issue the necessary process to enforce the same.”

      . “In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday.”

      . “No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress. proceedings.”


author: GRISSOM, Chief Justice.

text:
    John B. LEYENDECKER et al., Appellants, v. C. J. ROBERTSON, Jr., Appellee.
    No. 3666.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 8, 1961.
    Kirchheimer & Kirchheimer, Houston, for appellants.
    Butler, Bimon, Rice & Cook, Houston, for appellee.
   GRISSOM, Chief Justice.

C. J. Robertson, Jr., sued John B. Leyen-decker, C. B. Leyendecker and U. S. Contracting Company, alleged to be a partnership composed of John B. Leyendecker and C. B. Leyendecker, on a sworn account for lumber alleged to have been sold and delivered to them. The Leyendeckers, by a verified answer, denied the partnership, denied they were liable for the debt and alleged that it was the debt of the U. S. Truck Line, a corporation, which was operated by John B. and C. B. Leyendecker. It was stipulated that the lumber was sold and delivered by Robertson as shown by the invoices attached to his petition; that the amounts were correct and had not Ibeen paid and that the only issue was whether the Leyendeckers, individually or as partners in the U. S. Contracting Company, were liable for the debt, or whether it was the debt of the U. S. Truck Line, a corporation. In a trial to the court, judgment was rendered for Robertson against both of the Leyendeckers and U. S. Contracting Company, jointly and severally, and they have appealed.

No findings of fact or conclusions of law were requested or filed. The issue presented is simply whether there is evidence to support a finding- that appellants are liable for the debt. There is evidence to the effect that Robertson contacted the Leyen-deckers in the fall of 1959 in an attempt to sell them lumber from his mill; that he first talked to John; that the Leyendeckers never claimed they were representing a corporation or the U. S. Truck Line. As a result of said contract several loads of lumber were sold by Robertson and delivered prior to the sales involved in this case. Robertson addressed his bills for such prior sales, as well as the sales sued on, to U. S., or United States, Contracting Company, in accord with the instructions of John B. Leyendecker; that such instructions were given prior to the sales of the lumber here involved. Robertson testified that he asked John how he wanted to be billed for the lumber because the dray tickets showing the deliveries were not made out in the name of the Leyendeckers, and that John Leyendecker instructed Robertson to make out his bills to U. S., or United States, Contracting Company; that Robertson asked John whether he should change the name on the dray tickets to conform to such instructions and John told him it wasn’t necessary; that he assured Robertson he was dealing with John B. and C. B. Leyendecker; that they owned the U. S. Contracting Company and that they would be responsible to Robertson for payment of his bills; that the Leyendeckers said nothing about the U. S. Truck Line being a corporation or about it doing business as U. S. Contracting Company or United States Contracting Company. It was shown that the invoices for the sales made prior to those sued on were paid by checks .drawn on U. S. Contracting Company. Robertson testified that he had other conversations concerning orders for lumber with both John and C. B. Leyendecker and that neither ever claimed he was represent-ipg the U. S. Truck Line or that the U. S. Contracting Company was the trade name of U. S. Truck Line. Neither of the Ley-endeckers claimed they told Robertson he was dealing with.- a corporation and, although some of the instruments in evidence show deliveries to “U. S. Truck Line,” there was nothing in connection with the use of said name that showed it was a corporation. Appellants admitted they once had a partnership which operated under the name of U. S. Contracting Company, which engaged in oilfield road business and was a business separate and apart from the trucking business operated by them under the name of U. S. Truck Line. The Ley-endeckers claimed that the assets of U. S. Contracting Company had been sold to U. S. Truck Line and that the U. S. Contracting Company was now used by them “for invoicing purposes.” Title to some of the property used in appellants’ businesses was held in the name of U. S. Contracting Company and the Leyendeckers had bank accounts under the names U. S. Contracting Company and U. S. Truck Line.

Long before the sales of the lumber involved here John B. and C. B. Leyen-decker executed and filed for record in Harris County an assumed name certificate showing that their business was conducted under the name of U. S. Contracting Company and that the owners were J. B. and C. B. Leyendecker. Such certificate was not withdrawn and no notice of change of ownership was filed until after this suit was filed. Said certificate shows that the Leyendeckers operated the U. S. Contracting Company as a separate entity and that it was a partnership. By virtue of Article 5926, Vernon’s Ann.Civ.St., a copy of such certificate constitutes presumptive evidence of the facts stated therein. The statements of John B. and C. B. Leyendecker in said certificate constituted evidence that U. S. Contracting Company was a partnership composed of John B. and C. B. Leyendecker. Eastex Poultry Company v. Benefield, Tex.Civ.App., 268 S.W.2d 270; Dunn v. Carter Oil Company, Tex.Civ.App., 326 S.W.2d 11; Owl Taxi Service v. Saludis, Tex.Civ.App., 122 S.W.2d 225 and McCormick and Ray-Texas Law of Evidence, page 626.

C. B. Leyendecker testified, in effect, that if John did represent to Robertson that U. S. Contracting Company was owned by John and C. B. Leyendecker and that they would pay for said lumber, (as Robertson testified he did), that it was all right with him. C. B. testified, referring to himself and his brother, John, “We operate together.” It was admitted that the Leyen-deckers had been engaged in two separate businesses, a trucking business under the name of U. S. Truck Line and a board road business which was not incorporated and which they conducted under the name of U. S. Contracting Company.

After careful consideration, we conclude that the evidence is sufficient to sustain the requisite findings for holding appellants responsible for the debt sued on. All of appellants’ points have been considered and are overruled. The judgment is affirmed.


author: COLLINGS, Justice.

text:
    HUNT OIL COMPANY, Appellant, v. Alex MURCHISON, Appellee.
    No. 3658.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 1, 1961.
    Rehearing Denied Jan. 5, 1962.
    Shank, Dedman & Irwin, Dallas, for appellant.
    Goff & Koonce, Angleton, for appellee.
   COLLINGS, Justice.

• This is a venue case. Alex Murchison brought suit in Brazoria County against Hunt Oil Company, a corporation. Plaintiff alleged that defendant operated an oil and gas lease adjoining land owned by plaintiff in Brazoria County; that defendant extracted quantities of salt water from an oil well on its lease and negligently failed to construct and maintain a slush pit adequate to contain such salt water; that because of such negligence salt water overflowed the slush pit on defendant’s lease and flowed on and greatly damaged plaintiff’s land. Plaintiff sought to recover from defendant the damages alleged to be in the amount of $4,820.00.

The defendant, Hunt Oil Company, timely filed a plea of privilege to be sued in Dallas County, the alleged place of its residence. Plaintiff filed a controverting affidavit alleging that venue was properly laid in Brazoria County under Exceptions 9, 9a and- 23 of Art. 1995 Vernon’s Ann.Tex. Civ.St. A hearing on the plea was had before the court without a jury and the plea of privilege was overruled. Hunt Oil Company has appealed.

Appellant presents numerous points of error urging that plaintiff did not prove the necessary venue facts to comply with any of'the exceptions to Article 1995; Ap-pellee Murchison contends that the court correctly overruled appellant’s plea of privilege. He asserts that he has proved the necessary venue fact's under Subdivisions 9, 9a and 23 of the Statute as alleged in his controverting affidavit and particularly urges that he has established venue facts showing that his suit- was one for the recovery of: damages to land situated in the county where suit was brought as contemplated by Subdivision 14 of the statute.

Appellee., did not refer to Subdivision 14" in his controverting affidavit. This, however, did not deprive him of the right to rely, upon that subdivision if the 'facts alleged in his petition and controverting affidavit comply the terms thereof. Art. 2007 V.A.T.C.S., Sims v. Trinity Farm Construction Company, Tex.Civ.App., 28 S.W.2d 856.

Subdivision 14 of Article 1995 V.A.T.C.S. provides:

“14. Lands. — Suits for the recovery of lands or damages thereto * * *, must be brought in the county in which the land, or a part thereof, may lie.”

The venue facts which appellee had the burden to establish under this subdivision were: (1) that this was a suit for damages to land and, (2) that the land or a part thereof lay in Brazoria County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, (Sup.Ct.) ; Piazza v. Phillips et al., 153 Tex. 115, 264 S.W.2d 428, (Sup.Ct.).

The question whether a suit is one for “damages to land” as contemplated by the statute is determined by the allegations of the plaintiff’s petition, Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.2d 495; Oakland Motorcar Co., v. Jones, Tex.Civ.App., 29 S.W.2d 861 (Mandamus denied).

In appellee’s petition, a copy of which was attached to and made a part of his controverting affidavit, it was alleged that he was the owner of the land in question and that the land was situated in Brazoria County; that the defendant produced salt water from oil wells on its lease and negligently caused and permitted said salt,water to flow on appellee’s land, damaging same in the alleged amount of $4,820.-00 for which sum appellee sought recovery.. Appellee alleged that as a result of said salt water overflowing his land that the productivity of approximately two and one-half acres was .completely destroyed and that it was rendered unfit for agricultural purposes; that twenty-two pecan trees were killed and that , each of said trees had a market value of $185.00. These allegations, assert damage to land. Trees growing in the ground are a part of the realty. Gulf, C. & S. F. Ry. Co. v. Foster, Tex.Civ.App., 44 S.W. 198. The allegations of plaintiff’s, petition ’ unquestionably show that the nature of this suit is one for recovery of damages to land.

The remaining question is whether the land was located in Brazoria County. In appellee’s pleadings it was alleged that the land was in Brazoria County and the evidence undisputedly so shows. Appellant makes no contention that the land is not located in that county or that appellee has failed to establish that fact.

For the reasons set out above the trial court properly overruled appellant’s plea of privilege to be sued in Dallas County.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    Wayne B. NEYLAND et al., Appellants, v. Tony PASSANO et ux., Appellees.
    No. 13819.
    Court of Civil Appeals of Texas. Houston.
    Dec. 7, 1961.
    Rehearing Denied Jan. 4, 1962.
    Kirchheimer & Kirchheimer, Houston, Theo. R. Kirchheimer, Houston, of counsel, for appellants.
    Charles D. Boston, S. G. Kolius, Houston, Fulbright, Crooker, Freeman, Bates & Ja-worski, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit for damages resulting from the personal injuries received when Linda June Neyland, a child 31/⅞ years of age, was struck by the automobile being driven by Lorena Passano. The judgment was in favor of the defendant.

Appellant contends that the trial court erred in refusing to submit to the jury certain requested special issues. The first of the series requested reads: “Do you find from a preponderance of the evidence that immediately before the occurrence in question Lorena C. Passano failed to slacken the speed of the automobile being driven by her?” Then followed appropriate issues with reference to negligence and proximate cause.

The trial court submitted the following special issues pertinent to our inquiry :

“Special Issue No. 1. Do you find from a preponderance of the evidence that at the time of and immediately before the occurrence in question, Lorena C. Passano failed to make such application of her brakes as a person of ordinary prudence in the exercise of ordinary care would have made under the same or similar circumstances?
“Answer: ‘We do not’.
* * * ⅜ * *
“Special Issue No. 3. Do you find from a preponderance of the evidence' that immediately before the occurrence in question, Lorena C. Passano was operating her automobile at a greater rate of speed than a person of ordinary prudence in the exercise of ordinary care would have operated such automobile under the same or similar circumstances ?
“Answer: ‘We do not’.”

The trial court also submitted issues with reference to the conduct of Lorena C. Pas-sano concerning “lookout,” use of the automobile horn, and discovered peril, all of which were answered in favor of Mrs. Passano. The jury found that after the discovery and realization of the perilous position of the child, Mrs. Passano could not have avoided the accident by use of the means at her command consistent with her own safety and. that of her automobile. They further found that Mrs. Passano was acting under an emergency and, after the emergency arose, exercised ordinary care under the circumstances, and that the child’s injuries were the result of an unavoidable accident.

The matters which the jury would have had to determine in answering the requested issue concerning failure to slacken speed immediately before the occurrence in question, that is, the effect of speed, immediately prior to the accident, as a causative factor therein, necessarily were determined in connection with the answers made to each series of issues submitted.

The controlling issues were fairly submitted. The court was not required to submit “other and various phases or different shades of the same issue.” Rule 279, Texas Rules of Civil Procedure; Hodges, Special Issue Submission in Texas, §§ 53-54; Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266; Triangle Cab Co. v. Taylor, 144 Tex. 568, 192 S.W.2d 143; Dallas Railway & Terminal Co. v. Straughan, Tex.Civ.App., 254 S.W.2d 882; Dallas Railway & Terminal Co. v. Strickland Transp. Co., Tex.Civ.App., 225 S.W.2d 901.

“Where the special issue submitted arises from substantially the same pleading and evidence as the one refused, and the former necessarily includes the controlling facts inquired about in the latter, the two reasonably may be said to embrace different shades of the same controlling issue.” McDonald, Texas Civil Practice, § 12.09, p. 1068.

“It has never been the policy of the law to lengthen and complicate special issue charges by requiring trial courts to give issues that merely submit various phases or other shades of meaning of an issue already in the charge. It is required only that each controlling issue raised by the pleadings and the evidence be submitted once, fairly, simply and succinctly.” Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 489.

The judgment of the trial court is affirmed.


author: CULLEN, Commissioner.

text:
    AETNA FREIGHT LINES, INC. et al., Appellants, v. R. C. TWAY COMPANY, Inc., Doing Business as Kentucky Manufacturing Company, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1961.
    Rehearing Denied Jan. 19, 1962.
    Stanley B. Mayer, Louisville, for appellants.
    Charles I. Dawson, Bullitt, Dawson & Tarrant, Louisville, for appellee.
   CULLEN, Commissioner.

Aetna Freight Lines, Inc., and Paul Fella-baum, appellants, seek reversal of a summary judgment in favor of R. C. Tway Company, Inc., doing business as Kentucky Manufacturing Company.

The pertinent facts are quoted from the opinion on the first appeal of this case, Aetna Freight Lines v. R. C. Tway Company, Ky., 298 S.W.2d 293, 294, 62 A.L.R.2d 480, as follows:

“Fellabaum purchased a tractor trailer (a ‘train’ consisting of two trailers connected by a drawbar) from an Ohio dealer who had bought the trailer from Tway, the manufacturer. Fellabaum leased the ‘train’ to Aetna, a contract carrier operating in Ohio and adjoining states. On June 11, 1949, after it had been used approximately four months and had run some 17,000 miles, the ‘train’ was involved in an accident in Ohio which resulted when the draw-bar broke, permitting the ‘train’ to cross the road and collide with an approaching car.
“Three passengers in the car were killed and two were seriously injured. Shortly after the accident, five suits were filed in Ohio against Fellabaum, Aetna, and Harr, the driver of the trailer, — three by the administrators of the estates of the deceased, and two by the injured persons.”

Appellants settled the suits before trial and then sued Tway to recover indemnity. They pleaded lack of negligence on their part and alleged that the accident was the result of Tway’s negligent manufacture of the drawbar and safety chain. Tway denied negligence. The proof submitted by appellants on the motion for summary judgment established an absence of negligence ■on their part. It is so conceded in the brief for Tway.

On the prior appeal, a summary judgment -in favor of Tway (which had been granted •on the ground that the plaintiffs were not the real parties in interest) was reversed. Upon remand, the trial court was directed to permit Tway to renew his motion for summary judgment on the ground that appellants were not liable to the victims of the ■accident. Regarding this ground the opinion said: “Unless the plaintiffs * * * .are able to show something more than is •presently in the record to indicate a material issue of fact on the question of their legal liability to the injured claimants with ■whom they settled, and whether their negligence giving rise to such liability was secondary and passive, in relation to the primary and active negligence of Tway, the ■court will sustain the motion for summary judgment.” See Aetna Freight Lines, Inc. v. R. C. Tway Company, Ky., 298 S.W.2d 293, 297, 62 A.L.R.2d 480.

The holding on the first appeal be•came the law of the case unless appellants were able to show “something more than is presently in the record to indicate a material issue of fact.” Copley v. Craft, Ky., 341 S.W.2d 70. In an effort to do so, appellants, in an amended complaint, alleged that the injuries sustained were the result ■of Tway’s primary and active negligence; -that the doctrine of res ipsa loquitur would 'have applied in the suits brought against .appellants in Ohio; and that appellants -were thereby liable to the claimants with whom they settled by operation of law for •secondary and passive negligence. The affidavit of an Ohio attorney was filed, stating the effect of the Ohio res ipsa loquitur rule. Summary judgment in favor of Tway was -again rendered.

In sustaining the second motion for a ■summary judgment, the trial court noted that the amended pleading with supporting ■affidavit “raises no facts or issues except res ipsa loquitur.” Other than the amending pleading and affidavit, the same record as was considered on the first motion for summary judgment was presented.

The appellants’ contention appears to be that it was sufficient for them to show that there was a reasonable possibility that they would have been held legally liable in the actions against them in Ohio; that the Ohio res ipsa loquitur rule would have permitted the cases to go to the jury, and therefore they might have been subjected to liability. We think, however, that it was not sufficient for them to show merely a reasonable possibility of their having been held liable, but that they were required to show actual legal liability.

As stated in the opinion on the first appeal of this case, the substantive issues in the case are controlled by the Ohio law. The Ohio rule with respect to recovery of indemnity by a person who has settled the claim against him is stated in Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790. One of the stated requirements is that the person seeking indemnity prove “that he was legally liable to respond” in damages to the person with whom he settled. In support of this rule the Ohio court cites Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153. In that case the plaintiff had settled a tort claim for personal injuries against him,- arising out of his operation of a tugboat which was engaged in docking the defendant’s steamship, and he sought to recover from the defendant, by way of indemnity, the amount he had paid in the settlement. In the trial of the indemnity suit the plaintiff proved that he had not been negligent in the operation of his tugboat. The court held that in order to obtain indemnity the plaintiff must have proved that he was legally liable to the person with whom he had settled, and since his proof was that he was not liable he could not recover.

Another Ohio case involving the question of proving the legal liability of the person seeking indemnity to the person with whom he settled is American Fidelity & Casualty Co. v. Bennett, Ohio App., 125 N. E.2d 754. There a truck owned by the plaintiff had been involved in a collision which caused injuries to occupants of an automobile. The occupants had brought suit against the truck owner alleging that the truck had been negligently operated and that it had defective brakes. The truck owner had settled that suit and was seeking indemnity from the defendant, a garage-man who had been employed before the accident to repair the brakes on the truck. The ground on which indemnity was sought was that the accident had been caused solely by the defective brakes, for which the garageman was primarily responsible. In upholding the recovery of indemnity the court held that a basis of legal liability of the truck owner to the injured persons had been shown, in that the truck owner was responsible in law,to the injured persons for the negligence of the repairman he had employed to fix the brakes. The court said that the fact that the jury in the original damage suit possibly might have found that the accident was caused by negligent operation of the truck rather than by the defective brakes was immaterial, because it was shown on the trial of the indemnity suit that the cause of the accident was in fact the defective condition of the brakes, and under the established law the truck owner was liable to the injured persons for an accident resulting from that cause. The Bennett case does not depart from the rule stated in the Globe Indemnity case, that the person seeking indemnity must prove that he was legally liable to the person with whom he settled.

In the instant case the plaintiffs-appellants alleged and submitted proof that they were not guilty of any negligence in regard to the defective condition of the drawbar. They did not allege that Ohio law imposed upon them an absolute liability regardless of lack of negligence. They based their right of recovery solely on the proposition that even though they were prepared to introduce proof in the damage suit in Ohio showing clearly that they were not negligent, the jury might have found themi liable under the res ipsa loquitur doctrine.. This shows only a possibility of their having been held liable. Under the Ohio law of indemnity that is not enough — they were-required to show actual legal liability.

It is our opinion that the trial court correctly gave summary judgment for the defendant because the plaintiffs did not meet the requirement laid down in the opinion on the first appeal of this case that they show a basis for legal liability on their part to the injured claimants with whom they settled.

The judgment is affirmed.


author: HARRY A. HALL, Special Judge.

text:
    Lena SANSONE, (Plaintiff) Appellant, v. NATIONAL FOOD STORES, INC., a Corporation, (Defendant) Respondent.
    No. 30922.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1961.
    Jerome T. BoIIato, William L. Mason, Jr., St. Louis, for appellant.
    William I. Rutherford and Lashly, Lashly & Miller, St. Louis, for respondent.
   HARRY A. HALL, Special Judge.

Plaintiff brought suit to recover $10,000.-00 against the defendant store owner for personal injuries sustained when a bottle located on a grocery display shelf exploded as she was in the store aisle. The trial court entered an order and judgment dismissing plaintiff’s petition with prejudice upon plaintiff’s failure and refusal to make her petition more definite and certain in accordance with a prior order of the court. Plaintiff has appealed from that judgment.

The pertinent allegations of plaintiff’s petition are as follows:

“3. At all times herein mentioned, defendant owned, operated, managed and controlled a retail grocery store located at 7318 Olive Street Road, St. Louis County, Missouri, to which said store it invited members of the general public to come and trade with it at retail.
“4. On or about the 3rd day of November, 1959, plaintiff went to the said store in response to the said defendant’s invitation, and entered the said store, as a customer, business visitor, and invitee of and to the defendant.
“5. On said date and while plaintiff was still within the said store as such customer, business visitor and invitee, and while she was near a shelf or counter in said store whereon defendant had goods, wares and merchandise displayed for sale, a glass bottle containing a purple liquid located on a lower portion of said shelf or counter, then and there exploded with great force and violence directly causing plaintiff, serious, painful and permanent injuries, as hereinafter specified.
“6. The said explosion was then and there directly caused by negligence of the defendant.
“7. The said bottle was then and there within the exclusive possession and control of defendant.
“8. At no time herein mentioned did plaintiff or any portion of her person touch or come into contact with the said bottle before it exploded.
“9. At no time herein mentioned did any object or instrument or other thing in the possession of or under the control of plaintiff come into contact with said bottle before the same exploded.
‘TO. In no way did the plaintiff disturb the said bottle nor cause it to move before it exploded.
“11. The defendant has superior knowledge or superior means of acquiring knowledge to that of the plaintiff and as to the cause or reason of the said explosion of said bottle.
“12. Directly due to the said explosion of the said bottle plaintiff was struck with portions of glass discharged by the said explosion, directly causing her [injuries] * *

The court ordered plaintiff to specify the manner of defendant’s negligence which plaintiff had alleged generally in paragraph 6 of her petition. Plaintiff contends this was error, inasmuch as her petition properly pleaded a cause of action under the res ipsa loquitur doctrine.

Our courts have recognized a plaintiff’s right to plead and submit an action upon a general charge of negligence not only in the res ipsa cases, but also in those cases where the res ipsa rule does not apply, but when the nature of the case is such that the facts are peculiarly within the knowledge of the defendant, and plaintiff could not be expected to know the precise negligent act which caused his injury. In Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, the court upheld the right to proceed upon the theory of general negligence where the plaintiff was injured by the explosion of a bottle as he was removing it from a store shelf in a retail store several days after it had been delivered by the defendant bottler and defendant had parted with control over it. The court said:

“In holding that the case does not come under the res ipsa rule we do not hold that respondent failed to make a submissible case.
“ ‘It is important, in considering the res ipsa loquitur doctrine and its application and effect in given cases, to distinguish that doctrine from the principle that negligence may be established by circumstantial evidence.’
‘Rej ection of the doctrine of res ipsa loquitur does not mean that negligence may not be established by circumstantial evidence as well as by direct evidence.’ [38 Am.Jur., pp. 992-3, sec. 297; Elgin v. Kroger [Grocery & Baking] Co., [357] Mo.Sup. [19], 206 S.W.2d 501; Capehardt v. Murta, 165 Mo.App. 55, 145 S.W. 827.]” (222 S.W.2d 1. c. 90, 91.)

Primarily the res ipsa loquitur doctrine is not a rule of pleading but rather an inference aiding in the proof which upon a proper showing of particular circumstances constitutes evidence of negligence to be weighed and considered along with all other evidence in the cause. The rule as stated by our courts applies when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instru-mentalities involved were under the management and control of the defendant; and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83; Maybach v. Falstaff Brewing Corp., supra; Bone v. General Motors Corp., Mo., 322 S.W.2d 916.

The plaintiff’s petition does not mention res ipsa loquitur but in substance alleges that the bottle that exploded was within the exclusive possession and control of the defendant, which had superior knowledge or superior means of acquiring knowledge * * * as to the cause or reason of the explosion of the bottle.

In the Maybach case, the bottle exploded as plaintiff picked it up from the store shelf, and the court said, describing the incident (222 S.W.2d 1. c. 91) : “The instant case furnishes an example of an occurrence which would not ordinarily happen without negligence in the filling of the bottles or in the handling of them after they were filled.” Where, as here, a bottle on a shelf exploded, injuring plaintiff, we must agree that it is such an occurrence that does not ordinarily happen without negligence in some manner. Plaintiff’s allegation that the bottle was in the exclusive possession and control of the defendant and that defendant had superior knowledge or means of acquiring knowledge as to the cause of the explosion, for the purposes of the motion must be accepted as true. The petition clearly contains all three of the necessary allegations of a res ipsa case.

It is not necessary that plaintiff negative in her petition all other reasonable theories of causation except that of defendant’s negligence. In a recent pronouncement of this rule, the Supreme Court in Bone v. General Motors Corp., 322 S.W.2d 916, 921, in disposing of a similar contention in a res ipsa case said: “In recent years it has been established that a plaintiff in a res ipsa case need not negative every reasonable theory of causation except that of defendant’s negligence." Citing Cruce v. Gulf, Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 81; Warner v. Terminal R. Ass’n of St. Louis, 363 Mo. 1082, 257 S.W.2d 75; Hanson v. Dalton Coal & Materials Co., Mo.App., 264 S.W.2d 897, 903; Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242; Parlow v. Carson-Union-May-Stern Co., Mo., 310 S.W.2d 877; Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109.

Both parties agree on the basic requirements of the res ipsa doctrine and in general rely on the same authorities, most of which relate to the sufficiency of the evidence after a verdict to sustain a submission under the res ipsa doctrine. One such case involving a retail store owner is Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, relied upon by respondent, where plaintiff was injured when awnings in disarray on a sales table in defendant’s bargain basement fell from the table, striking plaintiff. Plaintiff’s own evidence disclosed that at the time of the accident it was a busy day and a number of customers were in the store; that it was the practice and custom of the customers to examine the merchandise and put it back on the table if they did not like it, and she herself had examined other merchandise and put it back. In holding that plaintiff’s evidence did not make a case under this doctrine, the court held (118 S.W.2d 1. c. 512) :

“It is equally as reasonable to infer that a customer, without defendant’s knowledge, caused the pile of awnings to be disarranged and be in a position to fall off of the table, without any one touching them, as the defendant. The evidence in this case shows, and it is a well known fact, that a great number of people frequent department stores in cities, especially, bargain departments thereof. It is also generally known that the managers of such stores, ordinarily, have no control over such people. Tuttle v. Kline’s, Inc., 230 Mo.App. 230, 233, 89 S.W.2d 676. The evidence shows that the customers of defendant’s store, including plaintiff herself, handled and inspected goods on the bargain counters at will. ‘When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to show neither.’ Quinn v. Utah Gas & Coke Co., 42 Utah 113, 129 P. 362, 364, 43 L.R.A., N.S., 328.”

Russell v. St. Louis & S. F. Ry. Co., Mo.App., 245 S.W. 590, also cited by respondent, held that plaintiff’s petition failed to state a cause of action under the res ipsa rule. The petition alleged that defendant had installed an electric light inside the fire box of an engine so that plaintiff and others could see to make repairs; that while he was working the light exploded, injuring him, and that the defendant was negligent in failing to furnish him a reasonably safe place to work. The court said (245 S.W. 1. c. 591):

“ * * * we do not think the petition in this case meets the requirements necessary to put into force the doctrine of res ipsa loquitur. There is no allegation that defendant manufactured and supplied its own light bulbs and the electricity to produce the light, or that an explosion would not occur without some negligence in the use of the bulb and electricity or in the faulty construction of the bulb.”

In neither of these cases do we find the three essentials of the res case of (a) unusual occurrence, (b) superior knowledge, and (c) control and management of the instrumentality.

In the instant case, plaintiff’s petition does not have the deficiencies of the Russell petition but affirmatively alleges each of the three basic requirements.

The final contention of respondent is that under Supreme Court Rule 55.34, V.A.M.R., the trial court had the discretion to require a more definite statement and, upon a failure to comply, full authority to dismiss the petition. This rule is not new but appeared as Section 63 of the 1943 Code and Section 509.310 RSMo 1949, V.A.M.S. It is a very salutary rule of procedure but does not purport to change the substantive law. The right to plead and submit the issues under the res ipsa rule is a matter of law, and, as with all questions of law, there can be no discretion.

As stated by the Supreme Court in Gateway Chemical Co. v. Groves, supra, where the identical question was raised: “The question as to whether the facts alleged in the petition are sufficient to invoke the application of the res ipsa rule is a question of law. The applicable rule in that connection is stated in Cooper v. 804 Grand Bldg. Corp., Mo.Sup., 257 S.W.2d 649, 655, as follows : ‘There is no discretion in the law of a case, nor can there be an exercise of sound discretion as to the law of a case.’ ” (338 S.W.2d 1. c. 87). See also Allen v. St. Louis-San Francisco Ry. Co., Mo.Sup., 297 S.W.2d 483. Plaintiff had an absolute right to submit her cause under the res ipsa rule and the trial court had no discretion to rule ■otherwise.

We find that the allegations of the petition were sufficient to invoke the res ipsa rule and that the trial court erred in sustaining the motion to make the petition ■more definite and certain and in dismissing ■plaintiff’s action, and this judgment is accordingly reversed and the cause remanded.

ANDERSON, P. J., and WOLFE, J., •concur.

RUDDY, J., not participating.


author: WOLFE, Judge.

text:
      Robert J. LE CLAIRE, (Plaintiff) Appellant, v. Pataline S. LE CLAIRE, (Defendant), Eugene LeClaire and Lorraine LeClaire, Respondents.
    No. 30794.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1961.
    Motion for Rehearing or for Transfer to Supreme Court Denied Jan. 22, 1962.
    Chaim H. Zimbalist, Clayton, for appellant.
    George W. O’Lary, St. Charles, for respondents.
   WOLFE, Judge.

This is an appeal from an order denying a motion to modify a decree of divorce as the decree related to the custody of three children. The movant below and the appellant here is the father of the children, and he contends that the court erred in denying a modification of the decree in that its decision is against the weight of the evidence.

On April 11, 1960, the appellant was divorced from his wife Pataline. Three children had been born of their marriage. There were two girls and a boy. The girls were, respectively, eight years and one year and nine months of age, and the boy was age six. The appellant and his three children had been living in the home of Mr. and Mrs. Eugene LeClaire, appellant’s brother and sister-in-law. He lived there with the children from October 1959 until two weeks before his divorce, which was granted in April of 1960. He moved from their home two weeks before the divorce to the home of his present wife, but left the children in his brother’s home.

He was granted a divorce from his first wife, and the decree provided that the three children should be placed in the custody of Eugene LeClaire and Lorraine LeClaire, his wife, their natural uncle and aunt by marriage. The decree provided that the father should pay $30.00 per week for the support of the children. Twelve days after his divorce he married his present wife, Ruth. She had five children by a previous marriage. The oldest was a son eighteen years of age; the next in line a daughter age sixteen; then two other sons, one thirteen and the other eight. The other was four years of age. They all lived in a home that Ruth had owned prior to her marriage to the appellant.

During the time that the appellant had lived with his brother and sister-in-law, he changed jobs from time to time. He did not recall how many different jobs he had while he was there. He never paid the full amount he had been ordered to pay for the support of the children. He was short of so doing by about $380. He had also borrowed a small sum from his brother, which had never been repaid. A week after his present marriage he had some disagreement with his wife and returned to his-brother’s house, but he was persuaded to go-back to his wife by his sister-in-law. His-present wife telephoned the sister-in-law and told her they were having quite a bit of discord, and the sister-in-law attempted, to bring about a better understanding between them. The present wife of the appellant is considerably older than he is, and appellant’s sister-in-law attempted to-persuade him “to grow up and be a man” in her efforts to bring about harmony between them. The appellant telephoned his-sister-in-law on other occasions to complain about his wife.

He continued to live with his wife and his five stepchildren in his wife’s home. Both he and his wife testified that they were happily married, and that they could make room for three more children. She received $50.00 a week from her former husband for support of the childern, and. the appellant had a net income of $89.00 per week from the job that he held at the time-of the hearing. His wife was unemployed, but she handled all of the money of the-household. He worked at a filling station, and his hours were irregular. He did not have meals with the family, and it appears that they had no set time for meals but ate-when they individually felt like it. The eighteen-year old son worked and paid $10.-00 a week board. The sixteen-year old daughter had quit school but was considering going back. There were three cars in the family, and payments were being made on two of them. Payments were also being made on the house.

Those of the five children who were attending school went to a public school. There was a difference of religion, but this appeared to be of small importance to the appellant and his wife. She and the children were Catholic, and the appellant was Lutheran. He said that he wanted his own children to go to the Lutheran Church and attend the Lutheran School.

Eugene, the brother of the appellant, and the brother’s wife Lorraine, who were given custody of the children by the original decree, lived in Harvester, Missouri, in their own home. Eugene was 32 years of age, and he and Lorraine had been married for nine years. He was employed as a sheet metal worker by the McDonnell Aircraft Corporation, and had been so employed for eight years. The home in which they live is on a half-acre lot and it is a neat, well cared for house. The children attend a Lutheran School and are regular attendants at a Lutheran Sunday School. They call their aunt and uncle “Mother” and “Dad”. They are well cared for and well adjusted in their present home. The father of the children did visit them, but when he did his visits were brief. He gave the children nothing for Christmas on the Christmas that he lived there with his brother, and he did not bother to wake up on Christmas morning to watch the children enjoy the presents provided by their aunt and uncle.

Appellant wanted the children in the Lutheran Church and School, and made no objection to the manner in which the children were being cared for. Eugene and Lorraine brought the children to visit him, and he was free to take them out when he pleased. Eugene and Lorraine brought the children to visit appellant on Father’s Day. He and his wife had just returned from a week’s vacation which they had taken by themselves. Lorraine called his attention to the fact that he had paid nothing recently for his children's support, and he said, “We will discuss that in the morning.” The next day he came to Eugene’s home and asked Lorraine if she had the children’s clothes ready and indicated that he wanted to take them. There was some discussion, in which Lorraine told him that she could not surrender custody of the children to him without a court order. This was followed by appellant filing the motion here under consideration. The motion was based on the allegation that since the decree, the appellant had remarried and now had a suitable home in which to keep the children. The natural mother filed a consent to the modification. After filing the motion appellant made no further effort to see his children, and he had not seen them for four months at the time of the hearing.

Eugene and Lorraine both testified at the hearing of the motion to modify, and both of them said that they simply wanted the court to determine wherein the best interest of the children would be served. They said that they loved the children and would like to keep them, but that they wanted to do nothing to interfere with the father’s right to have them if the court thought that it was to the best interest of the children.

The trial court concluded that the plaintiff “lacks responsibility and is obviously dominated by his older wife.” It further concluded that the ties between the plaintiff and his wife were “tenuous and shallow”, and that their marriage had been somewhat turbulent. As stated, the motion to modify the decree as prayed was denied, but it was modified to permit the plaintiff to have the children on alternate Sundays from 2:00 p. m. to 7:30 p. m.

The appellant contends that the presumption that the best interest of a child is with its natural parent should prevail1 here, and that the court erred in not modifying the decree and awarding custody of the children to the father. A parent’s legal rights at times must give way to the welfare of the child involved. Ex parte De Castro, 238 Mo.App. 1011, 190 S.W.2d 949. Where a change of custody is sought by a motion to modify a decree, we are governed by the rule set forth in Noble v. Noble, Mo.App., 341 S.W.2d 307, loc. cit. 310, wherein this court stated:

“The rules which must guide us in the determination of the issue presented are not in dispute. The burden of proof is on the one seeking a change of custody to show by the preponderance of the evidence, not only that there has been a change of conditions, but also that the welfare of the child requires a change of custody by reason thereof. Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364; Schumm v. Schumm, Mo.App., 223 S.W.2d 122. It is also our duty to review the whole record, and arrive at our own conclusion in the matter, hut in performing this duty we must bear in mind that the findings of the trial court should not he lightly disturbed. In fact, such findings will ordinarily be deferred to, unless from a consideration of all the facts and circumstances it appears that said findings are in conflict with a clear preponderance of the evidence so as to disclose a manifest abuse of judicial discretion. Birrittieri v. Swanston, supra; Martin v. Martin, Mo.App., 160 S.W.2d 457; Baer v. Baer, Mo.App., 51 S.W.2d 873; Conrad v. Conrad, Mo.App., 296 S.W. 196; Lampe v. Lampe, Mo.App., 28 S.W.2d 414; Rone v. Rone, Mo.App., 20 S.W.2d 545; Salkey v. Salkey, Mo.App., 80 S.W.2d 735.”

Applying these rules to the facts before us, we can only conclude that the trial court reached the correct conclusion and properly denied the modification sought. At no place in the record is there any expression by either the appellant or his wife of any love or affection for the children. Their testimony primarily related to the fact that they thought that they could squeeze three more children into their present house. It appears that the arrangement made by the original decree was quite satisfactory to them until the appellant was reminded that he had not paid any support money for a while. The home and family life accorded the children by the uncle and aunt is sound and orderly, while life in the home of the appellant is haphazard and at times turbulent, to say the least.

The court properly found that no change of condition beneficial to the children had arisen by reason of the marriage of the appellant, and the judgment is affirmed.

ANDERSON, P. J., and RUDDY, J., concur.


text:
    SEARS, ROEBUCK AND CO., a Corporation, (Plaintiff) Appellant, v. Henry K. HUPERT and Leola Moors, (Defendants) Respondents.
    No. 30906.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1961.

      Arthur Kreisman, William B. Anderson, Anderson, Gilbert, Wolfort, Allen & Bier-man, St. Louis, for appellant.
    Charles M. Tureen, Blumenfeld, Kalish-man & Tureen, St. Louis, for respondents.
   WOLFE, Judge.

This is an action in replevin originating in the Magistrate Court of the City of St. Louis. The Magistrate sustained a motion by defendant Leola Moors to dismiss the action, and the plaintiff appealed to the Circuit Court. A like motion was sustained in the Circuit Court, and from the judgment dismissing the case without prejudice the plaintiff prosecutes this appeal.

The action was instituted by filing a “Statement and Affidavit in Replevin” in the Magistrate Court. This statement set forth that the plaintiff was lawfully entitled to possession of a refrigerator wrongfully detained by the defendants, and it set out the other allegations required by Section 533.260 RSMo 1949, V.A.M.S. Recovery of the property and nominal damages were sought. The statement was signed “Sears, Roebuck and Co., by Arthur Kreisman”.

Mr. Kreisman was the attorney who represented the plaintiff in the Magistrate Court and in the Circuit Court. Counsel appearing for the plaintiff in this court did not participate in any of the proceedings, below.

Appended to the statement was the form of an affidavit as required by subsection 2, Section 533.260, supra. It is as follows:

"State of Missouri 1 City of St. Louis J
"Arthur Kreisman, atty & Agent for
Sears, Roebuck and Co., a Corp., Plaintiff, makes-oath and says that the facts and allegations contained in the above statement are true, that the property was wrongfully taken, and that plaintiff's right of action accrued within one year, And That He Is Authorized To Make This Affidavit On Behalf Of Plaintiff “(Seal)
“Sworn to and subscribed before me this V-ird day of (Signed) Arthur Kreisman, December, 1980 Address 804 Pine Street
"St. Louis 1, Mo.
“(Signed) Wilda B. Kreisman “Notary Public
“My Com. Exp. Oct. 20th, 1962.”

An order of delivery and summons in replevin was issued and executed by talcing the refrigerator from Leola Moors, but service was not had upon the defendants. The defendant Leola Moors filed a special entry of appearance to contest the jurisdiction of the Magistrate Court and alleged as her grounds that the Magistrate lacked jurisdiction because the purported signature of Wilda B. Kreisman, Notary Public,, appearing on the affidavit, was not in fact her signature, and for the further reason that no seal was affixed to the affidavit.

The Magistrate Court thereafter found that there was no affidavit upon which the Court “could or can acquire jurisdiction”. It followed this finding by dismissing the cause without prejudice. The plaintiff appealed to the Circuit Court.

Following the appeal by the plaintiff, the defendant Leola Moors again filed a motion to dismiss in the Circuit Court because of lack of jurisdiction over the subject-matter, in that there was in fact no affidavit as required by the statute. The plaintiff then filed the following:

“Motion of Plaintiff for Leave to Attach Notary Public’s Jurat to Statement and Affidavit for Replevin
“1. Comes now, plaintiff and states that the statement and affidavit herein as filed in the Magistrate Court, bore the signature of plaintiff’s attorney on behalf of plaintiff, but inadvertently the Notary Public before whome the same was acknowledged, omitted attaching her jurat.
“2. That before any proceedings were had upon defendant’s motion to dismiss and before any trial in the Magistrate Court, plaintiff asked leave of the Magistrate to complete the said statement and affidavit for replevin by attaching the Notary Public’s jurat; that plaintiff submitted to the Magistrate a brief of authorities showing his right to do so; that said Magistrate erroneously refused to permit the plaintiff to do so and made an order dismissing this suit without prejudice; that said Magistrate refused to make a record that plaintiff had made such request and that the same had been refused.
“Wherefore, plaintiff prays this Court for leave to attach the Notary Public’s jurat to the statement and affidavit for replevin herein.
“(Signed) Arthur Kreisman”

Subsequent to the filing of the above motion a stipulation signed by the attorney for the plaintiff and the attorney for the defendant was filed, and it stated:

“It is hereby stipulated and agreed by and between the parties that the writing in the lower left hand corner of plaintiff’s pleading entitled Stipulation and Affidavit in Replevin which purports to be the signature of Wilda B. Kreisman, Notary Public is not in fact the signature of the said Wilda B. Kreisman and that plaintiff’s Statement in Replevin is not sworn and subscribed to before a Notary Public.”

When the above motions came up for hearing before the Circuit Court, the plaintiff called to the stand Wilda B. Kreisman, the Notary. She testified that Mr. Kreis-man signed the statement and affidavit before her, and that it was taken with other papers and put on her desk. She did not know what happened to it after that. She stated that the signature on it was not hers. At the outset of her testimony the following took place. The witness was asked by Mr. Kreisman: “You say this was sworn to before you?” The court then stated, “No, she didn’t say that at all.” She had in fact not said it, and following the statement by the court Mr. Kreisman asked, “It was signed before you. Was that in the office of Arthur Kreisman?”

She was asked if she was ready to attach her seal and sign the affidavit. An objection was sustained to the question, and this was followed by an offer of proof that she was willing and ready to’ sign the affidavit and affix her seal, and that she had been willing to so do in the Magistrate Court. The offer of proof was rejected and the court denied the plaintiff’s motion for “leave to attach notary seal to affidavit” and sustained defendants’ motion to dismiss without prejudice.

It is of course the contention of the plaintiff-appellant that the court erred in dismissing without prejudice the plaintiff’s petition, and that it should have sustained the plaintiff’s “Motion for leave to attach a Notary Public’s Jurat to Statement and Affidavit for Replevin”. It is conceded that in the absence of an affidavit in a replevin suit before a Magistrate, as required by Section 533.260 RSMo 1949, V.A.M.S., the Magistrate acquires no jurisdiction. We held in Royal Loan Co. of St. Louis v. Darr, Mo.App., 220 S.W.2d 787, that this was the law as it related to Justices of the Peace, and the same is applicable to Magistrate Courts. Article 5, § 20, Constitution of 1945, V.A.M.S.; Thomson v. Bast, Mo.App., 309 S.W.2d 667. The appellant contends, however, that under authority of Clark v. St. Joseph Terminal Railroad Company, 242 Mo. 570, 148 S.W. 472, and State ex rel. Knapp v. Cowan, 230 Mo.App. 226, 88 S.W.2d 424, the trial court should have permitted the Notary Public to sign the affidavit and affix her seal. The Clark case had to do with an affidavit of appeal then required by statute to effect the appeal and give jurisdiction to the appellate court. The affidavit in that case had no- jurat appended, but there was evidence that it had been signed and sworn to before a deputy clerk of the court, who had failed to sign and affix his seal to the affidavit. Following Cooley v. Kansas City, Pittsburg and Gulf Railroad Company, 149 Mo. 487, 51 S.W. 101, the court held that “a jurat omitted from the affidavit upon which an appeal is granted may be supplied by leave of either the appellate or the trial court upon a showing that the affidavit had been properly signed and sworn to.” [242 Mo. 570, 148 S.W. 477.] The case of State ex rel. Knapp v. Cowan, supra, related to the affidavit required by statute to be attached to the plaintiff’s petition in divorce cases. There it was held that if it could be proven that the affidavit was sworn to and signed by the affiant, an oversight of the Notary to sign and seal the same could be corrected by amendment.

The law as stated in these cases does not appear applicable to the facts before us. We are confronted with the stipulation that the “ * * * Plaintiff’s Statement in Replevin is not sworn and subscribed to before a Notary”. When parties agree as to certain facts and enter into a stipulation, they cannot be heard to say on appeal that the facts were other than those stipulated. General Motors Acceptance Corp. v. Vanausdall, 241 Mo.App. 499, 249 S.W.2d 1003. Such a stipulation is a judicial admission constituting an abandonment of any contention to the contrary. Hays v. Missouri Pacific Railroad Company, Mo.Sup., 304 S.W.2d 800.

There is, of course, no affidavit unless there was an actual swearing to the facts which it purported to affirm under oath. State ex rel. Knapp v. Cowan, supra; Federal Chemical Co. v. Farmers Produce Exchange, Mo.App., 118 S.W.2d 1067. It should be noted that even though we disregarded the stipulation, nothing was offered to show that the affidavit was sworn to. At no time throughout the hearing did the appellant offer to prove that Kreisman swore to it. In the absence of such proof there was no affidavit, and nothing to amend.

The order dismissing the petition without prejudice is affirmed.

RUDDY, Acting P. J., and HARRY A. HALL, Special Judge, concur.

ANDERSON, P. J., not participating.

       The word (Seal) is printed, but no seal is affixed.