author: COLLINGS, Justice.

text:
    Roy E. TEDFORD, Appellant, v. J. E. McWHORTER, Appellee.
    No. 3799.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 6, 1963.
    Rehearing Denied Jan. 10, 1964.
    Henry Stollenwerck, Dallas, for appellant.
    Bruce Allen, County Atty., Waxahachie, for appellee.
   COLLINGS, Justice.

Roy E. Tedford brought suit against J. E. McWhorter for false arrest. Plaintiff alleged that McWhorter was Justice of the Peace, Precinct 1, Place 1, Ellis County and unlawfully issued two warrants under which plaintiff was arrested and imprisoned in the county jail of Dallas County, for a period of approximately five hours and, while so imprisoned, suffered a minor heart attack. The defendant answered and set up the defense of judicial exemption. Defendant also filed a motion for summary judgment which plaintiff controverted. The court granted the motion for summary judgment and Tedford has appealed.

It is undisputed that appellant, Roy E. Tedford, was arrested by a Texas highway patrolman in Ellis County on December 19, 1961, and given a ticket which specified a charge of speeding; that appellant signed the ticket, stating he would appear before J. E. McWhorter, Justice of the Peace of Precinct 1, Place 1, in Ellis County on or before December 30, 1961. After his arrest by the highway patrolman, and his signature on the ticket promising to appear, appellant was released. Thereafter a case was entered on the docket of said Justice Court naming the appellant as the defendant on a charge of speeding. On December 26, 1961, appellee J. E. McWhorter wrote a letter to appellant reminding him of his obligation to appear within ten days after receipt of the ticket.

There is a dispute as to whether appellant did so appear on December 28, and it is further disputed as to whether a complaint had at that time been filed against appellant. On January 3, 1962, appellee, Justice of the Peace, wrote another letter to Tedford and when no word was received in response to this second letter warrants for appellant’s arrest were issued by appellee and pursuant thereto appellant was on February 15, 1962, arrested and placed in the Dallas County jail where he was confined for a period of five hours and suffered a minor heart attack. On February 16, 1962, appellant Tedford went to the court room of said Justice of the Peace in pursuance to instanter bonds made after his arrest and asked permission to inspect any complaints against him. He was shown no complaint and there is a conflict in the evidence as to whether a complaint of any kind existed or had been filed against him at that time. Subsequently, on March 15, 1962, appellant was tried and convicted in said Justice Court on the charge of speeding. Appellant urges one point in which it is contended that the court erred in finding that no genuine issue as to any material fact existed.

In order for a detention to constitute false imprisonment the restraint must be unlawfully imposed. 22 American Jurisprudence 399. Appellant urges that the only lawful authority of a Justice of Peace to issue a warrant of arrest is set out in Article 884, et seq. Vernon’s Tex.C.C.P., and that in the absence of a complaint duly filed in the Justice Court there is no jurisdiction of the case, and that the issuance of a warrant of arrest is unlawful. The parties agree that for a Justice of Peace to have authority to issue a warrant of arrest the court must have jurisdiction (1) over the subject matter, and (2) over the person of the defendant. The parties also agree that in the instant case the Justice Court had jurisdiction over the subject matter. The issue in controversy is whether the Justice Court had such jurisdiction, actually or colorably, over the person of Tedford at the time of the issuance of the warrants for his arrest that appellee McWhorter, as a judicial officer, was protected from liability. We are of the opinion that the record conclusively shows the existence of facts at the time of the issuance of the warrants of arrest which constituted colorable jurisdiction over the person of appellant sufficient to protect Justice of the Peace McWhorter from liability, if he acted in good faith.

The general rule is that a judicial officer is not liable for a false arrest arising out of his official action amounting to an excessive or erroneous exercise of jurisdiction where there is no clear abuse of all jurisdiction. In 35 C.J.S. False Imprisonment § 44a, p. 706, it is stated: “In cases over which the judicial officer has general jurisdiction, complaints, affidavits, or other preliminary proceedings (Emphasis Ours) have been held sufficient to protect him in acting thereunder where on a reasonable construction thereof the charge of an offense justifying arrest can be gathered, or where there is presented even in a slight degree a question on which the judicial mind is called to act in determining whether a crime has been committed by the person charged.

“The protection extends to an erroneous procedure, and errors of judgment resulting in improper detention after arrest, and to a second arrest on proof of the insufficiency of bail offered after the first arrest.”

The case of Broom v. Douglass, 175 Ala. 268, 57 So. 860, 44 L.R.A.,N.S., 164, was a suit against a Justice of the Peace for false imprisonment. The Justice of Peace had issued a warrant for the arrest of an accused on an affidavit which was wholly insufficient to charge any criminal offense. The affidavit, however, was clearly an attempt to charge a threatened criminal trespass on the affiant’s land, and stated facts as elements of such purported offense. It was held by the Supreme Court of Alabama that a colorable case was presented which fairly invoked the justice’s judgment as to the sufficiency of the complaint; that under such circumstances the issuance of the warrant of arrest was based upon a judicial act involving the inquiry of the Justice of Peace and his affirmative conclusion, as to his power and authority to do so, for which it was held he was not liable if he acted in good faith. At page 865 of the opinion of 57 So. there is set out the following quotation from Craig v. Burnett, 32 Ala. 728.

“If it appeared that the fact, upon which the jurisdiction of the council over the matter of the imprisonment depended was judicially considered and adjudged by the council, then the defendants would not be liable for their mere error of judgment. Every judicial tribunal, invested with authority to be exercised in a certain contingency, has authority to inquire and ascertain whether the contingency has occurred. Where jurisdiction depends upon the existence of a preliminary fact, there is authority to decide whether that fact exists. A court is entitled to as full protection against an error of judgment in reference to the existence of the jurisdictional fact as in reference to the merits of the suit.”

It is noted that in each of the above cited cases there was a lack of general jurisdiction over the subject matter. It was held that preliminary facts existed in each of the cases which protected the Justice of Peace in one instance and the City Council in the other in the erroneous determination that jurisdiction did exist over the subject matter. The reasoning in each of the cases was that a court is entitled to protection against an error of judgment in reference to the existence of such jurisdiction if there is colorable jurisdiction and the determination that there was actual jurisdiction is made in good faith. In Broom v. Douglass, supra, where as stated the erroneous determination involved general jurisdiction over the subject matter, it was indicated that in such a case “colorable cause” or “colorable invocation of jurisdiction”, meant that a complaint or affidavit against the accused had been made in writing under oath, stating some fact or facts which purported to constitute a criminal offense, thereby calling upon the Judge to pass upon the sufficiency of the affidavit or complaint to illicit the process issued.

In the instant case a slightly different problem is presented. Here it is undisputed that the Justice Court had general jurisdiction over the subject matter. The controversy involves jurisdiction of the person. There can be no question but that the court did not have actual jurisdiction over the person of the accused at the time of the issuance of the warrants sufficient to support a conviction unless complaint had been filed. That fact admittedly is in dispute, and the summary judgment was, therefore, not justified unless “other preliminary proceedings” constituted “colorable cause” sufficient to protect the Justice of the Peace in acting thereunder and issuing the warrant of arrest. Obviously, “colorable invocation of jurisdiction” in a case involving jurisdiction over the person could not be the same as in cases involving jurisdiction over the subject matter. If complaints were filed with appellee Justice of the Peace before the issuance of the warrants of arrest charging appellant with the offense of speeding, and of failing to appear, charges over which the court had general jurisdiction, then admittedly there was both general jurisdiction over the subject matter and actual jurisdiction over the person accused, and the question of “colorable invocation of jurisdiction” is not involved. This, however, is not the case before us. We must assume for the purpose of this appeal that no complaint was filed before the issuance of the warrants of arrest, and that appellee was therefore at least guilty of an error in judgment in issuing such warrants. But we see no reason why a Justice of the Peace is not protected against an error in judgment, made in good faith, in reference to the existence of jurisdiction over the person where there have been preliminary proceedings which “colorably” invoked his jurisdiction.

Under the provisions of Article 6701d, Sections 148, 149, Vernon’s Ann.Tex.Civ. St., and Article 792 of the Texas Penal Code, it is the duty of a peace officer who apprehends and arrests a person for the offense of speeding to give him a duplicate ticket or summons to appear in court to answer the charge, and to thereupon release the person arrested, if he gives his written promise to appear. The violation of such a promise to appear in court is made a misdemeanor offense regardless of the disposition of the charge upon which the arrest was made.

Article 343, Texas Penal Code, provides as follows:

“The word ‘accusation’ as used in this Code means a charge made in a lawful manner against any person that he has been guilty of some offense which subjects him to prosecution in the name of the State. One is said to be ‘accused’ of an offense from the time that any ‘criminal action’ shall have been commenced against him.
“A legal arrest with or without warrant; a complaint to a magistrate, or an indictment are examples of accusation.”

Article 24, Texas Penal Code, provides as follows:

“A ‘criminal action’ means the whole or any part of the procedure which the law provides for bringing offenders to justice; and the terms ‘prosecution’ and ‘accusation’ are used in the same sense.”

Unquestionably a criminal action or proceeding was commenced against appellant when he was apprehended by the highway patrolman and signed the ticket agreeing to appear in the Justice Court on a charge of speeding. This original apprehension of appellant by the patrolman was a lawful arrest even though there was no warrant. In our opinion this arrest of appellant, the ticket or summons given to him by the highway patrolman to appear before the Justice Court on a charge of speeding and his written promise to appear constitute “other preliminary proceedings” and show “colorable cause” or “invocation of jurisdiction” which protect appellee in his determination to issue the warrants of arrest, if his determination was made in good faith.

We now come to a consideration of the question of appellee’s good faith. Appel-lee, in his motion for summary judgment, stated under oath that in executing such warrants of arrest he acted in good faith in his official capacity as Justice of the Peace. We agree with the trial court that a judicial question was presented to ap-pellee concerning his authority to issue the warrants of arrest. Even so, he was not entitled to judicial immunity for his erroneous decision unless he was acting in good faith. Appellee stated under oath that he was so acting. Since, however, he is an interested witness his sworn statement that he was acting in good faith, though undisputed, is not conclusive. There was an issue of fact, not only on the question of whether a complaint had been filed at the time appellee issued the warrants of arrest, but also, on the question of whether appel-lee acted in good faith in issuing the warrants if it should be found that no complaints were then filed.

For the reasons stated, the judgment is reversed and the cause is remanded.

ON MOTION FOR REHEARING.

Appellee urges in his motion for rehearing that we erred in holding that appellee’s liability is contingent upon the question of whether he was acting in good faith in issuing the warrants of arrest, and that ap-pellee had the burden of showing his good faith; erred in holding that a jury question exists in this cause and erred in holding that there was an issue of fact as to appel-lee’s good faith; that we erred in not holding that appellee, a judicial officer, acted in good faith in issuing the warrants of arrest, and that we erred in reversing and remanding and in not affirming the judgment.

Upon reconsideration we have decided that we did err in reversing the judgment and in remanding the cause, and have concluded that the judgment should be affirmed. There were “other preliminary proceedings” which showed “colorable cause” or “invocation of jurisdiction” over the person of appellant, and a judicial question was presented concerning appellee’s authority to issue the warrants of arrest. Since there was colorable jurisdiction over the person of the appellant and a judicial determination was involved appellee cannot be held liable even though he improperly determined the question of his jurisdiction and this is true even if it could be determined that he did not act in good faith. We are now of the opinion that we erred in holding that the burden was on appellant to show his good faith. In Rains v. Simpson, SO Tex. 495, 499 it was stated:

“From the very necessity of the case, this immunity from private liability extends not only to negligent, but willful and malicious judicial acts. * * *
* * * * * *
That able jurist, Judge Cooley, in a valuable contribution on this subject in 3 Southern Law Review, (N.S.,) 547, says: ‘But our own view is, that the doctrine that a public officer, acting within the limits of his jurisdiction in the discharge of a discretionary duty, can be held liable upon an assumption that he has acted willfully or maliciously, is an exceedingly unsatisfactory and dangerous one; and that those decisions are safest and most consonant to public policy which deny it altogether. Motives are not always readily justified to the public, even in cases where they have been purest; and the safe rule for the public is that which protects its officers in acting fearlessly, so long as they keep within the limits of their legal discretion.’ ”

In Turner v. Pruitt, 161 Tex. 532, 342 S.W.2d 422, Judge Calvert, speaking for our Supreme Court, stated as follows:

“The same reasons underlying immunity of district judges from tort liability for acts performed or not performed in judicial proceedings require a conclusion that justices of the peace should enjoy like immunity when acting in the course of judicial proceedings of which they have jurisdiction.”

In affirming the trial court in the cited case the Supreme Court approved the dissenting opinion of Associate Justice Wilson in the Court of Civil Appeals. (See Pruitt v. Turner, Tex.Civ.App., 336 S.W.2d 440). Justice Wilson stated in his dissent as follows :

“In Mabry v. Little, 19 Tex. 337, Justice Wheeler held that even if the unlearned justice of the peace had no jurisdiction, if the plaintiff submitted to his jurisdiction he waived the trespass and an action for damages would not lie. In Anderson v. Roberts, Tex.Civ.App., 35 S.W. 416, 417, the rule is stated that even if the justice improperly determines he has jurisdiction, he cannot be held liable for his acts for ‘When the state confers judicial powers upon an individual it confers him with full immunity from private suits.’ The general rule is similarly stated in 51 C.J.S. Justices of the Peace § 19, p. 36, and 173 A.L.R. 802. The jurisdictional test has been reiterated by such venerable authorities as Coke, Bacon, Blackstone, Kent and the ancient Dalton’s ‘Countrey Justice.’ ”

The ticket or summons given to appellant by the highway patrolman to appear before the Justice Court on a speeding charge and his written promise to appear constituted “other preliminary proceedings” and were a colorable invocation of jurisdiction over the person of appellant. This colorable jurisdiction protected appellee in his decision to issue the warrants for appellant’s arrest and he is immune from personal liability in a civil action even though his acts may have been in excess of his jurisdiction.

The judgment is affirmed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Murry BRYANT, Appellant, v. John HAMLIN et al., Appellees.
    No. 16256.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1963.
    Rehearing Denied Jan. 3, 1964.

      Muse, Currie & Kohen, Dallas, for appellant.
    Earl Luna and Wise & Stuhl, Dallas, for appellees.
   BATEMAN, Justice.

This is a will contest. Appellant is the proponent and appellees are the heirs at law and contestants. After denial of probate by the probate court, there was a jury trial on appeal in the district court. At the conclusion of appellant’s evidence, the court on motion of appellees withdrew the case from the jury and denied probate of the will. For the reasons hereinafter given, we reverse and remand.

By his first three points of error appellant asserts that there was at least some evidence of probative value to show substantial compliance with §' 88 of the Texas Probate Code, V.A.T.S., which sets forth the proof required for the probate of a will, entitling him to a jury trial. If there was such evidence, the judgment appealed from is incorrect and should be reversed. “If an issue of fact is raised by the evidence, it must go to the jury even though a verdict based on such evidence would have to be set aside as not supported by sufficient evidence.” Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W.2d 194, err. ref.

In considering and deciding the question thus presented, it is the well established rule that credit must be given to all evidence favorable to appellant, every legitimate conclusion favorable to him indulged, and all adverse evidence disregarded. Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236; Wininger v. Ft. Worth & D. C. Ry. Co., 105 Tex. 56, 143 S.W. 1150.

The testator was one Z. B. Hamlin, an unmarried man who was alleged to have died in Dallas County on October 26, 1960, at the age of 65 years, leaving a duly executed written will dated August 3, 1959, on which the subscribing witnesses were E. O. Perry and J. D. Carney. This will was in evidence and on its face appears to be a valid will.

There are seven requirements set forth in Subdivisions (a) and (b) of § 88 of the Texas Probate Code, applicable to a case like this, and in discussing the evidence we shall first set forth the requirement of each subdivision of § 88, followed by the evidence claimed by appellant to constitute substantial compliance therewith.

§ 88 (a) (1) That the person is dead, and that four years have not elapsed since his decease and prior to the application. The witness Carney testified that he knew Hamlin very well during his lifetime, that he knew him at the time of his death in October of 1960 and had known him then approximately forty years. Moreover, it should be noted that in their first amended contest of the will, the appellees used the phrase “Zeb Bailey Hamlin, deceased” at least four times and alleged that a temporary administrator should be appointed to administer the estate of the decedent during the pendency of the will contest. Therefore, the evidence was sufficient to satisfy the first requirement.

§ 88(a) (2) That the court has jurisdiction and venue over the estate. Of course, as pointed out in the Interpretative Commentary following Section 88, Probate Code, V.A.T.S., all county courts have original jurisdiction over estates and all district courts have appellate jurisdiction over them. Therefore we are concerned here only with the matter of venue, which is fixed by § 6 of the Probate Code in the county where the deceased resided if he had a domicile or fixed place of residence in the State. The witness Carney testified that during his lifetime Hamlin lived on a farm north of Garland, and the witness Perry testified that he knew where Hamlin lived, that it was north of town, in Dallas County, he would say, although he did not know where the county line was. A prior will was in evidence dated July 23, 1958, which recited that Hamlin resided in Dallas County and that the will was signed in Dallas County. The will in question also recites Dallas County as being the residence of the testator. Appellees in their contest did not question jurisdiction or venue of either the Probate Court of Dallas County or the District Court of Dallas County but on the contrary recognized both jurisdiction and venue by praying the court to appoint a temporary administrator of the estate during the pendency of the will contest. Hence, we hold the evidence sufficient to meet the second requirement.

§ 88(a) (3) That citation has been served and returned in the manner and for the length of time reqiñred by the Code. The judgment of the probate court expressly recited “that every citation and notice required by law had been duly issued, served and returned in the manner and for the length of time required by law.” Appellees argue that this judgment cannot be considered as it was not introduced in evidence in the trial de novo in the district court. However, it is in the transcript before us. The transcript also shows that the appellees’ contest was filed just eight days after the application to probate the will was filed, indicating no lack of actual notice to appellees. Under these circumstances, we hold the proof was sufficient to carry the question to the jury.

§ 88(a) (4) That the person seeking letters testamentary is entitled thereto by law and is not disqualified. We find no evidence either way, but point out that a failure to establish a right to letters testamentary, or that the applicant is not disqualified, would not defeat the application to have the will admitted to probate. In fact, under § 178(a) the court would have had twenty days after admitting the will to probate in which to grant letters testamentary. Moreover, appellees in their brief in this court do not even mention this requirement.

§ 88(b) (1) That the testator was at least 19 years of age and of sound mind. The witness Carney testified that he knew for a fact that in August, 1959 Hamlin was more than 21 years of age, and the witness Perry testified that Hamlin was over 20 years of age and was a grown man. On the matter of soundness of mind of the testator, the witness Carney testified that after knowing Hamlin for forty years and seeing him and conversing with him he had formed an opinion as to whether at the time of signing the will Hamlin was of sound or unsound mind, and that at that moment he was of sound mind; that in August of 1959 he appeared like he had for forty years, as if he had a good mind on him. The witness Perry testified that during the time he knew Hamlin over a period of twenty years he had conversations with him just about every time he would see him; that through these conversations with him and his casual acquaintance with him he did form an opinion as to the soundness of his mind, and that in his opinion Hamlin did have a sound mind. We hold that this testimony would be sufficient to carry the issue to the jury. Hassell v. Croft, Tex.Civ.App., 324 S.W.2d 272, 274, err. ref. n. r. e.; Taylor v. Taylor, Tex.Civ.App., 281 S.W.2d 232, 235, err. ref. n. r. e.

§ 88(b) (2) That the testator executed the will with the formalities and solemnities required by law. These solemnities and formalities are found in § 59 of the Probate Code. They require the signing of a written will by the testator and the attestation thereof by two credible witnesses above the age of 14 years, who shall subscribe their own names thereto in their own handwriting in the presence of the testator. E. O. Perry testified that he had lived in Garland, Texas since 1933, and J. D. Carney testified that he had lived in Dallas County fifty-eight years. This should certainly establish, in the absence of evidence to the contrary, that these men were at least 14 years of age at the time of execution of the will. Without setting forth the testimony in detail, these two witnesses testified that Hamlin signed the will in their presence and they signed it as witnesses at the same time; that all three of them were present at the time of signing. Appellees introduced in evidence a written statement by Carney in which he stated that before the signing he read the will to Hamlin and that Hamlin, Murry Bryant, E. O. Perry and he were all in the same room when the signing was done by Hamlin, Perry and himself. Perry testified that Hamlin signed the will at the time he, Perry, signed it, and that Hamlin signed it in the presence of Perry. Several checks of Hamlin were introduced, and there was expert testimony that the signature thereto and that on the will were in the same handwriting. We consider all of this evidence together as being sufficient to show compliance with §§ 59 and 88(b) (2) of the Probate Code. Ludwick v. Fowler, Tex.Civ.App., 193 S.W.2d 692, err. ref. n. r. e.

§ 88(b) (3) That the will was not revoked by the testator. § 63 of the Probate Code provides only two means by which a will can be revoked: (1) A subsequent will, codicil, or declaration in writing, executed with like formalities, or (2) destruction or cancellation of the will by the testator or at his direction in his presence. The witness Carney testified that he knew of no other instrument executed by Hamlin since August 3, 1959 which would revoke this will. Obviously the will was not destroyed or cancelled because it was introduced in evidence. We hold that the evidence introduced was sufficient to meet this requirement. Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571, 573; Womack v. Woodson, Tex.Civ.App., 169 S.W.2d 786, 788, err. ref.; 44 Tex.Jur. “WILLS”, p. 637-8, § 94.

Accordingly, appellant’s first three points of error on appeal are sustained.

During the trial counsel for appellees repeatedly insisted that appellant’s evidence as to the soundness of Hamlin’s mind was not admissible because no px-oper predicate was laid therefor by showing that the witnesses had had sufficient personal contact with, and opportunities to observe the conduct, expressions, peculiarities, etc. of, the testator to form an intelligent opinion. In their brief in this court appellees endeavor to justify the trial court’s action in withdrawing the case from the jury on the ground that such evidence, being inadmissible, was properly disregarded by the court, citing Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 36 L.R.A. 64; Bell v. Bell, Tex.Civ.App., 248 S.W.2d 978, err. ref. n. r. e.; and Pickering v. Harris, Tex.Com.App., 23 S.W.2d 316.

Appellant’s fourth point of error asserts that where the court has received evidence on behalf of the party having the burden of proof (appellant), even though the trial court may later decide that such evidence was legally inadmissible, the court could not properly disregard such evidence and render judgment against appellant without advising him that such evidence was being withdrawn from consideration of the jury and giving him an opportunity to produce other evidence which would be admissible. We sustain this point, on the authority of Woodall v. Adams, Tex.Civ.App., 7 S.W.2d 922, 925, no wr. hist., where the court said:

“While we hold that the deposition of Woodall was inadmissible as against appellees and should not have been admitted as against them, we think its admission misled appellant into the belief that it would be considered by the court in his behalf, and its withdrawal left him without any evidence upon a vital issue and perhaps without an opportunity to otherwise make proof of the matters inquired about in the propounded interrogatories. We do not think appellant should be so entrapped.”

Reversed and remanded.


author: NYE, Justice.

text:
    CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v. H. L. WADE, Appellee.
    Motion No. 18.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 19, 1963.
    Rehearing Denied Jan. 9, 1964.
    B. D. McKinney, of Baker, Botts, Shepherd & Coates, Houston, for appellant.
    Bob Spann, of McDonald & Spann, Corpus Christi, for appellee.
   NYE, Justice.

Appellant, on October 22, 1963, filed Motion No. 18 herein asking for an extension of time within which to file the statement of facts and transcript with the Clerk of this Court. The Motion is not verified, does not show on what date the judgment was rendered, whether or not a motion for new trial was filed, nor from what court the appeal has been taken. The motion admits that the appellant has not filed a transcript and statement of facts with the clerk of this Court within the sixty days required by Rule 386 Texas Rules of Civil Procedure.

Rule 386 T.R.C.P. provides as follows: “Time to File Transcript and Statement of Facts: In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.”

The record was tendered for filing and was received by the clerk of this Court on November 14, 1963, some twenty-three days .after the filing of the motion for enlargement of time.

If the record is tendered after the sixty-day period has expired, as in this case, the appeal will be dismissed by this Court for want of jurisdiction, unless the appellant’s motion filed before, at or within a reasonable time not exceeding fifteen days after the expiration of said sixty-day period, shows good, cause to have existed -within such sixty-day period why said transcript and statement of facts could not be so filed. The provisions of this rule are mandatory and jurisdictional and therefore must be complied with in order to invoke appellate jurisdiction. Hanna v. Homes Insurance Company, 260 S.W.2d 891 (Tex.Civ.App. 1953, ref. n. r. e.); Eldridge v. Lake Whitney Enterprises, 231 S.W.2d 466 (Tex.Civ.App.1950); Dellerman v. Trager, 327 S.W.2d 667 (Tex.Civ.App.1959, writ dis.)

Without the filing of a motion showing the existence of good cause for failure to timely file the record, the appeal must be dismissed. We must examine appellant’s motion to determine whether or not it has shown good cause to have existed within such sixty-day period why such transcript and statement of facts could not be so filed. Omitting formal parts the motion reads as follows:

“TO SAID HONORABLE COURT:
“Appellant, in the above entitled and numbered cause, would show that it has taken appeal from the judgment of the trial court rendered herein, that it has not filed the transcript and the statement of facts therein with the clerk of this court within the sixty days required by the ride; that within this, a reasonable time, and not exceeding fifteen days after the expiration of such sixty day period it makes this motion and shows that good cause existed, within such sixty day period and to this date, why such transcript and statement of facts could not be so filed, viz: That the transcript and statement of facts have both been prepared and were prepared before such sixty day period expired; however, counsel for appellant inadvertently failed to see that the counsel for appellee had read the statement of facts and signed it until such a short time before the sixty day period expired, that there was insufficient time for counsel for appellee to carefully examine the said statement of facts, and said counsel for appellee has agreed to this extension, as evidenced by his signature hereon. Such cause will be removed within fifteen days.
“WHEREFORE, movant prays that this honorable court permit such transcript and statement of facts to be filed at such time and upon such terms as it may be prescribed, giving it at least a fifteen day extension.” (emphasis supplied)

It is the duty of this court to determine its jurisdiction and to take note of the lack of appellate jurisdiction when disclosed by the record. The inadvertent failure of the attorney for the appellant to see that the counsel for the appellee had read the statement of facts and signed it prior to the expiration of the sixty-day period is not a showing of good cause for the failure to timely file the transcript and statement of facts. The Supreme Court has held that the restriction setting out the time under Rule 386 leaves the Court of Civil Appeals but with little discretion in determining whether or not to permit the late filing of the record. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952).

The motion provides for an agreement by opposing counsel but such agreement was not signed or attached to the motion; however, on the following day, October 23, 1963, after the motion was filed, the attorney for the appellee filed a letter with the clerk of this Court stating that he had no objection to the requested extension of time and consented to the enlargement of time.

The Texas cases are numerous and uniform in holding that agreement, waiver or stipulation of counsel to extend the sixty-day period to file the transcript and statement of facts, standing alone, cannot be considered as a substitute for the statutory rule providing that good cause must have existed within the sixty-day period in order for the Courts of Civil Appeals to grant an extension of time.

It has always been the law in the State of Texas that appellate jurisdiction may not be created by agreement. The timely filing of the record in the Court of Civil Appeals is a jurisdictional requisite; it cannot be waived. Ortiz v. Associated Employers Lloyds, 294 S.W.2d 880 (Tex.Civ.App.1956); Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956 (1943); Schleicher v. Runge, 90 Tex. 456, 39 S.W. 279 (1897); Lyell v. Guadaloupe County, 28 Tex. 57, 58 (1859); Straley v. Commissioners’ Court of Lampasas County, 266 S.W.2d 469 (Tex.Civ.App.1954); Stolz v. Wood Sherman Const. Co., 67 S.W.2d 412 (Tex.Civ.App.1933, writ dis.); Christensen v. Anderson, 24 Tex.Civ.App. 345, 58 S.W. 962 (1900). In an opinion by Chief Justice Langdon, the El Paso Court said: “Jurisdiction of the appellate court is derived from the law and it cannot be conferred by consent or stipulation of the parties, nor may it be waived either by the court or by a party litigant.” Smith v. Crouch, 323 S.W.2d 73, (Tex.Civ.App.1959 writ dismissed).

Appellant has filed an unsworn instrument designated as “Second Motion for Extension of Time”. This Motion, No. 36 in this Court, was delivered to the clerk twenty-nine days after the filing of the first motion for enlargement of time. It was admittedly filed after the sixty days mentioned in Rule 386 T.R.C.P. and filed subsequent to the fifteen days also mentioned in said Rule. As grounds for good cause in the second motion, appellant alleged that “no prejudice will result to anyone from a filing of the record in said cause late”. Appellee filed a response to appellant’s second motion for extension of time objecting to the enlargement of time because the motion fails to set forth good cause for the late filing of the transcript and statement of facts in the Court of Civil Appeals.

This Court does not have jurisdiction to act on a second motion filed after the fifteen days provided by Rule 386. Carter v. City of Fort Worth, 357 S.W.2d 581 (Tex.Civ.App.1962). We do take this occasion to note, however, that the appellant does not allege justification for the late filing of the transcript and statement of facts within the sixty days and has, therefore, not shown good cause to have existed in this hi3 second motion. Motion No. 36 is dismissed for want of jurisdiction.

The original Motion No. 18 is overruled.


author: SHARPE, Justice.

text:
    W. L. D. WINSHIP et al., Appellants, v. CITY OF CORPUS CHRISTI, Appellee.
    No. 15.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 19, 1963.
    Rehearing Denied Jan. 9, 1964.

      Sidney P. Chandler, Allen Davis of Boone, Davis, Cox & Hale, Corpus Christi, for appellants.
    Ike Singer, City Atty., James Ryan, W. D. Pilcher, Asst. City Attys., Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal from a summary judgment rendered in favor of the City of Corpus Christi, Texas, appellee, and from the order of the trial court refusing to grant the motion for summary judgment filed by some of appellants.

The suit involves two annexations of territory by the City of Corpus Christi in the years 1961 and 1962. It was instituted against the City by a group claiming to be property owners and taxpayers within the territory sought to be annexed. Another group intervened, claiming to be taxpayers and property owners within the former city limits. Nueces County Water Control & Improvement District No. 2 also intervened and thereafter plaintiffs amended, naming Nueces County Fresh Water Supply District No. 1 as an additional defendant. All of the said parties, except the City of Corpus Christi, appear herein as appellants, contending that the said annexations are invalid and that the trial judge should not have sustained the motion for summary judgment of the City upholding the same.

It appears from the record, and all parties agree, that there is no genuine issue as to any material fact and only questions of law concerning the validity of such annexations are presented on this appeal.

The record shows that the annexations of August, 1961, and September, 1962, included a portion, but not all, of Nueces County Water Control & Improvement District No. 2, and the annexation of September, 1962, included a portion, but not all, of Nueces County Fresh Water Supply District No. 1. The annexations were approved by the qualified voters of the City at separate elections held in 1961 and 1962, and ordinances were passed incorporating the new territory into the City of Corpus Christi. Voting in such elections was not limited to the legally qualified property tax paying voters and there was no election held for the voters in the territory sought to be annexed. In neither of such elections was there submitted any proposition relating to the assumption of debt, expenditure of money, or issuance of bonds or lending of credit.

Appellants urge seven points of error in connection with the action of the trial court in granting summary judgment in favor of the City and in refusing their similar motion. Appellee urges six counter-points for upholding the action of the lower court.

Appellants’ points are so general that in order to determine the contentions made it has been necessary for us to refer to the statement and argument in connection therewith. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197 (1956). From such examination it appears that appellants’ primary contention is that Article 1182a, Vernon’s Ann.Civ.Tex.St., prescribed the method to be followed by the City in annexing territory, and since the City did not follow such method that the annexations are void.

Appellants also contend that even if Article 1182a does not apply to the instant annexations, the voters participating in the elections must be qualified under Article VI, § 3 and § 3a, Texas Constitution, Vernon’s Ann. St. that is, be legally qualified property taxpaying voters, where districts with bonded indebtedness are to be annexed; that Articles 1182a, 1182c-l, V.A.T.S., and equity require the City to assume its pro-rata part of the bonded indebtedness of the districts annexed; that the City Charter does not authorize annexation of parts of water districts by ordinance or without the consent of the voters in the area to be annexed; and that the instant annexations amount to a taking of the property of appellants without due process of law in violation of the Constitutions of the State of Texas and of the United States, and are void.

We have concluded that all of appellants’ contentions are without merit and should be overruled.

The City of Corpus Christi, Texas, is a home rule city operating under the provisions of Article XI, § 5, Constitution of the State of Texas, commonly known as the Home Rule Amendment. A city of such class may exercise all of the legislative powers vested in it by the Constitution and laws of Texas and by the provisions of its charter, including the annexation of additional territory adjacent to it. Golston v. City of Tyler, 262 S.W.2d 518 (Tex.Civ.App., 1953, writ refused).

It is undisputed that the City did not attempt to effect the said annexations under Article 1182a, but that the same were conducted under provisions of the City Charter. The material portions of such charter provisions are set out below.

We hold that the City of Corpus Christi was not required to comply with the provisions of Article 1182a and was authorized to follow the provisions of its charter in connection with the annexations here involved. Article 1182a is not exclusive in its operation, but, on the other hand, is cumulative of established methods of annexing territory provided for by city charters. City of Pelly et al. v. Harris County Water Control & Improvement District 7 et al., 145 Tex. 443, 198 S.W.2d 450 (1946); City of Fort Worth v. State ex rel. Ridglea Village, 186 S.W.2d 323 (Tex.Civ.App., 1945, writ refused w. o. m.); Turner v. City of Beaumont, 197 S.W.2d 114 (Tex.Civ.App., 1946, writ refused n. r. e.); Allen v. City of Austin, 116 S.W.2d 468 (Tex.Civ.App., 1938, writ refused).

Article 1182c-l, V.A.T.S., enacted in 1957, contains provisions concerning annexation of less than all of the territory of water control and improvement districts and fresh water supply districts. Among other things, such statute provides that the governing authorities of the City and District in question may enter into contracts regarding division and allocation of duplicate and overlapping powers, functions and duties. Said statute further provides that in the absence of such contract, the district shall be authorized to continue the exercise of all its powers and functions which it had prior to annexation and the city shall not duplicate the services of the district within its boundaries without the district’s consent. Article 1182c-l clearly recognizes the right of the City to annex less than all of the -water district or fresh water supply district without assumption of indebtedness or expenditure of money.

The validity of Article 1182c-l has been upheld in the case of Forbes v. City of Houston, 304 S.W.2d 542 (Tex.Civ.App., 1957, writ refused n. r. e.); and it is specifically held therein that said Article does not violate § 3 and § 3a of Article VI, Texas Constitution. The last mentioned sections merely prescribe the qualifications of voters where the matter of assuming or creating indebtedness is actually submitted to the people. In the present case, there was no requirement and it was not necessary to submit such questions in connection with annexation and they were not submitted.

Our Supreme Court has recently passed upon a case where a city annexed part of a water district without resolving questions of indebtedness or expenditure of money. Jefferson County Water Control and Improvements District No. 5 v. City of Port Arthur, et al., 160 Tex. 136, 327 S.W.2d 415 (1959). It there appeared that a tract of land situated within a water control and improvement district had been annexed to the city under provisions of the city charter. The owners and said tracts wanted to subdivide it and agreed with the city that it should furnish water and sewer lines and service to said subdivision. The water district opposed this agreement and the city and others filed suit for declaratory judgment seeking a determination that the city had a lawful right to contract with the land owners to furnish such services and that the district had no lawful right to interfere with the city in furnishing the same. The Supreme Court rejected the city’s contention and held under Article 1182c-l that since there had been no agreement between the City and the water district concerning the furnishing of such services that the city had no right to undertake the same and that the statute was enacted to prevent waste by prohibiting duplication of services.

It is apparent that under Article 1182c-l and the cases herein discussed that since the instant annexations did not cover all the territory of the two districts involved, there were no questions concerning assumption of indebtedness or expenditure of money or issuance of bonds or lending of credit which were required to be submitted to the voters at the elections held in 1961 and 1962. Such matters may be resolved at a later time and do not constitute impediments to annexations under the City Charter.

It should be pointed out that the present provisions of the charter of the City of Corpus Christi concerning annexation are not the same as those involved in the case of State ex rel. Wilkinson v. Self, Mayor of Corpus Christi, 191 S.W.2d 756 (Tex.Civ.App., 1945, no writ hist.), the charter having been thereafter amended. However, the Court pointed out, even then, there were two methods whereby the City of Corpus Christi might annex additional territory, one under its charter and the other under Article 1182a.

Appellants’ contentions that the instant annexations amount to a taking of their properties without due process contrary to state and federal constitutional provisions are not supported by the record and are without merit. The questions as to what property shall be embraced within a municipal corporation and taxation of same for municipal purposes present questions essentially political and which by the Constitution are to be determined by the Legislature ; and, particularly, as to extension of boundaries, by cities operating under the Home Rule Amendment. The constitutional inhibition against taking private property for public use without compensation has reference solely to the exercise of the right of eminent domain and not to taxation for public use. State, ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780 (1957); Norris v. City of Waco, 57 Tex. 635 (1882).

We, therefore, hold as follows: The City of Corpus Christi correctly and properly made the annexations in question under the provisions of its charter and was not required to comply with the provisions of Article 1182a, V.A.T.S. The City was not required to limit the voting in the annexation elections to the legally qualified property taxpaying voters as defined in § 3 and § 3a, Article VI, Texas Constitution. The City was not required to assume the indebtedness or properties of the districts involved, since only portions thereof were annexed. The questions involved were not required to be submitted both to the voters in the City and in the territory to be annexed. The instant annexations do not amount to a taking of appellants’ properties without due process of law and are not in violation of either the Constitution of Texas or the Constitution of the United States of America.

The judgment of the district court is affirmed.

      . Ordinance No. 6206, passed on July 32, 1961, by the City Council of Corpus Christi, called an election to be held within the limits of said City on August 5, 1901. Ordinance No. 6242, passed on August 5, 1961, annexed the territory described therein to the City. Ordinance No. 6586, passed on August 1,1962, called an election to be held within the limits of said City on September 15, 1962. Ordinance No. 6636, passed on September 19, 1962, annexed the territory described therein to the City of Corpus Christi, including that described in Ordinances Numbers 6206 and 6242.

      . Article 1182a provides, among other things, that where the City Commission of a home rule City initiates an order for an election under the terms thereof, the same shall include both the questions of annexation and assumption of bonded indebtedness and flat rates owing to a Water Control and Improvement District which is involved; and that such questions shall be voted on by the legally qualified property taxpaying voters within the city and those of the same class in the territory to be annexed, and that the annexations must carry by majority vote in each of said territories.

      . “Section 2. ANNEXATION.* The City of Corpus Christi is empowered to annex additional territory adjoining or lying adjacent to the City in the manner set forth in either of the following subsections (a), (b), or (c).
      “(a) The question of annexation of a given territory may be submitted to the qualified voters of the City at an election duly called for such purpose; and if a majority of such qualified voters voting at such election favor the annexation of such territory, the same shall be annexed by ordinance of the City Council; and when any additional territory has been so annexed, the same shall be a part of the City of Corpus Christi and the property therein shall bear its pro rata part of the taxes levied by the City, and the inhabitants thereof shall be entitled to the rights and privileges of all the citizens, and shall be bound by the acts, ordinances, resolutions and regulations of the City. Such question of annexation of any given territory may be submitted to the qualified voters of the City at any time upon the majority vote of the members of the Council. The question of annexation of any given territory may come before the Council for consideration upon either (1) the will of the Council, or (2) the written recommendations of the Zoning and Planning Commission of the City, or (3) petition signed by not less than 1,500 qualified voters of the City, or (4) petition signed by not less than
      10% of the qualified voters residing in the territory proposed to he annexed.” (Sub-sections (b) and (c) are not material to this case.)


author: CLAYTON, Justice.

text:
    Maud Lillian WILSON, Individually and as Independent Executrix of the Estate of J. R. Wilson, Deceased, Appellant, v. Clyde R. VANCE et al., Appellees.
    No. 5583.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 4, 1963.
    Rehearing Denied Jan. 8, 1984.

      Thompson, Walker, Smith & Shannon, Paul C. Cook, Fort Worth, Hill D. Hudson, Pecos, for appellant.
    John P. Dennison, Ralph E. Page, Pecos, for appellees.
   CLAYTON, Justice.

Suit was brought against appellant individually and as Independent Executrix of the Estate of J. R. Wilson, Deceased, to set aside trustee’s sales under four deeds of trust covering a section of land in Reeves County, Texas. Appellant filed a counter-claim in trespass to try title against the four appellees, and also joined as cross-defendant Billie Sol Estes, who had purchased the land in controversy from appellant’s deceased husband and had executed four deeds of trust in favor of the husband and then had conveyed the land to appellees and leased it back from them. Motions for summary judgment were filed by appellees and also by appellant on the basis of pleadings and depositions. The trial court overruled appellant’s motion for summary judgment and granted appellees’ motion for summary judgment, and this appeal resulted.

The essential facts are not in dispute. On March 28, 1956 J. R. Wilson, later deceased, joined by his wife, appellant herein, conveyed by four separate deeds a section of land in Reeves County, Texas to Billie Sol Estes. A vendor’s lien was retained in each of said deeds to secure the unpaid balance of the purchase price represented by notes executed by Estes, and four separate deeds of trust, to further secure such indebtedness, were executed by Estes to A. C. Parks, trustee for the benefit of Wilson. These deeds of trust were filed for record in Reeves County on March 30, 1956. Upon the death of Wilson, appellant became the legal and equitable owner of the notes. Estes became delinquent in his payments on said notes. In April, 1960, L. T. Wilson, a Wichita Falls attorney and son of the appellant herein, obtained a partial payment from Estes on the delinquent portion of said notes, but the notes were not brought up to current status and suit was filed by appellant against Estes to recover on the notes, plus interest and attorney’s fees. This suit was filed in Wichita County, L. T. Wilson claiming in his deposition that this was done at the request of Estes, who is alleged to have stated that a suit in Reeves County would throw him (Estes) into bankruptcy. Although the petition in said suit pleaded the existence of the deeds of trust and asked their foreclosure, the judgment that was entered in the suit was a purely money judgment and no mention was made of foreclosure of the liens. The judgment was dated August 8, 1960, but it was not filed with the clerk of the court until February 16, 1961. These are points that will be subsequently discussed at more length.

On the 31st day of October, 1960, Estes conveyed, by four separate deeds, the surface of the land in question to the four appellees, and simultaneously with said deeds, each grantee leased the land deeded to him back to Estes. Apparently unaware of these conveyances, appellant, by letter of March 17, 1961, authorized the trustee, Parks, to proceed under the terms of the four deeds of trust to conduct trustee’s sales. Pursuant thereto, notices of the sales were posted and the sales took place on May 2, 1961, the property being struck off to appellant as Independent Executrix of the Estate of J. R. Wilson, Deceased. Appellees’ suit to set aside the trustee’s deeds followed in June, 1961 and, as stated, resulted in summary judgment being granted to appellees.

In the judgment, the trial court found that appellant had elected to invoke the remedy of judicial foreclosure of her deed of trust liens rather than through the exercise of the power granted under the said deeds of trust, and that the remedy so elected was pursued to a conclusion and that the issue of judicial foreclosure was finally determined by the court in Wichita County. Appellant’s second point of error is assigned to this finding of the trial court. The court further found that the trustee had failed to give sufficient notice of his proposed trustee’s sales by posting notices in three public places in Reeves County, where the property was situated, and this holding is the basis of the first point of error. The third point of error relates to the court’s refusal to grant appellant’s motion for summary judgment for title and possession of the land in controversy.

We direct our attention first to appellant’s second point of error which relates to the court’s finding that appellant had elected to follow, and had pursued to conclusion, her remedy of judicial foreclosure of her deed of trust liens, and therefore was barred from later exercising her alternate remedy of foreclosure out of court under the power granted her under the said deeds of trust. What seems to be the prevailing rule in Texas relative to election of inconsistent remedies was enunciated in Seamans Oil Co. v. Guy, 262 S.W. 473 (Tex.Com.App., 1924; adopt. Opinion) as follows:

“ ‘If one having a right to pursue one of several inconsistent remedies makes his election, institutes suit, and prosecutes it to final judgment or receives anything of value under the claim thus asserted, or if the other party has been affected adversely, such election constitutes an estoppel thereafter to pursue another and inconsistent remedy. * * * ’ 10 R.C.L. 703, 704.”

In a review of the facts in the Seamans Oil case on certified question, the Commission of Appeals (276 S.W. 424, 1925, adopt. Opinion) repeated the above-stated rule, while especially holding that a decision was not required on the question of whether, under all circumstances, the mere filing of a suit, which is not prosecuted to judgment, based on an inconsistent cause of action, is an irrevocable election to rely on the remedy being sought, and a com-píete bar to an action thereafter filed seeking relief which is repugnant to that claimed in the former suit. See also: Election of Remedies, 6 A.L.R.2d 20, 76, 77. In 21 Tex.Jur.2d 208, 209, sec. 10, Election of Remedies, it is set out that the mere institution of suit or application for a remedy does not constitute an election of remedies, unless it appears that the litigant has received some benefit or that his opponent has suffered some loss or detriment. (See cases cited to the text.) Since this same rule has been applied to choice of remedies which are not inconsistent but are alternative and concurrent (State v. Compton, Tex.Civ.App., 174 S.W.2d 977, syl. 2, 3), we deem it unnecessary to determine the character of the remedies available to appellant in the instant case.

Appellant strongly urges that if there was an attempt to obtain judicial foreclosure in the suit filed in Wichita County, the appellant had abandoned such attempt. In other words, she seeks to reconcile her position with the holding in the Seamans Oil case, supra, by showing that she had neither pursued her pleaded remedy of foreclosure to final judgment in the Wichita County suit, nor had she received anything of value under such claimed remedy, and the other party therein and the appellees herein had not been affected adversely by the assertion of such remedy. To sustain this position she relies heavily upon the case of Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644 (Tex.Civ.App., 1960, Ref.N.R.E.). The cited case as nearly approaches the facts in the instant case as any we have been able to find. In that case the appellee sued one Bezner on a number of purchase money notes and for foreclosure of chattel mortgage liens on some chickens. He also sued the Ferrantellos for damages for alleged conversion of a part of the chickens which he claims were subject to the recorded mortgages at the time of the purchase by the Ferrantellos of the chickens from Bezner. Under a plea of privilege the cause of action against the Ferrantellos was transferred to Dallas County. During the pendency of the suit against Bezner certain payments on the notes were made by the latter and credited to his account. Thereafter an agreed money judgment was entered against Bezner for the balance due on the notes, but the judgment did not provide for foreclosure of the chattel mortgages. The Ferrantellos in the Dallas case then entered a plea in abatement and motion to dismiss grounded on the theory that by proceeding to judgment against Bezner on the notes (on which partial payment had been made during pendency of the suit) the Feed Mills, as a matter of law, had made an election of remedies and was estopped from recovering judgment against the Ferrantellos for alleged conversion of some of the mortgaged property. The trial court overruled the plea and motion, and in so doing was sustained by the Court of Civil Appeals, the latter holding:

“The judgment against Bezner was not a judgment of foreclosure. It was a simple money judgment for the balance due after allowing Bezner credits for payments made. True, appellee in its original petition plead for foreclosure; but the mere institution of a suit for foreclosure without prosecuting the suit to a judgment of foreclosure does not constitute an election of remedies under the circumstances here present. Texas Building & Mortgage Co. v. Rosenbaum, Tex.Civ.App., 159 S.W.2d 554, 558; Seamans Oil Co. v. Guy et al., 114 Tex. 42, 262 S.W. 473; Lewis et al. v. Powell, Tex.Civ.App., 205 S.W. 737.”

Appellant in the instant case maintains that the judgment entered by the Wichita County court was an agreed judgment, and that the circumstances herein bring this case directly in line with the holding in the Ferrantello case. It appears that in the Wichita County case the attorney for appellant and an attorney for Estes conferred about the case and it was arranged that Estes would make a substantial payment on the indebtedness represented by the notes and that judgment would be entered for the balance of the indebtedness due. There was also some discussion about delaying the filing of the judgment with the clerk of the court until January 15, 1961. The attorney for the appellant stated that he would give Estes an extra month to pay the balance of the indebtedness and would refrain from filing the judgment until February 15, 1961. The judgment was actually filed February 16, 1961. It was dictated in the ofifice of the attorney for appellant and the attorney for Estes was present during part of the dictation, and while appellant’s attorney' claimed that the attorney for Estes dictated part of the judgment, the latter stated that he possibly had done so but that he could not recall that he had. In any event, the judgment that was prepared and later entered was a judgment that Estes’ attorney “agreed that he (appellant’s attorney) could take.” No mention was made about the remedy of foreclosure, but all the circumstances indicate most strongly that it was a mutual understanding that such remedy would not proceed to judgment. There is nothing in these circumstances to indicate that appellant had received anything of value under the claim for foreclosure as asserted in the pleadings, nor had Estes (and certainly not the appellees) been affected adversely by these proceedings so as to preclude appellant from later pursuing the remedy of foreclosure out of court by virtue of the powers granted by the terms of the deeds of trust. Appel-lees contend that, even though the deeds of trust had been placed of record long before appellees acquired their interest in the property from Estes, the latter could have defended against foreclosure under the deeds of trust on the doctrine of election, after the entering of the Wichita County judgment, and that this right inured to the appellees, since they “may oppose to the encumbrance any defense that might have been set out by the mortgagor.” From what has been said above, we do not accede to the contention that Estes could have defended against foreclosure under the deeds of trust, and therefore such a defense could not have been available to the appellees. It is our holding under these circumstances that there was error on the part of the trial court in holding that appellant had elected to pursue her remedy of judicial foreclosure and had pursued the remedy to a conclusion, and therefore was barred by the doctrine of election from foreclosing her deed of trust liens by trustee’s sales. Our Supreme Court has stated, in Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377:

“ * * * The doctrine of election of remedies is not a favorite of equity. It has been said that it ‘is a harsh, and now largely obsolete rule, the scope of which should not be extended.’ Friederichsen v. Renard, 247 U.S. 207, 38 S.Ct. 450, 452, 62 L.Ed. 1075, 1083, 1084; 18 Am.Jur. p. 129, Sec. 2.”

This expression has been repeated by the Supreme Court in Liberty Mut. Ins. Co. v. First Nat. Bank in Dallas, 151 Tex. 12, 245 S.W.2d 237, and by the Eastland Court of Civil Appeals in Lone Star Mining Company v. Texeramics, Inc., 363 S.W.2d 868 (Ref.N.R.E.). We must sustain appellant’s second point of error.

Appellant’s first point of error complains of the trial court’s holding that the trustee’s sales were invalid for failure to post any of the notices of sale outside of the corporate limits of the county seat, to-wit, the City of Pecos, in Reeves County, Texas, where the land in question was situated. The statute governing sales under deeds of trust is Article 3810, Tex.Rev.Civ.St. The statute provides:

“ * * * Notice of such proposed sale shall be given by posting written notice thereof for three consecutive weeks prior to the day of sale in three public places in said county or counties, one of which shall be made at the courthouse door of the county in which such sale is to be made * * *."
(Emphasis added.)

The wording of the four deeds of trust give the trustee instructions as to posting of notices in substantially the language of the statute. The notices were posted .at Pecos near the front door of the City Hall, the bulletin board by the front door of the courthouse and at the Housing Project. The question which must be determined, therefore, is whether or not the places where such notices were posted were '“three public places” under the wording •of Article 3810. The appellees assert they were not, and rely on Phipps v. Fuqua, 32 S.W.2d 660 (Tex.Civ.App., 1930, Wr. Ref.). In that case two of the trustee’s notices of sale were posted within the city limits of the town of Hereford, the county seat; one being posted at the courthouse • door. The opinion recites:

“The appellee’s contention that the purpose of the law was to have the ■notices posted at such places as would • come under the observation of the most people, and that, as the town of Hereford contains the greater mass of •the population of Deaf Smith county, the posting of two of the notices within the city limits was a substantial compliance with the law’s requirements. 'We cannot agree that the language • of article 3810, R.C.S., can be given such interpretation. In providing for • the issuance of such notices, the article requires that a notice in writing shall be posted in ‘three public places’ in the county. If the Legislature intend- • ed this to be the construction as claim- ■ ed by the plaintiff, then why provide for three notices instead of one at the courthouse, or in its neighborhood. We think that it was clearly the intention of that body to give widespread •notice-of sale by posting same in three • different and distinct public places. The failure to give notice of a sale • of land under a deed of trust by post- : ing three notices in three different public places renders the sale void. * * * ”

In passing upon the opinion in the Phipps v. Fuqua case, the Commission of Appeals, in McFarlane v. Whitney, 134 Tex. 394, 134 S.W.2d 1047 (in a 1940 opinion adopted by the Supreme Court) has this to say:

“ * * * the notices of sale of land in Deaf Smith County were posted, as shown by the recital in the trustee’s deed, one at the courthouse door, ‘one at the cross section of Harrison highway and Twenty-Five Mile Avenue, and one on a telephone post on East Third street in Hereford, north of the First National Bank Building’. This recital is the only evidence in the statement of facts in that case with reference to the places where the notices were posted.” (This is true in the instant case.) “It seems, therefore, to have been held by the Court of Civil Appeals in the Phipps v. Fuqua case that the posting of two of the notices in one town constitutes of itself, and without reference to any other facts, a failure to comply with the requirement of the statute that the notices be posted in three public places. It is our opinion that such decision is unsound for the reasons herein-before stated.”

The appellees attempt to distinguish the McFarlane case from the Phipps case and the instant case by language used in the former opinion which would indicate that there were no public places in Crane County where the notices were published other than within the city limits of the Town of Crane, and therefore the Commission of Appeals could make no other decision than the one that it made. Appellees point out, without any support in the evidence, as far as can be determined, that in the instant case there were other public places in Reeves County where notices could have been posted, outside of the limits of the City of Pecos. But the language employed in the McFarlane case by the Commission of Appeals does not limit its decision to the special facts in that case, and is equally applicable to the present case. It says:

"The requirement is merely that the notices be posted in three public places in the county, one of which shall be at the courthouse door. Thus the courthouse door is designated by the statute as one of the three public places and it is left to the trustee to select two other public places in the county. The statute does not provide that the other two public places selected shall not be in the town or city that is the county seat, and it does not prohibit the posting of two or of ail three of the notices in the same city or town. We are not authorized to read such provision into the statute.” (Emphasis supplied.)

The decision further points out that there was no such relation between any two of the three places where the notices were posted in the McFarlane case “in location, ownership or use, as to make them in effect one place.” This observation has particular reference to the case of National Loan & Investment Co. v. Dorenblaser, 30 Tex.Civ.App. 148, 69 S.W. 1019, also distinguished by the Commission, where notices were posted, one at the courthouse door, one on a telephone pole near the northwest corner of the courthouse square, and the third on a telephone pole near the northeast corner of said square. The Court of Civil Appeals in that case held that such posting of notices was practically in one place and not at three public places, as contemplated by the statute. We have no such situation in the instant case, although the evidence herein does not clearly inform us of the actual location of the three public buildings in Pecos where the three notices were posted.

It might be well to refer here to one other factor taken into consideration in the decision in the McFarlane case. As to the posting of notices, the Commission points out that the deed of trust in that case provided that:

“ * * * before making sale of the property the trustee shall give ‘notice of the time, terms and place of sale and of the property to be sold, as now required by statute in sales of real estate under deeds of trust’. It authorizes the trustee after selling the property to execute to the purchaser' a good and sufficient deed to the property sold. The last paragraph in the deed of trust is as follows: ‘It is-further provided that the recitals in the conveyance to the purchaser shall, be full evidence of the matters therein stated, and all the prerequisites to-said sale shall be deemed to have been performed.’ The trustee’s deed made-after the sale * * * contains among other recitals the statement that the-sale was made ‘after having given, public notice of the time, place and terms of such sale as required by law and by the terms of said deed of trust.’ ”

The decision then goes on to say:

“From the recitals in the deed of trust and the trustee’s deed, above quoted, the presumption arises that public notice of the sale was given as required by law and by the terms of the deed of trust. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143.”

In Birdwell v. Kidd, Tex.Civ.App., 240 S.W.2d 488 (1951, N.W.H.), a Court of Civil Appeals decision citing the Supreme Court decision in Adams v. Zellner held, after stating that the appellant therein, among other objections to the sale under the deed of trust, contended that such sale was void because notices were not posted before the sale as required by law and the deed of trust, the following:

“ * * * these contentions are foreclosed by the following recitals in the deed of trust: ‘It is expressly agreed that the recitals in the conveyance to the purchaser shall he full evidence ■of the truth of the matters therein stated and all prerequisites to said •sale shall be presumed to have been ■performed.’ The deed by the trustee .recited * * * (that) proper notice '.had been given and posted * * *. In such circumstances the presumption •obtains that all these things recited to ¡have been performed in the trustee’s ■deed were performed, and the presumption will obtain until it is stricken ■down by competent testimony. As heretofore stated, there is not sufficient testimony in this record to overcome the presumption expressly provided in the deed of trust and carried forward by the recitations in the trustee’s deed. Adams v. Zellner, 107 Tex. 653, 183 S.W. 1143; Natali v. Witthaus, 134 Tex. 513, 135 S.W.2d 969; McFarlane v. Whitney, 134 Tex. 394, 134 S.W.2d 1047, and cases there cited.”

In the case at hand the deeds of trust provide:

“And it is further specially agreed by the parties hereunto, that in any •deed or deeds given by any Trustee •or substitute duly appointed hereunder, .any and all statements of facts or other ■recitals therein made as to the nonpayment of the money secured, or as -to the request to sell, the time, place, terms of sale and property to be sold having been duly published, or as to .any other act or thing having been ■duly done by any Trustee, or substitute, shall be taken by any and all courts of law and equity as prima facie evidence that the said statements or recitals do state facts, and are without further question to be accepted.”

The trustee’s deed sets out that:

“ * * * having given public notice of the time, place and terms of such sale, as required by the terms of said Deeds of Trust, by posting written notices in three public places in said County of Reeves and State of Texas,one of which was at the Court House door of said County of Reeves, State of Texas * *

The foregoing recitations in the deeds of trust and the trustee’s deed bring the present case squarely within the holding in the Birdwell case, and we find that there is not here sufficient evidence to overcome the presumptions arising from the express provisions of the deeds of trust and carried forward by the recitations of the trustee’s deed that the trustee acted properly and legally in conducting the trustee’s sale of the property in question. As brought out in the case of Topletz v. Thompson, 342 S.W.2d 151 (Tex.Civ.App., 1960; N.W.H.), it must be remembered that the appellees here were plaintiffs in the trial court. They alleged as part of their cause of action seeking to set aside the trustee’s deed that the trustee wholly failed to give public notice of the contemplated sale within the meaning of the statute, and the burden was therefore on them to prove by a preponderance of the evidence that the statutory notices were not posted in the manner required by law. This burden, we feel, they have not carried, and appellant is sustained in her first point of error.

The appellant’s third point of error urges that the trial court erred in refusing to grant appellant’s motion for summary judgment for title and possession of the land in controversy. From what has been said above, this point resolves itself. In the Topletz case last cited herein, the court states: The facts in the present case relative to the manner in which the notices of sale were posted are not in dispute. We are of the opinion that the law is adverse to the holding of the trial court. We are therefore compelled to approve appellant’s third point of error and hold that her motion for summary judgment should have been granted, appellees’ motion for summary judgment should have been refused, and title and possession of the property involved should have been granted to appellant.

“The terms ‘public place’ as used in Art. 3810, Vernon’s Ann.Civ.St. is relative, and whether a notice was posted in a public place within the meaning of the statute is sometimes a question partly of fact and partly of law. Thomas v. Martin, Tex.Civ.App., 166 S.W.2d 934; Hunt v. Isom, Tex.Civ.App., 77 S.W.2d 1095.”

The judgment of the trial court is accordingly reversed and this cause is hereby remanded with instructions to the trial court to render judgment for appellant in the respect indicated.


author: COLEMAN, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. C. D. DILLESHAW, Appellee.
    No. 14184.
    Court of Civil Appeals of Texas. Houston.
    Dec. 12, 1963.
    Rehearing Denied Jan. 9, 1964.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker, Houston, for appellant.
    Jack Harrison, Alvin, Raymond L. Mc-Dermott, Mabel Grey Howell, Houston, for appellee.
   COLEMAN, Justice.

This is a workmen’s compensation case. The appeal is based on the refusal of the trial court to order an additional medical examination during the trial, and on alleged misconduct by appellee’s counsel during jury argument.

C. D. Dilleshaw, appellee, at his counsel’s request, exhibited to the jury the scars on his body resulting from burns suffered by him when he was sprayed with sulphuric acid. Thereafter Dr. Martin A. Zionts, a specialist in internal medicine, testified that on April 26, 1962, appellee came to him for treatment complaining that the burns, which he suffered on August 3, 1961, were sore, itched, and broke out in little sores. Dr. Zionts detailed his examination and diagnosis. In the interest of brevity, since the sufficiency of the evidence to support the jury verdict of total and permanent incapacity is not attacked, this testimony will not be set out other than that Dr. Zionts testified positively that on several occasions his examination of appel-lee revealed little cracks, blisters, and ulcerations or sores. He testified that the skin in the burned area was very tender and any sweating, heat, or rubbing of the area by appellee’s belt and clothes may bring on the sores, and that the continued recurrence of the sores was probable.

After appellee rested his case, appellant called as a witness Dr. Stephen R. Lewis, a specialist in plastic surgery and head of the Department of Plastic Surgery at the University of Texas Medical Branch in Galveston. Dr. Lewis treated appellee soon after his injury and saw him from time to time until May 11, 1962, a few days more than three months before trial. He testified that he had never noticed any sores or excoriation or cracking of the skin on any of his examinations since appellee was released from the hospital, and that there was no medical reason why there should be sores or ulcerations within the area of appellee’s burns unless new injuries occurred. He stated that there was no basically disturbed circulatory change in any of his burns with the exception of the area of the skin grafts on the ankle and right arm. That aside from another full second degree burn sunlight would not cause exterior breakdown of the tissue, and that he should not be any more susceptible to perspiration causing cracking or sores in the burned areas than in any other area of his body. He testified that appellee had recovered very well from his burns, which were well healed, and should be able to withstand normal injury as well as other areas of his body.

Before Dr. Lewis was excused, the following colloquy occurred between counsel for appellant and the Court:

Mr. Walker: “If it please the Court, before I ask the doctor his final opinion, I would like to ask that he have permission to look at Mr. Dilleshaw’s areas where he has reported sores and ulcerations and see if the doctor can detect any evidence of such.”
The Court: “That is a matter you will take up with Counsel. Go ahead with your examination.”

The next question was:

Q. “Assuming that they agree to that, would you be willing to do that, look at his burned areas to see if you find any evidence of sores or ulcerations ? ”
A. “Yes, sir, certainly.”

Further testimony was taken covering some 176 pages of the statement of facts, but the matter does not appear to have been called to the attention of the court on any other occasion. The record does not. reflect that appellee, or his attorney, was asked to permit a further examination, or that no further examination was in fact had.

We question whether the trial court made a final ruling which might be the ground for a point of error; in any event, no reversible error is shown. Justice Calvert, in his dissenting opinion in Texas Employers’ Insurance Association v. Hatton, 152 Tex. 199, 255 S.W.2d 848, said: “The only right that the insurer can acquire from a mere exhibition of the injured member in the courtroom is to have another exhibition of it for its benefit.” This appears to be what appellant desired, hut no harm resulted from the denial of this right since nothing in the record suggests that at the time the request was made such sores were apparent on appellee’s body or that they were present when the burned areas were exhibited to the jury. Appellant’s medical witness had examined appellee on numerous occasions and testified fully concerning the alleged sores. It is not apparent how an examination at this point would have given the doctor any additional information concerning the disputed question. The following day appellee was recalled to the stand and exhibited irritated spots on the burned area of his skin which he testified had appeared the preceding evening. Since appellant did not renew his request for an examination, it was not incumbent on the court to order an examination at that time. The fact that the doctor was not permitted to see appellee’s burned areas on request was not a probable cause of the rendition of an improper judgment. Rule 434, Vernon’s Annotated Texas Rules.

Finally, appellant urges that the trial court erred in refusing to grant a new trial because of the improper, inflammatory and prejudicial jury argument by counsel for appellee. Appellee contends-that this point was not properly preserved in the motion for new trial since appellant is relying on the cumulative effect of various-objectionable arguments, and no assignment to this effect appears in the motion for new trial. In Assignment No. VII of his motion-for new trial, appellant set out the substance of certain jury argument made by the attorney for appellee and then stated: “ * * * all of these remarks were and the argument as a whole was so highly improper, prejudicial, and inflammatory in-nature that it could not be cured by instruction of the Court * * Appellant has-pointed out certain argument as being erroneous and has complained of the argument “as a whole”. By this assignment appellant properly directed the attention of the trial court not only to the specific argument claimed to be improper, but also to the cumulative effect of the argument. Rule 434, Texas Rules of Civil Procedure. The assignment of error, however, did not specifically call to the attention of the trial court the argument constituting improper criticism of counsel.

The most serious question presented by this point results from this argument made by counsel for appellee:

“Charles Dilleshaw comes to you as-a man that deserves your consideration,, that deserves your help * * *.
“He has been truthful, he was a good worker and even after he got these serious injuries he kept on trying and he will keep on trying, but in fairness to him, you ought to say, ‘Charles, we are going to try to help you get that business and off your feet and out of that hot broiling sun, and the only way we know to do it,’ and I will show you how. Number 1, ‘We do,’ we say total disability. Number 2, we find this commenced August 3, 1961, when acid got all over his body. Number 3, we find the duration of it to be permanent, p-e-r-m-a-n-e-n-t. We find the duration to be permanent. Number 4, is he partially disabled. Let me pause there a moment please. A lot of times the jury would say yes, partially disabled, too, and put the answer, ‘We do.’ But if you will read—
MR. WALKER: “We object to the line of argument on Me. McDermott’s part, he has gone outside the bounds the Court imposes on us, and is advising the Jury of the effect of their answers, and I would like to move for a mistrial.”
THE COURT: “Overruled.”
MR. McDERMOTT: “You are about to write your verdict and he would like a mistrial, throw them out, and he wants to get rid of this Jury, Mr. McDermott said something a little prejudicial. That is what a mistrial means, Ladies and Gentlemen, I don’t want a mistrial, I know you are going to render a fair verdict, but apparently my opponent does. * * * ”

Almost immediately thereafter this argument was made: “So, Ladies and Gentlemen, if you write the only verdict that can help this man and get him off his feet and off the job and out of the hot boiling sun you will answer ‘We do not.’ ”

In making this argument counsel was clearly informing the jury of the legal effect of the answers to the special issues submitted to them. Such argument has been uniformly condemned by our courts as being improper. Robinson v. Lovell, Tex.Civ.App., 238 S.W.2d 294, ref., n. r. e.; Hurley v. McMillan, Tex.Civ.App., 268 S.W.2d 229, ref., n. r. e.

In Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160, opinion adopted, the Court said:

“Complaint is made of that part of the argument of counsel for the plaintiff in which he begged the jury to answer certain of the issues yes and certain of them no, the point being made that such conduct in effect apprised the jury of the legal effect of the answers. It does not appear that counsel told the jury that the answers for which he begged would result in a judgment for his client. Reasonable latitude must be allowed counsel in arguing a case submitted on special issues. If, as has been correctly said, he may advise the jury how in his opinion, from the evidence, the issues should be answered and may specifically say that certain issues should be answered yes and certain issues no [Dallas Ry. & Terminal Co. v. Bankston (Tex.Com.App.) 51 S.W.(2d) 304, 310], he may also earnestly urge or beg the jury to answer certain issues yes and others no, provided the argument is not so made as to inform the jury of the effect the answers will have upon the judgment to be rendered or as to cause the jury first to agree upon the result desired to be accomplished and then designedly make the answers so as to accomplish such result.”

It appears that the argument made here is exactly the sort of argument condemned by the Supreme Court. Counsel, in an appeal to the sympathy of the jury, urged it to help appellee to get a business and get off his feet and out of the hot sun, thus in effect urging the jury to agree upon the result desired to be accomplished and then designedly make the answers so as to accomplish such result. Leaving nothing to chance, counsel then suggested to the jury the exact answers necessary to accomplish this result.

The action of the trial court in overruling the objection and the motion for mistrial was error. In Robinson v. Lovell, supra, it was held an abuse of the court’s discretion to permit counsel to make a statement to the jui'y of the legal consequences of any of the jury’s findings.

In Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, the Court said:

“It is obvious that the relator was attempting to inform, and did inform, the jury what the law is with reference to the rights of his client, which was calculated to inform them of the legal effect and result of their answers to the issues submitted. That such conduct and practice is to be condemned under our law of submitting cases upon special issues cannot be doubted, unless unlike the circumstances in the court below, the issues are such that men of ordinary intelligence would be presumed to know the legal effect of their answers. Galveston, H. & S. A. Ry. Co. v. Harling, Tex.Com.App., 260 S. W. 1016; McFaddin v. Hebert, 118 Tex. 314, 15 S.W.2d 213; City of Dallas v. Firestone Tire & Rubber Co., Tex.Civ.App., 66 S.W.2d 729, writ refused. As was said in the McFaddin case, supra [118 Tex. 314, 15 S.W.2d 216], ‘the prime object, purpose, and intent of the law for submitting cases on special issues is to remove the jury from any bias in favor of, or prejudice against, either party to the suit, to relieve them from the duty of directly passing on who shall prevail in the suit, and to make it the duty of the jury to answer each question truly as they find the facts to be from the evidence, without regard to what the result of their answers may be.’ ”

In this case issues were submitted on total and partial incapacity, duration of each, and the effect of prior injuries on the incapacity of appellee. We are not prepared to say that men of ordinary intelligence would have known the effect of the answers to such issues in the absence of such argument.

In determining whether the erroneous argument was calculated to cause and probably did cause the rendition of an improper verdict, we must consider the entire argument and the record. Prior to making the argument objected to, the attorney for appellee said: “I want you to consider one other thing before we go into these issues. Charles Dilleshaw comes to you as-a man that deserves your consideration,, that deserves your help."

Immediately after the motion for mistrial' was overruled, he criticized appellant’s-counsel for making the motion. Later in-the argument appellant’s counsel was criticized for objecting to certain evidence in* these words:

“You saw yourself the little ulcer from working in the hot sun when that skin flares up and cracks up. Jerry said you weren’t doctors and couldn’t look at this ulcer. I tell you twelve jurors can look at this just as well as a doctor and he tried to stop it. Jerry Walker tried to stop you from seeing the place on this man’s skin just as they tried to keep you from seeing what sulphuric acid would do. Fie said sulphuric acid was certainly dangerous and powerful. But do you remember how long Jerry Walker fought with me to keep you from seeing it with your own eyes? Why? Because-he didn’t want you to know the full effects of the terrible destructive power of sulphuric acid and he didn’t trust you with that knowledge. No-more than he trusted you with the knowledge of seeing Mr. Dilleshaw’s-bare skin with your own eyes, he didn’t want you to see that. Jerry’s closing remarks to you indicated that this lawyer isn’t being fair with you.' He told' you and I wrote it down just as he said it. ‘I have confidence in this-Jury, I am perfectly willing for you-to decide our rights.’ That from the lips of a man who less than forty-five-minutes to an hour ago made a motion to declare a mistrial and put this Jury out of the box and pass this case over. That is what a mistrial is, throw the Jury out of the box, we don’t trust them. If a man is being honest with you, why would he ask for a mistrial to get rid of this Jury? Is he perfectly willing for you to decide the rights of Charles Dilleshaw and Texas Employers Insurance Association? No.
“ * * * I have been accused of things by Jerry, and I want to show you the things he did. How he tried to keep you from seeing Mr. Dille-shaw’s body and what the acid would do and how he wanted to throw the Jury out of the box and have a mistrial. That shows a man representing a client who knows the day of judgment is at hand and indicates the verdict this Jury is going to write. * * * ”

Appellee’s attorney also made the following argument:

“I ask you to stay in there as much as is necessary in order to write the verdict or no verdict at all. Because anything else would be a miscarriage of justice in this case. I mean it. Hang the Jury high, if necessary. If you hang up and you can’t go along with what the rest feel should be the verdict in this case, and you will be discharged and we will retry this case.”
MR. WALKER: “I object, he is going outside the record in this case.”
THE COURT: “Sustained.”

While the trial court sustained the obj ection to the argument that in the event of a hung jury, appellee could get another trial, appellee’s attorney immediately stated that he would rather retry the case, and then added: “ * * * because he is entitled to this * * * ”, also improper argument.

No other objection was made to these arguments, but appellant urges that the prejudicial effect of the argument was so great that it could not have been removed from the minds of the jury by an instruction from the court. We agree with the reasoning and analysis of Justice Calvert as expressed in his dissenting opinion in Southern Pacific Company v. Hubbard, 156 Tex. 525, 297 S.W.2d 120, in which he was joined by Justices Griffin and Walker, in these words:

“But assuming that all of the argument here referred to may be properly labeled as improper and prejudicial, the real question with respect thereto is-whether a reversal should be ordered in the absence of timely objection. In arriving at an answer to this question we must assume that all means would have been availed of to eliminate any possible prejudice arising out of the argument; we must assume that if proper objection had been made, counsel for respondent would have apologized for the argument and would have withdrawn it, and that the trial judge would have instructed the jury not to consider it for any purpose and would have reprimanded counsel for respondent for having made it. Considered in this light, it is my opinion, judged on the basis of the majority of the more recent decisions of this Court, that the vice in the argument could have been cured and that a reversal should not be ordered.”

While we would not reverse this case because of the improper argument to which no objection was made for the reasons stated by Justice Calvert, yet we note that an objection was made to improper argument in this case and no “prompt and devastating rebuke” followed. In this argument the attorney for appellee combined an appeal for sympathy and help with the attack on the attorney for appellant, obviously made for the sole purpose of prejudicing the jury against appellant, and then told the jury how to answer the issues to most effectively help appellee. Under such circumstances the cumulative effect of the argument may be considered in assessing the probability of injury. Southern Pacific Company v. Hubbard, supra; United States Fidelity & Guaranty Co. v. Lewis, Tex.Civ.App., 266 S.W.2d 194.

. Under the facts of this case the extent and duration of disability were serious questions of fact by reason of the medical testimony produced and the earnings of appellee after the injury. It is our view that the improper argument of appellee’s counsel, informing the jury of the effect of their answers, was calculated to cause and probably did cause the rendition of an improper judgment.

The judgment of the trial court is reversed and the case is remanded for a new trial.