author: MASSEY, Chief Justice.

text:
    Morton N. GOLDBERG, Appellant, v. Mary Margaret GOLDBERG, Appellee.
    No. 16648.
    Court of Civil Appeals of Texas. Fort Worth.
    June 4, 1965.

      Brantley Pringle, Fort Worth, for appellant.
    Tilley, Hyder & Law, Thos. H. Law and Robert M. Randolph, Fort Worth, for ap-pellee.
   MASSEY, Chief Justice.

Plaintiff Mary Margaret Goldberg sued defendant Morton N. Goldberg for divorce. Defendant filed his cross-action for like relief against plaintiff. Following a trial before the court without a jury judgment was rendered for plaintiff. The defendant appealed. Plaintiff filed a cross-appeal.

Judgment affirmed.

Defendant’s complaint is that there was error in the judgment in respect to attorney’s fees adjudged against him, and in the amount awarded. Further, his complaint is of the trial court’s award to plaintiff of: a one-half interest in a promissory note received on sale of what he claims was his separate interest in certain property, an amount in dollars representing one-half the cash surrender value of his life insurance policies, and an amount in dollars representing one-half the value of his clinic assets.

It is obvious from the language of the judgment that except for the attorney’s fees, the court intended to make a “split down the middle” of the community property and/or the value thereof, awarding one-half to each party. The court intended to give each party what was his or her separate property. In any event, the court was acquainted with the property with which it dealt, whether its character constituted community or separate property. Additionally, the court intended that the defendant pay all the reasonable and necessary attorney’s fees of plaintiff, found in the amount of $7,500.00. Judgment for the attorney’s fees amount was awarded directly to the “law firm of Tilley, Hyder & Law.”

Relative to the property award, predicate for defendant’s complaint lies in his contention that such was his personal property. No part of the property was real estate. Art. 4638, Vernon’s Ann.Tex.Civ.St, “Division of property”, provides that upon pronouncing a decree of divorce a court shall also order a division of the estate of the parties in such a way as the court shall deem just and right, etc. In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), it was stated: “For the purpose of doing equity, the court may award all the personal property to either spouse, * * See commentary by Professor William O. Huie, on Texas’ Community Property Law, in Vol. 13, V.A.T.S., § 12, “Division on Divorce”, beginning at p. 45. See also Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313 (1939); Grant v. Grant, 351 S.W.2d 897 (Waco Civ.App., 1961, writ dism.).

The fact that the property might constitute separate property of the defendant (a matter in dispute) is of no consequence. Under the law the court, in the exercise of equity powers pursuant to Art. 4638, is authorized to take the separate property of one party and award it to the other in a decree made pursuant to divorce. Such an award will not be disturbed unless there is a clear abuse of discretion. Mozisek v. Mozisek, 365 S.W.2d 669 (Fort Worth Civ.App., 1963, writ dism.).

The defendant does not premise his contention of error upon any abuse of discretion as such is usually considered. Indeed the record fails to substantiate any abuse. He does, however, contend that the award to the wife in effect granted permanent alimony. We believe the contention is spurious and hold that it has no merit. Plaintiff was awarded nothing in the nature of property necessarily deliverable by defendant as property he will. or might acquire subsequent to the divorce. The award, as of property, is a portion of such existent at time the divorce was granted. In no sense did the award include alimony to accrue subsequently.

We hold against the defendant’s contention on the matter of attorney’s fees. Evidence thereon introduced before the court, without obj ection from the defendant, adequately supports the amount awarded. Such was awarded direct to the law firm of Tilley, Hyder and Law, and in this respect the judgment was unusual, but under the circumstances of the case would not amount to reversible error. The record clearly reflects that the law firm represented the plaintiff from the beginning and that no other attorney participated in her behalf. Two members of the firm, Thomas H. Law and Robert M. Randolph, submitted themselves to the jurisdiction of the court as parties in the case during the pendency of the litigation. Occasion therefor was in connection with their request for injunctive relief against the defendant and another.

Plaintiff’s petition alleged that she had employed said firm as attorneys to represent her in the divorce proceeding and had contracted to pay them a reasonable fee therefor, that such services were necessary, and that she had no separate property or income with which to pay the fee. The prayer of the petition omitted reference to an attorney’s fee, but contained a prayer for general relief. In that part of the judgment of the court antecedent to the portion containing the order and decree the following language appears: “The law firm of Tilley, Hyder & Law, attorneys for Plaintiff, should be awarded attorneys’ fees in the amount of $7,500.00, * * * paid by Defendant.” Subsequent thereto the judgment provided: “It is further ORDERED, ADJUDGED and DECREED that the law firm of Tilley, Hyder & Law have and recover from Defendant the sum of $7,500.-00 as reasonable attorneys’ fees for their services herein.”

As between plaintiff and defendant, at least, the issue upon the matter of attorney’s fees was before the court as tried without objection and with the consent of the parties. Texas Rules of Civil Procedure, Rule 67, “Amendments to Conform to Issues Tried Without Objection”. Under this theory the right of the plaintiff to attorney’s fees was established in the evidence and the defendant’s liability therefor in the reasonable amount found by the court was likewise established. Considered as error the entry of judgment decreeing that defendant should pay the attorney’s fees direct to plaintiff’s attorneys, rather than to plaintiff, would be an error of which the plaintiff, not the defendant, might have cause for complaint. She does not complain. Had there existed any dispute between plaintiff and her attorneys relative to which should have the right to receive judgment for attorney’s fees, the matter could be remanded to the trial court to render a proper judgment in such respect. In such hypothetical dispute the defendant would have no interest, for with the amount of his liability established under circumstances obviating any further exposure to either of said parties’ claim against him, based upon the same liability, he could suffer no prejudice. Gulf, C. & S. F. Ry. Co. v. Cooper, 33 Tex.Civ.App. 319, 77 S.W. 263 (CCA of Texas, 1903, no writ hist.).

But there is no such dispute. Plaintiff is entirely satisfied that Tilley, Hyder & Law have the judgment for attorney’s fees which might have been a part of her own judgment. We believe this presents a condition no different in aspect from that which would have been existent had she received the judgment and executed to the firm a direct transfer of her interest therein to the extent of the amount of attorney’s fees. Anyway, both plaintiff and the law firm are effectively estopped by the judgment from seeking to impose further liability against defendant. Akin v. Akin, 276 S.W.2d 323 (Austin Civ.App., 1955, writ dism.); 20 Tex.Jur.2d 624, “Divorce and Separation,” § 300, “Recovery in divorce suit”.

We also hold that in this case the award of attorney’s fees (by and through plaintiff, under her pleadings, though rendered directly in behalf of Tilley, Hyder & Law) was supported by the prayer for general relief in plaintiff’s pleadings. “Except in special situations * * * in § 6.25, the general prayer will authorize a judgment for any relief within the court’s jurisdiction, provided such relief is justified by the proof admitted under the allegations of the complaint and is consistent with a theory of the claim reflected in the petition.” 2 McDonald, Texas Civil Practice, p. 60S, “Pleading: Petition”, § 6.26, “ — B. General Prayer”. The special situations to which McDonald referred are without application.

The first three of plaintiff’s cross-assignments of error relate to contentions that the trial court erred in the division of the parties’ property. We have already stated that any error in the court’s conclusions upon the matter of whether the property so awarded was separate or community in character would be immaterial, and that the awards would not be disturbed in the absence of an abuse of discretion. The same thing has full application to the contentions plaintiff has advanced. We perceive no abuse of discretion in the award and apportionment of property. The cross-points of appeal are overruled.

By plaintiff’s final cross-assignment complaint is made that she received what was basicly a money judgment only, and that the trial court erred in failing to set aside to her a direct interest in the assets of the parties or imposing an express lien upon the property awarded to the defendant for the security of her money judgment.

In 20 Tex.Jur.2d 561, “Divorce and Separation”, § 225, “(Partition of Property) In general”, it is said, “Where an equal division of property is called for, if the commissioners on partition find that it is impracticable to allot shares of exact equal value, such inequality may be corrected by charging the share of greater value with a lien in favor of the share of less value, in an amount sufficient to equalize the values, which constitutes an encumbrance in the nature of a vendor’s lien against the share of greater value, but which is not considered a personal obligation.” The same principle might be said to apply in the instant case, without regard to whether the partition was intended to be equal. The court would have no doubt been entitled to charge the property awarded to the defendant with a lien which would have provided a form of insurance against any action by the defendant to defeat that part of the plaintiff’s judgment which amounted to no more than an unsecured judgment in personam.

In 44 Tex.Jur.2d 274, “Partition”, § 30, “Accounting; Adjustment of equities”, it is stated that pursuant to judicial partition the trial court has authority to adjust and enforce between cotenants every conceivable equity relating to the parties and the property. At p. 279, § 33, “Owelty”, it is stated that property may be divided into shares of unequal value, and the inequality corrected by means of a charge or lien on the more valuable parts in favor of the less valuable ones, with the sum that is thus awarded in order to adjust an inequality in the value of shares referred to as owelty. See Sayers v. Pyland, 139 Tex. 57, 161 S.W.2d 769, 140 A.L.R. 1164 (1942), wherein Chief Justice Alexander stated that the “power to award owelty” has always been regarded as necessary to the act of partitioning property, and that the owelty lien or charge, as applied to partitioned land, may be implied in the absence of express agreement.

Had the trial court chosen to set aside to plaintiff a direct interest in the assets of herself and the defendant, as in the form of a lien upon the property of the defendant for the security of what amounted to her judgment in personam, it is not to be doubted that action effecting that result would have been proper. The question here, however, is whether the court erred when it failed to do this when it partitioned the property under Art. 4638.

Action in partition is equitable in nature although taken pursuant to authority and direction of statute. Propriety of such action is measured by the test of whether it amounted to an abuse of discretion. Necessarily, plaintiff has found herself obliged to contend that in its failure and refusal to afford her such additional security the court abused its discretion. She has been unable to cite any authority to substantiate her contention. She has devoted the argument in her brief to an explanation of how the “homestead exemptions” might operate to defeat her; how the law relative to exemptions applicable to levy on cash surrender values of life insurance policies might defeat any satisfaction of her judgment when the beneficiaries therein named are members of the insured’s family; how the exemptions applicable to tools of a trade or profession would be available to prevent her levy on the equipment in the defendant’s clinic; and, pointing out that her community interest in the accounts receivable of defendant’s medical practice is in thousands of small accounts, impractical for garnishment action, she demonstrates that the peculiarities of the situation might militate against her ultimate recovery of the full interest in the property which the court intended that she receive.

We must assume that the trial court considered such possibilities when it rendered judgment. Having given consideration thereto the court elected to make equitable partition of the property by the manner adopted. We cannot say that the court abused its discretion. The cross-assignment of error is overruled.

Judgment is affirmed.


source: Caselaw Access Project

author: BELL, Chief Justice.

license: Public Domain

text:
    Sandra M. BIRD et vir, Appellants, v. Norman ROSENBERG, Appellee.
    No. 14597.
    Court of Civil Appeals of Texas. Houston.
    June 17, 1965.
    Painter & Painter, James R. Roos, Houston, for appellants.
    Baker & Branch, Bill J. McGehee, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from an order overruling appellants’ plea of privilege to be sued in Grayson County.

The suit is one to recover damages resulting to appellee from injuries received by him when his automobile was in collision with an automobile driven by Mrs. Bird. The collision occurred in Houston. Venue was held to be established under Subdivision 9a of Article 1995, Vernon’s Ann.Tex. Civ.St.

Appellee pled negligence and proximate cause only in general terms.

Mr. Rosenberg, the plaintiff, testified he had been driving north on Weslayan Street and brought his automobile to a stop at an intersection. There were automobiles ahead of him that had stopped in obedience to a traffic light showing red at a street intersection. He had been stopped for several seconds when the automobile driven by Mrs. Bird hit his automobile from the rear. Mrs. Bird told him she was in a hurry to keep a dental appointment. She apologized for having hit him.

The investigating officer testified the accident happened about 9:40 o’clock in the morning. He testified also that Mrs. Bird told him she was traveling north in the middle lane at a slow rate of speed and as she started to change lanes the automobile jumped the right curb portion of it and she hit the rear of the car in front of her. At the time the surface of the road was dry. The day was cloudy.

Appellants’ position is that all that the evidence shows is that an accident occurred and this alone does not give rise to an inference of negligence.

There is evidence of probative force to support the trial court’s presumed finding of negligence which was the proximate cause of the collision. Where the evidence shows that a party drives his automobile into the back of another automobile that is, and has been for some time stationary in obedience to a traffic control signal at an intersection and there is no evidence tending to excuse the act, negligence on the part of the offending driver is a legitimate inference. Negligence may be inferred from circumstances. Bock v. Fellman Dry Goods Co., Tex.Com.App., 212 S.W. 635; Renshaw v. Countess, Tex.Civ.App., 289 S.W.2d 621, no writ history.

Affirmed.


author: WERLEIN, Justice.

text:
    Peggy Joyce DENISON, Appellant, v. James Dickey DENISON, Appellee.
    No. 14595.
    Court of Civil Appeals of Texas. Houston.
    June 10, 1965.
    Rehearing Denied July 8, 1965.
    Fred R. Harmon and Herman D. Voor-hees, Houston, for appellant.
    N. Wyatt Collier, Houston, for appellee.
   WERLEIN, Justice.

This is an appeal by appellant, Peggy Joyce Denison, from a judgment rendered by the court at the conclusion of a trial without a jury, granting appellee a divorce and decreeing a division of the property of the parties.

Appellant contends that the trial court erred because appellee failed to establish by full and satisfactory evidence the existence of any alleged grounds of divorce or that she committed any act rendering further living together insupportable, and also because appellee condoned any alleged misconduct on her part, and such alleged misconduct was provoked by appellee’s misconduct with another woman. Appellant further asserts that the court abused its discretion in decreeing an unfair, unjust and inequitable division of the property of the parties.

We are met at the outset with appellee’s contention that the case is before us without a complete statement of facts and hence there is no way to determine whether the evidence as a whole is full and satisfactory and such as would support the judgment of the trial court. The law is well settled that where there is only a partial statement of facts, all reasonable presumptions will be indulged in favor of the judgment of the trial court and the sufficiency of the evidence to sustain it. Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, writ ref., n.r.e.; Boyd v. Robinson, Texas Civ.App., 304 S.W.2d 430; Locke v. J. H. Marks Trucking Co., Tex.Civ.App., 318 S.W.2d 1; Baker v. Rutherford, 293 S.W.2d 669, writ ref., n.r.e.; Klimist v. Bearden, Tex.Civ.App., 374 S.W.2d 783, 784.

In the instant case the official court reporter was not called to report until after some evidence had been adduced. He has certified that the 166 pages of typewritten matter and attached exhibits contain a true and correct statement of the evidence adduced and facts proven upon the trial, except for the portion that was heard before he was called to report. Counsel for both parties have agreed that the statement of facts is incomplete and reflects only the testimony adduced after the court reporter was called. The court was not requested to make findings of fact and conclusions of law and did not do so. Appellant did not prepare a supplemental statement of facts covering the omitted testimony and request counsel to agree thereto or request the court tó prepare a statement covering such evidence. Rules 377, 428 and 429, Texas Rules of Civil Procedure.

When during argument before this Court the attention of counsel for appellant was directed to the fact that the statement of facts was incomplete, counsel requested that he be given time to obtain, if possible, a supplemental statement of facts covering the testimony from the beginning of the trial until the reporter was called. The request was granted. Thereafter, said counsel filed in this Court an instrument which he denominated “Motion of Appellant” and in which he advised this Court that he had prepared such supplemental statement of facts but that counsel of appellee would not agree thereto, and that the trial judge before whom the matter was presented said he had no independent recollection of the exact testimony which was heard before the reporter was called. The judge thereupon, at request of appellant’s counsel, endorsed on said supplemental statement of facts, “Court refused this 7th day of June, 196S to approve the above statement of facts.”

Is is impossible for this Court under these circumstances to determine what evidence was given at the trial prior to the time the reporter was called. All reasonable presumptions, therefore, must be indulged in favor of the judgment of the trial court and that such judgment was rendered upon full and satisfactory evidence, as required by Article 4632, Vernon’s Annotated Texas Civil Statutes.

Judgment affirmed.


author: DIXON, Chief Justice.

text:
    Samuel Roy JONES, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16566.
    Court of Civil Appeals of Texas. Dallas.
    May 28, 1965.
    Rehearing Denied July 2, 1965.
    Thompson, Coe, Cousins & Irons, and Larry L. Gollaher, Dallas, for appellant.
    Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Samuel Roy Jones brought this suit to set aside an order of Texas Department of Public Safety suspending his automobile operator’s license for a period of six months.

The Department filed an answer and a cross-action in which it alleged that at an administrative hearing before a judge of the Corporation Court of Dallas, Texas it had been found as a fact that appellant had been convicted of an offense in another state which if committed in this state would be grounds for suspension of appellant’s operator’s license. In particular it was found that appellant had been convicted in the State of Illinois of driving an automobile while intoxicated. See Art. 6687b, Sections 22(a), 22(b)7 and 28, Vernon’s Ann.Civ.St. Based on such finding the Department suspended appellant’s operator’s Texas license.

After a trial de novo in the County Court at Law judgment was rendered affirming the Department’s order, hence this appeal.

It is undisputed that at approximately 3:30 o’clock A.M. on February 22, 1964 while appellant was driving in the Village of Addison, DuPage County, State of Illinois he drove his car against and into a parked automobile. He was arrested and taken to the police station in Addison. He avoided being put in jail by posting a cash bond of $200. His trial in Illinois was set for March S, 1964.

A copy of the traffic ticket issued to appellant and signed by the arresting officer was introduced into evidence by appellant himself as Plaintiff’s Exhibit No. 2. It is styled “ILLINOIS UNIFORM TRAFFIC TICKET AND COMPLAINT”. It bears the printed heading, “IN POLICE MAGISTRATE’S COURT OF ADDISON”. It charges appellant with violating “Sec. 62-58, Sec. 13-66” and there is a checkmark in the space designated “LOCAL ORDINANCE”. However, across the front of the ticket is also written the charge, “DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR,” and the ticket directs appellant to report on March 5 to the Circuit Court. Below the arresting officer’s signature is this recitation: “You are notified that the officer whose signature appears below will file a sworn complaint in this court charging you with the offense set forth above.”

Concerning the charges against him in Illinois appellant testified as follows:

“Q. Do you know what you were charged with when you were arrested?
“A. Yes.
“Q. What was it?
“A. Two things. One, of a local ordinance, which I am not familiar with, and then the driving while under influence—
“Q. Driving while under the influence of intoxicating alcoholic beverages or liquor?
“A. Yes.”

Two days after his arrest in Illinois appellant on advice of an adjuster for his insurance carrier returned to Addison to discuss matters with the officials. Concerning his conference appellant testified as follows:

“Q. What did you and the Judge and the Chief of Police talk about ?
“A. We talked about this ticket. I wanted to know — I was going through town on business and it was going to be almost impossible for me to be there in March.”
“Q. All right. What were you informed? What were you told?
“A. I was told that it would be impossible to move the date up, but that if I would forfeit my bond why that would settle it as far as they were concerned.”
“Q. And you discussed these two cases with the Judge and the Chief of Police in the jail house or the Court. Is that it?
“A. Yes, at the police station. At Addison.”
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“Q. Was it generally stipulated and agreed to by you and the Chief of Police and the Judge that you could post the bond and have the bond forfeited and be on your way? Is that correct ?
“A. Yes.
“Q. And you would not have to come back on March Sth ?
“A. Yes, sir.”

Appellant thereupon agreed to forfeit and did forfeit his $200 cash bond. Appellant testified that this forfeiture applied to and included a charge against him of driving while under the influence of intoxicating liquor. We again quote part of his testimony:

“Q. I’m not talking about the traffic ticket, Mr. Jones. I am not speaking in connection with the traffic ticket now. You testified previously that you were arrested for the offense of driving while under the influence of intoxicating alcoholic beverages, did you not?
“A. Yes, sir.
“Q. And that you posted a bond in connection with that offense; that you were charged with that offense, did you not?
“A. Yes.”
* * * * * *
“Q. Well, you were arrested for driving while under the influence of intoxicating liquor or alcoholic beverages in DuPage County, Illinois, were you not? '
“A. Yes.
“Q. All right. And you were so charged in the Circuit Court of Du-Page County with such an offense, were you not?
“A. Yes.
“Q. And you agreed to the payment or the forfeiture of a cash bond to be forfeited in connection with that offense in that Circuit Court of DuPage County, Illinois, did you not?
“A. Yes.
“Q. All right. And you paid the two hundred dollars cash, yourself?
“A. Yes.
“Q. In connection with that offense ?
“A. Yes.
“Q. You do not dispute the fact that that cash bond was forfeited in the Circuit Court of Illinois. Is that correct?
“A. No, I don’t dispute that.”

Appellee introduced into evidence copies of the Illinois Motor Vehicle Law. Sections 6-201, 202(b) Ill.Rev.Stat.1963, c. 95)4, §§ 6-201, 6-202(b) of the law give the Secretary of State of the State of Illinois the authority to cancel the privilege of a nonresident of driving a motor vehicle in Illinois upon receiving a report of the conviction in Illinois of any offense under the laws of the state relating to the operation of motor vehicles.

Section 6-204 subd. 2 of the Illinois Law provides “Whenever any person is convicted of any offense under this Act or the Uniform Act Regulating Traffic on Highways or similar offenses under a municipal ordinance * * * ” the clerk of the court within three days shall forward a report of said conviction to the Secretary of State, and may recommend cancellation or suspension of the operator’s license.

Section 6-204 of the Illinois Law provides that “a forfeiture of bail * * * to secure a defendant’s appearance in court * * * shall be equivalent to a conviction.” (This is similar to our Texas statute, Art. 6687b, Sec. 25(c), V.A.C.S.)

Sections 47(a) and (c) of the Illinois Law provide that it is unlawful for any person to drive a vehicle while under the influence of intoxicating liquor, and upon conviction such person may be fined or imprisoned.

Appellant denied that he was intoxicated on the occasion in question but testified that he knew of his conviction in the Circuit Court in Illinois and that he had made no attempt to appeal from the judgment of conviction. We again quote part of his testimony:

“Q. You did receive notice that the conviction was entered on March 5, 1964, in that case, did you not ?
“A. Yes.
“Q. You’re really not appealing that conviction back in DuPage County, Illinois, the criminal conviction?
“A. No.
“Q. You don’t dispute the fact there is a judgment of record in that Court of your conviction, do you?
“A. No, sir.”
“Q. That judgment of your conviction in the Circuit Court of DuPage County, Illinois has never been set aside or appealed to your knowledge, has it?
“A. No.”
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“Q. Did you receive a Notice from the State of Illinois in regard to a suspension of your license or driving license in Illinois?
“A. Yes.
“Q. All right. Was that based upon this conviction in the Circuit Court of DuPage County, Illinois?
“A. Yes, as I understand it, sir.”

W. D. Vickers, an officer with the Dallas office of the Texas Department of Public Safety testified that he is a custodian of records of criminal charges pertaining to the drivers license law. He identified and offered in evidence as Defendant’s Exhibit No. 8 without objection a document duly certified, pursuant to authority of Art. 3731a and Art. 6701h, Sec. 3, V.A.C.S., by Ray Sundy, a deputy custodian of driver records of the Driver and Vehicle Records Division of the Texas Department of Public Safety at Austin, Texas. Sundy certified to notices of conviction and actions taken by the Department as follows:

“3-05-64 Convicted for driving while under the influence of intoxicants in the Circuit Court, Addison, Illinois, Docket No. J520-7963-3118, offense date February 22, 1964.
4-10-64 Non-resident driving privilege of Samuel Roy Jones revoked by the Office of the Secretary of State, of the State of Illinois as a result of conviction dated March 5,1964.
5-13-64 Affirmative finding by the Judge of the Corporation Court, Dallas, Dallas County, Texas as provided in Section 22, Article 6687b, committed an offense in another state, which if committed in this state would be grounds for suspension or revocation, (driving while intoxicated)
6-03-64 Texas Operator License #5437791 was suspended for a period of six (6) months by the Texas Department of Public Safety as authorized in affirmative finding of May 13,1964.”

Over appellant’s objection a copy of a document entitled “Order of Revocation,” an official record of the Texas Department, was admitted in evidence as Defendant’s Exhibit No. 1. This instrument recites that pursuant to the requirements of Section 6-204 of the Illinois Motor Vehicle Law and by authority of Section 6-205(a), par. 2 of the law a report had been received in the Secretary’s office of appellant’s conviction on March 5, 1964 of the offense of operating a motor vehicle while under the influence of intoxicating liquor; and that appellant’s privilege of operating a vehicle in Illinois had been revoked. This copy shows the original to have been signed by the Secretary of State of the State of Illinois.

The trial judge in the Texas County Court at Law filed findings of fact and conclusions of law. The court found inter alia that appellant had been convicted on March 5, 1964 in the Circuit Court of Du-Page County, Illinois of the offense of driving while under the influence of intoxicating liquor, and that he knew of said conviction hut he had made no attempt to set aside or appeal said conviction. The court concluded that the suspension of appellant’s Texas operator’s license was authorized by Sections 22(b), par. 7 and 28 of Art. 6687b, V.A.C.S.

OPINION

In his first point on appeal appellant asserts that the purported judgment of conviction is void since it was rendered by a court which lacked jurisdiction, namely, the Magistrate’s Court of the Village of Addison, Illinois, and was based on an unsworn complaint.

The point is without merit. There is ample evidence to support the court’s finding that appellant was convicted in the Circuit Court of DuPage County, Illinois. The record contains documentary evidence to that effect. And appellant’s own testimony, part of which we have quoted, supports the court’s finding.

A careful study of the record as a whole discloses that in some particulars appellant’s testimony is inconsistent and even contradictory. The rule is that inconsistencies and contradictions in the testimony of a party to a suit present issues of fact which are to be decided by the jury, or by the judge in a nonjury trial. Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977; United States Fidelity & Guaranty Co. v. McCollum, Tex.Civ.App., 70 S.W.2d 751, 753; Overton Refining Co. v. Harmon, Tex.Civ.App., 81 S.W.2d 207, 210 (Rev. on other grounds 109 S.W.2d 457); Hatley v. Hatcher, Tex.Civ.App., 376 S.W.2d 943; M-K-T RR. Co. v. Shelton, Tex.Civ.App., 383 S.W.2d 842, 848 ; 41B Tex.Jur. 489; 24 Tex.Jur.2d 369. Here the trial court resolved these contradictions in appellant’s testimony adversely to appellant’s present contentions, and said findings are binding on this court.

There is no doubt that the Circuit Court in Illinois has jurisdiction of cases involving the charge of driving a vehicle while under the influence of intoxicating liquor. Appellant without objection offered the opinion of the Illinois Appellate Court and asked the Texas court to take judicial notice of the holding in the case of City of Champaign v. Hill, 29 Ill.App.2d 429, 173 N.E.2d 839 wherein it is held that a municipal magistrate’s court does not have jurisdiction to try such cases. But appellant apparently' overlooked that part of the opinion on Page 845 which expressly holds that the Circuit Court does have such jurisdiction.

Appellant refers to the traffic ticket issued to him as an unsworn complaint which cannot support a conviction of driving while under the influence of intoxicating liquor. The traffic ticket does not purport to be the complaint upon which conviction was based in the Circuit Court. It expressly informs appellant that the officer whose signature appears below will file a sworn complaint. This recitation precedes the notice to appellant to appear in Circuit Court on March 5, 1964.

Since there is ample evidence that appellant was convicted in the Circuit Court of DuPage County, a court of competent jurisdiction, we must presume that the judicial proceedings leading up to the judgment of conviction in the Circuit Court are valid. See McCormick & Ray, “Texas Law of Evidence,” Vol. 1, pp. 128-130 and cases there cited. This presumption will include the filing of a proper complaint in the Circuit Court. Appellant’s first point on appeal is overruled.

In his second point appellant says that there is no evidence to sustain the trial court’s finding No. VII that he was convicted by an Illinois court of driving while under the influence of intoxicating liquor; and in his third point that such finding is so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. The evidence, some of which we have quoted or summarized, clearly supports the court’s challenged finding. Appellant’s second and third points are overruled.

In his fourth point appellant complains of the admitting into evidence of Defendant’s Exhibit No. 6, the purported Illinois court record, because it is hearsay and unauthenticated.

The front of this exhibit appears to be substantially the same as Plaintiff’s Exhibit No. 2, heretofore discussed in this opinion. It is the reverse side of Exhibit No. 6 to which appellant objects. This purports to be an abstract of a court record of an unnamed person who was found guilty of violating Sections 62-58 and 13-66 of a “Local Ordinance” and fined “$195.00 + 5.00.” It is unauthenticated. It does not name the court. There is no evidence as to what the mysterious Sections 62-58 and 13-66 may be. In our opinion the document should not have been admitted into evidence. However, there is other evidence that amply supports the finding that appellant was convicted in the Circuit Court of the offense of driving while under the influence of intoxicating liquor, so the error in admitting Exhibit No. 6 is harmless. Rule 434, Texas Rules of Civil Procedure. For that reason appellant’s fourth point is overruled.

Appellant next alleges error of the trial court in admitting into evidence Defendant’s Exhibit No. 1, the purported Illinois “Order of Revocation”. Appellant says that the exhibit is hearsay and irrelevant to the Texas proceeding.

We do not agree with appellant. Ap-pellee had previously given notice to appellant to produce the original of the document or secondary evidence would be offered of its contents. At the trial appellant himself testified that he had received the original of the exhibit but did not have it with him. He then identified the offered exhibit and it was admitted into evidence. In our opinion it was not error under the circumstances to do so. Appellant’s fifth point is overruled.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Attie DORN, Appellant, v. J. W. CARTWRIGHT, Jr., Appellee.
    No. 16578.
    Court of Civil Appeals of Texas. Dallas.
    May 28, 1965.
    Rehearing Denied June 25, 1965.

      Nance & Caston and Robert G. Bush, III, Sherman, for appellant.
    Brame & Brame, Sherman, for appellee.
   DIXON, Chief Justice.

Appellee J. W. Cartwright, Jr. filed suit for declaratory judgment to construe a will. The purpose of the suit is to determine whether appellee has the right under the terms of the will to convey fee simple title to certain real property, in particular whether he has a right to convey such title to Melvin Kalmbach, with whom he has already entered into a contract of sale.

The defendants in appellee’s suit are the surviving children, the children of deceased children and the heirs known or unknown of J. W. Cartwright, Sr. Appellee is a son and appellant Attie Dorn is a daughter of J. W. Cartwright, Sr. Melvin Kalm-bach is not a party to the suit.

J. W. Cartwright, Sr. died in 1925. He left a will and a codicil which were duly admitted to probate in 1929. The material parts of the will and codicil so far as this suit is concerned are as follows:

“Third: — Because my son, J. W. Cartwright, Jr., has lived with me and has cared for, aided and assisted me during my declining years, I do, hereby, give, devise and bequeath unto my said son, J. W. Cartwright, Jr., my 121 acres of land situated about 1J4 miles South-West of the town of Van Alstyne, in the A. Cartwright survey in Grayson County, Texas, To have and to hold the same in fee simple title forever, and he may sell, or otherwise dispose of same, or any part thereof, in any manner he may deem fit.”
“As a codicil to my above and foregoing Will bearing date November 29th, 1922, to which this codicil is attached to be taken and considered as a part thereof, I hereby will and direct that in case my said son, J. W. Cartwright should die without leaving any child or children of his own surviving, then all the property devised to him in my said will, shall revert back to and vest in my estate and be divided equally among my other children then living. In all other respects, my said will shall be and remain as it was written.
“Witness my hand this May 4th, 1925.”

J. W. Cartwright has no children of his own. In 1960 he adopted a stepdaughter, who is herself grown, married and has children.

On June 10, 1963 J. W. Cartwright, Jr. entered into a written contract with Melvin Kalmbach whereby for a consideration of $33,000 he agreed to sell and convey to Melvin Kalmbach the 121 acres of land referred to in the above quoted portions of the will. Kalmbach deposited the sum of $8,000 cash with Merchants & Planters Bank of Sherman, Texas, as down payment pending consummation of the sale. The remaining $25,000 of the purchase price is to be evidenced by a promissory note payable in annual installments covering a period of fourteen years, said note being secured by vendor’s lien.

The contract of sale provides that seller shall furnish an abstract of title to the property which is to be conveyed free and clear of all encumbrances except those named. It also provides that if any title objections are made seller shall have a reasonable time to cure said objections and show good and marketable title.

The contract further provides that if seller fails to furnish good and marketable title the $8,000 cash in escrow with the bank shall be returned to Kalmbach, the purchaser. But if seller cures all objections to title and purchaser thereafter fails to consummate the contract, the $8,000 shall be retained by seller as liquidated damages. Purchaser is expressly given the right to enforce the contract by specific performance.

William R. Bryant, attorney at law, examined the abstract of title in behalf of his client, Melvin Kalmbach. In his written opinion he expressed uncertainty as to whether under the terms of the will of J. W. Cartwright, Sr. appellee has the right to convey fee title to the land in question. As a condition to his approval of the title he required that a suit be filed to construe the will and an adjudication be obtained declaring that appellee has the right to convey fee title.

It was in compliance with attorney Bryant’s requirement that this suit was filed. After a trial before the court without a jury judgment was entered construing the will and codicil to mean “that under the terms 'thereof the said plaintiff, J. W. Cartwright, Jr., has the power to sell and convey a fee simple title to the aforesaid 121 acres of land * * The land is then described by metes and bounds.

Attie Dorn, sister of appellee J. W. Cartwright, Jr., is the only one of the defendants who has perfected an appeal from the trial court’s judgment.

After suit was filed appellee and Melvin Kalmbach entered into another written agreement in regard to the land. This second agreement is in the nature of a lease agreement. A tenant under appellee had been in possession of the premises. Kalmbach bought the tenant’s lease contract and later renewed it with appellee as landlord. Under the terms of this lease agreement a certain sum will be paid to appellee each year out of the $8,000 held in escrow by the bank. These yearly payments will constitute the annual rental payments if appellee loses this lawsuit. If appellee wins this suit the annual payments so made shall apply on the purchase price of the land. Under the terms of this second agreement Melvin Kalmbach went into possession and is now in possession of the land in question.

Opinion

In her first point on appeal appellant says that the court erred in overruling her plea in which she asked that the suit be abated until Melvin Kalmbach should be joined as a necessary party plaintiff.

We are of the opinion that Melvin Kalmbach is a necessary party to this suit, and that it was error for the court to overrule appellant’s plea in abatement.

Although this is a suit for declaratory judgment to construe a will it is similar to a suit to quiet title or to remove cloud from title. McCurdy v. Morgan, Tex.Civ.App., 252 S.W.2d 264.

If appellee has the right to convey fee title Kalmbach, as purchaser in the contract of sale, has an equitable title in the property dating from the execution of the contract. This equitable title will ripen into a legal title upon consummation of the sale pursuant to the contract’s terms and the delivery of a warranty deed naming him as grantee, his legal title then being subject only to his payment of the balance of the purchase price. Kalmbach therefore has a direct interest in the property and in the outcome of this lawsuit. City of Garland v. Wentzel, Tex.Civ.App., 294 S.W.2d 145; Whittenburg v. Miller, 139 Tex. 586, 164 S.W.2d 497; American Nat’l Ins. Co. v. Bass, Tex.Civ.App., 111 S.W.2d 769; Alworth v. Ellison, Tex.Civ.App., 27 S.W.2d 639; Rives v. James, Tex.Civ.App., 3 S.W.2d 932; Slaughter v. Coke County, 34 Tex.Civ.App. 598, 79 S.W. 863; Peters v. Clements, 46 Tex. 114; 58 Tex.Jur.2d 497.

Our Supreme Court has said, “Necessary parties * * * are those who have or claim a direct interest in the object and subject matter of the suit and whose interest will necessarily be affected by any judgment rendered therein.” Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313. See also Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324; Hortenstine v. Jackson, Tex.Civ.App., 289 S.W.2d 613; Adams v. Bankers’ Life Co., Tex.Com.App., 36 S.W.2d 182, 185. See especially Texan Development Co. v. Hodges, Tex.Civ.App., 237 S.W.2d 436, wherein it was held that a third party was a necessary party to a suit because he was a party to an executory contract with one of the litigants and his rights would be affected by the outcome of the suit.

Our holding is in accord with the Uniform Declaratory Judgment Act, Art. 2524-1, Sec. 11 Vernon’s Ann.Civ.St., which provides : “When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” Appellant’s first point is sustained.

In her second point on appeal appellant takes issue with the recitation in the court’s judgment that a justiciable controversy exists as to appellee’s right to make a sale and convey 121 acres of land in Grayson County, Texas.

We see no merit in appellant’s second point. In his Second Amended Petition appellee alleges that under the terms of the will he has the right to convey fee simple title to the land. Appellant in her Second Amended Answer presents a general denial to appellee’s allegations. There is obviously a controversy between appellant and appellee. Appellant’s second point is overruled.

In her third point on appeal appellant complains of the court’s action in sustaining exception to parts of the prayer in her answer wherein she asked judgment that the court award to the children and grandchildren of the testator fee simple title to the property because appellee violated that part of the will which forbade a contest of the will.

The court’s error, if it was error, in sustaining the exception was harmless. Appellee’s suit does not contest the validity of the will. Appellee does not ask that the will be set aside. He merely asks that the will be construed and that his rights under its terms be determined.

In her fourth point appellant complains of the court’s ruling sustaining the exception to that part of her prayer in which she asked the court to construe the will and codicil to mean that appellee has no more than a life estate in the 121 acres in question. It was error for the court to sustain the exception. No matter how much the court may disagree with appellant as to the proper construction of the will and codicil appellant has a right to ask the court to adopt her view. Doubtless this error will not be repeated in another trial.

In her fifth point appellant complains because the court would not permit her to perfect a bill of exceptions and to elicit from appellee answers to questions pertaining to his health and ability to procreate children.

Under Rules 372 and 373, Texas Rules of Civil Procedure it is no longer necessary to make out separate formal bills of exception when the record otherwise fully discloses all that a bill of exceptions would disclose. For example, when objection to testimony is overruled and a witness is allowed to answer the question propounded no separate bill of exceptions is necessary for the statement of facts will show everything needed to inform the appellate court what happened.

But when objection is sustained and the witness is not permitted to answer the question propounded to him the statement of facts will not show what the testimony of the witness would have been. Then a separate bill of exceptions often becomes necessary. The objecting party is entitled to make out his bill of exceptions and the court may not refuse to let him do so. Otherwise the appellate court in many cases could not know what the witness would have testified, so cannot pass on the admissibility of the proffered testimony. Rules 372 and 373 do not dispense with the necessity of a separate bill of exceptions under such circumstances. Our courts have often so held. City of Kingsville v. Rivas, Tex.Civ.App., 355 S.W.2d 813; Southerland v. Porter, Tex.Civ.App., 336 S.W.2d 841; Gass v. Baggerly, Tex.Civ.App., 332 S.W.2d 426; Martin v. T. & P. Ry. Co., Tex.Civ.App., 317 S.W.2d 577; Texas Associates v. Joe Bland, Const. Co., Tex.Civ.App., 222 S.W.2d 413; Bradford v. Magnolia Pipe Line Co., Tex.Civ.App., 262 S.W.2d 242; Johnson v. Poe, Tex.Civ.App., 210 S.W.2d 264; Texas Lloyds v. Laird, Tex.Civ.App., 209 S.W.2d 937; City of Houston v. Huber, Tex.Civ.App., 311 S.W.2d 488. The usual way to give an objecting party his opportunity to make a bill in such a situation is for the court to retire the jury and have the witness answer the questions in the jury’s absence; or if the situation arises in a nonjury trial, the witness may be allowed to answer the questions, it being understood that his answers are for the bill of exceptions only.

In the case now before us we are of the opinion that it was not reversible error for the court to refuse to allow appellant to obtain the answers of appellee in order to make out her bill of exceptions. We so hold because it is immaterial to the outcome of this lawsuit whether appellee would have answered that he does or does not intend to have children in the future or whether he is or is not capable of procreation.

The main question before us in this case is whether appellee has a present right to convey fee title to the property involved. More particularly the question is, did he have said right as of June 10, 1963 when he entered into the written contract of sale with Kalmbach. Appellee’s status at the present time and on June 10, 1963 with regard to children of his own is undisputed. Whether he intends to have children in the future or is able to procreate has no bearing on his right to convey fee title to Kalmbach pursuant to the terms of their contract. Since the court’s error in refusing to let appellant make out her bill of exceptions is harmless we overrule appellant’s fifth point.

In her sixth to eleventh points inclusive appellant complains of matters which either present no error, or which show harmless error, or which, though error, will not likely occur in another trial of this case. Said points are overruled.

Because we have concluded that Melvin Kalmbach is a necessary party to this cause of action, the judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


author: HUGHES, Justice.

text:
    RAILROAD COMMISSION OF TEXAS et al., Appellants, v. CURRY MOTOR FREIGHT LINES, INC., Appellee.
    No. 11309.
    Court of Civil Appeals of Texas. Austin.
    June 9, 1966.
    Rehearing Denied June 30, 1965.

      Clark, Thomas, Harris, Denius & Winters, Jerry C. Prestridge, Austin, Rawlings, Sayers, Scurlock & Eidson, Reagan Sayers, Lloyd Scurlock, Fort Worth, Waggoner Carr, Atty. Gen., Sam Kelley, Asst. Atty. Gen., Austin, for appellants.
    Grady Fox, Amarillo, Small, Small & Craig, C. C. Small, Jr., Austin, for appellee.
   HUGHES, Justice.

The parties to this case are the Railroad Commission of Texas, its members, Merchants Fast Motor Lines, Inc. and Curry Motor Freight Lines, Inc. All parties have appealed from portions of the judgment rendered below. We will refer to Curry as appellee and the Commission and Merchants as appellants unless otherwise indicated.

Suit in the court below was filed by Curry against the Commission and Merchants in the nature of an appeal from an order of the Commission granting, in part, Merchants’ application to amend its Common Carrier Certificate No. 2024.

After a non-jury trial the court entered judgment from which, because of its informative and comprehensive character, we quote at length;

“on January 2, 1964, the Railroad Commission of Texas issued an amendment to Certificate No. 2024, which amendment granted the following authority :
‘TO OPERATE: over an ALTERNATE ROUTE between Lubbock and Dimmitt as follows:
From Lubbock over U. S. Highway 84 to Littlefield; thence over U.S. Highway 385 to Dimmitt, serving no intermediate points, returning over the same route, and co-ordinating the service with that authorized under other certificates.
Restriction: This Alternate Route may not be transferred or sold except with the primary route’;
(4) that the effect of such order and the amendment so issued to such certificate is to create a new common carrier motor carrier service and to authorize Merchants Fast Motor Lines, Inc. to operate a new route in the transportation of freight between Amarillo and Lubbock over U. S. Highway 84 between Lubbock and Littlefield, over U. S. Highway 385 between Little-field and Vega, and over U. S. Highway 66 between Vega and Amarillo by reason of the authority granted to coordinate with other authority;
(5) that the plaintiff, Curry Motor Freight Lines, Inc., depends to a substantial degree upon revenue derived from the transportation of freight between Amarillo and Lubbock to support its operations as a common carrier motor carrier and to render service to the public over its system, and the effect of such order and certificate amendment is to create new and intensive competition for plaintiff which will ultimately impair its continuing ability to render effective public service;
(6) that there is no express finding by the Railroad Commission of Texas that the public convenience and necessity requires such a new service and that Merchants Fast Motor Lines, Inc. have such a new route between Lubbock and Amarillo;
(7) that there is no substantial evidence to support either an express or implied finding by the Railroad Commission of Texas that the public convenience and necessity requires such a new service and that Merchants Fast Motor Lines, Inc. have such a new route between Lubbock and Amarillo;
(8) that to the extent that such order of October 25, 1963, and the certificate amendment of January 2, 1964, create a new service and authorize Merchants Fast Motor Lines, Inc. to operate a new route in the transportation of freight between Amarillo and Lubbock over U. S. Highway 84 between Lubbock and Littlefield, over U. S. Highway 385 between Littlefield and Vega, and over U. S. Highway 66 between Vega and Amarillo, the same are unreasonable and unjust as to the plaintiff, Curry Motor Freight Lines, Inc., in the absence of substantial evidence to support the grant of such new service and new route;
(9) that insofar as said order of October 25, 1963, and the certificate amendment of January 2, 1964, authorize Merchants Fast Motor Lines, Inc. to transport freight between Lubbock and Hereford and between Lubbock and Dimmitt over a new route, such route being from Lubbock to Little-field over U. S. Highway 84, from Littlefield to Hereford and Dimmitt over U. S. Highway 385 serving no points except Lubbock, Hereford and Dimmitt, the same are supported by substantial evidence and to such extent such order and certificate amendment are not unreasonable and unjust as to the plaintiff, Curry Motor Freight Lines, Inc. Accordingly, it is
ORDERED, ADJUDGED AND DECREED by the Court that said order of October 25, 1963,. entered in Docket No. 2024 and the amendment to Certificate No. 2024 issued January 2, 1964, pursuant thereto be and the same are hereby set aside and can-celled insofar as the same may authorize Merchants Fast Motor Lines, Inc. to transport freight between Amarillo and Lubbock over the following route:
over U. S. Highway 84 between Lubbock and Littlefield, over U. S. Highway 385 between Littlefield and Vega, and over U. S. Highway 66 between Vega and Amarillo,
and that the Railroad Commission of Texas be, and it is hereby restrained and enjoined from issuing any certificate to Merchants Fast Motor Lines, Inc. pursuant to said order of October 25, 1963, which has the effect of authorizing Merchants Fast Motor Lines, Inc. to transport freight between Amarillo and Lubbock over the above described route, but without prejudice, however, to the right of the Railroad Commission of Texas to issue an amended order and an amendment to Certificate No. 2024 authorizing Merchants Fast Motor Lines, Inc. to transport freight between Lubbock and Hereford and between Lubbock and Dimmitt serving no other points over the following route:
over U. S. Highway 84 between Lubbock and Littlefield, over U. S. Highway 385 between Littlefield and Hereford;
And it is further ORDERED, ADJUDGED AND DECREED by the Court that the defendant, Merchants Fast Motor Lines, Inc., its agents and employees, be, and they are hereby permanently restrained and enjoined from conducting any common carrier motor carrier operations for the transportation of freight between Amarillo, Texas, and Lubbock, Texas, over the following route:
over U. S. Highway 84 between Lubbock and Littlefield and over U. S. Highway 385 between Littlefield and Vega and over U. S. Highway 66 between Vega and Amarillo under the order of October 25, 1963, and the Certificate amendment of January 2, 1964, made and issued by the defendant, Railroad Commission of Texas, in Motor Carrier Docket No. 2024;”

Other Common Carrier Certificates owned by Merchants authorized it to operate between Dimmitt and Amarillo via Hereford and Vega. By coordinating this service with the authority granted by the Amendment to Certificate 2024 to operate between Lubbock and Dimmitt, the order authorized Merchants to operate between Lubbock and Amarillo on a much shorter route.

Prior to the Commission order of January 2, 1964, Merchants’ route between Lubbock and Amarillo was via Guthrie, Padu-cah, Childress and Clarendon, a distance of 266 miles. Following the order of January 2, 1964, Merchants’ route from Lubbock to Amarillo via Dimmitt and Vega was 164 miles, a saving in distance of 102 miles. The evidence shows that in round trips between Lubbock and Amarillo Merchants would, by using the shorter route, save in road costs only $67.32.

The trial court, as disclosed by its judgment, has stricken from the order of the Commission the provision for coordinating the authority expressly granted with other certificates held by Merchants the effect of which is, as shown above, to shorten the Lubbock-Amarillo haul by 102 miles, with resulting cost savings.

Merchants, by its first point, contends that the trial court was without authority to so amend the order of the Commission, citing opinions of this Court in Merchants Fast Motor Lines v. Newman, Tex.Civ.App., 236 S.W.2d 646, writ ref., n. r. e. and in Railroad Commission of Tex., v. Missouri Pacific Transp. Co., Tex.Civ.App., 293 S.W.2d 114, writ ref., n. r. e., and Texas Motor Coaches v. Railroad Commission, 123 Tex. 517, 73 S.W.2d 511.

Curry has a counterpoint to this contention which is that the effect of the amended order of the Commission is to create a new common carrier motor service between Amarillo and Lubbock and to authorize Merchants to transport freight over it, there being no substantial evidence to support the order.

Curry questions the sufficiency of the order of the Commission as to its findings regarding public convenience and necessity for a new motor common carrier freight service between Amarillo and Lubbock. We need not determine this question for the reason that, in our opinion, the service authorized between Lubbock and Amarillo is a new service and the need therefor is not reasonably supported by substantial evidence.

There can be no doubt that the authority granted to Merchants when coordinated with the authority it already possessed resulted in the operation of a new motor freight service by it from Lubbock to Amarillo via Dimmit and Vega. Merchants had never been authorized to transport freight over this route prior to the January 2, 1964, amendment of its Certificate 2024. It was, therefore, a new service. Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266.

Merchants bases its showing of substantial evidence to support findings of public need upon evidence which it contends will show that its service will be “more reliable, more economical and more safe, and that by improving its service in these particulars, Merchants will fulfill a public need.”

We quote from Merchants’ brief its summation of the evidence tending to establish that the new route will give it greater reliability.

“The route via Guthrie and Childress covers 266 miles, while the alternate route via Dimmitt and Vega covers only 164 miles. Merchants operated over the circuitous route nightly, leaving Lubbock at 11:00 p. m., arriving in Amarillo at 6:15 a. m.; leaving Amarillo at 6:00 p. m., and arriving in Lubbock at 1:15 a. m. The circuitous route takes seven hours and fifteen minutes each way, leaving very little margin for error. By using the alternate route, which is 102 miles shorter, Merchants is able to improve its arrival time at both termini. This gives it greater assurance that it can actually give overnight service, despite inclement weather, flat tires, loading problems, or breakdowns. While no one recalled Merchants actually being delayed for any of these reasons, experience shows that such delays do occur frequently. It seems obvious that greater assurance in making on time deliveries would benefit the public, and public witnesses so testified. For example, Clois Cobb, Jr., who is in charge of outbound shipments for Gif-ford Hill Western Company in Lubbock, gave the following testimony:
'Q. They (Merchants) also propose to operate over a shorter route between Lubbock and Amarillo so that would give them greater leeway in effecting on time deliveries. Do you feel, sir, that that is of benefit to your company?
A. I do.’ ”

The evidence establishes beyond question that Merchants can operate over the new route between Amarillo and Lubbock at less cost than over the former and longer route. The cost savings are shown to be about $21,000.00 annually.

Merchants’ vice president, Mr. Doyle Armstrong, testified that this saving benefits the public in that it permits Merchants to provide better service and equipment at all points.

We quote in full Merchants’ statement of the evidence tending to establish that the new shorter route would promote safety of operations.

“There is also evidence that the route between Lubbock and Amarillo via Dimmitt is an easier one over which to operate and a safer one from the standpoint of accident exposure. There can be no doubt that a safer operation will fulfill a public need.”

At the time this matter was heard by the Commission, Merchants was transporting freight between Amarillo and Lubbock over a route from Amarillo to Childress over U. S. Highway 287; thence from Childress to Guthrie over U. S. Highway 83; thence from Guthrie to Lubbock over U. S. Highway 62, a round trip distance of 523 miles. Merchants was offering the public overnight service between Amarillo and Lubock over this route each and every day and as far as Merchants’ management is aware, they had never failed to actually render overnight, first morning delivery between Amarillo and Lubbock since commencing such service in 1959. Merchants provided pick up and delivery service at each point commencing at 8:00 with thirteen or fourteen pickup trucks at each place. During this period of time no known complaint had been made about the performance of this service.

It -is further shown that when this matter was heard by the Commission, Curry was operating its schedules No. 48 and No. 49 which leave Amarillo and Lubbock respectively at 11:30 a. m., arriving at the opposite points at 3:30 affording a same day pickup and delivery service between Amarillo and Lubbock both ways. Curry was operating its schedule No. 1 from Amarillo to Lubbock and schedule No. 2 from Lubbock to Amarillo offering overnight service over U. S. Highway 87, a round-trip distance of 240 miles. Curry had nine pickup and delivery trucks equipped with two-way radios, at least nine trailers, two or more local tractors and switch tractors at all times based in Amarillo and nine pickup and delivery trucks with two-way radio communications, two trailers and six semi-trailers based in Lubbock. Curry’s pickup crews were operating fourteen hours every day, except Saturdays and Sundays and on Saturdays crews from 7:00 a. m., to 6:00 p. m., in both places. Curry starts local delivery at 8:00 a. m. on inbound freight and has it delivered usually by 11:30 a. m.

When this matter was before the Commission, the evidence shows that Santa Fe Trail Transportation Company was offering next day service between Amarillo and Lubbock in both directions (i. e., freight picked up today will be delivered the following day) over U. S. Highway 87, a round-trip distance of 240 miles. Santa Fe had five pickup trucks and a pickup trailer and three road trailers stationed at Lubbock and three pickup trucks, one pickup trailer and one pickup tractor at Amarillo. In Lubbock and Amarillo Santa Fe’s pickup and delivery men started working at 7:00 and were on duty until 6:00 five days a week, and on Saturday until the work is done. Generally inbound freight in both Amarillo and Lubbock was delivered by noon.

The evidence also shows that when this application was heard Sunset Motor Lines had schedules on file with the Commission indicating a daily service between Amarillo and Lubbock overnight and Texas-New Mexico Coaches, a bus line, had six schedules daily each way between Lubbock and Amarillo and was authorized to carry packages of freight up to ISO pounds in weight on its passenger busses.

In addition, at such time, the Santa Fe Railroad was providing railroad freight service between Amarillo and Lubbock and, according to the testimony of appellants’ witnesses, Lang Transit Company was providing satisfactory service between Amarillo and Lubbock.

Neither Curry nor Santa Fe are operating at capacity between Amarillo and Lubbock. The new short route will give Merchants a competitive advantage and will enable Merchants to cut Curry’s Amarillo-Lubbock revenues by as much as 25 per cent, which in turn will cause Curry to have to curtail its operations drastically. Such a reduction in revenue would put Curry into an operating loss position.

Under the new grant of authority, Merchants proposes no basic change whatsoever in the type of service it holds out to the public between Amarillo and Lubbock.

In refutation of the finding by the trial court of a lack of substantial evidence to show a public need that Merchants have a new route between Lubbock and Amarillo, appellant states that, “The Court may have been looking for evidence that the services of an additional carrier were needed. However, the Commission’s order does not allow an additional carrier to operate, for Merchants was already operating between Lubbock and Amarillo — via Guthrie and Childress.”

Since no additional carrier was provided by the Commission for public use between Amarillo and Lubbock, what benefit does the public receive from the shorter route between these cities granted to Merchants by the Commission?

The evidence is undisputed that the public will not receive any different type of freight service between these points than the public is now receiving. The evidence shows that Merchants is now giving overnight service wtih early morning delivery between these cities, and that similar service is now being furnished by Curry and Santa Fe and other carriers.

The contention that Merchants, by reason of this shorter route, will be able to give the public more “reliable” service is not substantial. The evidence is that the service now rendered by Merchants is reliable. The evidence is that it always runs on schedule.

Neither do we consider the “safety” and “economical” factors to constitute a substantial showing of public need for this shorter route. Of course, the shorter a route between two points is the cheaper in operating costs. The savings in costs would be enjoyed principally by Merchants. They would be realized in a large part from their competitors. The public benefit, if any, would be minuscule.

All of the evidence bearing on the comparative safety of the old and new routes is a highway density map of the area which is not interpreted by a witness and testimony that the new route would “be an easier route over which to operate and a safer one from the standpoint of accident exposure.”

This evidence is too insubstantial to warrant a finding of public convenience and necessity for a grant of authority to operate over the shorter and highly competitive route. There is no evidence of accidents on the old route, nor is it shown to be a dangerous route.

We are convinced that substantial evidence does not reasonably support a finding of public convenience and necessity for the coordinated route between Amarillo and Lubbock. Merchants argue, however, that this coordinated service is necessary to sustain the basic grant of authority to operate between Lubbock and Dimmitt. Appellants say, “Dimmitt needs service out of both Lubbock and Amarillo; therefore a route between Lubbock and Amarillo via Dimmitt is justified even in the absence of an independent need for through service.”

We do not find that this contention was made by Merchants in its application to the Commission or that it was considered by the Commission. Certainly the language of the Commission’s order cannot be construed so as to include it. The basic authority granted was “from Lubbock * * to Littlefield * * * to Dimmitt * * * serving no intermediate points, returning over the same route. * * *” Substantial evidence must support this basic grant of authority, a point we will later consider. If, as we hold, there is substantial evidence to support this portion of the Commission’s order, then the argument that the short route between Amarillo and Lubbock must be sustained in order to uphold the basic grant of authority falls of its own weight.

Merchants cites Texas Motor Coaches v. Railroad Commission, 123 Tex. 517, 73 S.W.2d 511, to sustain its position. In this case the Commission authorized a motor bus to operate over a new route between Dallas and Fort Worth, the intervening towns on the new route being without any bus service. The protest of a motor bus between the same cities over another route was overruled. In the present case the need for additional service between Lubbock and Dimmitt does not extend to or include service between Amarillo and Lubbock.

Also cited is Railroad Commission of Texas v. Missouri Pacific Transp. Co., 293 S.W.2d 114, Austin C.C.A. This case merely holds that a through bus service conditioned upon the rendition of local service is valid and that if the Commission should authorize local service to be curtailed the carrier would have to show a public need for the through service. The relevancy of this case here is not apparent.

Merchants also relies heavily upon Merchants Fast Motor Lines v. Newman, 236 S.W.2d 646, Austin C.C.A., writ ref., n. r. e. We held there that needed coordinated service between Abilene and other points served by Newman could not be defeated because of incidental overlapping of service on some segments of the route on which segments additional service was not shown to be needed. We were careful to note in this opinion that, “In affirming the validity of the Newman certificate we have borne in mind the absence of any evidence showing that the grant of this additional authority to Newman would cause hardship to appellants or interfere with the services which they are now rendering.” How different is the situation now presented. The trial court’s finding that the effect of the certificate amendment, allowing a short route for Amarillo-Lubbock freight, “is to create new and intensive competition for plaintiff which will ultimately impair its continuing ability to render effective public service,” is not questioned. We believe the rule of Newman that sustains unneeded duplication of service on small segments of a needed longer route does not require duplication of unneeded service over a longer route in order to grant needed service on an interior route when to do so would impair the service of other carriers, there being no showing that the needed interior service cannot be otherwise rendered.

There is substantial evidence in the record to support the grant of coordinated authority to Merchants to transport freight between Lubbock and Hereford and Lubbock and Dimmitt. This evidence consisted of testimony by witnesses that only second day delivery service to Hereford and Dim-mitt out of Lubbock was furnished by other carriers. This testimony was rebutted by evidence that in some instances, at least, first day delivery service was rendered. However, there is undisputed testimony that deliveries were made in Dimmitt in open-air vans, even in inclement weather, often late in the day, and occasionally by a woman who would not unload the freight. On some occasions consignees were required to pick up their own freight from the local depot unless they cared to wait until the next day for delivery. Deliveries in Hereford were made late in the day, and there were complaints of shortages in and damages to freight shipments to Hereford.

We overrule the point made by Curry on its appeal from the judgment rendered below.

Merchants filed a motion for summary judgment on the whole case, which the trial court overruled. It complains of this action. We overrule this point.

Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, is authority for an appellate court to consider and grant a motion for summary judgment which has been denied in the trial court when both parties have moved for summary judgment and one is granted and the other denied. In our case Curry did not move for summary judgment and no summary judgment was granted; the rule of Tobin is inapplicable.

An appeal is before us from a final judgment made after a full hearing in accordance with procedures regulating judicial reviews of administrative decisions. This appeal has resulted in a determination by us that Merchants, as shown by the record, is not entitled to prevail completely in this suit. Under these conditions, we would not, even if we have the authority, reverse the judgment below and render judgment for appellant on the ground that its motion for summary judgment should have been sustained.

The judgment of the trial court is affirmed.

Affirmed.

      . The use of any Texas Highway map will facilitate an understanding of the routes involved.

      . Merchants concedes as much when it says in its brief, “The fact that this (coordination of authorities) incidentally creates new routes is beside the point.”


author: CLAYTON, Justice.

text:
    Athanassia ANTONOPOULOS, Appellant, v. Jimmy WOOLSEY, Independent Executor of the Estate of Chris Antone, Deceased, Appellee.
    No. 5704.
    Court of Civil Appeals of Texas. El Paso.
    June 2, 1965.
    Rehearing Denied June 30, 1965.
    Thomas O. McWhorter, Midland, Dixie & Schulman, Houston, for appellant.
    Garland Casebier, Midland, A. R. Archer, Jr., Monahans, Hill D. Hudson, Pecos (on rehearing), for appellee.
   CLAYTON, Justice.

This is an appeal from an order of the District Court of Winkler County, Texas, which granted the appellee a summary judgment against appellant. The cause of action grew out of the probate of the will of one Christos Antonopoulos, herein designated as Chris Antone, who died in Kermit, Winkler County, Texas possessed of real estate, royalties, mineral interests, oil and gas property rights and other personal estate. In his will he named Woolsey as Independent Executor and made several individual bequests. The will recited: “That all heirs at law and other close relatives having any claim on my bounty or estate are dead or otherwise provided for.”

Appellant filed her plea of intervention in the County Court of Winkler County, as surviving widow of the decedent, claiming an undivided one-half interest in his estate. Subsequently the will was admitted to probate and appellee Woolsey was appointed independent executor of the estate. He then filed his contest to the intervention plea, denying that the decedent had been married to the intervenor, and this issue was tried in the County Court where the claim of intervenor was denied. Appeal was taken to the District Court of Winkler County, and all original County Court papers were sent to the District Court in lieu of transcript. These consisted of probate pleadings and records, including the depositions of intervenor (appellant), from Greece, and of one Charles J. Pappas, a first cousin of intervenor, residing in the State of Delaware, U. S. A. Also, an original and translation of a certificate from Greece that Christos Antonopoulos left a widow, “Athanassia Christou Antonopou-lou, born Papadopoulou”, and two grandsons, and the further statement that “Ath-anassia widow of Christos Antonopoulos, her two gran’sons and the mother of the latter, Eleni, constitute one sole family”. There was also an original and a translation of a certificate that Christos B. An-tonopoulos and Athanassia N. Papadopou-lou were joined in holy matrimony on June 4th, 1911, by virtue of Marriage License No. 64, dated June 3rd, 1911.

In the District Court there were added appellee’s motion for summary judgment, answer thereto containing a supporting affidavit of Pappas and judgment of the District Court granting summary judgment All these papers are before us here.

Appellant’s first two points of error complain of the court’s action in granting a summary judgment for the reasons that the appellee, as movant, failed to sustain his burden of proof, “but merely attempted, without any offer of his own, to force in-tervenor to bear the burden of proof as if the summary judgment proceeding were a trial on the merits,” instead of showing the absence of a material fact issue. Appellee counters by quoting from his motion for summary judgment the following allegations :

“ * * * All of the pleadings filed in behalf of the plaintiff and in behalf of the defendant together with all exhibits, depositions and other evidence show that there are no genuine issues as to material facts and same are incorporated in this motion the same as if fully set out herein and made a part hereof for all purposes * *
“No competent evidence of any probative value was submitted in the County Court which would establish the relationship of surviving spouse of Chris Antone, deceased, insofar as plaintiff is concerned and since plaintiff’s claim is based upon her alleged relationship as the surviving spouse of Chris Antone, deceased, then her claim to an undivided 1/2 of the Estate of Chris Antone, deceased, must fail.”

As being applicable here, appellee cites 55 C.J.S. Marriage § 43, p. 887, which reads as follows:

“There is no presumption that persons are married. Accordingly the burden of proving a marriage rests on the party who asserts it, * * * and an allegation that a party was not married does not thereby require the pleader to assume the burden of proof of nonmarriage.”

Also cited is Christoph v. Sims, 234 S.W.2d 901 (Tex.Civ.App., 1950; ref., n. r. e.). We agree in general with the principles set out in appellant’s brief as governing summary judgment proceedings. These principles are re-stated by the Supreme Court of Texas in the case of Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (April 24, 1965), in the following language:

“* * * Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat’l. Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d [929] (1962). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kins el, 369 S.W.2d 19 (Tex.Sup.1963); Smith v. [Bolin], 153 Tex. 486, 271 S.W.2d 93 (1954). If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Cowden v. Bell, 157 Tex. 44, 300 S.W. 2d 286 (1957) * * * ”

Although the burden of proof is on the movant and all doubts as to the existence of a genuine issue as to a material fact are resolved against him, even that being so does not change the burden of proof as it may lie in any lawsuit and make what would ordinarily be a plaintiff’s onus one for the defendant, and vice versa. Here the ap-pellee undertook to show that appellant had failed to carry her burden of proof that she and the deceased were married. In doing so, the appellee first attacks the deposition of appellant wherein she testifies to her marriage with deceased as violative of the so-called Dead-man’s Statute, Art. 3716, Vernon’s Ann.Civ.St. See 1 McCormick and Ray, 2d ed., Texas Law of Evidence 298, § 330: “A marriage with a decedent is a transaction with such decedent and testimony to that fact is prohibited by the statute.” Secondly, appellee alleges that appellant’s statement that she was “married” was a conclusion. Berger v. Kirby, 105 Tex. 611, 153 S.W. 1130, 51 L.R.A., N.S., 182 (1913). We feel that these points are well taken. Next calling our attention to the deposition and affidavit of Charles J. Pappas, the cousin of appellant, appellee charges that all material statements contained in these documents are either conclusions of fact or of law, or are hearsay. We believe that these criticisms might be directed at certain of the statements in these documents. For example, Pappas states in his deposition, while not claiming to have been present, that the deceased was married to appellant and they were not divorced. Again, in his affidavit, he states that the deceased and appellant had been “legally and ceremonially married” in Greece. However, the witness further stated in his deposition that, on the occasion of the last meeting of the deceased and the witness in July, 1958, the deceased acknowledged the marriage and gave the witness a check in the amount of $75.00 to be sent to appellant. The pleadings show that deceased died on October 12, 1958. Also, in the affidavit the witness swore: “My last meeting with Chris Antone was in Dallas, Texas, in the last part of July, 1958, a few months before his death. At that time he again acknowledged, as he always had, his marriage to Athanassia Antonopou-los, as heretofore related, gave me $75.00 to send to her and stated that he would send her $500.00 at Christmas.” We feel that these admissions of the decedent are competent evidence and susceptible of proof, as are, perhaps, certain of the documents in the record which are here challenged for alleged deficiencies in authentication. Under these circumstances it is our conclusion that summary judgment was not authorized, but that the case should be tried on its merits, at which time the applicable law may be applied to the facts then presented on the issue of marriage.

While appellant’s first two points do not precisely state what we believe to be the error of the court as outlined above, they are sufficient to direct this court’s attention to the error relied upon. Rule 418, Texas Rules of Civil Procedure. These two points are sustained, whereupon it becomes unnecessary to discuss appellant’s last two points.

The judgment of the trial court is reversed and this case is remanded for further proceedings in accordance with this opinion.


author: DUNAGAN, Chief Justice.

text:
    CITY OF PLANO, Texas, Appellant, v. J. O. REED, Appellee.
    No. 130.
    Court of Civil Appeals of Texas. Tyler.
    June 10, 1965.
    Rehearing Denied July 8, 1965.
    John Fox Holt, Dallas, for appellant.
    J. E. Abernathy, Abernathy & Orr, McKinney, Harvey L. Davis, Dallas, for ap-pellee.
   DUNAGAN, Chief Justice.

This suit was instituted in the 59th Judicial District Court of Collin County, Texas, for a permanent injunction brought by appellant, a home-rule city, to compel Mr. Reed to remove a barricade which he erected on Eleventh Street in the City of Plano, Texas, which has prevented the public from free access to said street. Appellant pleads that Eleventh Street was a public street; that Mr. Reed had dedicated it as a public street; and that he was es-topped to deny that he had dedicated the street as a public street.

Upon a trial to the court, without a jury, a judgment was entered against the appellant denying the injunction sought by it.

To this judgment the City of Plano, Texas, duly excepted and gave notice of appeal. Appellant has perfected its appeal, and now challenges the correctness of the trial court’s judgment.

The barricade which the appellant seeks to have removed was erected by Mr. Reed at the east end of a strip of pavement built and installed by him at his own expense on Eleventh Street east of Avenue “L”. The said paved strip dead-ends into a maize and wheat field.

On March 23, 1946, Mr. Reed purchased a plot of approximately 59.34 acres of land, which included the Vendóme Addition east of Avenue “L” in the City of Plano. The description was by metes and bounds and did not mention Eleventh Street, the Ven-dóme Addition, or the plat thereof. On March 18, 1955, Mr. Reed sold 40 acres off the east part of his acreage to Mr. J. F. Burns, and this 40 acres was also sold as acreage and not as an addition. These transactions took place before Mr. Reed, at his own expense, built Eleventh Street for a distance of approximately 276 feet east of Avenue “L”. The H. L. Hunt interest ended up with a 40-acre plot deeded to J. F. Burns. The Hunt property is undivided except for a lot sold by metes and bounds to Lanco Corporation. The Lanco Corporation property runs from Tenth Street about 200 feet north to where Eleventh Street would be if it extended east. The City of Plano admits that the Lanco Corporation property lies on Tenth Street, which street in 1962 was dedicated as a public street by Mr. Reed and wife by deed dated January 6, 1955, and duly filed and accepted by the city in 1962, and further admits that Lanco Corporation has ingress and egress to their property via Tenth Street.

There was a plat of the former Vendóme Addition filed of record in 1909 in the Map Records of Collin County, Texas. This plat does not bear any endorsement of approval by the City Council of Plano, nor does it have any description to the addition. The City Council of the City of Plano by ordinance dated June 10, 1930, filed for record July 3, 1930, in the Deed Records of Collin County, accepted dedication of certain streets including Henry Street (now Eleventh Street) west of Weldon Street (now Avenue “L”), but specifically “annulled, cancelled and abandoned” all of the Vendóme Addition lying east of Weldon Street (now Avenue “L”), except Lewellan and Myrtle Streets and “cancelled” and “expressly refused” the dedication of all streets lying east of Avenue “L” except the said Lewellan and Myrtle Streets. It is stipulated by the parties that Eleventh Street was called “Henry Street” and that Avenue “L” was called “Weldon Street” on the old Vendóme plat. It is undisputed in the evidence that neither Mr. Reed nor anyone else ever made a formal dedication of Eleventh Street as a public street; that Mr. Reed has never filed with the City of Plano a plat or map of the J. O. Reed Addition. The undisputed evidence further shows that in 1962 Mr. Reed filed a deed and plat expressly dedicating Tenth Street as a public street and that the property sold by the Hunt interest to Lanco Corporation fronts on this paved street; that the City of Plano never offered to purchase or condemn Eleventh Street.

Even though prior to the sale of the land to Mr. Burns, Mr. Reed caused to be surveyed and a plat made of the 59.34 acres, known as the J. O. Reed Addition to the City of Plano, this plat was never presented to or filed with the City of Plano or filed with any official thereof or anyone else.

Mr. Reed’s uncontradicted testimony is that he paved Eleventh Street also from the east line of Avenue “L” at his own expense; that he did not submit plans and specifications to the city to see if they corresponded with the city’s specifications for its own streets; that he did not ask the city if it was all right to build and construct Eleventh Street; that he does not know of any repairs ever made by the city on Eleventh Street; that his unfiled plat of his addition did not show Eleventh Street going on through his addition; and that he never intended that Eleventh Street should go any further east than it is now; that he erected on his own land a barricade at the east end of the paved strip; and that no property owners between the barricade and Avenue “L” had ever complained in any way about the barricade.

There is no evidence in the record (1) that any person purchased land in the J. O. Reed Addition or anywhere else in reliance on any valid plat or map showing Eleventh Street east of Avenue “L” as a public street; (2) that any person purchased land in the J. O. Reed Addition in reliance on any deed describing Eleventh Street east of Avenue “L” as a public or a dedicated street; (3) that any property owner or citizen of the City of Plano ever complained about the barricade erected by Mr. Reed at the east end of the pavement on Eleventh Street; (4) that any citizen or property owner in the City of Plano ever claimed or believed that Eleventh Street east of Avenue “L” was or is a public street; (5) there is no pleading or evidence that J. O. Reed ever exhibited the Vendóme plat or any plat of his property to any of the purchasers. The property conveyed by the deeds in evidence was described in each deed by metes and bounds and was not sold or described by designated lots and numbers.

As above stated, this case was tried to the court without the aid of a jury. No findings of fact or conclusions of law appear in the record, so all disputed questions of fact must be resolved in support of the trial court’s judgment. For appellant to prevail it must show dedication to the public or title as a matter of law. Greenway Parks Home Owners Association v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 1958.

The appellant in its brief says:

“The primary question to be decided is whether or not Eleventh Street as it runs east of Avenue ‘U in the City of Plano, Texas, is a dedicated public street.”

Appellant’s basic argument is that it should prevail in its action for mandatory injunction on the theory that Eleventh Street became a dedicated street by implication because certain deeds executed by Mr. Reed refer to Eleventh Street in the metes and bounds description of the properties conveyed. Appellant cites a number of cases as authorities in supporting its contention. As we view the record, we do not believe the cases cited by appellant are in point.

In the case of Oswald v. Grenet, 22 Tex. 94, 1948, the court said:

“Respecting what will amount to, or may be received as evidence of a dedication, the law is too well settled to admit of controversy. A setting apart, or dedication to a public use, to be effectual, need not be by deed; nor need it be evidenced by the use of it having been continued for any particular time; it is enough, that there has been some clear, unequivocal act, or declaration of the proprietor, evidencing an intention to set it apart for a public use, and that others have acted in reference to, and upon the faith of, such manifestation of intention. If the act of dedication be unequivocal, it may take place immediately. * * ”

In order to constitute dedication by estoppel or implication there must exist a clear and unequivocal intention on the part of the land owner to dedicate the same to public use and an acceptance thereby by the public. Greenway Parks Home Owners Association v. City of Dallas, supra; City of Tyler v. Smith County, 151 Tex. 80, 246 S.W.2d 601; International & G. N. R. Co. v. Cuneo, 47 Tex.Civ.App. 622, 108 S.W. 714, error refused; Maddox v. Maxwell, 369 S.W.2d 343 (S.Ct.), 1963. The Supreme Court of this state said in the City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718, 720, that:

“The vital principle, as seen from the authorities, upon which the doctrine of dedication rests, is the intention of the owner to dedicate. This intention may be implied from the owner’s acts, coupled with the intention with which he did the acts, * * *
“But the intention to dedicate must be shown or be inferable, by sufficient evidence, from the owner’s acts. íji % ff

On appeal appellant contends that Reed in conveying lots east of Avenue “L” with reference therein to Block 6 of the Ven-dóme Addition to the City of Plano, as per or in accordance with the official map and plat of said addition, constituted a dedication of Eleventh Street as a public street in that Reed adopted the recorded Vendóme plat as his own. Appellant’s petition does not allege that Mr. Reed adopted the plat of the old Vendóme Addition as the plat for his addition. In fact, the petition does not even mention the old Vendóme plat. The petition does not allege that Mr. Reed sold property with reference to said plat. There is no evidence in the record that Mr. Reed adopted any plat. The evidence in the record about the old Vendóme plat shows that it was abandoned and cancelled and the offer of dedication of Eleventh Street was refused by the City of Plano in 1930, long prior to the sale of any portion of the old Vendóme Addition.

It is clearly shown that there was never any express dedication of Eleventh Street by J. O. Reed as a public street. Neither do we think the record shows a dedication by implication. Maddox v. Maxwell, supra; Greenway Parks Home Owners Association v. City of Dallas, supra; City of Tyler v. Smith County, supra; International & G. N. R. Co. v. Cuneo, supra; City of Brownsville v. West, 149 S.W.2d 1034 (Tex.Civ.App.), 1941, no writ history; City of Dallas v. Leake, 300 S.W.2d 135 (Tex.Civ.App.), 1957, writ refused, n. r. e.

Upon consideration of appellant’s points brought forward, we think they are without merit and are overruled.

Judgment affirmed.