text:
    Ex parte William M. SEXTON.
    No. 38466.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Andrew Patton, John W. Chandler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ben Ellis, W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant, relator in the court below, was arrested and taken into custody by virtue of the executive warrant of the Governor of this State, issued upon the requisition of the Governor of the State of New Mexico, where appellant and others allegedly “did knowingly combine with each other for the purpose of committing a felony, to-wit, defrauding.”

Appellant challenged the legality of his arrest and subsequent restraint by writ of habeas corpus before the Judge of the Criminal District Court No. 4 of Dallas County who, after a hearing, denied relief and remanded appellant to the custody of the sheriff of Dallas County to be delivered to the proper receiving agents of the State of New Mexico. From that order appellant gave notice of appeal.

Our disposition of this case is controlled by our decision this day handed down in Ex parte Brunner, 396 S.W.2d 125. We adopt herein the opinion in Brunner, supra, as our opinion in this case.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Ex parte Robert W. CULLOM.
    No. 38467.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    No attorney of record of appeal for appellant.
    Henry Wade, Dist. Atty., Ben Ellis and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant, relator in the court below, was arrested and taken into custody by virtue of the executive warrant of the Governor of this State, issued upon the requisition of the Governor of the State of New Mexico, where appellant and others allegedly “did knowingly combine with each other for the purpose of committing a felony, to-wit, defrauding.”

Appellant challenged the legality of his arrest and subsequent restraint by writ of habeas corpus before the Judge of the Criminal District Court No. 4 of Dallas County who, after a hearing, denied relief and remanded appellant to the custody of the sheriff of Dallas County to be delivered to the proper receiving agents of the State of New Mexico. From that order appellant gave notice of appeal.

Our disposition of this case is controlled by our decision this day handed down in Ex parte Brunner, 396 S.W.2d 125. We adopt herein the opinion in Brunner, supra, as our opinion in this case.

The judgment is reversed and the cause remanded.


text:
    Curtiss WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 38534.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.

      Sam Bass, Freeport, for appellant.
    Tom Kenyon, Dist. Atty., Wallace N. Shaw, Asst. Dist. Atty. Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving a motor vehicle while intoxicated; the punishment assessed by a jury, 28 days confinement in the county jail and a fine of $80.00.

The state’s evidence reflects that appellant was stopped by J. R. Jones, a deputy sheriff of Brazoria County and Dick Orand, a patrolman of the Department of Public Safety, for driving a pickup truck on the wrong side of a two-way roadway in Bra-zoria County. The testimony reflects that appellant almost collided with the police car being driven by Deputy Jones. After being stopped, appellant was observed by the two officers who both testified substantially to the same facts. They related that appellant was unsteady on his feet, his speech was incoherent, and a very strong odor of alcohol was noticeable. Both officers expressed their opinion that appellant was intoxicated.

The appellant adduced no testimony.

Numerous formal and informal bills of exception were taken by appellant. Since no reversible error is reflected by any of them we shall pretermit a detailed discussion.

Appellant earnestly urges as error the action of the trial court in admitting into evidence certain testimony of Officer Orand. When asked, “Did you have occasion to ask him (appellant) if there was anything wrong with him?”, the officer testified, “I did”. Then followed this question: “What was his reply?”, and the officer responded, “He replied the only thing that was wrong he had been drinking some beer, (sic)”

We hold that the statement made to the officer was res gestae of the transaction and as such is admissible in evidence whether the appellant was under arrest or not. Cline v. State, 163 Tex.Cr.R. 141, 289 S.W.2d 291, and cases there cited.

Appellant’s contention that the “walking test” given him by Patrolman Orand constituted compelling him to give incriminating testimony is without merit since the facts pertaining to all of this testimony were adduced by appellant’s counsel upon his cross-examination of this witness. He is in no position to complain about testimony that he brought forward himself.

Finding the evidence sufficient to sustain the verdict and no reversible error appearing, the judgment is affirmed.


author: WOODLEY, Judge.

text:
    Ardell MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 38736.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.

      Weldon Holcomb, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of beer in a dry area for the purpose of sale; the punishment, 60 days in jail and a fine of $150.

Trial was before a jury on a plea of not guilty. The evidence offered by the state through the testimony of three officers shows that eleven quart bottles of beer were found at a dancing place where appellant met the officers as they came in and identified themselves; told them he was in charge of the place; that he was selling pigs feet and beer and that he had some beer in the refrigerator. Seven of the bottles of beer were found in the refrigerator and four more were found under a blanket in a “coke” box.

The beer was introduced in evidence and it was stipulated that Smith County was a dry area.

Appellant complains that hearsay evidence was admitted when the witness Robert L. Cosper, Inspector for the Texas Liquor Control Board, was permitted to testify on his redirect examination, in answer to the question “Why did you check this place,” “I had been getting complaints.”

The witness had testified that his duties were to observe and work liquor law violations' in Smith County which would include “minors in possession; possession of liquor for the purpose of sale; consuming after hours; transporting liquor into dry area for the purpose of sale,” and that he went to the place where he saw appellant and found the beer “to look around”.

The record also shows that on cross-examination the witness had been asked whether he had checked other places and clubs.

Unlike Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34, and cases there cited, the answer of the witness did not disclose the nature of the complaints and, if they referred to violations of the law, what offense or by whom committed.

Appellant’s claim of error in this regard is overruled.

Paul Bullock, who was a deputy sheriff of Smith County at the time he accompanied Inspector Cosper to appellant’s place, testified that while the three officers were standing with appellant at the door that entered the kitchen he asked appellant if he had any beer there and he said he did. The witness Bullock was then asked and answered: “Q. What then occurred? A. We walked in the kitchen and opened the refrigerator and found seven quarts of Falstaff beer; and I asked the defendant what he got for the beer and he said $1.00.”

Appellant was not under arrest or in custody at the time and his statement was admissible.

We overrule the contention that the court erred in overruling appellant’s motion to strike the answer as unresponsive, prejudicial and inflammatory, or to declare a mistrial.

In view of the admissions and declarations of the appellant, the trial judge did not err in refusing to charge on circumstantial evidence.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Adam GUERRA, Appellant, v. The STATE of Texas, Appellee.
    No. 38418.
    Court of Criminal Appeals of Texas.
    June 26, 1965.
    Rehearing Denied Oct. 20, 1965.
    Rehearing Denied Dec. 8, 1965.

      No attorney of record on appeal, Clyde W. Woody, Fred H. Dailey, Jr., Houston, on motion for rehearing, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, R. W. Hope, Jr., and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted as a second offender under the Uniform Narcotic Drug Act, Art. 725b, Vernon’s Ann.P.C., for the unlawful sale of heroin and his punishment was assessed at confinement in the penitentiary for fifty years.

The statement of facts found in the record bears the approval of counsel for the state and for the appellant but is not approved by the trial judge. Not being approved by the trial judge, the statement of facts cannot be considered, because it was not filed within ninety days after the date notice of appeal was given as required by Section 4 of Article 759a, Vernon’s Ann. C.C.P. Jackson v. State, Tex.Cr.App., 344 S.W.2d 876; Mobley v. State, Tex.Cr.App., 365 S.W.2d 173; Hoskins v. State, Tex.Cr.App., 373 S.W.2d 248; Malek v. State, Tex.Cr.App., 385 S.W.2d 389; Howard v. State, Tex.Cr.App., 389 S.W.2d 669.

The orders of the trial judge extending the time for filing, which were made after expiration of the time previously extended, were not nunc pro tunc orders and did not operate as proper extensions. Malek v. State, supra; Howard v. State, supra.

In the absence of a statement of facts which may be considered, we cannot pass upon the question of the sufficiency of the evidence or appellant’s objections to the court’s charge. Mobley v. State, supra.

There are no formal bills of exception, and the proceedings appear to be regular.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

Appellant insists that the statement of facts was filed within the time properly extended by the trial judge and that it should be considered.

We have again examined the record in the light of such contention.

The record reflects that notice of appeal was given by appellant on January 15, 1964. Four orders were subsequently made by the trial judge, extending the time for filing the statement of facts. The first two orders were timely made and, when taken together, extended the time for filing to September 2, 1964. The third order was made on December 8, 1964, and by its terms extended the time for filing to April 15, 1965. The final order, dated April 14, 1965, extended the time for filing to May 15, 1965.

The statement of facts was filed with the clerk of the trial court on May 11, 1965, and, as shown in our original opinion, it was not approved by the trial judge but only by counsel for the state and the appellant.

In his brief on the motion for rehearing, appellant states that an order was signed and filed on September 1, 1964, which extended the time for filing the statement of facts to December 16, 1964.

No such order appears in the record before us.

The order of extension made on December 8, 1964, after expiration of the time previously extended to September 2, 1964, was ineffectual to further extend the time for filing. See: Malek v. State, supra, and Howard v. State, supra, cited in our original opinion.

The statement of facts — not having been filed with the clerk of the trial court within ninety days after the date notice of appeal was given, as required by Sec. 4 of Art. 759a. supra, or within the time properly extended by the trial judge, cannot be considered.

The motion for rehearing is overruled.

Opinion approved by the court.


author: MORRISON, Judge..

text:
    Humberto ARMENDARIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38754.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1965.
    Edward S. Marquez, El Paso, for appellant.
    Jack N. Fant, County Atty., John P. Fox-worth, Asst. County Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge..

The offense is unlawfully carrying a dagger; the punishment, a fine of $100.00.

Trial was before the Court without the intervention of a jury. Officer Southwell testified that the proprietor of the Ritz Bar stopped him as he was traveling in a patrol car, that he entered the bar and found appellant seated with a woman arguing with another patron seated some six stools away, and that he told the other patron to leave the bar and then spoke to appellant. He stated that when he asked appellant to leave he refused to do so and started an argument, at which time he concluded that appellant was intoxicated, placed him under arrest and before putting him in the patrol car searched his person and found an open knife in his right front pants pocket.

Appellant denied that he was intoxicated and stated that he complied with the officer’s order that he leave the bar, but that after he had walked some 40 feet, the officer called him back and retrieved the knife in question from his left pants pocket and that it was closed at the time.

The sole question presented for review is appellant’s contention that the instrument which he was carrying was a pocket knife and not a dagger. A scaled picture of the instrument appears in the record. It is slightly over seven inches in length when open; it is equipped with a double guard, and the blade locks in place when open and is sharpened on both edges for slightly more than an inch from the point.

We have concluded that the trial court did not abuse his discretion in finding that the instrument met the definition contained in Article 1161, Vernon’s Ann.P.C. See Bivens v. State, 133 Tex.Cr.R. 604, 113 S.W.2d 921.

The judgment is affirmed.


author: WOODLEY, Judge. McDONALD, Presiding Judge

text:
    Clinton W. DELESPINE, Appellant, v. The STATE of Texas, Appellee.
    No. 37677.
    Court of Criminal Appeals of Texas.
    Oct. 13, 1965.
    Rehearing Denied Dec. 8, 1965.

      M. Gabriel Nahas, Jr., Raeburn Norris, King C. Haynie, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is murder; the punishment, 99 years.

Gwendolyn Christine Einkauf, a housewife and mother of two daughters, one 10 and the other 12 years old, talked to her husband by telephone about 11 A.M. His calls beginning shortly after 3 P.M. were not answered, and the two daughters were unable to get their mother to respond to their telephone calls between 3 and 4 P.M. The girls then walked to their home and found their mother lying crosswise on the bed dead. Her blouse was open and her clothes were pulled down around her ankles, leaving most of her body nude. There was blood around her mouth and nose and a smear of blood across the bed cover. There was no evidence of a struggle or that the deceased had been sexually molested.

The indictment alleged that appellant killed the deceased by choking and strangling her with his hands.

The testimony of the County Medical Examiner was to the effect that death was the result of manual strangulation.

A written statement was offered in evidence as the voluntary confession of the appellant. The warning required by Art. 727 V.A.C.C.P. appearing at the beginning of the statement was, according to the state’s witness, properly given and the statement was made voluntarily.

After a hearing before the court in the jury’s absence, at which appellant and other witnesses testified and fact issues as to vol-untariness were raised, the statement in which appellant confessed to having killed the deceased was admitted in evidence and was read to the jury.

Testifying before the court, and later before the jury, appellant repudiated the in-culpatory portion of the confession and denied that he killed the deceased, or that he told the officers that he killed her.

The evidence, including the testimony of the appellant and the written statement admitted in evidence as his voluntary statement, shows that he went to the home of the deceased after noon on the day in question as a repairman for her hi-fi set. It was his testimony that she was at the door as he left and that he did not touch her while there.

The state’s evidence shows that the dead body of the deceased was discovered some time after 4 P.M. The Medical Examiner fixed the approximate time of death as 2 o’clock P.M., plus or minus an hour.

The written statement contains the confession of the appellant that as he was getting ready to leave the deceased made advances and they went into her bedroom. It reads in part: “ * * * I grabbed her by the neck with my hands and I choked her. I held my hands around her neck ’till she quit moving. She didn’t fight me much, I grabbed her so quick she didn’t have a chance to fight. After I choked her down and she was laying on the bed I pulled her pedal pushers and her panties down * * * to look at her body. After this I left the house. * * * ”

In appellant’s original brief reversal was sought upon the ground that the trial court submitted the issue raised by the evidence as to the voluntary nature of the confession to the jury without first having resolved such issue. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Harris v. State, Tex.Cr.App., 384 S.W.2d 349; and Dixon v. State, Tex.Cr.App., 383 S.W.2d 928, were cited and relied upon.

We overrule this claim of error.

Subsequent to the filing of such brief in this Court a Supplemental Transcript and an additional Statement of Facts were forwarded to this Court by the clerk of the trial court containing findings signed by the trial judge on the issue of the voluntary nature of the confession based upon the testimony of the witnesses at the hearing before him bearing upon the facts and circumstances surrounding the arrest and the subsequent taking of the confession.

The trial court certifies that at the conclusion of the hearing the confession was admitted into evidence, he having found as a matter of law that it was voluntarily made, and the evidence having established beyond a reasonable doubt that it was freely and voluntarily made.

The findings of the trial judge and the evidence adduced at the hearing upon the voluntariness issue prior to the admission of the confession to the jury enables this Court, and will enable the Federal Court as well, to pass upon the question of whether appellant was afforded the federal rights to which he is entitled under Jackson v. Denno, supra, without further hearing on the issue of voluntariness.

In view of the Supreme Court’s holding in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, we have concluded that the trial judge’s belatedly filed findings and certification should be considered.

The evidence shows that appellant signed the written statement some three hours after it was made and reduced to writing.

The confession introduced in evidence is typewritten, including the place for signature : “Signed - Clinton W. Delespine”

The written signature in the blank space is not clearly legible, but the evidence shows it to be appellant’s given name only.

Appellant testified that prior to signing the statement he was told he could see his wife and, believing that by signing his first name only the instrument had no legal effect, he signed it; that his father had always told him that an instrument had no legality unless it was signed by one’s full name and that he signed it only to be allowed to see his wife and to stop the officers from further interrogating him.

The jury was instructed in the court’s charge: “ * * * if you believe, or if you have a reasonable doubt, that at the time the defendant wrote the name ‘Clinton’, in manuscript form, if he did, at the conclusion of the alleged confession now in evidence before you, he did so not intending to sign the same then you will not consider it for any purpose.”

The state’s witnesses who were present when the statement was signed testified regarding the signing of the confession.

Officer D. M. Fults, to whom the statement was made, testified:

“Q. Is that what the Defendant wrote on there?
“A. Yes, sir, it is.
“Q. And when he wrote that on there, did you ask him anything?
“A. Yes, sir, I did.
“Q. And did you ask him anything about that signature — or, that writing ?
“A. I did.
“Q. And what did he tell you?
“A. He told me that’s the way he signs his name.
“Q. That that was his signature?
“A. That that was his signature.
“Q. Did he tell you at the time that he wrote that on there that that is no good because that is not his signature, and in order to make an instrument legal, he would have to sign his signature to it?
“A. He told me at that time that that was his signature — that’s the way he writes his name.”

Charles Schneider, III, reporter for the Houston Post, a witness to the signing of the statement, testified:

“Q. As a newspaperman, signing your signature as a witness to an instrument, did you question why only the name ‘Clinton’ was written on there?
“A. Yes, sir, I did.
“Q. And what was told to you?
“A. Well, as I recall, I asked — I remember that Mr. Delespine scrawled out the ‘Clinton’, and I was watching him as he scrawled it.
“If I am not mistaken, he signed it with his right hand, and I was standing to his left — I am not going to say where I was standing, as I can’t recall for sure — anyway, I watched him as he signed the thing, and I asked him —I said, — I looked at it and I said, ‘Aren’t you going to sign the rest of it?’, and he said, ‘No, that’s the only way that I ever sign my name.’
“He said, “That will do. That’s enough. That’s my name. That’s all you need.’
* * * * * *
“Q. Did you héar this Defendant say that it was no good because he only signed his first name to it ?
“A. No. In fact, he told me that was all that was needed.”

Kent Demaret, Assistant City Editor of the Houston Press, who also signed the confession as a witness, testified:

“Q. Did you, as a newspaper man, question the fact that only the name ‘Clinton’ was written on it?
“A. No, sir, I didn’t; I knew why it was written.
“Q. Sir?
“A. I knew — I didn’t have to question him.
“Q. You knew?
“A. Yes, sir.
“Q. What do you mean ‘you knew’?
“A. Well, I had been with Clinton for about two hours, and I saw him sign his name and say ‘That’s enough, that’s the way I’ — generally, and I am not quoting verbatim, because I don’t remember that well, but generally, ‘that’s the way I sign it’, or ‘that’s the way I do it’, or ‘that’s the way it’s going to be’, or something like that.”

The rule subscribed to in most jurisdictions, cited with approval by this Court in Bustillos v. State, Tex.Cr.App., 213 S.W.2d 837, appears to be that one may employ any character, figures or designation he considers proper to use as a signature and will be bound thereby, provided he uses it as a substitute for his name.

One “signs” a document when he writes or marks something on it in token of his intention to be bound by its contents. In the case of an ordinary person a signature is commonly performed by subscribing his name to the document — but any mark is sufficient if it shows an intention to be bound by the document.

A signature may be made by the use of only the Christian or given name of the person signing. 80 C.J.S. Signatures § 3, p. 1288.

Art. 727 C.C.P. recognizes the signing by-mark when the defendant is unable to write his name, but requires in such event that the statement be witnessed by some person other than a peace officer who shall sign the same as a witness.

We are aware of no case where a confession has been held to be inadmissible because the defendant who made and signed it did not sign his true name.

Two witnesses other than peace officers witnessed the signing of the confession by appellant and heard his statement regarding his usual signature being his first name only. Had appellant been unable to sign his name, his mark would have been sufficient. Appellant’s contention that the confession was inadmissible because it was not signed is overruled.

Other grounds for reversal are presented by additional brief of the appellant.

The indictment alleged that the deceased was killed by strangulation by the use of the hands.

The Medical Examiner, whose qualifications were stipulated and proved, testified as to the results of the autopsy and his complete external and internal examination of the body of the deceased and he was asked, and answered:

“* * * Were you able to determine from your examination how the deceased, Gwendolyn Christine Einkauf, met her death ?
“A. I was — I did, rather, Yes, sir.
“Q. And what was that?
“A. The cause of death was asphixia due to manual strangulation.”

Objection was made to the use of the word “manual” in the expert’s opinion, but no motion or request for instruction to the jury to disregard the answer was made.

The Medical Examiner agreed that the injuries present in the neck of the deceased, including hemorrhages and swelling around the larynx and fracture of the hyoid bone, could have been inflicted by choking with means other than the hand or hands. No such other means was suggested.

The expert witness testified without objection:

“q. * * * j)0 y0U have an opinion, from the injuries that you observed on the body of Gwendolyn Christine Einkauf, that you have described as causing her death — the length of time that this manual strangulation, with the hands, the pressure that would have been exerted by the hands on the throat of Gwendolyn Christine Einkauf to have caused these injuries and her death?
“A. Yes, sir, I do.
“Q. And what is that?
“A. It would be my opinion, on the order of two and a half to three minutes.
“Q. And that would be two and a half to three minutes of steady pressure?
“A. Yes, sir.”

We find no reversible error in the overruling of appellant’s objection to the use of the word “manual” in his expert opinion.

Appellant complains that a witness called by the defense to testify on the admissibility of the confession before the court was called by the state for further cross-examination before the jury and the state was allowed to ask leading questions.

The propounding of leading questions seldom constitutes ground for reversal. We do not agree that prejudice is shown.

Appellant next contends that the court should have ruled as a matter of law that the statement was not a voluntary confession.

We overrule this contention and point out that “an issue as to the voluntary nature of the written statement was raised by the evidence,” as stated in appellant’s original brief, which issue the trial judge, and thereafter the jury, resolved against appellant.

The state’s evidence is deemed sufficient to sustain the finding of the trial judge and the jury that the confession was voluntarily made and signed after warning which complied with the statutes. Art. 726 and 727 V.A.C.C.P.

If appellant’s testimony be true he did not confess to killing the deceased and did not voluntarily sign the written statement in which such confession appears. If the testimony offered by the state is true, the confession was voluntarily made and the sole question is whether the written statement was “signed” as required by Art. 727 V.A.C.C.P. We hold that under the evidence it was so signed.

The remaining claim for reversal relates to the introduction in evidence of a coat found in appellant’s home upon which were specks of blood, not visible to the naked eye. It is contended that the coat was seized from appellant’s home as the result of an illegal search.

The state’s evidence was that the appellant gave the officers permission to get the clothes at his home. We overrule the contention that the coat was obtained as the result of an illegal search.

The evidence is sufficient to sustain the jury’s verdict and we find no error which would warrant reversal.

The judgment is affirmed.

McDONALD, Presiding Judge

(dissenting).

The state offered in evidence what purports to be the written confession of appellant. The instrument contained only appellant’s first name. The following objection was taken to its introduction:

“Your Honor, the first objection we have to it is, first, it is purported at the top of it, ‘Clinton W. Delespine,’ and at the bottom of the so-called statement, it is typed — signed—Clinton W. Delespine. The writing with the pen is illegible, and you certainly cannot tell whether it is ‘Clinton’, ‘Clifford’ or what it is.
It is certainly — from the looks of it, it is only one name and which is not Clinton W. Delespine.
By examining the instrument, it is not the same as recited in the statement or recited in the indictment. For that reason, if the Court please, we object to the introduction of this statement.”

Other objections were subsequently taken in the course of the hearing, out of the presence of the jury. This testimony alone comprises 173 pages of the record in this case. At the conclusion of the testimony out of the jury’s presence, the Court overruled all of appellant’s objections and admitted the confession. Appellant again re-urged the same objection at the time that the state offered the confession, in the jury’s presence. The Court again overruled the objection.

Appellant testified that he finished the 10th grade at Northeast High School in San Antonio and later went to a trade school. The purported confession reflects that he finished Edison High School in San Antonio and attended St. Mary’s University there for two years. While the evidence as to his education is conflicting, it is undisputed that he had a fairly good education and was far from being illiterate or incapable of writing his name. He testified that he talked to his lawyer, Mr. Nahas, over the telephone while being questioned by Inspector Stephenson.

A question similar to the one before us has never been previously determined in this state. This Court is not here concerned with the truth or falseness of the statement, nor is it concerned as to the vol-untariness of the confession. It is concerned with the sole question of the admissibility of the instrument signed by first name only as a confession.

The law governing confessions in Texas is contained in Art. 727 of our Code of Criminal Procedure. This article provides as follows:

“Art. 727. When confession shall not be used.
The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused, taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made: First, that he does not have to make any statement at all. Second, that any statement made may be used in evidence against him on his trial for the offense concerning which the confession is therein made; or, unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. If the defendant is unable to write his name, and signs the statement by making his mark, such statement shall not be admitted in evidence, unless it be witnessed by some person other than a peace officer, who shall sign the same as a witness.”

It is obvious from the above statute that it actually has three distinct parts dealing with confessions. First, it deals with those made before an examining court in accordance with law. Second, a voluntary written statement, made after first being warned, etc., and third, a statement leading to the recovery of the “fruits of the crime,” stolen property, etc.

Only the first two parts of the above statute are pertinent here. The statutory provision governing voluntary statements made before examining courts is set forth in Art. 248, V.A.C.C.P.:

“If the accused desires to make a voluntary statement, he may do so before the examination of any witness, but not afterward. His statement shall be reduced to writing by or under the direction of the magistrate, or by the accused or his counsel, and shall be signed by the accused by affixing his name or mark, but shall not be sworn to by him. The magistrate shall attest by his own certificate and signature to the execution and signing of the statement.”

Texas is the only state in the Union with a legislative act concerning signed confessions. 23 A.L.R.2d 922. Except where signing is required by statute the mere fact that a written confession is unsigned will not render it inadmissible in evidence where it is otherwise admissible, since acquiescence or approval makes the confession the defendant’s own. 23 A.L.R.2d 922. The Supreme Court of the United States held in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, that where a confession is unsigned, whatever bearing this may have upon its weight and credibility, does not render it inadmissible in evidence. It was held in an Illinois case, People v. Hanson, 31 Ill.2d 31, 198 N.E.2d 815, that even though defendant did n^i' sign the confession, the confession couid be proven by testimony of the court reporter who took it. Although the United States Supreme Court did speak in the Wong Sun case, it took an entirely different view in a much earlier civil case, which has never been overruled and is still cited. In Origet v. United States, 125 U.S. 240, 8 S.Ct. 846, 31 L.Ed. 743, a question arose on a bill of exception indorsed “Allowed A. B.”, the letters being the initials of the name of the presiding judge of the lower court. The Supreme Court said, “We cannot regard the initials ‘A. B.’ as the signature of the judge, or as a sufficient authentication of the bill of exceptions, or as sufficient evidence of its allowance by the judge or the court.” The Act of Congress by Section 4 of the act of June 1st, 1872, Chpt. 255, 17 L. 197, now Section 953 of the Revised Statutes, at the time this opinion was handed down in 1887 enacted as follows: “A bill of exceptions allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto.” This provision merely dispensed with the seal. The necessity for the signature still remains.

In Conery v. His Creditors, 115 La. 807, 40 So. 173, the Supreme Court of Louisiana held that the initials of the name of a district judge written beneath an order of appeal cannot be regarded as his official “signature” or as sufficient evidence of the granting of such order. The judge of the civil district court was named W. B. Som-merville. The judge wrote the initials of his name beneath the order, and notified all parties that the appeal had been granted. The Louisiana court cited with approval Origet v. United States, supra.

In Sinnott v. Louisville & N. R. Co., 104 Tenn. 233, 56 S.W. 836, the Supreme Court of Tennessee had before it a case wherein J. H. Thomas Sinnott brought suit against the railroad company to recover damages for an alleged wrongful ejection from one of its passenger cars. The verdict and judgment were for the defendant and the plaintiff prosecuted a writ of error. Sin-nott had purchased a round-trip ticket. He sought to get it validated for the return trip from Nashville to a point in Kentucky. One of the conditions written on the ticket was that the purchaser must present the ticket to an agent and after identification by signature on the back, it was good for the return passage. Sinnott wrote his name on the ticket as H. Thomas, but the agent knew him and would not accept the ticket for his return fare. Sinnott then went ahead and boarded the train for Kentucky, but the conductor refused to accept it, and he ejected Sinnott at Guthrie, Kentucky. The Court held that the agent was justified in refusing to validate the ticket, as he could not be required to certify that “H. Thomas” was the signature of J. H. T. Sin-nott. The Court held that the conditions on the ticket contemplate that the purchaser will use his real name, not the name of another, nor only his given name. The judgment in favor of the railroad company was affirmed.

Fator v. State, 59 Tex.Cr.R. 251, 128 S. W. 901, was decided by this Court in 1910. The Court held that bills of exception must be officially approved and authenticated by the trial judge in order to be considered on appeal, and where they merely contained the initials which were the same as the trial judge’s initials they cannot be considered. The judge’s name was P. H. Shook. He affixed to the bills, “O.K. T. J.N. P.H.S.”

It can be readily seen that most jurisdictions apply rigid rules to statutory provisions requiring the signing of documents or signatures to documents. The rule is otherwise in criminal cases because, as earlier pointed out, Texas is the only state requiring by statute or legislative enactment the signing of a confession. The Federal Courts do not require confessions to be signed.

This Court has not previously had before it this precise question, but it has had many constructions and opinions, through the years, with the statute dealing with voluntary statements made before examining courts.

In Taggart v. State, 149 Tex.Civ.App. 91, 191 S.W.2d 728, appellant was charged by complaint in the justice court with murder. He was arrested and taken before the justice of the peace, sitting as a magistrate in an examining court. Upon the hearing, after being given the statutory warning, appellant made an oral statement which was taken down in shorthand by a reporter and subsequently reduced to writing. The statement was not signed by the appellant. The magistrate did not attest by his own certificate and signature to the execution and signing of the statement. Upon the trial of the cause, the statement was admitted in evidence over appellant’s objection that the requirement of Article 248, V.A.C.C.P., requiring that the statement be signed by the accused and attested by the magistrate certifying to the execution and signing of the statement, had not been complied with. This Court held that the statement was subject to the objection urged and was inadmissible.

In Amayo v. State, 108 Tex.Cr.R. 346, 300 S.W. 935, an examining trial was held and a purported confession from the appellant was introduced by the state, which was never signed by appellant. Objection to its introduction was timely made for the reason that the statute required the signature of appellant to said purported confession before same was admissible. This Court cited Art. 248, supra, and then stated: “To hold that a purported voluntary statement of the accused given at an examining trial was admissible without the signature of the accused would be in effect to judicially repeal a plain and apparently mandatory provision of the statute. The legislative intent is made plain and certain by the language of this article. Its meaning is not doubtful, and it would not appear to us to require any reference to an authority, further than to the terms of the article itself, to show that this evidence was inadmissible.

In Pineda v. State, 101 Tex.Cr.R. 637, 273 S.W. 859, the state introduced a voluntary statement, taken at the examining trial. It was not shown that the statute had been followed with reference to the taking of the same, and especially that part of it that requires that the magistrate shall attest by his certificate and signature to the execution and signing of the statement. The statement shows that the magistrate before whom the statement was alleged to have been made did not attest the same, and there is no certificate of any description found thereon. In addition to this, the state’s testimony affirmatively shows that the magistrate did not affix his certificate thereto at the time it was taken or at any other time. Under this state of the record, we hold that this alleged voluntary statement made on the examining trial was not admissible in this case. “The statute provides that the magistrate shall in every case attest by his certificate and signature to the execution and signing of the statement. This statute is plain and unambiguous and was evidently passed by the Legislature for a definite purpose, and we think the trial court was without warrant in law in ignoring the plain terms of the statute.” The court was construing Art. 295, C.C.P., which was later brought forward as Art. 248 under the 1925 codification.

Baggett v. State, 65 Tex.Cr.R. 425, 144 S.W. 1136, was reversed upon some other grounds, but the opinion does recite facts showing the inadmissibility of a voluntary confession, not signed by appellant and not witnessed by anyone.

In Knighton v. State, 126 Tex.Cr.R. 436, 72 S.W.2d 602, an unsigned statement made before a justice of the peace was held inadmissible. This Court, speaking through Presiding Judge Morrow said, “To authorize the introduction in evidence of a statement such as that in the instant case, it must bear the signature of the accused and be authenticated by the signature of the magistrate. In the present instance, neither of these requisites appears from the record.” The judgment was reversed and cause remanded.

Coleman v. State, Tex.Cr.App., 20 S.W. 2d 1060, was reversed by this Court because appellant was questioned upon cross-examination about an unsigned statement made at an examining trial in the justice court, which he testified that he did not make. The contents of the statement were not offered in evidence. On Rehearing, Judge Lattimore, speaking for this Court, said that “we were in error in holding this admissible.”

It is apparent from the previous holdings of this Court in construing Art. 727 with reference to the application of Art. 248, supra, that a strict or rigid construction to the statute has been given. For this reason, I feel that the portion of Art. 727, applicable to the case at bar, should also be strictly construed in order not to disregard the legislative act by judicial decision.

It is clear to me that the statement or confession does not meet the legal tests of admissibility.

For the reasons stated, the judgment should be reversed and the cause remanded. I respectfully dissent.


text:
    Ted Monroe ELDRED, Appellant, v. The STATE of Texas, Appellee.
    No. 38468.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 8, 1965.
    Pat McDowell, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Nelms, Robert Stinson, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is burglary; the punishment, enhanced by a previous conviction for burglary, 12 years.

The indictment alleged the burglary of a house occupied and controlled by George Ostrosky on or about June 30, 1964. A prior conviction on March 22, 1963, for a like offense was alleged and proved.

The sufficiency of the evidence to sustain the conviction is not challenged.

The statement of facts reveals the following :

George Ostrosky, manager of the Hollywood Vassarette Co., closed the building before leaving between S and 6 o’clock P.M. on June 29, 1964. He returned to the place of business about 1 A.M. in response to a call and saw appellant in the custody of police officers. He testified that he occupied and had control of the business house and the money that was left in the petty cash box, and that he did not give anyone permission to break into or enter the building and remove any of his property.

Officers Wright and Gardner arrived at the business house about 12:35 A.M. in response to a radio call. A search of the building revealed that a door leading to the roof of the building had been forced and the hasps broken.

Two men, one of whom was the appellant, were found in the building.

Some cash was missing from the petty cash box and some drawers and cabinets were open. Some tools and gloves that did not belong to the company were found in the building and each of the men had money in his pocket, the total being about the amount that was missing from the petty cash box.

The sole ground for reversal is the contention that the trial court erred “in allowing the State of Texas to read an indictment to the jury and offer proof thereon over Appellant’s objection, informing the jury that Appellant had previously been convicted of a felony, at a time when Appellant’s guilt had not been determined by the jury.”

Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393, this day decided, and the cases there cited are applicable and controlling. The claim of error is overruled.

The evidence is sufficient to sustain the conviction and no reversible error appears.

The judgment is affirmed.


author: MOORE, Justice.

text:
    C. H. CHAPMAN, Appellant, v. TYLER BANK & TRUST COMPANY, Appellee.
    No. 155.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 14, 1965.
    Rehearing Denied Dec. 2, 1965.

      William F. Billings, Fanning, Billings, Harper, Pierce & Gilley, Dallas, Ben Johnson, Johnson, Hathaway & Jackson, Tyler, for appellant.
    W. Dewey Lawrence, Lawrence & Lawrence, Tyler, for appellee.
   MOORE, Justice.

Tyler Bank & Trust Company, a banking corporation hereinafter referred to as the Tyler Bank, brought this suit against Robert C. Smith and J. Breyer, Jr., individually and as a partnership doing business as Smith & Breyer, and C. H. Chapman, the appellant herein. Plaintiff’s petition alleges that on the 30th day of May, 1962, the partnership of Smith & Breyer executed and delivered to'Tyler Bank & Trust Company a promissory note in the principal sum and amount of $25,000.00 payable 45 days from the date thereof, and that the sum of $17,057.09 was due, owing and unpaid. The note was secured by an assignment by the said Smith & Breyer of an account receivable from appellant, C. H. Chapman, which said assignment was in writing and was executed and delivered to the bank. The bank alleged that the appellant Chapman had notice of the assignment of the account, but that he had failed to make the payment of the amount due and owing the partnership of Smith & Breyer in the sum and amount of $17,057.09 after allowing a credit for $8,442.91 which appellant had paid by reason of the assignment. Smith & Breyer failed to answer or make an appearance and the court entered interlocutory judgment by default against them. Appellant answered and denied generally the allegations of the petition.

The cause of action against Chapman was submitted to the court, without a jury, and at the conclusion thereof, the court rendered judgment against appellant Chapman for $17,057.09 from which judgment he has perfected this appeal.

Upon request of the appellant, the court filed findings of fact and conclusions of law, in which the court found that Smith & Breyer had assigned the account to the bank on May 30, 1962; that C. H. Chapman was advised in person of the assignment within a few days following May 30, 1962, and by telephone prior to August 27, 1962, and was further advised in writing by the plaintiff through a letter deposited in the United States mail on January 24, 1963, which notice was acknowledged by an agent of the appellant, C. H. Chapman, by a letter dated January 31, 1963. At all times prior to February 5, 1963, appellant was indebted to Smith & Breyer upon the assigned account for an amount of not less than $17,057.09, and that Smith & Breyer had not assigned the account to any other persons or company. The court concluded as a matter of law that appellant was on notice of the assignment at a time when he owed Smith & Breyer the sum of $17,-057.09 on the assigned account and was thus obligated to pay Tyler Bank & Trust Company the sum of $17,057.09 with interest thereon from the date of judgment.

In his brief appellant admits that the facts found by the court are “essentially correct and uncontroverted.”

It is undisputed that on July 26, 1961, Smith & Breyer entered into a contract with Chapman for the purpose of drilling three test wells in the state of Michigan. The contract was in the form of a letter, the pertinent portion of which was as follows:

“We agree to drill a test well for oil and/or gas on the above three mentioned deals as specified in Humble Oil and Refining Company’s farmout letter. Smith & Breyer will turnkey the drilling of the Gun Prospect for $28,000.00 to the casing point. The Wayland Prospect will be turnkeyed to the casing point'for $28,000.00, and the Calhoun County Prospect will be turnkeyed for $34,500.00 to the casing point. Smith & Breyer will have a (4 carried interest in the Gun and Way-land Prospects to the casing point. Smith & Breyer will have a 14 carried interest to the casing point on the Calhoun County Prospect. * * * ”

A turnkey price was agreed upon as to each well. It was later determined by the parties, however, that the Gun Prospect well could not be drilled, and the parties thus orally agreed upon the drilling of the Pike well. This well was to be drilled to a more shallow depth than the Gun well and the consideration for drilling this well was $25,500.00 rather than $28,000.00.

Prior to the time Smith & Breyer obtained the loan at the Tyler Bank, they borrowed $36,000.00 from the Texas Bank & Trust Company of Dallas, and assigned as collateral the account receivable from Chapman for the drilling of the two wells other than the Pike well. Appellant had notice of this assignment prior to the time he had notice of the assignment of the Pike account to the Tyler Bank. He admitted that he knew that none of the account covering the Pike well was assigned to the Dallas Bank, and further admitted that he was not entitled to any offset or credit against the Pike account.

On or about the 15th day of August, 1962, when the Smith & Breyer note was approximately thirty days delinquent, W. A. Pounds of the Tyler Bank called Chapman and requested payment on the assignment. Appellant advised that he would have to check his books and determine the amount due and owing Smith & Breyer. Thereafter, the bank received two checks drawn upon Chapman and endorsed by Smith & Breyer totaling $8,442.91 which reduced the amount due on the note to $17,057.09.

Appellant then advised the Tyler Bank that nothing more was due and owing Smith & Breyer. Appellant’s books and record, however, showed that he was indebted to Smith & Breyer in the amount of $30,442.38.

On January 24, 1963, while the appellant’s books continued to reflect such indebtedness, the attorneys for the Tyler Bank wrote appellant again advising him of the assignment and requesting payment. Receipt of the letter was acknowledged.

Thereafter, on February 5, 1963, when the Smith & Breyer note in the amount of $24,030.00 became due at the Dallas Bank, appellant, with knowledge of the assignment to the Tyler Bank, personally assumed the note at the Dallas Bank and charged the amount thereof to Smith & Breyer as an offset or credit on the amount due and owing them. He later paid the note.

Appellant seeks a reversal of the judgment predicating liability and has presented 5 Points of Error. In Points 1 and 3 he asserts that he should not be held liable to the Tyler Bank on the assignment because the uncontroverted evidence shows that the contract for the drilling of the three wells was an indivisible contract, not subject to assignment in part, and therefore since Smith & Breyer assigned the Tyler Bank only that portion of the account covering the “Pike” well, he was not obligated to recognize such assignment. We are not in accord with this contention.

It is generally held that any order, writing, or act, at least if communicated to the holder of the fund, directing his debtor to transfer to a named person any portion or all of particular funds in his possession, operates as an equitable assignment of the fund designated. 6 Tex.Jur.2d, page 427; Comer v. Floore (Tex.Civ.App.) 88 S.W. 246; Foley v. Houston Co-Op. & Mfg. Co. (Tex.Civ.App.) 106 S.W. 160. After notice of such assignment the debtor cannot pay money due on the account to a third person so as to deprive the assignee of his right. 6 Tex.Jur.2d page 436; Mitchell, Gartner & Thompson v. Young (Tex.Civ.App.) 135 S.W.2d 308.

The question of whether or not a contract is divisible or indivisible cannot be determined by any one test or rule of law. The answer to the question depends primarily on the intention of the parties, and of course, the acts of conduct of the parties in treating the contract as entire or sever-able bears materially upon the question of construction. Simms-Wylie Co. v. City of Ranger (Tex.Civ.App.) 224 S.W.2d 265; 13 Tex.Jur.2d page 282.

A frequently used test to determine divisibility is whether or not the consideration for the agreement is apportionable. It is generally held that a contract is divisible where the part to be performed by one party consists of several distinct and separate items and the price to be paid by the other party is apportioned to each item. 13 Tex. Jur.2d page 283.

The solution to the problem appears to turn upon the question of whether or not the contract for the drilling of the wells is a divisible contract. In this connection the undisputed evidence shows that the Pike well was not drilled under the provisions of the letter contract but was drilled under a subsequent oral agreement after the parties determined that the Gun Prospect well, mentioned in the letter agreement, could not be drilled. Appellant by his own testimony admitted that the agreement to drill the Pike well was “entirely different” from the agreement to drill the Gun Prospect well mentioned in the letter. Moreover, he admitted that the account assigned to the Dallas Bank by Smith & Breyer was the account receivable for the drilling of the other two wells, and that none of the funds due and payable for the drilling of the Pike well was assigned to the Dallas Bank.

Although the trial court did not specifically find that the “Pike” contract was divisible and a separate contract, the judgment in favor of the Tyler Bank supplied the finding by implication and there being evidence of probative force in support thereof, such implied finding is binding upon the appellate court. Rule 296, Texas Rules of Civil Procedure; Williams v. Milliger (Tex.Civ.App.) 352 S.W.2d 794.

We therefore reach the conclusion that since the trial court found that the contract covering the Pike well was a divisible contract and subject to assignment and further found that appellant had notice of the assignment at a time when he was indebted to Smith & Breyer for a sum in excess of $17,057.09, he was legally obligated to make payment in accordance with the assignment and had no authority to pay the funds to the Dallas Bank and thus deprived the Tyler Bank of its right to the funds.

Appellant further contends that there was no liability on the assignment to the Tyler Bank because the contract provided that Smith & Breyer was to have a carried interest in the wells which meant that Smith & Breyer were to assume their proportionate share of the expenses for the drilling of the wells. He therefore contends that since Smith & Breyer owed him, he was entitled to an offset for their proportionate share of the expense, and that the payment of the funds to the Dallas Bank on behalf of Smith & Breyer was nothing more than the payment of the funds representing the amount of the offset.

We have experienced difficulty in following this contention because of the following statement in the appellant’s brief:

“ * * * After such offsets, he owed $24,267.45 to Smith and Breyer as of December 31, 1962 according to Schedule 1 of the Auditor’s report. He paid this essentially on February 5, 1963 by assumption of the account owed by Smith and Breyer to the Texas Bank and Trust Company of Dallas.” (Emphasis supplied.)

It thus appears that even after taking all the offsets due and owing to him, appellant admits that he still owed Smith & Breyer the sum of $24,267.45 after notice of the assignment to the Tyler Bank.

At any rate, appellant failed to plead that the account was subject to an offset and therefore we think such defense was waived. Rule 94, T.R.C.P.; American Nat. Ins. Co. v. Fox (Tex.Civ.App.) 184 S.W.2d 937.

By Point 2 appellant contends that the court committed reversible error in refusing to consider appellant’s testimony to the effect that prior to notice of the assignment to the Tyler Bank he had personally endorsed the Smith & Breyer note at the Dallas Bank, thus subjecting himself to liability thereon, and thereby giving him a right to use funds due them in payment of the note. Alternatively, he asserts that the court committed error in refusing to allow him to re-open the evidence and offer the original of the endorsed note. In this connection, the record reveals that while being cross-examined by the Tyler Bank’s attorney, appellant testified, without objection, that he had endorsed the Smith & Breyer note at the Texas Bank prior to the time he had notice of the assignment of the Tyler Bank. Later, while appellant was being questioned by his own attorney, he again attempted to testify that he had endorsed the note, at which time the bank objected on the ground that it was not the best evidence and requested the court to strike the previous testimony in that regard. The objection was sustained and the request to strike was granted.

We fail to find any error in connection with this assignment. Appellant’s oral testimony concerning the endorsement was clearly subject to the objection that it was not the best evidence. Neither do we believe that the trial court abused his discretion in refusing to allow appellant to re-open the evidence for the purpose of introducing the endorsed note. In order to properly raise a newly discovered evidence point, there must be a showing of lack of notice of the evidence until after the conclusion of the trial and also that such could not have been discovered prior to trial by the use of due diligence. New Amsterdam Casualty Company v. Jordan, Tex., 359 S.W.2d 864. Having been an endorser upon the note, appellant is not in a position to now deny that he did not know of the existence of the note prior to trial. Furthermore, the only purpose in offering the note and the endorsement was to establish a defense in the nature of payment or offset. As pointed out before, there were no pleadings to support such an affirmative defense and appellees having objected for such reason, there was no abuse of discretion in refusing to allow appellant to re-open the evidence for this purpose. Rule 94, T.R.C.P.; Gresham v. McElroy (Tex.Civ.App.) 309 S.W.2d 84.

Moreover, appellant has failed to properly preserve the point. The alleged note was not offered in evidence nor brought forward in the record by way of a Bill of Exception. Without the note, we are unable to determine whether there was any abuse of discretion in refusing to allow a re-opening of the evidence. Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155.

Appellant requested the court to make additional findings of fact and conclusions of law. The court complied with this request and made several additional findings of fact. Those which were refused and of which complaint is now made are thought to be either immaterial or in conflict with other findings of fact made by the court. The requested conclusions of law contain nothing more than a request for legal conclusions contrary to the judgment and hence were properly refused.

Appellant not having discharged his burden of establishing that the failure to make the additional requested findings was error, these points are overruled.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    C. B. PERKINS, Appellant, v. Floyd C. HALE et al., Appellees.
    No. 160.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 4, 1965.
    Rehearing Denied Dec. 2, 1965.
    Herbert Boyland, Kenley & Boyland, Longview, for appellant.
    Rex Houston, Wellborn & Houston, Henderson, for appellees.
   SELLERS, Justice.

Floyd C. Hale and his employer, John Baton, filed this suit against C. B. Perkins to recover for personal injuries to Floyd C. Hale and for damages to the pickup truck that he was driving which belonged to the plaintiff, John Baton. The suit is a result of a collision at the intersection of Broadway and Houston Streets in the City of Kil-gore. The traffic at the intersection was controlled by a signal light. Broadway Street is some 50 feet wide at the intersection and Houston Street is some 43 feet wide. The accident occurred shortly before noon on May 21, 1963. Defendant Perkins filed cross action, seeking damages for his personal injuries as well as for his car.

The trial was to a jury, and the jury found that Defendant Perkins was guilty of the following acts of negligence which were the proximate cause of the collision and Plaintiff Hale’s injuries:

(a) He operated his automobile at a greater rate of speed than a person of ordinary care would have done under similar circumstances,
(b) He operated his automobile at an excessive rate of speed,
(c) He failed to keep a proper lookout,
(d) He failed to make a proper application of his brakes,
(e) He drove his car into the intersection when the traffic light was red.

Over the objections of the plaintiff, the court submitted special issues inquiring of the jury if Plaintiff Hale failed to make a proper application of his brakes, to which the jury answered that he did and that it was negligence proximately causing the accident.

The jury further found that Plaintiff Hale failed to keep the car under proper control, which was the proximate cause of the collision. This issue was likewise submitted by the court to the jury over plaintiff’s objection.

It is without dispute, and the jury so found, that the plaintiff drove into the intersection when the green light was in his favor at a speed of 20 to 25 miles per hour; then the green light remained in his favor until the collision occurred; that plaintiff was driving north on Broadway and had reached 31 feet across Houston Street when his car was struck in its right side at the door about eight feet from the east boundary of East Broadway Street by the defendant’s car, with such force as to knock plaintiff’s pickup truck about 42 feet over on the south boundary of Broadway.

On motion of appellee, the trial court disregarded the jury findings of contributory negligence of appellee and entered judgment for appellee. The issues disregarded by the trial court were appellee’s failure to keep his car under control and his failure to make proper application of his brakes. The burden of appellant’s first four points of error is to the effect that there is in the record sufficient evidence to sustain these findings by the jury. The evidence relied upon by appellant, as set out in his brief, is as follows:

“Q When, if ever, did you see any traffic to your right, or did you notice any traffic at all to your right?
“A Yes, sir. I glanced and noticed traffic to the right after I was a car length into the intersection.
“Q Who did you see down there?
“A I just noticed it was an automobile.
“Q Well, do you know now what car it was ?
“A Yes, sir.
“Q Who was it?
“A Mr. Perkins.
“Q Were you and Mr. Perkins acquainted at that time?
“A No, sir.
“Q Do you know approximately how far off he was at that time?
“A From three to four car lengths.
“Q And you say you were approximately a car length into the intersection?
“A Yes, sir.
“Q All right. Does that put your car approximately here?
“A Yes, sir.
“Q And he was down here how far?
“A Three to four car lengths.
“Q All right. Did you continue on north ?
“A Yes, sir, I continued on north because I had the green light.
ti sji ‡ ifc
“MR. HOUSTON: You were in high gear. His question, ‘And did you make any effort to avoid the accident for that point on’ Your answer?
“A T didn’t have time.’
“Q Question, T am not asking you, of course, it is up to a jury as to whether or not you had time?’ Answer, ‘Yes, sir.’
Question, ‘Did you take any preventative action?’
Answer?
“A T gripped the steering wheel and went to put the brakes on but I never hit them.’
“Q Question, ‘Your foot was already on the accelerator, wasn’t it, when you first saw him?’ Your answer, ‘Yes, sir.’ Question, ‘You didn’t floor board your pickup?’ ‘No, sir.’ Question, ‘He was at least four car lengths away?’ ‘Yes, sir.' Then the question, ‘Whereabouts in the intersection did the wreck happen?’ Your answer, ‘In the northern part of Houston, I mean the northeastern part.’ Is that correct ?
“A Yes, sir.
“Q Is that the same portion of the intersection you testified here this morning the wreck happened?
“A Yes, sir.
(( * * *
“Q Now, Mr. Hale, I believe yesterday you gave certain measurements and distances, and of course those are all estimates or guesses on your part that you made there at that particular time, isn’t that correct?
“A Would you repeat that please.
“Q I say yesterday in describing this accident you gave some figures as to distances which I believe were merely estimates or guesses on your part, weren’t they ?
“A Yes, sir.
“Q How far was the vehicle operated by Mr. Perkins from you when you first saw it?
“A Three to four car lengths back from the intersection.
“Q All right. And tell us, please sir, once again how far you were, the front of your pickup was, from the south side of this intersection as has been drawn off by Mr. Houston here when the light facing you, when the caution light came on that last time?
“A Now, would you repeat that again, please.
“Q ' How far was the fornt of your pickup from the south side of this intersection when you saw that caution light come on the last time you saw it come on?
“MR. HOUSTON: Your Honor, if this has a purpose I make no objection. I believe it is so repetitious as to — I don’t know how many times he has been over it with this very witness and I think it is completely repetitious.
«* * *
“Q All right. Now, at the time of the impact and when you ran into the righthand side of the pickup Mr. Hale had come completely across the south lane of Houston Street, hadn’t he?
“A I suppose so.
“Q And was entirely in the north lane of Houston Street, wasn’t he?
“A Yes, sir.
“Q And had driven far enough through that intersection to be completely in front of your car, wasn’t he?
“A Yes, sir.
“Q What speed were you driving then, Mr. Perkins?
“A I really don’t know, but I would say approximately between 20 and 25.
“Q Between 20 and 25 ?
“A Something like that.
(t ^ iji ‡
“Q Then what did you do ?
“A I made a righthand turn.
“Q All right, as you made a righthand turn then, I think it is fairly evident, I don’t mean to lead you, look at it, as you made a righthand turn off of Ross would you have turned up this direction then?
“A Yes, sir.
“Q You were going north then on Broadway?
“A Yes, sir.
“Q Now, is this the intersection, Houston and Broadway, where the wreck happened ?
“A Yes, sir.
“Q And did Mr. Perkins testify correctly that you were traveling north on Broadway and he was traveling west on Houston Street, is that correct, sir?
“A Yes, that is right.
“Q All right. As you came up the street towards Houston Street within the last block before you got to the intersection what speed were you driving?
“A Before I came to the last block?
“Q Well as you drove in the last block before the wreck happened, let’s say the last hundred feet that you traveled, or the last three hundred feet that you traveled, what speed were you driving?
“A From twenty to twenty-five miles an hour.
“Q Is that the speed that you maintained until the time of the impact?
“A Yes, sir.
“Q All right. Now, as you neared the intersection tell the jury whether or not you ever saw the light change?
“A Yes, sir, I saw the light change.
“Q How did it change, from what color to what color, please?
“A It changed from red to caution to green.
“Q All right. How far were you back from the intersection at that time ?
“A When it turned green?
“Q Well, first if you know when it turned from red to caution or to green, whatever it is, tell me what you are talking about. I want to know how far you were back?
“A I would say fifty feet back when I saw it turn green.
“Q All right. Were you down south of the intersection you say fifty feet when you saw the light turn green?
“A Yes, sir.
“Q Could you see the traffic light?
“A Yes, sir.
“Q The light that controlled you, do you know that it was on green?
“A Yes, I certainly do.
“ * * *
“Q Brakes work good?
“A Yes, sir.
“Q How long does it take you to stop going twenty miles an hour?
“A Well, I haven’t tested that.
“Q Sir?
“A I don’t know, I haven’t tested it.
“Q Well, do you feel like if a small child had stepped out in front of you, running across the street at that intersection you could have stopped and avoid hitting the child?
“A I certainly do.
“Q That would be within a matter of ten or fifteen feet, wouldn’t it? Sir?
“A Approximately.
“Q All right. Didn’t you testify in your deposition that when you first saw Mr. Perkins that you just gripped your steering wheel real hard?
“A If I did it was with your help.
“Q Well, let’s just see if it was with my help on Page 32, Mr. Perkins— Mr. Hale, if I didn’t ask you, ‘Did you take any preventative action ? ’ And you said, T gripped the steering wheel and went to put on the brakes but I never hit them.’ Is that your answer ?
“A That’s right.
“Q Then it was you who suggested that you gripped the steering wheel and not me, wasn’t it?
“A After I saw he was running the red light—
“MR. BOYLAND: We object to that as non-responsive, Your Honor. The question I asked him if it wasn’t him and not me that suggested that he gripped the steering wheel.
“THE COURT: All right. Sustained.
“MR. BOYLAND: As you heard Mr Houston explain, Mr. Hale, if you will just answer my question we will get along a lot faster. My question was it was you and not I who used the words T gripped the steering wheel and went to put on the brakes and never hit them/ isn’t that the truth?
“A That is the statement I made.
“Q All right. You didn’t even Mow your horn, did you?
“A After I saw he was running the red light I didn’t have time.”

From the foregoing, it is without dispute, in the evidence relied upon by appellant to support the jury findings, that the appellee failed to keep a proper lookout and his failure to properly apply his brakes took place after the appellee had entered the intersection with the green light in his favor, for the reason that, until appellee looked both ways and entered the intersection with the green light in his favor, he had never seen the appellant’s car. Appellee first saw the car some three or four car lengths back from the intersection approaching the red light. It is true that appellee testified that if a small child had appeared in the intersection IS feet in front of him that he could have stopped, and we think it is likewise true that, if appellant’s car had gone into the intersection IS feet ahead of the appellee, he could have stopped and avoided the collision, but this did not happen. The legal effect of appellant’s contention is that appellee, in entering the intersection with the green light in his favor, had to stop in the intersection and anticipate that the appellant would not stop at the red light but would crash the same in violation of the law. We do not think that such a duty is placed upon the appellee. The direct question was decided by the court in the case of Roberts v. Krasny, Ohio App., 40 N.E.2d 4S8, where the court held:

“Whether these vehicles were controlled exclusively by the traffic signal lights at this intersection, or whether Sections 6310-28, 6310-28a, General Code, exclusively control this traffic, or both, the defendant had a right to enter and proceed northerly into and across this intersection, if, at the time of entrance, there was no vehicle or pedestrians within the intersection, uninterruptedly if proceeding in a lawful manner. He had a right to assume that all vehicles approaching this intersection with the green light in his favor, through the drivers, would not be lawbreakers and crash the red light. He had a right to assume that Lacey, driving in an easterly direction on Shaker Boulevard, would not be negligent and a violator of the law, and no duty devolved upon the defendant to anticipate such negligence or violation. He was not obliged to stop at a point within the intersection with the green light in his favor to ascertain whether a car approaching from the west would slow up or crash the light. As against such vehicles or individuals outside of the intersection, as he entered it, the defendant had a legal right to proceed uninterruptedly in a lawful manner, with an assumption that they would exercise due care for themselves and those rightfully in the S 'tersection.”

See in this connection 7 Am.Jur.2d, page 746, Sec. 195.

We are of the opinion that the case of Burton v. Chandler et ux., Tex.Civ.App., 304 S.W.2d 170, sustains our holding that the evidence wholly fails to support the jury finding of contributory negligence against the appellee.

Appellant’s fifth assignment of error is to the effect that the trial court erred in not submitting to the jury the issue inquiring if plaintiff sustained injury as a result of defendant’s negligence. We have concluded from the evidence that this issue does not seem to be controverted in the evidence. Under this record we are of the opinion that the court properly inquired of the jury the extent of appellant’s injuries received in the collision. Texas & Pacific Railway Company v. Moore, Tex.Civ.App., 329 S.W.2d 293.

Judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    L. D. WHITTLE, Appellant, v. Winnie Davis SAUNDERS, Appellee.
    No. 14444.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1965.
    Blanks, Thigpin, Logan, Steib & Lewis, San Angelo, for appellant.
    James E. Nugent, Carroll Cleo Haston, Kerrville, for appellee.
   MURRAY, Chief Justice.

This is a venue case. The suit was instituted by Mrs. Winnie Davis Saunders in Sutton County, Texas, in the 112th District Court, against Pacific Finance Corporation, Roger Spencer, and L. D. Whittle, d/b/a Southwest Auto Sales, seeking to recover damages sustained by her as the result of a collision between an automobile driven by Roger Spencer and an automobile driven by herself. The collision occurred on Water Street in Sonora, Sutton County, Texas.

All of the defendants filed pleas of privilege to be sued in the county of their residences, which were overruled by the court. L. D. Whittle alone has prosecuted this appeal.

For the purpose of this appeal, we may assume that Spencer negligently drove a car belonging to L. D. Whittle against a car belonging to appellee, Winnie Davis Saunders, causing her damages, and that the collision occurred on Water Street in Sonora, Sutton County. Appellee seeks to retain venue in Sutton County as to appellant, Whittle, upon the theory that Spencer was an agent of Whittle and was acting within the course of his employment at the time he negligently collided with ap-pellee’s automobile. There is no dispute as to the fact that the automobile driven by Spencer was owned by appellant. Appellee relies upon the rebuttable presumption that the driver of an automobile is the agent of the owner and is acting in the course of his employment. Henderson Drilling Corp. v. Perez, Tex.Civ.App., 304 S.W.2d 172; Austin Road Co. v. Willman, Tex.Civ.App., 303 S.W.2d 878; Walker v. Johnston, Tex.Civ.App., 236 S.W.2d 534; Boydston v. Jones, Tex.Civ.App., 177 S.W.2d 303; J. H. Robinson Truck Lines, Inc. v. Jones, Tex.Civ.App., 139 S.W.2d 127; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466; Globe Laundry v. McLean, Tex.Civ.App., 19 S.W.2d 94.

Appellant contends that the presumption of agency and course of duty should not be indulged where the motor vehicle was a non-commercial vehicle and unmarked or unbranded. We do not find it necessary to decide this question, as we have determined that the presumption was rebutted and dispelled by the testimony given at the hearing by Spencer.

The presumption of agency and course of duty is a rebuttable presumption, and one that disappears when the facts are shown. In McCormick and Ray, Texas Law of Evidence, § 53, pp. 62-63, it is stated: “Under this rule where the opponent produces sufficient evidence to justify a finding against the presumed fact the presumption vanishes and the situation is the same as it would have been had no presumption been created.” Citing Empire Gas & Fuel Co. v. Muegge (Tex.Com.App.1940) 135 Tex. 520, 143 S.W.2d 763. See also Hudiburgh v. Palvic, Tex.Civ.App., 274 S.W.2d 94.

Appellee called Roger Spencer as an adverse witness and developed from him that he came to Sonora for the purpose of appraising some furniture and an automobile for the Pacific Finance Corporation and for no other purpose. His salary and traveling expenses were paid by Pacific Finance. Spencer was asked the following questions:

“Q Were you not in Sonora also for the purpose of displaying or demonstrating the car to a member of the Border Patrol?
A No, sir.
Q You had no other reason for being in Sonora except to appraise furniture ?
A Yes, sir.”

Spencer’s evidence was not contradicted in any way and was sufficient to show that at the time of the collision he was not an agent of Whittle and was not in the course of any employment by Whittle.

Spencer’s testimony was clear, positive and uncontradicted, and though he was a party to the suit it was sufficient to dispel the presumption of his agency and course of employment by Whittle, and to prevent such presumption from being indulged in. Hudiburgh v. Palvic, supra.

When the presumption that Spencer was the agent of Whittle and in the course of his employment because Whittle was the owner of the automobile driven by Spencer at the time of the collision vanished, there was no evidence remaining from which the trial court could find that such agency and course of employment existed, and therefore it erred in overruling Whittle’s plea of privilege. There is no evidence that would support appellee’s contention of negligent entrustment by Whittle to Spencer.

The judgment is reversed and here rendered sustaining Whittle’s plea of privilege, and the cause as to Whittle is ordered transferred to the District Court of Tom Green County, in keeping with the provisions of Rule 89, Texas Rules of Civil Procedure.


text:
    Louis H. KLAYMAN, d/b/a Farmers’ Best Foods Company, Appellant, v. F. C. FISHER, Appellee.
    No. 169.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 28, 1965.
    Gordon Macdowell, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellant.
    Welby Parish, Lowell C. Holt, Gilmer, for appellee.
   SELLERS, Justice.

This is an appeal from a judgment of the 115th District Court of Upshur County overruling the appellant, Louis H. Klay-man’s Plea of Privilege to be sued in the county of his residence.

F. C. Fisher filed this suit in Upshur County to recover for personal injuries received by him in a collision between his car and that of Robert Abram Klayman at an intersection of two highways in Up-shur County. This suit was brought against Robert Abram Klayman and Louis H. Klay-man, doing business as Farmers’ Best Foods Company. The residence of both defendants is alleged to be in Smith County, Texas.

It was alleged that Robert Abram Klay-man was driving the vehicle at the time of the collision and that the vehicle was owned by Louis H. Klayman, doing business as Farmers’ Best Foods Company. Both defendants filed their pleas of privilege to be sued in Smith County, Texas. These pleas were controverted by the appellee, contending that venue was in Upshur County where the negligent acts were committed.

Upon a hearing before the Court without a jury, the Court, after hearing the evidence, overruled both pleas of privilege, from which the defendant, Louis H. Klay-man, has duly prosecuted this appeal.

The defendants are father and son. It was the son who was driving the car in Upshur County when the accident occurred. The father, the appellant, was not in Up-shur County; the son was alone in the car at the time. Only two witnesses testified on the hearing of pleas of privilege: Appellee F. C. Fisher, and the sheriff of Upshur County. Neither of these witnesses gave any evidence to the effect that Robert Abram Klayman was the agent of his father, doing business as Farmers’ Best Foods Company at the time of the accident, nor that Robert Abram Klayman, when the collision occurred, was acting within the course of his employment as such agent.

The father not being present when the accident occurred, and no proof to the effect that his son was his agent at the time, it is our opinion that the trial court erred in overruling the plea of Louis H. Klay-man, the appellant.

The facts of this case are in all material respects the same as that of Moore v. Hoover, Tex.Civ.App., 150 S.W.2d 96, where the court held:

“Where evidence failed to show that son was the agent of his father and in the pursuit of father’s business at time of collision between automobile owned by father and driven by son and another motor vehicle in Bexar county and father lived in another county and there was no contention that he personally had committed any wrong in Bexar county, venue of action against father for son’s negligence could not be had in Bexar county on ground of wrong committed by father’s ‘agent’. Vernon’s Ann.Civ.St. art. 1995, subd. 9.”

We cannot agree with appellee that the record shows that the facts were not fully developed on the hearing, and that this case should be reversed and remanded for further proceedings.

We therefore reverse the judgment of the trial court, and direct that the suit be transferred to Smith County District Court insofar as it is against the appellant, Louis H. Klayman.


author: DUNAGAN, Chief Justice.

text:
    WHITAKER OIL COMPANY, Appellant, v. Travis WARD, Appellee.
    No. 170.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 4, 1965.
    Rehearing Denied Dec. 2, 1965.

      W. Edward Lee, Whitaker & Lee, Carthage, for appellant.
    Willis D. Moore, Moore & Holland, Athens, for appellee.
   DUNAGAN, Chief Justice.

Travis Ward, doing business as Travis Ward Drilling Company, instituted this suit by unverified petition filed July 25, 1962, in the trial court against Amigos Oil & Gas Ventures, Inc., and numerous other parties, seeking to foreclose a claimed involuntary lien on an oil, gas and mineral lease covering the J. M. Duran 254-acre tract of land in Rusk County, Texas, with an affidavit claiming a lien grew out of a written contract between Ward and Amigos Oil & Gas Ventures, Inc., to drill the No. 2 Duran Well on the “West 160 acres, J. M. Duran Lease.”

The following day after the filing of suit for foreclosure of his lien against some 130 defendants, Ward filed a verified application for a receiver alleging that the owners of the lease were widely scattered, and he and several defendants were asserting statutory liens, that the persons presently owning or asserting- interests in such lease had not been able to agree on a program to develop the lease, and that the well was being drained by offset wells to the south resulting in waste and material injury to him and the other lien holders. A hearing on the application for the appointment of a receiver was heard on May 25, 1964, with Whitaker participating in the hearing. On December 29, 1964, the trial judge entered an order, based on the May 25th hearing, appointing a receiver.

Whitaker did not appeal from this order nor made any attempt to do so within twenty days from the date of the order. On January 20, 1965, appellant Whitaker filed a verified motion to vacate the order appointing a receiver. By order rendered and entered on June 11, 1965, the motion to vacate was overruled after a full hearing thereon. Incorporated in this order is appellant’s notice of appeal from such order and also notice of appeal from the order of December 29, 1964, appointing the receiver.

The appellant contends that immediately upon the close of the evidence on the hearing of May 25, 1964, the trial judge gave both sides time to file briefs and announced that when they were received, he would fix a time for, and would notify the attorneys to appear and present argument; that no briefs thereafter were delivered by either party and Whitaker was not notified of any hearing, argument or action thereafter on the application for the receiver until January 12, 1965, when he was notified of the entry of the order appointing the receiver. The appellant’s point of error in regard to this matter reads:

“The notice of the hearing held on May 25, 1964, served its purpose and expired when the partial hearing on Ward’s application for the appointment of a receiver was had and postponed to be reset for hearing when the briefs were in. There being no notice of another hearing, the order appointing a receiver at the second succeeding term of court to take charge of immovable property, with no notice and no hearing, is void.”

The record reflects that at the hearing on the application for receiver, the appellant was represented by counsel, evidence was offered by the appellant and appellee, and upon appellee resting his case, counsel for the appellant stated to the court: “We have no testimony, Your Honor.” It is apparent that all parties had the opportunity to present their evidence and having done so, the case was fully developed. The record further reflects that there was no other hearing of any kind or nature on the motion to appoint a receiver. Therefore,, there was nothing to give the appellant further notice of. He is complaining of the lack of notice of a hearing that was never held.

Appellee contended that the judge did not make the alleged statement and the trial court on the motion to vacate heard conflicting testimony on this matter and apparently resolved this issue against appellant. No findings of fact or conclusions of law were filed and none were requested. There being no express findings filed, it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion to vacate the order appointing the receiver. Brawley v. Bowen, 387 S.W.2d 383, (S.Ct.) 1965; North Waco Water Supply District v. City of Waco, 386 S.W. 2d 155, (Tex.Civ.App.) 1965, writ refused, n. r. e.

Rule 695, Texas Rules of Civil Procedure, provides in part that when an application for appointment of receiver to take possession of immovable property is filed, the judge or court shall set the same down for hearing and notice of such hearing shall be given to the adverse party by serving notice thereof not less than three days prior to such hearing. Appellant makes no complaint here of the sufficiency of the notice given on the application and hearing of May 25, 1964. The basis of appellant’s contention is that, since the court postponed the hearing on May 25, 1964, on the application for receiver after all the evidence was in, to be reset for oral argument, it not being reset later, and the notice required by the rule not given as he contends the court announced it would do, the hearing was never completed. Under these circumstances, he contends the trial judge lacked authority to enter the order and therefore the order was void. We do not know of any rule, statute or authority nor have we been cited any that requires the court to hear oral arguments on matters presented to it without the aid of a jury. Further, the trial court had the benefit of appellant’s brief which he furnished the court on the date of the hearing of the motion of May 25, 1964, stating fully his position supported by authorities as to why a receiver should not be appointed. Appellant having been given notice of the application for the appointment of the receiver and hearing thereon for May 25, 1964, the requirement of Rule 695 as to notice was complied with.

Appellant having been represented by his counsel and having presented evidence on the hearing of the application for a receiver held on May 25, 1964, and on the same day having delivered his written brief to the court, he had his day in court.

If, as contended by appellant, notice was not given to him as required by Rule 695, which we do not so hold, the appellant in filing his motion to vacate the order of appointment waived all questions incident to the regularity of the appointing order. Cocke v. Naumann, 188 S.W.2d 781, (Tex.Civ.App.) 1945, writ refused, n. r. e.; San Angelo Hilton Hotel Co. v. B. B. Hail Bldg. Corp., 60 S.W.2d 1049, (Tex.Civ.App.) 1933, n. w. h.; Salas v. Gonzalez, 181 S.W.2d 821, (Tex.Civ.App.) 1944, n. w. h.; Lacey v. Dayton Rubber Mfg. Co., 270 S.W. 916, (Tex.Civ.App.) 1925, writ dismissed; Marion v. Marion, 205 S.W.2d 426, (Tex.Civ.App.) 1947, n. w. h.; Cotton v. Rand, 92 S.W. 266, (Tex.Civ.App.) 1906, writ dismissed; Grace v. Buhrman-Pharr Hardware Co., 45 S.W. 2d 401, (Tex.Civ.App.) 1931, n. w. h.

The appeal in this case is governed by Rule 385, T.R.C.P., which makes two requirements for the taking of an appeal from an interlocutory order, to-wit: (1) filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, conditioned as required by the rules governing appeals generally, and (2) filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956, 1943; Stubbs v. Thomason, 244 S.W.2d 844, (Tex.Civ.App.) 1951, writ dismissed. No notice is necessary on appeal from an interlocutory order appointing a receiver. Abilene Independent Telephone & Telegraph Co. v. Southwestern Telegraph & Telephone Co., 185 S.W. 356, (Tex.Civ.App.) 1916, n. w. h.

Even though the appellant received notice on January 12, 1965, of the order appointing the receiver, he did not attempt to appeal from this order until more than twenty days after the date of its rendition and entry. Appellant filed his appeal bond on June 15, 1965, wherein he attempts to appeal from both the order appointing the receiver and order overruling his motion to vacate such order.

It will be noted that the order appointing the receiver was entered on December 29, 1964, and the order overruling the motion of appellant to vacate the order appointing the receiver was entered on June 11, 1965. The appeal bond, which attempts to appeal from both the order appointing the receiver and the order overruling the motion to vacate, was filed on June 15, 1965. Under Vernon’s Ann.Civ. St. art. 2250, one appealing from an order appointing a receiver or from an order overruling the motion to vacate an order appointing a receiver, must perfect his appeal within twenty days from the date of the order appealed from. The appeal bond in this case was filed more than twenty days after the order appointing a receiver was entered, and was therefore filed too late to perfect an appeal from that order; Walker v. Cleere, supra; Stubbs v. Thomason, supra; and this appeal must be treated only as an appeal from the order of the court overruling appellant’s motion to vacate the order appointing the receiver. Grace v. Buhrman-Pharr Hardware Co., supra; Cocke v. Naumann, supra.

The basis for a motion to vacate must be (1) presenting to the trial court a fact, previously unknown to the trial court relating to the propriety of entering an order appointing a receiver, or (2) calling the attention of the trial court to some fundamental error that renders the order void. Otherwise, a motion to vacate amounts to nothing more than a motion for rehearing before the trial court, which is not the purpose of a motion to vacate an order appointing a receiver as provided for under Article 2250, V.A.C.S.

Appellant, by his motion to vacate, attempts to secure a rehearing in the trial court after the time for appeal has elapsed. The record is silent as to any new fact relating to the propriety of the original order brought forward by Whitaker on his motion.

Appellant’s counsel on oral argument to this court conceded that his motion to vacate was tantamount to a motion for new trial. The filing of a motion for new trial of the application for the appointment of a receiver does not enlarge the time for the filing of the appeal bond and record in the appellate court. Dulaney v. Neely, 173 S.W.2d 730, (Tex.Civ.App.) 1943, n. w. h.

An order appointing a receiver is void when the court lacks jurisdiction of the parties or subject matter. The fact that it was made improvidently, or issued on insufficient evidence does not nullify an order appointing a receiver. 49 Tex. Jur.2d Sec. 67, page 93. The trial court in the case at bar had jurisdiction of both the parties and subject matter; therefore, the order appointing the receiver is not void.

Where the appeal is perfected from an order overruling a motion to vacate the appointment of a receiver, as in this case, the question upon the pleadings becomes one simply of the sufficiency of the petition to support the appointment of a receiver. Batchelor v. Pacific Finance Corporation, 202 S.W.2d 857, (Tex.Civ.App.) 1947, n. w. h.; Salas v. Gonzalez, supra. Appellee’s sworn allegations in this case are deemed sufficient under Article 2293, Revised Civil Statutes, 1925, to authorize the appointment of a receiver.

In the case of Lauraine v. First Nat. Bank of Whitney, 204 S.W. 1022, (Tex.Civ.App.) 1918, n. w. h., the court said:

“It is clear that if a motion to vacate an order appointing a receiver upon the ground that error was committed in the proceedings, when the error complained of is not such as to render the proceedings void, can be entertained at any time, the court appointing a receiver would never become final and the statute (now Rule 385) which only gives 20 days in which to appeal from such order would be rendered nugatory and idle. We cannot believe the Legislature intended any such result in enacting the statute giving the right of appeal from an order overruling a motion to vacate an order appointing a receiver. * * * ” Neither do we believe those who promulgated Rule 385 intended such result.

Appellant’s first point of error was not briefed, and we consider same as having been waived. The Aetna Casualty & Surety Company v. Depoister, 393 S.W.2d 822, (Tex.Civ.App.) 1965, n. w. h.; Weatherred v. Kiker, 357 S.W.2d 182, (Tex.Civ.App.) 1962, writ refused, n. r. e. However, under the record in this case we believe this point, as well as point No. 10, is without merit and should be overruled.

The other points presented by appellant challenge the correctness of the action of the court in appointing a receiver. As that order was not timely appealed from, the matter is not before us for review. Lloyds of Texas v. Bobbitt, 40 S.W. 2d 897, (Tex.Civ.App.) 1931, writ dismissed 55 S.W.2d 803.

The sworn application being sufficient for the appointment of the receiver and the order making the appointment being within the jurisdiction of the District Court, appellant’s points present no error.

The trial court’s order overruling the motion to vacate the order appointing the receiver is affirmed.