author: KLINGEMAN, Justice.

text:
    C. K. GRAVIS, Jr., et ux., Appellants, v. PHYSICIANS & SURGEONS HOSPITAL OF ALICE et al., Appellees.
    No. 14564.
    Court of Civil Appeals of Texas. San Antonio.
    April 5, 1967.
    Rehearing Denied June 7, 1967.

      Sidney P. Chandler, Trimble & Dobbs, Corpus Christi, for appellants.
    Lloyd, Lloyd, Dean & Ellzey, Alice, Lewright, Dyer & Redford, Corpus Christi, Perkins, Floyd, Davis & Oden, Alice, for appellees.
   KLINGEMAN, Justice.

This is an appeal from a summary judgment in a malpractice case. On the evening of October 22, 1963, Elma Gravis complained of pain in her abdomen, and her husband, C. K. Gravis, Jr., telephoned Dr. Philip S. Joseph who agreed to meet them at the hospital. Shortly thereafter, Dr. Joseph examined Mrs. Gravis in the emergency room of the Physicians & Surgeons Hospital of Alice, Texas, and she was given some medicine for pain and placed in a room in the hospital for observation. On the next day, she was given other examinations and tests, including X-rays. During the period of time between her admission and operation, Mrs. Gravis was given various medications, including sedatives, pain-relieving medicine, antibiotics, anti-nause-ants, euphorics, vitamins, tranquilizers, and other medicine. On October 24, 1963, at about 12:30 p. m. an exploratory operation was performed on Mrs. Gravis, and for the operation Mrs. Gravis was given a spinal anesthetic and pentothal sodium intravenously during the operation. An intestinal obstruction was found during the operation and corrected. Since the operation Mrs. Gravis has suffered from a number of physical disabilities, including bladder trouble, phlebitis of the left leg, and partial paralysis.

Appellants based their suit upon theories of assault and battery, fraud, duty to warn, breach of contract, administrative negligence, and numerous alleged acts of negligence and malpractice. Extensive discovery proceedings were had, and the record' contains numerous depositions, including six from doctors, voluminous pleadings on the part of all parties, and lengthy affidavits. Appellees each filed motion for summary judgment and, after a full hearing, the trial court found that there was no genuine issue as to any material fact and granted appellees’ motions for summary judgment, and decreed that appellants take nothing against said appellees.

For better identification of the parties, Mrs. Elma Gravis was the patient operated on, her husband being C. K. Gravis, Jr.,, and they were plaintiffs in the trial court. Dr. Philip S. Joseph was the operating physician, Dr. John C. Turnham, Jr., was the assisting physician, Ruth B. Grose was the supervisor of nurses and anesthetist at the Physicians & Surgeons Hospital of Alice, where ?Irs. Gravis was hospitalized and where the operation was performed, and they were defendants in the trial court.

Appellants’ two points of error on this-appeal are:

“FIRST POINT OF ERROR
The Appellees, Physicians and Surgeons Hospital of Alice, Dr. Philip S. Joseph, Dr. John C. Turnham, Jr., and Ruth Grose, each, having failed to plead and prove that there are no genuine material issues of fact in this case the trial court erred in sustaining each of the Appellees’ motions for summary judgment.
“SECOND POINT OF ERROR
The Appellees, Physicians and Surgeons Hospital of Alice, Dr. Philip Sr Joseph, Dr. John C. Turnham, Jr., and Ruth Grose, each, having failed to plead and prove that there are no genuine material issues of fact in this case the trial court erred in entering judgment against the Appellants, C. K. Gravis, Jr., and Elma Gravis, as entered, and in favor of the Appellees that the Appellants take nothing by this suit.”

After a thorough review of the record, we are of the opinion that appellants’ points of error are without merit.

Appellants’ brief consists of two parts, to-wit, a brief of 15 pages, double spaced, and attached thereto and made a part thereof, is a copy of the brief appellants submitted to the trial court, which contains 140 pages, mostly single spaced. Appellees contend that appellants’ points of error are so general that they are unable to determine the precise points which appellants bring to this Court for review, and are insufficient to warrant consideration on appeal. The cases which appel-lees rely upon in this contention hold that while points may be too general, where the grounds upon which appellants apparently relied are disclosed in the statement and arguments accompanying the points on appeal, a review court will consider such points. Under such construction, we will attempt to discuss appellants’ germane contentions as we understand them from their brief.

ASSAULT AND BATTERY THEORY OF RECOVERY

Appellants’ complaints on these grounds appear to be:

(1) That there was no consent to such operation.

(2) That if there was any consent, either express or implied, it was not an informed or knowledgeable consent.

The situation involved in the case before us is not analogous to that involved in Moss v. Rishworth, 222 S.W. 225 (Tex.Com.App.); Thaxton v. Reed, Tex.Civ.App., 339 S.W.2d 241, and Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439 (1905), all of which cases are malpractice cases involving theories of assault and battery. In the case before us, according to the testimony of Dr. Joseph, his initial examination at the time of admission revealed a generalized tenderness in the abdominal area, and at that time he reached no conclusion as to the cause of Mrs. Gravis’ complaints. Further examination and tests were made the next day and, according to Dr. Joseph, an X-ray taken on October 23, revealed a normal abdomen with no pathology indicated. According to the medical evidence in the record, no emergency existed at this time, and there is nothing in the record to indicate that any operation was contemplated at that time. However, on the morning of October 24, this situation changed; Mrs. Gravis’ blood count had gone up, and, according to Dr. Joseph, this indicated to him there was a possibility of an inflammatory process, possibly the appendix, and X-rays taken that morning indicated that the small intestinal loops appeared somewhat dilated. Dr. Joseph testified that it was not until the morning of the 24th that he came to the conclusion that Mrs. Gravis should be operated on. Up to this time, the matter of consent to an operation had not arisen. However, an emergency situation now existed. In such a situation, there is respectable authority that the practitioner may be justified in performing an operation without the express consent of the patient or of anyone authorized to act on his behalf. 45 Tex.Jur.2d, § 101, p. 262; 139 A.L.R. 1370 at p. 1374. It is stated in 76 A.L.R. 566, that the general rule recognizes that consent may be implied under some circumstances, or the existence of an emergency, may justify operating without any consent. Indeed, in Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444, 76 A.L.R. 551 (1931), where an amputation was performed, it was held that since the defendant was confronted with an emergency which endangered the life and health of the patient, it was his duty to do that which the occasion demanded within the usual and customary practice among physicians and surgeons in the same or similar localities, without the consent of the patient. 10 Tex. L.Rev. 99.

Appellants presented evidence that from the time Mrs. Gravis was admitted to the hospital to the time of the operation she was under heavy sedation and under the influence of pain-killing drugs, and was quite groggy. Mrs. Gravis stated that she was under pain-relieving medicine to such an extent that she did not know what was happening about 80% of the time prior to the operation, and further testified that she did not recall anything that happened on the morning of the operation. Giving full credence -to appellants’ testimony as to Mrs. Gravis’ mental condition on the morning of the operation, and accepting Mrs. Gravis’ testimony that she was unable to give her consent in any form or manner on the morning of the operation, according to appellants’ own contention it would not have been possible to obtain a valid consent from Mrs. Gravis on the morning of the operation, at the time the emergency arose to perform the operation. The evidence is undisputed, however, that at such time Dr. Joseph discussed such operation with C. K. Gravis, Jr., the husband of Elma Gravis, and told him that it was going to be necessary to perform an exploratory operation on Mrs. Gravis, and that Mr. Gravis stated, “We got to do something, Doc, or I am going to lose Elma.” Mr. Gravis, when asked in his deposition, “In other words, you agreed with the exploratory operation and whatever he thought was necessary to do,” stated, “Well sure, I’m not a doctor.” It is further undisputed that at such time Mr. Gravis, on his own volition, signed a written consent agreement consenting to the performing of whatever treatment or operation, and the administering of whatever anesthetics the physician believed to be necessary or advisáble. ' There is no evidence in the record that Mrs. Gravis or her husband ever objected to the operation to be performed. Appellants’ chief complaint appears to be with regard to the anesthetic used in connection with such operation. The anesthetic was incidental to the operation and was necessary to perform the operation. Further, all the medical evidence indicates that the type of anesthetic used is one that is commonly used in operations of this type, and is considered one of the safest types of anesthetics.

Appellants rely chiefly on the recent case of Scott v. Wilson, Tex.Civ.App., 396 S.W.2d 532, affirmed, Tex., 412 S.W.2d 299 (Feb. 4, 1967), on the matter of informed consent. We do not have the same situation in this case as in Scott. This Court in the Scott case points out that it was not an emergency operation which had to be performed to preserve Scott’s life or health, and that such operation was an elective operation. The Supreme Court in affirming this Court pointed out that the action therein was one of malpractice for a physician’s failure to conform to medical standards in obtaining the patient’s consent, and that regardless of what some earlier informed consent cases suggest, such an action need not be pleaded as one for assault and battery, and that the traditional elements of assault and battery are absent in most malpractice cases based upon a physician’s failure to make sufficient disclosure. See also Note, 44 Tex.L.Rev. 799, 801, where it is asserted that whether a physician fulfills his duty to inform the patient is a question of medical practice and therefore essentially one of negligence. The Supreme Court held in Scott v. Wilson, that plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from this standard, causation and damages. The appellants in the case before us wholly failed to meet this burden.

FRAUD

There are no pleadings or proof in the record constituting any basis of fraud.

DUTY TO INFORM

It is somewhat difficult to determine whether appellants rely upon Scott v. Wilson, supra, only on the theory of assault and battery, or also on the duty to warn or on negligence. Scott v. Wilson offers no great comfort to appellants under any of such bases. It must be remembered that Scott v. Wilson involved a prospective ear operation, a stapedectomy, wherein the patient could choose whether or not to have an operation. It did not involve an emergency situation as we have in this case, where the life or health of the patient was in danger. Our Supreme Court in Scott v. Wilson quoted from the recent opinion by the Supreme Court of Missouri in Aiken v. Clary, 396 S.W.2d 668, 674, as follows:

“We have reexamined this question and have concluded that the question of what disclosure of risks incident to proposed treatment should be made in a particular situation involves medical judgment and that expert testimony thereon should be required in malpractice cases involving that issue. The question to be determined by the jury is whether defendant doctor in that particular situation failed to adhere to a standard of reasonable care. These are not matters of common knowledge or within the experience of laymen. Expert medical evidence thereon is just as necessary as is such testimony on the correctness of the handling in cases involving surgery or treatment. In Fisher v. Wilkinson, Mo., 382 S.W.2d 627, 632, we held: ‘Without the aid of expert medical testimony in this case a jury could not, without resorting to conjecture and surmise or by setting up an arbitrary standard of their own, determine that defendants failed to exercise their skill and use the care exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances.’ And, as we said in Pedigo v. Roseberry, 340 Mo. 724, 736, 102 S.W.2d 600, 607: ‘Juries should not be thus turned loose and privileged to say, perchance, the method of treating an injury * * * [or an illness] was negligent notwithstanding, for instance, the uncontradicted competent testimony establishing] that the uniformly adopted practice of the most skillful surgeons [or physicians] had been followed.’ The question is not what, regarding the risks involved, the juror would relate to the patient under the same or similar circumstances, or even what a reasonable man would relate, but what a reasonable medical practitioner would do. Such practitioner would consider the state of the patient’s health, the condition of his heart and nervous system, his mental state, and would take into account, among other things, whether the risks involved were mere remote possibilities or something which occurred with some sort of frequency or regularity. This determination involves medical judgment as to whether disclosure of possible risks may have such an adverse effect on the patient as to jeopardize success of the proposed therapy, no matter how expertly performed.”

Appellants’ complaints with regard to duty to warn in the case before us apparently relate to their contention that the type of anesthetic to be used was not discussed with them, as there is no evidence in the record that appellants m'ade any objection to the emergency operation. In Bell v. Umstattd, Tex.Civ.App., 401 S.W.2d 306, writ dism’d, which was a malpractice suit against an anesthesiologist, the Court stated that the anesthetic was incidental to the operation, and that under the circumstances in that case the anesthesiologist, barring inquiry, was not under a duty to disclose the method he or the surgeon would select in administering the anesthetic. The medical testimony in the case before us is to the effect that the type of anesthetic used is one that is widely used; is frequently used in the type of operation which Elma Gravis underwent; that reactions are extremely rare from this type of anesthetic; and that the risk involved of the type of reaction suffered by Mrs. Gravis is very low, in the area of one in two hundred thousand. In addition, medical witnesses testified without contradiction that in their opinion Dr. Joseph and Ruth Grose, the anesthesiologist, had acted according to accepted methods of medical practice with regard to the propriety and administration of the anesthetic used and that they did not do anything which would not have been done, or failed to do anything that would have been done, in the exercise of ordinary care by doctors and anesthesiologists.

BREACH OF CONTRACT

Appellants’ contentions in this regard appear to be:

(1) Appellants claim that on the occasion that Dr. Joseph first informed them that an exploratory operation was going to have to be performed on Elma Gravis, there was some discussion between Dr. Joseph and the husband and son of Elma Gravis with regard to taking Mrs. Gravis to a hospital in Corpus Christi and placing her under the care of a Corpus Christi doctor, and that Dr. Joseph told them there was no necessity for this, that they could do the operation in Alice as well as in Corpus Christi.

(2) That appellees would do no injury to Mrs. Gravis. There is no medical evidence in the record that Mrs. Gravis did not receive the same care and treatment as she would have received in Corpus Christi, nor is there any medical evidence showing that if Mrs. Gravis had been taken to Corpus Christi that the disabilities she is now suffering from would not have resulted.

There must be expert proof of negligence and proximate cause. Amerine v. Hunter, Tex.Civ.App., 335 S.W.2d 643, writ ref’d n. r. e. The testimony of all the doctors, including some Corpus Christi doctors, was that the operation was skillfully performed, under the proper anesthetic properly administered. In the absence of a special contract to that effect, a physician or surgeon is not an insurer and does not warrant a cure or favorable result. 45 Tex.Jur.2d § 120, p. 287. The physician is not an insurer and does not warrant a cure, but impliedly contracts that he possesses, and he is required to use and exercise that degree of skill and care which physicians practicing in similar locations ordinarily possess. Turner v. Stoker, Tex.Civ.App., 289 S.W. 190, writ ref’d. There is no evidence in this case of any special contract, or that appellee doctors did not exercise that degree of care and skill possessed by physicians practicing in that area.

ADMINISTRATIVE NEGLIGENCE

Appellants’ contentions in this regard appear to be:

(1) That the anesthetics and other drugs administered to Elma Gravis were not compounded by hospital employed licensed pharmacists. In support of this contention, appellants cite Art. 4542a, Vernon’s Ann.Civ.St., and the case of Sullivan v. Sisters of St. Francis of Texas, Tex.Civ.App., 374 S.W.2d 294, no writ. Such statute relates to pharmacies and the operation thereof. We find no evidence in the record that the appellee hospital was operating a pharmacy within the meaning of the statute, or that would make the hospital subject to the provisions of such statute. Section 8 of such statute contains a specific exemption of such act with regard to licensed practitioners of medicine, and specifically provides that nothing contained in such act shall be construed to prevent the personal administration of drugs and medicines carried by licensed physicians in order to supply the immediate needs of their patients. The evidence in this case is clear that the drugs used were administered by the treating physicians and their agents, under their supervision, and there is no evidence that the hospital was operating a pharmacy. Further, there is no expert medical evidence of any actual negligence of the appellees with regard to the preparing and compounding of the drugs or the anesthetics used, or that any act or omission of the appellees in this regard proximately caused the injuries or damages claimed by appellants.

NEGLIGENCE AND MALPRACTICE

The much quoted case of Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1, furnishes the qualitative test to be applied by Texas Courts to a plaintiff’s evidence in a malpractice suit. The Supreme Court stated: “It is definitely settled with us that a patient has no cause of action against his doctor for malpractice, either in diagnosis or recognized treatment, unless he proves by a doctor of the same school of practice as the defendant: (1) that the diagnosis or treatment complained of was such as to constitute negligence and (2) that it was a proximate cause of the patient’s injuries.” In the case before us, although exhaustive discovery proceedings were had, and there is contained in the record depositions of six doctors, all of whom underwent extensive direct and cross examination by competent counsel for all parties, there is no expert testimony to support appellants’ allegations of negligence, and there is no evidence of a medical nature proving or tending to prove negligence on the part of appellees or either of them. The Supreme Court in the recent case of Hart v. Van Zandt, 399 S.W.2d 791 (1965), stated:

“In determining negligence in a case such as this, which concerns the highly specialized art of treating disease, the court and jury must be dependent on expert testimony. There can be no other guide, and where want of skill and attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury. The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury. Ewing v. Goode, 78 F. 442, 444 (C.C.Ohio, 1897); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949); Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 264 S.W.2d 689 (1954).”

Appellants rely on excerpts from a number of medical books which were attached as exhibits to appellants’ answer to the motions for summary judgment, as supplying their expert medical testimony, and apparently take the position that such excerpts are original evidence in this cause and should be so considered. The law in Texas is to the contrary. The Supreme Court in Bowles v. Bourdon, supra, held that excerpts read by plaintiff counsel from standard medical authorities in questioning defendant’s physicians and plaintiff’s medical witnesses in a malpractice action could not be considered as evidence by the Supreme Court, and that when a doctor testifies as an expert relative to injury or disease he may be asked to identify a given work as a standard authority on the subject involved, and, if he so recognizes it, excerpts therefrom may be read, not as original evidence but solely to discredit the doctor’s testimony, or to test its weight. See also 32 C.J.S. Evidence § 718, p. 1023. Appellants’ attorney interrogated appellee doctors and other medical witnesses at great length with questions which assumed the existence of certain facts which were never proved, i. e., that a high spinal was given, that the spinal anesthetic was injected at the wrong place, that the drugs and anesthetics used were old, that the solution was too strong, that proper methods of sterilization were not used, that the spinal anesthetic used was not sterile, that too many toxicant drugs were administered, and asked if such facts existed, would certain stated results follow or be obtained. A large number of such questions were excerpts taken from the medical texts above referred to, which in some instances the questioned doctor stated that he did not recognize as authority or had never heard of. In response to such questions, the doctors either denied that a certain result would happen or stated, “it is possible.” This is not the type of proof required in a medical malpractice suit. Bowles v. Bourdon, supra; Hart v. Van Zandt, supra.

In a recent case involving a question of cancer aggravation our Supreme Court stated: “It is our view that such occurrence, or not, is a question of science determinable only from the testimony of expert medical professionals. * * * Casual connection in such a fact situation must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture.” Insurance Co. of North America v. Howard Myers, Tex., 411 S.W.2d 710. There is no expert evidence tendered by appellants in this case, by affidavits, depositions or otherwise, that ap-pellees were negligent or that appellee doctors, nurses, or the hospital did any act which any ordinary prudent doctor, nurse or hospital in such area would not have done under the same or similar circumstances. Appellants failed to meet the burden of proof required of them in this State in malpractice cases.

In determining the question of proximate cause, the general rule is that “proof of causation must go beyond a showing of a possibility that the injuries arose from the defendant’s negligence or lack of skill, since the jury will not be permitted to speculate as to the causes of the injury. Thus, where the evidence considered most favorably to the plaintiff develops more than one equally probable cause, for one or more of which the defendant is not responsible, the plaintiff has failed to sustain his burden of proof.” 13 A.L.R.2d 22. Hart v. Van Zandt, supra. The testimony of the medical experts in this case indicates that, in all probability, the injuries and disabilities that Mrs. Gravis suffered were the result of an allergic response to the spinal anesthetic; that this is extremely rare and unforeseeable; that there is no recognized test for spinal anesthetics ; that these rare reactions of patients to proper drugs is unpredictable and beyond the control of the physician. Appellants have failed to prove by expert testimony that any act or omission of ap-pellees, independent of one or more other possible causes, including the patient’s possible allergy to the anesthetic, was a proximate cause of any injury to Mrs. Gravis. Where proof discloses that a given result may have occurred by reason of more than one proximate cause and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of that choice to the jury is improper. Bowles v. Bourdon, supra.

After a careful examination of the entire record, we are of the opinion that it is completely void of the elements of proof which are essential to a recovery by appellants. We find no error of the trial court in sustaining appellees’ motions for summary judgment and granting a take-nothing judgment.

The judgment of the trial court i.s affirmed.

      . Bell v. Currie, Tex.Civ.App., 404 S.W. 2d 321, no writ; Cotten v. Republic National Bank of Dallas, Tex.Civ.App., 395 S.W.2d 930, writ ref’d n. r. e.; Covington v. City of Denison, Tex.Civ.App., 369 S.W.2d 824, no writ; Ballard v. Associates Inv. Co., Tex.Civ.App., 368 S.W.2d 232, writ ref’d n. r. e.; Little v. Employees Security Life Ins. Co., Tex. Civ.App., 343 S.W.2d 517, writ ref’d n. r. e.; White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S.W. 2d 793, no writ.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Dr. Rhea NICHOLS d/b/a Grayson Hotel, Appellant, v. The ACERS COMPANY, Appellee.
    No. 11501.
    Court of Civil Appeals of Texas. Austin.
    May 17, 1967.
    Rehearing Denied June 7, 1967.

      Billings, Pierce, Gilley & Stanton, L. Vance Stanton, Dallas, for appellant.
    Paul Brown, John D. Hill, Sherman, for appellee.
   O’QUINN, Justice.

In this case a Dallas meat company sued for meats delivered to the food operation of the Grayson Hotel in Sherman during the months of July, August, and October, 1964. The suit was filed against Dr. Rhea Nichols, a medical doctor in Dallas, termed sole proprietor of the hotel and “doing business as Grayson Hotel.”

The cause was pleaded as a sworn account, with invoice exhibits attached, and sworn to by R. A. Acers, one of the partners in The Acers Co., who brought the suit.,

Dr. Nichols answered denying that he purchased or agreed to purchase, or agreed to pay for, any of the items specified in the invoices attached to the petition. He further pleaded, in effect, that at the time the purchases were made in July and August he did not own or operate the hotel, and that in the month of October he was the owner but had the hotel leased out. The answer did not deny the claim under oath.

At the outset of the trial, Acers moved for judgment under Rule 185, Vernon’s Ann.Rules Civ.Proc., for the reason that Dr. Nichols had not answered under oath. The court overruled the motion, and the parties proceeded to trial.

At the conclusion of the trial before the district court, without the aid of a jury, the court entered judgment for The Acers Co. in the amount of $1,461.90, for meat sold in the month of October, with interest from November 1, and attorney’s fees for $487.31. Dr. Nichols has perfected appeal to this Court.

Appellant Dr. Nichols assigns two points of error, the first directed at the award of attorney’s fees and the second challenging judgment on the account.

Dr. Nichols bought the Grayson Hotel in July, 1961, with the Merchants and Planters National Bank of Sherman financing the purchase, at least in part. Two years later, in July, 1963, Dr. Nichols sold the hotel to John Gilmartin, subject to the outstanding indebtedness to the original vendor and to the bank.

From July, 1963, when Dr. Nichols sold, until September 1, 1964, the hotel and the restaurant operated in connection with the hotel were managed and operated under Gilmartin. Sometime late in 1963 it appears that Gilmartin placed James E. Smith in charge of the hotel and its food service. About this time Smith started buying meat from The Acers Co., after being solicited by Roy Cobb, salesman for Acers.

Cobb testified that Smith kept the account current until the summer of 1964 when the account ran into trouble. July and August deliveries were not paid for, and later became a part of the sworn account sued on in this lawsuit.

Dr. Nichols reacquired the Grayson Hotel on September 1, 1964, from Gilmartin, and found Smith, whom he had never met before, in charge of the hotel and restaurant, acting for Gilmartin. At the time Dr. Nichols took over from Gilmartin, Smith and Dr. Nichols entered into an arrangement, evidenced by a written memorandum, by which Smith undertook to lease the hotel and restaurant from Dr. Nichols for $2,000 a month, effective the first day of September. The memorandum also recited intention of the parties to continue the lease arrangement or negotiate a sale of the hotel to Smith.

Smith paid the rent for September in advance by check, but the check did not clear the bank and was never paid. Smith continued in charge of the hotel and restaurant through September and until near the end of October, when Dr. Nichols assumed control of the hotel and its food service and put his own manager, Frank Berger, in charge. The last purchase of meat from Acers in October consisted of an order of strip sirloins, in the amount of $317.75, which Smith ordered for a party at the hotel on the night of Friday, October 27.

During the month of October, Smith conferred several times with Dr. Nichols as part of negotiations to buy the hotel. Smith apparently made efforts, without success, to obtain financial backing in the purchase. It appears that sometime during the weekend of October 28-30 Smith decided to give up his operation of the hotel and so advised Fred Holland, president of the bank, and Tip Newell, one of the lienholders.

Dr. Nichols was informed by telephone of Smith’s intentions by Holland and Newell. Dr. Nichols was told that Smith was going to sell the food inventory around town and leave the same day, unless Dr. Nichols agreed to buy the inventory. Through Holland and Newell, Dr. Nichols arranged to buy the food inventory from Smith for the sum of $2,234.82, which included some meat, and bought three stoves for $600.

Appellee filed suit grounded primarily on a sworn account, with nineteen invoices attached. This phase of the lawsuit embraced, in addition to claim of an account directly with Dr. Nichols, alternative claims of an account with an agent for Dr. Nichols, or an account with the agent subsequently ratified by Dr. Nichols.

In addition to the three alternative theories under sworn account, appellee pleaded four other theories of recovery: (1) violation of the Bulk Sales Act, (2) constructive trusteeship of accounts receivable, (3) reliance on promise by appellant’s agent account would be paid, and (4) as third party creditor beneficiary of contract under which appellant acquired accounts receivable and inventory of the hotel.

No findings of fact and conclusions of law were made by the trial court, and apparently none was requested. If there is evidence to support the judgment on any theory of the case, the judgment of the trial court should be affirmed, and every issue raised by the testimony must be resolved in support of the judgment. 4 Tex.Jur.2d, Appeal and Error—Civil, sec. 747, pp. 244-5, and cases cited.

Appellee Acers contends that its suit, being on a sworn account, stood admitted by appellant at the outset of trial through his failure to deny the claim under oath; and that, under the ruling of the trial court, appellant was limited in his defense to proof only of matters in confession and avoidance. We cannot agree with these contentions.

We believe that appellee’s theory of recovery under a sworn account fails and is controlled by the rule stated in McCamant v. Batsell, 59 Tex. 363. Under the facts of this appeal, Acers sold meat to Smith, lessee of the hotel, and not to Dr. Nichols, the owner and lessor of the hotel. In the absence of a relationship between the parties under which Acers sold meat to Dr. Nichols and Dr. Nichols bought the meat, with title passing to Dr. Nichols, resulting in Acers becoming the creditor and Dr. Nichols the debtor in a general course of dealing, suit on a sworn account against Dr. Nichols may be defended without necessity of denying the claim under oath.

In McCamant v. Batsell, supra, Justice Stayton, speaking for the Supreme Court, said:

“It is not believed that a debt which is not the result of a transaction between the parties to it, and in reference to which they have equal means of knowledge, but which is the result of a transaction between one of them and some other person, can constitute such an account as the statute contemplates may be proved by the affidavit of a plaintiff, or as a defendant will be compelled to deny in whole or in part under oath, before he will be permitted to introduce evidence to disprove a prima facie case which the statute contemplates may be made by the affidavit.” 59 Tex. 363, 370-371.

Continuing with this reasoning, Justice Stayton made the point, which is applicable in this case, that:

“The law does not permit, much less encourage, guesswork in swearing; and to require a defendant to swear that a transaction between a plaintiff and a third person, of which he may have no personal knowledge whatever, either did or did not occur in whole or in part, before he will be permitted to controvert the ex parte affidavit of his adversary, would be to encourage swearing without knowledge, which is morally perjury, or in some cases to forego a just defense, which might be clearly established under the well settled rules of evidence.” 59 Tex. 363, 371.

The statute construed (Article 2266, R.S., 1879) in McCamant v. Batsell is a direct forebear of Rule 185 and embodied the same requirements found in the rule. Rule 185 is a rule of procedure regarding evidence necessary to establish a prima facie right of recovery, or defense, and is not a rule of substantive law or the basis for a cause of action. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78, and cases cited.

In following the rule of McCamant v. Batsell, the courts have pointed out that the account, though verified, is hearsay as to parties in the position of appellant in this appeal. Appellant could not be expected to have personal knowledge of transactions between appellee and Smith. This affords the best reason that the verified answer mentioned in Rule 185 is not required. Duree v. Aetna Ins. Co., Tex.Civ.App., Amarillo, 66 S.W.2d 764 (no writ). Inasmuch as appellant was a stranger to the transactions between appellee and Smith, appellant may controvert and disprove the account upon which appellee sued, although appellant did not file a written denial under oath. Eng v. Wheeler, Tex.Civ.App., San Antonio, 302 S.W.2d 263 (writ dism’d); Robertson v. Rexall Drug and Chemical Co., Tex.Civ.App., Fort Worth, 410 S.W.2d 200 (no writ).

Appellee finds fault with the written agreement between Dr. Nichols and Smith, dated September 1, 1964, and argues that it does not constitute a lease. Presumably by this theory appellee expects to make Smith an agent or employee of Dr. Nichols in order to hold Dr. Nichols for the Acers account. The memorandum was admitted in evidence and was before the trial court for whatever probative value it might have in deciding the case. We do not find it necessary to determine whether a legally sufficient written lease of the hotel property resulted from the paper Dr. Nichols and James Smith signed September 1. The writing does serve to disclose the intent of the parties with regard to the question of who would be running the hotel after that date.

We believe it is clear that when Smith agreed to pay Dr. Nichols $2,000 a month for the hotel property, it was not Smith’s understanding or intention that Dr. Nichols would start buying food supplies for the hotel or that Smith would be working for Dr. Nichols. Dr. Nichols testified that he leased the hotel to Smith and that Smith paid the first month’s rent with a check, which later proved worthless, drawn by Smith on the “Smith Hotel Operating Account.”

Dr. Nichols also testified that during the two months Smith was there he made several requests that Smith pay the rent, and Smith put him off until near the end of October, either October 31 or November 1, when Dr. Nichols “installed Mr. Berger into the hotel.” If the memorandum signed September 1 was ambiguous or incomplete, and even if inadequate as an enforceable lease contract, the testimony of Dr. Nichols served to supply explanations and missing parts to show at least that the parties meant their relationship to be that of lessor and lessee and not one of employment or agency.

Consistent with the lease arrangement between Dr. Nichols and Smith is the evidence having to do with the purchase of meat for the hotel. Dr. Nichols testified that he never dealt with anyone from Acers, never ordered any meat, and did not authorize anyone to say that he would be liable for any portion of the charges. Roy Cobb, salesman for Acers, testified that he started selling meat to Smith late in 1963, when Smith was managing the hotel for Gilmartin, and continued selling to Smith during the months of September and October, 1964.

Although Smith let the July and August accounts go unpaid, Cobb testified that in September, after Smith had taken over from Dr. Nichols, Smith paid the meat account for September by check. Cobb testified that after Smith late in 1963 authorized purchases of meat for the hotel from Acers, the specific orders were arranged through Jack Osborne, the chef working for Smith, and Smith paid the bills. This arrangement, with Smith’s chef ordering the meat as needed, and Acers looking to Smith for payment, continued through September and October. Cobb regularly called by telephone every week about meat orders and called personally every other week. Thus he was continually in touch with the operation of the hotel. He testified that Smith continued after September 1 to manage the hotel until Smith left sometime after the last meat order given by Smith on October 27.

There is no evidence that Cobb, acting for Acers, had any dealings with Dr. Nichols. Cobb testified he did not see Frank Berger, the manager Dr. Nichols installed to succeed Smith, until after Smith left and Berger took charge about October 31. At that time all the purchases of meat, sued for on the account for October, were complete, and no new purchases from Acers were made until after November 1, and these Berger paid for in cash.

Appellee relies on the holding in Fairchild, Inc. v. M-P Cotton Felt Co., Tex.Civ.App., Fort Worth, 403 S.W.2d 527 (no writ), and argues that appellee’s case was proved when appellant elected to go to trial without filing a sworn denial. Under the facts of the Fairchild case, plaintiff proceeded with proof of a sworn account, after defendant filed only an unsworn general denial, and offered evidence that the goods were sold to a third party, “ * * * but under arrangements whereby such was to be done upon the credit of the defendant and with the account and charges to he made and carried in the name of the defendant” (Emphasis added). No such arrangement existed in the case at bar, and no claim is made that there was such an arrangement. Clearly, the cases are distinguished through this fundamental difference, and the Fairchild holding is not in point.

There is no evidence that Smith ever acted as the representative of Dr. Nichols. If Smith had been an agent or employee of Dr. Nichols, it does not seem reasonable that he would have offered to sell the food inventory, which as agent or employee he would have known belonged to Dr. Nichols, and it would have been inconsistent with any such relationship for Dr. Nichols to buy the inventory he already owned.

Inasmuch as Cobb dealt only with Smith, or Osborne, Smith’s chef, during September and October, and never with Dr. Nichols, there could have been no ratification by Dr. Nichols of an agent who never existed. Smith and Dr. Nichols obviously regarded their relationship as that of lessor and lessee, or landlord and tenant, and since neither of them was shown to have represented otherwise to anyone else, Acers was not entitled to deal with Smith as an agent of Dr. Nichols in selling meat for use at the hotel. Freiberg, Klein and Co. v. Beach Hotel and Seaside Improvement Company, 63 Tex. 449.

In the Freiberg case, goods had been sold to one Pierce, who “was in the apparent control of the Beach Hotel * * * which belonged to [the Beach Corporation], and these goods were bought by him for use in that hotel.” The sellers sought to prove there was no lease, but that Pierce was agent for the hotel owner. The Supreme Court pointed out that a contract, by which Pierce was to manage the hotel owned by the Corporation and pay rent in the form of a percentage of gross receipts, on its face was a lease, an interpretation “aided and made certain by the fact that it was so treated by the parties thereto.” The Court held that, this being the case, “ * * * third parties could not insist upon a different and unauthorized construction in order to give them a right against one of the parties which was dependent wholly upon the relation which the makers of the agreement bore tpwards each other.” 63 Tex. 449, 454.

We conclude that appellee was not entitled to recover against appellant under any of the three theories advanced under pleadings and evidence relating to the sworn account.

Appellee Acers pleaded the Texas Bulk Sales Act (Article 4001, Vernon’s Ann.Tex. Civ.Stats.) and alleged that by buying the food inventory of the hotel coffee shop appellant became a receiver of the inventory acquired, particularly for the account owed to appellee by the hotel. Appellee did not pray for any relief except award of judgment for the account.

Consideration of whether the Bulk Sales Act is applicable in this case is limited to construction of the law as it read from 1961 to 1966, a period covering all transactions pertinent to this case.

The petition, on the theory of recovery under the Bulk Sales Act, is insufficient to require the trial court to proceed with a remedy under the statute. The petition must contain sufficient specific requests to indicate to the trial court the course the applicant for relief expects the court to follow, with a prayer that the court proceed along the course indicated. Gardner v. Goodner Wholesale Grocery Co., (Tex.Com.App., 1923), 113 Tex. 423, 256 S.W. 911. “To require less,” the Court declared, “would be to substitute the voluntary action of the court for things which the law expects, and requires every litigant to do for himself.”

The Bulk Sales Act, as last amended in 1961, was repealed effective June 30, 1966, when this subject matter was placed in the Uniform Commercial Code, sections 6-102 to 6-106. The language about the transferee becoming a receiver and being accountable to the creditors was not carried over into the Code, but the hope has been expressed by at least one writer on the subject that repeal of the old law without this language will not do away with “the excellent body of remedial law developed in the Texas cases.” University of Texas: Larson, Article 6 of the Uniform Commercial Code: Bulk Transfers, 44 Texas L.Rev. 661, 667 (1966). Among the cases considered by Larson as part of the excellent body of remedial law is Gardner v. Goodner Wholesale Grocery Co., supra.

Prior to 1961 the Bulk Sales Act did not apply to the food inventory of restaurants, being similar to bakeries, ice cream factories, and other businesses buying raw materials for conversion to different form for sale. Daggett v. Wolff, Tex.Civ.App., Fort Worth, 44 S.W.2d 1063 (no writ). The law was amended in 1961 to include “meat and other edible foods furnished to restaurants, cafes, and cafeterias * * *.” The Uniform Commercial Code does not include any phrase concerning restaurants and cafes, and comments of the drafters of the law indicate that restaurants are not covered by the new law, since restaurants fall into the group of businesses selling principally services and not merchandise.

To recover under the Bulk Sales Act, appellee had the burden to show itself clearly within provisions of the law in order to invoke its protection and benefits. This statute is in derogation of the common law and the right to alienate property without restriction, and for this reason should be strictly construed by the courts. Yeager v. Dallas Coffin Co., Tex.Civ.App., San Antonio, 69 S.W.2d 493 (writ dism’d); Axtell Co. v. Word, Tex.Civ.App., Austin, 29 S.W.2d 421 (no writ).

There is no evidence that Dr. Nichols bought any meat that Smith had bought from Acers. The last sale to Smith was on October 27, and it was a special purchase of strip sirloins ($317.75) to be used for a party that night at the hotel. The total purchases from Acers in October amounted to $1,461.90, but Smith was buying from three other meat companies and in October total sales to the hotel by the three other concerns amounted to $1,504.94. Dr. Nichols estimated that about half the food inventory he bought from Smith was meat, but there is no evidence showing whether any part of the meat on hand had been bought from Acers. It is not unreasonable to assume that the supply from Acers may have been exhausted, by Tuesday, October 31, since the special purchase of October 27 presumably was used for the party that night, and the following Tuesday, October 31, was Cobb’s regular day to call on Smith for another weekly order to replenish the supply.

In Yeager v. Dallas Coffin Co., supra, the court made clear the duty of one seeking recovery under the Bulk Sales Act, and said with reference to the evidence required that, “Mere conclusions remotely inferable from isolated bits of testimony * * * do not meet the salutary rule requiring satisfactory evidence that a party has violated a statute so harsh in its restriction of the free right of barter and sale inherent in the citizen.” 69 S.W.2d 493, 494, col. 2.

If the Bulk Sales Act was violated, Acers was not entitled to recover the amount of his entire account for October, but only for the value of his property, if there was any remaining, sold by Smith to Dr. Nichols on October 31 or November 1. Phillips v. Cargill, Tex.Civ.App., El Paso, 131 S.W.2d 775 (no writ), and cases cited 131 S.W.2d 775, 776, col. 2. In the absence of evidence that any meat Acers had furnished was included in the inventory sold, the trial court was powerless to afford appellee any relief on this theory of recovery.

It appears from the record that when Smith left around October 31 he owed Dr. Nichols $2,000 in rent for October. Dr. Nichols as the landlord was also a creditor and remained so, with a preference lien, even if purchase of the inventory contravened the statute and Dr. Nichols became a trustee for all the creditors. Settegast v. Second National Bank, 126 Tex. 330, 87 S.W.2d 1070, 102 A.L.R. 680.

Inasmuch as the last three of the seven theories of recovery pleaded by appellee relate to events beginning with October 31 or November 1, when Dr. Nichols took charge after Smith left, we will discuss these points together. The theories are that: (1) Dr. Nichols was a constructive trustee of the inventory and accounts receivable that Smith left, (2) Dr. Nichols’ manager, Berger, told Acers’ representative that Dr. Nichols would pay the meat account, and (3) appellee is a third party beneficiary of a contract between Smith and Dr. Nichols.

It was shown that on November 1 the hotel accounts receivable totaled $5,103.98 and the accounts payable incurred by Smith during his operations for September and October amounted to $14,611.61, not including taxes for 1963 and 1964 which had not been paid. Adding taxes, the payables amounted to more than $25,600. Dr. Nichols testified he was able to collect a portion of the receivables, but in the emergency of keeping the hotel in operation he was required to pay taxes and utility charges amounting to much more than the total receivables.

Cobb, Acers’ salesman, testified that he first saw Berger, Dr. Nichols’ manager, about noon, Tuesday, October 31, after Smith left. He said that Berger told him accounts receivable amounted to “between sixteen and seventeen thousand dollars,” that every creditor would get his money, and that there were enough accounts receivable to take care of them. Cobb saw Berger next on November 20, and Berger then told Coob that enough money had not been collected to pay Acers. Berger told Cobb that Acers would have to wait and take its chances; that Acers might get paid and might not. Acers continued to sell meat to the hotel, under Berger’s management, on a cash basis.

After an audit was made at the instance of Dr. Nichols, it was learned that the accounts receivable amounted to a little more than $5,100, only a portion of which proved collectible. By putting with these funds his own money, Dr. Nichols paid the back taxes for 1963 and 1964, in the amount of about $11,000, and brought the utility accounts current to prevent discontinuance of these services at the hotel. None of the receivables was used to pay Dr. Nichols his rent and Acers was not paid. It appears that Dr. Nichols did not buy the accounts receivable from Smith and Smith made no assignment of the accounts to Dr. Nichols. The record discloses that Smith left the State upon surrendering the hotel and when last heard of was in West Virginia.

On the question of constructive trust, we conclude there is no evidence of contractual relations between Acers and Dr. Nichols, nor was there a fiduciary relationship, under which the doctrine may be applied. There had been no attempt to create an express trust that had failed for want of some formality, and there is no evidence of fraud or other wrong by Dr. Nichols.

Actual or constructive fraud is an essential element in the creation or existence of a constructive trust. Appellee did not plead or prove fraud, actual or constructive, and there cannot be a recovery on this theory of the case. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158. The law does not impress property, in this case chattels and choses in action, with a constructive trust since the trust is classified as belonging to remedial rather than to substantive law. McCabe v. Cambiano, Tex.Civ.App., Galveston, 212 S.W.2d 237 (no writ). In the McCabe case the court held “The frauds or wrongs for which the courts in the exercise of equitable powers will give relief by impressing a constructive trust, are such for which the courts in the exercise of their legal powers will give damages as compensation.” 212 S.W.2d 237, 240, cols. 1-2.

We do not find facts in the record giving rise to a situation on which the doctrine of constructive trusts is applicable. See: Baylor University: Tigner, Trusts — Constructive — Requirements for Imposition, 25 Baylor L.Rev. 75 (1963), and Texas authorities cited and discussed by Tigner.

In pleading that Dr. Nichols became obligated to pay Acers, growing out of the conversation between Cobb and Berger regarding sufficiency of the accounts receivable to pay all creditors, it appears that appellee sought to recover in promissory estoppel or detrimental reliance. The first conversation occurred October 31, Cobb testified, when Berger expressed what proved to be only his belief that the accounts receivable were adequate to pay Acers and the other creditors. Three weeks later, seemingly after the audit had been made, Berger told Cobb that Acers might or might not get paid because the accounts were inadequate. There is no evidence that Acers agreed to forbear suit, even if Berger’s statement to Cobb on October 31 constituted a promise by Dr. Nichols to pay Acers, a finding we believe cannot be made under the facts. Mere omission to sue, without express agreement to forbear, is not consideration for a promise to pay. Wilkins v. Carter, 84 Tex. 438, 19 S.W. 997; Carter v. Wilkins, Tex.Civ.App., 29 S.W. 1102. See 13 Tex.Jur.2d, Contracts, sec. 54, p. 193.

There is no evidence Acers had threatened suit or “other legal remedies” when Berger expressed the belief that Acers would be paid. Within three weeks Acers knew payment could not be made and that it would have to take a chance on payment.

We conclude there is no support for the theory of recovery on a promise to pay, coupled with an agreement not to sue. We think there was no promise to pay, but if there was one, it was without the necessary consideration of an agreement to forbear suit.

Under appellee’s seventh and final theory of recovery, the claim is made that when Smith sold the food inventory to Dr. Nichols, their contract made Acers a third party creditor beneficiary. We find nothing in the record to indicate that either Smith or Dr. Nichols intended their contract to benefit anyone except the two of them. The burden would be on Acers to show that Dr. Nichols intended the contract to be for the benefit of Acers. It must be presumed that Dr. Nichols and Smith contracted for themselves, and in the absence of clear proof that they intended to benefit Acers, the contract must be construed as not made for the benefit of Acers. Citizens National Bank in Abilene v. Texas and Pac. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003. We find no support for this theory of recovery.

Since we conclude that appellee should not recover on any theory pleaded, and this case should be reversed and rendered, we do not find it necessary to consider appellant’s assignment of error regarding award of attorney’s fees by the trial court. Article 2226, Vernon’s Ann.Tex. Stats., contemplates recovery of attorney’s fees only if the claimant finally obtains judgment, and not for able, though unsuccessful, efforts of his counsel.

The judgment of the district court is reversed and rendered.

Reversed and rendered.


author: PARKER, Justice.

text:
    Ted MUSICK et al., Appellants, v. A. H. BURKHALTER, Appellee.
    No. 6921.
    Court of Civil Appeals of Texas. Beaumont.
    May 11, 1967.
    Ted Musick, Houston, for appellant.
    A. H. Burkhalter, pro se.
   PARKER, Justice.

In the 133rd District Court of Harris County, Texas, a temporary injunction was granted in favor of A. H. Burkhalter against Ted Musick and/or Arch Hollings-worth as trustee for the alleged “Ted Mu-sick Trust” enjoining such defendants from dispossessing Burkhalter and/or interfering in any manner with the present possession of Burkhalter and/or his duly authorized agent and/or agents, tenant and/or tenants occupying a tract of land in Harris County, Texas, providing that said plaintiff Burkhalter shall prior to the issuance of such writ of temporary injunction file with the clerk a bond executed by him in the sum of $20,000 payable to defendant Ted Musick, individually, and Arch Holl-ingsworth, as trustee for the Ted Musick Trust. Such bond was not made. Such order was entered January 6, 1967. Ted Musick has appealed.

Plaintiff Burkhalter prayed judgment for title to realty, alleging he acquired title by deed dated June 30rd, 1966, from Clayton O’Quinn. The deed in evidence is dated June 30, 1966. In evidence is a deed of trust dated November 22, 1965 filed for record December 1, 1965, in the office of the county clerk of Harris County, in which Clayton O’Quinn conveyed this land to Ted Musick, trustee for the use and benefit of “Ted Musick Trust” securing the payment of certain indebtedness owed by Clayton O’Quinn. Such deed of trust contained the usual powers of sale in case of default.

Burkhalter alleges:

“IV. That on or about the 30th day of December, 1966, under Cause Number 714,201, styled Arch Hollingsworth, Trustee, et al vs. Clayton O’Quinn, filed in the 151st Judicial District Court of Harris County, Texas, the Defendant, Ted Musick, on behalf of himself and the alleged Ted Musick Trust, did secure a writ of possession based on a summary judgment rendered in said cause in which the aforesaid Clayton O’Quinn was the sole Defendant and in which said cause of action your Plaintiff was not made a party and of which cause of action he had no knowledge. Your Plaintiff would show that such judgment as rendered in said cause on or about the 21st day of November, 1966, purports to grant title and possession to said Arch Hollings-worth, Trustee of the Ted Musick Trust, and is based on an alleged Trustee’s Deed made pursuant to foreclosure proceedings instituted by the Defendant, Ted Musick, said Trustee’s Deed not being placed of record until August 15th, 1966, although dated March 1st, 1966.”
“VI. That said alleged foreclosure sale by which the alleged ‘Ted Musick Trust’ received an alleged Trustee’s Deed dated March 1st, 1966, executed by Ted Musick, Trustee, was and is based upon a spurious, false and fraudulent deed of trust and no notice of said foreclosure sale was given to this Plaintiff and no notice of the above litigation was given to this Plaintiff and it is hereby alleged that Ted Musick and/or the Ted Musick Trust acquired no title to said property by reason of said litigation. Your Plaintiff would further show that a writ of possession now in the hands of Constable Walter Rankin of Precinct-, Harris County, Texas, and/or his deputy constables has been issued pursuant to said judgment aforesaid and unless said constables, Ted Musick and/or Arch Hol-lingsworth, alleged Trustee of the Ted Musick Trust are restrained and enjoined irreparable harm and damage will be done to your Plaintiff by ousting him and his tenant, Clayton O’Quinn, from possession. Your Plaintiff would show that in this connection, there is a going horse training business now being conducted on said premises and that such writ of possession if allowed to become effective will seriously undermine, hamper and for all practical purposes close said business to the detriment of your Plaintiff herein unless restraining order against said officers be issued at once, and at a time affixed by the Court for hearing a temporary injunction issued restraining said officials from ousting your Plaintiff from possession.
“WHEREFORE, premises considered, your Plaintiff respectfully prays that the Defendants be cited to appear and answer herein, and upon final hearing hereof, your Plaintiff prays for judgment for title to this property, and because of matters alleged hereinabove, that a restraining order issue enjoining and restraining the Defendants and/or any peace officer within the jurisdiction of this court from enforcing said alleged writ of possession, after due notice and hearing, your Plaintiff prays for a temporary injunction until final hearing, for his costs and for such other and further relief, both at law or in equity, to which he may show himself justly entitled.”

The allegations in such petition were verified.

The sworn answer of Ted Musick, individually, is as follows:

“This Honorable 125th Judicial District Court does not have the jurisdiction to set aside a final judgment and order that never has been appealed from or never has been attacked of the 151st Judicial District Court. The Courts having equal jurisdiction. The 125th Judicial District Court is therefore not the appellate court for the 151st Judicial District Court. Honorable John Compton in the 151st Judicial District Court on the 21st day of November, 1966, signed a judgment in Cause No. 714,201, styled Arch Hollings-worth, Trustee, et al vs. Clayton O’Quinn, together with direction for execution by way of possession orders to the Clerk, Sheriff and Constable. This judgment has not been appealed from or attacked in any manner and is final. Therefore, this Court has no jurisdiction in this matter.
“If further -answer is necessary, this Defendant respectfully shows this Honorable Court that on the fact of Plaintiff’s pleadings, if he had any lien or title to this land, it was secondary to the lien that was foreclosed on in the above styled and numbered cause, and therefore, he would take if anything under Clayton O’Quinn, whom the previous judgment foreclosed on. Therefore, any title that he would have would be subject to the claim for Clayton O’Quinn.
“If further answer is necessary, this Defendant respectfully shows this Court that this is not a matter for injunctive relief. That the Plaintiff has shown no possession, and that it is a matter which would be subject to damages after final judgment, if such is had. Therefore, no injunctive relief lies.
“If further answer is necessary, this Defendant advises the Court that he has only appeared as attorney and as Trustee for the sale, and he has only represented the Trustees of the Ted Musick Trust in the capacity of the lawyer and appeared as next friend on behalf of his minor children, and that he has no individual personal interest in this matter.
“Defendant generally denies each and every, all and singular, the allegations contained in Plaintiff’s original petition, and demands strict proof thereof.”

Appellant’s point of error 3 is as follows:

“3. The Trial Court erred and abused his discretionary power in taking jurisdiction of Arch Hollingsworth, Trustee, Constable Rankin and all deputy constables, and through Arch Hollingsworth, Trustee the beneficiaries of the Ted Musick Trust, without service of citation, without appearance in Court, without representation in Court, without appointment of ad litem attorneys for the minors involved, and without service of certified copy of the injunction on him or any one of the Defendants or the beneficiaries of the Trust.”

which will be considered with appellant’s point of error 7, Subdivision (a) contending the trial court erred in finding as a fact that Ted Musick was in fact the alter ego of the Ted Musick Trust and Subdivision (e) of point of error 7 where appellant urges the trial court erred in finding as a fact the trustee’s deed to Arch Hollingsworth was null and void and of no force and effect. Rule 681, Texas Rules of Civil Procedure provides: “No temporary injunction shall be issued without notice to the adverse party.” Rule 683, T.R.C.P., provides:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

Rule 686, T.R.C.P., provides for a hearing upon an application for a temporary injunction.

The transcript and statement of facts do not show that Arch Hollingsworth, trustee of the Ted Musick Trust, was served with citation or that he appeared in any manner in this proceeding. Plaintiff Burkhalter sued Ted Musick, individually, and Arch Hollingsworth, as trustee of the Ted Musick Trust. There is no evidence that Ted Mu-sick is in fact the alter ego of Ted Musick Trust as found to be a fact by the trial court and stated in the temporary injunction order that such finding of fact is a basis for the order granting thereof on January 6, 1967. From the evidence and the pleadings, it appears that Burkhalter under the common source of title has no title to the land. Neither does Ted Musick, individually, or in any capacity. The trial court could not acquire jurisdiction of Arch Hollingsworth in his capacity as trustee of the Ted Musick Trust unless the Ted Musick Trust was simply another name for Ted Musick. There is no evidence that Ted Musick has any interest in or authority over such trust. Neither is there any evidence that the trustee’s sale to the Ted Musick Trust under the deed of trust was null and void and of no force and effect.

The trial court considered the pleadings in the instant case as to the summary judgment entered in Cause No. 714,201 in another district court of Harris County, Texas, to-wit: the 151st Judicial District Court. Such judgment and judgment roll is not in evidence.

There are instruments in evidence that conclusively contradict some of the allegations in plaintiff’s petition a? hereinafter set forth. The allegation that the trustee’s deed was not placed of record until August 15, 1966 is not borne out by the trustee’s deed itself, which shows that it was not only dated March 1, 1966, but was filed for record in the office of the county clerk on the same day, March 1, 1966. Before Burkhalter obtained the deed from Clayton O’Quinn on June 3, 1966, the deed of trust of November 22, 1965, filed for record December 1, 1965 had been foreclosed with the title being transferred to “Ted Musick Trust” on March 1, 1966, with the trustee’s deed having been filed for record in the office of the county clerk on the same day. Burkhalter acquired no title of any kind by the deed from Clayton O’Quinn dated June 3, 1966. Under Arts. 6631, 6646, Vernon’s Ann.Civ.St., Burk-halter had constructive notice of the deed of trust and the trustee’s sale thereunder before he obtained any deed from O’Quinn. In Hampshire v. Greeves, 104 Tex. 620, 143 S.W. 147, 150, it was held:

“The right of sale given in a mortgage is a valuable right acquired by contract inuring to the mortgagee, and cannot be impaired by any subsequent act of the mortgagor with regard to such property.”

Also, in such opinion it was held that the law imposes no duty upon a person holding a prior mortgage or deed of trust to notify the holder of a similar subsequent or junior lien or encumbrance on the same property of his intention to sell the property under his mortgage or deed of trust. No notice of the trustee’s sale was required to be given to Burkhalter. When the sale was made, Ted Musick Trust acquired the title without any claim that could be asserted by Burkhalter as against it as the purchaser at the sale.

Under similar facts a summary judgment was upheld in the case of Ted Musick v. Benjamin Franklin Savings & Loan Ass’n, 367 S.W.2d 209 (Tex.Civ.App.1963, n. w. h.). See Hampshire v. Greeves, supra; Texas Co. v. Tucker, (Tex.Civ.App., writ ref’d) 129 S.W.2d 762, 767.

In the instant case all the pleadings agree the summary judgment in Cause No. 714,201 dated November 22, 1966, is a final judgment with no appeal taken therefrom. The judgment is not in evidence. According to the pleadings, it is valid on its face. There is no attempt to set such summary judgment aside. Under such circumstances, the district court of Harris County, Texas, 133rd Judicial District, cannot enjoin process issued under a valid judgment entered by the 151st Judicial District Court of Texas. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Darlington v. Allison, (Tex.Civ.App.1928, wr. dism’d) 12 S.W.2d 839. Appellant is correct in his contention stated in his 2nd point of error:

“The Honorable Trial Court erred and abused his discretionary power in stopping a formal order of possession based on final judgment out of the 151st Judicial District Court, a court of equal jurisdiction, * * * ”

Sustaining appellant’s points of error discussed, this cause is reversed and the temporary injunction granted by the trial court is dissolved.


author: MOORE, Justice.

text:
    W. R. LEGGITT, Clerk, Appellant, v. Harold NESBITT, Appellee.
    No. 284.
    Court of Civil Appeals of Texas. Tyler.
    May 11, 1967.

      Hollie G. McClain, Gilmer, W. C. Hancock, Pittsburg, for appellant.
    Marcus Vascocu, Longview, for appellee.
   MOORE, Justice.

This proceeding was brought by appellee, Harold Nesbitt, for a writ of mandamus commanding appellant, W. R. Leggitt, in his official capacity as acting City Clerk of the City of Gladewater, to file and certify to the governing body of the City as sufficient under the provisions of the City’s Charter a petition filed by appellee Nesbitt and others, requesting the recall of three councilmen, to-wit: F. Ames Lawrence, B. P. Dake and M. A. “Mel” Pyeatt, from their offices as City Councilmen of the City of Gladewater.

In a trial before the court, without a jury, the trial judge concluded that the recall petition presented to appellant, W. R. Leg-gitt, while acting as City Clerk, was good and sufficient and that it had been filed in compliance with the City’s Charter. Based upon these conclusions of law, the trial court rendered judgment ordering that a writ of mandamus be issued directing appellant Nesbitt to certify to the City Commission of Gladewater that the recall petition filed by appellee was sufficient.

The trial court prepared and caused to be filed his findings of fact and conclusions of law, in which he found, among other things, that appellee Nesbitt was a qualified voter of the City of Gladewater and was one of the signers of the petition; that the original petition filed for a recall election was signed by Nesbitt and 390 qualified voters; that on May 3, 1966, the petition was presented to H. I. McAfee, who was then serving as City Clerk; that Mc-Afee refused to certify the petition to the City Council because of the lack of sufficient signers; that thereafter, an amended petition was filed on May 20, 1966, containing additional signatures; that the subsequent petition was submitted to appellant, W. R. Leggitt, who was then acting as City Clerk in the absence of Mr. McAfee; that Leggitt refused to certify the petition to the City Council on the ground that the petition lacked a sufficient number of signers; that appellee Nesbitt held no official position, with the City at the time of the presentation of the petition, but was an unsuccessful candidate for the office of City Councilman in the preceding election. The court further found that at the time this cause finally went to trial, as well as at the time of the entry of the judgment, W. R. Leggitt was not serving as City Clerk of the City of Gladewater.

The undisputed facts show that for many years prior to the time this controversy arose, H. I. McAfee had occupied the office of City Clerk of the City of Glade-water; however, on May 15, 1966, for some reason not made clear by the evidence, he was either discharged from his duties or was given a leave of absence and appellant, W. R. Leggitt, was employed by the City Council as acting City Clerk on May 15th, in which capacity he served until June 15, 1966, when Mr. McAfee returned and resumed the duties as City Clerk.

The Charter of the City of Gladewater provides that any or all members of the City Council may be recalled and removed from office by the electors qualified to vote for a successor of such incumbent by the following procedure:

“A petition signed by qualified voters entitled to vote for a successor to such member sought to be removed equal in number to 25% of the entire number of persons entitled to vote in said city as appears from the poll tax rolls of Gregg County for the year ending the 31st of January next preceding demanding the recall of the Mayor or any Councilman, shall be filed with the City Clerk. Such petition shall contain a general statement of the ground for which removal is sought. The signatures to the petition need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers to each paper shall make oath before an officer competent to administer oaths that each signature is that of the person whose name it purports to be. Within ten (10) days from the filing of such petitiofi the City Clerk shall examine the same and from the list of qualified voters, ascertain whether or not the petition is signed by the requisite number of qualified voters, and if requested to do so, the council shall allow him extra help for the purpose. He shall attach to each petition a certificate showing the results of such examination. If by the City Clerk’s certificate the petition is shown to be insufficient, it may be amended within ten (10) days from the date of such certificate by obtaining additional signatures. The City Clerk shall within ten (10) days after such amendment is filed, in case one is filed with him, make examination of the said amended petition and if his certificate shall show same to be insufficient, shall be returned to the persons filing same and shall not be subject to amendment.
“If the petition be found sufficient, the City Clerk shall submit the same to the Council without delay and the Council in the event the Mayor or Councilman named in said petition fails to resign, shall order and fix a date for holding the said election * *

The Charter further provides that should the Council fail or refuse to order an election, the District Court, upon proper application being made therefor, may order such election and enforce the carrying into effect of the provisions of the recall provisions of the Charter.

Appellant, W. R. Leggitt, perfected this appeal and has assigned six points of error seeking a reversal of the judgment. By his first point of error, he contends that the trial court erred in overruling his plea in abatement. In this connection, he contends that appellee Nesbitt is not a proper party to bring this suit because he is not shown to have had a justiciable interest in the subject matter of the litigation in that his interest in the recall election was no different from that of any other private citizen and therefore he had no right to bring a suit for mandamus without the joinder of the State of Texas acting through its proper officers. We have concluded that this contention must be overruled.

The general rule is that where a specified number of voters is given the right to demand an election by petition, one or more of the petitioners may apply for, and in a proper case obtain, a writ of mandamus to compel the calling of the election. 37 Tex.Jur.2d, Sec. 90, page 740.

It has been specifically held that where a City Charter confers a right upon the qualified electors to petition the City Council for a recall election, a signer of the petition has a justiciable interest in the subject matter of the litigation and is therefore a proper party for the purpose of compelling the governing body of the city to call an election. Boynton v. Brown, (Tex.Civ.App.) 164 S.W. 893; City of De Leon v. Fincher, (Tex.Civ.App.) 344 S.W.2d 743.

A signer of the petition would likewise have a justiciable interest in a suit against the City Clerk for the purpose of compelling him to submit the recall petition to the City Council. Vetters v. State, (Tex.Civ.App.) 255 S.W.2d 588.

The case of Yett v. Cook, 115 Tex. 205, 281 S.W. 837, relied upon by appellant is not in point. In that case the provision of the City Charter granting the voters the right to petition for a recall election had been repealed. The court concluded that since there was no statute or provision in the City Charter granting the right of a recall election, the signer of the recall petition had no justiciable interest which was any different from that of any other private citizen, and therefore was not a proper party to the suit in the absence of a joinder by the State acting through its authorized officials.

By the second, third and fourth points of error, appellant asserts that the trial court erred in granting the application for mandamus because neither at the time of the trial nor at the time of the judgment was he the City Clerk or the acting City Clerk and therefore the trial court did not have any authority to compel him to perform the duties of the City Clerk, from which office he had resigned.

As stated before, the trial court found from the undisputed evidence that appellant was appointed acting City Clerk from May 15th through June 15th, 1966, while the regular City Clerk, H. I. McAfee, was on leave of absence. Although the suit for mandamus was filed on June 2, 1966, while appellant was serving in his official capacity as acting City Clerk, he resigned the position on June 15th, when Mr. McAfee returned and assumed the duties of City Clerk. Notwithstanding this fact, on June 24, 1966, appellee filed his first amended petition on which he went to trial, alleging that appellant was then the acting City Clerk. It was undisputed, however, that on said date appellant was no longer serving in that capacity and H. I. McAfee was serving as City Clerk. McAfee was not made a party defendant, nor did appellee allege in his amended petition that Mr. Mc-Afee had refused to certify as to the sufficiency of the petition or that he had been requested to do so.

Trial was not commenced until July 14, 1966. The judgment which was entered on October 6, 1966, recited in part as follows:

“It is therefore the ORDER, JUDGMENT and DECREE of the Court that the Clerk of this Court issue a Writ of Mandamus directing Defendant, W. R. Leggitt, to certify to the City Council of the City of Gladewater that the petition for recall submitted to him as City Clerk on the 20th day of May, 1966, is sufficient.”

In 37 Tex.Jur.2d, Sec. 86, page 734, it is said:

“A suit for mandamus to compel an officer to perform a personal duty abates on his death or retirement and will be dismissed, in the absence of a statute permitting the substitution of his successor. * * * ff

In the case of Carpenter v. Kone, 54 Tex.Civ.App. 264, 118 S.W. 203, one of the questions involved was whether or not a suit for mandamus abated on the retirement of the office holder. In concluding that it did, the court held that the office of a writ of mandamus against an officer is to compel the performance of a personal duty resting upon the person to whom the writ is sent and on the death or retirement from office of the original defendant, the writ must abate in the absence of any statutory provisions to the contrary. 102 A.L.R. 947.

The reason for the rule was discussed in the opinion of the United States Supreme Court in the case of United States v. Boutwell, 17 Wall. 604, 84 U.S. 604, 21 L.Ed. 721, wherein the court said:

“The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But, no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. * * *
“It necessarily follows from this that on the death or retirement from office of the original defendant, the writ must abate in the absence of any statutory provision to the contrary. When the personal duty exists only so long as the office is held, the court cannot compel the defendant to perform after his power to perform has ceased. * * * ”

Thus, upon appellant’s retirement from office, he was no longer obligated or authorized to perform the duties of City Clerk. His right, as well as his duty to perform the functions of that office, existed only so long as the office was held by him. For this reason, we think the trial court was without authority to compel appellant to perform duties of that office after his power and obligation had ceased. Peck v. Murphy & Bolanz, (Tex.Civ.App.) 175 S.W. 1078.

Appellee argues, however, that if we hold that a suit for mandamus is to be abated by reason of resignation or retirement of the City Clerk, the City Council could always prevent a recall election by merely discharging the City Clerk, especially while the suit for mandamus was pending on appeal. We find ourselves unable to agree with this conclusion. Appellee seems to have overlooked the provisions of Rule 358, Texas Rules of Civil Procedure, providing for a substitution of parties in the event of death or resignation pending appeal. Of course, when either resignation or retirement occurs prior to final judgment, as in this instance, the successor in office, upon his refusal to certify the petition as sufficient, could then be made a party to the proceedings. State of Texas v. Olsen, 163 Tex. 449, 360 S.W.2d 402.

As pointed out before, appellee never requested the successor Clerk, H. I. McAfee, to certify as to the sufficiency of the petition, nor did he attempt to make him a party to the suit. It is elementary that this court has no authority to order a substitution of the parties.

In view of the conclusion which we have reached, the remaining points of error become immaterial and discussion thereof will be deferred.

The suit for mandamus against appellant having abated and appellee having failed to request and secure a substitution of the parties in the court below, we have no alternative other than dismiss the proceedings. The judgment of the trial court will therefore be reversed and the cause dismissed.


author: BARROW, Chief Justice.

text:
    CITY OF LA GRULLA et al., Appellants, v. Honorable M. J. RODRIGUEZ, County Judge et al., Appellees.
    No. 14588.
    Court of Civil Appeals of Texas. San Antonio.
    May 10, 1967.
    Rehearing Denied June 7, 1967.
    Hill, King & McKeithan, Mission, for appellants.
    F. R. Nye, Jr., Glenn H. Ramey, Rio Grande City, for appellees.
   BARROW, Chief Justice.

A statutory election contest. Appellants, City of La Grulla, the Mayor and Commissioners, individually and in their official capacities, filed this proceeding against the County Judge and County Attorney of Starr County, to contest the official result of the election abolishing the City of La Grulla.

La Grulla was duly incorporated on March 30, 1965, as a general law city, pursuant to Arts. 1154 et seq., Vernon’s Ann. Civ.St. On May 25, 1966, this Court held that a “Citizens Election” was void and declared that appellant Commissioners were the duly elected commissioners. See Castillo v. State ex rel. Saenz, Tex.Civ.App., 404 S.W.2d 97, no writ. On June 8, 1966, a petition requesting a dissolution election, signed by 120 residents who owned taxable property in said City, was filed with appellee County Judge, pursuant to Arts. 1241 et seq., Vernon’s Ann.Civ.St. This petition was granted on the same date and the election ordered to be held on July 19, 1966. The Sheriff of Starr County was directed to publish said order and notice of election in the Rio Grande Herald, at least 30 days prior to the date fixed for said election and to post copies of the order and notice of election in three public places within the City at least 30 days prior to said date. The certificate of the publisher of the designated newspaper was introduced to show publication of the order and notice of election.

The County Judge, in his order calling the election, restricted the voters to: “All persons who reside in the City of La Grulla and who are legally qualified voters of the State of Texas, Starr County and said City of La Grulla and who own taxable property located within said City of La Grulla * * This was in substantial compliance with Art. 1243, Vernon’s Ann.Civ.St., inasmuch as the City had never levied any tax and had no assessment roll at that time. This same restriction was set forth in the notice published in the newspaper. The official result of the election was that the City was abolished by a vote of 215 to 166.

This statutory election contest was duly filed and, after a hearing, judgment was entered that contestants take nothing by said suit and contest. An appeal has been perfected wherein appellant contestants assert four points.

Under their first two points, appellants urge that Art. 1243, supra, is unconstitutional, insofar as it requires that voters in city dissolution elections be resident property taxpayers, particularly as to Art. VI, §§ 2, 3 and 3a, of the Texas Constitution, Vernon’s Ann.St. The qualifications of electors are prescribed by Art. VI, § 2, and property ownership is not enumerated. Sec. 3 provides that all qualified electors of the State, possessing the required residence, shall have the right to vote for elective officers of a city or town, but in all elections to determine expenditure of money or assumption of debt only those shall be qualified to vote who pay taxes on property in said city. Sec. 3a, added in 1932, applies to any county, or political subdivision of the State or county, or district, including towns, villages or municipal corporations, and provides that only qualified electors owning taxable property within said subdivision, etc., who have duly rendered same for taxation, shall be entitled to vote in an election for the purpose of issuing bonds or making expenditures.

In Bonham v. Fuchs, Tex.Civ.App., 228 S.W. 1112, writ ref’d, the Galveston Court held that this challenged requirement of Art. 1243 (1079) did not violate the State Constitution. It must be recognized that refusal of the writ by the Supreme Court in 1921 did not have the connotation of approving the principles of law declared by the Court of Civil Appeals’ opinion, but of approving the result reached. National Linen Service Corp. v. Summers, Tex.Civ.App., 251 S.W.2d 795, 796, writ ref’d n. r. e.; 12 Texas Bar Journal 547, 574. Although this provision of Art. 1243, supra, was involved subsequently in two other election contest cases, the constitutionality of same was not challenged or discussed in either case. Polk v. Vance, 150 Tex. 586, 243 S.W.2d 829 (1951); Franklin v. Wilson, Tex.Civ.App., 242 S.W.2d 820, mandamus overruled.

It is our opinion that recent decisions of the Supreme Court have impliedly overruled Bonham v. Fuchs, supra, and limited the qualifications of electors to those set forth in Art. VI, Sec. 2 of the Constitution, unless the election involves expenditure of money, assumption of debt, issuing bonds or lending of credit.

In King v. Carlton Independent School Dist., 156 Tex. 365, 295 S.W.2d 408 (1956), it was held that a qualified elector, as defined by Art. VI, Sec. 2 is entitled to vote in any election other than one for which additional qualifications are prescribed by some other provision of the Constitution, and that the Legislature could not limit voters to resident owners of taxable property which had been rendered on tax rolls where the election was not one to levy taxes, expend money or issue bonds.

In Sweeny Hospital Dist. v. Carr, 378 S.W.2d 40 (Tex.1964), the Supreme Court said that when the phrase “qualified property tax paying electors” is used in a statute to define a class of voters in elections for purposes other than those set out in Sec. 3a, Art. VI, the words “property tax paying” shall be disregarded as violative of Sec. 2, Art. VI, and the orders and notices of elections should omit the words “property tax paying.” See also Richter v. Martin, Tex. Civ.App., 337 S.W.2d 134, rev’d, other grounds, 161 Tex. 323, 342 S.W.2d 1 (1960); Snelson v. Murray, Tex.Civ.App., 252 S.W.2d 720, writ ref’d n. r. e.; Tex.Atty.Gen. Op. No. C-369 (1964).

All persons qualified under Art. VI, Sec. 2 of the Texas Constitution were eligible to vote at this dissolution election and the County Judge erred in restricting the electors to those who owned taxable property in said City. Contestees urge by counter-point that contestants failed to demonstrate harm by this error so as to void the election.

Contestants pleaded that more than a sufficient number of voters necessary to change the result were prevented from voting or attemping to do so by this erroneous requirement. However, neither of the two witnesses who testified at the trial gave any testimony relevant to this allegation. It was stipulated that the population of La Grulla, which did not vary much, was about 2000 in July, 1966, and was about the same in 1965. The order declaring results of the incorporation election held March 20, 1965, was introduced, and shows that incorporation carried by a vote of 250 to 239. From our prior opinion in Castillo v. State ex rel. Saenz, supra, it is seen that 94 votes were cast at the “Citizens Election” on April 6, 1965, and 259 votes were cast at the election on June 5, 1965. The record in that case demonstrates, however, that the April election was participated in primarily by members of the “old party” and the June election, by members of the “new party” in Starr County. There was no evidence of the number of qualified electors in July, 1966, no evidence as to how many, if any, did not own property in La Grulla, and no evidence that anyone was denied the right to vote at the dissolution election because he did not own taxable property in said City.

The burden of proof in an election contest rests upon the contestant. State ex rel. Lukovich v. Johnston, 150 Tex. 174, 238 S.W.2d 957 (1951); Solis v. Martinez, Tex.Civ.App., 264 S.W.2d 956, writ dism. The test for holding an election void is set forth in Art. 9.15, Election Code, Vernon’s Ann. Civ.St., substantially as follows: If it appears on the trial of any contest that it is impossible to ascertain the true result of the election, or should it appear from the evidence that such a number of legal voters were, by the officers or managers of the election, denied the privilege of voting as, had they been allowed to vote, would have materially changed the result, the court shall adjudge such election void.

This test was applied by this Court in City of Roma v. Gonzalez, Tex.Civ.App., 397 S.W.2d 943, writ ref’d n. r. e. We there cited with approval Minthorn v. Hale, Tex.Civ.App., 372 S.W.2d 752, no writ, which is somewhat similar to the case at bar. In Minthorn, contestants urged that the election was void because the public notice limited voting to duly qualified resident electors who owned taxable property which had been duly rendered for taxes and this was improper in that no one had rendered his property for taxes. In rejecting this contest, the Court said: “It is not contended in the present case that those who voted were not actually property owning citizens within the bounds of the City of Daisetta, or otherwise not qualified.” The Court held that contestants did not discharge their burden and prove the irregularity complained of affected or changed the result of the election. See also: Royalty v. Nicholson, Tex.Civ.App., 411 S.W.2d 565, no writ; Baker v. Scranton Independent School Dist., Tex.Civ.App., 287 S.W.2d 210, no writ; Stafford v. Stegle, Tex.Civ.App., 271 S.W.2d 833, no writ.

In McCrary on Elections, 4th Ed., § 235, it is said :

“It sometimes happens that the officers of election, though acting in good faith, commit errors which will vitiate the election. Thus, if they have adopted an erroneous rule in regard to the qualifications of voters, by which legal votes were excluded, or illegal votes admitted, in numbers sufficient to change or to render doubtful the result, the election is void, unless there is proof upon which the poll can be purged of illegal votes and the true result shown. And in such a case, if the erroneous rule affects a class of voters, and it has become generally known to the persons who are excluded by it, they may submit to it, without waiving any rights, although they do not present themselves at the polls and offer their ballots. They have the right to take notice of the decision of the board in other cases precisely like their own.” (Emphasis added.)

Contestants rely upon this Court’s opinion in Richter v. Martin, supra, wherein the election was voided because only qualified property owners were permitted to vote at an election and the election was unconstitutionally closed to other qualified voters. This opinion was reversed by the Supreme Court on other grounds. It is seen that no question was raised in Richter as to the sufficiency of the evidence. This is pointed out in the initial paragraph of the Court’s opinion, wherein it is said: “The case was submitted to the court and tried on pleadings and agreements without objections, and the parties have joined issue upon this controlling constitutional matter.”

We hold that appellants, as contestants, had the burden of introducing evidence to show that the election officials restricted the voting in this election to qualified property owners and that there were sufficient voters otherwise qualified under Art. VI, § 2, of the Texas Constitution, who were not property owners in said City to have affected the result of the election. Here there is no evidence that any qualified voter was excluded, nor is there evidence of the number of non-property owners in said City who were otherwise qualified to vote in this election. Contestants therefore failed to meet their burden of proof.

Under their third point, contestants urge that this special election was void because the order and notice imposed an illegal requirement that voters own taxable property within the City. We have heretofore held that contestants failed to meet their burden of proof insofar as the exclusion of any qualified voter is concerned. It is not asserted that the order or notice was not otherwise in substantial compliance with the statutory requirements. Cf. Countz v. Mitchell, Comm.App., Opinion Adopted, 120 Tex. 324, 38 S.W.2d 770 (1931); Christy v. Williams, Tex.Civ.App., 292 S.W.2d 348, dism’d w. o. j., 156 Tex. 555, 298 S.W.2d 565 (1957); Turner v. Lewie, Tex.Civ.App., 201 S.W.2d 86, writ dism’d. This point is without merit.

Appellants’ final point urges that due process was denied by the County Judge in ordering this election (a) without a public hearing; (b) without prior notice to the governing body, and (c) at a time when seventy-five per cent of the voting population was absent from the county as migratory workers. The order calling the election is signed on the same date as presented and the County Attorney testified that “to his knowledge” there was no public hearing held. The statute does not provide for a hearing, and there is no question raised regarding the sufficiency of the petition presented to the County Judge or the facts contained therein. Cf. Ellis v. State, Tex.Civ.App., 383 S.W.2d 635, no writ. Nor does the statute require notice to the governing body of the City before action by the County Judge.

It is urged that the County Judge’s action in promptly calling this election was arbitrary and capricious in that, as shown by the testimony of appellant Mayor, three-fourths of the population of La Grulla are migrant workers who start leaving La Grul-la in January or February of each year and do not return until about November. By way of comparison, appellants point out that it took nearly two years to get the County Judge to call the incorporation election appellants had duly requested in the first instance. Provision was made for absentee voting and although the case was tried on November 14, 1966, there was no testimony that any voter was deprived of the opportunity to vote. There were no charges of fraud, misconduct or illegality in the conduct of this election. Other than the obvious hostility between the rival political parties, as shown by the two records before us involving the City of La Grulla, there is nothing to demonstrate any abuse of discretion in promptly calling the dissolution election. We cannot say from this record that due process has been denied contestants.

The judgment is affirmed.