author: WILSON, Justice.

text:
    Albert E. CASTO, Appellant, v. Betty JOHNSON, Appellee.
    No. 4375.
    Court of Civil Appeals of Texas. Waco.
    July 1, 1965.
    Rehearing Denied July 22, 1965.

      Bradley & Green, F. B. Kimbell, James L. Bradley, Groesbeck, for appellant.
    Carl Cannon, Joe Cannon, Groesbeck, for appellee.
   WILSON, Justice.

Appellee’s petition in this divorce case alleged that a house and lot leased by husband and wife for 99 years was community property and was the homestead of the spouses, and prayed that the husband’s attempted sale and transfer thereof without the appellee wife’s joinder in contravention of Art. 4618, Vernon’s Ann.Civ.St. be declared void. The purchaser-assignee, Casto, was joined as a party. The judgment decreed a divorce, adjudicated custody of children and provided for their support. No attack is made on this portion of the judgment, which we sever and affirm. The court found the property in question was the homestead of the spouses at the time of the attempted transfer of the lease, declared the transfer to be void and set aside the property for the use of the wife so long as she lived and did not remarry. Only the transferee, Casto, appeals. We reverse this severed portion of the judgment and remand.

Nine of appellant’s 14 points attack the trial court’s determination of the homestead nature of the property.

Appellee and her husband leased a lake site from a municipal water supply district for 99 years, and built a house on it, which they occupied with their children as their home. After the spouses separated rental payments became delinquent. There is evidence as follows: The husband then began negotiations for sale of the lease to appellant Casto, but appellee refused to agree to the sale. The husband took the children to Houston, where he worked, living in a rented apartment, taking their car and truck, and leaving her without transportation. Appellee thereupon moved to Mexia, eleven miles from the lake home, where she got a job and lived in a hotel for six or eight weeks, leaving most of her clothes and the furnishings in the lake home. Thereafter she rented an apartment for three months. The husband then moved from Houston to Coolidge where he lived for five or six weeks in a rented house. He then returned the children to appellee, stating he was unable to keep them, and taking appellee and the children to the Coolidge rent house, where he moved first to his mother’s home and then to Waco. Appellee testified that at all times the lake property “was my home.” There is no evidence of probative force that any other homestead was acquired.

After these events the husband wrote the water supply district that he had “assigned all of my right, title and interest in and to” the lease to Casto. Casto, after consulting an attorney, signed the latter notice, “accepted”, paying approximately $800 consideration. The manager of the district testified the husband did “surrender” the lease. The district practice was that where an existing lease was recorded, a new lease agreement was executed upon transfer. The district and Casto executed a new lease agreement on the district’s standard form.

Appellant contends the evidence establishes the husband “surrendered” the lease for default in rental payments, that husband and wife abandoned their homestead and acquired a new one, that the husband designated another homestead, that appellee acquiesced in the sale of the lease, and accepted benefits from the sale so as to be estopped to assert homestead rights. The evidence establishes none of these contentions conclusively, and it is adequate to support the express and implied findings of the trial court concerning appellee’s homestead rights.

Appellant himself presents a point asserting the transfer and assignment of the lease was void because the lease was not assignable under Art. 5237, V.A.C.S., which prohibits such assignments without lessor’s consent. Appellant’s position is not clear, but he says the district thereby had the right and authority to cancel the lease. Whatever is his position or the effect of the point, the statutory provision is for lessor’s benefit. Francis v. Crowley, Tex.Civ.App., 50 S.W.2d 462, writ ref.; Nelson v. Seidel, Tex.Civ.App., 328 S.W.2d 805, writ ref. n. r. e.; Apperson v. Shofner, Tex.Civ.App., 351 S.W.2d 367 and cases cited. The point is overruled.

It is urged that the wife could not bring an action against appellant to have the transfer declared void without the joinder of the husband in that action as a necessary party. No plea of non-joinder was presented to or acted on by the court. The complaint does not present fundamental error, Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 165, 68 A.L.R.2d 1062; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; and may not be first raised on appeal. Rule 93(e), Texas Rules of Civil Procedure; Graves v. Trevino, Tex.Civ.App., 386 S.W.2d 831, writ ref. n. r. e.; Boykins v. Parr, Tex.Civ.App., 327 S.W.2d 463, writ ref. n. r. e.; Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471. We therefore do not reach this point.

Appellant did present and properly preserve complaint, however, of the overruling of his plea of non-joinder of the water supply district which owned the fee and was lessor under the two leases. It is the general rule that all persons whose rights, interests or relations with the subject matter of the suit will be affected by the judgment are necessary parties to a suit to cancel a written instrument. Sharpe v. Landowners Oil Association, 127 Tex. 147, 92 S.W.2d 435, 436.

Generally, also, the corporation which made the written instrument assigned is not a necessary party to the action to cancel the assignment. 12 C.J.S. Cancellation of Instruments § 54(b) (5), p. 1035. See J. L. Brooks Undertaking Company v. West, Tex.Civ.App., 67 S.W.2d 1066, syl. 6.

Here, however, the district is in the position of having executed a new lease on the strength of a purported assignment of the old which has now been declared void; and it is lessor in a lease contract with a new lessee whose rights under the new lease have not been vitiated except by possible implication, and whose relationship with the water district is in a state of doubt. The status of neither appellant nor the district between themselves is known, and there has been no opportunity to ascertain their rights and liabilities. In our opinion this plea of non-joinder of the district should have been sustained.

Appellant’s points concerning denial of recovery for improvements and consideration paid to the husband are overruled. The trial court was obviously confronted by difficulty in trying and determining the issues in this case under the state of the pleadings of both parties. On another trial we assume this difficulty will be eliminated by complete repleader. Appellant’s pleading prayed for recovery of a personal judgment only as against the wife, appellee.

The divorce proceeding is severed from the remainder of the action concerning the realty in question and the lease thereon, and the decree of divorce is in all respects affirmed. That portion of the judgment concerning the realty in question and the lease (the fourth, fifth and sixth grammatical paragraphs of the judgment) is reversed, and such severed portion of the cause is remanded. Costs on appeal are taxed against appellee. The judgment as to trial court costs is affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Clara CLINE, Appellant, v. TEXAS HOTEL, Appellee.
    No. 16656.
    Court of Civil Appeals of Texas. Port Worth.
    June 25, 1965.

      McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and Atwood McDonald, Fort Worth, for appellant.
    Crumley & Hooper, Frank E. Crumley and R. E. Rouer, Fort Worth, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment for defendant in a slip and fall case.

Judgment affirmed.

In her petition plaintiff plead that on April 22, 1963, she attended the Blue Bonnet Luncheon in a dining room of the Texas Hotel, along with several hundred other persons, most of whom were women; as she was leaving her table after the luncheon she slipped and fell heavily to the floor with resulting severe and permanent injuries. She alleged “the Defendant, in way and manner known exclusively to it * * * prepared the surface of the floor at the place in question in such a way that it was exceedingly slick and slippery, and unsafe to walk upon * * *. Defendant well knew and could reasonably have foreseen that if the floor was maintained in the way and manner in which it was maintained on the occasion in question, it would be dangerous to women walking on such floor. * * * prior to and at the time Plaintiff fell, Defendant maintained on said floor some kind of wax or polish so used, or in the manner of applying the same or in the manner of maintaining the same, * * * the floor was in a dangerous and unsafe condition for the persons, particularly this Plaintiff, who were attending said luncheon.”

Since judgment for defendant was based on the testimony of plaintiff as given in a deposition, taken several months before the summary judgment proceedings, we state at length her testimony:

She had attended luncheons many times in the ballroom. This particular luncheon started at 12:00 o’clock. She arrived early. The ballroom was well lighted. The floor was highly polished. She looked at the floor as she entered, felt it, as she always did, because when she goes there the floor is just like glass — it is a slick floor. It had been slick on the prior occasions when she was there. She, on Sunday, had helped prepare for the Blue Bonnet Luncheon. She had to watch her step, the floor was slick as glass. She knew it was slick as it had been before but by being careful, as she had been on prior occasions, thought she could walk across it. She chose a table near the speaker’s stand. When the program was over she got up from the table and started to walk away. She could feel the slickness of the floor. She was leaving by the same route she entered the room. She was being careful. Her feet went out from under her and she hit the floor. The floor, at the place she fell, looked no different from the rest of the floor. She thought the floor had been waxed, but did not know for sure. She saw no liquid on the floor and her dress was not stained. She saw no food particles on the floor. As well as she could remember both feet slipped. Prior to her fall she did not mention the condition of the floor to any Texas Hotel employee, but did mention to a guest the floor was slippery. No one else fell on the occasion in question.

No other evidence, by deposition, affidavits or otherwise, was offered by either party.

Plaintiff’s testimony shows she knew from past experience, and on the occasion in question from actual observation and by feeling with her foot that the floor was slick as glass, yet she proceeded to enter and cross the room to a table near the speaker’s stand. Her own testimony shows she knew that it was dangerous to walk on the “slick as glass” floor. Her testimony negatived any condition other than that the floor was slick.

Her testimony is such that only one reasonable conclusion can be reached, namely, the condition of which plaintiff complains was open and obvious to her and she appreciated the danger of walking across the floor.

The Supreme Court in Wesson v. Gillespie, 382 S.W.2d 921 (1964), stated: “If we consider that the testimony of the plaintiff that ‘it had always been dangerous; that she so considered it; but she kept on using it’ referred to the entrance including the threshold, then the case is simple. By this statement, she admitted that she knew of the condition, knew it was dangerous, and appreciated the particular danger. Notwithstanding this knowledge and appreciation, she continued to use the entrance. She could not then recover. McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954).”

In the above case the Court concluded: “The holdings of this Court are that ordinarily a plaintiff-invitee cannot recover if he knows of the condition, realizes the danger, and appreciates the danger, or is charged in law with such knowledge, realization, and appreciation.”

In view of the law as set out in the above case and in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup., 1963), McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), and Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948), we hold that the undisputed testimony of plaintiff would have required the trial court to instruct a verdict for defendant if the case had been tried on the merits on such evidence, and, that being true, summary judgment was proper.

Affirmed.


author: WALTER, Justice.

text:
    Joe S. HILL et al., Appellants, v. Matt DAVIS et al., Appellees.
    No. 3953.
    Court of Civil Appeals of Texas. Eastland.
    June 11, 1965.
    Rehearing Denied July 9, 1965.

      Richey, Sheehy, Teeling & Cureton, B. N. Hamilton and W. E. Cureton, Waco, H. J. Rucker, Midland, Waggoner Carr, Atty. Gen., Austin, for appellants.
    Hollie G. McClain, Welby Parish, Power, McDonald & Mell, Milton Greer Mell, Gilmer, for appellees.
   WALTER, Justice.

Joe S. Hill entered into a written contract with Matt Davis and his wife to purchase 132.66 acres of land in Upshur County. Hill assigned his contract to the Veterans’ Land Board of Texas, hereinafter referred to as the Board. Subsequent to the execution of the contract Davis executed an oil and gas lease on the property to Cargill.

Hill and the Board filed suit against Davis for reformation and specific performance of the contract and against Car-gill to set aside the oil and gas lease. After hearing the evidence in a jury trial, the court rendered a judgment that Hill and the Board take nothing and they have appealed. Appellants contend that the record shows, as a matter of law, that they are entitled to reformation and specific performance of the contract. We agree.

Davis listed the property with Coe and Shepperd, real estate agents, at $50.00 per acre. Coe called Davis and informed him that he could sell the land to Hill through the Veterans’ Land Board. Shep-perd, with the assistance of his partner Coe, wrote the contract which was on a printed form issued by the Board. On October 28, 1960, Davis executed an oil and gas lease on the property to Robert Cargill. The property was described in the lease as containing 124.41 acres and the consideration was $2,488.20. Davis’ contention is that the contract to sell the land to Hill expired on October 10, 1960.

The Board requested that the land be surveyed. Davis employed R. E. McClelland, County Surveyor of Upshur County, to make the survey. McClelland’s survey revealed that the tract contained 124.405 acres. The Board’s calculations showed it contained 124.377 acres. McClelland testified the difference in his calculations and that of the Board was 28/1000 of an acre, and that this represented the area of a road leading from a public road to the Davis property.

Paragraph 11 provided that the contract “shall remain in full force and effect until thirty (30) days from receipt by the Veterans’ Land Board of written notice of cancellation from either party”, — The record conclusively shows that neither party gave the Board such 30 days notice of cancellation. Also, Davis expressly waived the expiration date in his letter to the Honorable Bill Allcorn on September 6, 1960, as follows: “I certainly waived the discrepancy in the Contract, and agree that you can take all the time you need to approve the same, but sincerely hope that you can get to it in the next few days.” For these reasons, we hold that the contract to sell to Hill had not expired when Davis executed the oil and gas lease.

Hill testified substantially as follows: I heard about the land from Mr. Coe. He showed me the land on two occasions. Mr. Coe priced the land to me at $50.00 per acre. Coe informed me the tract contained 132.66 acres. I relied upon Coe’s representation about the acreage. I didn’t know that 132.66 acres was not correct until after the survey was made. According to the rules and regulations of the Board I was required to deposit a portion of the purchase price. I sent the Board one check for $331.00, and two checks for $50.00 each.

On November 7, 1960, Hill wrote Davis a letter, parts of which are as follows:

“I believe you will see by my letter of October 31, to Mr. Coe in Gilmer, a copy of which was sent to you, that it was never my intention that the total consideration would be $6200.00 (the amount of commitment from the land Board) but that the consideration would be figured on the agreed price of $50.00 per acre. On the basis of 124.377 acres, the consideration of $50.00 per acre would amount to $6218.-85. This, I believe, is in all aspects in compliance with our contract, the only difference being the number of acres involved, which I had no way of ascertaining until your Surveyor surveyed this land and found that there was a shortage of approximately eight acres.” “Let me state that in no way do I think that this contract is void, and that I have no intention of doing anything other than closing this transaction as contracted and agreed to.”

On December 8, 1960, Hill sent Davis a telegram, a part of which is as follows:

“I AM READY WILLING AND ABLE TO CONSUMATE THE TRANSACTION AND WILL PROVIDE FOR THE PURCHASE PRICE TO BE PAID YOU UPON BEING FURNISHED A DEED COVERING SAID LANDS SUBJECT ONLY TO THE TERMS AND CONDITIONS OF SAID APPLICATION AND CONTRACT OF SALE. I HEREBv CALL UPON YOU TO DELIVER SAID DEED.”

There is a notation at the bottom of the telegram that it was received on December 9, 1960.

Nolan Coe testified that Davis listed the property with him at $50.00 per acre. In his letter to Coe of November 7, 1960, Davis said: “I am willing to accept the price of $50.00 per acre as I told you that I would when I listed the place with you for sale.”

After stating that he told Coe the number of acres in the tract, Davis was asked “And how much did you tell him ? ” and he answered: “I told him there was a hundred and thirty-one and two-thirds acres. I might have told him there was a hundred and thirty-two, but we made a mistake in the contract there.” Davis was asked: “Are you saying now you should have told him it was a hundred and thirty-one and two-thirds ? ” and he answered “Yeah.”

The “Application and Contract of Sale-Texas Veterans’ Land Program” which Hill and Davis signed “is actually an application by the veteran to the Land Board for benefits under the Veterans’ Land Program, and in addition is a contract of sale between the veteran as purchaser, and the land owner as seller.” Joe D. Foster et al. v. Wilfrid E. Lessing, Jr., et al., Tex.Civ.App., 346 S.W.2d 939, (Ref. N.R.E.).

The record conclusively shows that at the time the contract was executed Davis intended to sell his land for $50.00 per acre and that Hill intended to purchase the land at $50.00 per acre. There was a meeting of the minds on this matter.

There was an innocent misrepresentation made about the acreage. The consideration of $6,633.00 was calculated by multiplying $50.00 by the number of acres recited in the contract.

We are of the opinion that appellants are entitled to have the contract reformed on account of a mutual mistake in describing the property to be covered by the contract of purchase and sale. The contract is reformed to correctly describe the land as it is described in Paragraph 3 of plaintiffs’ First Amended Original Petition. The contract is also reformed to show the true consideration to be $6,218.85.

Appellants are entitled to specific performance of the reformed contract upon payment of $6,218.85, less the amount received by Davis for the oil and gas lease to Cargill and less the cost of a title guaranty policy required of the seller.

The judgment is reversed and the cause is remanded with instructions to enter judgment in accordance with this opinion.

The judgment is reversed and remanded with instructions.


author: McDONALD, Chief Justice.

text:
    SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellant, v. Kenneth A. DOUGLAS, Appellee.
    No. 4371.
    Court of Civil Appeals of Texas. Waco.
    June 24, 1965.
    Rehearing Denied July 15, 1965.
    Akin, Vial, Hamilton, Koch & Tubb, Arthur M. Albin, Dallas, for appellant.
    Mays, Jacobs & Pevehouse, Roe, Ralston & Brown, William J. McKie, Corsicana, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order overruling defendant’s plea of privilege.

Plaintiff Douglas filed suit against defendant Insurance Company, alleging defendant was a corporation engaged in writing liability insurance; that it had insured Robert L. Young; that plaintiff had recovered a judgment for $29,340 against Young; that the policy provided that one who obtained a judgment against the insured had a right to bring an action for recovery on the policy; and plaintiff prayed for judgment for the $29,340. Robert L. Young intervened, alleging substantially the foregoing, and prayed that plaintiff’s judgment against him be satisfied by judgment against defendant.

Defendant filed its pleas of privilege to be sued in Dallas County, the county of its residence.

Plaintiff and intervenor controverted, alleging that plaintiff resides in Navarro County; that the cause of action arose in Navarro County; that defendant is a Statewide Mutual Assessment Insurance Company having an agent in Navarro County and that venue is maintainable in Navarro County under Subdivisions 28 and 28a of Article 1995-, Vernon’s Ann.Tex.Civ.St.

Trial was before the Court without a jury which, after hearing, overruled defendant’s pleas of privilege.

Defendant appeals, contending that Subdivisions 28 and 28a of Article 1995 V.A. T.S. are not applicable, and that plaintiff failed to allege and prove he was entitled to retain venue in Navarro County under any other subdivision. Plaintiff alleged and proved that he was struck by Robert Young’s vehicle on March 21, 1964 and recovered judgment against Young for $29,-340; that defendant was a Statewide County Mutual Fire Insurance Company authorized to write liability insurance; that defendant issued a liability policy to Young in February, 1964 and Young paid a premium of $66 therefor; that such policy provides for suit to be brought by any person who has secured judgment against the insured; that plaintiff is a resident of Navarro County; that the cause of action arose in Navarro County; and that defendant has an agent in Navarro County.

Subdivision 28a, Article 1995 V.A.T.S. provides, among other things, that in all actions against Statewide Mutual Assessment Insurance Companies, regardless of the plan under which they operate, venue shall lie where the policyholder or beneficiary instituting suit resides, or where the cause of action arose.

We think venue sustainable in Navarro County under Subdivision 28a, Article 1995.

Moreover, plaintiff’s pleading and proof established that defendant was a corporation having an agent in Navarro County. As noted, plaintiff resides in Navarro County and the cause of action arose in Navarro County. Subdivision 23, Article 1995 provides that suits against corporations may be brought in any county where the plaintiff resides at the time the cause of action arose, or where the cause of action arose, provided the corporation has an agency or representative in such county. It is true that plaintiff did not refer specifically to Subdivision 23 in his controverting affidavit. This, however, will not deprive him of the right to rely on such subdivision if the facts alleged in his petition and controverting affidavit and established, comply with the terms thereof. Hunt Oil Co. v. Murchison, CCA (n. w. h.), 352 S.W.2d 365; Patrick v. Webb, CCA, Er.Dis., 369 S.W.2d 446. Venue in Navarro County is sustained by Subdivision 23, Article 1995.

Defendant’s points are overruled.

Affirmed.


author: STEPHENSON, Justice.

text:
    C. E. OLIVER, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 6775.
    Court of Civil Appeals of Texas. Beaumont.
    June 10, 1965.
    Barber & Seale, Jasper, for appellant.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellee.
   STEPHENSON, Justice.

This is a compensation suit. Judgment was rendered for plaintiff based upon a jury verdict finding 16 weeks of total incapacity and no partial incapacity. Plaintiff has brought this appeal. The parties will be referred to here as they were in the trial court.

Plaintiff first contends that it was error for counsel for defendant to infer that plaintiff’s son was illegitimate. Plaintiff alleged manifest hardship and prayed for a lump sum settlement. On direct examination plaintiff testified: He was a single man; he had been married and divorced and had one son age 17; he sent his son money while he was working. On cross examination plaintiff gave the following testimony:

“Q. All right. Mr. Oliver, that divorce was. granted here in this Court, was it not ?
A. It was" granted right here in Jasper County.
Q. And isn’t it a fact the divorce papers in that case says that there were no children born to that marriage, isn’t that right.
A. That’s right.
Q. Said no children born to the marriage? You didn’t have any children ?
A. He’s the only son that I have ever had.”

It is this testimony plaintiff complains of as inferring that plaintiff’s son was illegitimate. No objection was made, and no instruction by the court was' requested. The matter was first raised on motion for new trial.

The record shows that defendant made a bill of exception which showed that plaintiff had married and divorced the same lady twice. This bill further showed that there were no children born at the time of the first divorce, but the second decree showed there was a child and plaintiff was ordered to pay $25.00 per month child support. These matters were offered in evidence and the court ruled that the judgment would be admitted in evidence. However, the plaintiff announced that he was waiving his claim of manifest hardship and lump sum, and the court ruled that none of these matters would be admitted in evidence. The admission of the judgment would have cleared up the inference of illegitimacy which plaintiff complains of. Under these circumstances we find no error by the court in overruling plaintiff’s motion for new trial.

Plaintiff next complains of certain testimony elicited from plaintiff by counsel for defendant. Plaintiff had testified he had worked for Santa Fe Railroad for ten years, and left the railroad January 18, 1957. On cross-examination this testimony was given:

“Q. Mr. Oliver, isn’t it a fact that you say you left the railroad in 1957?
A. 1957.
Q. Well, Mr. Oliver, weren’t you in jail from 1954 up to 1957?
A. I ain’t never been in jail in my life.
Q. You’ve never had any convictions for second offense DWI here in in this courthouse, Mr. Oliver ?
A. No, sir.
Q. You know any other C. E. Oliver in Jasper County?
A. No, I don’t.
Q. You are not the same C. E. Oliver that got three year sentence for second offense DWI here in 1954?
A. No, sir.”

Later in the testimony plaintiff testified he had a brother named E. C. Oliver. On re-cross examination he testified his brother had been convicted of second offense DWI. Plaintiff then called the District Clerk who testified that she found no record of a criminal case filed against C. E. Oliver, but found the case styled The State of Texas v. E. C. Oliver, with the charge, driving while intoxicated, second offense. No objection was made by counsel for plaintiff and no instruction by the court was requested. This point was first raised on motion for new trial.

It would not have been proper for the defendant to prove that plaintiff had been convicted of the offense of driving while intoxicated second offense for impeachment purposes. Compton v. Jay, (Tex.) Vol. 8 Texas Supreme Court Journal, page 365. However, the evidence shows that plaintiff was not convicted of such offense and the Compton v. Jay Case, supra, has no application here. Also, it would not have been proper to prove that the plaintiff’s brother had been convicted of any offense, as such testimony would have been completely irrelevant to any issue in the case. However, the way this matter developed and the similarity in the name of plaintiff and his brother indicates it was better from plaintiff’s standpoint that the matter be cleared up. It appears that counsel for plaintiff must have thought so at the time, as no objection was made to the question as to whether the brother had been convicted of the offense. We find no reversible error in the admission of the testimony under the circumstances in this case.

Plaintiff complains of a portion of the jury argument of counsel for defendant as appealing to the self-interest of the jurors. The objectionable portion of the argument was as follows:

“Jasper County is an old historic county. People never gave people things they weren’t entitled to and people don’t ask over here in Jasper County for things that they are not entitled to. This lawsuit is important. It’s important to Mr. Oliver, it’s important to my client, but most of all it’s important to you as citizens of this community-. Lawsuits are going on every day in courthouses across the State and across this nation. So long as jurors conscientiously decide verdicts and listen to the evidence and the law as given them by the Court, our way of life will be preserved and our property will be preserved and our homes and money will be preserved and our children will be secure without somebody taking them away from us. But once jurors in this County and other counties disregard the evidence and decide cases on something other than the evidence, on sympathy, some other source, then no one is-. Anyone can be sued. You could be hauled down here in court and take your property away and evidence will be produced and the jury will go into the jury room and decide who gets it. If a jury goes in there and decides the case on something other than the evidence, then I’m not secure, you’re not secure and your community is not secure. Be Fair to C. E. Oliver, be fair to my client, but most of all be fair to yourselves. When you walk out of that jury room and have rendered your verdict, you render a verdict that you can go out here on the street and tell your best friend all of the evidence that you heard in this case, and that which you didn’t hear, and tell them what verdict you rendered and be proud of it. You will have rendered a true and conscientious verdict. But if you can’t walk out of this jury room and face your best friend on the street and tell them this is the evidence that we heard and this is what we did, you haven’t decided this case by a preponderance of the evidence. Be proud of your verdict, ladies and gentlemen, and you will have a fine community, as other jurors will do as they -. Thank you very much for your very kind attention.”

We do not so interpret the import of this argument. The appeal in such argument is for the jurors to decide the case according to the law and the evidence. There is no indication that a judgment for plaintiff would cost the jurors anything, such as in a condemnation suit where their tax money would be spent, a trespass to try title suit where their home would be affected or any similar situation in which the jurors personally would be involved. We find nothing improper in such argument. No objection was made by counsel for plaintiff to this argument. The matter was first raised on motion for new trial. Even conceding the argument to be improper, we do not regard it as being beyond correction by means of a proper instruction. Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546. The points are overruled.

The opinion rendered in this cause on the 13th day of May, 1965, is withdrawn and this opinion will be substituted for the original.

Judgment is affirmed.


text:
    HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. J. W. BRITTIAN, Appellee.
    No. 6776.
    Court of Civil Appeals of Texas. Beaumont.
    June 24, 1965.

      Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.
    Barber & Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a case brought under the Workmen’s Compensation Law. Trial was by jury, and judgment was for plaintiff that he recover the maximum benefits for a period of 200 weeks. The parties will be referred to here as they were in the trial court.

The jury found that plaintiff sustained 200 weeks of total incapacity beginning April 8, 1963. The jury also found that plaintiff sustained 200 weeks of partial incapacity beginning the same date. Defendant contends that there is a fatal conflict in these two findings. The jury also found that plaintiff had no wage earning capacity during the period of partial incapacity. We hold that there is no fatal conflict in these two findings inasmuch as the plaintiff would have been entitled to recover the same amount of money under each finding, according to the evidence in this case. The test to determine whether there is a conflict in two issues is whether a judgment would be rendered for plaintiff based upon one issue, and for defendant based upon the other issue. The two findings in this case both result in a judgment for plaintiff. Fidelity & Casualty Co. v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453.

Defendant contends that there is a fatal conflict in the findings of the jury that plaintiff was partially incapacitated, and that he had no wage earning capacity during such period of partial incapacity. It is admitted that these findings are inconsistent in view of the definition of partial incapacity submitted by the court. However, defendant can find no comfort or relief in this inconsistency. Although the court in its charge instructed the jury that a person cannot be totally incapacitated and partially incapacitated at the same time, it is easy to understand how a jury would still be convinced that total incapacity also includes partial incapacity. It is apparent that the jury was attempting to find again that plaintiff was totally disabled during such period of 200 weeks. Even if the jury had found plaintiff to have some wage earning capacity then the doctrine of Texas General Indemnity Co. v. Villa, Tex.Civ.App., 297 S.W.2d 231, would have applied. In such event there would have been no fatal conflict, but the judgment would have to have been for the lesser amount. The point is overruled.

Defendant’s next points are that there is no evidence to support the finding of the jury that plaintiff had no wage earning capacity during the period of partial disability, and that such finding was contrary to the great weight and preponderance of the evidence. Considering first the no evidence point, we look only at the evidence favorable to such finding: Dr. Joe W. Dickerson testified that, in his opinion, that plaintiff was totally and permanently disabled as a result of the injury made the basis of this suit. Medical evidence of total and permanent disability supports a finding of no wage earning capacity. In passing upon the great weight and preponderance of the evidence point we consider the entire record. Dr. G. Bruce Stephenson testified that he found no evidence of a back injury and could find no reason why plaintiff couldn’t do his usual work. The evidence also showed plaintiff, since the date of the accident, had worked at a service station for one day for James Nichols and from one month to three months for Tony Tommy and as a tractor driver for M. E. Dickerson for about 45 days. Defendant argues that inasmuch as plaintiff has been earning money that he does have some wage earning capacity. There is nothing conclusive about evidence that an injured employee has worked since the date of his injury. It is evidence to be considered with other facts and circumstances in each case and does not settle the question as a matter of law. It is similar to the rule applied in cases in which a claimant continues to work while claiming to be totally disabled. Texas Employers Insurance Association v. Cummings, Tex.Civ.App., 364 S.W.2d 255. This finding of the jury is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong. These points are overruled.

It is contended that the trial court erred in admitting in evidence the testimony of Dr. Joe Dickerson given at a former trial of this case. This was the only medical witness called by plaintiff during this trial. As a predicate for the admission of such testimony, John Seale, attorney for plaintiff, testified as follows:

“My name is John Seale. I am one of the attorneys of record for the plaintiff in this case. This case has been tried once previously in February of 1964, and at that time I called as a witness Dr. Joe Dickerson, who testified on behalf of the plaintiff. It had been my intention to call Dr. Dickerson as a witness in this case — in this trial of this case, and I had checked with Dr. Dickerson as late, or with his office as late as last Friday to determine that he would be available for trial, and learned at that time he would not be available after Tuesday, which is today, but that he would be available today. I had accordingly made plans to call him as a witness today. I then called his office this morning shortly before the jury was selected and discovered that he was tied up in surgery and, emergency surgery, and he was leaving town as soon as the surgery was completed and would not be available for the remainder of the week. I had no idea of this surgery until I did call this morning. If I had I would have attempted to offer Dr. Dickerson for deposition last week or some—
******
“And I then made a second call to Dr. Dickerson’s office during the noon recess hoping that he would have been through and been available to be here, but I again discovered that he was not and would be tied up in surgery for the remainder of the day and then would be out of town for the remainder of the week and thus unable to testify in this case.”

The former testimony was then admitted in evidence, both direct and cross-examination. The rule as to admission of evidence given at a former trial was stated by the Supreme Court in Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, as follows:

“ * * * It is the settled law that under an exception to the general rule against hearsay evidence, ‘testimony of a witness given at a former trial of the same case on substantially the same issues, and where there was opportunity for cross examination, may be reproduced where it is shown that the witness is dead, or that he had become insane, or is physically unable to testify, or is beyond the jurisdiction of the court, or that his whereabouts is unknown and that diligent search has been made to ascertain where he is, or that he has been kept away from the trial by the adverse party.’ ”

We construe this exception to the hearsay evidence rule to give the trial court discretion in determining when such evidence is admissible. It is not limited to the instances mentioned in such rule. We do not find that the trial court abused its discretion in this case. In any event, with the same issues being tried, and the opportunity for cross-examination having been exercised, we find no reversible error under Rule 434, Texas Rules of Civil Procedure. The point is overruled.

Judgment affirmed.


author: MURRAY, Chief Justice.

text:
    Guy ALDRIDGE, Appellant, v. NORTHEAST INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14386.
    Court of Civil Appeals of Texas. San Antonio.
    June 2, 1965.
    Rehearing Denied July 7, 1965.
    Frank Y. Hill, Jr., San Antonio, for appellant.
    Foster, Lewis, Langley, Gardner & Hawn, Ralph G. Langley, Willis T. Taylor, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellee, Northeast Independent School District, against appellant, Guy Aldridge, seeking to recover damages in the sum of $40,000.00 for breach of a certain written contract, signed by appellant, to sell and convey to appellee some twenty acres of land to construct a sewerage line and certain public streets. The land was conveyed but the sewerage line and the streets were not constructed.

Appellant answered contending that he signed the contract only as agent for King-O-Hills Development Company, and that the real contract was oral and between said corporation and appellee; that any obligation was that of the corporation and not that of appellant individually. Later, with leave of the court, appellant filed what he termed “DEFENDANT’S PLEA IN ABATEMENT, FIRST AMENDED ORIGINAL ANSWER, AND THIRD PARTY COMPLAINT,” in which he made the following prayer, to-wit:

“WHEREFORE, PREMISES CONSIDERED, Defendant prays that third party Defendant herein be cited to appear and answer this third party complaint; and on the trial hereof, the Plaintiff take nothing as against this Defendant, and that he be discharged and recover his costs; but that if the said Plaintiff should recover anything, then that this Defendant recover against the third party Defendant herein (King-O-Hills Development Company) for the same amount; and that in either event that this Defendant recover from and against the third party Defendant all expenses and attorney’s fees incurred by Defendant in the defense of this suit and in the protection of himself against the action of the Plaintiff herein, and for such other and further relief both at law and in equity to which Defendant may show himself justly entitled.”

The third party defendant filed its answer and entered its general denial to appellant’s third-party petition.

Thereafter, on motion of appellee, the trial court granted a summary judgment in the sum of $30,000.00 against appellant, being the amount of damages suffered by appellee as stipulated, but made no disposition of the third party suit. Thus the judgment from which this appeal is attempted is nothing more than an interlocutory order in that it does not dispose of all the issues raised by the pleadings.

Ordinarily, there can be but one final judgment in a case unless there is a severance of parties or issues. Appeals can be taken to the Courts of Civil Appeals from a trial court only where there is a final judgment. Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Wagner v. Warnasch, 156 Tex. 334, 335, 295 S.W.2d 890; Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377; Kimmel v. Lytton, Tex.Civ.App., 371 S.W.2d 927; Webb v. Mitchell, Tex.Civ.App., 353 S.W.2d 330; Cantrell v. City of Dallas, Tex.Civ.App., 350 S.W.2d 358; Houston Transit Co. v. Falls, Tex.Civ.App., 332 S.W.2d 446; Holub v. Nortex Oil & Gas Corp., Tex.Civ.App., 330 S.W.2d 491; Harrell v. Black, Tex.Civ.App., 329 S.W.2d 127.

No disposition whatsoever is made of the issues raised by appellant’s third party action against King-O-Hills Development Company. This matter is still pending in the trial court. There being no final judgment herein from which an appeal could be taken to this Court, this attempted appeal by Guy Aldridge is dismissed.


author: HOUSER, Commissioner. PER CURIAM:

text:
    SHELBY COUNTY R-IV SCHOOL DISTRICT et al., Respondents, v. William H. HERMAN, Appellant.
    No. 50969.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.

      Charles E. Murrell, Jr., Edina, Henderson & Boulware, Shelbina, for appellant.
    Bollow, Crist & Bollow, Shelbina, for respondent.
    Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for amicus curiae.
   HOUSER, Commissioner.

Condemnation by a school district of 45 acres of a 245-acre farm in Shelby County. Commissioners awarded landowner $11,962. Trial of his exceptions to the commissioners’ award resulted in a jury verdict of $12,456.33. Landowner appeals from the judgment entered upon the verdict. Since landowner claimed damages in excess of $78,000 and offered evidence in support thereof we have jurisdiction of this appeal, as the amount in dispute exceeds $15,000. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo.Sup., 350 S.W.2d 771; State ex rel. State Highway Comm. v. Howald, Mo.Sup., 315 S.W.2d 786; Constitution, Art. V, § 3, V.A.M.S.

The first question is whether Shelby County R-IV School District has the power of condemnation.

We are of the opinion that this school district is a town school district, and that as such it has this power. Section 165.010(3), V.A.M.S., provides that “All districts governed by six directors and in which is located any city of the fourth class, * * * are town school districts.” (Emphasis ours.) Shelby County R-IV School District is governed by six directors. In it are located the cities of Clarence and Shelbina. We take judicial notice of the organization of cities of the fourth class, § 79.010, V.A.M.S.; City of Savannah v. Dickey, 33 Mo.App. 522, and we judicially notice that Clarence and Shelbina are cities of the fourth class. Therefore, Shelby County R-IV School District is a town school district, which is specifically granted the power of eminent domain. §§ 165.100 and 165.327, V.A.M.S.

The fact that it came into being by reorganization under §§ 165.657-165.707, V.A. M.S., does not militate against the fact that it is a town district. In Vanlandingham v. Reorganized School Dist. No. R-IV, Mo. Sup., 243 S.W.2d 107, a reorganized school district was recognized as a town school district. Our conclusion is confirmed by § 165.687, V.A.M.S., which provides that the directors whose election is provided for in enlarged or “reorganized” districts “shall be governed by the laws applicable to six-director school districts” (inter alia, town districts).

Landowner takes the untenable position that a reorganized school district is a new creature of the law — a corporate school entity separate and apart from common, consolidated, town and city school districts; that as such it has no power to condemn because that power is not mentioned in the laws applicable to the reorganization of school districts (§§ 165.657-165.707). There is no basis for this argument. Section 165.010 classifies into four classes (common, consolidated, town and city) the public school districts organized under any of the laws of this state. Section 165.010 in its present form was enacted by Laws 1955, p. 533, after the enactment of §§ 165.657— 165.707, and therefore in contemplation thereof. Reorganized school districts, as such and by that name, are not included in the statutory classification. If we adopt landowner’s contention we would judicially add a fifth class of school districts to the four provided for by § 165.010. Sections 165.657-165.707 do not expressly, or by implication, create a new fifth class of school districts, actually or by name. In those sections the district to be reorganized is referred to 16 times as the “proposed” or the “enlarged” or the “new” district; only once as the “proposed reorganized district.” And in referring to the district after reorganization it is referred to 26 times as the “enlarged district” or the “enlarged school district(s).” Only twice in the 17 sections is there a reference to a “reorganized district,” and that occurs in § 165.685 in an adjectival sense only. Looking at the substance of these 17 sections, they deal only with the method of enlarging districts under reorganization plans by which smaller units are combined into larger units in order to make better provision of schools and school facilities. They do not undertake to provide for so-called reorganized districts a comprehensive scheme prescribing the general powers, duties, and procedures for the operation and workings of the schools therein. These matters are provided for in §§ 165.163-165.260 for common school districts; in § 165.263 et seq., for city, town and consolidated districts. There are special provisions applicable to school districts in cities of certain population. §§ 165.315, 165.377-165.553, 165.563-165.653.

The term “reorganized school district” is a popular term, used for administrative purposes, without legal significance in the classification of school districts as bodies corporate under the school laws of this state. A reorganized school district, by that name and as such, is not a political entity.

Next, landowner contends that the school district “did not comply with the provisions of law to become a reorganized school district," but does not assign reasons for this contention, or why or in what manner it failed to comply with the law. Therefore nothing has been preserved for appellate review under this point. Civil Rule 83.05(e), V.A.M.R.

Finally, landowner contends that the school district did not endeavor in good faith to agree with landowner upon proper compensation to be paid him for his land. The evidence discloses that on January 3, 1964 the board of education voted to get in touch with landowner and start negotiations for 40 to 50 acres at $300 per acre. Mr. Nevins, superintendent of schools, and two board members journeyed to Freeburg, Illinois where they talked to landowner, who stated that he did not wish to and would not sell the tract in which the school district was interested; that he would rather have his right arm taken than have part of his farm taken from him. Landowner told school district representatives to go ahead and condemn the land. No offer was made in view of landowner’s attitude. Later offers of $225, $250 or $300 an acre were made by Mr. Nevins and rejected by landowner, who stated that he did not want to sell for the amount offered. There were communications by mail, in at least one of which an offer of $250 or $300 an acre was made. The letter went unanswered. One board member talked to landowner “the better part of two hours” about purchasing the land. On April 10, 1964 the board authorized Mr. Nevins to offer $13,500 for the acreage desired ($300 per acre). An offer was made verbally and in writing, describing the land required. Landowner read the offer and refused it in the presence of Mr. Nevins. On April 14, 1964 the petition in condemnation was filed. We find no evidence of bad faith on the part of the representatives of the school district and therefore good faith on its part is not a subject for our consideration. School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, 862.

The power to condemn being established, we turn to three alleged errors relating to the exclusion of evidence.

First, error in striking landowner’s testimony as to the reasonable market value of the farm before and after the taking. Landowner disclosed that his method of arriving at reasonable market value was to take the net profit from the 94.6 tillable acres and capitalize that figure at 4%. He testified that the income from the farm had increased “wonderfully” in recent years, “due to a good operator.” He further testified to the following facts with reference to the income from the farm:

year gross income expenses net profit

1960-61 2,791.07 604.61 2.186.46

1961-62 4,111.26 965.80 3.145.46

1962-63 4,008.38 920.25 3,088.13

1963-64 8,324.17 1,764.50 6,559.67

Landowner farmed the land on a 50-50 basis, dividing the expenses and profits equally with his tenant. Landowner selected the crop year 1963-64 as the basis for his computation. Capitalizing the figure 6,559.67, he gave as his opinion that the reasonable market value of the whole farm prior to the taking of the 45 acres was $163,990, and after the taking was $85,982.-50. On motion of the school district this testimony was stricken. Landowner claims that he was qualified and entitled to express his opinion of fair market value on this basis; that he was the owner of the land and knew what the land produced. Condemnor claims the court correctly struck the landowner’s opinion as to value because it was incredible and manifestly untrue; that there is no rural acreage in northeast Missouri of comparable location and size that has a market value approaching $669 per acre for the whole farm and in excess of $1,700 per acre for 45 acres; that landowner used an improper standard and element in arriving at the value of the land (capitalizing the net profits of his best year and not excluding the tenant’s share from the computation); and that landowner was a nonresident of Missouri, not shown qualified to testify as to land values in Shelby County.

The court did not err in striking landowner’s opinion evidence of value. While ordinarily the owner of real property is held competent to testify as to its reasonable market value, 5 Nichols on Eminent Domain § 18.4 [2]; 1 Orgel on Valuation under Eminent Domain, 2d Ed., § 132, p. 567, and his estimate is received notwithstanding that he has not qualified as an expert, 32 C.J.S. Evidence § 546(120); 20 Am.Jur. Evidence § 892, upon the assumption that he is particularly familiar with it and knows of the uses to which it is particularly adaptable, his opinion is without probative value where it is shown to have been based upon improper elements or an improper foundation. Mayor, etc. of City of Liberty v. Boggess, Mo.Sup., 321 S.W.2d 677 [4, 5]; State v. Larson, 54 Wash.2d 86, 338 P.2d 135. Landowner did not give his opinion of the reasonable market value before and after the taking, and stop. He prefaced his estimate of market value with the statement that he had “a different method of figuring the value of this land,” by which he based his estimate exclusively upon capitalization of net profits in the operation of the farm. Evidence of profits derived from a commercial business upon land taken for public use is ordinarily inadmissible as a basis upon which to ascertain market value in condemnation proceedings because it is too speculative, remote and uncertain. St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529, and authorities cited, l.c. 534 [6, 7]. There is a division of authority on the question whether net revenue from the use of land for agricultural purposes is admissible in condemnation proceedings for the purpose of ascertaining the reasonable market value of land, Orgel on Valuation under Eminent Domain, Vol. 1, § 166; Jahr, Eminent Domain, Valuation and Procedure, § 151; 4 Nichols on Eminent Domain, § 12.312 [1], but this case was tried without any objection to the admission of evidence of gross revenue, expenses and net profits realized, and no issue is raised on this appeal as to its admissibility. The question therefore is whether, under this evidence, the landowner should have been permitted to give an estimate of the value of the farm based exclusively upon the capitalization of net profits for one particular year, 1963-64, which was the most profitable year of his experience in operating the farm. The very statement of the question suggests a negative answer. Landowner’s witness Bowzer testified that he did not use the capitalization of income method of appraisal “because last year, especially, was a good crop year, which was one of the best in this area of the state — well, the fact is in this particular area, I think by the Agricultural Department, information came out that there was a 6% higher yield last year than in any previous history. So I don’t think it would give a good picture as to the worth of the land.” The capitalization of income method must be based upon a foundation which minimizes, so far as possible, conjecture and uncertainty. State v. Bare, 141 Mont. 288, 377 P.2d 357. The fluctuation and uncertainties of yields, weather, markets, supply and demand, costs, skill, efficiency and wisdom in the operation, etc. immediately suggest themselves. Mr. Herman himself attributed the good results in recent years to the fact that he had “a good operator.” The validity of an opinion based upon capitalization of income would depend upon the selection of an income figure which was relatively stable, average and representative — of which there was reasonable probability of permanence or persistence in the future. An opinion based exclusively upon a highly variable factor, which the net income from this farming operation was affirmatively shown to be, would be without probative value. Furthermore, landowner used 100% of the net profits as the figure for computation. This was improper for the reason that he did not get 100% of the net profits. Using the figure 6,559.67 did not take into account the fact that landowner received only 50% of that figure. The other 50% went to the tenant. Finally the capitalization of income method of appraisal applies only where there has been a complete taking, and there is no basis for the application of such a method where there is only a partial taking. Humble Oil & Refining Co. v. State of New York, 15 A.D.2d 686, 223 N.Y.S. 2d 448, aff. 12 N.Y.2d 861, 237 N.Y.S.2d 338, 187 N.E.2d 791.

Next, error in not permitting landowner to explain the circumstances surrounding the payment of $4,050 for the land in 1941. On cross-examination the school district elicited from the landowner, without objection, that he purchased the land in 1941 for $4,050. Landowner’s attorney asked him on rebuttal how he acquired the farm. Landowner answered that he acquired it by attending a sheriff’s sale in order to protect a $2000 loan his wife had on that farm. This answer was stricken, and an objection was sustained to the question “What foreclosure sale did you buy this land at?” Then landowner made an offer of proof that he bought the land at a sheriff’s sale foreclosing a deed of trust; that $18,000 of notes were secured by the deed of trust; that $15,000 was owed on these notes at the time of the foreclosure sale, and that he bid and bought the land at the foreclosure sale for $4,050. In rejecting the offer of proof the court stated that the deed of trust did not reflect the true value of the property, and that the evidence was not competent.

Neither the evidence that the land was bought for $4,050 nor the evidence contained in the offer of proof was admissible. The purchase price 23 years before the valuation date, in an entirely different economic era, would be so remote in point of time as to afford no fair criterion of value at the date of valuation. City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 155. The offer of proof did not disclose the date on which the $18,000 deed of trust was placed upon the property, but it must have been prior to 1-941, which would have made the evidence contained in the offer of proof even more remote. In State ex rel. State Highway Commission of Missouri v. Pope, 228 Mo.App. 888, 74 S.W.2d 265, the court of appeals upheld the exclusion of evidence in 1932 of what the property cost the landowners in 1928, and the amount of the mortgage held against the property, on the ground that it related to a time too remote to be of value or competent in estimating the market value of the property five years later during a period when property had greatly depreciated in value generally. The same result must follow where the time lapse is at least 23 years, during which period land values have greatly appreciated. If landowner in the first instance had objected to the inquiry as to purchase price the court undoubtedly would have sustained the objection and eliminated the problem, from landowner’s standpoint. Landowner did not object. Instead, he made the answer which he now considers had a discrediting effect upon his case. Whether the trial court should have permitted him to go into this collateral matter for the purpose of explaining his testimony and attempting to rebut the inference that the land was worth only $4,OSO in 1941 was a matter within the discretion of the court. State ex rel. State Highway Commission v. Bengal, Mo.App., 124 S.W.2d 687, 689. We find no abuse of discretion in the action of the court.

Finally, error in striking the testimony of landowner’s expert witness Harold Miller that the condemned land located on U. S. Highway 36 had commercial value; and in not permitting landowner’s expert witness Darrell Bowzer to answer the question what value, if any, there would be in having the farm fronting on U. S. Highway 36.

Harold Miller testified that the 245-acre farm lay on the north side of U. S. Highway 36 and had “valuable highway frontage over one-half mile.” He testified that the 245-acre farm would find a ready buyer on today’s market at $36,000 before the 45 acres was taken, and that the value of the 200 acres after the 45 acres was taken was $15,000. Asked if this frontage on Highway 36 and on the eounty road on the east 04 mile) had “any effect on the value of the land” he answered “It’s one of the most important factors in the market value of land today, highway location.” Asked on direct examination “Do you think that this land fronting on highway 36 has any value for commercial purposes ?,” counsel for the school district obtained the permission of the court to ask questions touching his qualifications, preliminary to the making of an objection. As a result of these questions the court sustained an objection that the witness had no experience in commercial properties and was not qualified to express an opinion thereon as an expert. After further questioning by landowner’s counsel, however, the court permitted the witness to give his answer that the land fronting on the federal highway does have commercial value. Mr. Miller gave this explanation: “Due to the fact that the property has the highway frontage and the access to the north, which I think you are aware that on federal highways there are limited access which is always a possibility, and due to the fact that this road turns to the north along the east side of the property, will always leave the southeast corner of the property open, even though there should be limited access in that area. This is recognized as a commercial spot for that reason.” On cross-examination the matter of qualifications was pursued further, the objection to the testimony regarding commercial value of the land was renewed and the request was made that it be stricken and the jury instructed to disregard any portion of Mr. Miller’s testimony based on commercial value. The court finally reversed its ruling, sustained the objection, and instructed the jury to disregard the testimony.

Mr. Miller, age 48, had farmed all his life and had become a real estate broker in 1957. He had an opinion as to the value of real estate in and around Shelby County. He had sold farms in and around Shelby County, Missouri, elsewhere in the northern half of Missouri and in southern Iowa and Illinois. He dealt mostly in farm properties. As a real estate broker Mr. Miller had listings and inquiries about commercial properties, but outside of one 40-acre tract with no commercial building on it that he and another -had purchased Mr. Miller had had very little experience in selling filling stations, groceries and commercial property. At the moment he could not remember any other commercial sale that he had made, although he “imagined” there were some, if he could refer to his records; that “we” (he and the firm where he was employed) had made hundreds of sales.- He was familiar with the Herman farm; there was no limited access at the point of the Herman farm at that time; it was not “posted” on the Herman property as a limited access situation.

Darrell Bowzer testified that he was a farmer; that he had done appraisal work, right-of-way work; quite a few appraisals for the City of Hannibal, the U. S. Corps of Engineers and the Bear Creek Dam Project; had made appraisals on land of the general character here involved; had examined this property; belonged to the American Society of Appraisers and the American Right-of-Way Association, and made his living by appraising property. He used the summation approach or comparable sales method, or both methods, to determine market value. He did not use the capitalization method in this case for the reasons previously stated under another point. In his opinion the fair market value of the Herman property before the taking was $41,012.20 and after the taking was $20,000. After describing the characteristics of the land Mr. Bowzer was asked “What value, if any, would there be to having the farm fronting on U. S. Federal highway 36?” Objection was made on the ground that he had not been qualified to express such opinion. Asked - if he was familiar with the value of commercial property fronting on U. S. Highway 36 in and around Shelby County, he answered “Well, not in this particular area, except for one commercial property that was brought up in court here today, * * *.” This referred to a sale of a tavern lj4 miles east of Clarence, for $500. The court sustained the objection on the ground that Mr. Bowzer was not qualified as an expert to give testimony as to the commercial value of the Herman farm. On cross-examination Mr. Bowzer testified that in arriving at the $41,022.20 figure he did not take into consideration the commercial possibilities of the land, but that he did take into consideration its location; that the location is a major factor in the value of land; that the fair market value of land on a major highway is higher than that of land off the highway; that it is more desirable; that people pay more for it because they have better access to the major areas; that this land is more desirable property because it is on a major highway.

In our judgment the rights of the landowner have not been prejudiced by the court’s rulings. Whether a particular witness is qualified to give opinion evidence as to the market value of land in a condemnation proceeding is a question for the court to determine in the exercise of a sound judicial discretion. State ex rel. State Highway Comm. of Missouri v. Craighead, Mo.App., 65 S.W.2d 145, 149 [7]; State ex rel. Highway Comm. of Missouri v. Williams, 227 Mo.App. 196, 51 S.W.2d 538. In order for an expert witness to be qualified it must appear that- by reason of education or specialized experience he possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or of drawing correct conclusions. Giambelluca v. Mo. Pac. R. Co., Mo.Sup., 320 S.W.2d 457 [2]; Wipfler v. Basler, Mo.Sup., 250 S.W.2d 982, 988 [14]; 32 C.J.S. Evidence § 457, p. 100. As to commercial values there was no such showing as to either Mr. Miller or Mr. Bowzer. From the fact that these witnesses qualified as experts on the value of this property as farm land it does not follow that they were qualified as experts on the value of farm lands for commercial purposes. State ex rel. State Highway Comm. v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178, 182. Even if qualified by experience, any testimony they would have given would have been speculative under the state of the record, for there was no proof or offer of proof that land in the vicinity of the Herman farm had sold or was being used or was adaptable or suitable for commercial purposes, or that there was any present demand for land in that vicinity for commercial purposes, or any reasonable expectation that such a demand would arise in the near future. The only basis Mr. Miller gave for his conclusion that it had commercial value was that the southeast area of the farm would always be “open” because the county road running along the east side of the property would give access to the farm even though a limited access highway should be built in that area. There was no evidence that a limited access highway was planned in that area. Mere speculative uses cannot be considered. Union Electric Co. v. McNulty, Mo.Sup., 344 S.W.2d 37, 40. The court did not abuse its discretion in striking Mr. Miller’s testimony on the ground that his experience did not enable him to form an opinion having probative value superior to that of the jurors with reference to the value of this land for commercial purposes. We note that Mr. Miller was permitted to testify that in arriving at his valuation he gave some weight to the fact that the land was located on the federal highway — that he gave it a “location” value, and that if the land had not been located on the federal highway his valuation would have been “considerably less.”

Reversible error is not shown in the action of the court sustaining an objection to the question asked Mr. Bowzer what value if any there would be to having the farm fronting on the federal highway, because thereafter he was permitted to testify that he took into consideration the location of the land on a major highway. The exclusion of testimony when first offered is not erroneous where the record shows that it was later admitted. State ex rel. State Highway Commission v. Devenyns, Mo.App., 179 S.W.2d 740, 741.

The judgment is affirmed.

WELBORN and HIGGINS, CG, concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert Louis THOMPSON, Appellant.
    No. 50728.
    Supreme Court of Missouri, Division No. 2.
    July 23, 1965.

      Robert W. Schroff, Mann, Walter, Powell, Burkart & Weathers, Springfield, for appellant.
    Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

On this appeal we consider the propriety of an order overruling defendant’s motion to vacate the judgment of his conviction and a sentence of twenty years. No hearing was held, but the questions which we determine here are purely of law. It is necessary to state in some detail the proceedings of record. The motion to vacate was filed on December 19, 1963, and overruled on January 8, 1964. The original notice of appeal was late, but this court granted leave to file a notice of appeal under Rule 28.07, V.A.M.R., and such was filed.

Defendant was arrested on a warrant stating the charge against him as attempted robbery; the felony complaint charged the attempted robbery of one Murreldean May Archer. Defendant first waived a preliminary hearing and was bound over to the Circuit Court; there, on March 30, 1961, an information was filed charging that defendant did “ * * * wilfully, unlawfully and feloniously, make an assault in and upon one Murreldean May Archer, and did then and there attempt to rob and take from 'her person valuable property in the presence of and against the will of the said Murreldean May Archer, by putting her in fear of some immediate injury to her person, and did then and there fail in the perpetration thereof, * * On the same day defendant, by counsel, moved to have the cause remanded to the Magistrate Court for a preliminary hearing, and it was so remanded. A preliminary hearing was held and defendant was again bound over to the Circuit Court on May 4, 1961. The State’s brief states that the original information was then refiled in the Circuit Court on May 5, 1961, and we shall assume this to be the fact, although the refiling is not shown in our transcript. On August 28, 1961, an amended information was filed charging defendant with assault with malice with a dangerous and deadly weapon; we quote the following from that document: “ * * * did then and there in and upon one Murreldean May Archer, feloniously, on purpose and of his malice aforethought, make an assault and did then and there, on purpose and of his malice aforethought, feloniously assault, beat, wound and stab, the said Murreldean May Archer, with a knife, which was then and there a dangerous and deadly weapon likely to produce death and great bodily harm, which knife he, the said Robert Louis Thompson, then and there had and held in his hand, with intent then and there, the said Robert Louis Thompson, on purpose and of his malice aforethought, feloniously to rob the said Murreldean May Archer, * *

The case was called for trial on October 30, 1961, and just prior to trial defendant’s counsel moved to dismiss the charge against defendant for the reasons: “ * * * that said charge does not state a charge upon which the Court may criminally convict this defendant and for the further reason that this defendant has not been properly arraigned in the Magistrate Court of Greene County, Missouri, and been accorded due process of law on the charge now pending against this defendant in this criminal cause.” A colloquy then ensued between the court and counsel, defense counsel stating that a new and distinct charge had been filed which was not a “lesser charge,” while the prosecutor insisted that the facts “surrounding each of these charges” would be the same and, in essence, that there could have been no difference in the preliminary hearing, that an assault was involved in each charge and that the new charge carried a “lighter sentence.” The court stated that the amended information did not “show a great deal of difference from the original information,” except by going into somewhat greater detail, in showing the means of the assault and adding the element of malice, and that the defense was not substantially changed. It concluded that there was not sufficient variance to justify a dismissal. The motion to dismiss was overruled.

The case was tried by the court, upon waiver of a jury. The full trial transcript has been brought here on this appeal, and defendant has been represented by counsel. It will not be necessary to state the evidence in any detail. There was some sort of altercation and physical embroilment between the defendant and one Murreldean May Archer on the evening of March 23, 1961, in a Springfield laundromat. She testified that as she worked at a tub or bench defendant entered the place, walked behind her, grabbed her and swung her around saying “this is a robbery”; that he had a knife in his hand, that she screamed and fought, that he stabbed her in the chest and cut her at other places, but she broke loose and ran outside; that this man, whom she positively identified as the defendant, then ran out the back door; that her purse was on a chair nearby and she later recovered it. She denied ever knowing or having had anything to do with defendant previously. Defendant, a negro, testifying in his own behalf, stated: that this young woman, using a different name, had called him and had driven to his home in an effort to make dates with him, and that he, though seeking to avoid her because of unconnected prior troubles, had met her at the laundromat by appointment; further, that a brief conversation ensued, that he indicated that he did not wish to become involved, and that she took his knife which was protruding from his “watchpocket” and opened it; that he reached for the knife and cut his finger; that he grabbed her wrist and as they struggled she fell up against a washer or dryer, and then started running and screaming; the knife dropped and he picked it up and left. Essentially, he testified that he did not intentionally stab her or cut her and that he had no intention of robbing her or harming her. The evidence, which was in much greater detail than this recital, might have been appropriate to a charge of attempted robbery or to one of assault with a deadly weapon.

The court found defendant guilty “of attempted robbery as charged in the information.” That recital appeared in the official judgment record written by the clerk; on the judge’s minutes the notation was that the court found the defendant “guilty as charged in the information.” The formal record of the judgment thus appeared as a conviction for “attempted robbery.” Shortly before the case was argued here on this appeal, over the objection of defendant’s counsel, and after hearing the testimony of the clerk, the judgment record was ordered corrected nunc pro tunc to show that defendant was tried and convicted of the crime of assault with malice with intent to rob. We shall not reach the question of the propriety of the method followed in making that order (which is complained of here), for we find a fatal error in the record prior to that time.

There can be no doubt whatever that from the filing of the felony complaint in the Magistrate Court until the filing of the amended information on August 28, 1961, the defendant was charged solely with attempted robbery. The phrase “did * * * make an assault in and upon” is a rather timeworn and probably superfluous phrase commonly used in robbery informa-tions, and the original information was solely one for attempted robbery. The allegations concerning robbery were in conformity with § 560.120, RSMo 1959, V.A.M.S. The offense of attempted robbery is based upon that section which defines the offense of first degree robbery, § 560.135 prescribing the punishment therefor, and § 556.150 which defines as a crime any unsuccessful attempt to commit a criminal offense and the punishment therefor. Defendant was not charged in the original information with the use of a dangerous and deadly weapon, so it is obvious that the maximum punishment for attempted robbery would have been a term of ten years, § 556.150(2), since the punishment for the completed crime could not have been greater than life imprisonment. The robbery statutes are classified as “Offenses Against Property,” Chapter 560.

The amended information follows very specifically the wording of § 559.180, which is often referred to as the “assault with malice” section of the statutes. This section appears in a different classification, namely, “Offenses Against Persons,” Chapter 559. In the amended information the “assault” became, for the first time, the dominant charge, coupled with allegations of malice and the use of a deadly weapon, and with specific allegations that defendant did “ * * * stab the said * * * with a knife * * * ”; the phrase “with intent * * * to rob * * as used there, was and is merely an allegation of a part of the required statutory intent accompanying the assault. Even a casual reading of the quoted portions of the original and amended informations will show that the respective charges are of substantially distinct offenses.

Section 545.290, relied on largely by the State as justifying the amendment and sometimes referred to as the statute of jeo-failes, provides generally that an information may be amended in form or substance by leave of court before trial when such can be done without prejudice to the substantial rights of the defendant on the merits. But § 545.300, the very next section, specifically provides as follows: “An information may be amended either as to form or substance at any time before the jury is sworn, but no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information.” And our Criminal Rule 24.02 is as follows: “The court may permit an information to be amended or an information to be substituted for an indictment at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” It will be noted that this rule fixes two conjunctive requirements, namely, that no additional or different offense be charged and that substantial rights be not prejudiced.

In addition to these specific requirements of the rule and statute, our courts have held repeatedly that a different and distinct offense may not be charged by way of an amended information. State v. Jenkins, 92 Mo.App. 439; State v. Strickler, Mo.App., 224 S.W.2d 133; State v. Fletcher, 227 Mo.App. 321, 51 S.W.2d 170; State v. Walton, 255 Mo. 232, 164 S.W. 211; State v. Mandell, 353 Mo. 502, 183 S.W.2d 59. In Mandell, supra, the court said, at loc. cit. 61: “A prosecutor, pursuant to secs. 3898 and 3953, Mo.Rev.St.Ann., Rev. St.Mo.1939, may with leave of court amend an information either in form or substance at any time before a jury is sworn to try the case. This applies to informations filed in lieu of indictments as well as to informations filed after a defendant has had a preliminary hearing. The substitute information must of course charge the same crime as attempted to be charged in the original indictment or information.” And in State v. Mallory, Mo., 336 S.W.2d 383, 385, the court said: “In connection with an information an ‘amendment’ is a change or correction (State v. Varner, Mo., 329 S.W.2d 623, 626) and is permissible as long as no additional or different offense is charged and there is no prejudice to the defendant by reason of the amendment. V.A.M.S. § 545.290; Supreme Court Rules 24.02, 24.-11.” There has been relatively little discussion of this point in recent cases, but this is not unusual in view of the specific requirements of § 545.300 and of Rule 24.02. We hold that the general provisions of § 545.290 are not controlling here, even though we may concede that the court gave leave for the filing of the amended information, inferentially, by overruling defendant’s motion to dismiss.

The situation here is materially different from that in those cases where the courts have permitted the filing of amended in-formations setting up prior convictions in order to invoke the Habitual Criminal Statute. State v. Ninemires, Mo., 306 S.W.2d 527; State v. Nolan, Mo., 316 S.W.2d 630; State v. Miller, Mo., 202 S.W.2d 887; State v. Wilson, Mo., 349 S.W.2d 934. Under such circumstances, the amended information does not charge a different offense but merely goes to the matter of punishment.

This defendant would have been entitled to a preliminary hearing upon the charge of assault with malice had it been properly charged, but that is now immaterial. The new charge could not legally be engrafted upon the old one, and it must fall. The State cites and relies in part upon the case of State v. Taylor, Mo., 375 S.W.2d 58. There an information was substituted for an indictment, the only change being in the name of the purchaser of a narcotic. It was held that this did not constitute a charge of a different offense, largely because the identity of the purchaser was not even an essential element of the crime, but also because the real identity of the purchaser was not in dispute and was definitely known to the defendant. The State quotes the following statement from that opinion, loe. cit. 63: “The test of prejudice is whether a defense under the charge as originally made would be equally available after the amendment and whether defendant’s evidence would be equally applicable after as well as before the amendment.” The situation in Taylor was materially different from ours. The court there first determined that the second information did not state a different offense, saying that there was “ * * * no change either in the nature of the offense charged or in the punishment * * *.” It then proceeded to consider the question of prejudice, the second requirement of Rule 24.02, which we need not reach. In the present case there was an amendment introducing a new and distinct charge which is expressly prohibited by § 545.300 and Rule 24.02, regardless of prejudice. Taylor is in nowise controlling here. We may say, however, that we hardly see how a defendant could fail to have been prejudiced when, as here, he was put on trial in such a confused situation and where he was tried on a new charge for which he could have received a life sentence as contrasted with a maximum term of ten years on the original charge.

Under these circumstances, we do not reach certain questions briefed, including the sufficiency of the evidence, the validity of the nunc pro tunc correction of the judgment, or the failure of the trial court to file an opinion or give declarations of law under Criminal Rule 26.01(c). With reference to the nunc pro tunc order, it is immaterial here whether the method of its accomplishment was valid or not, for the very charge upon which it was based (i. e., the amended information) was not permissible.

Counsel for the State urge that if we hold the conviction for assault invalid, we should uphold the judgment as a conviction for attempted robbery based upon the original information and reduce the sentence; thus, they say, the defendant could not be prejudiced because “the finding of guilty must have included the elements of attempted robbery.” We are a little surprised that such a contention is made. It is elemental in our law that a defendant must be put on trial for a specific offense and convicted or acquitted of that offense. Here the prosecutor insisted, and the trial court ruled, that the defendant should be tried for assault with malice under the amended information. The court, at the request of the prosecutor, confirmed this by making an entry correcting the clerk’s error in showing a conviction for attempted robbery. What the evidence may or may not have been is wholly immaterial to our present consideration. The contention is wholly without merit.

We shall reverse this judgment and remand the defendant to the custody of the Sheriff of Greene County. The trial court is directed to quash (or dismiss) the amended information as an impermissible pleading in this cause. Under the authority of § 545.110 and the cases of State v. Melvin, 166 Mo. 565, 66 S.W. 534, and State v. Mayer, 209 Mo. 391, 107 S.W. 1085, the original information for attempted robbery was merely suspended, since it was not actually quashed as the statute permitted. Although § 545.110 refers specifically to indictments, proceedings by indictment and by information are for many purposes interchangeable, and we regard the statute as applicable. Hence, upon the remand, the State may proceed further upon the original information, it may dismiss the cause and file a new information subject to any possible question of limitations, or it may proceed otherwise, as it may see fit. It may not proceed further in this cause on any charge except that of attempted robbery.

The judgment is reversed and the cause is remanded for further proceedings as indicated in this opinion. The defendant is remanded to the custody of the Sheriff of Greene County.

All of the Judges concur.

      . All statutory citations will refer to that revision.


author: HOLMAN, Judge.

text:
    HENGES COMPANY, Inc., a Corporation, Plaintiff, v. DOCTORS’ NORTH-ROADS BUILDING, INC., a Corporation, et al., (Defendants) Respondents, and Eric W. SMITH, Jr., and Robert Entzeroth, a Partnership, d/b/a Smith & Entzeroth, (Defendants) Cross Clalmants-Appellants, and St. Louis County National Bank and Dalton W. Schrieber, Trustee, (Defendants) Respondents.
    No. 50965.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Motion for Rehearing and to Transfer to Court Bn Banc Denied Aug. 3, 1965.

      Bertram W. Tremayne, Jr., A. Wimmer Carr, Tremayne, Joaquin, Lay & Carr, St. Louis, for cross-claimants-appellants.
    Edwin Rader, Clayton, for defendants-respondents, St. Louis County Nat. Bank and Dalton W. Schreiber, Trustee.
   HOLMAN, Judge.

This suit was instituted as an equitable mechanics’ lien action to enforce the various mechanics’ lien claims or demands that had been filed in the office of the circuit clerk of St. Louis County seeking a lien upon the land upon which had been constructed the Doctors’ North-Roads Building. The claims of the plaintiff and the four defendant lien claimants totaled approximately $55,000. Also included as defendants were Doctors’ North-Roads Building, Inc., a corporation, (hereinafter referred to as “building corporation”), and the St. Louis County National Bank, a corporation.

Prior to trial all the lien claims were paid or settled except the claim of Eric W. Smith, Jr. and Robert Entzeroth, a partnership, doing business as Smith & Entzer-oth, who claimed a balance of $15,117, plus interest, for architectural services rendered to the building corporation.

The bank had made a construction loan in the amount of $500,000 secured by a deed of trust on the real estate here involved. The deed of trust was foreclosed on April 3, 1961, and the property was purchased' at the trustee’s sale by the bank which was the owner thereof at the time of trial;

Although the building corporation was represented by counsel at the trial, the primary contest was between Smith & Entzer-oth, claimants, and the bank, which contended that claims for architectural services were not lienable under the provisions of Chapter 429 (all statutory citations are to RSMo 1959, V.A.M.S.), and that in any event, claimants, under the facts of this case, were not entitled to a lien.

At the conclusion of the trial the court entered a judgment in favor of Smith & Entzeroth against the building corporation in the sum of $18,087.69, but denied said claimants a mechanics’ lien against the real estate involved. Smith & Entzeroth have appealed and here contend that the trial court erred in refusing to decree a mechanics’ lien for the amount of their claim. The bank has filed a brief in which it contends, for a number of reasons therein specified, that the trial court properly denied appellants a mechanics’ lien.

We must first consider the question of our appellate jurisdiction. See Mo.Const. Art. V, § 3 (1945), V.A.M.S., and § 477.040. In their jurisdictional statement appellants say we have jurisdiction because the “amount involved in this appeal, exclusive of interest on the judgment and costs, exceeds $15,000.” For reasons hereinafter stated, we have concluded that we do not have jurisdiction of this appeal.

The building corporation signed a written agreement wherein it agreed to pay appellants six percent of the cost of the building for their architectural services. The total amount that became due under that contract was $32,002.08. They were paid $17,812.33. The building corporation had agreed to pay interest on the unpaid balance and hence the judgment entered in favor of appellants included interest in the sum of $3,898.36 which made an aggregate judgment of $18,087.69. As stated, the bank made a construction loan on the property and upon foreclosure had become the owner thereof prior to trial. In the circumstances here presented we have no doubt that as between the building corporation and the bank, in this equitable action, the building corporation would be primarily liable for the payment of appellants’ judgment even though appellants should be successful in obtaining the further relief of a mechanics’ lien.

The amount in dispute upon this appeal is the value of the relief (lien) sought by appellants. If the building corporation is insolvent so that nothing could be collected from it, the amount in dispute would be the full amount of the judgment because appellants would undoubtedly collect the whole amount from the bank in the event they should be successful in having said amount adjudged a mechanics’ lien against the land and building here involved. However, if the building corporation has assets, then the amount in dispute would be the difference between the amount that could be collected from the building corporation and the total judgment. For example, if $4,000 could be collected from the corporation the amount in dispute upon this appeal would be the balance of $14,087.69 and we would not have appellate jurisdiction because that amount does not exceed $15,000. The difficulty confronting us is that there is nothing in the record before us to definitely show the financial condition of the building corporation.

We have said that in order for this court to have jurisdiction because of the amount in dispute “it is necessary that the record affirmatively disclose with certainty that the amount in dispute, regardless of all contingencies, exceeds $15,000. Section 477.040, RSMo 1959, V.A.M.S. ‘This court will not indulge in speculation and conjecture as to the amount in dispute or concerning the value of the relief sought on appeal for the purpose of assuming jurisdiction. Lemonds v. Holmes, Mo.Sup., 229 S.W.2d 691, 692 [3]; Beasley v. Athens, 365 Mo. 158, 277 S.W.2d 538, 539 [2].’ Johnson v. Duensing, Mo.Sup., 332 S.W.2d 950, 956.” Long v. Norwood Hills Corporation, Mo.Sup., 360 S.W.2d 593, 596. See also Baer v. Baer, 364 Mo. 1214, 274 S.W.2d 298.

In order for us to conclude that we have jurisdiction of this appeal we must find from the evidence that the building corporation does not have assets from which appellants can collect as much as $3,087.68 to apply on the judgment. The only evidence tending to show that said corporation is not in good financial condition is that (1) the $500,000 deed of trust was foreclosed, (2) an action to enforce mechanics’ liens was filed in which all of the claims were disposed of before trial except appellants’, and (3) appellants appealed from the judgment, which indicated that they were doubtful of their ability to collect their judgment in full from the building corporation. Whether they ever made any effort to do so does not appear from the record. Those developments indicate that the building corporation may be insolvent, but it would be pure conjecture and speculation for us to find from that evidence that said corporation does not have assets in at least the amount of $3,087.69 which could be applied toward the satisfaction of the judgment herein.

Since the record does not affirmatively show that the amount in dispute exceeds the sum of $15,000 we do not have appellate jurisdiction on that ground. We have examined the record in the light of the other provisions of Art. V, § 3, supra, and find no other basis for giving this court jurisdiction of the appeal.

We accordingly conclude that this case should be transferred to the St. Louis Court of Appeals. It is so ordered.

All concur.