text:
    Dr. Bill LEE, Appellant, v. James DEWBRE et al., Appellees.
    No. 7191.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 26, 1962.
    Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Huff & Bowers, Lubbock, for appellees.
   DENTON, Chief Justice.

This is an appeal from an order overruling appellant’s plea of privilege in a malpractice suit brought by appellees, James Dewbre and wife, against appellant, Dr. Bill Lee, and Dr. J. Walker Davis. Appel-lees seek to recover for injuries alleged to have been sustained by Mrs. Dewbre resulting from the birth of a child. At the time this occurred, both doctors resided in Cochran County, Texas, but, at the time the suit was filed, Dr. Lee was a resident of Castro County and Dr. Davis was a resident of Lubbock County. Both doctors timely filed their pleas of privilege to remove the case from Cochran County, and asked that the suit be transferred to the counties of their respective residences. Controverting affidavits sought to maintain venue in Cochran County under Subdivisions 9 and 9(a) of Article 1995, Vernon’s Ann.Tex.Civ.St, the subdivisions relating to alleged acts of negligence. The trial court sustained Dr. Davis’ plea of privilege and overruled the plea of privilege of Dr. Lee. No appeal from the order sustaining Dr. Davis’ plea of privilege has been perfected.

Plaintiffs below alleged two acts of negligence on the part of Dr. Lee, to-wit: In attempting to deliver Mrs. Dewbre’s baby prematurely; and in abandoning the patient in the hospital at a time when in the exercise of that standard of care of doctors in and around Cochran County, he knew, or should have known, the patient was critically ill by virtue of profuse internal bleeding without making any arrangements for medical care. It was further alleged these acts of negligence were the proximate cause of Mrs. Dewbre’s injuries.

After being a patient of Dr. Lee during six or seven months of pregnancy, Mrs. Dewbre was admitted to the hospital in Morton on Friday, July 8, 1960, at 9:00 o’clock p. m. She testified she had a pain in her side but Dr. Lee’s examination revealed to his satisfaction that she was due to deliver her child in a relatively short time. Drugs were administered but her condition had not progressed by midnight and Dr. Lee left the hospital. An examination the next morning indicated to Dr. Lee the baby would be born soon. The baby was born at 1:50 o’clock p. m. Saturday, July 9. Immediately thereafter extensive internal bleeding became evident and Mrs. Dewbre went into shock. Numerous blood transfusions were given to her in addition to other medications, and efforts to stop the bleeding were begun. Some two hours after the child was born, Dr. Davis was called to assist Dr. Lee. Both doctors proceeded to repair a laceration of the womb and vaginal packs were applied. Hospital records reveal Mrs. Dewbre’s pulse and blood pressure went to zero during this period but became stronger after four or five hours, and that her bleeding was reduced during the night. The baby, after being born in apparent good health, died at 11:00 o’clock p. m., some nine hours after its birth. The record does not disclose the cause of the child’s death. Dr. Lee remained with the patient until sometime after midnight of that date and returned to the hospital the next morning. Dr. Lee did not treat Mrs. Dewbre after this Sunday morning visit, but left town and did not see her again until after this suit was filed. Although there is some conflict in the evidence, it is evident she was visited and treated by Dr. Davis after the absence of Dr. Lee until about noon, Tuesday, July 12. At that time, Mrs. Dewbre was transferred to the hospital in Levelland, Texas. She was then treated by Dr. Harrison of that city. Some twelve hours after she was admitted to the Levelland hospital, Drs. Harrison and Selby performed a hysterectomy. She was released from that hospital some ten days later.

Appellant’s points of error raise the questions both of no evidence and insufficient evidence to support the alleged acts of negligence of Dr. Lee. We will first consider the law question of no evidence concerning the alleged negligent acts of Dr. Lee in attempting to deliver the baby prematurely. In dealing with this phase of the malpractice case, it is well settled that this act of negligence and its proximate cause must be proved by medical evidence by a doctor of the same school of practice as the defendant. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1. The record contains testimony by Dr. Harrison in addition to testimony by Drs. Lee and Davis. Detailed hospital and nurses records were also introduced to show the treatment and medications administered to Mrs. Dew-bre. Although a great deal of difficulty was incurred in the delivery of Mrs. Dewbre’s child, there was no medical evidence presented to the effect that Dr. Lee was negligent in the method or manner in which he treated the patient. It is not necessary to outline the evidence in this regard, but it is sufficient to say that all doctors who testified stated that the treatment given by Dr. Lee was in accordance with good medical practices and that usual procedures were performed. In view of our holding there is no evidence to support this alleged act of negligence, it is unnecessary to pass on the fact question of insufficient evidence.

The remaining points of error deal with the alleged act of abandonment of Mrs. Dewbre by Dr. Lee. It is undisputed that Dr. Lee attended Mrs. Dewbre at frequent intervals and for rather lengthy periods of time from the time she was admitted to the hospital until approximately 11:00 o’clock a. m. on Sunday, July 10. It is also undisputed that Dr. Lee left Morton that Sunday afternoon and did not treat her thereafter. The evidence is disputed as to when and if Dr. Lee did in fact notify the Dewbres he was leaving town. There is also some dispute concerning the treatment and attention given the patient by Dr. Davis after Dr. Lee left although the hospital records bear out Dr. Davis’ testimony that he did visit and prescribe certain treatments for Mrs. Dewbre. Although the two doctors were not partners as such, they occupied the same clinic and assisted each other in the treatment of their respective patients from time to time. The testimony is rather vague, but the record reflects Dr. Davis knew Dr. Lee was leaving town, but Dr. Davis testified he accepted the responsibility of caring for Mrs. Dewbre during Dr. Lee’s absence. There is also evidence to the effect Dr. Davis himself was to leave town temporarily within a few days, but whether Dr. Lee knew of this is not altogether clear. Dr. Lee did not practice medicine in Morton after Sunday, July 10, although he testified he intended to return to Morton and continue his practice at the time he left. Why his plans were changed is not known. Dr. Davis discontinued his practice and left Morton on approximately October 1 of that same year. As stated above, Mrs. Dewbre was transferred by ambulance to the hospital in Levelland, a distance of some twenty-five miles, on July 12. Dr. Davis sent along a written report briefly describing Mrs. Dewbre’s condition and stating the treatment given by Drs. Davis and Lee. Within twelve hours after her admission in the Levelland hospital, Drs. Harrison and Selby performed what was intended to be an exploratory operation and then proceeded to perform a hysterectomy upon Mrs. Dewbre.

Alleged abandonment of a patient by a doctor is one type of wrong which may give rise to a claim for malpractice. Abandonment, when used in cases dealing with the physician-patient relationship, generally means the unilateral severance of the professional relationship between himself and the patient without reasonable notice at a time when there is still the necessity of continuing medical attention. See 57 A.L.R.2d 435, Section 1(d). This is a case of first impression. No Texas case in point has been cited and we have found none. We must, therefore, examine cases from other jurisdictions. In Ricks v. Budge, 91 Utah 307, 64. P.2d 208, the Supreme Court of Utah announced the applicable rule of law as follows:

“We believe the law is well settled that a physician or surgeon, upon' undertaking an operation or other case, is under the duty, in the absence of an agreement limiting the service, of continuing his attention, after the first operation or first treatment, so long as the case requires attention. The obligation of continuing attention can be terminated only by the cessation of the necessity which gave rise to the relationship, or by the discharge of the physician by the patient, or by the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention. A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he must, before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he desires.”

The Supreme. Court of. California stated the rule in Lathrope v. Flood, 6 Cal.Unrep. Cas. 637, 63 P. 1007, reversed on other grounds, 135 Cal. 458, 67 P. 683, 57 L.R.A. 215, in the following language:

“It is the undoubted law that a physician may elect whether or not he will give his services to a case, but, having accepted his employment, and entered upon the discharge of his duties, he is bound to devote to the patient his best skill and attention, and to abandon the case only under one of two conditions: First, where the contract is terminated by the employer, which termination may be made immediate; second, where it is terminated by the physician, which can only be done after due notice, and an ample opportunity afforded to secure the presence of other medical attendance.”

In discussing alleged abandonment of a patient by a physician, the Supreme Court of Washington in Skodje v. Hardy, 47 Wash.2d 557, 288 P.2d 471, stated:

“The asserted abandonment of his patient by Dr. Hardy is not actionable, because it led to no delay or other detrimental result. Mrs. Skodje immediately telephoned another doctor, and her husband was hospitalized, examined, and operated upon later that night.”

See also Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Stohlman v. Davis, 117 Neb. 178, 220 N.W. 247, 60 A.L.R. 658; Burnett v. Layman, 133 Tenn. 323, 181 S.W. 157.

It will be noted that each case uniformly holds there is actionable abandonment only in the absence of reasonable notice or of providing an adequate medical attendant. (Emphasis added.) One of these two elements is the very crux of abandonment. In the instant case, there is no evidence Mrs. Dewbre was ever without adequate medical attention except for the few minutes she was being transferred from one hospital to another by ambulance. As previously stated, there was no medical evidence that Dr. Lee was negligent in the methods or manner of his treatment. Dr. Davis was advised that Dr. Lee was to leave town, and the former testified positively he assumed the responsibility of looking after Mrs. Dewbre. He testified: “Well, I intended to see the lady during Dr. Lee’s absence and decide whether or not she might go to her home or whether or not she should be transferred elsewhere. I assumed that responsibility, yes, sir.” The treatment and subsequent operation performed by Drs. Harrison and Selby has been related. In view of the undisputed evidence that Mrs. Dewbre did receive competent medical care until being released by Dr. Harrison, we cannot say appellees sustained their burden of proof of actionable abandonment on the part of Dr. Lee.

Assuming that Dr. Lee was guilty of negligence in abandoning the patient, there must be a causal connection between that negligence and the alleged injuries received by the patient. Bowles v. Bourdon, supra; Kaster v. Woodson, Tex.Civ.App., 123 S.W.2d 981, (Error Refused) ; Urruita v. Patino, Tex.Civ.App., 10 S.W.2d 582, (Writ Dismissed). In our opinion, no such causal connection has been proved. At the time Mrs. Dewbre was transferred to the Levelland hospital, Dr. Davis sent along a written memorandum of her symptoms and the treatment she had been given. Dr. Harrison testified “her blood pressure and her pulse were in good condition when she got to the hospital” and that later that night her blood pressure dropped and that “she was in a critical condition”. It was then decided to perform an exploratory operation. We, therefore, conclude appellees failed to establish that Dr. Lee’s action in leaving the patient had a causal connection with the alleged injuries sustained by the patient.

After reviewing the evidence in the light most favorable to the appellees, we conclude there was no evidence to support the action of the trial court in holding, for venue purposes, that Dr. Lee was negligent and that such negligence was a proximate cause of appellees’ injuries.

The order of the trial court in overruling appellant’s plea of privilege is reversed and the trial court is instructed to enter an order transferring this cause to the District Court of Castro County, Texas.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Doris M. CAMPBELL, Appellant, v. William E. CAMPBELL, Jr., Appellee.
    No. 11035.
    Court of Civil Appeals of Texas. Austin.
    Nov. 21, 1962.
    Rebearing Denied Dee. 12, 1962.

      John P. Koons, Dallas, for appellant.
    Shields, Jones & Whittington, Dallas, for appellee.
   HUGHES, Justice.

This is a suit for divorce brought by Doris M. Campbell, appellant, against William E. Campbell, Jr., in which the Trial Court sustained, “Defendant’s Plea to the Jurisdiction and Motion to Quash” and dismissed appellant’s suit without a trial on the merits. In this, we believe the Court erred.

It is the contention of appellee that there was a valid subsisting judgment of divorce between the parties rendered January 2, 1958, in the Domestic Relations Court of Dallas County, in Cause No. 57474 and that such judgment, there being no allegations by appellant of a marriage to appellee subsequent to January 2, 1958, destroys the jurisdiction of the Court in this case and is res adjudicata of the issue of divorce pleaded by appellant herein.

It is our opinion that this judgment of January 2, 1958, was vacated by a valid order of the Court rendering it and that, in any event, appellee is estopped to attack the validity of such order. With respect to» such judgment and order, the record shows t

On January 27, 1958, William E. Campbell, Jr. filed, in his own handwriting, a motion for a new trial. This motion was never formally acted upon.

On June 5, 1958, a joint motion was filed on behalf of the parties, plaintiff and defendant, to vacate such judgment. We copy such motion:

“Come now the Plaintiff, Doris M. Campbell, and the Defendant, William E. Campbell, Jr., in the above styled and numbered cause, and file this their joint motion to vacate judgment heretofore entered in this cause, and in support thereof would respectfully show as follows:
"I.
“That heretofore, to-wit, on or about the 2nd day of January, 1958, this court granted judgment of divorce unto plaintiff, Doris M. Campbell, together with other relief, in particular approving a community property settlement entered into between plaintiff and defendant, which agreement was dated 14th November, 1957; that copy of the judgment subsequently entered is hereunto attached as Exhibit ‘A’.
"II.
“That your plaintiff and defendant would show that both are desirous of re-entering their status of previous matrimony as well as all incidentals thereto, including the ownership of property on the basis of ownership prior to the granting of the above divorce; that by virtue of certain religious complications, as well as financial entanglements, and for the benefit of all concerned,' -the .'be’st ■ interests of jus-.:P .tice -would-be sustained if.the judgment-heretofore rendered were set aside.
■ r . • 'ft'' ,1 ", •■} rj '■» '* fuiiiofn “That' sufficient cause exists for the vacating of said judgment. '
'“WÍIÉREFC)&,-./ jPKÉ&ÜSÉ^ , 00⅛⅛ít)É¿ED‘,'.plaintiff and* defend- - .¾ ⅞.ti. ..".\:¡nl '.i. - • oj .i, ■ >j ant jointly pray that judgment hereto^ ¾ fore granted herein be set as'iáé in ait things» ¡-including;? the-idivision o.f.picip-erty as per property settlement approve éd-⅛- and that judgment! be, entered )dis4 niisSingt'this • cause;; ■ that!) east»'be ‘as* sessed .against, the .defendant! .and .that these-parties go jointly. hither. w-ith-M iout--dayi”.; . v : .j .--;ij :■ ;

We also copy the Court’s order granting the foregoing motion

“WHEREAS, .op .this..the, 12. da-y-of Jupe, 19S8,kpam^. op. to'he heard- thg joint mptio.n of-tjie .gl^iptiff and Defendant to..yacate-the • judgment-, pf divorce heretofore entered' by this,,Cour.f on the?,2nd day of January, 19£8,. apd entered in the minutes of this-,Court on the .2.0fh . jay of, January,. 1958, to^ gether with their motipn to nulljfy and void the property settleinent previously entered into by and. between, the.Plainr-tiff and Defendant on the 14th day of November, 1957, as approved and made a part of the judgment of divorce entered in this Court; '' ■
“A-ndthe Court being of the opinion tljat although thirty (30) Jays had expired since the rendition of said judgment. and since the filing of .Defendant’s Motion for new trial, that, under the law sufficient cause exists for the vacar tion of the orders above referred to.
“ACCORDINGLY, IT IS' ORDERED, ADJUDGED AND DECREED that the judgment of divorce rendered by this .Court on the 2nd day of January, 1958 and entered on the Minutes of this Court on the 20th day of January, 1958, divorcing1 'fh'é^’Plaiñtifff- ., .D.ORJS ⅛. CAMPBELL,, from,WIL-¡LIAÍJ E.' CAMPB.ELL, . JR. ■ be . and ,, ; .(he game , is;.hereby, .spt -aside -.fop all,,. i-;pui;posgs?, .anjjthe. property-,.settlement ., iasj approved ,bjr this ¡Qourt and referred t. • .tpjn.saijjjpd^ment.pf'diyorce js like- lg .. wispjsgef pjide and. held for. naught, ,sa..-i ., .thaffh^jpiaintiffi. and'Defendantare;gfL, , /;th,ifi:4ay9i,a5i4'.'h^.ye,.been' husband -..apd,,-! wife, and their property rights, §xjs£.>q the same as though no property settlement had ever-been adjudicated by this Court,
“Further, on joint motion of the' - ,.Rlaintiff¡ and ^Defepjfap'tj-'.ÍP,.-,after vacating this judgment have this causef)i-dismissed, the same is hereby dismissed without prejudice to either Plaintiff or Defendant, at Defendant’s -cost.

The present suit was originally filed November-26, 1958; ‘ It was dismissed for want of ■ prosecution Juné -26,' I960. ! Motion do fe-instate 'the suit was filed by plaintiff October 17; I960,-which recited that .defendant .- ágreéd to such re-instatement. This motion was ■ granted October 17; 1960, the Court, fihding that defendant'agreed to such re-instatement.

Appéllé'e filed an original answer herein omAugbst 15,' 1961. This answer was formal.

On September.8, 1961, appellee .filed .an amended-answer in which he pléad “Defendant admits that the parties have been married approximately 14 years. * * ”

By a second Amended Answer, appellee pleaded;

“Pleading further, if the same be necessary,' Defendant would show the Court that he has made every effort since the separation of the parties in 1957 to effect a reconciliation with his wife and to save his home and family, and still desires to do so. That in spite of these efforts, the Plaintiff, while at all times leading him to believe that he would he permitted to return to his home, has refused to permit him to return. That in an attempt to effect such reconciliation, the Defendant has taken his wife and son on numerous trips to Colorado, Disneyland in California, Las Vegas, Nevada, Washington, D. C., Hot Springs, Arkansas, Miami, Florida and Nassau, and other places. In addition, he has purchased many articles for her, including a 1961 Cadillac automobile, diamond wristwatch, evening sweater, movie camera, new furniture and decorations in living-room, dining-room, master bed-room, den and breakfast-room.”

Appellant’s current pleading, filed February 9, 1962, alleges that she and appellee were married February 22, 1947, when she was eighteen years of age and her husband was 28 years of age; that they have one son, now 12 years of age. She alleged a continuance of the marriage since its occurrence. Referring to the prior divorce suit she alleged that “upon the promise that he (appellee) would immediately return home and that each would for a period of six months attempt to salvage their marriage, plaintiff did agree to the setting aside of the judgment; that in accordance therewith, the defendant did write unto the plaintiff a letter, substantiating their intent and incorporating the matters recited above therein.”

On March 5, 1962, appellee filed his plea of res adjudicata and, for the first time, took the position that “the parties are not married in compliance with the statutes of the State of Texas.”

The record also discloses that in January, 1958, when the divorce judgment in the prior cause was rendered the parties made a settlement of their property rights by an agreement containing six typewritten pages and an attached exhibit containing thirty-seven pages “more or less.”

In Slattery v. Uvalde Rock Asphalt Co. the Beaumont Court of Civil Appeals, with outright approval by the Supreme Court, held, “it is our conclusion that, on-agreement of the parties, the court, at a subsequent term, may vacate a judgment and reinstate the cause on its docket as a pending action.” 140 S.W.2d 987, writ, ref. (1940).

This case was decided before the effective date of our present Rules of Civil Procedure, September 1, 1941. Rule 329b, subd. 5, of these rules provides, in part: “After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.”

It is our opinion that this rule did not bring about a change in the law previously existing so as to render the opinion in Slattery, supra, obsolete or inapplicable. The basis for this conclusion is to be found in Ridley v. McCallum, Dist. Judge, 139 Tex. 540, 163 S.W.2d 833 (1942).

This case involved facts arising before the new rules became effective. The Court there was concerned with the effect of an order of the District Court setting aside a judgment rendered at a previous term ore the motion of one of the parties to the suit. We quote from that opinion:

“The power of the court over i’ts; judgment having ceased with the end of the term, the proceeding below on the motion must stand on the same footing as a collateral attack upon a judgment. * * *
“Our conclusion is that the default judgment of November 6, 1940, against Dallas Cartage Company is a final judgment, valid on its face and on the face of the record. From this it follows that the trial court was wanting in power to set it aside at a subsequent term of the court, either upon the motion of respondents, above copied, or upon its own motion. Its validity may be challenged in no other way than by a suit in equity in the nature of a bill of review.”

This case construed Sec. 30 of Art. 2092, Vernon’s Ann.Civ.St., which contained language identical with the portion of Rule 329b, subd. 5, quoted above, which statute was in force and effect when the Supreme Court refused a writ in Slattery.

Appellee states that Slattery “is not the law in Texas and is completely unsupported.”

It is obvious that the holding in Slattery is not consistent with the general language in Ridley. It is also obvious that the specific holding in Slattery is not in conflict with the specific holding in Ridley. Under these circumstances, our duty is clear. We are in complete accord with the statement of Chief Justice Bell, for the Houston Court, in McClelland v. Briscoe, 359 S.W.2d 635, that “We are an intermediate court in our judicial system; we are bound by the decisions of a higher court; it is our duty to follow them, and litigants have a right to insist that we do.”

Until Slattery is disapproved by the Supreme Court, we believe it our duty to follow it. We cannot assume that the Court overlooked this opinion when it wrote in Ridley just two years later.

It is also our opinion that since the attack on the order setting aside the divorce judgment is a collateral attack that the proceedings relative thereto liberally interpreted and indulging in all legitimate presumptions are sufficient to constitute a bill of review, although they are not so styled.

Rule 329b, subd. 5, supra, provides that, after term time, a judgment may be set aside by bill of review for “sufficient cause”. The joint motion to set aside the divorce judgment plead “That sufficient cause exists for the vacating of said judgment”. The Court in its order granting this motion expressly found “ * * * that under the law sufficient cause exists for the vacation” of the divorce judgment.

We do not, of course, hold that the allegation of “sufficient cause” was good against exception. We do hold that it is adequate as against collateral attack. We quote from some of the authorities sustaining this conclusion. This general rule is found in Judgments, 34 Tex.Jur.2d Sec. 325, pp. 304-307:

“It is a primary rule in a law of judgments, recognized everywhere, that a judgment of a domestic court of general jurisdiction, rendered in the exercise of its usual powers and regular on its face, imports absolute verity. When such a judgment is attacked in a collateral proceeding every reasonable presumption that may be necessary to uphold it will be indulged. The presumption is that the court that rendered the judgment did its duty. This implies that the court duly acquired jurisdiction of the cause and acted within the limits of its authority, and that the judgment itself is correct and valid.”

Regarding the sufficiency of the pleading to vacate the prior judgment, we quote from the same text, Sec. 350, pp. 358-359:

“Liberal presumptions are indulged when a judgment is assailed in a collateral proceeding on the theory that the pleadings were insufficient to confer jurisdiction of the subject matter. The mere fact that the record may reveal that a pleading was in fact insufficient does not necessarily mean that the attack will prevail. On the contrary, unless the circumstances absolutely forbid, it may be presumed that some other proper and sufficient pleading was filed.”

More specific is the forceful language of the Court in Hartel v. Dishman, 135 Tex. 600, at p. 610-611, 145 S.W.2d 865, 870:

“This case does not fall within that category of cases wherein a judgment may be successfully attacked collaterally because it lacked support in the pleadings. The petition here under attack, while faulty and probably subj ect to a general demurrer, was consistent with the relief prayed for and with the judgment that was rendered. It was likewise sufficient to challenge the attention of the court and to apprise the court and the defendant of the character of the suit and the relief granted by the court; nor was the petition so faulty but that it could have been amended. * * * It was stated by this court in the case of Pure Oil Co. v. Reece, supra [124 Tex. 476, 78 S.W.2d 934], ‘It is the settled law of this state that where a judgment is collaterally attacked, plain jurisdiction recitals * * * must be accorded absolute verity.’ * *
“In the case of Weems v. Masterson, 80 Tex. 45, 55, 15 S.W. 590, 592, Stayton, C. J., speaking for the court said:
“ ‘A proposition that a judgment of a district court could be attacked in a collateral proceeding because pleadings were defective, if the court had jurisdiction of the subject-matter and the parties, would not be advanced, and it would be readily conceded that however erroneous such judgment might be, it would be conclusive on the parties until set aside by some direct proceeding for that purpose; and we are of opinion that this would he true even if the pleadings were so defective as to be bad on general demurrer, or as to present no issue of fact.’ ”

Under these authorities, we think it cannot be denied that the Court when it entered the order complained of had jurisdiction of the parties to it and of its subject matter.

The divorce suit was a pending cause and the judgment of divorce was subject to judicial vacation under the Bill of Review provisions of Rule 329b, subd. 5 when the Court set the judgment aside. Ex parte Godeke, Tex., 355 S.W.2d 701.

The only requisite of this rule is that “sufficient cause” exists for setting aside the judgment, and that the Bill of Review be timely filed.

The motion to set aside the judgment was timely filed. It alleged the existence of “sufficient cause” as ground for vacating the judgment. The Court affirmatively found the existence of “sufficient cause” in its order vacating the divorce judgment.

It is our opinion under the rules above quoted, that the motion to set aside the judgment was adequate to invoke the jurisdiction of the Court to vacate the judgment under the Bill of Review provisions of Rule 329b, subd. 5 in this, a collateral attack on the order vacating such judgment.

For yet another reason, appellee is precluded from here attacking the order vacating the divorce judgment. He is es-topped by his conduct from denying its validity. He requested the Court to vacate the judgment and invoked the Court’s jurisdiction for that purpose. The law is uniform that under these circumstances estop-pel is present.

In Judgments, 33 Tex.Jur.2d, Sec. 104, p. 622, the rule is stated:

“Generally, a party may not complain of a judgment rendered by consent or agreement, and such a judgment waives all errors committed before its rendítion except those that involve the jurisdiction of the court.”

In Lessing v. Cunningham & Hardee, 55 Tex. 231, the rule is similarly stated. See also Moor v. Moor, 63 S.W. 347, writ ref, Duke v. Gilbreath, Tex.Civ.App., 10 S.W.2d 412, Eastland Court of Civil Appeals, writ ref:

In Telluride Power Co. v. City of Teague, 240 S.W. 950, the Dallas Court of Civil Appeals, citing Lessing v. Cunningham, supra, stated:

“Any judgment which the parties to a suit cause to be entered by a bona fide agreement, no fraud being practiced in it, is binding upon them regardless of what the pleadings and evidence may be, and such judgment is conclusive as an estoppel.”

In Morehouse v. Morehouse, 111 S.W.2d 831, writ dism., the San Antonio Court of Civil Appeals, stated:

“The principle of equitable estoppel has been applied in this state in Eldridge v. Eldridge, Tex.Civ.App., 259 S.W. 209; Moor v. Moor, Tex.Civ.App., 63 S.W. 347. Other courts have held that where a party to a divorce, knowing that it was obtained through fraud or irregularity, treats it as valid and acts as an unmarried person in violation of any obligations incident to the former status, he is estopped from attacking the decree.”

In Dunn v. Tiernan, 284 S.W.2d 754, n. r. e., Justice Fraser for the El Paso Court of Civil Appeals, wrote a scholarly opinion in which he applied the doctrine of equitable estoppel to a divorce decree. We quote from that opinion:

“This doctrine of estoppel to assert invalidity of a judgment procéeds upon the theory that it would be intolerable to permit the parties to enter into collusion to defraud the court and, each of the parties having enjoyed the fruits of their wrongful conduct, to permit.one of them to afterwards assail the judgment collaterally. Moor v. Moor, Tex.Civ.App., 63 S.W. 347; Freeman on Judgments, § 1438.
“Some cases have held that the concepts of justice will not countenance an attempt to so repudiate such jurisdiction, particularly when same would involve the unsettlement of domestic relations created under color of the judgment. * * *
“Other cases hold that a consent decree is valid and binding on parties consenting, and is open neither to direct appeal nor collateral attack. * * *
“Other courts have held parties es-topped to challenge jurisdiction of the divorcing court under circumstances similar to this one for the above grounds, and further because the party had waited eight or nine months or longer to challenge the validity of the divorce. * * *
“There are other cases holding along these lines, to-wit, that estoppel is created against a party challenging the validity of the foreign divorce which he himself has procured, and especially where in so doing he practiced a fraud on the divorcing court, and also where the other party, in reliance upon such divorce, has altered the marital status, .and especially where the challenger has waited for many months and has accepted during that period benefits from the challenged decree. * * *
“Other cases have enunciated the doctrine by emphasizing that estoppel is an equitable procedure and equity should never permit one to profit from his own fraud, especially to the disadvantage of another.”

Applying these principles here, appellee is estopped upon the grounds of equity, fair dealing and good conscience to question the validity of the order vacating the divorce judgment which order he requested, approved and from the day o.f its entry, June 12', 1958, tó March 5,1962, acquiesced iri and: did not question. ' During such interval, ap-pellee took appellant on numerous trips and showered her with expensive gifts. To now say that the parties werfe not then married, would unjustly reflect upon both of them.

Also in reliance upon the validity of the order vacating the divorce decree,; appellee ha's remained in possession-of the community estate, the effect of which has been to deny to appellant the property awarded her by the divorce judgment. '

We believe that it would be most inequitable for appellee not to be held-accountable; to appellant for his community earnings since January 2, 1958. As both parties conceived their marital status to be, and by their conduct affirming such conception, so should they be bound. ,/⅛

Appellee relies upon’ thgifollowing cases to sustain his contention that the order vacating the divorce judgment was void:

Wichita Falls & S. R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951; Bridgeman v. Moore, 143 Tex. 250, 183 S.W.2d 705; Click v. Click, 258 S.W.2d 835. Amarillo Court of Civil Appeals and Turner v. Texas Sportservice, Inc., Tex.Civ.App., 312 S.W.2d 388, San Antonio Court of Civil Appeals, writ ref., n. r. e.

In the last cited case the Court held on appeal from a judgment rendered'notwithstanding a jury verdict at the second term following the return of the jury verdict was void. Patently this case has no bearing here.

In the Click case the Court, on its own motion, set aside a judgment of divorce more than 30 days after it had become final. This was held to be error.

In Bridgeman the ruling was the same as in Ridley v. McCallum, supra, which case was cited.

In Wichita Falls, supra, it was held that the Trial Court was without jurisdiction to set aside an order on a plea of privilege more than 30 days after such order'became final, except by Bill of Review. ’ "

In none of these cases was an agreed motion to vacate a judgment involved. In none of these cases was there a pleading, of “sufficient cause” to vacate the judgment. In none of these cases was there equitable grounds for estoppel similar to the present case. For these reasons, we conclude that the cited cases are not controlling.

The judgment of the Trial Court is reversed and this cause is remanded.

Reversed and remanded.

      . Two identical judgments appear in the statement of facts one “signed” 1-2-58, and the other “signed” 1-17-58. The latter judgment is pleaded by appellee in his motion to the jurisdiction filed! herein.

      . This order is interlocutory. Jones v. Steele, 360 S.W.2d 592, Houston Court of Civil Appeals.

      . The cases cited by appellee, to- estab? lisli the invalidity of the order, later no-tieed, were all decided subsequent to. 1941.

      . It is a collateral attack because the order is not sought to be set aside on equitable grounds, but only on the grounds that it is void, and the order does not reflect its own infirmity. We do not consider the contention of appellant that the two Domestic Relations Courts of Dallas County are two different Courts within the rule requiring a direct attack on a judgment to be brought in the Court which rendered the judgment.


author: POPE, Justice.

text:
    NATHAN ALTERMAN ELECTRIC COMPANY, Appellant, v. CITY OF SAN ANTONIO and Eramso F. McChanney, Appellees.
    No. 14014.
    Court of Civil Appeáls of Texas. San Antonio.
    Nov. 21, 1962.
    Rehearing Denied Dee. 19,1962.

      Vaughan & Vaughan, San Antonio, for appellant.
    Green, Green & Wiley, Robert B. Thornton, Preston H. Dial, Jr., San Antonio, for appellees.
   POPE, Justice.

Nathan Alterman Electric Company sued the City of San Antonio for damages to its truck. In a trial before the court, judgment was rendered for the defendants. Electric Company urges that the trial court erred in failing to file its findings of fact and conclusions of law; that the judgment is not supported by any evidence, and is against the great weight of the evidence.

Electric Company requested findings and conclusions seventeen days after judgment. Rule 296, Texas Rules of Civil Procedure, states that the request should be made within ten days after rendition of judgment. The statement of facts is short and we have examined it in its entirety. From the record, no prejudice to the plaintiff accrued by the mere failure to file findings. Tippit v. Tippit, Tex.Civ.App., 360 S.W.2d 177; McClendon v. McClendon, Tex.Civ.App., 289 S.W.2d 640; Brown v. Thrower, Tex.Civ.App., 256 S.W.2d 962.

The record discloses that the Electric Company’s pick-up truck was going north, followed by City’s garbage truck. In a sparsely settled area, the Electric Company’s truck turned to the left across the highway. The driver hesitatingly stated that he gave a signal with his hand, but stated that it would be seen with great difficulty because the vehicle was rigged with large bins on either side for carrying equipment. The driver of City’s garbage truck stated he was passing the pick-up, did not see a signal, and the pick-up turned across the road in front of him. A disinterested investigator stated that the Electric Company’s driver told him that he did not give a signal of his turn.

The evidence is full and complete in support of the Electric Company driver’s contributory negligence.

The judgment for defendants is affirmed.


text:
    Frank H. MANSFIELD et al., Appellants, v. Laura DAVENPORT et vir, Appellees.
    No. 14002.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 21, 1962.
    Rehearing Denied Dec. 19, 1962.

      Glendon Roberts, Bandera, Mueller & Criss, Austin, for appellants.
    Robert I. Wilson, Kerrville, for appellees.
   POPE, Justice.

This is a partition suit. Laura Mansfield Davenport, joined by her husband, sued her seven brothers and sisters for a partition of the Mansfield Ranch in Bandera County. The trial court granted the prayer for her partition, but also ordered all eight shares partitioned. The seven defendants have appealed, contending that they should not be compelled to divide their shares when they desire to keep them together. The Davenports do not resist this contention. They urge only that the appeal is premature, this being merely the first order in the partition suit.

We overrule the contention that the appeal is premature. The court, acting upon stipulated facts, made the essential findings and then gave directions concerning the manner of partition. It ordered that the .partition.be “by lot in accordance with the statute.” By its first order or judgment in a partition suit, a court may properly give such directions as may be necessary and appropriate. Rule 766, Texas Rules Civil Procedure; White v. Mitchell, 60 Tex. 164; Marmion v. Wells, Tex.Civ.App., 246 S.W.2d 704.

When plaintiffs obtained a judgment for the partition of their equal one-eighth share of the ranch, they won their lawsuit. The stipulations entered into upon the day of the trial show that all other estate matters were amicably determined, that the ranch was capable of partition in kind, and that each heir owned an equal undivided one-eighth interest in the ranch. Two of the defendant heirs filed general denials, and the other five, by their pleadings, asked that the ranch be kept together except for plaintiffs’ share. When the stipulations were made in open court, no one other than plaintiffs sought by pleadings or otherwise to have his share set over to him. On this appeal, plaintiffs have made no contention that all eight shares should be partitioned. When one party desires the partition and is entitled to it, and the other seven desire to keep their shares together, “the court not only has the power, but it is a duty, to accede to their request.” James v. James, Tex.Civ. App., 164 S.W. 47.

Insofar as the judgment orders a partition in favor of the Davenports in kind, the judgment is affirmed. Insofar as it compels a partition in kind of the remaining seven shares, the judgment is reformed. The seven defendant heirs will be permitted to hold their shares jointly without partition. Kremer v. Haynie, 67 Tex. 450, 3 S.W. 676; Glasscock v. Hughes, 55 Tex. 461, 469; Welch v. Brock, Tex.Civ.App., 195 S.W.2d 940; Gorman v. Campbell, Tex.Civ.App., 135 S.W. 177, 178. Costs are adjudged against appellees.

The judgment is affirmed as reformed.


author: MURRAY, Chief TuStifcfc'.

text:
    Frances Joan PALMER, Appellant, v. William Harrison PALMER, Appellee.
    No. 14011.
    Court of Civil Appeals of Texas, San Antonio.
    Dec. 5, 1962.
    Travis Smith, Corpus Christi, for appellant.
    John R. Haas, Corpus Christi, for appel-lee.
   MURRAY, Chief TuStifcfc'.

Chi August IS, 1961, in'Cause No. 72655 oti'' the ' docket' of the District Court of ' Niieces County, Texas,' William Harrison Palmer Was granted a divorce from Frances Joan Palmer, based on desertioii for more than seven years, and ordered to pay her, for their two minor children, William Har-risqp. Palmer,-Jr., a boy nine-years:.-of age, and-Frances Joan-¡Palmer, .a.-girl-:-sever»'¡ years pf age, the-sum of $58.55 each, or-, a. total of. $117.10, per month for the two-¡ children.

On January 17, 1962, some'five''montlís' later,.William Plarr.ison Palmer filed a motion- in the same: cause; -seeking -a reduction' in-, his payment .for child support; On-Feb-rüary. 12, 1962,- after-.- a hearing, the trial-court entered an order reducing his payment to $77.10 for the support of his two minor children. From this order his former wife, Frances Joan Palmer,( has prosecuted this appeal.

The evidence shows that immediately aft-er William Harrison Palmer was divorced he married a second wife who had three small children, and is now pregnant, is under a doctor’s care, and soon will have a fourth child, but the parties stipulated that this1 second marriage was not to be taken into consideration in determining whether or not the child support for Palmer’s two children by his first marriage should be reduced,'' and this stipulation seems to bé in keeping with the law. Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133.

Appellee testified that he is a First Class Petty Officer, E6, and that his pay grade goes up through E9. He is apparently making the same salary now that he was making at the time of his divorce. His only complaint is that his take home pay is less. The Government lately discovered that he had been overpaid the sum of $292.00, and is requiring him to pay this back at the rate of $22.00 per month. This amount is taken out of his pay each month. He is being transferred from land service to sea service. He has heretofore been permitted to draw $31.00 per month commissary rations. While he is on sea duty he will receive his meals on the ship in lieu of this $31.00. Thus, he says, his take home pay has been reduced $53.00 per month. On this basis the trial court reduced his payment for child support from $117.10 to $77.10 per month, a reduction of $40.00. Appellee admits that when he is on sea duty he will receive a pay increase of $22.00 per month, but this increase will not start for a period of four months, as he must go to a school for four months before he actually goes on sea duty. After about thirteen months he will have repaid his debt of $292.00, then the $22.00 will no longer be taken from his pay each month.

The evidence did not justify the reduction in the amount of child support, and the court erred in reducing the same from $117.10 to $77.10 per month.

The judgment is reversed and the cause remanded.


author: PER CURIAM.

text:
    Alonzo ALVAREZ et al., Relators, v. C. Woodrow LAUGHLIN, District Judge, et al., Respondents.
    No. 14112.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1962.
    Hill, King & McKeithan, Mission, Arnulfo Guerra, Roma, for relators.

      Glenn Ramey, Rio Grande City, Stafford, Atlas, Schwartz & Gurwitz, McAllen, for respondents.
   PER CURIAM.

This is an original proceeding in this Court to require Hon. C. Woodrow Laugh-lin, Judge of the 79th District Court of Starr County, Texas, to fix the amount of a supersedeas bond to supersede the judgment in the cause of Mario E. Ramirez et al. v. Virgilio H. Guerra et al., No. 3238, on the docket of the 79th District Court of Starr County, an election contest for the office of School Trustees of the Roma Independent School District of Starr County, in which judgment was rendered in favor of contestants against contestees.

Petitioners herein have applied to the trial judge to fix the amount of a super-sedeas bond herein and, after a hearing, he has refused to do so.

We conclude that under the provisions of Rule 364(e), T.R.C.P., a losing party has a right to require the trial court to fix the amount of a supersedeas bond in a case in which the judgment “is for other than money or property or foreclosure,” unless it is a judgment controlled by some other rule or statute. We know of no other rule or statute which would govern this case.

The fact that the respondents may never be able to recover any damages on such a bond does not in any way change the plain provisions of Rule 364(e), supra, which we construe as making it the ministerial duty of the judge to fix the amount of the supersedeas bond in a case of this nature. Ex parte Kimbrough, 135 Tex. 624, 146 S.W.2d 371; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103; Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326.

We do not agree with the contention of respondents that this case is now moot and for that reason the petition should be denied. The term of office of the trustees will not expire until April 1, 1963, some four months away. By seeking an advancement of the hearing of this election contest in this Court, w'e feel that it can be disposed of before the present terms of office expire.

The petition for a writ of mandamus will be granted as prayed for, but the writ of mandamus will not be issued out of this Court unless we become convinced that Judge Laughlin does not intend to fix the amount of the supersedeas bond in keeping with this opinion.


author: STEPHENSON, Justice.

text:
    Albert J. JACKSON et al., Appellants, v. AMERICAN NATIONAL INSURANCE COMPANY, Appellee.
    No. 6563.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 25, 1962.
    Rehearing Denied Nov. 28, 1962.

      Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellants.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   STEPHENSON, Justice.

This was an action brought to cancel two policies of life insurance. The case was tried before a- jury, and judgment non obstante veredicto was rendered for the insurance company. The policies of insurance were cancelled, and appellant’s recovery on his cross action denied.

It was stipulated that Mrs. Jackson, the deceased, had suffered from a heart attack and diabetes mellitus for several years prior to the issuance of the policies in question, was not in sound health during the entire interval of time in issue, that her physical condition was material to the risk incurred, and that she met her death from either the heart condition or diabetes.

The answers on the applications, which were all in the handwriting of the soliciting agent, showed that Mrs. Jackson did not have any physical defects. The policies of insurance contained the following provisions :

“This policy shall take effect only on the date of issue and if the insured is then alive and in sound health.”
“The printed provisions on this and the three following pages of this policy, together with any endorsements by the Company’s President or Secretary make the entire contract. No other person can change this contract or waive any of its provisions, and any change or waiver, to be effective, must be a part of such an endorsement.”

The jury found: (1) That Mrs. Jackson informed the soliciting agent for the insurance company of her heart and diabetic condition and that she was not in good health.

(2) That Mrs. Jackson did not know the applications for insurance contained untruthful answers.

(3) That Mrs. Jackson was not negligent in failing to read the answers made to the questions on the applications.

This is the identical question raised in this Court in National Life & Accident Insurance Company v. Romero, Tex.Civ.App., 353 S.W.2d 320. The opinion in the Romero case discusses the questions raised by appellant and the decisions in this state relevant to such questions. We hold in this case, as we did in the Romero case, supra, the issues here involved are controlled by Great National Life Ins. Co. v. Hulme, 134 Tex. 539, 136 S.W.2d 602. The Supreme Court held the soliciting agent had no authority to make an insurance contract, and therefore no agreement made by him, or fraud perpetrated, or knowledge possessed by him would modify the good health provision contained in the policy. The Hulme case, supra, contained this statement of the law:

“It is well settled that such a stipulation is valid and prevents the policy from becoming effective as an insurance contract, if the insured, at the time the policy is delivered, is afflicted with a disease or infirmity which increases the risk under the policy.”

Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    Floyd FOERSTER, Appellant, v. Louis PEOPLES, Appellee.
    No. 7202.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 3, 1962.
    Campbell, Brock, Wright & Waters, Lubbock, for appellant.
    Hay & Gillespie, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a suit seeking to recover money due under an oral contract of employment. Appellee, Louis Peoples, was employed for a period of one year by appellant to perform general farming duties. Peoples was to receive a salary of $30.00 per week plus the proceeds from ten acres of cotton. The employment began January 1, 1960, and ended on or about July IS of that same year. Peoples filed this suit alleging a breach of a contract and seeks damages therefor. Appellant filed a cross-action alleging appellee’s failure to perform the contract of employment, and plead an indebtedness owed to him by Peoples. Based on the jury’s answers to special issues submitted, a judgment was entered for appel-lee and appellant timely perfected this appeal.

Appellant attacks the first special issue by contending it is a submission of a question of law; that there is no evidence to support the submission of such issue; and that the jury’s answer to such issue is contrary to the great weight and preponderance of the evidence. Special issue number one and the jury’s answer thereto reads as follows:

“Do you find from a preponderance of the evidence that the contract between the plaintiff, Louis Peoples, and the defendant, Floyd Foerster, was breached by the said Floyd Foerster?
“Answer ‘Yes’ or ‘No’.
“Answer ‘Yes’.”

No definition or ' explanatory instruction in connection with this issue was given.

Rule 279, Texas Rules of Civil Procedure, requires the trial court to submit controlling issues which are supported by the pleadings and the evidence. It is well settled that only issues of fact are to be submitted to the jury. As framed, special issue number one called on the jury to determine the effect of appellant's actions upon the oral contract between the parties. This is clearly a question of law and as such is an improper submission. Knutson v. Ripson, Tex.Civ.App., 346 S.W.2d 424, affirmed 354 S.W.2d 575; Advance Aluminum Castings, Corp. v. Schulkins; Tex.Civ.App., 267 S.W.2d 174; NRH; Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358. Appellant’s -first point of error is sustained:’ As this error requires a reversal of the' case, if is not deemed necessary to discuss' the other points of' error: However, these' points have been considered, and' in our opinion; they fail to disclose reversible error.

.Appellant strongly contends the case sjbp.uld be, reversed, and rendered rather than remanded. After reviewing the evi-, dence, we. are of the opinion that.-there is, some evidence of probative fo.rce. which supports the findings of the. jury in answer, to the controlling issues submitted.

The judgment -of the .trial court is ac~' cbrdingly reversed and'the cause remanded-for-a new trial;-’


text:
    The CITY OF ALICE et al., Appellants, v. Louis LACEY et al., Appellees.
    No. 14008.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 28, 1962.

      Lon D. Herbert, Alice, for appellants.
    Sidney P. Chandler, Corpus Christi, for appellees.
   POPE, Justice.

The City of Alice and Alice Independent School District have appealed from a dismissal of their ad valorem tax suit against Louis Lacey and wife. The trial court heard and granted the defendants’ motion that plaintiffs replead. Upon plaintiffs’ refusal, the court ordered the dismissal.

Rule 68, Texas Rules of Civil Procedure, authorizes a court to order a re-pleader to make the pleadings substantially conform to the rules, and a refusal to replead will justify a dismissal. Ship Ahoy, Inc. v. Whalen, Tex.Civ.App., 347 S.W.2d 662; Landers v. East Texas Salt Water Disposal Co., Tex.Civ.App., 242 S.W.2d 236, 240, reversed on other grounds, 151 Tex. 251, 248 S.W.2d 731; Shaw v. Universal Life & Accident Ins. Co., Tex.Civ.App., 123 S.W.2d 738; Overstreet v. Donnell, Tex. Civ.App., 75 S.W.2d 937; 4 A.L.R.2d 352; 71 C.J.S. Pleading §§ 462g, 482 ; 8 Tex. Jur., Supp., Pleadings, § 98.

Article 7328.1, Vernon’s Tex.Civ. Stats., is a legislative effort to reduce the paper work in tax suits. It provides for a simplified petition, whether the suit is for recovery of taxes owing on real or personal property. The pleadings in this case are too long. The petition consists of thirty-nine pages of allegations and exhibits, including statements of the evidence. To this pleading, defendants first leveled their motion to replead, followed by numerous special exceptions. The trial court ruled on the motion to replead and dismissed the case. The exceptions still have not been considered.

Defendants’ motion to replead specifically objected to plaintiffs’ allegations concerning two former tax suits between the same parties which were also dismissed. Plaintiffs argue that such pleadings are a necessary predicate to their suit and were proper pleadings. They argue that the former suits were dismissed for reasons which required both City and the School District to begin over by re-assessing the defendants’ property. Art. 7346, Vernon’s Tex.Civ.Stats., authorizes re-assessment proceedings in certain stated instances. One instance is when previous assessments “have been declared invalid for any reason by any district court in a suit to enforce the collection of taxes on said properties * * Plaintiffs argue that the references to the former court proceedings were essential predicates to proof of the re-assessment proceedings. While this may be a part of the proof, under art. 7328.1, it was enough for plaintiffs to allege that the taxes on the property were duly and legally levied and re-assessed. The trial court, therefore, did not abuse its discretion in ordering the deletion of matters not necessary to proper pleadings. Even sor after those parts are deleted, the remaining pleadings are unnecessarily prolix, and the trial court very well could have ordered a repleading for the entire case.

The cost bill attached to the transcript contains an item of $1,464.75 for printer’s costs. From the plaintiffs’ petition these costs appear to be the printing costs incurred in the re-assessment proceedings and are a part of the sum plaintiffs seek to recover. The printing costs are not a part of the court costs in this case. In affirming the trial court’s dismissal order, we expressly do not, on this appeal, determine that City and School District should or should not bear these costs. We hold that they are not court costs on this appeal.

The judgment of dismissal is affirmed, but costs are not charged to City and School District, Arts. 7343, 7297, Vernon’s Tex. Civ.Stats.


author: SMITH, Justice. GREENHILL, Justice

text:
    W. Thomas BOLTON and Texas & New Orleans Railroad Company, Petitioners, v. W. H. SPARKS et al., Trustees for the General American Oil Company of Texas Retirement Trust, Respondents.
    No. A-8989.
    Supreme Court of Texas.
    Nov. 21, 1962.
    Rehearing Denied Dee. 19, 1962.
    Saner, Jack, Sallinger & Nichols, Jerome Chamberlain, Dallas, for W. Thomas Bolton.
    L. P. Bickel, of Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for Texas & New Orleans R. Co.
    Jerry N. Jordan, of Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for respondents.
   SMITH, Justice.

This suit was brought by W. H. Sparks et al. as trustees for the General American Oil Company Retirement Trust, the owners of property adjoining the right-of-way of the Texas and New Orleans Railroad Company, to enjoin the Railroad and W. T. Bolton from constructing an automobile service station on the Railroad’s property. In a trial before the court without a jury, the injunction was denied; on appeal, the Texarkana Court of Civil Appeals reversed and rendered granting the injunction. Sparks v. Bolton, Tex.Civ.App. (1962), 355 S.W.2d 199. For convenience the parties will hereafter be referred to as Sparks, Trust, Bolton, and the Railroad; emphasis will be ours unless otherwise indicated.

The Railroad’s right-of-way runs north and south and crosses Lovers Lane, in Dallas, Texas, some 95 feet east of the intersection of Lovers Lane and Central Expressway. Bolton has leased a portion of the railroad right-of-way at the point the right-of-way crosses Lovers Lane, and proposes to construct a filling station thereon. To make room for the station it is contemplated that the single track, now located in the middle of the right-of-way, will be moved 35 feet to the east which will give Bolton a lot fronting 80 feet on Lovers Lane and extending to a depth of 200 feet along the west side of the shifted right-of-way. To the east, and adjacent to the right-of-way, is the property owned by the Trust upon which is located a service station.

In 1917, the first penal ordinance dealing with the zoning of railroad rights-of-way, Chapter 125 of the ordinances of the City of Dallas, was enacted. Section 1 of Chapter 125, referred to as Ordinance 287 provided:

“Sec. 1. That from and after the final passage of this ordinance it shall be unlawful for any person, firm, corporation or association of persons, pursuing the business or occupation of selling fruits, melons, or other commodities, or merchandise of any kind or character, to use or occupy for the purpose of such business or occupation, any part or portion of any railway depot, depot grounds or yards or right-of-way or sidetrack or spur tracks of any railway company within the corporate limits of the City of Dallas; providing, however, this ordinance shall not apply to persons having or holding by lease or contract any concession, right or privilege to occupy and use any certain part or portion of any passenger railway depot in said city for the purpose of conducting a business therein and of vending of fruit, melons or other merchandise or commodities.”

Section 4 of the original ordinance states:

“Sec. 4. The fact that there now exists no adequate ordinance prohibiting such nuisances and trespasses creates an urgency and an emergency for the immediate preservation of the public peace, health and safety requiring that this ordinance take effect at once, and it is accordingly so ordained that this ordinance shall take effect from and after its passage, approval and publication as authority in such cases is made and provided.”

In 1929, the City of Dallas adopted a Comprehensive Zoning Ordinance which zoned the entire city into districts, and regulated the use of property in such districts. In 1941, the Comprehensive Zoning Ordinance was included in the 1941 Code of Civil and Criminal Ordinances of the City of Dallas as was Ordinance 287 which became Chapter 125.

In August of 1958, Bolton and the Railroad submitted a preliminary plat to the City Planning Commission to secure approval of the subdivision and platting of the right-of-way. On September 4, 1958, the plan was disapproved. On September 29, 1958, the City Council passed Ordinance No. 7792 which attempted to vest in the City Council the power to pass on proposed platting of railroad rights-of-way which had not been abandoned for railroad use.

In October of 1958, Bolton re-submitted his application for a building permit, and a request for approval of the proposed subdivision to the City Planning Commission which again did not give approval; however, under the provisions of Ordinance No. 7792, the application, along with a recommendation that the platting of the subdivision be disapproved, was referred to the City Council. Disregarding the recommendation, the City Council approved the application subject to certain revisions being made, and directed that the details be worked out with the City Planning Engineer. On May 11, 1959, the final platting of the subdivision of the right-of-way was filed with the City Planning Commission, and on June 22, 1959, the issuance of the building permit was authorized by the City Council.

Sparks asserts and the Court of Civil Appeals agreed that since the City Council took control of the approval of platting under the guise of the invalid ordinance No. 7792, the area in question has never been platted as a building lot under the provisions of Article 974a, § 3 of Vernon’s Annotated Civil Statutes. Sparks contends that since there has been no platting, no utilities can be connected to the building under the provisions of Article 974a, § 8 of Vernon’s Annotated Civil Statutes, and that the construction of such service station was properly enjoined on this basis.

The evidence establishes that the final plat was filed in the City Plan Office on May 11, 1959, and that no action was taken thereon within 30 days. This fact is certified to by the Chairman of the City Planning Commission. It is Bolton’s contention that under such facts the plat is approved as a matter of law. We agree with Bolton, the Statute so provides. See Article 974a, § 3, supra.

At the Council meeting on June 22, 1959, Ordinance 59-2858, which provided for the temporary or emergency zoning of railroad rights-of-way and the repeal of Ordinance No. 7792, was proposed. This began a series of steps leading to the enactment of Ordinance No. 8143 which, if valid, would result in the site in question being zoned for residential use. Automobile service stations are not authorized in such areas.

The next Council meeting was held on July 6, 1959; at that meeting a new Ordinance, No. 59-3102, was proposed as a substitute for Ordinance No. 59-2858. Thereafter, suggestions and changes were made in Ordinance No. 59-3102, and at a public hearing on July 20, 1959, Ordinance No. 8143 was presented. The rules were suspended, and Ordinance No. 8143 passed that same date; it repealed Ordinance 7792, superseded Ordinance No. 59-3102, and sought to amend existing classifications under the Comprehensive Zoning Ordinance.

The City Council has the power to provide for the manner in which regulations and zoning districts shall be determined, established and enforced, amended or changed. However, no action of the City 'Council in this regard shall become effective until after a public hearing held after 15 days published notice. Article lOlld, Vernon’s Annotated Civil Statutes; the provisions relative to notice and hearing expressly apply to all changes or amendments or ordinances, Article lOlle, Vernon’s Annotated Civil Statutes. The City Council may avail itself of the powers conferred by the statute only after receiving recommendations from the City Planning Commission, and the sending of 10 days written notice of all public hearings on proposed changes in classification to all owners of property affected by the proposals, and to all owners of property located within 200 feet of any property affected thereby. Article lOllf, Vernon’s Annotated Civil Statutes, see 1961 amendment.

The evidence establishes that these statutory requirements were not met in the passage of Ordinance No. 8143. For example, public hearings were held at 14-day intervals; June 22, 1959; July 6, 1959; and July 20, 1959. Further, Sparks admits that no notice of the proposed ordinance and amendments was given in compliance with Articles lOlld and lOllf. The trial court held that Ordinance 8143 is invalid and could not be admitted in evidence; the Court of Civil Appeals disagreed.

Sparks contends that under the Comprehensive Zoning Ordinance it was not contemplated that railroad rights-of-way should be zoned, and that the enactment of Ordinance No. 8143 was not such a “change of classification” as to require that written notice be given in accordance with the provisions of Article lOllf. Sparks further asserts that ordinances enacted on an emergency or temporary basis need not comply with the provisions of Articles lOlld, lOlle and lOllf. We reject these contentions.

Chapter 165, § 2 of the Comprehensive Zoning Ordinance divides the city into use districts, and provides that the boundaries of these districts are to be shown on a Zoning Map which is expressly made a part of the ordinance. Railroad rights-of way are approved for every district created. See: Comprehensive Zoning Ordinance, Art. 16S-3; § 7; Articles 165 — 4, § 1 through Article 165-8, § 1. This is no indication that railroad rights-of-way are not zoned; but rather indicates that the rights-of-way assume the zoning classification of the various districts through which they run. That this is so, is clearly indicated in the preamble of Ordinance No. 8143.

The Zoning Map indicates that the property in question is within an area zoned C — 1 (Commercial), and under the provisions of the ordinance, a filling station is an authorized use in Commercial areas. It is our conclusion that at the time of the enactment of Ordinance No. 8143, the railroad right-of-way, at the point in question, was zoned for commercial use under the provision of the Comprehensive Zoning Ordinance; and that Ordinance No. 8143 purports to amend the existing classification of railroad rights-of-way.

The courts of this State have held ordinances and amendments to ordinances invalid where the express, mandatory provisions of our zoning statute have not been complied with. The steps directed to be taken for notice and hearing, when provided for in the law, are intended for the protection of the property owner, and are his safeguards against the exercise of arbitrary power. Each act required is essential to the exercise of jurisdiction by the City Council, and each must be rigidly performed. Peters v. Gough, Tex.Civ.App. (1935), 86 S.W.2d 515, no writ hist.; Tonray v. City of Lubbock, Tex.Civ.App. (1951), 242 S.W.2d 816, writ ref., n. r. e. See also: Flewellen v. Proetzel, 80 Tex. 191, 15 S.W. 1043. Municipal ordinances must conform to the limitations imposed by the superior statutes, and only where the ordinance is consistent with them, and each of them, will it be enforced. See: Sutherland: Statutory Construction, 3rd Ed., Vol. 2, § 3905. Likewise, full compliance with the statute is necessary to the validity of amendatory, temporary or emergency zoning ordinances. Sparks v. Bolton, Tex.Civ.App. (1960), 335 S.W.2d 780, no writ hist. Ordinance 8143 is invalid, and was properly excluded from evidence.

It is asserted that though the Zoning Map may indicate that the site in question is zoned for commercial uses, the provisions of Ordinance 287, supra, act to preclude all non-railroad uses of this property. The trial court concluded that Ordinance 287 was a valid and existing ordinance, but was designed only to prevent trespasses and nuisances on railroad property, and that it did not apply to prevent the operation of a service station on the Railroad’s right-of-way. The trial court also found that the Trust’s property would not be damaged by the construction of the filling station in question. The Court of Civil Appeals held that the Railroad’s right-of-way could only be used for railroad purposes, and reversed and rendered granting the injunction sought after holding that the testimony of the Trust’s expert, Miller, was the only evidence of probative force in regard to the issue of damages.

Miller assumed that the right-of-way could only be used for railroad purposes, and testified that the Trust’s property would suffer a diminution in market value of $47,-000 if the proposed station was carried to completion. This estimate of diminution in market value is the difference in the value of the property with “effective expressway frontage,” and without such frontage. He further testified that if the site in question could be used for commercial purposes there would be no diminution in the market value of the Trust’s property.

Ordinance 287, supra, is penal in nature, and it is well settled that a private individual cannot maintain a suit to enjoin the alleged violation of a penal ordinance, unless the activity complained of results in damages to such person, peculiar to him, and not common to the public in general. See Woods v. Kiersky, Comm. of App. (1929), 14 S.W.2d 825. Thus, the issue of damage is of primary importance if Ordinance 287 is applicable to this case.

Where the construction of municipal ordinances is involved, the primary duty of this court is to carry out the intentions of the municipal legislative body. The legislative intent behind the enactment of Ordinance No. 287 is stated, expressly and by implication, to be to prevent trespasses and nuisances caused by unauthorized vendors of merchandise on railroad property. The Court of Civil Appeals held that the ordinance does more than this. Here, the Court committed error, for it abandoned the well-settled rule that penal ordinances are to be strictly construed. See Rhyne: Municipal Law § 9-12, p. 242. When such a construction is given to § 4 of Ordinance No. 287, supra, and that construction is related to the consideration of the applicability of § 1 to the case at bar, then clearly § 1 does not preclude the activity in question.

Ordinance 287 was passed to protect the Railroad, not adjoining land owners, from trespasses and nuisances. It was never contemplated that Ordinance 287 would act to preclude lawful business operations conducted on a portion of the railroad’s property, leased for that purpose, when that use was not otherwise precluded by law.

It is conceded that if a filling station is a proper use on this property the Trust cannot complain. Thus, we need go no further; the injunction was properly denied by the trial court. Therefore, the judgment of the Court of Civil Appeals is reversed, and the judgment is here rendered that the injunction be dissolved, and that Sparks et al. take nothing.

GREENHILL, Justice

(dissenting).

I disagree with the majority opinion as to Ordinance 287 (Section 1 of Chapter 125) of the City of Dallas. In my opinion, the ordinance is applicable. It prohibits the sale of all merchandise which would include gasoline, oil, and other products sold at a filling station.

It is necessary, however, in a case such as this, for Respondents to prove special damage. The trial court found that Respondents would not suffer any special damage. On appeal to the Court of Civil Appeals, Respondents had points of error that (1) there was no evidence to support this finding, and (2) that the finding was against the great weight and preponderance of the evidence. The Court of Civil Appeals sustained both of these points. 355 S.W.2d at 204.

The opinion of the expert witness Miller that there was special damage is relevant, but his testimony was not binding on the trial court. So Respondents did not conclusively prove that they did suffer special damage. It was, however, within the province of the Court of Civil Appeals to hold that finding of the trial court was against the great weight and preponderance of the evidence. This being a court of law only, we will not review a holding by the Court of Civil Appeals that a verdict is or is not against the great weight and preponderance of the evidence, the holding being considered to be one of fact. Gulf, Colorado & Santa Fe Railway Co. v. Deen (1958), 158 Tex. 466, 312 S.W.2d 933 at 938.

A holding of “against the great weight and preponderance” calls for a reversal and remand of the cause. Accordingly, I would affirm the judgment of the Court of Civil Appeals in so far as it reverses this cause and would remand the case to the trial court for a new trial.

CALVERT, C. J., and WALKER and NORVELL, JJT-, join in this dissent.

      . In 1960, the Dallas Court of Civil Appeals held Ordinance No. 7792 and the actions taken thereunder to he invalid since the City Council attempted to take over the platting and subdivision responsibilities of the City Planning Commission; and no notice was given to property owners within 200 feet of the properties affected by the ordinance. W. H. Sparks v. W. T. Bolton, Tex.Civ.App., (1960), 335 S.W.2d 780, no wr. hist.

      . “Sec. 3. That it shall be unlawful for the County Clerk of any county in which such land lies to receive or record any such plan, plat or replat, unless and until the same shall have been approved by the City Planning Commission * * ⅜. Any person desiring to have a plan, plat or replat approved as herein provided, shall apply therefor to and file a copy ivith the Commission * * * herein authorized to approve same, which shall act upon same loitMn thirty days from the filing date. If said plat he not disapproved within thirty days from said filing date, it shall he deemed to have been approved and a certificate shotoing said filing date and the failure to take action thereon within thirty days from said filing date, shall on demand he issued hy the City Planning Commission * * * of such city, and said certificate shall he sufficient in lieu of the written endorsement or other evidence of approval herein required.”

      . “Sec. 8. Unless and until any such plan, plat or replat shall have been first approved in the manner and by the authorities provided for in this Act, it shall be unlawful within the area covered by said plan, plat or replat for any city * * ⅜, or any officials of such city, to serve or connect said land, or any part thereof, * * * with any public utilities ⅜ * ⅜.”

      . Ordinance No. 8143 § 3, provides that where the shifting of the facilities in the right-of-way is undertaken for the purpose of creating a building site and the right-of-way is contiguous to or abuts another street or right-of-way across which there is a more restricted zoning than the zoning adjacent to the right-of-way so altered or abandoned, the building site has a temporary zoning classification of the land across the said easement or right-of-way. Across the Central Expressway is residential zoning.

      . The Preamble of Ordinance No. 8143 stated: “Whereas, in the enactment 0† the original General Comprehensive Zoning Ordinance of the City of Dallas, and the revisions thereof, ⅜ ⅜ ⅜ it was never contemplated that the right-of ways of * ⅜ * railroads, ⅜ s * when abandoned in whole or in part ⅜ ⅜ * that the building sites created thereby tcoitld he free from zoning control and regulations ⅜ ⅜ *.
      * * * * *
      “Whereas, it further appears that under the present Zoning Ordinance, many railroad and utility right-of-ways traverse residential areas and in consonance with said ordinance, these right-of-ways were and are zoned for residential purposes in order to make the railroad and utility uses conforming; and in other locations where property has loioer classifications, the utility, street railways, interurban railway and railroad right-of-ways hear the same zoning as that of the adjacent or abutting properties, and in order to provide standard procedure, the Council is of the opinion that this ordinance should be enacted; ⅜ ⅜

      . “All notations, references and other information shown on such zoning map shall be as much a part of this chapter as if the matters and information set forth by said map were all fully described herein.” Comprehensive Zoning Statute ch. 165, § 2.

      . For the City Council’s construction of the Comprehensive Zoning Ordinance, see footnote 3, supra.

      .Article 165-17 of the Comprehensive Zoning Ordinance of 1929 lists uses permitted in commercial districts which includes any uses permitted in a LR-3 area. Art. 165-16 lists uses permitted in LR— 3 areas which includes all uses permitted in LR-2 areas. Art. 165-15 lists the uses permitted in LR-2 areas which specifically includes gasoline filling stations.

      . Though the Trust’s property is separated from Central Expressway by the right-of-way, Miller testified that the public would consider it to have the same value as though it actually fronted on the Expressway. If the station is constructed, the “effective expressway frontage” will he lost. The difference in value of property, in the same general area, without such frontage led Miller to conclude that the Trust’s property would suffer $47,000 diminution in market value.


author: WALKER, Justice. NORVELL, Justice

text:
    Sam C. BENNETT, Jr., et al., Petitioners, v. C. H. LANGDEAU, Receiver for Franklin American Insurance Co., Respondent.
    No. A-8591.
    Supreme Court of Texas.
    July 25, 1962.
    Heath & Davis, Austin, Elmore H. Borchers, Laredo, Stahl & Sohn, Harvey L. Hardy, San Antonio, for petitioners.
    Cecil C. Rotsch, Horace Wimberly, Kerns. B. Taylor, Harold G. Kennedy, Austin, for respondent.
   WALKER, Justice.

The opinion delivered in this case on June 20, 1962, is withdrawn, and the following is substituted therefor:

This is a venue case. Respondent was appointed receiver for Franklin American Insurance Company by the 126th District Court of Travis County. He brought suit in that court against petitioners, who are five individuals and six corporations. Petitioners filed their pleas of privilege seeking a change of venue to Bexar County under Exception 14 of Article 1995, Vernon’s Ann.Tex.Civ.Stat. Such pleas were overruled, and the Austin Court of Civil Appeals affirmed. 348 S.W.2d 179. The intermediate court apparently regarded the suit as one which would normally be governed by Exception 14, but held that Section 4(f) of Article 21.28, V.A.T.S. Insurance Code, controls the venue of any action brought by or against the receiver of an insurance company.

Petitioners’ application for writ of error was originally dismissed for want of jurisdiction, because the holding of the Court «of Civil Appeals is not in conflict with any of the decisions cited in the application. Before action was taken on the motion for rehearing, however, the San Antonio Court of Civil Appeals held that the venue of an action of trespass to try title against the receiver of an insurance company is governed by Exception 14 rather than by Section 4(f). Langdeau v. Burke Investment Co., Tex.Civ.App., 351 S.W.2d 287. Petitioners directed our attention to the latter decision in their motion for rehearing, and writs of error were then granted in both cases to resolve the conflict. The holding and judgment of the San Antonio Court have now been approved and affirmed. Langdeau v. Burke Investment Co., Tex., 358 S.W.2d 553.

The judges of the Court of Civil Appeals did not disagree in the present case, and our jurisdiction, if it exists at all, must rest upon conflict as provided in Subdivision 2 of Article 1728. International Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d 543. When the writs of error were granted, it was contemplated that we would determine whether the case decided by the San Antonio Court, which was later in point of time, is a “prior decision” within the meaning of Article 1728. See City Nat. Bank in Childress v. Phillips Petroleum Co., 124 Tex. 456, 78 S.W.2d 576; cf. Bland v. Free, Tex., 344 S.W.2d 435 (reversed, 368 U.S. 811, 82 S.Ct. 50, 7 L.Ed.2d 21). We now find that such question is not presented, because our jurisdiction of this case does not turn upon a construction of the statute in that respect.

Petitioners have sought a change of venue under the mandatory provisions of Exception 14. Respondent controverted the pleas of privilege, and at the hearing thereon introduced the petition and established the facts necessary, if Exception 14 is not applicable, to maintain venue in Travis County under the permissive terms of Section 4(f). The first question to be decided then is whether the case falls within the purview of Exception 14. For reasons that are not entirely clear to us, the parties did not brief that question in the Court of Civil Appeals. Petitioners asserted that it was without dispute that the suit affects the title to lands situated in Bexar County. Respondent challenged such statement in the opening paragraph of his brief in the Court of Civil Appeals, but he has never argued that Exception 14 could have no application to a case of this character even if the receiver of an insurance company were not a party. This doubtless accounts for the manner in which the Court of Civil Appeals approached its decision. After observing that the suit affects lands located in Bexar County, the intermediate court considered and decided the question argued by the parties, i. e., whether Exception 14 or Section 4(f) governs the venue of a case to which each would be applicable under its own terms.

For the sake of brevity, we shall summarize and state as facts the matters which, according to the petition, respondent will attempt to establish. Each of the corporate defendants is the alter ego of two individual defendants. In 1955 all of the defendants entered into a joint venture and conspiracy to defraud Franklin American Insurance Company, which was then known as Houston American Insurance Company. Two of the individual defendants arranged to and did buy 230,521 shares of stock in the company, which was a controlling interest, and certain other property for a total consideration of $409,000.00. The money used to make such purchase was borrowed from a bank. Four of the individual defendants were directors of the bank. As soon as the transaction was consummated, the two defendants in whose names the stock was purchased assumed control of the company. They then withdrew $484,000.00 of company funds and used the same largely to pay their indebtedness to the bank. On the same date, two of the other individual defendants, acting in the name of Highland Hills, Inc., one of the corporate defendants controlled by them, executed to the company a note for $484,000.00 dated January 9, 1956, and secured by a deed of trust on two tracts of land in Bexar County. A few days later part of the stock which had been purchased was issued to each of the individual defendants.

The original note was released in November, 1956, and a new note in the same amount was executed by Highland Hills, Inc., to the company. This note was secured by a deed of trust on the land described in the earlier instrument, but the deed of trust was not filed for record. The second and all subsequent notes and deeds of trust were also released, and on each occasion except the last Highland Hills, Inc., executed a new note to the company secured by a deed of trust on part or all of the Bexar County land.

Defendants paid $100,000.00 to the company in December, 1956, and such payment was credited by the company on the principal and interest of the second $484,000.00 note. The last note executed by Highland Hills, Inc., to the company was in the principal sum of $402,000.00 and dated January 2, 1957. It was secured by a deed of trust covering only one of the tracts described in the original security instrument. Early in 1957 the individual defendants sold their stock in the company and received as part of the consideration 27,563 shares of Insuromedic Insurance Company stock. The latter stock, which was worth not more than $73,550.49, was then transferred to the company in return for a release of the $402,000.00 note.

Before and after the $402,000.00 note was released, portions of the land described in the original deed of trust were conveyed, reconveyed, and mortgaged by and to different defendants. Parts of the land were also subdivided and many lots were conveyed to innocent purchasers. Respondent alleged that the original note for $484,000.00 constitutes and is secured by a valid and subsisting lien on the property described in the deed of trust of even date therewith. He also alleged that the releases, as well as the later conveyances, deeds of trust and other instruments executed by and between the defendants, were executed in furtherance of the scheme and conspiracy of defendants to defraud the company and should be cancelled. The prayer of the petition is: (1) for judgment cancelling, or in the alternative subordinating to the lien therein sought to be established, all deeds, deeds of trust and other instruments sought to be so cancelled or subordinated; (2) for judgment against the defendants, jointly and severally, for the amount alleged to be owing on the original note, including principal, interest and attorney’s fees; (3) for foreclosure of the lien on the land described in the deed of trust, exclusive of any theretofore conveyed or encumbered to innocent purchasers who are not defendants; and (4) for other relief not material here.

In support of their contention that the present case is governed by Exception 14, petitioners cite Carlton v. Newton, Tex.Civ.App., 44 S.W.2d 475 (no writ). The plaintiff there alleged that he had advanced money to one of the defendants to discharge certain indebtedness secured by a lien on land situated in Nueces County. He brought suit against his debtor and the latter’s grantee, Newton, to fix and foreclose the lien he asserted on the land, alleging that the conveyance to Newton was made without consideration for the purpose of hindering and delaying creditors. It was held that since the purpose of the suit, as respects Newton, was to establish and foreclose a prior lien, the case was governed by Exception 14. We are of the opinion that such holding is unsound in principle, because it fails to recognize the distinction between a foreclosure suit and an action for the recovery of or removal of encumbrances from title.

If respondent obtains all the relief sought, the lien he asserts will be foreclosed. In that sense the suit does affect the title to Bexar County land, but it is well settled that an action to foreclose a lien on real estate is not governed by the provisions of Exception 14. See Brader v. Ellinghausen, Tex.Civ.App., 154 S.W.2d 662 (no writ) ; Federal Land Bank of Houston v. Downs, Tex.Civ.App., 127 S.W.2d 952 (no writ); Childress v. Brooks, Tex.Civ.App., 265 S.W. 224 (no writ); Holcomb v. Williams, Tex.Civ.App., 194 S.W. 631 (no writ). That is so even where the plain tiff seeks, as an incident to his foreclosure action, to set aside a conveyance as having been made in fraud of creditors or reform one of the security instruments. McGriff v. Hazle, Tex.Civ.App., 201 S.W.2d 92 (no writ); Miller v. Matthews, Tex.Civ.App., 176 S.W.2d 1011 (no writ); Chandler v. Broussard, Tex.Civ.App., 170 S.W.2d 573 (no writ). See also Eckert v. Wendel, 120 Tex. 618, 40 S.W.2d 796, 76 A.L.R. 855; Lehmberg v. Biberstein, 51 Tex. 457.

Although there is a prayer for cancellation of certain releases and other title instruments, respondent does not seek to recover, remove encumbrances from or quiet the title to land. He claims no right, title or interest in the property other than a lien. If and when the releases and other instruments are cancelled, he still will have no title to the land, legal or equitable. According to the allegations of the petition, all of the petitioners who own an apparent interest in the property hold through and under the original mortgagor. There is nothing to suggest that any of them claims by a title independent of or superior to that owned by Highland Hills, Inc., when the deed of trust was executed. The primary and ultimate purpose of respondent’s suit, in so far as it concerns the land, is to establish that the interests of the defendants are subject to the lien he asserts and to obtain a foreclosure of such lien. An action of this type is not governed by Exception 14, and venue lies in Travis County under the permissive terms of Section 4(f). The trial court and the Court of Civil Appeals have thus reached a correct result, but that result properly rests upon a ground other than the holding which is in conflict with the decision of the San Antonio Court of Civil Appeals. This leads to the conclusion that the writ of error was improvidently granted in the present case. MacDonald v. Trammell, Tex., 356 S.W.2d 143.

The order granting the application for writ of error is set aside, and the application is dismissed for want of jurisdiction.

NORVELL, Justice

(dissenting).

In my opinion the decision in Carlton v. Newton, Tex.Civ.App., 44 S.W.2d 475, no wr. hist., indicates a simple and correct solution to the problem before us in this case. The Court merely complicates matters by saying that a party may sue in one county to remove a cloud from title when that cloud happens to be an asserted right to foreclose a mortgage, and at the same time asserts that the mortgagee may bring suit in another county and name as parties thereto all those who claim adversely to the holder of the mortgage. I think petitioners’ motion for rehearing should be granted, that this Court should assume jurisdiction in this case and reverse the judgment of the Court of Civil Appeals and order the cause transferred to one of the District Courts of Bexar County for trial.

The Legislature has adopted certain exceptions to the general venue rule that a defendant should be sued in the county of his residence, primarily because of considerations of convenience. Exception 14 of Article 1995, Vernon’s Ann.Tex.Stats., being mandatory, we may conclude that the Legislature considered it important from the standpoint of litigants that land suits be tried in the county where the records relating to such lands were accessible and where witnesses familiar with the lands were readily available. The petitioners by proper plea asserted in the trial court their privilege to have this suit tried in the county where the land was situated. The respondent as plaintiff in the trial court was thereupon required “to assume the burden of pleading and proving that he has a statutory right to maintain his suit in the county where he has filed the same.” Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223.

This Court has held that the respondent has met this burden, i. e., that the present action as made by the petition is not a suit “for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land.” I cannot agree with this conclusion. If we give any weight to substance and to convenience of trial, the present suit must be considered as one to remove an incum-brance upon the title to land. Insofar as the venue question is concerned, the case as made by the petition is as simple as A, B, C. A executes a mortgage to B. Later through fraud A induces B to release the mortgage. A then conveys the land to C. B then sues both A and C to subject the land to his mortgage. Can it be said that A’s deed to C is not an incumbrance upon the title to land insofar as B’s rights are concerned? Let us take this situation: B conveys land to A who afterwards conveys to C. B then sues A and C contending that his execution of the conveyance to A was induced by fraud. Certainly here,, the deed from A to C is an incumbrance upon the title asserted by B. This then raises the further question: In stcbstance,. is there any difference between the two situations mentioned?

Then we might consider this example which is not uncommon in land litigation. More than A, B and C are involved. B secures a deed apparently executed by A. B conveys to C and the property then passes by mesne conveyances to M. However, shortly after A’s purported conveyance to B, A executes a deed to N and the property passes by mesne conveyances to Y who executes a mortgage to Z. Z brings suit to foreclose this mortgage naming all the letters of the alphabet from B to M as defendants upon the theory that the purported conveyance from A to B is a forgery. Can it be said that simply because Z’s interest in the property is that of a mortgagee, the suit is not one for the removal' of an incumbrance to the title to land? Would it have made a substantial difference if Y, the mortgagor, had brought the suit to clear his title of the claims of B to M inclusive? In essence are not the actions the same whether brought by the mortgagor or mortgagee?

I would hold that whenever a mortgagee, asserting a lien on land, seeks to subject the apparent interest of others (not parties to the mortgage, and not admittedly holding subj ect to the mortgage) to the lien of the mortgage by setting aside releases relating to the mortgage or deeds apparently affecting the land covered by the mortgage, his suit is one for the removal of an incumbrance to the title to land and controlled by Exception 14. I accordingly, dissent.

SMITH and GREENHILL, JJ., join in this dissent.

      . “2. Those in which one of the Courts of Civil Appeals holds differently from a prior decision of another Court of Civil Appeals, or of the Supreme Court upon any question of law material to a decision of the case.”