author: BELL, Chief Justice.

text:
    Zella Jamison DeGAUGH, Appellant, v. John H. JAMISON, Administrator, Appellee.
    No. 15107.
    Court of Civil Appeals of Texas. Houston.
    Sept. 28, 1967.
    Rehearing Denied Oct. 19, 1967.

      Fountain, Cox & Gaines, James A. Pak-enham, Houston, for appellant.
    Sam Lee, Angleton, Fred F. Abbey, Houston, for appellee.
   BELL, Chief Justice.

This case involves an appeal from a judgment approving the final account of the administrator of the estates of Bert M. Jamison, Sr. and his wife, Kate H. Jamison.

Mr. and Mrs. Bert M. Jamison, Sr. were killed in an automobile accident on April 14, 1961. Each had executed a will leaving all of their respective properties to the other and appointing the other as independent executor or executrix of the other’s estate. They left three children, Bert M. Jamison, Jr., the appellant and the appellee. Bert, Jr. and appellant executed waivers of their right to be appointed as representatives of the estates. John M. Jamison offered each will for probate and asked to be appointed Administrator with Will Annexed. On July 14, 1961, he was appointed Administrator for each estate. Of course, each estate was separately numbered and administered, but since all of the property, except for an insignificant amount, was community property, as were the debts of the estates, the various applications to the Probate Court for action and the orders on such applications were of the same nature though separately filed and approved.

Mr. and Mrs. Jamison lived on their ranch. Mr. Jamison was a rancher. (When we use the names “Mr.” and/or “Mrs. Jamison,” we refer to Mr. and/or Mrs. Bert M. Jamison, Sr.). The Application for appointment as Administrator also asked for authority to continue the ranching operation and the order appointing appellee Administrator granted such authority. On September 1, 1961 the Administrator filed an application in each estate asking that an administrator’s fee for managing the ranch be allowed commencing August 1, 1961. The amount from each estate was to be $500.00 monthly. The same application asked that appellant be paid monthly from each estate the sum of $250.00 for accounting and bookkeeping services pertaining to the ranch operations.

On April 18, 1962, the Administrator filed an application to sell a number of head of cattle. (We use the term “cattle” to include cows, bulls and calves). On the day appellant filed opposition to any sale. However, on April 19, 1962, the attorney for appellant wrote the attorney for appellee enclosing an order to be signed by the probate judge which authorized the sale. The letter stated, “You are probably cognizant of the fact that Zella and Johnny agreed on the sale as reflected by the enclosed order. Please approve this order and return it either to me or to Judge Arnold.”

The order was approved April 19, 1962. We here note that subsequent annual accounts reflected that some of the cattle had been sold before the date of the order authorizing the sale. However, appellant’s First Annual Account covering the period from April 14, 1961, through June 30, 1962, was filed July 11, 1962, and it itemized the sale of cattle made during such period, the first sale being dated May 22, 1961. There was no contest filed and the account was approved by the court July 23, 1962.

On January 3, 1963, a report was made of the sale of cattle from April 19, 1962, through November 12, 1962. The court approved the sale on the same day.

From the above we take it that the sales made during 1961 were not specifically authorized by court order, but they were reported in the First Annual Account and were approved by the court.

On December 4, 1962, appellee filed an application for authority to withdraw deposits and make disbursements in accordance with a voluntary partition agreement between him and appellant. Bert Jamison, Jr., had previously conveyed all of his interest in the estates to appellant and appel-lee, except for the minerals. The substance of the allegations was that they had agreed to divide the estates, the Administrator to retain only an amount sufficient to pay estate and inheritance taxes and costs of administration, including attorney’s fees. Too, it asked that the management and bookkeeping fees be terminated as of October, 1962. We note that because of the value of each estate, the Administrator filed a bond of $125,000.00 in each. This application for partition asked that the bond be reduced to $5,000.00 for each estate. The Administrator waived any administrator’s fees. An order was signed by the judge granting the authority and other relief prayed for. We particularly note that the order was “approved as to form and entry requested.” Then appeared the signatures of the attorneys for both appellant and appellee.

Thereafter annual accounts were filed for the years ending June 30, 1963, and June 30, 1964. These were short accountings. The evidence reflects that there was very little property left in administration because of the voluntary partition authorized and carried out by agreement December 5, 1962. Particularly we note that appellant, with her expert advisors and attorney present, had been given and accepted the cattle partitioned. Too, this occurred after the cattle sales made in connection with the operation of the ranch.

On July 13, 1965, appellee filed his final account, alleging there was no need for further administration and asked for his discharge. In the application the annual accounts were incorporated by reference, as authorized by Texas Probate Code Section 408, V.A.T.S. On the account is a certificate by appellee’s attorney that a copy had been delivered to appellant’s attorney on July 9, 1965. A supplement to the final account was filed February 9, 1966, showing that since the filing of the final account all debts, taxes and expenses had been approved by the court pursuant to agreement between appellant and appellee on December 14, 1965. Closing of the estates and discharge of the Administrator were asked for. On the same day the court entered its order approving the account, closing the estates and discharging the Administrator. This order was “approved as to form and entry requested” by the attorney for appellant and the Administrator. No contest of the application was made by anyone.

We wish to note that appellant nowhere complains of the want of any statutory notice being properly issued and served. Also, each court order recites the giving and service of notice.

On March 10, 1966, appellant, having obtained new counsel, filed her motion to set aside the order of February 9, 1966, approving the final account. It is lengthy and we think it not necessary to notice the allegations other than the charge that in making the various cattle sales the Administrator had commingled cattle belonging to the estates with cattle belonging to other people. Probably we should also notice the allegation that the approval on her behalf of the final account was through misunderstanding of her desire and direction and was not intended to be authorized by her and was not in fact authorized by her. In any event, appellant alleges that the court still has jurisdiction over the order and can withdraw it, which she requests be done and that the account be audited. She in effect asks that her approval be withdrawn. In general terms she alleges that she was ill and appellee took advantage of her and her agreement to partition the estate was void. She complains appellee induced her to sign a deed in July, 1961, conveying the interest she obtained from Bert, Jr., and the partition was based upon appellee’s interest in part obtained to her disadvantage by said deed. She specifically prayed that the order be set aside and she be given time to file exceptions to the account.

On March 10, 1966, the court, without notice to appellee, set aside the orders of February 9.

Though the court had thus on March 10 set aside his orders approving the final accounts, appellee on March 25, 1966 filed an answer to appellant’s motion, the answer consisting of exceptions and a general denial.

It is our view that the effect of the court’s order of March 10 was to grant a new trial and the final accounts remained on the docket to be acted on. The court still had jurisdiction over its order and could have set the order aside on its own motion.

On March 25, 1966, the appellee also filed what he denominated a “Bill of Review”. In it he prayed that the court set aside its order of March 10 and reinstate its order of February 9. The pleading is lengthy. Its substance insofar as is material here is that appellant was the bookkeeper for the ranching operations and was at all times familiar with the manner in which the operations were carried on, including the manner of the sale of the cattle. She furnished to appellee much of the information to ap-pellee and his counsel that went into his various reports to the court. Appellant or her counsel were furnished with copies of all accounts filed and she never made or filed any objections. Particularly the agreed voluntary partition of December, 1962 was alleged and it was asserted that she had received her share of the estate and had made no offer to return any of it. By reason of her knowledge of the affairs of the ranch operations and yet never having made any complaint until her motion of March 10, 1966, she had consented to the acts of appellee and had ratified his conduct and was estopped from questioning the final account.

Actually it appears to us that the real difference between the parties is over a deed of July 14, 1961, from appellant to appellee conveying the interest she had obtained from Bert, Jr. to appellee. Such deed does not appear in the record, but is referred to in the pleadings. Its validity is the subject of another suit.

We do not find in the record any pleading by appellant denominated Exceptions to the Final Accounts, but her only pleading was one we have noticed asking that the order of February 9, 1966, be set aside so she could file exceptions. It, however, did allege an intermingling of the estates’ cattle with those belonging to other persons, and in both trial courts the parties seem to have treated this as an opposition or exception to the accounts.

On September 22, 1966, the County Court rendered judgment granting the bill of review, reinstating its order of February 9, 1966, and approving the final accounts, closing the estates, and discharging the administrator and his sureties.

Appellant appealed to the District Court and there the cases were consolidated. The District Court, on trial without a jury, rendered judgment approving the accounts, closing the estates and discharging the administrator and his sureties.

Trial in the District Court was limited, by agreement, as to whether the final accounts should be approved because the administrator had allegedly commingled estate cattle with cattle belonging to other persons and sold such of them as were authorized to be sold along with other persons’ cattle without segregating them.

The District Court made his findings of fact and conclusions of law, only some of which we need notice. He found that authority to sell the cattle had been obtained as we have above discussed and that appellant received copies of the application and the order of the court granting authority. It also found the report of the sales was made January 3, 1963; that appellant received a copy of the report and the order of the court confirming such sales. It found that all sales were made legally and in the manner required by law and for a sufficient consideration. No appeal was taken from any orders in connection with the sale of livestock. Too, it found appellant had received or was properly credited with her proportionate interest in the livestock sold. It found that appellant, accompanied by her livestock expert and attorney on December 5, 1962, met appellee and they divided the remaining cattle; that appellant received her proportionate share and made no objection that she did not receive her proportionate share. Further, the court found that appellee’s annual accounts filed July 11, 1962 and January 2, 1964 fully reported the sale of the livestock, the money received therefor and the disbursement thereof. Appellant and her attorneys received copies of said accounts and filed no objections and the accounts were approved. Findings were also made concerning the filing of the final accounts ; that a copy was furnished appellant’s counsel and he approved the orders entered by the court February 9, 1966. Too, it was found appellant had notice of the final accounts. It was found that appellee acted with propriety and legally in all matters affecting the estates and did not act negligently or carelessly. All sales of cattle and livestock were in a manner provided by law and all orders and reports required by law were obtained and complied with.

The court concluded in his conclusions of law that the County Court’s order in each estate was in all things valid and legal and should have been entered. Further, it concluded that there was no negligence or carelessness on the part of appellee and that all affairs of said estate were handled with dispatch, prudence and in accordance with good business and good business practices. It was found that appellant had failed to prove any errors, mistakes, fraud or negligence in handling the affairs of the estates, including the sale of cattle and livestock. The court specifically found that appellant approved the sale of the cattle and approved the distribution of the assets received from the sale of the cattle and division of the remainder of the cattle and she was estopped as a matter of law from questioning the sale and distribution.

On trial in the District Court, appellee placed in evidence the various accounts and the County Court’s orders approving them, the application for voluntary partition and the agreed order, and all other applications made by appellee and the County Court’s orders approving them, which we have previously set out. On trial in the District Court only appellee and the deputy clerk of the District Court were witnesses. The clerk was used only to establish the authenticity of court records. Appellee was the only witness as to how the sales of estate cattle were conducted.

Appellee was a rancher and lived with his wife and daughter on the ranch with his mother and father. The mother and father engaged extensively in the cattle operation. He helped them in running the ranch. Appellant worked at a bank in Angleton and was an accountant and had been for many years. Appellee furnished a copy of each annual account to appellant or her attorney.

Appellee’s cattle were pastured on the ranch with the estate cattle. He and his wife each had a separate brand, as did his mother and father. The cattle, except for the calves, were branded so the person to whom they belonged could be ascertained. The cattle were not all sold at one time, but there were probably about 20 sales. Appellee testified to the long-standing manner in which cattle in the Gulf Coast area were sold. The cattle were taken to the livestock commission merchant in trucks. If one owner did not have a complete load, some other person’s cattle would be used to complete the load. The cattle mixed would be of about the same quality and weight. There might be some slight disparity in weight between the individual cattle sold in a lot. While the quality of the cattle might differ some, the price would vary only 3 or 4 cents a pound. All cattle sold were range cattle and no high quality ones were sold. Through the period of the sales the market remained steady. This manner of sale was not only commonly followed by people generally in the area, but had been followed by appellee and Mr. and Mrs. Jamison during their lifetime. Too, it had been followed by appellee’s grandfather.

When the cattle were sold, the total sales price would be taken, less trucking charges and sales commission, and divided among the owners in proportion to the number of head in the lot sold that belonged to each owner. For instance, if a lot of 40 cows sold for $4,000.00, less the trucking and sales charges, this amount would be divided by 40 to get the per-head price. This latter figure would be multiplied by the number of head belonging to each owner and the resulting figure would be the amount received by a particular owner.

In the annual account covering the period for July 14, 1961 through June 30, 1962, a copy of which was furnished appellant’s attorney, several sales were reported. It is most interesting to note how such sales were reported. The account shows a sale October 2, 1961. It was reported in this manner: “Port City Stockyards, sale of 39 calves belonging to Estates ($2618.47) and 14 belong to John H. Jamison and Mrs. John H. Jamison.” Then followed a listing of the total sales price. Under the expenditures is listed reimbursement to appellee and wife in this manner: “October 5 John H. Jamison, reimbursement for 10 calves sold with (emphasis ours unless otherwise noted) Estate calves to Port City Stockyards October 2, check for entire group deposited to Estate account $671.40.” The same is shown for Mrs. Jamison except 4 of her calves were sold. The same account shows two other sales of estate cattle with cattle of appellee and his wife. The disbursements showed reimbursement for cattle belonging to them for the cattle sold with estate cattle. Also in the disbursements shown there are two reimbursements to Charley McDonald for calves sold with estate cattle, though we do not find a report of the sales reflects any McDonald calves. Appellee testified he made only one or two sales for McDonald.

The account was filed July 11, 1962, and was approved by the court July 23, 1962.

After this, on December 5, 1962, the application for voluntary partition was approved by the county judge, the order being one approved by appellant’s attorney with the request that it be entered.

During this time appellant was the bookkeeper for the ranching operations. So far as the record reflects, we hear no complaint from appellant until she filed her motion of March 10, 1966. In the meantime she had use of the property she received under the agreed voluntary partition, including proceeds from the sales of cattle theretofore made, all of which had been reported as we have above detailed. We do not recall anywhere in any pleading filed by her that she claimed she had no knowledge of the manner of the sales, though she does in her pleading of March 10, 1966, allege the fact of intermingling.

Appellant in her brief relies on the principle applicable to trustees and other fiduciaries, to the effect that a fiduciary’s individual property shall not be commingled with that of the beneficiary, and if he does commingle the properties the burden is on the fiduciary to trace and identify the beneficiary’s property. She relies, other than general fiduciary cases, on Sections 32 and 37 of the Probate Code. The first cited section establishes the common law as governing the rights, powers and duties of an administrator where not in conflict with the Probate Code. The second cited section deals with the vesting of title in the heirs, legatees and devisees, subject to administration where necessary and provides the personal representative shall hold the estate in trust to be disposed of in accordance with law.

Under the peculiar facts of this case, we do not believe such rule if applicable generally is controlling here.

There is no doubt that the estate cattle, in some instances, were commingled with those belonging to others and sold, as was customary. However, we are of the view that the record sustains the inference that appellant consented to such manner of sale- and that by her conduct as detailed above she ratified such sales and is now estopped to question them.

An analysis of the evidence above set out shows that appellant was bookkeeper for the ranching operations, which were authorized by the court pursuant to Section 238 of the Probate Code. Appellee’s testimony shows appellant helped prepare much of the information that went into the reports to the County Court. She or her attorney were furnished copies of all of the reports. As specified above, the first annual account, which detailed practically every sale of cattle, reflected a mingling of the cattle, yet appellant raised no objection. Then a few months following such report, appellee asked for authority to partition the estate pursuant to an agreement between appellee and appellant. This included the division of the proceeds from the cattle sales, of which she complained for the first time about three years later. The authority for the appellee to partition the estate was granted pursuant to an order expressly agreed to by appellant’s attorney, and she nowhere complains of such order. Also, pursuant to such order of authority, she and appellee divided the remaining cattle as well as the other assets of the estate. She makes no complaint of the partition, apart from an apparent assertion that a deed she gave to appellee to the interest she had acquired on July, 1961 from her brother Bert is invalid.

We are cited no authorities and have found none on the conclusions we have expressed, but on principle we feel they are correct.

We do not, however, hold that the annual accounts that were approved constitute res ad judicata. Section 408, Texas Probate Code, contemplates they be brought forward by reference in the final account and the whole of the accounts may be ordered restated if the facts warrant such.

We do not pass on the validity of the alleged deed from appellant to appellee conveying the interest she got from Bert, Jr. The deed is not in the record and is merely alleged in some pleading. The Probate Court had no jurisdiction to pass on its validity. Its existence and validity were not material to the limited issues on which the case was tried below and is submitted here. The findings of the trial court with regard to such deed were really not supported by evidence, but only pleading. In any event they are not material to our de-cisión, and our decision is without prejudice to the pending suit contesting the validity of said deed or any rights that might flow from a cancellation of such deed.

Affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    W. B. HOSSLEY, d/b/a Hossley Business Forms Company, Appellant, v. ROADWAY EXPRESS, INC., Appellee.
    No. 6930.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 21, 1967.
    Rehearing Denied Oct. 18, 1967.
    Smith & Lehmann, Houston, for appellant.
    Bryan & Bryan, Houston, for appellee.
   STEPHENSON, Justice.

This is an action for damages brought by plaintiff against defendant, a common carrier. It is alleged that plaintiff bought a printing press from the Schriber Company which was damaged because of the negligence of defendant while it was being transported. Defendant’s motion for suiti-mary judgment was granted. The parties will be referred to here as they were in the trial court.

The affidavit attached to defendant’s motion for summary judgment showed the following: That defendant is an interstate common carrier duly licensed and authorized to operate. That plaintiff purchased an Offset Imprinter Press from the Schriber Company at Dayton, Ohio, to be delivered by defendant to plaintiff at Houston, Texas. A uniform straight bill of lading was issued by defendant September 22, 1964. The printing press was damaged while being unloaded at Houston September 28, 1964, and was returned the next day to the shipper for repairs. After the repairs the printing press was delivered by defendant to plaintiff November 6, 1964, and a uniform straight bill of lading issued on such date. November 24, 1964 the Schriber Company filed a claim for damages with defendant, being dated November 20, 1964, and in the amount of $1,672.45. December 9, 1964 defendant paid such claim in full. The uniform straight bill of lading issued by defendant contained a provision that claims for loss, damage, injury or delay must be filed in writing with the carrier within 9 months after delivery, and where no such claim is filed, the carrier will not be liable. The first written claim of plaintiff was dated December 1, 1965, which was not within the 9 months period required by the bill of lading.

Plaintiff filed an affidavit opposing the motion for summary judgment, which contained the following: The claim of the Schriber Company dated November 20, 1964 was made “for and on behalf of your Plaintiff, and for the benefit of your Plaintiff, and as the express and/or implied agent of your Plaintiff, and/or for the use and benefit of your Plaintiff,”. The plaintiff’s damages were not fully known at such time, and the claim was amended March 16, 1966. The defendant was fully aware that losses and damages had been sustained. The partial payment by defendant to the Schriber Company constituted a waiver or estop-pel as to the notice provision in the bill of lading.

Plaintiff contends first that the claim for damages of the Schriber Company dated November 20, 1964 was for the use and benefit of plaintiff, and that the Schriber Company acted as the agent for plaintiff in making such claim. An examination of plaintiff’s affidavit does not set forth any facts which would constitute agency, and therefore failed to raise an issue of fact. The statement made in the affidavit as to this matter was nothing more than a conclusion of law, and would not be admissible in evidence on a trial on the merits. The law in this state does not permit us to consider legal conclusions in affidavit opposing a motion for summary judgment. Rule 166-A(e), Texas Rules of Civil Procedure; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317.

Plaintiff also contends that defendant had actual notice of the damage and no other notice is required, and that such requirement was waived and defendant was estopped to rely upon such defense. The law of this state is to the contrary. It was held in Texas & N. O. R. Co. v. McNatt, Tex.Civ.App., 223 S.W.2d 651, as follows:

“The stipulation in the bill of lading, to the effect that no damages could be recovered unless a claim in writing for any asserted loss or damage be filed within nine months after the date of delivery was a valid stipulation and binding upon the parties. Schaff v. Ike Exstein & Bro., Tex.Civ.App., 270 S.W. 589.
“Failure to file a written claim in keeping with the provisions of the bill of lading was an absolute bar to any recovery by appellee. Texas & N. O. R. Co. v. Rosenblum, Tex.Civ.App., 195 S.W. 2d 433; St. Louis Southwestern Railway Company of Texas v. Overton, Tex.Civ.App., 178 S.W. 814.
⅝ ⅝ Jfi ⅜ ⅜ ⅝
“ * * * In the case of Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948, it was held that the terms of a bill of lading cannot be waived by either of the parties for the reason that to permit a carrier to waive or estop itself from asserting the provisions in the bill of lading would lead to discriminatory acts forbidden by the interstate commerce act. In view of the provisions of Article 6474, supra, the parties should not be permitted to waive the provisions of a bill of lading in an intrastate shipment for the same reasons.”

See also Corbamex, S. A. v. Republic Carloading & Distrib. Co., Tex.Civ.App., 378 S.W.2d 938.

Plaintiff’s points of error are overruled.

Affirmed.


author: COLEMAN, Justice.

text:
    D. Stephen MENZIES, Appellant, v. Beverly P. MENZIES, Appellee.
    No. 15106.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Sept. 28, 1967.
    Ben L. Adams, Jr., Houston, for appellant.
    Presley E. Werlein, Jr., Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit for divorce. The appeal is from that portion of the final judgment setting child support and attorney’s fees.

Appellant contends that the trial court abused its discretion in setting child support payments in the sum of $250.00 per month for the reason that the evidence established that the net profits from appellant’s business had averaged only about $640.00 per month from July, 1966, to the date of the trial in December, 1966.

There was testimony in detail concerning the business income and expenses for the period July 1, 1966, to September 30, 1966. Gross income for the period was $6,730.09. Expenses allowed for income tax purposes were shown to be $4,809.98. Appellant testified that his income and expenses for the following quarter were about the same. He testified that he owed the United States Government $3,300.00 for withholding taxes which he had failed to pay when due, and that he had to reduce this debt by $410.00 each month. He also had a bank note payment of $178.17 each month and a payment of $75.00 each month as support for a child of a previous marriage. He also had a car note of $159.00 per month.

The expenses which appellant paid out of his gross income were detailed and the trial court may well have concluded that some of the items could have been eliminated and others reduced, thus increasing his net income. There was also evidence that appellant’s standard of living could not have been maintained on the net income to which he testified. There was testimony from which the trial court could have concluded that the income from appellant’s business was substantially less during the pendency of the divorce proceedings than it had been prior thereto. There was evidence that $250.00 per month was reasonably necessary for the support of the child.

The judgment recites that the parties had agreed on the division of their separate and community property, and that no adjudication was made thereon at the request of the parties. Neither the transcript nor the statement of facts shows the nature and extent of this property.

The trial court found that appellant was able to contribute the sum of $250.00 per month for the support of his son. There is evidence to support this finding. The trial court has great discretion in fixing the amount of child support. We cannot say that in this instance the trial court clearly abused its discretion. Clark v. Cohen, 205 S.W.2d 797 (Tex.Civ.App., Galveston 1947); Thompson v. Thompson, 380 S.W.2d 632 (Tex.Civ.App., Ft. Worth, 1964).

Neither are we at liberty to set aside the judgment of the trial court with reference to attorney’s fees in the absence of a showing of an abuse of discretion. Thompson v. Thompson, supra; Hayes v. Hayes, 378 S.W.2d 375 (Tex.Civ.App., Corpus Christi 1964); Swenson v. Swenson, 406 S.W.2d 245 (Tex.Civ.App., Eastland 1966).

Here appellee’s attorney testified as to the number of hours he had devoted to this case. The size and value of the estate belonging to appellant is not in the record. We cannot say that the trial court abused its discretion in awarding appellee $1500.00 for attorney’s fees.

The judgment of the Trial Court is affirmed.


author: DAVIS, Justice.

text:
    Dorothy Elizabeth SMITH et vir, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 7821.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 19, 1967.
    Rehearing Denied Oct. 17, 1967.
    Cornett, Flanary, Echols & Bailey, Paris, for appellants.
    Moore & Lipscomb, Paris, for appellee.
   DAVIS, Justice.

A workmen’s compensation case. Plaintiffs-appellants sued appellee because of an alleged injury to Dorothy Elizabeth Smith (hereinafter referred to as Mrs. Smith), on April 15, 1965, while in the course of her employment for Campbell Soup Company (hereinafter referred to as the plant). Appellee was the insurer.

The case was tried to a jury. In response to the jury’s answers to the special issues submitted, the trial court entered a judgment that appellants take nothing. They have perfected their appeal and bring forward 2 points of error.

By Point One, appellants say the trial court erred in overruling their motion for new trial because the verdict and findings of the jury that the appellant, Mrs. Smith, sustained no total or partial incapacity on account of her injuries are so against the great and overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.

The evidence shows that the accident complained of occurred about 2:00 p.m., April 15, 1965, while Mrs. Smith was working as an employee of the plant. She remained on the job the balance of the day, returned the next day and worked all day. On April 19, 1965, she called the nurse at the plant and reported the injury. That afternoon she was examined by the plant physician. She was seen several times by the physician, was given certain medicine, and was given heat and physical therapy treatments. The evidence shows that she continued to improve and was dismissed by the plant physician on May 7, 1965. She returned to work on May 21, 1965, and continued through October 11, 1965, with the exception of a few absences caused by migraine headaches and female trouble.

The jury found that Mrs. Smith had sustained the injury on April 15, 1965, but the injury did not result in any total or partial disability.

On October 12, 1965, about 7:30 a.m. Mrs. Smith was in her bathroom, was brushing her teeth while stooped over the lavatory, or was picking something up off the floor, when she says she experienced a severe pain in her lower back. She was placed in a hospital where she remained until October 15, 1965. She continued to see the plant physician until about October 28, 1965, when she was referred to an orthopedic specialist in Greenville.

The plant physician and the orthopedic specialist both gave Mrs. Smith several complete examinations and did not find any positive evidence of any specific injury to her lower back. They gave her the straight leg raising test to 80 and 90 degrees, the LeSague test, needle pricking test, testified that neither showed any evidence of any injury, and that her knee and ankle tests all showed negative.

Mrs. Smith saw several physicians after the injury, but none of them testified in her behalf. She saw a physician on about November 1, 1965, who placed her in a hospital, and placed her in traction. The hospital records were offered in evidence which contained the following statement by her physician:

“Patient otherwise has been basically' normal except she has a rather marked psychological overplay in nearly all her illnesses”.

The evidence is conflicting, but we find it fully sufficient to support the jury findings. 4 T.J.2d, 390, Sec. 837; 4 T.J.2d, 395, Sec. 838, 57 T.J.2d, 94, Sec. 453, and the cases cited under each section.

The point is overruled.

We have carefully examined the appellants’ other point of error, find it to be without any merit, and it is overruled.

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Phillip J. HAMM, as Commissioner of Revenue of the State of Alabama, Appellant, v. Mary W. BERREY, Appellee.
    No. 14611.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 6, 1967.
    Rehearing Denied Oct. 11, 1967.

      John M. Killian, Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.
    Bobbitt, Brite, Bobbitt & Allen, San Antonio, for appellee.
   KLINGEMAN, Justice.

Suit by the Commissioner of Revenue of the State of Alabama, appellant, to enforce an assessment for non-resident income taxes made against appellee. Appellant appeals from an order of the trial court sustaining appellee’s plea to the jurisdiction.

The material findings of fact made by the court are summarized as follows: (a) Appellee has been a continuous resident of the State of Texas since 1922, and was last physically present in Alabama in 1941. (b) Appellee sold certain interests in real estate owned by her in Alabama in the years 1952, 1953 and 1954. (c) Appellee failed to file an Alabama non-resident income tax return for the years 1952,1953 and 1954. (d) Appellee made no appearance before the Department of Revenue of the State of Alabama, or in any court within that State in regard to such non-resident income tax claim, (e) No judgment has ever been obtained against appellee in any court within the State of Alabama.

The following conclusions of law were filed by the court: (1) The assessment rendered against defendant by the Revenue Department of the State of Alabama is not a judgment and the Courts of the State of Texas are not required to extend full faith and credit to such assessment. (2) That comity does not require that the Courts of the State of Texas enforce the revenue laws of the State of Alabama. (3) That the revenue laws of the State of Alabama in regard to the collection of nonresident income taxes are penal in nature, and will not be enforced in the Courts of this State. (4) That under the authority of State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758, this action cannot .be maintained by Plaintiff against Defendant in the Courts of the State of Texas.

During the years 1952, 1953 and 1954, appellee, then a resident of the State of Texas, sold certain interests in lands owned by her in Alabama. In December of 1961, appellee received a letter from the Department of Revenue of the State of Alabama to the effect that, according to their records, she had not filed Alabama non-resident income tax returns for the years 1952, 1953 and 1954, and that if no such returns had been filed to file them immediately. Ap-pellee made no response to that letter. On January 31, 1962, another letter was sent to her stating, since she had not cooperated in filing these returns that her income tax liability had been compiled for said years from best information available, and a statement of such liability was attached. Under date of February 18, 1963, final assessment of income taxes for the three calendar years was made and notice of such final assessment was allegedly mailed to appellee by registered mail on or about February 21, 1963, which notice provided that an appeal could be taken from said assessment within thirty days from the date of such final assessment. Appellee made no formal protest or appeal to the Commissioner of Revenue or to any court within the State of Alabama, and made no payments to the Commissioner of Revenue with regard to such non-resident income taxes. Appellee at no time made any appearance before the State Department of Revenue or any court of Alabama with respect to such non-resident income taxes.

Appellant’s principal contentions on appeal are: (1) The assessment of income tax made by the Department of Revenue, with no appeal therefrom, constitutes a judgment and was entitled to full faith and credit under Article IV, Section 1, of the United States Constitution. (2) The trial court erred in concluding that principles of comity do not require the courts of the State of Texas to enforce the revenue laws of the State of Alabama. (3) The trial court erred in concluding that the revenue laws of the State of Alabama in regard to the collection of non-resident income taxes are penal in nature and will not be enforced by the courts of this State.

Appellant contends that under Alabama laws a final assessment entered by the State Department of Revenue and not appealed from by a taxpayer is as conclusive as a judgment of an ordinary court, and no attack can be made upon it except as applies to an ordinary court judgment. Appellant, in his brief, cites a number of Alabama cases in support of this contention, and also refers to and sets forth various sections and provisions of Jhe Alabama laws applicable to the assessment of income taxes, including Sections 140, 373, 407 and 770, Title 51, Code of Alabama, 1940, and also Section 139 of the Alabama Constitution.

We agree with appellant’s contention that a State must, under Article 4, Section 1, of the Constitution of the United States, give the final judgment of a sister State the same force and effect as it is entitled to in the State in which it is rendered. Barber v. Barber, 323 U.S. 77, 65 5.Ct. 137, 89 L.Ed. 82; Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942). However, there was no request by appellant for the trial judge to take judicial notice of the public statutes and court decisions of the State of Alabama as provided by Rule 184a, Texas Rules of Civil Procedure, nor did he plead or prove the applicable provisions of the Alabama law upon which he relies. Our Texas Courts may not take judicial notice of the laws of another State in the absence of a proper request to do so. Harris v. Harris, Tex.Civ.App., 403 S.W.2d 445, writ ref’d n. r. e. Since appellant has neither pled nor proved what the laws of Alabama are, nor availed himself of Rule 184a, T.R.C.P., it will be presumed that the laws of Alabama are the same in respect to the facts presented as those of Texas. Harris v. Harris, supra; Lodge v. Lodge, Tex.Civ.App., 368 S.W.2d 40, no writ; Kansas City Title Ins. Co. v. Butler, Tex.Civ.App., 265 S.W.2d 154, writ ref’d n. r. e.; Vickers v. Faubion, Tex.Civ.App., 224 S.W. 803, no writ; Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, writ ref’d.

Black’s Law Dictionary, Third Edition, defines a judgment as “The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.”

Appellant relies heavily on Commonwealth of Massachusetts v. Davis, supra, which was a suit by the State of Massachusetts in a Texas court against Davis on an income tax judgment rendered against Davis in a court in the State of Massachusetts. Davis contended that the Massachusetts income tax law was unconstitutional and our Supreme Court, in refusing to pass on the question of the constitutionality of such statute, held that Texas was required to give full faith and credit to the Massachusetts judgment if the court which rendered it had jurisdiction of the parties and of the subject matter of the suit. Appellant also relies on Gard v. Gard, 244 S.W.2d 884, writ dism’d, and Garman v. Reynolds, 284 S.W.2d 262, writ ref’d, but in both of those cases judgment had been rendered in other states, by their courts, and requests had been made under Rule 184a to take judicial notice of the foreign law. There is nothing in this record to establish that the assessment made by the Department of Revenue of the State of Alabama was a judgment which will be entitled to full faith and credit under Article IV, Section 1, of the United States Constitution. The trial court correctly concluded that the suit brought by appellant was based upon an assessment made by the State Department of Revenue of Alabama and not based on a judgment rendered by a court of Alabama.

Appellant’s points of error that the trial court erred in concluding that principles of comity do not require that the courts of the State of Texas enforce the revenue laws of the State of Alabama, and erred in concluding that the revenue laws of the State of Alabama in regard to the collection of non-resident income taxes are penal in nature and will not be enforced in the courts of this State, will be discussed together. In support of his point of error with regard to comity appellant relies on Article 20.17 Vernon’s Ann.Civ.St., and sets forth in his brief the comity statute of the State of Alabama, Title 51, Sec. 914, with regard to enforcement of liability for taxes imposed by other states. It is to be noted that the Texas statute is confined to sales and use taxes and does not mention income taxes. More significant is the fact that no proof of the provisions of the applicable Alabama comity statute was made to the court, nor did appellant set forth the terms and provisions of such statute in any of his pleadings, but merely referred to such statute as “Title SI, Section 914, Code of Alabama 1940, recompiled 1958.” As hereinbefore pointed out, appellant did not invoke the provision of Rule 184a, T.R.C.P., consequently, under the decisions herein-before set forth, the terms and provisions of the Alabama comity statute were not available to the trial court at the time the case was decided.

The holding of the trial court is supported by the case of State of California v. Copus, supra, which wás an action by the California Department of Mental Hygiene against a Texas resident who had formerly resided in California, for support and maintenance payments for the mother of the defendant who was confined at a California hospital, both before and after defendant changed his residence, under a California statute imposing liability upon children of persons confined in the state hospital for support and maintenance. The Waco Court of Civil Appeals in Copus v. Department of Mental Hygiene, State of California, Tex.Civ.App., 301 S.W.2d 217, reversed and rendered a judgment of the trial court for the full amount sued upon and stated:

“Comity, under the authorities cited, will not require Texas to enforce the liability imposed by the California statute upon one of our citizens, when the public policy of this state creates no such liability. It should be noted that there is no question here of enforcing a California judgment — only the question of enforcing a right created by a California statute, against a citizen of Texas, when the statutes and public policy of Texas admit of no such right.”

The Supreme Court of Texas in affirming said judgment in part and reversing it in part (State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758) stated: “The general rule rather universally recognized is that the statutes of a state ex proprio vigore have no extraterritorial effect. * * * We hold there can be no recovery by the State of California against respondent for support rendered to his parent after respondent removed from the State of California and became domiciled in this State.”

See also annotation in 165 A.L.R. 796 on the right to maintain an action to collect a tax due to another state, at pages 796 and 802, wherein it is said that the rule became generally established, that the revenue laws of one state or country will not be enforced in the courts of another state or country, and that the view that an action or proceeding may be maintained in the courts of one sovereignty to recover taxes due to another sovereignty has received scant support from the courts.

An out-of-state case closely in point is Wayne County v. Foster & Reynolds Co., 277 App.Div. 1105, 101 N.Y.S.2d 526, wherein the Supreme Court of the State of New York (Appellate Division), on a set of facts similar to those in this case, said: “Here, as in the other case, no judgment has been obtained in the state of Michigan, and plaintiffs must rely solely upon the assessment. A tax assessment is not a judgment for the purpose of suing thereon in a foreign jurisdiction. Plaintiffs may not collect the taxes against their nonresident through the instrumentality of the courts of New York without first having the assessment reduced to judgment against the taxpayer in the taxing jurisdiction in compliance with due process.” (Emphasis added.)

All of appellant’s points of error are overruled. The judgment of the trial court is affirmed.

      . Rule 184a.
      “The judge upon the motion of either party shall take judicial notice of the common law, public statutes, and court decisions of every other state, territory, or jurisdiction of the United States. Any party requesting that judicial notice be taken of such matter shall furnish the judge sufficient information to enable him properly to comply with the request, and shall give each adverse party such notice, if any, as the judge may deem necessary, to enable the adverse party fairly to prepare to meet the request. The rulings of the judge on such matters shall be subject to review.”

      . “Art. 20.17. Tax Suit Comity — The courts of this State shall recognize and enforce liabilities for sales and use taxes lawfully imposed by any other state, provided that such other state extends a like comity to this State. As amended Acts 1961, 57th Leg., 1st C.S., p. 71, ch. 24, art. I, § 1; Acts 1963, 58th Leg., p. 371, ch. 138, § 1.”

      . “§ 914. Enforcement of liability for taxes imposed by other states. — The courts of the state of Alabama shall recognize and enforce the liability for taxes lawfully imposed by the laws of any other state that extends like comity to the state of Alabama and the officials of such other state are hereby authorized to bring action in the courts of this state for the collection of such taxes. The certificate of the secretary of state of such other state that such officials have the authority to collect the taxes so to be collected by such action shall be conclusive proof of that authority.
      “The term ‘taxes’ as used in this section shall include: (a) Any and all tax assessments lawfully made. (b) Any and all taxes (including contributions under all unemployment compensation law or other contributions in the nature of a tax) whether such taxes (including contributions) are assessed or not, licenses and fees, (c) Any and all penalties lawfully imposed pursuant to a taxing statute. (d) Interest charges lawfully added to the tax liability which constitutes the subject of the action. (1947, p. 613, appvd. Oct. 9, 1947.)”


text:
    J. Wayne WINFREY, Appellant, v. Walter Dale LUTTRELL, Appellee.
    No. 7842.
    Court of Civil Appeals of Texas. Texarkana.
    Sept. 26, 1967.
    William J. Adams, Dalton, Moore, Forde & Joiner, Dallas, for appellant.
    Bill J. Stephens, Stephens & Stanton, Dallas, for appellee.
   DAVIS, Justice.

A suit on • a promissory note. Plaintiff-appellant alleged an anticipatory breach, or repudiation, of a note executed by defendant-appellee, dated February 17, 1966, payable on or before February 17, 1969, with interest payable semi-annually from date. The suit was filed November 10, 1966. There is no provision to accelerate the payment of the principal of the note; unless it would be at the will of appellee.

Appellee filed a general denial, the date the note matured, and prayed that appellant take nothing. Appellee then filed a motion for summary judgment based upon the pleading.

Appellant filed a controverting plea to the motion for summary judgment in which he alleged the anticipatory breach in which fact issues were raised that would entitle him to damages as of the date of such breach.

The motion for summary judgment was treated as a plea in abatement because the suit had been prematurely filed, and the case was dismissed. The interest that had accrued on the note at the time of dismissal amounted to $283.80; not within the jurisdiction of the District Court. Appellant has perfected his appeal and brings forward five points of error.

Appellant says the trial court erred in granting the motion for summary judgment, or in dismissing the suit because; (1) there was present genuine issues of material fact; (2) appellee had anticipatorily breached his promise to pay the said note; (3) the pleadings raised issues of law, if supported by evidence of probative value would entitle appellant to judgment for the anticipatory breach; and (5) the defense was not affirmatively raised by the pleading.

Appellee challenges each of the points and says that a negotiable promissory note cannot be anticipatorily breached. In the case of Woessner v. Fly, Tex.Sup.Ct., 1901, 83 Tex.Rep. 198, Chief Justice Willie said:

“The principal of the note sued on was not, by the terms of the note, made pay able till some time after the date of the commencement of the suit. The interest accruing upon the note fell due semiannually only; two installments, amounting together to $491.20, were overdue when the suit was brought. It is contended by appellant’s counsel, however, that upon failure to pay the interest as it fell due, the whole debt matured, and hence the suit was not prematurely brought. We know of no authority for this proposition, and we are cited to none sustaining it. As there was no express agreement between the parties that the failure to pay accruing interest should cause the notes to mature, they would not fall due until the date of maturity mentioned in the note itself.
“As the interest due upon the note was not sufficient to give the court jurisdiction, and as the only ground upon which the suit could be maintained before the note matured was the suing out of the writ of sequestration, and that had been quashed, there was no error in dismissing the suit, and the judgment is affirmed.”

In the case of Motor & Industrial Finance Corporation v. Hughes, 1957, 157 Tex. 276, 302 S.W.2d 386, Justice Smith said:

“The failure to pay interest accruing on indebtedness evidenced by a note will not cause the note to mature, or give the holder an option to declare the same due, before the maturity date specified therein unless the parties have made an agreement to that effect. See Woessner v. Fly, 63 Tex. [Rep.] 198. It is equally well settled that ‘a contract to thus accelerate the maturity of a debt gives a remedy that is harsh in its nature, and provision therefor, in order to be effective, should be clear and unequivocal; and, if there is a reasonable doubt as to the meaning of the terms employed, preference should be given to that construction which will avoid the forfeiture and prevent acceleration of the maturity of the debt.’ Crumley v. Ramsey, Tex.Civ. App., 93 S.W.2d 191, 192 (er. ref.) An application these principles to the present case requires a holding that default in the payment of interest does not entitle the plaintiff to mature the principal of the note.”
The points of error are overruled.

The judgment of the trial court is affirmed.


author: PARKER, Justice.

text:
    MONTGOMERY WARD & CO., Appellant, v. Anthony J. RANDIO, Appellee.
    No. 6929.
    Court of Civil Appeals of Texas. Beaumount.
    Sept. 14, 1967.
    Rehearing Denied Oct. 4, 1967.

      Baker, Botts, Shepherd & Coates, Houston, for appellant.
    John J. Toomey, Toomey & Toomey, Houston, for appellee.
   PARKER, Justice.

Anthony J. Randio, a passenger in a car driven by Dechman, sued Montgomery Ward & Co. and James Davenport Jelley for damages for personal injuries sustained in an automobile accident on October 3, 1964. Dechman filed a separate suit against the same defendants arising out of the same accident. The two cases were consolidated and tried together. Upon a jury verdict Randio recovered damages in the amount of $2,593.46 from Jelley and Montgomery Ward & Co. Dechman took nothing as against the same defendants. Montgomery Ward & Co. by way of indemnity recovered $2,593.46 from Jelley. Montgomery Ward & Co. appeals from the judgment Randio obtained against it. Ran-dio will be called appellee and Montgomery Ward & Co. will be called appellant.

Appellee alleged that James Davenport Jelley was Montgomery Ward & Co.’s agent and/or servant and/or employee and in the course and scope of his employment with the defendant, Montgomery Ward & Co., when the collision occurred due to the negligence of the appellant and Jelley. Appellant pleaded general denial and alleged the affirmative defense that Jelley was an independent agent and not in the course and scope of his employment for appellant when the accident occurred. The jury found in answer to special issue No. 1 that Jelley was not an independent contractor. In answer to special issue No. 2 the jury found Jelley was an employee of appellant.' Further the jury found that negligence on Jelley’s part proximately caused the accident ; that the plaintiff Dechman was guilty of contributory negligence which was not the sole proximate cause of the accident; that the accident was not unavoidable; and that Randio had sustained damages in the amount of $2,593.46.

By special issue No. 2 the jury found that at the time of the collision in question the defendant, James Davenport Jelley, was an employee of the defendant, Montgomery Ward & Co. Appellant objected and excepted to such issue and the court’s submission thereof because there is no evidence and insufficient evidence that Jelley was an employee with respect to his activities at the time in question, and the overwhelming weight and preponderance of the evidence is to the contrary, and because said issue “is insufficient to support a judgment against defendant, Montgomery Ward & Co., on any theory of the defendant, James Davenport Jelley, being engaged in work ‘or activities’ as an employee in the course and scope of his employment at the time in question for defendant, Montgomery Ward & Co.” Appellant moved the trial court to disregard the jury’s answers finding that Jelley was not an independent contractor and because there was no finding that he was in the course and scope of his employment that it have judgment that Randio take nothing against it.

At the close of all the evidence the appellant made its motion for directed verdict urging that the evidence clearly showed that the defendant, James Davenport Jelley, was, in regard to the outside calls that he made in connection with his relationship with Montgomery Ward & Co. an independent agent setting forth its reasons for making such motion, and that there was no evidence and insufficient evidence that Montgomery Ward & Co. had either the right of control or exercise of control over Mr. Jelley in his personal activities directed toward sales of Montgomery Ward products. This was overruled. Appellant did not file any motion for new trial. This appeal is limited to what may be considered by appellant moving for judgment after return of jury verdict. Rule 301, Texas Rules of Civil Procedure, provides that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper and further that the court may upon like motion and notice, disregard any special issue or jury finding that has no support in the evidence. The trial court could have sustained appellant’s motion for judgment non obstante veredicto only if an instructed verdict would have been proper. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603 (1953). A directed verdict is never justified except when there is no evidence.

Appellant has two points of error which will be considered together:

1. Appellant’s motions for directed verdict, objections to special issues 1 and 2, and motion to disregard and for judgment should have been sustained because the evidence conclusively established as a matter of law that the defendant, Jelley, was an independent agent in the activities in which he was allegedly engaged at the time of the accident, and there is no evidence, and the evidence is insufficient, to support the findings he was not an independent agent and was a servant in such activities.
2. Appellant’s motion for judgment should have been sustained because there is no finding the defendant, Jelley, was in the course and scope of his employment for appellant.

Mr. Jelley testified that he worked for Montgomery Ward & Co. prior to and including the date of the accident, October 3, 1964, selling central air conditioning and heating units with duct work, both inside and outside appellant’s store. He worked on the floor as a salesman and his pay on the floor and outside was the same, being paid on all sales an 8%.commission with a draw of $60.00 per week. He received one pay envelope each week for both inside and outside sales with Montgomery Ward holding out social security and withholding tax on commission on sales both inside and outside the store. His hours and duties were assigned - by his immediate superior, Mr. Clemens. On the floor he worked 4 hours every other day and 8 hours every other day except Tuesday. From 20-30 hours a week he spent on outside sales. When appellee left the store to make outside calls he would tell his boss the time of appointment, where he was going, name of customer and turn in a card on return explaining results of the call. To leave the store to make outside calls, he had to have permission of his boss. Mr. Clemens gave him leads to customers and encouraged him to make outside sales. To sell central air conditioning units it was necessary to go to the home of the customer to take measurements to determine the placement of ducts and the size of the unit and he was instructed so to do. This required a sketch or drawing of the house showing position of the unit, return air, ducts and electricity. Most of these plans were drawn at appellee’s home with the knowledge of his boss. Mr. Jelley used his car to call on customers and Mr. Clemens, his boss, knew this. Montgomery Ward paid him 8 cents per mile or 1% of total sales, whichever he chose, as an automobile allowance. The automobile allowance was paid by a separate pay enevlope from his regular pay. Appellant set the price for air conditioning unit that he sold, furnishing price lists which he could not vary and allowed a 25% variance in cost of duct work. All this equipment was supplied by Montgomery Ward & Co. unless they were out. Ap-pellee could only sell Montgomery Ward products. The company furnished a contract form that was used on all jobs which had the company’s name on it and was to be filled in by Jelley in the customer’s home and then approved by appellant.

On the day of the accident, Saturday, October 3, 1964, it was a regular working day. He arrived at Montgomery Ward at 8:55 a. m., had lunch from 11:30 to 12:00, with permission of his boss and worked until 3 :45 p. m. He advised Mr. Clemens that he had some calls to make that afternoon and discussed one of the calls, with a Mr. Galny, and received a special unit price from his boss for the equipment. Mr. Clemens gave Mr. Jelley permission to leave the store at 3 :45 p. m. to call on Mr. and Mrs. Galny, whom he had seen previously taking measurements of their two-story home. He had made the drawings the night before. When Mr. Jelley went to his car in the appellant’s parking lot, he discovered he had left the plans at home. He was on his way home by direct route to get these plans and take them to the Galny home when this accident happened at 4:15 p. m. Mr. Clemens told Mr. Jelley to be back at the store that afternoon at 6:00 p. m. After the accident and before 6:00 p. m. he called Mr. Clemens, notifying him of the accident and that he would not be back at work. At the time of the accident Mr. Jelley was driving his personal 1964 Pontiac.

A Mr. Wood, who was assistant manager of Montgomery Ward & Co. central air conditioning department, and a Mr. Lebe-dinzski were employed by appellant to make similar sales under similar conditions of such equipment.

Considering the evidence favorable to the jury finding in answer to special issue 1, the evidence supports the finding of the jury in answer thereto that Jelley was not an independent contractor. A directed verdict in favor of appellant at the close of the case was not authorized. Considering the entire record and all evidence the jury’s finding in answer to special issue 1 is not so against the great weight and preponderance of the evidence as to be manifestly unjust and wrong. Appellant’s point of error No. 1 is overruled.

From the evidence detailed above, Jelley was in the course and scope of his employment for appellant. Although there is evidence to the contrary, there is sufficient evidence to have supported a finding that Jelley at the time of the accident was working in the course and scope of his employment for Montgomery Ward & Co., if such issue had been submitted. Ap-pellee should have requested and obtained the submission of an issue as to whether Jelley, if an employee, was in the course and scope of his employment at the time of the accident. An affirmative answer to such an issue appellee had to have in order to recover as against appellant. Appellant objected and excepted to special issue No. 2 because it was insufficient to support a judgment against appellant on the theory of Jelley’s being an employee of appellant and engaged in the course and scope of his employment at the time of the collision. Appellant was not required to request the issue for appellee. Rule 279, T.R.C.P. With no findings by the jury on the question of whether or not Jelley was acting as an employee in the course and scope of his employment at the time of the collision appellee was not entitled to recover against appellant. With the evidence being controverted on this question, the trial court could not make a finding of its own when appellant had made objection to special issue No. 2 Glen Falls Ins. Co. v. Slaughter, 386 S.W.2d 529 (Sup.Ct.1965); First American Life Insurance Company v. Slaughter, 400 S.W.2d 590 (Tex.Civ.App.1966).

As in Kilgore v. Howe, 204 S.W.2d 1005 (Tex.Civ.App.1947), appellant admits it did not file a motion for new trial and asserts it did not want a new trial but wanted judgment rendered for him on the verdict of the jury. In effect, this is what the appellant is saying in this case. Appellant has termed its motion for judgment a judgment non obstante veredicto. Nevertheless, under Rule 324, T.R.C.P., it is stated: “An assignment in a motion for new trial shall not be a necessary prerequisite to the right to complain on appeal of the action of the court in * * * overruling a motion for judgment for appellant on the verdict.” See also Jemerson v. Houston-American Finance Corp., 351 S.W.2d 574 (Tex.Civ.App.); American General Ins. Co. v. Beare, 225 S.W.2d 454 (Tex.Civ.App.); Miller v. Gahagan, 316 S.W.2d 160, 163 (Tex.Civ.App.); and Barron v. James, 145 Tex. 283, 198 S.W.2d 256, 259 (1946).

The verdict of the jury did not find that appellee was working for appellant in the course and scope of his employment at the time of the accident. Appellee had to establish this as a fact. Appellant in its motion for judgment in simple language stated it was entitled to judgment on the basis that appellee had wholly failed to establish this essential element of recovery. Appellant had brought this matter before the court in every way the rules provide in order to preserve the error. It was error, but there is evidence pro and con as to whether or not appellee was working as an employee of Montgomery Ward & Co. and in the course and scope of his employment at the time of the accident. Appellant’s second point of error is sustained to the extent set forth in the disposition of this case.

The judgment of the trial court is reversed and remanded for new trial.


author: TUNKS, Chief Justice.

text:
    Mary Chambless BURLESON, Appellant, v. Jeff W. BURLESON, Appellee.
    No. 21.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 4, 1967.
    Rehearing Denied Oct. 25, 1967.

      Huggins, Vickery & McConnell and Charles R. Vickery, Jr., Houston, for appellant.
    Fred Much and William H. Scott, Jr., Houston, for appellee.
   TUNKS, Chief Justice.

This case began when appellee filed suit in the 133rd District Court of Harris County, Texas on January 24, 1966. In that suit he, as plaintiff, sought a judgment for divorce against the appellant, as defendant, and sought a judgment for partition of the community property.

The appellant, as defendant; answered that suit on February 8, 1966 filing a general denial.

On April 25, 1966, while this litigation was still pending, the appellant filed suit in the 8th Judicial District Court of Clark County, Nevada, seeking divorce as plaintiff in that Nevada suit. In that petition she, the appellant, alleged that she had been a bona fide resident of the State of Nevada for a period of six weeks before filing such suit. She did not seek a partition of the community property.

Appellee was, while he was within the State of Texas, served with citation in the Nevada case on April 28, 1966.

On May 18, 1966, judgment was entered in the Nevada case granting the appellant a divorce against the appellee. In that Nevada judgment the Nevada court specifically found and recited that the appellant had been a bona fide resident of the State of Nevada for a period of six weeks before filing such suit.

Appellee was notified immediately by letter of the divorce having been granted in the Nevada case.

At no time did the appellee make an appearance in the Nevada case.

At a later date the appellant as defendant in the Harris County case filed an amended answer and cross action. In such pleadings the appellant alleged the fact of the Nevada divorce decree as a defensive pleading to appellee’s petition for divorce. Appellant likewise sought affirmative relief based upon the Nevada decree in the nature of a partition of the community property as between herself and appellee and further affirmative relief to the effect that there be an adjudication of the validity of the Nevada divorce.

Subsequently, the case was transferred to the Court of Domestic Relations No. 3 of Harris County, Texas.

On January 3, 1967, when the case was called for trial on its merits, appellee filed an answer to the cross action theretofore filed by appellant. In that pleading by ap-pellee, for the first time challenged the jurisdiction of the Nevada court and the validity of the decree of that court and sought an adjudication by the Harris County Court of Domestic Relations No. 3 to the effect that the decree of the Nevada court was void. Appellee’s attack on the Nevada decree was an allegation that appellant’s sworn pleading and testimony (in the Nevada case) to the effect that she had been a resident of that state for 6 weeks before filing the suit were false and, therefore, the Nevada court was without jurisdiction.

As the trial began the appellee was seeking a divorce from appellant, was seeking a partition of the community property and was seeking an adjudication as to the invalidity of the Nevada decree.

As the trial began the appellant was resisting appellee’s suit for divorce with a defensive allegation to the effect that the Nevada decree had already effected a divorce. The appellant likewise, was seeking affirmative relief in that she sought a partition of the community property of the two parties and sought a declaratory judgment to the effect that the Nevada decree was valid and that she was actually divorced as of May 18, 1966 by the Nevada court.

At the conclusion of testimony appellee took a non-suit, insofar as he sought a recovery of a divorce from appellant, without prejudice to the affirmative relief sought by him concerning the adjudication as to the invalidity of the divorce procured by appellant through the Nevada court, and without prejudice to the affirmative relief sought by appellant as to the adjudication of the validity of the Nevada decree and the partition of the community property.

The case was submitted to the jury on special issues by which jury found first that the appellant was not a resident of the State of Nevada for six weeks preceding the commencement of her Nevada divor e action and also found that the reasonable necessary attorney’s fees incurred by the appellant was in the sum of $2,500.00.

Other findings made by the jury related to certain specific items of property and are not relevant to this appeal.

Based upon that verdict the trial court entered a judgment declaring the Nevada decree to be ineffective and finding that the appellant and appellee were still husband and wife. Since appellee had taken a non-suit as to his cause of action for divorce, the decree made no disposition of the community property of the two parties.

The judgment of the trial court also awarded to appellant a judgment against appellee in the amount of $2,500.00 as attorney’s fees. From an order overruling appellant’s motion for a new trial, appellant has duly perfected her appeal to this court.

In the trial court, appellant, pursuant to Rule 184a, Texas Rules of Civil Procedure, duly requested the trial court to take judicial notice of certain laws of the State of Nevada including the following:

“Nevada Rules of Civil Procedure 60(b) provides:
‘(b) Mistakes; Inadvertence; Excusable Neglect; Fraud, etc. — On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud, misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; (3) the judgment is void; or, (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that an injunction should have prospective application. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.’ ”

Appellant’s points of error are to the effect that the trial court erred in concluding, pursuant to the jury’s verdict, that the Nevada court never acquired jurisdiction in the divorce case filed in that state by appellant and that the trial court erred in holding that the decree of divorce from the Nevada court was void so that the two parties were still husband and wife.

There are some basic legal principles about which the parties do not here differ. It is elementary that the Texas courts under Article 4, Section 1 of the Constitution of the United States and statutes enacted pursuant thereto, are obliged to give full faith and credit to validly entered judgments in the Nevada courts.

It is equally elementary that despite the provisions of the full faith and credit clause, the Texas courts may examine the facts to determine whether or not the Nevada court did in fact have jurisdiction to enter the decree of which full faith and credit is sought. Williams v. State of North Carolina, 325 U.S. 226,-65 S.Ct. 1092, 89 L.Ed. 1577, Callicoatte v. Callicoatte, Tex.Civ.App., 324 S.W.2d 81, Ref. n. r. e.

It is to be noted from the above recitation of the sequence of the proceedings in this litigation that at no time did appellee challenge the validity of the Nevada decree until he filed his answer to appellant’s cross action on January 3, 1967. That was more than six months after the date of the Nevada decree.

The question is, then, does the above quoted Rule 60(b) of the Nevada Rules of Civil Procedure bar a Texas court’s hearing a challenge to the jurisdiction of the Nevada court in which the decree of May 18, 1966 was granted when the challenge was filed more than 6 months later ?

The appellant concedes that the evidence in this case is such as to support the jury’s finding to the effect that appellant was not a resident of the State of Nevada for a period of six weeks before she filed her suit in that state. However, appellant contends, and we agree with such contention, that there likewise is evidence which would have supported a jury’s findings to the effect that she was, in fact, a resident of the State of Nevada for a period of six weeks before filing her suit in that state.

The evidence clearly shows that the ap-pellee was given almost immediate notice of the filing of the suit in the State of Nevada and was given a fair opportunity to appear therein if he wished to do so. He did not do so but that was of his own choosing.

In the cases of Colby v. Colby, 78 Nev. 150, 369 P.2d 1019 and Confer v. 2nd Judicial District Court, 49 Nev. 18, 234 P. 688, 236 P. 1097, the Supreme Court of Nevada held that the fraud of the nature which appellant is here alleged to have committed, constitutes intrinsic fraud and that an attack upon a judgment because of such intrinsic fraud is governed by Nevada Rules of Civil Procedure No. 60(b). Under such Rules of Civil Procedure, no such attack may be made on the judgment after the expiration of six months. We may therefore say that the Nevada decree in this instance, which is here alleged by appellee to be void, could not have been adjudged void in a proceeding instituted in the State of Nevada more than six months after the date of the decree.

In Marsh v. Millward, Tex.Civ.App., 381 S.W.2d 110, err. ref., n. r. e, the facts were as follows:

On May 15, 1961, Millward got a default judgment against Marsh in the State of Wyoming. On October 8,1962 Millward, in the State of Colorado, got a default judgment against Marsh in a suit based upon the Wyoming judgment.

Rule 60(b) of the Wyoming Rules of Civil Procedure provides that a motion to set aside a judgment for fraud must be made within one year of the date of the judgment.

Rule 60(b) of the Colorado Rules of Civil Procedure provides that a motion to set aside a default judgment for fraud must be made within 6 months of the date of the judgment.

The language of those rules is quite similar to the language of Rule 60(b) Nevada Rules of Civil Procedure, above quoted.

On August 28, 1963, Millward filed suit against Marsh in the Texas court on the Wyoming and Colorado judgments. The Texas court, taking judicial notice of the Wyoming and Colorado law, granted Millward’s motion for summary judgment. The Court of Civil Appeals affirmed, saying:

“Since the respective judgments rendered in the Courts of Wyoming and Colorado are not now subject to attack in the Courts of those States for fraud, intrinsic or extrinsic, it is our opinion that they are not subject to attack in this State on such ground. See Stumberg, Conflict of Laws, 3rd Ed., p. 114, and authorities there cited.”

In O’Brien v. Lanpar Company, 399 S.W.2d 340, which was a suit in the Texas court on an Illinois judgment, the Supreme Court of Texas held that Illinois “long arm statute”, as construed by the Illinois courts, controlled in determining whether the Illinois courts had in personam jurisdiction over the defendant. The court said: “It should be remembered, however, that it is the Illinois law and not the Texas law that is in point.”

On the basis of those authorities, we feel compelled to hold that the trial court erred in overruling the Nevada court’s findings as to its jurisdiction and in holding that the judgment of the Nevada court was void.

Appellee, in his brief, argues that if it be held that the Nevada decree dated May 18, 1966 was valid, the appellant should not be entitled to recover the attorney’s fees found by the jury in the amount of $2,500.00. He argues that if that 1966 decree was valid, then a substantial portion of the services performed by her attorneys were not services performed in representation of a wife in a domestic controversy, but rather were services performed after the appellant had ceased to be the appellee’s wife. The record does not reflect that the appellant took any such position in the trial court and there is no cross assignment of error touching upon such point. In fact, the judgment from which appeal is taken reflects that it was entered on motion of ap-pellee and that is the judgment which provides for the recovery of attorney’s ■ fees by the wife, appellant here.

It should further be noted that until the conclusion of the testimony in the trial court when appellee took his nonsuit as to his divorce action, the services performed by appellant’s attorneys were those in the representation of a women alleged to be the wife of appellee in a divorce case.

The trial court therefore properly allowed appellant a recovery of attorney’s fees.

Since appellee abandoned his petition for divorce and since the trial court held that the Nevada decree did not effect a valid divorce so that the two parties were still married, there was no disposition made by the trial court of the matter of partitioning the community property of the two parties. That matter remains to be tried. The question remains as to whether the court below, a Court of Domestic Relations, in view of our holding here that appellant was divorced from appellee on May 18, 1966, now has jurisdiction to try the issue as to the partition of the property between the two parties.

The Harris County Court of Domestic Relations No. 3 was created by statute, Article 2338-11, Vernon’s Ann.Civ.St. which statute defines the jurisdiction of the court. By that statute the court is said to have jurisdiction: “[0]f all divorce and marriage annulment cases, including the adjustment of property rights”, and, “all other cases involving justiciable controversies and differences between spouses.”

There can be no question but that the court did have jurisdiction at the time this case was transferred to it because the litigation involved a divorce sought by ap-pellee herein and the partition of the community property of the two parties. Furthermore, the cross action filed by the appellant was a suit to establish the nature of the relationship between the two parties as to whether they were or were not married, which was within the jurisdiction of the Court of Domestic Relations. In the determination of either of those two primary claims of the parties, the court had jurisdiction to partition their property. We here hold that the court still has jurisdiction to partition that property.

The case of Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, involved a situation in which an owner had filed suit in forcible entry and detainer in the justice court of Harris County. The judgment of the justice court was for the plaintiff and the defendant appealed to the county court. While the case was pending in the county court, the owner, by amended petition, alleged for the first time that damages had been incurred by it during the pendency of the appeal from the justice court. Those damages alleged exceeded the $1,000.00 jurisdictional limits of the county court. The judgment for the owner in the county court was for possession of the property and for the sum of $2,400.00. The Supreme Court held that the County court having acquired jurisdiction of the controversy, did not lose that jurisdiction by the subsequent change in the facts. The court said: “It is the general rule that once jurisdiction is lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction.”

Where one files suit in district court to recover a judgment on an indebtedness of less than $500.00 and to enforce a lien on real property securing that indebtedness, the fact of his failure to prove his lien does not deprive the district court to render judgment on the indebtedness. Aero Gas Refining Co. v. Frick Reid Supply Corp., Tex.Civ.App., 147 S.W.2d 1101. Bridge v. Carter, 33 Tex.Civ.App. 591, 77 S.W. 245.

Therefore, the Court of Domestic Relations No. 3 of Harris County, once having had jurisdiction to partition the community property of the two parties, still has such jurisdiction.

That portion of the trial court’s judgment holding the appellant’s Nevada divorce decree to be void and holding that the appellant and appellee still had an existing marriage is here reversed and judgment is rendered to the effect that the May 18, 1966 decree of divorce in Nevada court is valid and that the marriage relationship between appellant and appellee was terminated by that decree as of that date.

The judgment of the trial court in allowing the appellant a recovery of attorney’s fees is affirmed.

This case is remanded to the Court of Domestic Relations No. 3, Harris County, for an adjudication of a partition of the Community property of the appellant and appellee as of May 18, 1966.


author: MOORE, Justice.

text:
    Rubie PETTY, Administratrix, et al., Appellants, v. Marcella DUNN, Appellee.
    No. 298.
    Court of Civil Appeals of Texas. Tyler.
    Sept. 21, 1967.
    Rehearing Denied Oct. 19, 1967.

      Adams, Granberry & Hines, F. P. Gran-berry, Crockett, for appellants.
    Sallas, Griffith & Meriwether, Gus E. Meriwether, Crockett, for appellee.
   MOORE, Justice.

This is a trespass to try title suit. Marcella Dunn, plaintiff, brought this suit against defendants, J. W. Washington and wife, Earle P. Adams and Willie Mae Haz-lett, individually and as independent executrix of the Estate of Walter E. Haz-lett, deceased, alleging that on or about the 25th day of September, 1957, she was the owner in fee simple of all of Lots Nos. (3) and (4) in Block No. (1) of the Cappony Addition to the City of Crockett, Houston County, Texas; that on or about the 1st day of November, 1961, defendants unlawfully entered and dispossessed her of the premises. She also asserted title by virtue of the ten-year statute of limitations. Art. 5510, Vernon’s Ann.Tex.Civ.St. Defendants, J. W. Washington and wife, answered by filing a disclaimer, disclaiming any interest in either Lot (3) or (4) as described in the plaintiff’s petition. Defendants, Earle P. Adams and Willie Mae Hazlett, likewise filed a disclaimer as to any interest in Lot No. (4) in Block No. (1), but denied that the plaintiff was the owner of Lot (3) in Block (1) and further answered by a plea of not guilty.

After a trial before a jury, the court submitted the cause to a jury in seven special issues. The findings upon only the first three special issues are deemed to be pertinent to this appeal. In response to special issue No. 1, the jury found that the plaintiff, Marcella Dunn, and Tom Lewis and those under whom they claimed, had held exclusive, continuous and peaceable possession of the premises for a period of more than ten consecutive years prior to November 1, 1961. In response to special issue No. 2, the jury found that the plaintiff, Marcella Dunn, was adopted by Tom Lewis and Ludie Lewis, by an instrument in writing, executed and acknowledged by Tom and Ludie Lewis, and found in response to special issue No. 3 that the plaintiff thereafter lived with Tom and Ludie Lewis in the relationship of parent and child.

Based upon the verdict and the disclaimers filed by the defendants as to Lot (4), the trial court entered judgment for plaintiff, Marcella Dunn, awarding her title and possession of both Lots (3) and (4) in Block (1) of the Cappony Addition to the City of Crockett.

Defendants Adams and Hazlett, after their motion for new trial was overruled, perfected this appeal from that portion of the judgment granting plaintiff recovery for the title and possession of Lot (3). Pending appeal, a suggestion of death of appellant, Honorable Earle P. Adams, was filed, and Rubie Petty, Administratrix of his estate, was substituted as a party appellant in his stead.

Appellants have brought forward two points of error in which they contend that there is no evidence to support the finding of adoption and that there is no evidence to support the jury’s findings of adverse possession under the ten-year statute of limitations.

These points call for a brief review of the evidence. The record reveals that appellee, Marcella Dunn, was born June 16, 1917, to Rosa Lee Dancer. When she was approximately six weeks of age, her mother permitted Tom Lewis and wife, Ludie Lewis, to take appellee into their home. The parties were not related and no agreement of adoption was entered into at that time. The evidence shows that appellee continued to live in the home with Tom and Ludie Lewis until after the death of Tom Lewis, the survivor, in 1957. Stated in chronological order, the facts further show that on September 5, 1918, Louise Leediker conveyed Lot (3) in Block (1) of the Cappony Addition, together with a house thereon, to Tom Lewis. It is without dispute that the property became the community property of Tom and Ludie Lewis. The evidence further shows Tom and Ludie Lewis, along with Marcella Dunn, moved into the house in 1918; that during the marriage of Tom and Ludie Lewis, they had only one child born to them and she died without issue in 1924. Ludie Lewis died in 1939, and thereafter, Tom Lewis and Marcella Dunn continued to maintain their home on the premises in question. Shortly after the death of Ludie Lewis, Tom Lewis conveyed the property to Edd Lewis by warranty deed dated August 31, 1940. Subsequently, on October 20, 1941, Edd Lewis and Tom Lewis executed a joint deed conveying the property to Walter B. Morgan. It is without dispute that after the execution of both deeds, Tom Lewis and Marcella Dunn continued to occupy the premises and continued to maintain their home thereon. On September 25, 1957, Tom Lewis executed a warranty deed to appellee and subsequently died on November 12, 1957. Marcella Dunn continued to live in the home until some time during 1958 when she moved to Houston. She testified, however, that after she moved to Houston she continued to rent the house and maintain possession thereof. On March 19, 1961, Edd Lewis executed a deed conveying the property in question to Earle P. Adams and Walter E. Hazlett. Appellee testified that she continued in possession of the premises until on or about November 1, 1961, when J. W. Washington and wife, tenants of Adams and Hazlett, moved into the house and took possession of the premises.

On May 19, 1965, Walter B. Morgan executed a warranty deed to Edd Lewis conveying the property in question to him and reciting therein that the deed was given in view of the fact that the previous deed executed by Edd Lewis and his father, Tom Lewis, dated October 20, 1941, was in fact a mortgage to secure a loan to Tom Lewis.

The judgment fails to indicate whether the trial court rendered judgment for appel-lee based upon the findings of adoption or upon the findings of limitation or upon a combination of both such findings. It is therefore necessary to determine whether the judgment may be supported upon either finding. If appellee was legally adopted, she would be in a position to assert her right of inheritance from her adoptive mother, Ludie Lewis, for her one-half of the community estate. If, on the other hand, as contended by appellants, there is no evidence showing a legal adoption, appellee would not be entitled to assert such right.

Appellee did not plead adoption by estop-pel and admits in her brief that such question is not before us. Consequently, we have only to determine the question of whether or not there is any evidence of probative force to support the jury’s finding of a statutory adoption, as provided for by the statute.

The adoption statute in force in 1917, at the time appellee was taken into the Lewis home, was Art. 1, Vernon’s Sayles Texas Civil Statutes, 1914, which provided as follows:

“Any person wishing to adopt another as his legal heir may do so by filing in the office of the clerk of the county court of the county in which he may reside a statement in writing, by him signed and duly authenticated or acknowledged, as deeds are required to be, which statement shall recite, in substance, that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office.”

Under the statute in force at that time and under the decided cases, it was incumbent’ upon appellee to plead and prove, according to recognized rules of law and evidence, that Tom and Ludie Lewis executed, acknowledged and filed a statutory instrument of adoption in the office of the County Clerk of Houston County. No instrument of adoption was introduced by appellee. Nor did appellee introduce any evidence showing that such an instrument was made and executed by the Lewises, or that an instrument was executed and lost or destroyed before same was filed in the office of the County Clerk. Insofar as we have been able to determine, there is nothing in the record which would even remotely suggest that such an instrument ever existed. The only evidence offered by appellee in this connection was the testimony of appellee and other witnesses who testified that they had heard Tom and Ludie Lewis say Marcella had been adopted, and the testimony of Española James, who testified that when she was approximately ten years of age, while visiting in the home of her grandmother, she heard Tom and Ludie Lewis tell her grandmother that they were going to the courthouse in Crockett and when they returned, they said that they had adopted Marcella.

Where only a statutory adoption is relied upon, the very substance of the case rests upon the execution of the document and the burden of proving its execution and existence is upon the party claiming under it. Sanders v. Lane, (Tex.Com.App.) 227 S.W. 946.

As we view the record, there is no evidence showing that an instrument of adoption was executed. There is no testimony showing that such an instrument had been filed for record or that any witness had seen such an instrument. In the absence of a proper predicate having been laid showing that the adoptive instrument had in fact been executed but had been lost or destroyed, secondary evidence showing only declarations of the alleged adopters would not in our opinion constitute evidence of sufficient probative force to show the execution and acknowledgement of an instrument of adoption. Allee v. Vaden, (Tex.Civ.App.) 112 S.W.2d 237; Aman v. Cox, (Tex.Civ.App.) 164 S.W.2d 744. We hold, therefore, that there is no evidence in the record to support the jury’s finding of statutory adoption.

There being no evidence of adoption, it follows that appellee acquired no interest in the title by inheritance, either from Ludie Lewis or Tom Lewis.

We turn now to the question of whether or not there is any evidence of probative force to support the finding that Tom Lewis and appellee held exclusive, continuous, adverse possession of the land in question so as to comply with the ten-year statute of limitations.

As stated before, the evidence shows that subsequent to the time Tom Lewis conveyed the legal title of the land to Edd Lewis in 1940, both he and Marcella continued to occupy the premises until his death in 1957.

The general rule is that where possession by grantor is continued after a deed, the grantor holds possession as a tenant-at-will of the grantee. W. T. Carter & Bro. v. Holmes, 131 Tex. 365, 113 S.W.2d 1225. His possession is subservient to the title which he conveys. Consequently, he cannot assert an adverse claim against his grantee and commence the statute of limitations unless he gives notice that he has ceased to hold the land in subservience to the title of his grantee. Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65; American Nat. Bank of Beaumont v. Wingate, (Tex.Civ.App.) 266 S.W.2d 934 (citing cases).

The rule is thus stated in Davis v. Lund, (Tex.Com.App.) 41 S.W.2d 57, and repeated in Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707:

“When A enters upon the land in recognition of the title of B, in order for A to prevail under the 10-year statute of limitations three things must be established, (1) there must be a repudiation of the relationship thus established and claim of title adversely to that of B; (2) this repudiation and adverse claim must be clearly brought home to B as limitation will only begin to run from that date; (3) there must be adverse possession for 10 years after notice of repudiation and adverse claim has been brought home to B.”

As we view the record, there is no evidence showing that Tom Lewis repudiated the title and asserted an adverse claim. Nor have we been able to find any evidence that Tom Lewis ever did or said anything that would put his grantees on notice that he was claiming adversely. His subsequent use of the property was the same as that before his conveyance. The mere fact that he continued in possession, using and occupying the premises as his home, was not within itself inconsistent and hostile to the title of his grantees and would not, as a matter of law, be sufficient to amount to a repudiation of the title. Consequently, at all times subsequent to his conveyance, Tom Lewis occupied the premises as a tenant-at-will of his grantees. Thus, until the death of Tom Lewis, the owners of the record title remained in possession through their tenant. Therefore, during this period of time, appellee occupied the status of an adverse claimant jointly in possession with the owner.

It is well settled that to be effective as a means of acquiring title, the possession of an adverse claimant must be exclusive of the true owner. Any sort of joint or common possession by a claimant and the owner or a tenant of the owner prevents the claimant from having the requisite quality of exclusiveness. In these circumstances, the law considers the one who has title as in possession. 2 C.J.S. Adverse Possession § 48, page 566; Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925; Southwestern Lumber Co. of New Jersey v. Allison, (Tex.Com.App.) 276 S.W. 418; Wicks v. Langford, (Tex.Civ.App.) 320 S.W.2d 707; Solis v. La Brisa Land and Cattle Company, (Tex.Civ.App.) 361 S.W.2d 631.

Appellee failed to carry the burden of proof showing exclusive possession for any ten-year period of time prior to the death of Tom Lewis in 1957. On the contrary, the evidence shows that the owners’ tenant, Tom Lewis, was in possession. As a consequence, neither appellee nor appel-lee and Tom Lewis jointly, perfected any title under the ten-year statute prior to the death of Tom Lewis.

Although appellee continued in possession after the death of Tom Lewis in 1957 until the time she alleges she was ousted on November 1, 1961, her adverse possession for such period of time would obviously not be sufficient to meet the requirements of the ten-year statute of limitations.

As we view the record, appellee failed to establish either record title or limitation title to the premises in question. Accordingly, that portion of the judgment granting appellee title and possession of Lot (3) in Block (1) of the Cappony Addition to the City of Crockett is reversed and judgment is hereby rendered for the appellants, Ru-bie Petty, Administratrix of the Estate of Earle P. Adams, and Willie Mae Hazlett, Administratrix of the Estate of Walter E. Hazlett, together with all costs. In all other respects, the judgment is affirmed.

Affirmed in part and reversed and rendered in part.