author: GREEN, Chief Justice.

text:
    Harry EVONS et al., Appellants, v. Province M. WINKLER, Appellee.
    No. 44.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 25, 1965.
    Motions for Rehearing Denied March 18, 1965.

      Bradford Miller, San Antonio, James W. Wray of Lewright, Dyer & Redford, Corpus Christi, for appellants.
    John R. Padilla, Corpus Christi, for ap-pellee.
   GREEN, Chief Justice.

This is a suit for delinquent rents accruing under a written lease contract. The suit was filed by appellee Winkler, owner and lessor of the realty in question, against Arthur Murray Dance Studios of San Antonio and Corpus Christi, l'nc., a Delaware corporation, original lessee named in the lease, and Harry Evons, Daniel H. Kirk, Michael V. Lawless, Leigh Dickey and Jack Klein, all allegedly subsequent assignees. Evons was sued in both his individual capacity and as statutory trustee of the assets of the dissolved corporation lessee. Trial was to the court without a jury.

Pursuant to a stipulation, agreed judgment was rendered against Dickey and Klein for $3,283.94. Default judgment was entered against the corporation for $13,-503.90. Judgment in the same sum was rendered, after trial, against Evons individually and as statutory trustee of the assets of the dissolved corporation, and against Kirk and Lawless. The final decree recited joint and several judgment, so as to avoid double recovery on the part of Winkler. Evons and Lawless have each appealed. Evons requested and the trial court filed Findings of Fact and Conclusions of Law, insofar as the judgment relates to recovery against him. Lawless requested no such findings.

Winkler was the only witness testifying as to the facts of the case. His evidence shows that by written instrument executed May 8, 1952, he leased certain described premises in Corpus Christi to Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc., for a term of ten years from and after June 1, 1952, for an annual rental of $5,000.00 payable in monthly installments of $416.66. (The difference of 8 cents per year was resolved favorably to defendants.) Evons signed and acknowledged this contract as president of defendant corporation. From June 1, 1952, for several years, a dance studio was conducted in these premises, and rent was paid satisfactorily until August, 1957.

The defendant dance studio corporation was voluntarily dissolved on March 25, 1953, and its permit to do business in Texas was cancelled on April 1, 1953. This fact did not become known to Winkler until September, 1956, since business continued to be conducted and rent paid as provided in the lease contract. By instrument dated July 1, 1956, and signed by Evons, Lawless and Kirk, Evons, representing himself to be the lessee in the aforementioned lease contract, assigned said lease to defendants Michael V. Lawless and Daniel H. Kirk, the said Lawless and Kirk agreeing to “pay the rent which may hereafter become due, according to the terms of said lease, and that we will perform all the covenants in said lease contained, which are to be performed by the said lessee.”

The lease provided that the lessee should not assign the contract, or underlet the premises, without the written consent of lessor. See also Article 5237, Vernon’s Ann.Tex.Civ.St. When the written transfer of the lease from Evons to Lawless and Kirk was submitted to Winkler, he forwarded it to his mortgagee, since his mortgage provided that he make no changes in the lease without approval. Correspondence followed, and on September 17, 1956, the attorneys for the mortgagee wrote Winkler to inquire why Evons, and not the dance studio corporation, executed the transfer of the lease as lessee. This letter was sent by Winkler to Evons, and in reply Evons wrote Winkler on September 24, 1956, as follows:

“I have just returned from the hospital, and I am happy to answer the questions posed by Levy and Levy:
I, Harry Evons, succeeded the rights of the dissolved corporation as to the subject lease. This was brought about by a dissolution order from the State of Delaware.
There is a signed instrument which can be referred to as evidence if this is absolutely necessary. However, I am not as yet able to go to the office, and it may take a little while before we can arrange for a photostatic copy to be sent, if that is necessary * * *.
Cordially yours,
HARRY EVONS.”

This letter being forwarded to Levy & Levy, attorneys for the mortgagee, they authorized Winkler to give his consent to the assignment of the lease by Evons to Lawless and Kirk, which he did by written instrument dated October 4, 1956, subject, however, to the payment and performance by Lawless and Kirk of all agreements and covenants contained in the original lease.

By separate instrument dated and effective July 1, 1956, executed by Evons as Seller and Lawless and Kirk as Buyers, for a recited consideration of $60,000.00, Evons sold to Buyers the entire business in connection with a school of dancing “conducted by Seller” in the premises in question, including the franchise and license agreement issued to Seller by Arthur Murray, Inc. of New York, and the “right, title, interest and estate of the Lessee provided by the Lease under which Seller holds said premises.” Among other provisions, this instrument contains the following:

“Buyers do hereby expressly assume the performance of the Lessee provided by the aforesaid Lease under which the premises known as 718 North Lower Broadway, Corpus Christi, Texas are held by Seller, and do hereby agree to hold Seller harmless from the performance of the obligations imposed upon Lessee by said Lease.”

We are setting out these facts in some •detail, because of the contention of appellant Evons for himself, and also of appellant Lawless, for himself, that there is no evidence and insufficient evidence to show liability on them for delinquent rent under the lease contract.

Lawless and Kirk took over the dance studio affairs under the above instruments and continued to conduct the business for a period of somewhere between two and three years. Rent was paid regularly through August, 1957. Thereafter, there were some delinquencies so that by the end of 1958 unpaid rent amounted to $999.92. The record is not clear as to just who did operate this business during the early months of 1959. Winkler testified that Kirk and Lawless both stated that they didn’t own or operate the studio in 1959. In answer to a request for admissions duly submitted prior to trial and read into evidence, said two defendants denied that they owned an Arthur Murray Dance Studio in Corpus Christi, Texas, during the year 1959. Obviously, business was conducted on the premises, since, while no rent was paid in January, 1959, the contract rent of $416.66 was paid in each of February, March and April of that year.

Winkler testified that prior to June, 1959, several letters were written to Lawless and Kirk concerning the back rent under the contract, but no reply to such letters was received. He made frequent visits to the studio for collection purposes, with no success. He thereupon employed Dave Coover as his lawyer and agent, and as he testified, “Turned the thing over to him.”

Coover, on behalf of Winkler, sometime in June, 1959, when the delinquent rent under the contract amounted to $2,250.56, entered into an oral month to month lease agreement of the premises with defendants Dickey and Klein, under which the latter entered upon and occupied the premises from June, 1959, to December, 1960. In August, 1959, Lawless and Kirk, by written instrument, sold the entire business, including furniture, franchise, school, etc., to Dickey and Klein for a recited consideration of $35,000.00. A large part of this consideration appears to be represented by the assumption by Buyers of the obligation to pay existing indebtedness of the business. This sale was made to be effective as of June 1,1959.

Payments of rent made by Dickey and Klein during the remainder of 1959 were sufficient so that after a portion was applied to current rent and the remainder to the delinquent rent accruing while Lawless and Kirk were in possession, the amount owing at the end of the year was reduced to $375.59. However, in 1960 only two payments, amounting to $932.66, were made, and in December, 1960, the building was vacated and the keys were returned to Winkler. No further payments of rent have been made. Although he has tried diligently to lease the premises since, in order to minimize his loss, Winkler has been unable to do so, and by the end of the ten-year period covered by the contract, in June, 1962, the delinquent unpaid rent amounted to $11,626.07. This sum plus interest, plus insurance premiums to be discussed later represents the amount of the judgment recovered jointly and severally against the defendants, only two of whom have appealed, namely Lawless and Evons.

APPEAL OF APPELLANT LAWLESS

Defendants Lawless and Kirk, in their second amended original answer included a cross-action naming as cross-defendants Winkler, Evons, Dickey and his wife, and Klein and his wife. When the cause was called for trial in the district court, the attorney for Lawless and Kirk, a resident of Houston, though duly and timely notified of the setting, failed to appear, nor did he or his clients furnish any explanation for his non-appearance. The trial proceeded as to all parties, with no attorney present in court representing Lawless and Kirk.

At the start of the trial, counsel for Dickey and Klein moved that the said cross-action be dismissed. The court announced that he would take this motion with the case and rule on it afterwards. As the testimony was about to end, this motion was renewed and sustained, and the court dismissed the cross-action with prejudice, and granted judgment against cross-plaintiffs on the cross-action in his final decree.

Appellant Lawless is represented on this appeal by counsel other than the attorney who failed to make his appearance in the trial court. His first point of error complains, not of the dismissal of the cross-action, but of the dismissal with prejudice, together with the rendition of judgment affirmatively denying recovery thereon. This point is sustained. We quote from the opinion of Chief Justice Hickman in Smock v. Fischel, 146 Tex. 397, 207 S.W.2d 891, as follows:

“It is a well-established rule that when a plaintiff fails to appear and prosecute his case, the court can not try the plaintiff’s cause of action, but the only remedy is to dismiss the same. (Authorities). We see no reason why this same rule should not apply to a defendant’s cross-action when the defendant fails to appear and prosecute the same. (Authorities). Under these circumstances the court should not have rendered judgment against the defendant on his cross-action, but should have dismissed the same.”

In Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, the Court, after stating: “The law of this state does not authorize a defendant to take a default judgment which adjudicates against the plaintiff the merits of his suit,” proceeds to hold such a judgment wholly void.

The judgment as entered is ordered reformed so that it shall reflect that the cross-action filed by Lawless and Kirk is dismissed without prejudice, and so much of said judgment as provides ^that cross-plaintiffs take nothing against cross-defendants by virtue of said cross-action is deleted from said decree. Murphy v. Stigall, Tex.Civ. App., 352 S.W.2d 918, wr. ref.

Appellant Lawless’ second and last point of error reads:

“The Judgment against Defendant, Michael V. Lawless, is not supported by the evidence since the uncontradicted evidence and the stipulations of the parties show that the Plaintiff, Province M. Winkler, abrogated the lease in question by entering into an oral lease with the Defendants, Dickey and Klein, at a time prior to any delinquency for which this judgment was entered.”

The original lease, the obligations of which had been assumed by Lawless and Kirk in the transfer from Evons to them, stated, among other provisions, as follows:

“That in case of default in any of these covenants, the Lessor may enforce the performance thereof in any modes provided by law, and may declare the lease forfeited at his discretion * * * or his agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent he may obtain, for account of the Lessee, who shall make good any deficiency; *

Although the testimony, as summarized above, is incomplete as to whether or not Lawless and Kirk had abandoned the premises by June, 1959, we feel that it is sufficient to sustain an implied finding by the trial court that such was the case. In such event, even without the contract provision last above quoted, the landlord would have had the right to relet the property and, not having agreed to surrender his rights under the lease contract, recover from the former lessee or assignee the amount of the agreed rent for the entire contractual period of the lease less the sum that he may realize from the re-letting, after the use of reasonable diligence to obtain a tenant. Marathon Oil Co. v. Rone, Tex.Civ.App., 83 S.W.2d 1028, writ ref.; Marathon Oil Co. v. Edwards, Tex.Civ.App., 96 S.W.2d 551, writ dism.; Nelson v. Seidel, Tex.Civ.App., 328 S.W.2d 805, writ ref., n. r. e.; Employment Advisors, Inc. v. Sparks, Tex.Civ.App., 364 S.W.2d 478, writ ref., n. r. e.; White v. Watkins, Tex.Civ.App., 385 S.W.2d 267.

The above quoted provision of the lease gave lessor a choice as to what he could do in the event of default by lessee in any of the lease covenants. He could declare the lease forfeited, which would end the contract, and give him the right to collect past due but not future rent. Rohrt v. Kelley Manufacturing Company, 162 Tex. 534, 349 S.W.2d 95. His other choice, as expressly stated in the contract, was to do just what was done in this instance, in which event lessee was required “to make good any deficiency.” When Winkler, through his attorney and agent Coover, reentered and re-let the premises to Dickey and Klein in June, 1959, Lawless and Kirk had defaulted on their rent payments to the extent of $2,250.56. There is nothing in the conduct of Winkler with reference to this re-letting to indicate any intention on his part to abrogate or forfeit any of his rights under the lease or the assignment to Lawless and Kirk. The fact that a considerable portion of the rent paid by Dickey and Klein during the latter months of 1959 was applied to the unpaid rent owed by Lawless and Kirk so that their delinquency was reduced to $375.59 in December, 1959, is circumstantial evidence that this re-letting was for their account. Though lessor was unable to re-let for the entire remainder of the term, the action he took proved satisfactory and beneficial to Lawless and Kirk, for they recognized this re-letting of the premises under the lease, and sold the business to the new tenants.

We hold that Winkler did not abrogate the lease contract, the performance of the obligations of which had been expressly assumed by Lawless and Kirk, by entering into the oral lease with Dickey and Klein, and appellant Lawless’ second point is overruled.

The judgment against appellant Lawless is reformed as hereinabove ordered, and as so reformed is affirmed.

APPEAL OF APPELLANT EVONS

Evons was sued and judgment rendered against him in a dual capacity, (1) individually, and (2) as statutory trustee of the assets of Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc. While we hold that the pleadings and testimony do not justify a judgment against him as such statutory trustee, this becomes academic in view of our further holding that under the pleadings and testimony the trial court did not commit error in rendering judgment against Evons individually.

The liability of Evons as statutory trustee of the assets of the dissolved corporation would be based on the provisions of Article 1388, V.A.T.S., in effect at the time of the accrual of the cause of action, but repealed in 1961 on passage of the Business Corporations Act, V.A.T.S. This statute gave the procedure to be taken by the president and directors of a corporation upon its dissolution where no receiver is appointed by a court of competent jurisdiction, and in the last sentence thereof provides that “Said trustees (the president and directors) shall be severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands.”

Thus, in order to show liability under this statute, plaintiff would be required to plead and prove that on dissolution of the corporation Evons, as president and director, had received property and effects of the corporation, and his liability would be limited to the extent of such property and effects so received. World Broadcasting System, Inc. v. Bass, 160 Tex. 261, 328 S.W.2d 863; Love v. Gamer, Tex.Civ.App., 64 S.W.2d 393, writ dism.; Orange Lumber Co. v. Toole, Tex.Civ.App., 181 S.W. 823, writ ref. Responsibility under this statute, if properly plead and proved, would be individual liability of the defendant, but where we use the term “individual liability”, we refer to liability not connected with the statute.

The sole allegations in plaintiff’s trial petition as to Evons’ liability as a statutory trustee are as follows:

“That on or about the 25th day of March 1953, Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc., was dissolved. That at such time of dissolution there was an unexpired term and obligation on the part of Arthur Murray Dance Studios on such written agreement in excess of Nine (9) years. That at the time of dissolution of said corporation, defendant, Harry Evons, was the president, a director and a principal stockholder in said corporation. That sometime after said May 1, 1952, the assets of said Arthur Murray Dance Studios were distributed and misappropriated by the said Harry Evons. That said assets of said corporation were distributed to the stockholders of said corporation without the payment and discharge of, or making adequate provisions for the obligations created by said written agreement of lease, to the detriment and damage of plaintiff in the sum or sums as more fully shown hereinafter.”

There were .no allegations concerning the value of any corporate property coming into Evons’ possession, or that the extent of such property received and misappropriated or distributed amounted to a sum equal to or in excess of the sum sought to be recovered from Evons as trustee.

In the testimony, plaintiff failed to comply with the requirements of Article 1388 to show liability of Evons as statutory trustee. Although the evidence shows, as will be discussed later, that Evons succeeded to the rights of the corporation as lessee under the lease in question, the value of such lease was not attempted to be established. It was not shown that he received and distributed any other property or effects of the corporation of any value, nor was his liability sought to be limited to the extent of any property received by him. It was in evidence that he sold the dance studio business, but there is no testimony that this property, which was not a part of the lease contract, ever belonged to the corporation or was a part of its assets.

Hence we find that neither pleadings nor proof justified a judgment against Evons as statutory trustee of the assets of Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc.

Evons’ first three points assign error of the trial court in overruling certain special exceptions which, though somewhat general and multifarious, appear to be directed in part at the insufficiency of plaintiff’s trial petition to show a cause of action against Evons as statutory trustee. As already stated, we agree that no such cause of action was alleged.

Such exceptions also are in part directed to the alleged insufficiency of plaintiff’s petition to plead a cause of action against Evons individually. We have carefully examined the petition, and find that such a cause of action is plead. The actions of Evons in representing himself to Winkler as the successor of the defunct corporation as lessee in the lease contract, thus causing Winkler and the subsequent assignees to enter into the transfer of the lease at a time when rental payments were current, and other facts leading to Evons assumption of the liabilities and financial responsibilities under the lease contract, were alleged. The assignment of the lease from Evons to Lawless and Kirk, executed by Evons as lessee, is attached as an exhibit. Without detailing such allegations further, since Evons’ exceptions to the petition are actually too general and multifarious to require doing so, we hold that in so far as Evons contends that no cause of action was plead against him individually, the trial court did not err in overruling his exceptions to plaintiff’s petition.

Evons’ points 4, 5, 11 and 13 relate to the statutes of limitations. Points 4 and 5 concern alleged error of the court in overruling special exceptions in which the two and four year statutes of limitations are urged as a bar to plaintiff’s suit. His 11th point alleges error in the court’s finding of fact that the cause of action did not accrue more than two nor more than four years prior to the institution of the suit. His 13th point is that the court erred in his conclusion of law that the cause was not barred by the two or the four year statute of limitations.

The pleadings and the evidence showed that all delinquent rent sued for accrued after January 1, 1960. Plaintiff’s petition was filed January 6, 1961, on a written contract which would not terminate until May 31, 1962. The fourth amended petition, on which this case went to trial, which alleged no new items of recovery except that by the time of its filing the contract was no longer executory, was filed December 21, 1962. Thus it is apparent that Evons’ points 4, 5, 11, and 13, are without merit, and same are overruled.

Evons’ point 6 complains of the court’s action in overruling his special exception to that portion of plaintiff’s petition seeking recovery for insurance premiums on the property paid by plaintiff for the years 1959, 1960 and 1961. This point is overruled. The lease, a copy of which was attached to the petition, provided: .

“The Lessee shall carry fire and extended coverage insurance for the period of this lease in the minimum amount required by the loan company at the time of the acceptance of this lease.”

The petition alleged the amount of insurance required under this provision, and the cost of the premiums, and that lessees had failed to pay such premiums, requiring plaintiff to do so. This was a proper charge against lessees under the provisions of the contract, and the trial court correctly overruled the exception.

Points 7, 16, 18, 19 and 20, set out and argued in appellant Evons’ brief, concern the issue of Evons’ liability as statutory trustee. We have already determined this matter favorably to Evons’ contentions and need say nothing additional thereon.

Evons’ points 8, 9, 10 and 12 are each concerned with certain findings of fact made by the trial court as to Evons’ individual liability, each point asserting that there is no evidence to support the finding therein referred to, and that the finding is against the great weight and preponderance of the evidence. By his points 14, 15 and 17, Evons states that the trial court erred in making certain conclusions of law. We copy below the findings and conclusions that are complained of.

“Findings of Fact”
“19. That the lease of the subject premises was transferred by Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc. to Harry Evons.
“20. That Harry Evons represented to Province M. Winkler, Michael V. Lawless and Daniel H. Kirk that he, Harry Evons, owned the lease of the subject premises and he held himself out as being the owner of such.
“21. That Province M. Winkler executed the consent to assignment of the lease from Harry Evons to Michael V. Lawless and Daniel H. Kirk in reliance on the representations of Harry Evons that he, Harry Evons, owned the lease.”
“24. That sometime between May 8, 1952, and July 1, 1956, Plarry Evons, individually, acquired the Arthur Murray Dance Studio occupying the subject premises.”
“Conclusions of Law”
“3. That sometime between May 8, 1952, and July 1, 1956, Harry Evons, individually, became a lessee of the subject premises under the written lease agreement dated May 8, 1952, between plaintiff and Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc.
“4. That Harry Evons is now es-topped to deny that he was a lessee of the subject premises under the written lease agreement dated May 8, 1952, between Plaintiff and Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc.
“7. That when Harry Evons acquired the Arthur Murray Dance Studio he was chargeable with notice and knowledge of the remaining obligation under the written lease dated May 8, 1952.”

We have set forth earlier in this opinion a brief partial summary of the undisputed testimony produced in the trial. Though Evons did not see fit to testify, we find that not alone from Winkler’s testimony, but from Evons’ own actions and written words, the trial court was justified in holding not only that Evons was estopped from denying his liability to Winkler under the lease contract, but that he individually had succeeded to the rights and obligations of the defunct corporation as to such contract. It is shown in evidence that the letter he wrote on September 24, 1956, quoted above, was directly responsible for Winkler executing the written consent for the transfer of the lease from Evons, as lessee, to Lawless and Kirk. Such consent was given by Winkler to Evons expressly subject to the performance by assignees of all agreements and covenants contained in the original lease. In the contract of sale between Evons and Lawless and Kirk mentioned earlier, Evons recognized the obligations imposed upon lessee by said lease. He stated in such instrument that the school of dancing being sold was conducted by him. In answer to a request for admission, introduced in evidence, Evons stated that he represented to Lawless and Kirk that he owned in his individual capacity a leasehold interest in the premises in question. In an interlocutory default judgment taken by Evons against cross-defendant Kirk on a cross-action a week before the trial in the instant case, introduced in evidence without objection, the court found, at Evons’ instance, that “the said lease was transferred by said lessee (the defunct corporation) to Harry Evons’ * *

The record is replete with such instances of conduct and statements of Evons which are consistent only with the conclusion that he, in his individual capacity, had acquired the lease in issue, recognized his obligations as assignee or successor to the original lessee, and had legally assumed such obligations.

It is a well-settled rule of law that one who accepts the benefits of a contract must also assume its burdens. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892; Terrazas v. Carroll, Tex.Civ.App., 277 S.W.2d 274. Where an entire lease is transferred, the assignee, as a matter of law, is rendered liable for the payment to lessor of rents as the original lessee contracted to pay, and according to the terms of the lease. Jackson v. Knight, Tex.Civ.App., 194 S.W. 844, writ ref.; Terrazas v. Carroll, supra; Marathon Oil Co. v. Rone, Tex.Civ.App., 83 S.W.2d 1028, writ ref.; Waggoner v. Edwards, Tex.Civ.App., 83 S.W.2d 386, writ ref.; Stark v. American Nat. Bank of Beaumont, Tex.Civ.App., 100 S.W.2d 208, writ ref.

We hold that the evidence before the trial court amply justified his making the findings of fact and conclusions of law here assigned as error.

We have carefully reviewed all of appellant Evons’ points of error, and find that none of them show reversible error.

The judgment rendered against appellant Evons will be reformed so as to delete all reference to recovery against him as statutory trustee of the assets of Arthur Murray Dance Studios of San Antonio and Corpus Christi, Inc. The judgment against Harry Evons individually is affirmed.

Since appellant Harry Evons has filed a supersedeas bond, this judgment against him shall include the sureties on said bond.

Reformed and affirmed.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Elliot G. KEELING, Appellant, v. Pauline C. ZOLLER et al., Appellees.
    No. 14335.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1965.
    Carl Wright Johnson, Alfred W. Offer, Nat L. Hardy, San Antonio, for appellant.
    Rudy Rice, M. C. Whitehead, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is a plea of privilege case. Suit was instituted in the District Court of Bex-ar County, Texas, by Pauline C. Zoller on behalf of herself and other relatives of El-more C. Zoller, against W. R. Grimshaw Company, an Oklahoma Corporation, and Elliot G. Keeling, a resident of Harris County, Texas, seeking to recover damages for the wrongful death of Elmore C. Zoller, allegedly caused by the negligence of the defendants in Bexar County.

It is alleged that Grimshaw Company was the general contractor for the construction of what is now generally known as the Wonderland Shopping Center in San Antonio, Bexar County, Texas; that Grim-shaw failed to keep the premises in a reasonably safe condition, and by such negligence proximately caused the death of Zol-ler, in that on the evening of July 24, 1961, while Zoller was leaving the job site his feet and legs became entangled in some mesh wire, causing him to fall and strike his head on an upright steel reinforcement rod, or Y%" steel dowel, which pierced his right eye causing and producing injuries to his right eye, head and brain which subsequently, on August 1, 1961, produced his death.

It is further alleged that defendant Keeling was the foreman of the iron work on this construction job, and was the agent and employee of Grimshaw Company; that it was his duty as foreman to see that the steel reinforcement rods were bent over at the top after they were set in the concrete, and that Keeling failed to do this, and thus proximately caused Zoller’s death.

Defendant Keeling filed his plea of privilege to be sued in Harris County, the County of his residence. His plea of privilege was controverted by plaintiffs, alleging venue in Bexar County under the provisions of Art. 1995, Subd. 9a, Vernon’s Ann.Civ.Stats. Plaintiffs filed an amended petition and an amended controverting affidavit, alleging more in detail the negligent acts of the defendants. After hearing evidence the trial court overruled the plea of privilege, and Elliot G. Keeling has prosecuted this appeal.

This judgment must be reversed and rendered because there is no evidence in the record to show that Zoller met his death in the manner alleged in the petition and controverting affidavit.

Subdivision 9a, supra, reads as follows:

“9a. Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
“1. That an act or omission of negligence occurred in the county where suit was filed.
“2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
“3. That such negligence was a proximate cause of plaintiff’s injuries.”

The only testimony having any bearing whatever upon the manner in which Zoller met his death is the deposition of appellant, Keeling, and Zoller’s death certificate. The court admitted the death certificate for the limited purpose of showing the age and death of Zoller, and excluded the hearsay statements in the certificate attempting to set out the manner in which he fell and injured himself. Appellees did not object in any way to the limited purposes for which the death certificate was admitted in evidence, and therefore they are not in a position to here complain of this ruling of the trial court. Thus the death certificate does not establish that Zoller got his legs and feet entangled in some wire and fell upon an upturned steel rod on the Wonderland job site.

Appellees, in attempting to show that Keeling in his deposition admitted that Zoller was injured at the time and place and in the manner alleged in the pleadings and controverting affidavit, refer us to the Statement of Facts, page 99, lines 17-21, reading as follows:

“A That particular type (of wire) there — laying down there was a heavier type than what was fell on, this area here in the slab where the trucks run was a heavier type mesh than this roll here. This was six by six which was used up here.”

When this evidence is consideied in the light of the fact that early in his deposition Keeling testified that he was not on the job site on the night that Zoller had his accident, it does not in any way establish when and how Zoller received his injury.

Appellees completely failed to prove that Zoller received his injury at the time and place and in the manner alleged.

It is well established law that where a plaintiff attempts to maintain venue against a defendant in a county in which he does not reside, under the provisions of subd. 9a, supra, such plaintiff has the burden of showing by the evidence that the defendant, through his negligence, proximately caused the death or injury complained of in the county of suit. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825; Compton v. Elliot, 126 Tex. 232, 88 S.W.2d 91; Reynolds & Huff v. White, Tex.Civ.App., 378 S.W.2d 923; Baker & Taylor Drilling Co. v. Hemphill County, Tex.Civ.App., 376 S.W.2d 66; 60 Tex.Jur.2d p. 98, § 217.

The evidente here does not even show that Zoller was present at the time and place where it is alleged he was injured, much less the manner in which he was injured,

Appellees have filed a cross-assignment of error to the effect that the trial court erred in not admitting into evidence the death certificate of Elmore M. Zoller for all purposes. The record shows that ap-pellees did not object at the time the trial court excluded parts of the death certificate, and are not now in a position to complain of such action on this appeal. 3 Tex. Jur.2d, Appeal and Error, p. 390, § 121.

The judgment is reversed and judgment here rendered sustaining appellant’s plea of privilege. The Clerk of the District Court of Bexar County is directed to transfer this cause insofar as it relates to appellant, Elliot G. Keeling, to the District Court of Harris County, Texas, in the manner provided by Rule 89, Texas Rules of Civil Procedure.

On Appellees’ Motion for Rehearing, and Motion to Dismiss for Want of Jurisdiction

Appellees have filed a motion to dismiss this appeal for want of jurisdiction upon the theory that the plea of privilege of appellant, Elliot G. Keeling, became moot because the suit has been tried on its merits and a final judgment rendered disposing of the cause. See Schrader v. Perea, Tex.Civ.App., 367 S.W.2d 222, wr. ref.

The record before us shows that after appellant’s plea of privilege was overruled on June 9, 1964, and after the appeal had been perfected to this Court, the main cause proceeded to trial on its merits before a jury, and the verdict of such jury was returned into court. Thereafter, defendants W. R. Grimshaw Company and Elliot G. Keeling filed motions for judgment notwithstanding the verdict, which were overruled, and the court proceeded to render a judgment in favor of plaintiffs in the cause and against Grimshaw Construction Company and Elliot G. Keeling, stated to be based upon the stipulations of all the parties and the verdict of the jury. This judgment was signed and entered on December 18, 1964. On December 29, 1964, W. R. Grim-shaw Company and Elliot G. Keeling filed a motion for new trial, which was the eleventh day after judgment had been signed by the trial court, and not within the ten-day period provided for by Rule 32%, § 1, T.R.C.P. Thereafter, on January 4, 1965, the same parties filed a motion to set aside judgment, which was more than ten days but less than thirty days after the rendition of the judgment. This motion was heard, and the trial court entered a new judgment containing the following opening paragraph:

“On this the 11th day of January, 1965, after due notice, came on to be heard the motion of the defendants to vacate and set aside the judgment of this Court heretofore entered herein on the 18th day of December, 1964, and it appearing to the Court that said judgment should be corrected, modified or reformed and that a corrected, modified or reformed judgment be entered herein, it is hereby ORDERED, ADJUDGED and DECREED that said judgment of December 18, 1964, be and the same is hereby corrected, modified or reformed and that a corrected, modified or reformed judgment be this day entered in this cause as follows:”

This new judgment made numerous changes, and it was signed by the trial court on the 11th day of January, 1965, which was within the thirty-day period provided by Rule 329b, supra, during which time a trial court has control of its judgment and may set it aside even though the párties may not have timely filed a motion for new trial. Rule 329b, § 5, reads in part as follows:

“ * * * The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision (1) of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered.”

In the first judgment the plaintiffs did not recover one cent from “W. R. Grimshaw Company,” but the recoveries were from Grimshaw Construction Company and Elliot G. Keeling, while in the second judgment there was no recovery against Grimshaw Construction Company, but all recoveries were from “W. R. Grimshaw Company” and Keeling. The first judgment awarded Kenneth Zoller $500.00 less than the jury awarded him. The second judgment expressly provided that the judgment should “bear interest at the rate of six per cent per annum from the date of signing of this Judgment,” indicating that the trial court did not consider the judgment finally rendered until January 11, 1965.

There is nothing to indicate that the trial judge rendered any judgment until he signed the decree on December 18, 1964, so that was the exact judgment which he rendered on that date. Later the trial judge discovered he had made some judicial errors in rendering that judgment, and found it necessary, within the thirty-day period during which time he had plenary power over his judgment, to correct his judicial errors by in effect setting aside the first judgment and rendering a new and complete judgment. Swanson v. Holt, 126 Tex. 383, 87 S.W.2d 1090; Luck v. Hopkins, 92 Tex. 426, 49 S.W. 360; Caliva v. Texas Construction Material Co., Tex.Civ.App., 380 S.W.2d 641; Davila v. Caller Times Pub. Co., Tex.Civ.App, 308 S.W.2d 592; Rule 329b, T.R. C.P.; 33 Tex.Jur.2d 657, Judgments, § 135.

There cannot be two final judgments in one case unless they are provided for by law. Martin v. Crow, 28 Tex. 613; Kline v. Power, Tex.Civ.App., 114 S.W.2d 617; Colburn v. Ward, Tex.Civ.App., 40 S.W.2d 878; Stoltz v. Coward, 10 Tex.Civ.App. 295, 30 S.W. 935; Rule 301, T.R.C.P.

Furthermore, the first judgment might well be regarded as an interlocutory order, in that it did not dispose of the defendant “W. R. Grimshaw Company,” and if this be true then the second judgment is the only final judgment in the case. Lubell v Sutton, Tex.Civ.App., 164 S.W.2d 41.

There is no contention that appellant did not timely file his motion for new trial after the signing of the January 11, 1965, judgment, therefore, we must conclude that the judgment had not become final. Accordingly, we overrule appellees’ motion to dismiss on the grounds of mootness.

We have carefully considered appellees’ motion for a rehearing and have decided that this cause was not fully developed in the trial court and, therefore, in the interest of justice, it should he reversed and remanded for a new trial. Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884; Milner v. Boswell, Tex.Civ.App., 377 S.W.2d 763; Garrett v. Downs, Tex.Civ.App., 377 S.W.2d 113.

Accordingly, our judgment heretofore rendered on January 13, 1965, reversing and rendering the judgment of the trial court, is set aside, and the judgment of the trial court is now reversed and the cause remanded for a new trial.


author: BARROW, Justice.

text:
    Annie SCHROLLER, Community Administratrix, Appellant, v. Lillian Mae Schroller HAGAN et vir, Appellees.
    No. 14369.
    Court of Civil Appeals of Texas. San Antonio.
    March 3, 1965.
    Rehearing Denied March 24, 1965.
    Clark Murray, Floresville, for appellant.
    Ronald Smallwood, Karnes City, for ap-pellees.
   BARROW, Justice.

The only question presented by this appeal is whether the County Court has jurisdiction to grant the application of an heir and order the community administratrix to file a verified exhibit and accounting of the estate and to partition and distribute same. The case was tried upon a stipulation of facts and the District Court held that the County Court had jurisdiction to render said order. We affirm.

R. J. Schroller, a resident of Wilson County, died intestate on September 2, 1947, leaving as survivors his widow, the appellant, and seven children, including appellee. Mrs. Annie Schroller filed her application to qualify as community administratrix, was appointed such by the County Court of Wilson County on September 16, 1947, and filed a bond and an inventory and ap-praisement, as required by law. She took possession of the community estate and continues to hold same, although there are no community debts remaining unpaid. On August 17, 1963, appellee filed an application in the County Court of Wilson County for a partition and distribution of this estate. On April 21, 1964, the County Judge, sitting in probate, overruled appellant’s motion to dismiss this application for want of jurisdiction and directed appellant, as community administratrix, to file a verified exhibit and accounting of said estate and to forthwith make a partition and distribution of said estate. Appellant appealed to the District Court from this order and questioned the County Court’s jurisdiction.

It is our opinion that the County Court had jurisdiction to enter this order under the provisions of the Probate Code, Vernon’s Ann.Tex.Stats. Sec. 175 thereof provides for termination of a community administration after the lapse of twelve months, and further provides that partition and distribution of the community estate may be had and the administration closed either by proceedings as in other ■ independent administrations, or by proceedings in the appropriate District Court. One of the methods of closing an independent administration is set fourth in Sec. 152 of the Code. This section provides in part that “after an estate has been fully administered and there is no further need for an independent administration of such estate, any distributee may file an application to close the administration; * * In Davis v. East Texas Savings & Loan Ass’n, 163 Tex. 361, 354 S.W.2d 926, the Supreme Court held that this section authorizes a distributee to file an application to close an independent administration, and that the application must be made to the probate court.

Appellant urges that appellee is an “heir” and not a “distributee.” It is seen, however, that a “distributee” as defined in Sec. 3(j) of the Code, includes a person entitled to the estate of a decedent under the statutes of descent and distribution. It was stipulated that appellee, a daughter of deceased, is entitled to a share of the estate of R. J. Schroller, deceased.

Here all debts of the estate were paid, and more than twelve months had elapsed after appellant qualified as community administratrix. The County Court therefore had jurisdiction to grant appellee’s application for a partition and distribution of the estate. This would include jurisdiction to order an accounting. Secs. 151, 168, and 404 et seq., Probate Code, Vernon’s Ann.Tex.Stats.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    Martha GILBREATH, a feme sole, et al., Appellants, v. Norvel DOUGLAS et al., Appellees.
    No. 7479.
    Court of Civil Appeals of Texas. Amarillo.
    March 1, 1965.
    Kehearing Denied March 29, 1965.

      Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellants.
    Golden, Croley, Howell, Johnson & Mizell, Dallas, for appellees.
   DENTON, Chief Justice.

This is a suit for a partition in kind of oil, gas and other minerals. Suit was filed by Norvel Douglas et al., hereinafter called appellees, against Martha Gilbreath et al., hereinafter called appellants, for a partition in kind of the oil, gas and other minerals under the Southwest Quarter (SWi/iJ.) of Section 58, Block 24 in Wheeler County, Texas to a subsurface depth of 2512 feet. The trial court, without a jury, ordered a partition as prayed for by appel-lees. The judgment limited the duration of the partition to a period of two years from July 8, 1963, “and for so long thereafter as oil, gas, condensate, and distillate or other gaseous substance is produced in paying quantities from any well situated thereon.”

The appellees are either the owners of all the mineral fee interests in the subject quarter section to the depth of 2512 feet, or are the owners of oil and gas mineral leases covering such mineral interests or overriding royalty interests, save and except the undivided one-sixteenth interest in the minerals owned by appellant, Martha Gilbreath, her brother and three sisters. Three defendants whose whereabouts are unknown were cited by publication. Their undivided 3/10240 interest in the minerals is not subject to lease.

Appellants rely on nine points of error for reversal of this case. The first three points are briefed together and contend the judgment ordering a partition was erroneous in that it sought to partition a tract less than that tract comprising the original cotenancy. The contention is that appellants’ cotenancy was in the oil, gas and other minerals in the South One-Half (Si/j) of Section 58 and not in the SWJ4 of that section; that the cotenancy was not limited to a subsurface depth of 2512 feet; nor by a time limitation of two years and for so long thereafter as gas, oil, etc., were produced in paying quantities. Appellants recognize that minerals are subject to partition and that vertical and horizontal subdivision of mineral estates are a recognized right. However, under the substantially undisputed facts as to ownership of the mineral interests, appellants contend the trial court’s judgment accomplished partial partition. This contention is based on the fact appellants’ interests extend throughout the Si/i of Section 58, thus saying the partition here is one of a lesser tract, to-wit SW14 of Section 58, and is therefore a partial partition. This same contention is made as to the subsurface depth of 2512 feet.

The general rule is that partitioning may not be enforced as to a portion of the common property, and the suit must seek a division of the whole thereof. Battle v. John, 49 Tex. 202; 44 Tex.Juris.2nd, Partition, Section 19, and authorities cited. Appellants argue, “the whole thereof” in the instant case is the S]4 of Section 58 rather than the SWJ4 of that section. Necessary requisites to a partition, be it an estate in land or minerals, are that the partitioners must be joint owners of the interests sought to be partitioned, and the party or parties seeking the partition must have an equal right to possession with the other joint owners. Henderson v. Chesley, 273 S.W. 299, affirmed 116 Tex. 355, 292 S.W. 156. It is undisputed that all the mineral interests, including leases covering such mineral interests, or overriding royalty interests in the SWj4 to a depth of 2512 feet, are owned by the appellees and appellants; and that all such interests are coextensive and common to that quarter section. This is not true as to the S]/i of Section 58 nor to the SW]4 below a depth of 2512 feet. Some owners hold a mineral interest in the SWy4 below a subsurface depth of 2512 feet, but own no interest above that depth. The same is true as to leasehold interests in this quarter section. Others own mineral interests in the SEJ4 but own no interests in the SW14. The fact appellants own mineral interests in the S}/£ does not in itself render the S]4 the smallest tract capaable of partition. To apply such a test would nullify the basic requisites of partitioning. In our opinion the S]4 under this record does not possess the necessary requisites to partition in kind. The SWJ4 of Section 58 to a subsurface depth of 2512 feet is the largest unit in which the co-tenancy of all parties hereto exists in common.

Appellants next contend the attempted partition was invalid by limiting the partition to the specified depth. Appellants recognize there is no legal distinction between a vertical partition and a horizontal partition. As we understand it, appellants do not assert the partition is invalid on the ground the partition was horizontal, but that it had the effect of limiting the unit being partitioned to less than the original co-tenancy, to-wit the of Section 58 to an unlimited depth. We think this contention is without merit. What has been said relative to the SWJ4 of Section 58 as a proper unit to partition applies to the subsurface depth of 2512 feet within that tract. That horizontal area contained a cotenancy of all parties hereto and such interests were in common to that depth only.

The judgment ordering the partition limited the partition to a period already mentioned. This limitation was based on a Pooling and Unitization Agreement which pooled certain appellees’ mineral interests in and under the SWJ4 of Section 58. No authority has been cited which permits or prohibits a partition of the mineral estate for a period of time less than the duration of the mineral estate itself. However there can be no doubt that an oil and gas leasehold estate may be partitioned. Article 6082, Vernon’s Ann.Civ. St.; Goodloe & Meredith v. Harris, 127 Tex. 583, 94 S.W.2d 1141, (Opinion adopted). The lessee in the usual oil and gas lease obtains a determinable fee in the oil and gas in place and thus obtains an interest in realty. The determinable fee interest will last only for the primary term or so long as oil or gas is produced. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676. The same language which limits the fee estate in the case of the oil and gas lease also limits some of the appellees’ mineral interests by the language of the Pooling & Unit-ization Agreement. We see no valid distinction between these limitations, and conclude the time limitation does not render the partition invalid. Assuming the court had not limited the partition as to time, the pooling agreement itself places a limitation upon the mineral estate held thereunder according to its own terms. A partition in kind can not operate as a conveyance but is simply a distribution of interests in land between persons who are part owners. Arnold v. Cauble, 49 Tex. 527. A partition in perpetuity under the facts and circumstances of this case would be contrary to the expressed limitation placed on some of the appellees’ mineral estate.

Appellants next attack the order of partition on the ground there is no evidence and insufficient evidence that the oil, gas and other minerals underlying the SW}4 of Section 58 were equal in value and quality. They also contend there was evidence that all portions of the tract were of unequal value as to the minerals. It was stipulated by the parties that there are five producing oil wells on the adjoining SE14 of Section 58 and that there are presently no wells, nor have there ever been any wells, situated on the SWJ4 of Section 58 producing oil, gas or other minerals. It is settled that where there has been no development or exploration for minerals of any kind under the land in question the court should assume for the purpose of partition that each acre of the land contains an equal amount of minerals. Henderson v. Chesley, Supra. Although the quarter section under consideration was undeveloped, it is adjacent to proven production in the SE]4 of the same section. The Supreme Court in affirming Henderson v. Chesley, Supra, used the following language:

“Oil is a substance peculiar to itself, and behaves in different ways under different conditions; and, certainly, the court may take into account the habit of the substance which is to be partitioned, and apply the rules of law and equity thereto in a manner to attain its equitable partition.”

In its findings of fact and conclusions of law the trial court found an equal amount of oil and/or gas deposits exists under each acre of the SW14 to a subsurface depth of 2512 feet. Under the facts and applicable rules of law, we are of the opinion the evidence supports this finding. Appellants recognize the rule that in the absence of proof it is presumed that oil and gas sought to be partitioned are equal in value. However appellants take the position there was evidence of the unequal value of the minerals in the quarter section in question. This testimony came from a consulting petroleum engineer who testified from a contour map prepared by appellee Douglas. He testified in his opinion that some parts of the SWJ4 were more valuable “from an oil producing standpoint” than others. This opinion was based on the contour map referred to, but the engineer conceded the only accurate way to determine the productive zone is by actual drilling operations. There was affirmative evidence from appel-lee Douglas, an admitted expert, that the oil and/or gas underlying the quarter section was of equal value. He also testified that actual drilling was necessary to obtain an accurate evaluation of the oil and gas. In the absence of actual development there can be no positive, accurate evaluation of the value of the oil and gas in place. After considering all of the testimony, together with the characteristics of oil and gas reserves, we are of the opinion there was sufficient evidence to support the trial court’s finding that the oil and gas underlying the tract of land involved is of equal value. We conclude the mineral interests are capable of partition in kind.

Finally, appellants contend there are no pleadings to support a partition less than in perpetuity and no pleadings for the limitation of two years from July 8, 1963, and for so long thereafter as oil, gas and other named minerals are produced in paying quantities. Appellees’ petition contained a prayer for general relief. The rule is well settled that a general prayer authorizes the court to grant relief appropriate to the facts proved at the trial. Morris v. Biggs & Co., (Tex.Civ.App.), 165 S.W.2d 915, (Error Dismissed); 45 Tex. Juris.2d, Pleadings, Section 49, and authorities cited. In the instant case the relief granted was less or limited as to time, and we are of the opinion the court was authorized to grant such relief under the pleadings and evidence. In view of appellees’ counsel’s oral statement to the court at the beginning of the hearing, it can not be said the relief sought came as a surprise to appellees’ counsel stated a trial amendment limiting the partition to the time indicated would be filed. Such a trial amendment was not filed but that notice together with the prayer for general relief supports the relief granted.

A careful review of the record reveals no reversible error. The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Glen P. HURR et al., Appellants, v. Ruth Ann HILDEBRAND et al., Appellees.
    No. 14495.
    Court of Civil Appeals of Texas. Houston.
    Feb. 18, 1965.
    Rehearing Denied March 11, 1965.
    G. F. Steger, Columbus, R. F. Evans, Groveton, for appellants.
    Hodges, Moore & Gates, Otto Moore, Jr., Hollis Massey, Columbus, for appellees.
   WERLEIN, Justice.

Appellees brought this suit in trespass-to-try title to recover title and possession of a tract of 32.52 acres of land in Colorado County. The suit involves a boundary dispute between appellants and appellees, the appellants contending that the boundary is a fence line on the south side of their land, which separated their tract from appel-lees’ adjoining tract for more than 60 years, and the appellees contending that the true line was not the fence line but a line parallel therewith and some 95 varas north thereof. Appellants filed pleas of not guilty and have set up various statutes of limitation, long recognition of the fence line as being the true line, and acquiescence by appellees therein. Judgment was entered in favor of appellees by the court upon the jury verdict which found against appellants on the issues covering limitation and adverse possession, and also on the issue covering acquiescence on the part of appellees in the fence as being the true boundary line between the tracts. The jury did not answer the issue as to whether the land in dispute was enclosed under the fence in dispute by mistake as to the true location of the south boundary line of appellants’ land, known as the Hurr land, but did answer that D. P. Hurr or his wife, Mattie Hurr, or those claiming under them, had admitted, acknowledged or recognized by words, acts or deeds that title to the tract of land in dispute was in other persons.

The land in dispute as well as the land recognized as belonging to appellants and also the land belonging to appellees is located in the W. K. Paulding (or Pauling) Survey No. 9, Abstract No. 462 and the W. K. Paulding Survey No. 10, Abstract 466, in Colorado County, Texas. On January 18, 1897, J. L. Jellison acquired from Sarah R. Thompson and husband, F. M. Thompson, a tract or parcel of land described as parts of Nos. 9 and 10, W. K. Paulding Surveys situated on the Sandies Creek about twenty miles south of Columbus in Colorado County, Texas, described by metes and bounds as follows:

“Beginning in the center of East Sandies in North line of No. 9, 62 varas East of its N W corner; Thence E through prairie 1559 varas to post in prairie in a mount, Thence South through prairie 2229 varas to corner in flat, Thence W about 1000 varas timber, 3070 varas to corner in center of the Creek, Thence up the center of the creek to the place of beginning containing 868.8 acres of land.”

On May 22, 1897, Jellison sold a called 320 acre tract off the north side of said 868.8 acres to Jesse T. Rutherford, described by metes and bounds as follows:

“Beging in the center of E Sandies in North line of No. 9, 62 varas East of its N W corner, Thence E to the N E corner of No. 9, Thence South sufficient distance to take in 320 acres, Thence W to the center of Sandies Creek, Thence up the Sandies Creek to the place of beginning.”

This same description was used in the deed of said 320 acres from Rutherford to Mayfield dated July 5, 1900, and in the deed from Mayfield to D. P. Hurr, dated February 27, 1901. Included in the deed from Mayfield to Hurr and in the deed from Rutherford to Mayfield was also a 20 acre tract adjoining the 320 acres on the north, such 20 acre tract being out of land patented to the heirs of one Robert Mills.

On November 15, 1898 Jellison sold the residue of the 868.8 acre tract to one W. J. Boschert, describing the property by metes and bounds as follows:

“Beginning in the S E corner of No. 9, Thence West about 3070 varas to center of Sandies Creek; Thence up the center of Sandies Creek to the S W corner of a 320 acre tract, previously sold to Jesse T. and Susan A. Rutherford, off the North side of the tract bought from Sarah R. Thompson and F. M. Thompson by J. L. Jellison; Thence East to the S E corner of said tract, Thence South to place of beginning, containing in all 540 acres more or less.”

In 1962 appellees, who deraign title under Boschert, had their 540 acres surveyed with the result that the same appeared to be lacking in acreage quantity. Thereupon appellees instituted this suit, claiming that the more than 60 year old Hurr south fence line was not the south boundary line of appellants’ land but that such fence line was actually located on appellees’ 540 acres, and was some 95 varas south of the true boundary line between the 320 and 540 acre tracts. For a better understanding of the contention between the parties, we are inserting a rough sketch of a plat, Appel-lees’ Exhibit No. 3, which was introduced in evidence at the trial, upon which we have superimposed certain broken lines or dashes, and data illustrative of the contention of appellants with respect to the location of the boundary line between the so-called 320 and 540 acre tracts of land, as shown on the map offered in evidence by appellants.

In 1917 D. P. Hurr, under whom appellants claim, engaged Frank Davidson, Sr., to survey the 320 acre tract, which was not, up to that time, completely described by metes and bounds. Davidson in making his survey relied upon the patents issued to W. K. Paulding covering Paulding’s Sections 9 and 10, and other data. He testified also that D. P. Hurr pointed out the northwest and northeast corners of Section No. 9. The patent to Section 9 to W. K. Paulding is dated April 28, 1859. The patent to No. 10 issued to W. K. Paulding is dated April 27, 1858. The patent to Section No. 9 was not filed for record in the Deed Records of Colorado County until November 11, 1910. Appellants introduced in evidence the field notes made by the original surveyor, J. J. Stolts, District Surveyor, on March 21, 1857, of both Sections 9 and 10 Paulding, upon which patents to such Sections were presumably based. We observe no difference between these field notes covering Sections 9 and 10 and the field notes in the patents covering such sections, although the point in the N 1621 varas distance call of Section 9, where the surveyor came to the E Branch of the E Sandies is given as 1400 varas in the surveyor’s field notes and in the patent as 1600 varas from the N E corner of Sec. 9.

Shortly after Rutherford acquired the 320 acre tract in the Paulding Surveys in 1897 and the 20 acre tract in the Mills Survey, he completely enclosed the entire property with 3-wire barbed wire fences which would turn cattle. It is undisputed that such fences, including the fence along what was thought to be the common boundary line between the 320 and 540 acre tracts, remained in exactly the same positions and were continuously maintained from the time they were constructed until this suit was filed in 1962. Davidson began his survey in the center of Sandies Creek (not the E bank thereof), in the North line of Survey No. 9, W. K. Paulding, 62 varas East of its N W corner; (this was the called place of beginning in the deed from Jellison to Rutherford in 1897) ; Thence East with the North line of Section No. 9 1552 varas to corner in same; Thence South with East line of No. 9 1124.3 varas to corner in same; Thence West 1864 varas to the center of East Sandies Creek; Thence up said creek with its meanders to the place of beginning, containing 320 acres of land. The South line of this survey made by Davidson in 1917 is not along the old fence line but some 95 varas North thereof.

It is appellees’ contention that the South line thus established by Surveyor Davidson is the true boundary line between the 320 and 540 acre tracts of land. Appellants, on the other hand, assert that the fence line is the true and established South line of their 320 acre tract and the boundary line between the two tracts of land. Appellants called as their witness R. E. Schiller, Sr., a registered professional engineer, who at appellants’ request made the map which we have undertaken to superimpose upon appel-lees’ map, Plaintiffs’ Exhibit No. 3. Schiller testified in substance that he made no survey on the ground; that he took the survey made by Davidson but that he placed Sandies Creek 1400 varas from the Northeast corner of Section No. 9, instead of 1552 varas as in Davidson’s plat, thus moving the entire creek all the way from the North line of the survey to below the South line thereof, 152 varas East; that by so moving the creek and giving it the same meanders as shown in Davidson’s map, the South line of the 320 acre tract would then be moved south to the fence line and the tract would contain 324.87 acres; that if he followed the patent which called for 1600 varas from the N E corner of the Section to Sandies, there would be yet more acreage in the tract; that in surveying land he would follow the patent rather than the field notes prior to the issuance of the patent although not adopted in the patent; and that Davidson was right in following the patent in making his survey in 1917, some 7 years after the patent dated April 28, 1859 had been filed in the Clerk’s office in Colorado County.

No issue was submitted inquiring as to the true boundary line between the tracts. Appellants contend that there was a fact issue and that appellees should have requested such issue and that by not doing so they have waived the right to assert that the fence line was not the true boundary line. Appellants’ contention with respect to the fence being the true boundary line is based upon the assumption that the field notes of 1857 should govern the location of Sandies Creek rather than the field notes in the patent issued two years later. They assert that in the original field notes of the District Surveyor, J. J. Stolts, the North call of Section No. 9 stated, “Thence W 1621 varas at 1400 varas came to the E bank of the East Sandies to the beginning.” They hence contend that this shows that the Sandies was 1400 varas from the N E corner of the survey at the time the original field notes were written, although two years later the patent shows that the East Sandies at such time was 1600 varas from such corner.

There is a presumption that the original surveyor ran his course and distance as called for by him in his field notes. State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228; Worthington v. Boughman, 84 Tex. 480, 19 S.W. 770; Tippett v. Woolley, Tex.Civ.App., 230 S.W.2d 283. Unless later surveyors can by following the original surveyor’s steps show that the original surveyor’s calls are incorrect, the survey should be constructed as called for. Strayhorn v. Jones, 1957, 157 Tex. 136, 300 S.W.2d 623, and authorities there cited. In the instant case, the original bearing trees and marks shown in the field notes of Section 9 in 1857 and in the patent issued in 1859 could not be definitely located, with perhaps the exception of an old oak tree marking the N E corner of Section 9. Both the original field notes and the patents show that Sections 9 and 10 are adjoining with a common dividing line which crosses Sandies Creek at an undesignated point. The bearing trees and marks in the S E corner of Section 10 and the S W corner of Section 9 are identical. The courses and distances given in the original field notes and in the patents are the same and the corners are similarly marked. The surveys later made by Mr. Davidson, Sr. in 1917 and by Mr. Davidson, Jr., a registered public surveyor, in 1961-62, show practically the same courses and distances as in the patents and the original field notes of Sections 9 and 10.

The cardinal rule is that the footsteps of the original surveyor, if they can be ascertained, should be followed when attempting to locate the true lines of a survey. Where that cannot be done with reasonable certainty, all the surrounding facts and circumstances should be considered in order to arrive at the purpose and intent of the surveyor who made the original survey. State v. Sun Oil Co., Tex.Civ.App., 114 S.W.2d 936, writ ref.; State v. Humble Oil & Ref. Co., Tex.Civ.App., 128 S.W.2d 424, writ ref.; Gill v. Peterson, 126 Tex. 216, 86 S.W.2d 629; Gill v. Grimes, Tex.Civ.App., 238 S.W.2d 989.

From the evidence it seems clear that the figure “1400”, which is merely a point in a distance call, was written in the original field notes of 1857 through error and that such figure should have been 1600, as it was in the patent issued only two years thereafter. In order to account for the difference between the figures 1400 and 1600, it would be necessary to assume that the San-dies had in two years moved to the west 200 varas. There is no evidence in the record that such phenomenon occurred. Indeed, the evidence shows that there was no appreciable change in the location of the San-dies Creek from the time Frank Davidson, Sr. made his survey in 1917, to the time his son made his survey in 1961-62. Mr. Davidson, Jr. testified at considerable length, as did his father, as to the surveys that were made. He testified that he saw no evidence on the ground that would indicate that the Sandies had ever been 1400 varas from the N E corner of Section No. 9. There is evidence of some changes in the Sandies farther South, but of no material changes in the creek in the vicinity of the Paulding Surveys.

In making his survey, Mr. Davidson, Sr. had the benefit not only of the field notes in the original survey of 1857, and the patent issued in 1859, but also of the description in the conveyance from the Thompsons to J. L. Jellison in 1897, wherein the beginning point of the 868.8 acres of land was established at 62 varas East of the N W corner of said Section 9. Mr. Davidson, Jr. found the same corner that his father had found, and testified that it was marked by a 19 inch oak tree which might have been there in 1857. In any event, in the deeds from the Thompsons to Jellison, and from Jellison to Rutherford, and from Rutherford to Mayfield, and from Mayfield to Hurr, the beginning point was the same, to wit: 62 varas E of the N W corner of Section No. 9.

In the deed to Jellison, who is the common source of title, the North line of Section 9 apparently passes the Sandies at 1552 varas instead of 1400 varas, since the beginning point of the Jellison tract is in the middle of Sandies Creek 62 varas East of the N W corner of Section 9. The deed to Jellison, and indeed the deed from Jelli-son to Rutherford, and Rutherford to May-field, and Mayfield to Hurr, are all ancient instruments, which may be looked to to establish the boundaries of the 868.8 acre tract, out of which was carved first the 320 acre tract and then the 540 acre tract. The original surveyor of Sections 9 and 10, so far as the record shows, never surveyed the 868.8 acre tract conveyed to Jellison.

Mr. Davidson did not locate the S E corner of Paulding No. 9, but he did survey the B. S. & F. No. 7 junior survey lying South of the Paulding. There was found to be no conflict between the Paulding Survey and the B. S. & F. No. 7, or between the Paulding Surveys and other adjoining surveys. The description of the 540 acre tract in the deed from Jellison to Boschert executed on November 15, -1898 calls for the S W corner of the 320 acre tract previously sold to Rutherford, thus establishing the South line of the 320 acre tract as the North line of the 540 acre tract. It should be noted also that neither Mr. Davidson nor his son was able to find the original bearing trees in the patent, as all such marks were gone. The measurements taken, however, did correspond substantially with the calls with the exception of the passing point of Sandies Creek in the N line distance call of Section 9.

In making his survey in 1961-62 Mr. Davidson, Jr. had not only the benefit of the patent notes but also the survey that had been previously made on the ground by his father and also all available records. A road and fence were located at the S E corner of No. 9. A gravel road ran along the recognized East line of Section 9. The same road was there in 1917. Mr. Davidson testified that the 320 acre tract which he surveyed was the same tract which was deeded to Hurr by Mayfield in 1901. There was only a minor difference of five acres in the 320 acre tract as surveyed by Mr. Davidson, Sr. and as surveyed by Mr. Davidson, Jr., and this was accounted for by a slight error in the notes of Mr. Davidson, Sr. There was evidence also to the effect that no part of the 32 acres in controversy was included in the Hurr deed but that it was included in the Boschert deed to the 540 acre tract.

It is our view that appellees have shown record title to the 32 acres in controversy and established the south boundary line of the 320 acre tract as being 95 varas North of and parallel to the fence line. Appellants’ contention that the north call in the field notes prepared in 1857 establishes that the East Sandies was only 1400 varas from the N E corner of Section 9, and their assumption therefrom that the Sandies had moved its entire course 200 varas to the west, is not supported by any evidence of probative force or any evidence at all more than a mere scintilla.

Mrs. Kinchloe, who in 1897, moved on the tract of land adjoining Section 9 on the east, known as the “Paschall Place,” testified that the road on the west line of the Paschall Place was the east line of appellants’ property; that she knew the Ruth-erfords and the Hurrs, and that when Rutherford moved on what is known as the Hurr tract he completely fenced the land. He lived on the tract and had a good fence all around the property. He farmed the land and had cattle and lived there about two or three years. Then the Hurrs moved in the house in 1901, when they bought the place. Hurr built a turkey fence along the south fence line of the property. He farmed the place and had turkeys, cattle, goats and hogs, and continuously lived on and used the place for more than 20 years. During that time he kept the fences in a good state of repair and did not move away from the property until about 1923. She further testified that the Hurrs claimed to own all the land within the fences.

Mr. Ira Briscoe was acquainted with the Hurr tract for some SS years, and knew that during all that time there was no change made in the location of the fence on the south line of the 320 acre tract of land. He also knew that Hurr had built a turkey fence along such fence line, and lived on the property until the year 1923; that the Hurrs had hogs, cattle, turkeys, and also farmed the land. He testified that the place where the creek changed was down below the Hurr land and did not affect any of the Hurr land.

Mr. Flournoy testified that he became acquainted with the Hurrs in 1908. He also testified that Hurr and his family lived on the place and that Hurr had built a turkey-proof fence which was the talk of the country at that time. Mr. Lee Flournoy’s testimony was similar to that of Mr. Ben Flour-noy.

There is no dispute as to the fence lines. They have been in the same locations for over 60 years. It is our view that the un-controverted testimony of the witnesses shows that D. P. Hurr and his wife, Mattie, lived on the premises for more than 20 years continuously and that during all of that time they used the entire tract of land within the fences, farming, raising, cattle, goats, hogs, and turkeys. We find nothing in the record to indicate that the Hurrs, during such period, did not intend to claim the entire tract of land within the fences, including the land in controversy. The evidence shows that they did claim such land, lived on it, used it, cultivated and enjoyed it, adversely to all parties, and that they matured a good ten year limitation title thereto. Even after a survey was made in 1917 by Mr. Davidson, Sr., and the S E corner of the tract was shown to be some distance north of the fence line, Mr. D. P. Hurr did not change the fence line but continued to use the property in the same manner that he had before. There is no evidence that he did not claim the land down to the south fence line.

After D. P. Hurr and Mattie Hurr moved from the place, their son, Raymond Hurr, leased or rented the property to Mrs. Kinchloe. Still later, after the death of D. P. Hurr, his widow, Mattie Hurr, in 1940 deeded her undivided one-half interest in the property to her son, R. M. Hurr, using both the original description in the original deed to Hurr and the description by metes and bounds as given in the survey made in 1917, both of which called for 320 acres. Also in a suit brought by the Hurr heirs against Shell Oil Company in 1956 the 320 acres were described as in the survey of 1917, and in a lease made in 1953 and in tax assessments from 1919 through 1961 the tract is described as 320 acres. Appellees contend that such acts and documents show that appellants were not claiming the land as fenced. Although such subsequent acts might possibly raise a fact issue with respect to later periods of limitation claimed by appellants as to whether the Hurr heirs were claiming adversely to the fence line, they do not constitute any evidence that D. P. Hurr was not claiming the land to the fence line during the period that he matured a good limitation title which was long before such occurrences.

There is no evidence whatever to support the jury’s finding as applied to D. P. Hurr during the period he was maturing such limitation title that he ever admitted, acknowledged, or recognized, by words, acts or deeds, that title to the 32.52 acres of land was in other persons. Furthermore, as to D. P. Hurr and Mattie Hurr, during the time that they lived on the land there is no evidence whatever in the record to support the finding of the jury to Special Issue No. 3 that they did not have peaceful and adverse possession of the land in controversy in this suit, cultivating, using or enjoying the same, for a continuous period of ten years or longer, prior to November 8, 1943. No recognition or acknowledgment later on, even if such was made, could destroy the limitation title which they had previously matured. The law is well settled that title by limitation passes, on the claimant’s death, to his heirs, and that a title acquired by limitation can no more be abandoned by moving away or orally conveyed or divested by other conduct, or orally relinquished than can a record title. 2 Tex. Jur.2d pp. 208-9, Adverse Possession, §§ 208, 210, and authorities cited.

Judgment reversed and rendered.

On Motion for Rehearing

We do not agree with appellees that the opinion testimony of certain witnesses, probably inadmissible, that D. P. Hurr was a good man and would not claim by limitation land that did not belong to him, constitutes any evidence of probative force. The same witnesses also testified that he would claim what he thought belonged to him. The evidence is uncontroverted that he claimed everything within his fences and there is no evidence that he did not think he owned all the land within such fences. There is no evidence that D. P. Hurr rendered for taxes such land at any time prior to 1919, which was after he had matured a good limitation title. The fact that beginning with the year 1919 the tract of land was assessed in his name or in the name of his estate after his death as 320 acres constitutes no evidence of probative force that the claim of D. P. Hurr did not extend to the fence line during the period he matured the first ten year limitation title. The later assessment in his name and in the name of his estate of 320 acres would not constitute any evidence more than a mere scintilla at the most.

Motion for rehearing overruled.


author: COLEMAN, Justice.

text:
    M. L. SMITH et ux., Appellants, v. The STATE of Texas, Appellee.
    No. 14508.
    Court of Civil Appeals of Texas. Houston.
    March 4, 1965.
    Rehearing Denied March 25. 1965.

      Jonn Benn, Houston, for appellants.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, Stanton Stone, T. B. Wright, Watson C. Arnold, Carroll R. Graham, Daniel K. Trevino, Asst. Attys. Gen., Austin, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment entered in a condemnation suit. The trial court permitted the State to withdraw its objections to the award made by the Special Commissioners and thereafter entered judgment on that award over the protest of appellant, who did not file objections to the award within the statutory period.

While condemnees did not file objections to the award within the statutory period, they did file a pleading in the case, before the State filed its request to withdraw its objections to the award, in which they alleged that the value of the land condemned was of a reasonable value greatly in excess of the sum awarded by the Commissioners, and in which they prayed that the State be cited as required by law and that they recover their just damages and costs.

This pleading constitutes a claim for affirmative relief. Thomason v. Sherrill, 118 Tex. 44, 10 S.W.2d 687; Northern Texas Traction Co. v. City of Polytechnic, Tex.Com.App., 236 S.W. 73. Under the Rules of Civil Procedure applicable to ordinary civil cases, a party may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. Rules 96 and 164, Texas Rules of Civil Procedure; Cross v. B. & B. Growers and Packers, Inc., S.A. Tex.Civ.App., 364 S.W.2d 450.

The judgment entered by the trial court recited that on the 12th day of June, 1964, there came on to be heard the motion of the State of Texas to withdraw its objections to the award of the Special Commissioners and to enter judgment on said award, and, after making certain findings of fact, “Ordered, Adjudged and Decreed that the objections to the Award of the Special Commissioners previously filed herein by the State of Texas, be, and the same are hereby withdrawn and stricken from the record and Judgment is Ordered entered on the Special Commissioners’ Award previously filed herein.”

The judgment continued to decree that “fee simple title and writ of possession issue for the State of Texas to recover from the Defendants possession of the property described as follows: ” [A description of the land condemned] and that the defendants recover from the State of Texas the sum of $12,500.00, but that since it appeared that the defendants had withdrawn the award, “it is Ordered that this judgment has been fully satisfied and that execution shall issue.” Costs were adjudged against the State.

Appellant has assigned error to the action of the court in permitting the State of Texas to withdraw its objections to the Commissioners’ award, and entering judgment on said award.

The Supreme Court of Texas has held that we have no jurisdiction to entertain an appeal from a judgment entered by the County Judge under the authority given him by Section 7, Art. 3266, Vernon’s Ann. Tex.Civ.St., since it is not a judgment entered in a civil case. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935.

While the motion filed by the State, on which the court purported to act, did not specifically request that it be permitted to take a non-suit, under Rule 164, T.R.C.P., or to discontinue its suit, under Rule 96, T.R.C.P., it did seek to have the pleading by which it invoked the jurisdiction of the court stricken from the record. The. State of Texas contends, and the trial court impliedly held, that on striking the objections filed by the State of Texas, the record would show only the objections filed by con-demnee, which were filed after the statutory period had ended and conferred no jurisdiction on the County Court under Sec. 6, Art. 3266, V.A.T.S., and, therefore, no cause pended in the court and the county judge had the ministerial duty of entering judgment on the award under Section 7 of that Article.

Section 6 of Art. 3266, supra, provides that if either party is dissatisfied with the award of the Commissioners, that party may file his objections thereto with the County Judge in writing, “and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.” Obviously when the State of Texas filed its objections the procedure, previously administrative, became a cause pending in the court. Longino v. State, Tyler, Tex.Civ.App., 385 S.W.2d 901 and cases there cited. While the judgment entered in the County Court did not expressly dispose of this cause, it impliedly dismissed it and, therefore, constituted a final appealable judgment.

Logically, since objections to the award were filed by the State of Texas within the statutory period, the County Judge no longer was authorized by Sec. 7, Art. 3266, supra, to enter a judgment on the Commissioners’ award. In Denton County v. Brammer, 361 S.W.2d 198, however, the Supreme Court held that objections to an award, properly filed by the condemnee, were abandoned as a matter of law, reversed a judgment for increased damages, and rendered a judgment on the award of the Special Commissioners. The Supreme Court recognized that the filing of the objections to the award “converted the special condemnation proceedings into a suit and invested the county court with jurisdiction of the subject matter of the case.” It also recognized that the filing of the objections vacated the award of the Special Commissioners. The court further held that the condemnor had the burden of proving all the essentials necessary to show a right to condemnation, and of going forward to trial after proper service of citation. It is clear, therefore, that even though an award is vacated by the action of the condemnee in filing his objections, it may be reinstated on the abandonment of his appeal, at least if it was never perfected by having a citation issued and served and condemnor filed no pleading having the effect of waiving citation.

It has long been accepted in this State that while a condemning authority has the right to dismiss its action to condemn land under certain conditions, this right ordinarily cannot be exercised to the prejudice of condemnee. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953; Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842. In the case last cited the court said:

“A condemnor has the right to correct its errors, to dismiss its proceeding for condemnation, to abandon the purpose of taking the land, but it may not exercise any of these rights to the prejudice of the landowner.
“ * * * the District proceeded so far with the first condemnation suit that it would manifestly be unjust and would certainly be prejudicial to respondents to permit it, against their consent, to dismiss or abandon the suit.”

It is the rule in Texas that where either party files a timely appeal to the district court from an award of the Industrial Accident Board and the other party answers, the court will not be deprived of jurisdiction to hear the case by action of the appealing party in taking a non-suit. Republic Underwriters v. Howard, Eastland, Tex.Civ.App., 69 S.W.2d 584, writ dism.; Ocean Accident & Guaranty Corporation v. McCall, Tex.Civ.App., 25 S.W.2d 653, aff’d on this point, Tex.Com.App., 45 S.W.2d 178; Federal Underwriters Exchange v. Read, 138 Tex. 271, 158 S.W.2d 767; Texas Reciprocal Ins. Ass’n v. Leger, 128 Tex. 319, 97 S.W.2d 677.

In a case arising under Sec. 8, Art. 6049c, V.A.T.S., authorizing one dissatified with a proration order of the Railroad Commission to bring suit to test the validity of the order, the Supreme Court of Texas held that, conceding the Commission could not originally have brought the suit, since it was a special statutory action in essence for declaratory judgment, the defendant would be entitled to an adjudication in that suit of the controversy presented by the plaintiff. The plaintiff had presented a motion for a non-suit and refused to participate further in the trial. Standard Oil Co. v. Railroad Commission, Tex.Civ.App., 215 S.W.2d 633.

In a divorce case the trial court has jurisdiction to render a judgment granting a divorce to a non-resident on his cross-action despite the fact that the resident plaintiff took a non-suit. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198, opinion adopted.

The Court of Civil Appeals at Tyler, in Longino v. State, 385 S.W.2d 901, opinion by Associate Justice Moore, held:

“We therefore hold that where either party in a condemnation proceeding properly perfects an appeal to the County Court and the opposite party thereafter properly joins issue, neither party has a right, without the consent of the other, to withdraw the appeal and to proceed to judgment based on the award of the Commissioners. The Statute contemplates a right of a trial by the court and jury on the issue of damages as well as the right to condemn, provided such issues are properly raised, and this right cannot be destroyed by the action of the opposite party. City of Houston v. Susholtz, supra [Tex.Civ.App., 22 S.W.2d 537, affirmed Tex.Com.App., 37 S.W.2d 728]; McElyea v. Parker, 125 Tex. 225, 81 S.W.2d 649; Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 217, 171 S.W.2d 842, 847; Rule 96, Texas Rules of Civil Procedure; Schuylkill River East Side R. Co. v. Harris, 124 Pa. 215, 16 A. 838; 30 C.J.S. Eminent Domain § 359, p. 44. We think, therefore, that the trial court was in error in allowing the appeal to be withdrawn and in confirming and entering judgment on the award of the Commissioners.”

The trial court acquired jurisdiction of the subject matter of this suit to condemn land by the filing of objections to the award. Citation was properly issued and served. Condemnee answered, seeking affirmative relief. The State of Texas could not defeat the jurisdiction of the court by withdrawing its objections to the award. The trial court erred in dismissing the cause and the Judge of the County Court was not authorized to enter judgment on the Special Commissioners’ award.

Reversed and remanded.