author: SHARPE, Justice.

text:
    HARBENITO REALTY CORPORATION, Appellant, v. Homer AVILA et al., Appellee.
    No. 185.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1966.
    Rehearing Denied Sept. 29, 1966.
    Jackson Littleton, of Kelley, Looney, McLean & Littleton, Edinburg, for appellant.
    W. E. Allen, Asst. Atty. Gen., Austin, for appellee.
   OPINION

SHARPE, Justice.

This appeal is from an order of the district court of Hidalgo County, Texas, sustaining the pleas of privilege filed by ap-pellees and transferring the case to Travis County, Texas. Trial was to the court without a jury. Findings of facts and conclusions of law were not requested nor filed.

Harbenito Realty Corporation, appellant, brought this action against Robert S. Calvert who is a resident of Travis County, and Comptroller of Accounts of the State of Texas, and Homer Avila, who is a resident of Hidalgo County, and the District Compliance Supervisor for the Comptroller over the Counties of Hidalgo, Cameron, Willacy and Starr, for declaratory judgment that the proceeds of certain lease transactions between appellant and two other affiliated corporations are not subject to taxes imposed by the Texas Limited Sales, Excise, and Use Tax Act, (Chapter 20, Title 122A, Taxation-General, Vernon’s Ann.Tex.Civ. St., and particularly under Article 20.01 (K) (1) thereof), sometimes hereafter referred to as “The Act.”

Each defendant filed a separate plea of privilege praying that the case be transferred to Travis County, Texas. These pleas were duly controverted by appellant, placing reliance upon Subdivision 4 of Article 1995, V.A.C.S. For the purpose of determining venue the parties entered into written stipulations covering the material facts and some of the issues. At the hearing of the pleas the stipulation was supplemented by the testimony of several witnesses and certain exhibits. The material facts are undisputed.

By two points of error, appellant contends that the trial court erred in transferring venue from Hidalgo to Travis County (1) as to Avila, because the suit was filed in the county of his residence, and (2) as to Calvert, that although a non-resident of Hi-dalgo County, he was properly joined in the declaratory judgment action against both appellees. By counterpoints one and two, appellees contend that the trial court properly transferred venue as to each of them, and by counterpoint three, that appellant’s suit is one against the State of Texas which cannot be maintained against it without Legislative permission to sue.

We have concluded that the judgment of the trial court should be affirmed.

Paragraphs (4) -and (6) of the stipulations provide as follows:

“(4) It is agreed and stipulated that the question of the applicability of the sales, excise and use tax act (as cited and described in Paragraph IV of the Plaintiff’s Original Petition) to the transactions evidenced by the leases under the facts alleged constitutes a justiciable controversy in the said cause; but the parties do not here stipulate in any way as to the parties to the action being proper or necessary or as to the action being properly brought by the Plaintiff against either or both of the Defendants.
“(6) It is further agreed and stipulated for the purpose of hearing on venue, and for that purpose only, that facts and circumstances giving rise to the present suit are briefly as follows: On August 18, 1964, Messrs. Hollis McWhorter and Gregory Garcia, auditors of the office of the Comptroller of Public Accounts from the San Antonio Regional office of the Comptroller of Public Accounts, went to the office of the Plaintiff in Harlingen, Texas requesting records for the purpose of making an audit regarding the determination of use tax on the purchase of equipment and parts from outside of the State of Texas and was told by a Mr. Harbin of the Plaintiff’s office that the records would be made available; but the time was inconvenient; thereafter and on August 31, 1964 the said auditors returned and the records were made available ; during the inspection of the records by the said auditors further records were requested in connection with the rental of equipment from the Harbenito Realty Corporation to the other corporations mentioned in the Plaintiff’s Petition and the auditors were advised that they would have to see the attorney for the Plaintiff and its affiliated corporations; thereupon the said auditors contacted Mr. Homer Avila, of Donna, Texas, District Supervisor of the Comptroller of Public Accounts for the Counties of Hidalgo, Wil-lacy, Cameron and Starr, and the said Mr. Avila contacted J. C. Looney of Kelley, Looney, McLean & Littleton of Edinburg, Texas, the attorneys for the Plaintiff and its affiliated corporations; thereafter the said auditors, McWhorter and Garcia and the said District Supervisor, Avila, went to the office of J. C. Looney and the auditors reported the circumstances and discussed the matter with him; the attorneys took the position that they wanted time to check into the matter and look into the law and the said attorneys thereafter advised the office of the Comptroller of Public Accounts at Austin, Texas that the records would not be made available, and in the opinion of the said attorneys the companies were not liable for a sales or use tax and that the company did not desire to make its confidential records available for the purposes requested. During the period of between about August 31, 1964 and November of 1964 the only contacts of the District Supervisor, Homer Avila with the said attorneys in connection with the requests theretofore made by the auditors were inquiries made by Hiester of the said firm of attorneys in connection with certain provisions and rules of the limited sales, excise and use tax act. The facts recited in this stipulation cover all of the contacts that the said Supervisor, Homer Avila has had with the matters involved in this suit so far.”

In order to maintain venue in Hidalgo County under subdivision 4 of Article 1995, V.A.C.S., appellant was required to plead and prove that it had a joint cause of action against the two defendants, or a cause of action against the resident defendant so intimately connected with the cause of action against the nonresident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits; and it was essential that appellant plead and prove that it had in fact a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).

The relief sought by appellant in this suit is a declaration that the proceeds of certain lease transactions are not subject to the Texas Sales or Use Tax under Article 20.01(K)(1) of the Texas Limited Sales, Excise and Use Tax Act (Chapter 20, Title 122A, Taxation-General, V.A.C.S.) which Act is administered by the State Comptroller under specific provisions. See Articles 20.15, 20.11, Subdivisions (A), (B) and (D) of the Act. The issue made by the pleadings does not relate to the right of the Comptroller to audit or examine the appellant’s records which are now before the court; but, rather is, whether appellant is liable for taxes under the Act based upon the transactions in question.

The evidence on the hearing of the pleas of privilege below developed the background facts which gave rise to the instant controversy, but failed to establish the essential facts necessary to sustain venue in Hidalgo County, Texas.

The record shows that Avila cannot determine appellant’s tax liability. He is a mere employee without that authority. He did not know of the proposed audit or examination of appellant’s records until advised of it by other employees of the Comptroller over whom he did not have control or supervision. Avila testified that his contacts with counsel for appellant were as an accommodation to members of the Comptroller’s field operations, and the trial court could have so found. Although counsel for appellant directed a letter to Avila concerning its claim for non-liability under the Act, Avila testified that he did not have authority to answer it, and referred it to Mr. Donald M. Bishop, who is staff attorney, Chief House Counsel and Director of the Hearings Division for the Comptroller at Austin, Texas. Mr. Bishop is also in control of the instant suit for the Comptroller. There is presently no question of tax enforcement, compliance or collection on the part of Avila in this case.

It is further shown that the Comptroller has not made a determination concerning the tax liability of appellant under the Act. In his brief, the Comptroller takes the position that until the audit is completed he will not make claim for any tax, and, at that time it may appear to the Comptroller’s satisfaction that no tax is due.

Since the parties have stipulated that there is a justiciable controversy concerning the applicability of the Act to the transactions evidenced by the leases under the facts alleged, it appears that because of this suit the determination of appellant’s tax liability is now vested in the courts. Of course, the Comptroller may be expected to make his position known in this declaratory judgment suit, to the effect that there is or is not tax liability on some or all of the items in question. But the issues properly presented in the case will be for declaration by the court, which may agree or disagree with the Comptroller’s position.

It thus appears that the real justiciable controversy established in this case is between appellant and the Comptroller, not Avila. The fact that Avila made a request or demand that other employees of the Comptroller be permitted to examine appellant’s records is not sufficient to establish a justiciable controversy between appellant and Avila for the declaratory judgment now sought by appellant for the determination of its tax liability. Avila is neither a necessary nor proper party to the suit. Since a cause of action was not established against the resident defendant, appellant cannot maintain venue of the case in Hidalgo County under Subdivision 4 of Art. 1995, V.A.C.S., as against the asserted pleas of privilege.

Appellant’s position in the trial court and here is that the suit is brought against the Comptroller and Avila only as individuals, and not in their official capacities, on the theory that they are acting or threatening to act without legal authority, placing principal reliance upon the case of Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709,172 A.L.R. 837 (1945), affirming 185 S.W.2d 133 (Tex.Civ.App., 1945). Even if we accept the premise that the suit is only against appel-lees individually, still it appears that there is no real justiciable controversy as between appellant and Avila. His conduct was limited to an attempt to secure examination of appellant’s records. He has not and canr not determine appellant’s tax liability. In the present posture of this case, where appellant’s tax liability (which is now the real issue) has not been determined either by the Comptroller or the court, we cannot say for venue purposes that Avila’s conduct was without legal authority or gives rise to a cause of action against him individually in favor of appellant.

As to the Comptroller, when the case is tried on the merits, if it appears that he has acted without legal authority in determining appellant’s tax liability on the transaction in question so that it may be said that he is acting as an individual, the court may so declare. Cobb v. Harrington, supra. However, the venue of the case against Calvert as an individual would still be in Travis County, the County of his residence, in the absence of a justiciable controversy with Avila, as before discussed.

With reference to appellees’ counterpoint three, asserting that this is a suit against the State of Texas without its consent, we are of the opinion that this is a question we are not required to determine on this appeal concerning venue. Appellees, subject to their pleas of privilege, also filed pleas to the jurisdiction in the trial court upon such basis, but the same were not acted upon. In any event we cannot decide the questions raised by the pleas to the jurisdiction upon the present record. Such determination will be for the trial court upon further proceedings herein.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Arturo C. GONZALEZ et al., Appellants, v. William G. BURNS, Appellee.
    No. 14492.
    Court of Civil Appeals of Texas. San Antonio.
    July 27, 1966.
    Rehearing Denied Sept. 21, 1966.

      Arturo C. Gonzalez, Del Rio, for appellants.
    Bobbitt, Brite, Bobbitt & Allen, San Antonio, for appellee.
   BARROW, Justice.

This is a venue action involving Subdivisions 3 and 29a of Article 1995, Vernon’s Ann.Civ.St. William G. Burns, a resident of Bexar County, brought this suit in Bexar County against Arturo C. Gonzalez and Ramon D. Bosquez, residents of Val Verde County, individually and as partners, d/b/a Inter-American Advertising Agency; Com-pañía Radiodifusora de Coahuila, S.A., a legal entity established under the laws of Mexico; Lester L. Roloff and Roloff Evangelistic Enterprises, a corporation, both domiciled in Nueces County; and Lawrence Brandon, a resident of Caddo Parish, Louisiana, individually and as a partner in Brandon-Smith Advertising. Brandon was never served and entered no appearance. All other defendants filed pleas of privilege which were overruled after a non-jury trial. Gonzalez, Bosquez and Compañía Radiodifusora de Coahuila, S.A. (hereinafter referred to as Radiodifusora) have perfected this appeal.

Appellants complain of the sufficiency of the controverting affidavits to their pleas of privilege. Appellee replead verbatim those allegations of his petition covering the essential venue facts, setting them forth in the body of the controverting affidavits and affirmatively alleged their truth, both in the body and the verification of each plea. Appellee’s controverting pleas were sufficient. Leonard v. Maxwell, 365 S.W.2d 340 (Tex.1963); McCarty v. Hinman, Tex.Civ.App., 342 S.W.2d 29, no wr. hist.

Appellants urge appellee’s cause of action is based upon the same subject matter as previously asserted by appellee in a cross-action filed against these appellants in Cause No. F-148,181, and that venue against them is in Val Verde County under the doctrine of res judicata. By other points appellants urge the failure of appellee to plead and prove a cause of action against an out-of-state defendant to which each of appellants is a necessary party.

To pass upon these points it is necessary to examine the very complex procedural and factual background of this suit. Radio-difusora operates radio station XERF located in Villa Acuna, Mexico. Many of its programs are of a religious nature and are transmitted in English to the United States. On June 20, 1957, Bums and Rol-off, Inc., made a contract with Radiodi-fusora and Inter-American Advertising Agency whereby, for the sum of $100,000 paid by Roloff, Inc., through Burns, two fifteen-minute spots (6:45-7:00 a. m., and 9:00-9:15 p. m. CST) were sold to Burns and Roloff, Inc., for the life of the station. On June 16, 1958, Roloff, Inc., assigned to Burns its rights under this contract, effective June 16, 1962. The station was shut down at various times during the period in controversy, for reasons which are not fully disclosed by this record. In September, 1960, a shut-down occurred, and it is alleged that no other programs were broadcast under the 1957 contract, particularly none by Burns, under his assignment. On July 28, 1962, Burns made a contract with Christian Jew Hour, Inc., whereby these program periods were sold to it for a period of four years at $20,000 a year. The sum of $20,000 was paid Burns by Christian Jew Hour, Inc., but the station refused to broadcast any of its programs.

Christian Jew Hour, Inc., filed Cause No. F-148,181 in Bexar County against Burns, Radiodifusora, Bosquez and Gonzalez, to recover the $20,000 paid by it, and other incidental expenses. Burns filed a cross-action against the other defendants and asserted that each of them had breached the June 20, 1957, contract, and sought to recover his damages for this breach. Pleas of privilege to this cross-action were filed by Radiodifusora, Bosquez and Gonzalez, to remove same to Val Verde County. The record reflects that a hearing was had on these pleas on February 7, 1963, and the rough minutes of the court show: “hearing was had, 6 witnesses heard, order sustaining plea of privilege to come.” This order was not actually signed by the trial judge until September 2, 1964. In the meantime a motion for dismissal without prejudice was presented by Burns on this cross-action and signed by the court on March 1, 1963.

On July 29, 1964, the present suit was filed by Burns wherein the foregoing contracts and factual background were alleged by him. In addition, he asserts that on May 24, 1963, a contract was entered into by him with Radiodifusora and Inter-American Advertising Agency, whereby in consideration of his agreement to divide the commissions realized from sale of these program times with the Agency, the contract of May 20, 1957, and the subsequent assignment of Roloff, Inc.’s rights to Burns were expressly recognized, and the parties agreed to carry out the contract terms. It is not claimed that any of the contracts are performable in Bexar County. Brandon and his partnership were sued because they had claimed to be the exclusive sales representative of all XERF program times. Roloff and Roloff, Inc., were sued because Roloff was allegedly using one of the program times assigned to Burns. Appellee sought a judgment for damages for past breach of contract and for future specific performance of the 1957 and 1963 contracts, together with injunctive relief restraining all defendants from interfering with his rights to control these broadcasting periods.

It is well settled that where a plaintiff takes a non-suit while defendant’s plea of privilege is pending, the venue in a subsequent action between the same parties on the same claim is thereby fixed in the county of defendant’s domicile, when the question of venue is raised. McDonald, Texas Civil Practice, § 4.62; Clark, Venue in Civil Actions, Chap. 36, § la; Southwestern Inv. Co. v. Gibson, Tex.Civ.App., 372 S.W.2d 754, no wr. hist.; Gathright v. Riggs, Tex. Civ.App., 344 S.W.2d 757, no wr. hist. Ap-pellee urges that this rule has no application in this case because this suit is based in part upon transactions occurring since the former action, in that it is for determination of all rights held by him under the contract dated May 23, 1964, as a novation of the contract of May 20, 1957.

Insofar as appellant Gonzalez is concerned, there is no proof to connect him to the contract dated May 24, 1963. It is undisputed that this contract was actually executed on September 24, 1963, but dated May 24, 1963. It was executed by Burns, individually, and Bosquez, purportedly on behalf of Inter-American Advertising Agency, and Radiodifusora. Burns admitted, however, that prior to September 1, 1963, he was notified of the dissolution of the agency partnership and Bosquez’s lack of authority to act for Gonzalez. In his plea of privilege, Gonzalez denied, under oath, the existence of his partnership with Bosquez at the time of the execution of the 1963 contract.

In Davis v. Hill, 371 S.W.2d 917, writ dismissed, this Court held that where the issue of existence of partnership is raised by denial under oath in the plea of privilege, the plaintiff must then connect the one so denying partnership with the partnership obligation. Burns failed to meet this burden of proof, insofar as appellant Gonzalez is concerned, and therefore the trial court should have sustained Gonzalez’s plea based upon res judicata, after the foregoing facts were fully established in a hearing on the plea in abatement and plea to the jurisdiction.

These same pleas were asserted bn behalf of Radiodifusora. However, there is sufficient evidence in a letter from Gonzalez to Burns, dated June 19, 1964, to support the trial court’s implied finding that Bosquez was not removed as general manager and administrator of Radiodifusora until June 13, 1964.

Under Subds. 3 and 29a, supra, it was incumbent upon appellee to plead and prove a cause of action against a defendant domiciled out of State, and that the joinder of the other defendants was necessary to enable him to obtain full and effective relief in the suit which he is entitled to maintain against the out-of-state defendant. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Texas Plains Lodge No. 105, etc. v. Cleghorn, Tex.Civ. App., 207 S.W.2d 109; Clark, Venue in Civil Actions, p. 30.

There are two out-of-state parties to this suit—Radiodifusora and Brandon. Radiodifusora was alleged to be a “legal entity established and existing under the laws of the Republic of Mexico * * It is seen, under the uncontradicted evidence, not only from the testimony of appellant Gonzalez, but also from numerous exhibits offered by appellee, that Radiodifusora is a Mexican corporation which transacts business in Texas only in Val Verde County, through Gonzalez. Therefore, venue against it lies in Val Verde County under Subds. 23 and 27, Art. 1995, supra, and not in Bexar County under Subd. 3, supra. McMullen v. Burton Auto Spring Corp., Tex.Civ.App., 138 S.W.2d 823, no wr. hist.; Atcheson, T. & S. F. Ry. Co. v. Stevens, 109 Tex. 262, 206 S.W. 921.

Thus, if venue is to be maintained in Bexar County in this case under Subds. 3 and 29a, supra, it must be based on the out-of-state residency of the defendant Brandon. There is no record of any attempt to secure jurisdiction over him, and he has entered no appearance. However, in McCarty v. Hinman, supra, it was held that lack of jurisdiction over the out-of-state defendant was immaterial to the application of Subd. 3 against a non-resident defendant who was a necessary party.

The question is narrowed to whether or not appellee alleged and proved a cause of action against Brandon to which the appellants are necessary parties. Brandon was not a party to either the 1957 or 1963 contract which Burns sought to^ have specifically performed. However, it is alleged that Burns received a letter from Brandon, dated January 10, 1964, in which Brandon asserted that he had been appointed sole and exclusive representative for station XERF and called upon Burns to account to Brandon for programing, contracts and remittances. Appellee says that in order to accord him his right to specific performance of said contract of May 24, 1963, ratifying his exclusive rights to the two specified broadcasting periods, it is necessary to divest Brandon and Brandon-Smith Advertising of any claim to control of said periods.

It was stipulated by Gonzalez that Brandon-Smith Advertising held the exclusive sales contract of station XERF during the period from January 16, 1964, to March 31, 1965, by appointment from Fernando Ramos Garza, who was placed in control of the station by the Mexican Government because of a labor dispute. However, there is no evidence that Brandon-Smith Advertising asserted a claim adverse to the contracts which are in controversy between Burns and appellants. In fact the letter from Brandon, on which the claim of Burns against Brandon is based, states in effect that the terms and conditions of the old contracts will be unchanged. It is our opinion that this evidence does not state a cause of action against Brandon. Cf. Clinging-smith v. Bond, 150 Tex. 419, 241 S.W.2d 616 (1951), wherein the non-resident defendant had in his possession the jewels sought to be recovered by plaintiff from the out-of-state defendant. In any event, it cannot be said that any one of appellants is a necessary party to this cause of action against Brandon, as required under Subd. 29a, supra. Ladner v. Reliance Corp., supra. Therefore, venue cannot be maintained against the appellants under Subds. 3 and 29a, supra, because of the out-of-state residency of Brandon.

The order of the trial court is reversed and here rendered whereby the cause of action as to appellants Arturo C. Gonzalez, Ramon D. Bosquez and Compañía Radio-difusora de Coahuila, S.A., is severed and ordered transferred to Val Verde County, pursuant to the provisions of Rule 89, Texas Rules of Civil Procedure.


author: PARKER, Justice.

text:
    Carolyn Marie GAUTREAUX et al., Appellants, v. CITY OF PORT ARTHUR, Appellee.
    No. 6824.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.

      Orgain, Bell & Tucker, Beaumont, Fuller, Fuller & McPherson, Port Arthur, for appellant.
    George B. Wikoff, City Atty., Port Arthur, for appellee.
   PARKER, Justice.

Summary judgment was rendered and entered in Cause No. A-83518 in the 58th District’ Court of Jefferson County by which

(1) The motion for summary judgment of the City of Port Arthur against Turner & Collie was granted and the City was given judgment against Turner & Collie of $9,000.
(2) The motion for summary judgment of Turner & Collie Consulting Engineers, Inc. against the City was overruled.
(3) The motion for summary judgment of plaintiff, City, against the Gautreauxs, being in the alternative, was held to be moot and it was decreed that the City recover nothing against the Gautreauxs.
(4) The motion for summary judgment of the Gautreauxs against the City was granted.
(5) A third party complaint of the Gau-treauxs against American General Insurance Company in the event the City recovered $9,000 from the Gautreauxs was dismissed without prejudice.

Turner & Collie are the only parties appealing from the judgment of the trial court. The City did not appeal. From the motions for summary judgment and supporting affidavits it appears that the facts are undisputed:

Elroy Joseph Gautreaux, an employee of the City of Port Arthur, sustained fatal injuries in the course of his employment on June 14, 1962. His surviving wife and child, Carolyn Marie Gautreaux and Todd Anthony Gautreaux, instituted suit No. A-79825 in District Court of Jefferson County, Texas, against the City of Port Arthur and Turner & Collie, seeking damages by reason of his death caused by the gross negligence of each of said defendants. The City appeared and answered in such case. On the day of trial, October 7, 1963, the Gautreauxs filed a motion stating they desired to take a voluntary non-suit as to the City of Port Arthur. Upon this motion the court entered an order on such date dismissing their suit against the City. The suit of the Gautreauxs against Turner & Collie then proceeded to trial. On October 31, 1963, based upon the jury’s verdict, the court entered judgment against Turner & Collie and in favor of Todd Anthony Gau-treaux for the sum of $25,800 and in favor of Carolyn Marie Gautreaux against Turner & Collie in the sum of $75,000. Turner & Collie filed motion for new trial. On January 7, 1964 the court reformed its judgment after hearing the motion for new trial wherein the court made findings of fact and entered judgment as follows:

“(1) That the plaintiffs, Carolyn Marie Gautreaux and Todd Anthony Gautreaux, had each received or become entitled to workmen’s compensation death benefits under the Workmen’s Compensation Law of the State of Texas in the sum of $12.50 each per week for a period of 360 weeks, to-wit, the sum of Four thousand Five Hundred Dollars ($4,500) each, and it further appearing to the Court and the Court having found that said plaintiffs were not the owners of the cause of action asserted against defendant to the extent of said payments, and that the judgment heretofore entered in favor of each plaintiff for the full amount of the jury verdict, to-wit, Seventy-five Thousand Dollars ($75,000) for Carolyn Marie Gautreaux and Twenty-five Thousand Eight Hundred Dollars ($25,800) for Todd Anthony Gautreaux, had included sums which they were not entitled to receive under the law and the evidence, to-wit, Four Thousand Five Hundred Dollars ($4,500) each, and the Court having accordingly determined that said judgment should be reformed and the plaintiffs should each be required to remit the sum of Four Thousand Five Hundred Dollars ($4,500).
(2) It further appearing to the Court and the Court having found and being of the opinion that after ordering the foregoing reformation and remittitur that the judgments recovered by said plaintiffs, and each of them were still excessive to the extent of Twenty Thousand Six Hundred Dollars ($20,600) as to Carolyn Marie Gautreaux and to the extent of Eleven Thousand Three Hundred Dollars ($11,300) as to Todd Anthony Gau-treaux, and the Court having further determined that a new trial should be granted unless said plaintiffs should agree to such reformation and remittiturs, whereby after allowing the same the plaintiff, Carolyn Marie Gautreaux, would recover the sum of Forty-nine Thousand Nine Hundred Dollars ($49,-900), out of which expenses and attorneys’ fees were to be paid, and Todd Anthony Gautreaux Ten Thousand Dollars ($10,000) free and clear of all claims and expenses and attorneys’ fees; and it appearing to the Court and the Court having found that said plaintiff, Carolyn Marie Gautreaux, as well as the minor plaintiff, through next friend, have appeared in open court and consented and agreed to such reformation and remit-titur, which was duly noted on the docket and entered in the minutes, and that said plaintiffs under the directions and authority of the Court had released unto the defendant, Turner & Collie Consulting Engineers, Inc., the sums so ordered remitted, to-wit, Carolyn Marie Gautreaux, Twenty Thousand Six Hundred Dollars ($20,600) in addition to the sum set forth in Paragraph (1) hereof, and Todd Anthony Gautreaux, suing through next friend, Eleven Thousand Three Hundred Dollars ($11,300) in addition to the sum set forth in Paragraph (1) hereof;
It is therefore further ORDERED, ADJUDGED and DECREED by the Court that should execution hereafter issue for said judgment, that the same shall be for the balance only, to-wit, Carolyn Marie Gautreaux, Forty-nine Thousand Nine Hundred Dollars ($49,900) and Todd Anthony Gautreaux, a minor, suing through next friend, Ten Thousand Dollars ($10,000).
It is further ORDERED, ADJUDGED and DECREED by the Court that the amount herein decreed to said minor, Todd Anthony Gautreaux, suing through next friend, be paid by the defendant into the registry of the court for the use and benefit of said minor, and that the clerk of this court do pay said sum of Ten Thousand Dollars ($10,000) to the duly appointed, qualified and acting guardian of said minor upon presentation of letters evidencing the appointment and qualification of said guardian.
It further appearing to the Court and the Court having found that prior to the signing and entry of this judgment that the defendant, Turner & Collie Consulting Engineers, Inc., had fully and finally paid the amount of said judgment after the allowance of said reformation and remittiturs, to-wit, the sum of Forty-nine Thousand Nine Hundred Dollars ($49,-900) to Carolyn Marie Gautreaux and Ten Thousand Dollars ($10,000) into the the registry of the court for the use and and benefit of the minor, Todd Anthony Gautreaux, and that this judgment had been in all things except costs of court finally satisfied and extinguished;
It is therefore further ORDERED, ADJUDGED and DECREED by the Court that no execution shall issue herein for this judgment or any part thereof, but that except as to costs of court the same shall stand in all things fully and finally paid, satisfied, extinguished and released.
It is further ORDERED that defendant pay costs in accordance with the agreement of the parties, for which let execution issue as may be necessary and proper.”

The recovery by the Gautreauxs was limited to the damages in excess of the compensation paid to them by the City of Port Arthur.

During the time it was a party to Cause A-79825, the City as compensation insurer did not file any cross-action or counterclaim, nor did it at any time after the dismissal file any intervention. It made no attempt to assert its subrogation claim in any manner authorized by Art. 8307, § 6a, Vernon’s Ann.Tex.St., and Rule 97(a), Texas Rules of Civil Procedure, until October 2, 1964, when this present second suit was instituted. The right of the workmen’s compensation insurer (in this case, the City of Port Arthur) to be subrogated to the rights of the injured employee is statutory. Art. 8307, § 6a, V.A.T.S.

The City has not appealed from the judgment in the instant summary judgment proceeding including that part of the judgment in favor of the Gautreauxs against the City of Port Arthur. Clearly, the Gautreauxs have not been paid twice for the $9,000 the City obligated itself to pay them under the Workmen’s Compensation Act. In this court upon the record in Cause No. A-83518 the Gautreauxs are not liable to the City for any part of the recovery by the Gautreauxs from Turner & Collie.

We now consider whether or not that part of the judgment of the trial court in this second suit is correct whereby the City recovered against Turner & Collie $9,000 plus interest and costs. As said in Sunray Oil Corp. v. Allbritton, 187 F.2d 475, U. S. Court of Appeals, Fifth Circuit, 1951: “It is now settled by the Texas law that the employee’s right to recover against third persons is limited to damages in excess of the compensation paid to him.” Citing numerous authoritative Texas cases. Houston Gas & Fuel Co. v. Perry, 127 Tex. 102, 91 S.W.2d 1052 (Com. of App. 1936).

There is nothing in this record to indicate that the judgment in Cause A-79825 was an agreed compromise between the Gautreauxs and Turner & Collie. On the contrary, it was a judgment upon the merits. Turner & Collie assert that the City should be denied a recovery against them as stated in their brief as follows:

“It is the position of your Appellant, Turner & Collie, that but one cause of action arose by reason of the death of Elroy Joseph Gautreaux. Since he was an employee of the City and subject to the Compensation Act, the City under the provisions of Article 8307 [§ 6a] (a), V.A.C.S., was subrogated to the rights of the survivors to the extent of the compensation paid. Inasmuch as but one cause of action arose, although the Gau-treauxs and the City each had an interest in it, it is Appellant’s position that when the suit of the Gautreauxs against Turner & Collie was tried to a conclusion, resulting in a final judgment, which was paid, that this one cause of action was finally adjudicated and that the claim of the City is barred for each of the following reasons:
“(a) The City, being a party to the suit, was obligated under Rule 97(a), T.R. C.P., to assert its rights by way of counterclaim and having failed to do so, the claim is barred.
“(b) The judgment in the prior Suit A-7982S finally adjudicated the cause of action arising out of the death of Elroy Joseph Gautreaux and such judgment is res judicata of the entire cause of action.
“(c) The single cause of action arising out of the death of Elroy Joseph Gau-treaux cannot be split and the failure of the City to cross-action or to intervene has resulted in a waiver of its claim and it is estopped to assert the claim in a separate suit after the first suit has gone to final judgment and payment.”

We sustain each and all of Turner & Collie’s contentions. The judgment entered for the Gautreauxs against Turner & Collie was not for the joint use and benefit of the successful Gautreauxs and the City as a self-insurer. Art. 8307, § 6a and T.R.C.P. Rule 97(a) have been con-' strued by the Supreme Court of this State in many ways, but never under the facts before this court. Under Art. 8307, § 6a the City could have filed suit in the name of the legal beneficiaries of the deceased party or in its own name for the joint use and benefit of itself and said beneficiaries against Turner & Collie. In case the City’s recovery was greater than that paid or assumed by the City to be paid the legal beneficiaries of the deceased Gautreaux, the City should reimburse itself with the excess paid to the beneficiaries of the deceased Gautreaux. This was not done. The Gautreauxs enforced their claim against Turner & Collie without any aid, approval, authority or assistance from the City. The final judgment in Suit No. A-79825 is not under attack in the instant suit.

Art. 8307, § 6a affords a substantive remedy of subrogation to the insurance carrier subject to the Texas Rules of Civil Procedure, in particular T.R.C.P. Rule 97 (a). By not complying with the mandatory provision of such Rule 97(a), the City of Port Arthur conclusively lost its substantive right.

Each and all of the points of error of appellant, Turner & Collie, are sustained.

City of Port Arthur’s point of error and counterpoints are overruled.

The judgment of the trial court is affirmed except as to the recovery in favor of the City of Port Arthur against Turner & Collie Consulting Engineers, Inc. As to that portion of the judgment in favor of the City of Port Arthur for $9,000 against Turner & Collie Consulting Engineers, Inc., same is reversed and judgment here rendered that City of Port Arthur take nothing as against Turner & Collie Consulting Engineers, Inc.


author: COLEMAN, Justice.

text:
    Lester Dean POTTS et ux., Appellants, v. JOSKE’S OF HOUSTON et al., Appellees.
    No. 14755.
    Court of Civil Appeals of Texas. Houston.
    Sept. 8, 1966.

      Lott & James, Jim L. DeFoyd, Houston, for appellants.
    Gay Brinson, Jr., Houston, Vinson, El-kins, Weems & Searls, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is a suit for damages resulting when the automobile which appellant, Edith Potts, was driving was struck from the rear by a truck owned by appellee, Joske’s of Houston. The jury failed to find negligence on the part of the driver of the truck; found contributory negligence on the part of Edith Potts; and found that mechanical failure caused the automobile to stop and was the sole proximate cause of the collision. Based on these findings of the jury the trial court entered a judgment in favor of the defendants, and plaintiffs appeal.

Mrs. Potts testified that she was driving to work on the Gulf Freeway in the City of Houston in the middle lane of the three inbound lanes of that highway. As she reached the top of an overpass she heard a clanking noise in her car and it stopped suddenly. The car began to slow down and when it reached the bottom of the incline she removed her foot from the accelerator and it stopped. She then looked in her rearview mirror and saw the truck. She braced herself and the collision followed. She testified that prior to the trouble she was going about 45 miles per hour.

The officer investigating the accident located the point of impact as being 150 feet from the top of the overpass. He found no skidmarks behind the Potts vehicle and 53 feet of skid marks behind the truck. He estimated the speed of the truck as approximately 45 miles per hour. He testified that the recognized safe following distance is one car length for each ten miles per hour of speed.

The driver of Joske’s truck testified that he was following the Potts’ car at a distance of about five car lengths and at a speed of 40 to 45 miles per hour; that he saw something fall under the car and then noticed it slowing down. He immediately applied his brakes, but could not stop before the collision. He testified that there was traffic in the lanes on both sides of the lane in which he was driving. He also testified that Mrs. Potts gave no hand signal and that the stop lights on her automobile were never activated.

The driver of the automobile behind the truck also testified. He could not see the Potts car because of the truck. He was driving about 40 miles per hour. When the stop lights on the truck were lighted he applied his brakes and was able to stop without colliding with the truck. He testified that he was following at about five car lengths.

The officer also testified that generally one second is required for a person to react to a situation. He testified that a person cannot stop a vehicle in SO feet and that the recommended following distances are based on reaction time rather than measured stopping distances. He testified that one and one-half times the speed gives an approximate stopping distance.

The primary negligence issues concerned speed, look-out, application of brakes, following too closely, and failure to turn. While the evidence might well have sustained findings of negligence on the part of the driver of the truck on one or more of these issues, the preponderance of the evidence was not such as to indicate that the contrary findings were clearly wrong. Appellants’ first point of error cannot be sustained. Le Master v. Fort Worth Transit Company, 1942, 138 Tex. 512, 160 S.W.2d 224.

In the motion for new trial appellants alleged jury misconduct which materially affected the verdict returned by the jury. The testimony produced at the hearing on the motion resulted in questions of fact as to whether there was jury misconduct. There was considerable testimony that liability insurance rates, and the effect on such rates of large awards, were discussed in connection with the damage issues after the liability issues were answered. The implied finding of the trial court that there was no material misconduct on the part of the jury is supported by the evidence and is accepted as final. In any event, we have reviewed the entire record and because of the probability that this discussion occurred, if it did, after the primary negligence issues were answered, we cannot say that injury probably resulted to appellants. Rule 327, Texas Rules of Civil Procedure; Barrington v. Duncan, 1943, 140 Tex. 510, 169 S.W.2d 462; Callahan v. Hester, Tex.Civ.App.1944, 181 S.W.2d 294, error ref.

Since appellants failed to secure jury findings establishing negligence on the part of appellees, the trial court was required to enter a judgment on the verdict in favor of appellees. The other points of error presented by appellants are immaterial since they relate to issues submitted to the jury which became immaterial on the failure of the jury to find primary negligence. Southern Pine Lumber Company v. Andrade, 1939, 132 Tex. 372, 124 S.W.2d 334; Price v. Leon, Tex.Civ.App.1947, 202 S.W.2d 309.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice. NYE, Justice.

text:
    William R. EDWARDS, Appellant, v. The STATE of Texas ex rel. Lee H. LYTTON, Jr., County Judge of Kenedy County, Appellee.
    No. 254.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 31, 1966.
    Rehearing Denied Sept. 22, 1966.

      Ben F. McDonald, of McDonald & Spann, Corpus Christi, for appellant.
    Hawthorne Phillips and Harold G. Kennedy, Asst. Attys. Gen., Austin, for appellee.
   OPINION

GREEN, Chief Justice.

This is a quo warranto action brought in the district court of Nueces County, Texas, by the Attorney-General of Texas and the District Attorney of Kenedy County, 105th Judicial District of Texas, on the relation of Lee H. Lytton, Jr., County Judge of Kenedy County, Texas, to have appellant removed as special judge in cause No. 348 pending in the county court of Kenedy County, Texas. The sole issue is whether appellant William R. Edwards, a non-resident of Kenedy County at all times concerned, is disqualified from serving as special judge in said cause No. 348 because of such non-residency in the county.

The facts concerning this issue are not in dispute. On about July 25, 1962, a will contest proceeding was filed in the county court of Kenedy County styled Raul Trevino, et al. v. Louis Edgar Turcotte, et al., No. 348 on the docket. Judge Lytton certified his disqualification in said cause to the Governor of Texas, who, on January 15, 1963, acting under the provisions of Art. 1932, Vernon’s Ann.Tex.Civ.St., named appellant William R. Edwards to be special judge in said cause No. 348. Appellant thereupon took the oath of office, filed bond, and entered into the exercise of the powers and duties as such special judge. Cause No. 348 is still pending, untried, on the docket. Appellant at the time of said appointment was, and at all times since has been, an attorney at law with his residence and office in Corpus Christi, Nueces County, Texas. He has at no time been a resident of Kenedy County, Texas.

Motions for summary judgment were filed by appellees and by appellant in the district court. On the hearing of said motions, the court sustained the motion of ap-pellees, and ordered appellant “removed from the office of Special County Judge of Kenedy County, Texas, in Cause No. 348, styled Raul Trevino, et al. v. Edgar Turcotte, et al., for the sole reason he is not a resident of Kenedy County Tex.” Appellant’s motion for summary judgment was overruled. Appellant duly excepted and gave notice of appeal to this court. Super-sedeas bond approved by the trial judge and the district clerk was filed by appellant.

Appellant presents two points of error, they being in effect (1) the error of the trial court in entering summary judgment removing him as special judge in cause No. 348 for the sole reason that he is not a resident of Kenedy County where the cause is pending, and (2) the error of the trial court in overruling his motion for summary judgment for the same reason, i. e., non-residency in Kenedy County. Appellant’s position is that neither the Constitution nor the statutes of the State of Texas require that a special judge in a probate proceeding, appointed for a single case under the provisions of Art. 1932, V.A.T.S., be a resident of the county where the cause is pending during his period of service as such special judge. The majority of this Court agrees with appellant, and both of his points of error are sustained.

The constitutional basis for the office of county judge is Art. 5, Sec. IS, Tex. Constitution, Vernon’s Ann.St., reading as follows :

“Sec. 15. There shall be established in each county in this State a County Court, which shall be a court of record; and there shall be elected in each county, by the qualified voters, a County Judge, who shall be well informed in the law of the State; shall be a conservator of the peace, and shall hold his office for four years, and until his successor shall be elected and qualified. He shall receive as compensation for his services such fees and perquisites as may be prescribed by law.”

The last sentence of Art. 5, Sec. 16 of our constitution reads:

“When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law.”

To the same effect, Art. 5, Sec. 11, after providing the remedy in case of the disqualification of a judge of any one of the appellate courts, as well as of a judge of a district court, prescribes that “This disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law.”

The manner prescribed by law, and followed in this case, is set forth in Art. 1932, V.A.T.S., which reads as follows:

“Art. 1932. (1738) (1131) Special judge in probate matter
When a county judge is disqualified to act in any probate matter, he shall forthwith certify his disqualification therein to the Governor, whereupon the Governor shall appoint some person to act as special judge in said case, who shall act from term to term until such disqualification ceases to exist. A special judge so appointed shall receive the same compensation as is now or may hereafter be provided by law for regular judges in similar cases, and the Commissioners’ Court shall, at the beginning of each fiscal year, include in the budget of the county, a sufficient sum for the payment of the special judge or judges appointed by the Governor to act for the regular county judge.”

None of the above constitutional and statutory provisions make any reference to any residential requirements as a qualification for either a county judge, or a special judge named for the trial of one case where the regular judge is disqualified. The only constitutional residence provision applying to county judges is found in Article 16, Sec. 14, Texas Constitution, as follows:

“All civil officers shall reside within the State; and all district or county officers within their districts or counties, and shall keep their offices at such places as may be required by law; and failure to comply with this condition shall vacate the office so held.”

The question thus arises whether a special judge appointed under Art. 1932 to try one case in which the regular county judge is disqualified, and who has no official duties or powers other than those pertaining to the disposition of that case, is such a county officer as to be included within the purview of Art. 16, Sec. 14, Texas Constitution. Although this particular question as to a special judge in a probate matter appears not to have been decided by our Texas courts, there is analogous authority on the residential requirements of specially elected district judges and an appellate judge which may be helpful in the decision of the law point.

Art. 5, Sec. 7, Texas Constitution provides that a district judge must have resided in the district for which he was elected for two years next preceding his election, and that he shall reside in his district during his term of office. Also, the provisions of Art. 16, Sec. 14, Texas Constitution, quoted above, would apply to regular district judges as well as to county judges.

In Honse v. Ford, Tex.Civ.App., 258 S.W. 527, the regular district judge was disqualified to act, and the practicing attorneys present in court elected as special judge Hon. L. D. Stroud, whose residence was in Bee County outside of the judicial district. Special Judge Stroud tried the case, and by motion for new trial and on appeal his qualifications were attacked. The court said:

“There is nothing in the point raised that the Hon. L. D. Stroud resided in Bee county. He had for many years been an eminent practitioner at the bar in this state. Article 1678, Revised Civil Statutes ; article 1679, Revised Civil Statutes; article 1684, Revised Civil Statutes; Cox v. Oliver, 43 Tex.Civ.App. 110, 95 S.W. [596] 598; Merrell v. State (Tex.Cr.App.) 70 S.W. 979; Webb et al. v. Reynolds (Tex.Civ.App.) 160 S.W. 152.”

If Art. 16, Sec. 14, Texas Constitution applies to special judges, Judge Stroud would have been disqualified, because he would have been a district officer not residing within the district. Honse v. Ford, supra, is not the case of an exchange of benches by regular district judges, or an assignment of a district judge to another district under the Judicial Administrative District statutes.

In Campbell v. McFadden, 9 Tex.Civ. App. 379, 31 S.W. 436, writ ref., Hon. Beauregard Bryan was appointed to sit as special judge of the Third Court of Civil Appeals, and wrote the opinion deciding the case. On motion for rehearing the point was raised of his legal disqualification since he was not a resident of the Supreme Judicial District in which the appellate court was located. Answering this point, the court said:

“The only question we deem necessary to discuss in the motion for rehearing is the one made that specially-appointed Justice BRYAN is disqualified to sit in this case, because he was not a resident of the Third supreme judicial district. We do not believe this position well taken. The constitution and the statute creating the courts of civil appeals do provide that the permanent members of the court elected should be resident citizens of the district, but are silent as to the qualifications of the persons selected and commissioned by the governor to sit as special judges, except that both the constitution and the statute creating the courts of civil appeals say: When the court of civil appeals or any member of either shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the governor of the state, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such cause or causes.’ Laws 1892, p. 30. This language is broad and general, and not restrictive, and does not limit — except in the particular named, to wit, that he shall be learned in the law — the qualifications of the person appointed. We believe, therefore, that Justice BRYAN, though he resided outside the Third supreme judicial district, was not disqualified. But, if he were, this question should have been raised in limine. Schultze v. McLeary, 73 Tex. [92], 94, 11 S.W. 924. The motion for rehearing is overruled.”

From Hagler v. State, 116 Tex.Cr.R. 552, 31 S.W.2d 653, we quote as follows:

“The law question presented in this contention is whether the acts of a special judge duly elected and qualified in the manner provided by statute are void where he is a resident of a judicial district in Texas other than the one for which he purports to act. We think the question might perhaps be disposed of by sustaining the validity of the acts of such a special judge upon the theory that neither the Constitution nor the statute requires any residence within the judicial district prior to his election and qualification to office, as is the case with a regular judge. * * * ”

The court, however, does not finally base its decision on this proposition, but holds that the special judge was a de facto if he was not a de jure judge, and that his acts were not subject to collateral attack.

In none of the three cases quoted from was a direct attack made on the residential qualifications of the special judge in a quo warranto proceeding. For such reason, and because the point in each instance was made for the first time by the losing party after judgment was rendered, we recognize that the quoted statements are not actually decisive of the legal problem before us. However, they do show the considered views of three of our appellate courts to the question discussed.

We are not here concerned with the residential requirements of a regular officer of a precinct, county, or district, holding office by virtue of election or appointment to a permanent office, and the provisions of ‘the Election code as to such requirements (Art. 1.05; Art. 1.06, V.A.T.S.) cited by ap-pellee do not apply. For the same reason, cases cited by appellant which involve regular county officers, such as State ex rel. Peden v. Valentine, Tex.Civ.App., 198 S.W. 1006, writ. ref. and Jordan, County Judge, et al. v. Crudgington, County Auditor, 149 Tex. 237, 231 S.W.2d 641, are not relevant to the particular issue here involved.

Appellant’s duties and authority under his appointment as special judge in a probate matter are limited to the problems and matters arising in the probate court in the one case, No. 348. He exercises no other authority in Kenedy County. Judge Lytton continues to be the county judge of the county, with all of the rights, duties, and authority of such office except those as to the cause in which he was disqualified. Appellant was not appointed to fill any vacancy in the office of county judge, for no vacancy existed. He was named to render special services which, but for his disqualification, would have been rendered by the regular county judge. The appointment of appellant to render such special services does not make him the holder of a county office within the contemplation of Art. 16, Sec. 14, Texas Constitution, supra. Such section applies to the regular judge and to his office, as it does to other state, district and county officers in Texas. It is our holding that a special judge in a probate matter appointed under the provisions of Art. 1932, V.A.T.S., is not a county officer within the purview of Art. 16, Sec. 14, Texas Constitution, and that such special judge need not be a resident of the county where the suit is pending during his service as such special judge.

The trial court erred in sustaining appel-lees’ motion for summary judgment, and in ordering appellant removed as special judge in probate in cause No. 348, County Court of Kenedy County, Texas, because of his non-residence in such county.

Since this is an appeal from an order granting one motion for summary judgment, and overruling another, we are authorized to determine whether the trial court erred in overruling appellant’s motion for summary judgment, and to correct such error if any we find. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396; Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492. Such motion requested that appellant be declared to be the duly appointed and qualified special judge of Kenedy County in cause No. 348, Raul Trevino, et al. v. Louis Edgar Turcotte, et al., pending in the county court of Kenedy County, Texas, and duly qualified to continue to act in such capacity.

The only attack made by appellees upon appellant’s qualification to serve as special judge of the case pending in Kenedy County was based on the matter of residency. The undisputed facts show that he is otherwise qualified, under the constitution and statutes, to serve in such capacity. The trial court erred in overruling appellant’s motion for summary judgment.

The judgment of the trial court is reversed. The order removing appellant as Special Judge in Probate of Kenedy County, Texas, in cause No. 348, styled Raul Trevino, et al. v. Edgar Turcotte, et al. is vacated. Appellant is declared to be the duly appointed special judge of Kenedy County, Texas, in said cause No. 348, and legally qualified to be and act as such special judge.

Reversed and rendered.

SHARPE, J., joins in this opinion.

DISSENTING OPINION

NYE, Justice.

I respectfully dissent.

This is a case of first impression. The specific question concerns the residence requirement of a special judge to try a case in the county probate court.

The facts are undisputed. The regular county judge was disqualified and apparently the interested parties did not agree on the appointment of a proper person to try the case. Whereupon, the Governor appointed Judge Edwards, whose qualifications are not denied, except that he is a non-resident of the county in which the case is to be tried. A quo warranto action was brought by the State of Texas to enforce the substantive law of this state. The trial court granted summary judgment in favor of the State of Texas holding that the special county judge was disqualified by reason that he was a non-resident of Kenedy County.

There are two constitutional provisions concerning the disqualification of the county Judge. Article V, Sec. 11 of the Texas Constitution provides that if a district judge is disqualified to try a particular case, the parties may by consent appoint a proper person or “ * * * upon their failing to cio so, a competent person may be appointed * * * as may be prescribed by law.” * * * * * * This disqualification of judges of inferior tribunals (county judges) shall be remedied and vacancies in their offices filled as may be prescribed by law. * * * ” The same rule applies specifically to county judges in Art. V, Sec. 16 of the Texas Constitution, wherein again the constitutional mandate is, that such person who is to try the case may be appointed "as prescribed by law.” Virtually the same language is used for the appointment of a substitute special county judge.

Article 1932, V.A.C.S., provides that when a county judge is disqualified to act in any probate matter, he shall certify his disqualification to the Governor whereupon the Governor “shall appoint some person to act as special judge in said case, * * This article makes no further reference to the qualifications of a special county judge to be appointed by the Governor other than to be “some person” who shall “act for the regular county judge”, unless you look to the law as set forth otherwise. The Constitution does require that that person be “a proper person” or “a competent person”. Art. V, Sec. 16. It is appellant’s contention that since Art. 1932, V.A.C.S. makes no reference to residency qualifications, then residency is not a requirement for the appointment of a special county judge, “expressio unius est exclusio al-terius”.

If no other constitutional provisions or statutory law pertain to the appointment of a special county judge, then such officer of the court would not be required to be a citizen of the United States, a resident of the State of Texas, or a resident of the county in which he was to serve. Art. XVI, Sec. 14, Texas Constitution provides that “All civil officers shall reside within the State; and all district or county officers within their districts or counties, * * * and failure to comply with this condition shall vacate the office so held.” Since the Constitution provides for the appointment of a special judge, and requires that this judge shall be appointed "as prescribed by law”, then normal rules of statutory construction require the reading of Art. XVI, Sec. 14 of the Constitution into every statute providing for the election or appointment of every civil officer of this state. 53 Tex.Jur.2d 170, § 119; Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641. Art. V, Sec. 15 of the Texas Constitution requires that the county judge not only he “some person” (Art. 1932) or “a proper person” or “a competent person” (Art. V, Sec. 16, Texas Constitution), but also one "“who shall be well informed in the law of the State; shall be a conservator of the peace '* * *.” (Art. V, Sec. 14, Texas Constitution).

Art. XVI, Sec. 19 of the Constitution directs the Legislature to set up the qualifications for the grand jurors and petit jurors “as prescribed by law.” The law then prescribes that they be citizens of the United States, the State of Texas and residents of the county. Certainly it would follow that a special county judge should be deemed to have at least the minimum qualifications required of a petit juror or a grand juror. See Art. 2133, V.A.C.S. and Art. 19.09, C.C. P. Our Constitution sets forth residential requirements for persons that are permitted to vote. They too must be citizens of the United States, twenty-one (21) years of age, residents of the state, and they must reside within the county where they offer themselves to vote. Art. VI, Sec. 2, Texas Constitution. Art. VI, Sec. 1 sets forth the classes of persons who are not allowed to vote. Certainly these “persons” would not qualify to be appointed to serve as a civil officer in this state.

The law now prescribes that no person shall be eligible to be appointed to any public office in this State unless he shall be eligible to hold office under the Constitution and the laws of this State and unless he is a citizen of the United States and shall have resided in this State for a period of twelve months and six months in the county. Art. 1.05, Election Code, formerly Art. 2927. The article goes on to provide that these residential requirements shall apply for the office to be filled, unless the Constitution or laws of the United States or the State of Texas prescribed different residential qualifications. See Art. XVI, Sec. 14, supra. It should be noted that Art. 1.05 as now written differs in some respects from the same article at the time of Judge Edwards’ appointment. However, it did require that no person should be eligible to any county office in this State unless he shall be eligible to hold office under the Constitution and that he must be an actual bona fide resident of the county. See Art. XVI, Sec. 14, Texas Constitution. Art. 1932, V.A.C.S. provides for the Governor to make the appointment of the special judge. However, Art. 1.06 of the Election Code states that neither the secretary of the state nor the county judge of this State nor any other authority authorized to issue certificates, shall issue any certificate of appointment to any person appointed to any office in this State who is not eligible to hold such office under the Constitution of this State or under Art. 1.05 cited here above.

In the present case the special county judge has all the power and authority of a regular judge and should be required to have all the qualifications of a regular judge. He is paid the same salary by the county commissioners and at the same rate as the regular county judge. Markwell v. Galveston County, 186 S.W.2d 273, Tex.Civ. App., err. ref.; Art. 1932, V.A.C.S. Bylaw he is required to take the oath of office and to execute a bond. Art. 1928, V.A.C.S.; Porter v. State, 48 Tex.Cr.R. 125, 86 S.W. 767 (1905). Yet Art. 1932, V.A.C.S. and Art. V, Secs. 11 and 15 of the State Constitution are silent on the matter of a bond. His term of office continues during the time the disqualified county judge remains in office or until the case is concluded or unless it is removed by a proper proceeding. He is a constitutional officer and should be required to meet all of the constitutional requirements of that office and of the laws of this state. It has been held that the county judge under the Constitution is a county officer. State ex rel. Peden v. Valentine, 198 S.W. 1006, Tex.Civ.App. (1917) error refused; Wells v. Arledge, 259 S.W. 991, Tex.Civ.App. (1924). See also Wolnitzek et al. v. Lewis et al., 162 S.W. 963, Tex.Civ.App. (1913). It is true that he is not a "county office holder”, but nevertheless he does hold a civil office vesting in him a portion of the sovereign powers of the State of Texas. If appellant’s theory that the special judge appointed by the Governor is to be only “some person”, as set forth in Art. 1932, V.A.C.S., then it would not be necessary for that person to be a resident of the State of Texas nor .even a citizen of the United States. This would be unthinkable. Yet when we look for the particular requirement of our laws that that “some person” be a citizen of the United States and a resident of the State of Texas, we also find without exception, that the law provides that he also be a resident in the county which he serves. As a civil office holder, he should be required to reside in the county where he serves, because he represents the people who reside in the unit in which he serves. Whitmarsh v. Buckley, Tex.Civ.App., 324 S.W.2d 298. He should be close to the people and available for service. I know of no law that would permit a county civil office holder or special county judge to be appointed or elected who would not be required to be a citizen of the United States, a citizen of Texas, and a resident of his county.

Unless the special county judge be considered a county officer there would be no statutory authority for his removal from office. See Art. V, Sec. 24. See also Art. I, Sec. 4; Art. Ill, Sec. 6. 7, 18, 19, 20, 23; Art. XV, Sec. 4; Art. XVI, Sec. 2, 4, and 5. If we ignore the provisions of the Constitution to say that they do not apply because Art. 1932, V.A.C.S. is all inclusive and does not list its terms as to the qualifications or disqualifications for holding the office of special county judge, we would in effect state that the Legislature by statute was attempting to overrule the applicable provisions of our Constitution. Without giving effect to Art. XVI, Sec. 14 requiring that civil officers be residents of this State and residents of the county in which they serve, I would hold that Art. 1932, V.A.C.S. would be unconstitutional.

Appellant cites Honse v. Ford, Tev.Civ.App., 258 S.W. 527, no writ history; Campbell v. McFadden, 9 Tex.Civ.App. 379, 31 S.W. 436, writ refused (1895), and Hagler v. State, 116 Tex.Cr.R. 552, 31 S.W.2d 653. These cases involve the residential requirements of two district judges and a justice of the Court of Civil Appeals. They are distinguishable. First of all, the residential qualifications of the judges in the three above cited cases were raised by collateral attack and not by direct attack. (2) They were all de facto judges, the same as I would hold as to the qualifications of Judge Edwards if his qualifications were questioned similarly on a collateral attack. (3) They were all state officers and not county officers. (4) The Constitution provides for district judges to freely exchange districts, Art. V, Sec. 11, Texas Constitution. There is no provision in the Constitution or the statutes that permit the exchange of benches for county judges. (5) These cases were decided prior to Art. 1.05, which was formerly Art. 2927 R.S., which did not specify that district officers must reside in their district.

Since the special county judge in probate is not a state or district officer, he must be a county officer and must reside in the county. If he is a civil officer, he must also reside in the county. If he is not a county officer or civil officer, appellants have failed to tell this honorable Court what type of an officer, a special county judge in probate is. His status as a civil officer and as a county officer would be hard to deny.

In case of a disqualified county judge, the Legislature did not create a special probate court or a special judge to serve such court with special residential requirements. I do not believe that it was the intent of the Legislature under Art. 1932, supra, to permit a special county judge to be a non-resident. Numerous opinions issued by the office of the Attorney General over many years have been consistent in holding that the residential requirements of civil officers comply with the laws of our state and of our Constitution.

In the case of Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (1950), the Supreme Court of Texas in reviewing a law setting up a new court and a new judge to serve that court, struck down parts of the statute as being unconstitutional. They held that the judge of that court was not a state officer but a county officer and although the law did not provide anywhere, as to the judge’s residential requirements the court held that the judge of that court was a county officer. It was immaterial, the court said, that the Legislature failed to require that the judge be a resident of the county because such residential matters are “ * * * regulated both by our Constitution and our statutes. The judge of the court created by this Act is a county officer. Article XVI, Section 14, of the Constitution makes it mandatory that all county officers reside within their counties, and Article 2927, R.S. {now Art. 1.05 Election Code, “eligibility") provides that a county officer must be an actual bona fide citizen of the county for more than six months prior to his election. Those provisions will be read into the law.1’

Although Art. 1932, V.A.C.S. does not require the special judge to be a resident of the county in which he is required to serve, the Constitution and other laws do make this a requirement. I further believe that the Supreme Court in Jordan v. Crudging-ton, supra, requires that the constitutional and statutory provisions of our laws as to residency, will be read into this law.

I would affirm the judgment of the trial court.

      . Emphases throughout are supplied.


author: WILSON, Justice.

text:
    Knox L. GARVIN, Appellant, v. Clifford R. GOLDSMITH et al., Appellees.
    No. 4514.
    Court of Civil Appeals of Texas. Waco.
    July 21, 1966.
    Rehearing Denied Sept. 22, 1966.

      Wynne, Jaffe & Tinsley, Dallas, for appellant.
    Fanning, Billings, Harper, Pierce & Gil-ley, William F. Billings, Walsh, McCarroll, Corstaphney & Wood, Paul McCarroll, Ralph Wood, Jr., Dallas, for appellees.
   OPINION

WILSON, Justice.

Plaintiff sued for damages alleging he purchased an interest in an oil and gas leasehold estate from defendant; that the three wells on the premises appeared to be producing oil in paying quantities; that it was expressly or impliedly represented by defendant that the wells were legally drilled, were bottomed within the leasehold boundaries, and were capable of producing in paying quantities under a legal operation; that wells numbers 1 and 2 were directionally drilled and deviated from the vertical so that they were bottomed outside of the lease boundaries, and well number 3 was a “dummy” on which false production reports had been filed; that defendant fraudulently concealed these facts from plaintiff, who did not know, and could not ascertain the truth. Damages were sought in an amount equal to the difference between the actual value of the leasehold interest and its value as represented. Southwestern Life Insurance Company and its subsidiary, Valley Royalty Corporation, intervened, alleging that defendant knew they were financing the lease purchase, and the misrepresentation and concealment by defendant was for the purpose of inducing them to advance the purchase money. They alleged Valley Royalty Corporation assigned the lease to plaintiff, reserving a production payment which it assigned to Southwestern Life. On a jury verdict judgment was rendered in favor of plaintiff and intervenors. We affirm.

Defendant’s first two points assert there was no evidence of, or jury finding as to the value of the leasehold interest “as represented”, as required by art. 4004, Vernon’s Ann.Tex.Civ.St. The issue submitted on damages inquired (11) the actual value of the lease at the time it was assigned, to which the jury finding was $5000; and (12) its value “if the wells on the lease had been legally producing oil at the rate at which they were then producing oil”, to which the jury answered $150,000.

Art. 4004, V.A.T.S. provides that the rule of damages in cases of actionable fraud in real estate transactions is “the difference between the value of the property as represented” and its actual value.

The complaint that there was no jury finding as to the value as represented is overruled. Plaintiff’s ground of recovery under Rule 279, Texas Rules of Civil Procedure consisted of more than one issue. An issue necessary to sustain this ground, and necessarily referable to it was submitted without objection to the asserted omission. The omitted issue is deemed found, under the terms of the Rule, in support of the judgment. The only applicable objections to the charge were that “there is not a proper measure of damages as it is given in that connection” and that Issue 12 “places a burden upon the defendant which the law does not place”. These are too general to constitute objections to the omission now complained of. McDonald v. New York Central Mut. Fire Ins. Co., Tex.Sup., (1964) 380 S.W.2d 545; Whitson v. Bluff Creek Oil Co., 156 Tex. 139, 293 S.W.2d 488; Strachan Shipping Co. v. Petty, Tex.Civ.App., 369 S.W.2d 526, writ ref. n. r. e., and cases cited; McDonald, Texas Civil Practice, Sec. 12.29, p. 1141 ff. The evidence was adequate to support the finding made and the implied finding of the value of the leasehold as represented.

It is contended that there was no evidence or jury finding that defendant was aware plaintiff did not know of the condition of the three wells, and that there is no evidence to support jury findings that defendant knew of their condition.

It was stipulated that wells 1 and 2 were slanted outside the lease boundaries and producing from other property, and the undisputed evidence is that well 3 was a nonproductive “dummy”. There is ample evidence to support the findings made. The issues as to defendant’s knowledge of plaintiff’s ignorance do not relate to an element essential to the ground of recovery. Appellant cites no authority supporting the argument, and we have discovered none.

It is also said there is no evidence raising the issue, and no issue submitted as to whether plaintiff relied upon defendant’s conduct and representations. There were jury findings that Valley Royalty Corporation would not have purchased but for defendant’s concealment, and that plaintiff should not, in the exercise of reasonable diligence have discovered that wells 1 and 2 were slanted, even by extending his independent investigation. These issues included and submitted the issue of reliance, and they are supported by the evidence.

Defendant urges that one of inter-venor-appellees suffered no damage, and the court therefore erred in awarding damages to it. The damages assessed by the judgment were based on the jury findings and awarded a $145,000 lump sum based thereon. It then apportioned this amount among plaintiff and intervenors, and applied credits. The apportionment is a matter for complaint only by appellees, who do not complain. They pleaded and proved action in concert in an “ABC” transaction in which Valley Royalty Corporation financed the purchase. There was only a single cause of action asserted, one judgment and one recovery.

This, and appellant’s other points have been considered, and are overruled.

Affirmed.


author: MCDONALD, Chief Justice.

text:
    SCOTT PAPER COMPANY, Appellant, v. Robert P. JOHNSON, Appellee.
    No. 4489.
    Court of Civil Appeals of Texas. Waco.
    July 28, 1966.
    Carrington, Johnson & Stephens, Fletcher L. Yarbrough, Dallas, for appellant.
    David M. Ivy, Dallas, for appellee.
   OPINION

MCDONALD, Chief Justice.

This is an appeal by plaintiff Scott Paper Company from summary judgment that it take nothing, in a suit for enforcement of a Pennsylvania judgment.

Plaintiff Scott sued defendant Johnson upon a final judgment for $2384.70, which it secured against defendant in the State of Pennsylvania. Defendant answered by sworn pleadings, alleging the foreign judgment was obtained under a confession of judgment contained in a note signed and executed in Dallas, Texas; that such confession of judgment is contrary to public policy and laws of Texas; is a void judgment and not subject to enforcement under the full faith and credit provisions of the United States Constitution; and that the judgment was obtained by fraud, in that plaintiff’s agent assured defendant it would sign the note as a co-maker, whereas it guaranteed payment of the note.

Both plaintiff and defendant moved for summary judgment.

The trial court denied plaintiff’s motion and granted defendant’s motion that plaintiff take nothing.

Plaintiff appeals on 6 points, contending:

1) The trial court erred in sustaining defendant’s motion for summary judgment, and in overruling plaintiff’s motion.
2) The trial court erred in not giving full faith and credit to the Pennsylvania judgment.

The record reflects defendant Johnson was an employee of Scott Paper Company; that defendant executed an installment note payable to Delaware County National Bank of Chester, Pennsylvania for $3978; that such note contained authority for confession of judgment by an attorney if the note was not paid; that Scott guaranteed payment of the note; that the note was not paid by defendant; that Scott paid the note and was assigned all interest in the note by the Bank; that Scott filed suit against defendant in Pennsylvania (where the note was payable); that no personal service was had on defendant, but that judgment was confessed on defendant’s behalf for $2384.70, (the amount due on the note), in accordance with the terms of the note; that such procedure is lawful in Pennsylvania; and that the judgment was final and was not appealed from.

Article IV, Sec. 1 of the United States Constitution provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”

Texas does not permit judgment obtained by “confession of judgment”. Nevertheless a judgment by confession obtained upon a judgment note in a foreign state, recognizing such procedure, will be given full faith and credit in Texas under Article IV, Sec. 1 of the United States Constitution. Hastings v. Bushong, Tex. Civ.App., 252 S.W. 246, W/E Dismd. 39 A.L.R.2d 1232-1260; Baumgardner v. Southern Pac. Co., Tex.Civ.App., 177 S.W.2d 317 (nwh); Bernard Gloeckler Co. v. Baker Co., Tex.Civ.App., 52 S.W.2d 912 (nwh).

But defendant contends the judgment obtained by fraud in that plaintiff’s agent assured defendant it would sign the note as a co-maker, whereas it guaranteed payment of the note.

Whether plaintiff signed the note as a co-maker or guaranteed payment of the note could make no difference. Defendant received the entire principal amount of the note1' from the bank; defendant defaulted in payment; and plaintiff then paid the bank the amount due on the note. In such situation plaintiff stands in the shoes of the original creditor, and can prosecute an action on the very debt itself. Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 681, 77 A.L.R. 663. And plaintiff’s Pennsylvania judgment was the result of such an action, and such judgment was entitled to full faith and credit by the trial court.

Plaintiff’s points are sustained. The judgment is reversed, and judgment rendered for plaintiff. Great Am. Res. Ins. Co. v. San Antonio Plb. Sup. Co., Tex. Sup., 391 S.W.2d 41.

Reversed and rendered.


author: NORTHCUTT, Justice.

text:
    Coke R. MORRIS, Appellant, v Mildred L. MORRIS, Appellee.
    No. 7637.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 19, 1966.
    Miller, Sanders & Baker, Amarillo, for appellant.
    Priolo & Priolo, Amarillo, for appellee.
   NORTHCUTT, Justice.

Coke R. Morris and Mildred L. Morris were formerly man and wife. Mildred Morris, as plaintiff, brought suit against Coke R. Morris, as defendant, for divorce, property settlement, custody of their two children and for child support. Prior to a hearing by the court in the divorce suit Mildred L. Morris and Coke R. Morris on April IS, 1964, entered into a contract and agreement as to property settlement, custody of their two minor children and as to child support. In the contract Mr. Morris agreed to pay Mrs. Morris $250 each month as child support. The payments were to continue until their daughter reached the age of 18 which would be until August 31, 1971. On June 19, 1964, judgment was entered in the divorce suit granting Mildred L. Morris a divorce from Coke R. Morris giving her custody of the two minor children and ordering defendant to pay $250 each month for child support and approved the April 15, 1964 settlement. The judgment entered on June 19, 1964, and the contract dated April 15,1964, are shown in the transcript.

Coke R. Morris, as plaintiff herein, brought the suit here involved seeking a reduction of child support. At the conclusion of plaintiff’s evidence the defendant made her motion for judgment. The trial court entered judgment denying the plaintiff any modification of the judgment entered on June 19, 1964. From that order the plaintiff perfected this appeal. Coke R. Morris will hereafter be referred to as appellant and Mrs. Morris as appellee.

Appellant presents this appeal upon one assignment of error contending the trial court abused its discretion and erred as a matter of law in denying a reduction of child support as prayed for by appellant for the reason that the great weight and preponderance of the evidence adduced warranted a reduction of the child support. There are no findings of fact nor conclusions of law filed herein.

We agree with appellant that he has placed himself in a rather bad position, but he entered into a contract with the ap-pellee to do a certain thing. There are no pleadings nor evidence to even indicate that the agreement entered into was through fraud, accident or mistake, but clearly shows appellant knew what he was doing and the contract and agreement was approved by the judgment entered on June 19, 1964. The agreement having been entered into by the parties in the absence of fraud, accident or mistake should not be set aside or modified except by consent of the parties. Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177 (writ dism.), and the cases there cited.

It seems to be the contention of appellant that he is entitled to have the monthly payments reduced because the son, whose custody was given to the appellee, had decided to live with appellant and because of appellant’s additional liabilities by having another family to support. The fact that appellant might have another family to support does not relieve him of the responsibilities of supporting his children of a previous marriage. Here we have a case which shows clearly the judgment was based upon an agreement of the parties and approved by the court as to everything except the granting of the divorce, and we do not believe that it is subject to the attack here made. Of course, for a divorce to be properly granted on the grounds of cruelty the acts constituting excesses, outrages or cruel treatment must be established by full, clear and satisfactory evidence and the parties could not by agreement be granted a divorce. Under Article 4639a, Vernon’s Ann. Texas Civil Statutes, the trial court has the authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and to make such orders regarding the custody and support of such children. However, in this case the $250 monthly payments were not determined and entered herein under the terms of Article 4639a but was upon a contract made and entered into by the parties and approved by the trial court. We are of the opinion, and so hold, the contractual provisions of the settlement decree or agreed judgment are not subject to modification. Ex parte Jones, 163 Tex. 513, 358 S.W.2d 370.

Judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Alvin G. RANDOLPH, Appellant, v. CHESTER CARY & NECHES TITLE & TRUST CO., Appellees.
    No. 6838.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 8, 1966.
    Rehearing Denied Oct. 5, 1966.

      Jesse P. Cunningham, Beaumont, for appellant.
    D. H. O’Fiel, McNicholas & Crawford, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action brought to recover a commission for the sale of a piece of real estate. Summary judgment was granted for both defendants. The parties will be referred to here as they were in the trial court.

Plaintiff alleged in his pleadings: That he was a licensed real estate broker. That he obtained a listing from Georgia Mae Moore, as administratrix of the Estate of Ben Moore, deceased, to obtain a purchaser for a certain tract of land described, for such terms and conditions as might be approved by the County Court of Jefferson County, where such estate was pending. That plaintiff as agent for the seller, on April 27, 1965 entered into a written contract with defendant Chester Cary to sell such land for $12,000.00, with $400.00 being paid on such purchase price. That under the agreement plaintiff had with his principal he was to receive as his commission all of the sales price over and above the sales price approved by the County Court, this being a-“net listing”. The sale was to be closed in the office of the defendant Neches Title and Trust Company and plaintiff notified the defendant that he was entitled to a commission of $1,775.00 when the sale was closed. That plaintiff was advised that this amount of money would be withheld for him. That when the sale was closed defendant Cary paid only $9,825.00 which was the amount set by the County Court.

Defendant Neches Title and Trust Company answered: That plaintiff had not alleged that he had an agreement in writing in order to recover a real estate commission as required by Sec. 28 of Art. 6573a, Vernon’s Ann.Civ.St. That plaintiff had filed a written appraisal with the County Court dated May 26, 1965, stating that it was his opinion that the property was valued at $9,825.00, and further that he had no interest, direct or indirect in the appraised property.

Both defendants filed motions for summary judgment. Affidavits were made by the plaintiff and the defendant Cary; Judgment was entered that plaintiff take nothing and that on his cross-action Cary recover the $400.00 paid.

Section 28, Art. 6573a, V.A.C.S., provides :

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

Plaintiff neither alleged nor in his affidavit proved that he had a written contract or memorandum providing for his recovery of a commission for the sale of this land. Even though this action is not brought against the seller of the land, it is still based upon the recovery of a commission for the sale of land and is controlled by the statute above quoted. All of plaintiff’s points are overruled.

Judgment affirmed.