text:
    CITY OF SAN MARCOS and San Marcos Independent School District, Appellants, v. F. W. ZIMMERMAN, Appellee.
    No. 11007.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 21, 1962.

      Ross Terry, Austin, Edward O. Wiley, Jr., San Marcos, for appellants.
    Adams, Thrower, Friloux & Eddington, Houston, for appellee.
   RICHARDS, Justice.

The City of San Marcos brought suit in the District Court of Hays County, Texas, against F. W. Zimmerman to recover delinquent personal property and ad valorem taxes, penalty and interest in the amount of $93.48 for the years 1956 through 1959, inclusive, which had been levied and assessed against certain automobiles owned by Zimmerman which were located at the time of the assessment within the limits of the City of San Marcos. The petition alleged the existence of a statutory lien upon the automobiles, the value of which were in excess of $500.00 and also impleaded the San Marcos Independent School District and the State of Texas and Hays County as parties defendant.

The San Marcos Independent School District as an impleaded party defendant filed its answer and cross action as cross plaintiff against Zimmerman for delinquent taxes alleged to have been levied and assessed by the District upon three automobiles owned by Zimmerman for the years 1959 and 1960 and asserted a statutory lien on each of the automobiles, the values of which were in excess of $500.00.

Zimmerman’s first amended original answer in addition to a general denial alleged that there was discrimination, confiscation, arbitrariness and injury in the manner and method of assessing the taxes in question and that the statute (Art. 7147, Vernon’s Civil Statutes) under which the taxes were levied was unconstitutional.

After trial to the Court without a jury the Court rendered judgment that the City of San Marcos and the San Marcos Independent School District take nothing against Zimmerman and further enjoined both the City and the District from collecting the particular taxes upon which the suit was based without prejudice to a reassessment of the taxes on a uniform and equal basis and did not assess the court costs against any of the parties to the suit.

The Court then found as facts:

“that plaintiffs have proved the necessary facts to entitle them to judgment for the taxes assessed against defendant’s automobiles, unless further findings foreclose them from such judgment”

but

“that while there was no concerted action or established plan on the part of the taxing authorities to- tax only certain personal property, nevertheless, their inaction to follow Article 7189, requiring all properties to be taxed uniformly and equally, the singling out automobiles, among other personal property, was, in effect, discrimination”

and

“that substantial amounts of taxable personal property were not rendered nor assessed and, hence, not taxed at all by the plaintiffs.”

and concluded as a matter of law:

“that the failure on the part of the taxing authorities to tax all personal property was a discrimination and thus rendered the tax against automobiles repugnant to the constitutional provision requiring taxes to be ‘equal and uniform.’ ”

Requests for additional findings of fact and conclusions of law were filed by the City of San Marcos and the San Marcos Independent School District, and the San Marcos Independent School District filed motion for new trial, all of which were denied and the City of San Marcos and the San Marcos Independent School District have duly perfected their appeals to this Court. Appellant City of San Marcos will be hereafter referred to as the “City” appellant San Marcos Independent School District will be referred to as the “School District.”

The City presents twenty six points of error. Points 1 and 2 are directed to the error of the Trial Court in rendering judgment for appellee Zimmerman since there was no proof that the City’s system of taxation resulted in substantial injury to the appellee and there was no proof that appel-lee’s taxes were excessive. Points 3 to 26, inclusive, assert error by the Trial Court in refusing appellants’ requests for additional findings of fact and conclusions of law.

The School District urges six points of error, the first being that the omission of the assessment of certain other personal property from its tax rolls did not render the taxes assessed against appellee’s automobiles excessive as a matter of fact because of such omission. Points 2 and 3 are directed to the Trial Court’s error in rendering a take nothing judgment against it since it had established by prima facie proof all facts necessary for the recovery of a personal judgment against appellee for the taxes for the years 1959 and 1960, there being no evidence sufficient in law offered by appellee to rebut such prima facie case. Points 4 and 5 assert that the School District was entitled to judgment against appel-lee as a matter of law establishing and foreclosing specific statutory tax liens in its favor against each of appellee’s automobiles for the taxes assessed thereon for the years 1959 and 1960. Point 6 contends that the Trial Court erred in overruling the School District’s motion for the production of records and documents under Rule 167, Texas Rules of Civil Procedure.

On the trial it was stipulated that both the City and the School District were duly incorporated as political subdivisions of the State of Texas with the power of taxation under the laws of Texas and that appellee during the period involved herein was a resident within the taxing jurisdiction of both the City and the School District and was the owner of three automobiles (a) a Lincoln Continental, (b) a Volkswagen, (c) a Willys and also (d) a Hudson which was disposed of prior to the beginning of the tax year 1957; that appellee had received notice from both the City and the School District of the rendition and assessment of taxes on the automobiles; that the taxes were not paid and that appellee received delinquent tax notices pursuant to the original notices and that the taxes were ■unpaid at the time of the trial; that the assessment and rendition occurred after the levy on the three automobiles and that the notice and attempted collection of taxes was had pursuant to the levy by the taxing authorities. The City offered in evidence its records showing the assessment and delinquency of taxes against appellee’s automobiles (a), (b), and (d) above mentioned and the School District its records against ap-pellee’s automobiles (a), (b) and (c), appel-lee having stipulated that such taxes were not paid and still remained unpaid at the time of the trial.

By the introduction of the official records showing the assessment of taxes against the described personal property of appellee, together with his admission that such taxes had not been paid, appellants made a prima facie case for the collection of the taxes sued for and the burden then rested on appellee to present proof that would meet the requirements of law for avoiding the valuation. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 572; East and Mount Houston Independent School District v. South Texas Lumber Company, 153 Tex. 535, 271 S.W.2d 795.

The Trial Court found that the City and School District had proved the necessary facts entitling them to judgment for the taxes assessed against appellee’s automobiles unless further findings should foreclose them from such judgment, with which finding we agree. The Trial Court also found that although there was no concerted action or established plan on the part of appellants to tax only certain personal property, nevertheless their failure to follow the provisions of Art. 7189, V.C.S., which requires all property to be taxed uniformly and equally, by singling out for the purpose of taxation only automobiles and failing to assess and tax other substantial amounts of taxable personal property constituted such discrimination as to render the assessment of taxes against appellee’s automobiles violative of the provisions of Sec. 1, Art. 8, Constitution of Texas, Vernon’s Ann. St.

It is therefore necessary for this Court to decide (1) whether the failure of appellants to assess taxes against all of the personal property described in Art. 7189 which was located within their respective taxing districts while only assessing taxes against automobiles belonging to appellee and other taxpayers constituted a discrimination against appellee and if so, whether appellee had sustained the burden of proving that such discrimination had resulted in substantial injury to him or (2) that the taxes so assessed were excessive.

Appellee did not testify on his own behalf but relied upon the testimony of the City and School District Tax Collectors, the President of the School Board and appellants’ attorneys called by him as adverse witnesses, and officers of two banks located in San Marcos. In summary, the testimony of these witnesses established that appellants assessed all real estate, all individual automobiles and all merchandise, furniture, fixtures and inventory of business concerns located within their taxing districts. There was evidence that bank deposits, stock, bonds, mortgages, household furniture, boats and trailers, jewelry, clothing and television sets were not rendered by the taxpayers and were omitted from the tax roll. No testimony was offered to establish the values of the omitted property either as a whole or by categories.

Appellee introduced statements of condition of two local banks which established the total amount of deposits on January 1st of the years 1957 through 1960. The evidence showed that the total bank deposits included deposits of Federal, State and local units of government, funds of charitable organizations and churches, deposits of individuals residing outside the limits of the City and School District and deposits by organizations having general offices elsewhere. No evidence was introduced to show what proportion of such bank deposits were legally taxable by either of appellants.

Appellee admitted that he had not rendered and was not assessed taxes against any personal property other than the automobiles involved herein. In response to requests for admissions that appellee owned two promissory notes amounting to $358,-064.00 and $16,900.00 respectively, money on deposit in the State Bank & Trust Company of San Marcos and corporate stocks and bonds appellee refused to either affirm or deny. The Trial Court having ruled that such requests be deemed admitted as true, appellee offered no evidence as to the value of these items of personal property owned by him nor did he contest the valuation of his personal property placed upon the tax rolls.

It is apparent from the record that not only bank deposits but other large amounts of personal property within the taxing districts were not assessed for taxation under the plans used by appellants. But under the uncontradicted evidence and as found by the Trial Court there was no concerted action or established plan by appellants to tax only certain classes of personal property and omit others from the tax rolls. Appellants’ failure to tax bank deposits and other omitted classes of personal property can only be attributed to “nonfeasance” instead of “misfeasance” on the part of appellants. The record does not reveal that appellee made any protest or objection to the operation of the taxing plans or made any direct attack upon the taxing systems to prevent their operation by seeking relief by mandamus or injunction prior to the filing of this suit.

A taxing authority does not lose its rights to taxes on one class of personal property by reason of the negligent failure of its officers to assess other property which is taxable under the law and when such plan is put into effect the recovery of taxes may only be defeated to the extent that they are excessive which must be proved by the party attacking the validity of the assessment. State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847, 850. When a taxpayer attacks the assessment of taxes against him upon the ground that the plan or system used by the taxing authority was arbitrary or illegal, he must sustain the burden of proof not only that the plan was arbitrary and illegal but also that the use of the plan operated to his substantial injury. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569, 573. Proof of substantial injury means that the taxpayer must prove that his taxes are excessive or substantially higher because of the omission of the taxable property and the failure to assess taxable property at its market value, State v. Federal Land Bank of Houston, supra, and the mere omission of property even in large amounts does not entitle other property owners whose property was assessed to have such assessment set aside. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, 880.

It should be noted that appellee offered no evidence as to the market value of his-own personal property which was not assessed by appellants or the market value of the non-assessed personal property of other taxpayers within appellants’ taxing districts. The burden of proof was upon ap-pellee to offer evidence of the true market value of the properties omitted from assessment by appellants in order to prove his injury in the assessment of his personal property.

Applying these rules of law to the factual situation presented by the record, it is clear that appellee failed not only to sustain his burden of proof of showing that the taxing plans used by appellants in their application to appellee resulted in substantial financial injury to him but also failed to sustain the burden of showing that the assessed valuation of his three automobiles was excessive. It necessarily follows that since the prima facie cases by both appellants were not rebutted by appellee, the Trial Court erred in rendering judgment that each appellant take nothing by its suit.

The City’s points of error 1 and 2 and the School District’s points of error 1, 2 and 3 are sustained. Therefore, it is unnecessary to discuss or pass upon the City’s points of error Nos. 3 to 26, inclusive and the School District’s point of error No. 6.

( Appellee relies upon five counterpoints for affirmance of the Trial Court’s judgment: first, that Art. 7147, V.C.S., the statute under which the taxes were levied, is unconstitutional; second, that his fundamental rights have been violated since the tax was repugnant to Sec. 1, Art. 8, Constitution of Texas, which provides that taxation shall be equal and uniform and that all property shall be taxed in proportion to its value which shall be ascertained as provided by law; third, that the Tax Assessor-Collector did not comply with Art. 7189, V.C.S., thereby rendering the assessment of taxes invalid; fourth, that the taxes levied were not equal and uniform as required by law; and fifth, that it was not necessary for appellee to show substantial injury as a result of the tax to render it unenforceable.

Appellee’s first counterpoint that Art. 7147, V.C.S., is unconstitutional because the taxing of bank deposits would seriously damage the banking system within the State of Texas by causing mass withdrawals by depositors to avoid the impact of the tax is without merit and is overruled. Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 381. Appellee’s second counterpoint is overruled. Sam Bassett Lumber Co. v. City of Houston, supra; State v. Whittenburg, supra. Appellee’s third counterpoint is overruled, State v. Federal Land Bank of Houston, supra, and his fourth counterpoint is overruled, State v. Whittenburg, supra; State v. Federal Land Bank of Houston, supra. Appellee’s fifth counterpoint is overruled, State v. Federal Land Bank of Houston, supra.

The School District’s points of error Nos. 4 and 5 assert that it was entitled to judgment against appellee as a matter of law establishing and foreclosing a specific statutory tax lien against each of appellee’s automobiles for the taxes assessed thereon for the years 1959 and 1960.

Art. 1060, V.C.S., provides a specific lien upon the personal property upon which a City tax is assessed. City of San Angelo v. Deutsch, 126 Tex. 532, 91 S.W.2d 308, 309. Appellee contends that under the holding by the Commission of Appeals in Mission Independent School District v. Armstrong, Tex.Com.App., 222 S.W. 201, the provisions of Art. 1060 were adopted by reference and made available to independent school districts by the provisions of Art. 2853, R.C.S. 1911 (now Art. 2758, V. C.S.), which then read as follows:

“The trustees elected in accordance with the preceding article shall be vested with full management and control of the free schools of such incorporated town or village, and shall in general be vested with all the powers, rights and duties in regard to the estab-lisnment and maintaining of free schools, including the powers and manner of taxation for free school purposes that are conferred by the laws of this state upon the council or board of aldermen of incorporated cities and towns.” (Italics supplied.)

But in 1927 Art. 2758 was amended (ch. 238, Sec. 2, Acts 40th Leg. p. 353) omitting the italicized portion of Art. 2853, R.C. S. 1911, upon which the opinion of the Commission of Appeals in Mission Independent School District was based, thus repealing the statutory lien for taxes upon personal property in favor of independent school districts.

In 1935 the Legislature enacted Art. 1060a, V.C.S., which provided:

“That all of the provisions of Title 122, of the Revised Civil Statutes of Texas, of 1925, be, and the same are made available in so far as same may be applicable and necessary to all school districts and municipal corporations organized under any general or special law of this State and which have power and authority to levy and collect their own taxes, and that each of such corporations shall have the benefit of all liens and remedies for the security and collection of taxes due them as is provided in said Title in the case of taxes due the State and County(Italics supplied.)

The legislative intent in enacting Art. 1060a is emphasized by the following verbiage contained in the emergency clause:

“The fact that the existing laws as to the method of assessing and collecting taxes of independent school districts are indefinite, and the further fact that it is doubtful as to whether or not the law at present gives such districts liens to secure their taxes, create an emergency * * (Italics supplied)

Title 122, “Taxation,” V.C.S., provides for a specific lien for taxes due on real property (Art. 7172, V.C.S.), but no general lien is provided upon personal property for taxes due thereon and unless specifically authorized a taxing authority has only the right to sell personal property after judgment for taxes under writ of execution, the levy of which creates a lien. Maro Co., Inc. v. State, Tex.Civ.App., 168 S.W.2d 510, 512, error ref.

It is our opinion that only the City of San Marcos has a specific statutory lien for the taxes assessed against the automobiles in question under the provisions of Art. 1060, V.C.S., and that no similar statutory lien exists in favor of the School District. The School District’s points of error Nos. 5 and 6 are overruled.

The judgment of the Trial Court is reversed and judgment rendered in favor of the City of San Marcos and against F. W. Zimmerman in the sum of $93.48 for personal property taxes, penalties and interest together with foreclosure of its tax lien against the following described automobiles : a 1956 Lincoln Continental (motor No. C 569-1386) and a 1958 Volkswagen (motor No. 189-7939) and in favor of San Marcos Independent School District and against F. W. Zimmerman in the sum of $76.60 for delinquent personal property taxes, penalties and interest for the year 1959 and the sum of $59.95 for delinquent personal property taxes for the year 1960. All costs of court are taxed against F. W. Zimmerman.

Reversed and rendered.

      . Specific tax liens not here applicable are created on personal property by Art. 7048 and Art. 7269, V.C.S.


source: Caselaw Access Project

author: RICHARDS, Justice.

license: Public Domain

text:
    J. K. MEYER, Appellant, v. Alice M. MEYER, Appellee.
    No. 11027.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 21, 1962.

      DeShazo & Hyde, Dallas, for appellant.
    Storey, Armstrong & Steger, Donald A. Swanson, Jr., Donald W. Jackson, Dallas, for appellee.
   RICHARDS, Justice.

Alice M. Meyer, appellee, brought suit for divorce in the Domestic Relations Court No. 1, Dallas County, from her husband J. K. Meyer, appellant, upon the grounds of mental and physical cruelty under the provisions of Art. 4629, Subd. 1, Vernon’s Annotated Civil Statutes, and for the custody of their four minor male children. After trial without a jury the Trial Court granted a divorce in favor of appellee and awarded the custody of the two younger children to their mother and the custody of the two older children to their father. Appellant’s amended motion for New Trial having been overruled, this appeal was perfected.

For his 1st and 2nd points of error appellant contends that the Trial Court erred in holding that appellee had been a resident of Texas for more than one year and had resided in Dallas County for more than six months immediately preceding the filing of her original petition on May 24, 1961 and her first amended original petition on July 5, 1961 within the meaning of Art. 4631, V.A.C.S.

Appellee filed her original petition for divorce in the Domestic Relations Court of Dallas County, Texas, on May 24, 1961 and thereafter filed her first amended original petition on July 5, 1961, amplifying the allegations in the original petition.

Appellee testified that her residence and domicile and also that of her husband had been in Garland, Texas, for three years preceding the filing of the original petition, although that at the time of the trial she was temporarily residing in Kirkwood, Missouri; that she had left her residence in Garland about May 7, 1961 and moved to Kirkwood, Missouri, to stay with her parents temporarily because she was afraid of her husband who had attempted to commit her to a mental institution. Appellee consistently testified that the stay with her parents at Kirkwood was temporary only.

Her testimony as to her residential qualifications were corroborated by the testimony of her husband who stated that he had been a minister of a church in Garland, Texas, for approximate three years immediately preceding the filing of the divorce action, his resignation from that church having been tendered subsequent to their separation and becoming effective July 31, 1961; and that on June 3, 1961 she came home to Garland to take the boys to Kirkwood on a visit. In addition, the residential qualifications of appellee were never raised or controverted by appellant by any pleadings nor did appellant offer testimony to controvert appellee’s testimony as to her residential qualifications, such question being raised for the first time in appellant’s amended motion .for new trial.

Art. 4631, V.A.C.S., provides that no divorce suit shall be maintained in the courts of Texas unless the petitioner shall at the time of exhibiting the petition be an actual bona fide resident of Texas for a period of twelve months and shall have resided in the county where suit is filed for six months next preceding the date of filing of the petition. The provisions of this statute are not jurisdictional but merely provide the necessary residential qualifications for bringing an action for divorce. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 79, 89 A.L.R. 1198.

In its judgment the Trial Court found that the residential qualifications of Art. 4631, V.A.C.S., had been complied with. Since residence is a qualification and a fact issue to be determined by the Trial Court, its findings will not be disturbed on appeal unless there is a clear abuse of discretion. Vinson v. Vinson, Tex.Civ.App., 340 S.W.2d 562, 563 (N.W.H.); Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112, 113 (N.W.H.). It is well settled that temporary absence from the county and state of residence prior to the filing of an action for divorce does not destroy the residential qualifications required by Art. 4631. Haymond v. Haymond, 74 Tex. 414, 12 S.W. 90, 92; Bell v. Bell, Tex.Civ.App., 135 S.W.2d 546, 547 (N.W.H.); Black v. Black, Tex.Civ.App., 185 S.W.2d 476, 478 (N.W.H.).

In addition, appellee derived her domicile in Dallas County, Texas, through the domicile of her husband in Garland, Texas, up to July 31, 1961, Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 812, since there is no evidence in the record that appellee acted upon any intent to create a separate domicile prior to July 5, 1961 when her first amended petition was filed. Residential qualifications may be met either at the time of the filing of the original or an amended petition.

Since the Trial Court was the sole judge of the credibility of the testimony of appellee upon the question of residential qualification, which was uncontradicted, and is supported by full, clear and satisfactory evidence, such finding will not be disturbed. Padgett v. Padgett, Tex.Civ.App., 341 S.W.2d 470 (N.W.H.). Appellant’s 1st and 2nd points of error are overruled.

Appellant’s 3rd point of error is directed to the error of the Trial Court in granting a divorce to appellee because of the lack of supporting evidence of statutory grounds provided in Art. 4629, Subd. 1, V.A.C.S. In her first amended petition and first supplemental petition appellee alleged many specific acts of harsh and cruel treatment toward her by her husband of long duration and upon the trial gave affirmative testimony in support of these allegations. The testimony of appellant was directly contradictory to or in explanation or mitigation of the acts of cruel treatment testified to by appellee.

Some of the acts of appellant’s cruel and harsh treatment of appellee which were alleged and testified to by her are as follows: that during her third pregnancy she requested her husband to stop spanking one of the children and that he turned on her and hit her in the stomach with his fist as a result of which one of the twins which she delivered died; that in March, 1961 her husband knocked her to the floor and as a result thereof she was hospitalized for a disc condition and put in traction for three weeks before an operation was performed to relieve the condition; that during April, 1961 while she was recovering from the operation appellant called the pharmacy and gave instructions that his wife was not to have any more pills for her post operative pain; that in February, 1961 while she was asleep her husband shook her and slapped her and called her “you contemptible female”; that her husband had humiliated her in the presence of her children by bringing three of the boys in the living room and pointing to her and stating “look at that miserable creature, that is your mother” and that her husband had for a long period of time stated that his wife needed psychiatric care, charging that she was crazy, neurotic and queer and that she wished to destroy him and she had ruined his career.

It would serve no useful purpose to fully detail and discuss the voluminous testimony of both appellee and appellant as to the various acts of cruel and harsh treatment above referred to. The testimony of appellee as revealed by the statement of facts shows a long course of cruel treatment by appellant toward appellee, none of which was condoned by appellee and which instances of harsh and cruel treatment individually and taken as a whole, in our opinion, constitute such cruel treatment, both physical and mental as to render their further living insupportable and are grounds for divorce within the meaning of Art. 4629, Subd. 1, V.A.C.S. Guerra v. Guerra, Tex.Civ.App., 327 S.W.2d 625, 628 (N.W.H.); Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409, 411, Mand. overruled.

The Trial Court having found in its judgment that the material allegations contained in appellee’s amended petition and supplemental petition were supported by the evidence and were true, and since the Trial Court is the sole judge of the credibility of the witnesses where the testimony of one witness is directly controverted by another witness, the presumption in favor of the Trial Court’s decision should be accepted by this Court. Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297, 305 (N.W.H.).

While it is the duty of this Court to determine that the judgment of the Trial Court was rendered upon “full and satisfactory evidence” affirming the material facts alleged in the petition, the Trial Court’s determination of such facts will not be disturbed in the absence of a showing of a clear abuse of discretion. Hunter v. Hunter, Tex.Civ.App., 321 S.W.2d 92, 94 (N.W.H.). Corroboration of appellee’s testimony is not required even though appellant denied the allegations and the testimony of appellee. Finn v. Finn, Tex.Civ.App., 195 S.W.2d 679, 681; Mand. overruled, Finn v. Bond, 145 Tex. 244, 197 S.W.2d 108. There being no evidence showing any abuse of discretion the findings of the Trial Court are approved and appellant’s 3rd point of error is overruled.

In his 4th and 5th points of error appellant contends that the Trial Court erred in awarding custody of the two minor children to appellee when all of the evidence showed that appellee was unstable mentally and emotionally and that the present home of the children and the circumstances surrounding their living conditions constituted a better place for their rearing. Under her 3rd counterpoint appellee urges that the Trial Court was correct in holding that she was a fit and proper person to care for and support the two minor children and that the evidence and circumstances of the case warranted the division of custody of the four minor children between the parents.

There were four minor children born of the marriage, namely: John K. Meyer, Jr. age 16 years (now 17 years); Craig A. Meyer, age 14 years (now 15 years) ; Glen V. Meyer, age 10 years (now 11 years) ; and Scott D. Meyer, age 2 years (now 3 years). After hearing all of the evidence including interviews in the Court’s Chambers with the three older children, the Trial Court entered the following decree:

“ * * * and it appearing to the Court that the best interests and welfare of such children will best be served by allowing all four boys to remain temporarily with Defendant until midterm and after mid-term by allowing the two oldest boys, John K. Meyer, Jr., and Craig A. Meyer, to remain in school at the residence of Defendant in Waverley, Iowa, and the two younger boys to remain with Plaintiff; and it further appearing to the Court that plaintiff is a fit and proper person to have the care, custody and control of such children;
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED by the Court that the temporary custody of the four children be awarded to the Defendant, J. K. Meyer, until mid-term in the public schools in Waverley, Iowa, in January, 1962, after which time the care, custody and control of the two younger children, Glen v. Meyer and Scott D. Meyer, be granted to Plaintiff, Alice M. Meyer, and the care, custody and control of the two older boys John K. Meyer, Jr., and Craig A. Meyer, be granted to the Defendant, J. K. Meyer, with Plaintiff to have the right of reasonable visitation of the two older boys with her during the first one-half of the summer vacation, 1962 and subsequent years, and with the right of the Defendant to have reasonable visitation of the two younger boys during the latter one-half of the summer vacation period, 1962 and subsequent years. * * * ”

The award of custody of minor children in an action for divorce is within the sound discretion of the Trial Court and in the absence of an abuse of discretion, the appellate court is without power to reverse such judgment. Thomason v. Thomason, Tex.Civ.App., 332 S.W.2d 148, 151 (N.W.H.). Since the Trial Court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, unless the award is so contrary to the great preponderance of the evidence, it is our duty not to disturb the Trial Court’s action unless an abuse of discretion is shown. Sawyer v. Bezner, Tex.Civ.App., 204 S.W.2d 19, 22, error ref. N.R.E. From a careful examination of the record we cannot find that in awarding the custody of the two younger children to the mother that there was any abuse of discretion by the Trial Court. Thomason v. Thomason, supra.

It is true as a general principle of law that the custody of the minor children and particularly those of tender years should be awarded to the mother unless the Court is convinced that she is unfit, Beasley v. Beasley, Tex.Civ.App., 304 S.W.2d 158, 161, error ref. N.R.E. Nevertheless the best interests of the child is the paramount object to be sought by the Trial Court in its award of custody, Tunnell v. Reeves, Tex.Com.App., 35 S.W.2d 707, 710.

Appellant challenges the fitness of appel-lee to be awarded the custody of any of the children on the ground of mental and emotional instability. But the Trial Court found that appellee was a fit and proper person to have the custody of the two younger children which finding was evidently based upon the testimony of two competent psychiatrists that she was a fit and proper person to have the custody of her minor children.

Ordinarily there should be no division of the minor children between the divorced parents unless such division is warranted by the circumstances of the particular case, Beadles v. Beadles, Tex.Civ.App., 251 S.W.2d 178, 180 (N.W.H.). But each case must stand upon its own record. In the instant case, the Trial Court, having heard the testimony of both appellant and appellee as well as the three older minor children, determined that the two younger boys would receive better care and affection if placed in the custody of appellee and that the custody of the two older boys should be given to appellant since they had expressed a preference to be under the care of their father. In making the respective awards the Trial Court exercised sound discretion and therefore its judgment should not be disturbed. Beadles v. Beadles, supra.

The Trial Court’s judgment entered January 4, 1962 provided that the temporary custody of the four children be awarded to appellant until mid-term in the public schools in Waverly, Iowa in January, 1962 after which the care and custody of the two younger children was granted to appellee. On motion of appellant to deny any stay or suspension of the custody order pending this appeal on January 25, 1962, the Trial Court entered its order that its judgment entered January 4, 1962 respecting the care and custody of the minor children be fully complied with and enforced and that such order and judgment should not be stayed or suspended pending the hearing on appellant’s Motion for New Trial or any appeal. In her reply to appellant’s amended Motion for New Trial appellee alleged under oath that appellant had refused to turn over to her the two minor children Glen Meyer and Scott Meyer at the end of the school term in Waverly, Iowa, on or about January 22, 1962, and had removed the children or caused them to he removed from their place of residence in Waverly, Iowa and had concealed them from her, thereby preventing her from taking the care and custody of the children at the time set in the Court’s judgment. Appellant’s Motion for New Trial was overruled on February 22, 1962.

It appears from the affidavit of appellee filed May 21, 1962 in connection with her Motion to Dismiss this appeal that the whereabouts of the two minor children Glen and Scott were unknown to and could not be ascertained by appellee. In his reply to the Motion to Dismiss appellant attached an affidavit dated May 28, 1962, stating that his then residence was in Des Moines, Iowa and that all four children were in the State of Iowa, without stating their place of residence, and that it was to the best interest of the children that they remain with him until the final decision of this appeal.

The Trial Court having ordered that its judgment with respect to custody should not be superseded, the refusal of appellant to comply with the Trial Court’s order, coupled with his express failure to reveal the whereabouts of the children without good and sufficient reason, would constitute contempt of the Trial Court. But since appellant is beyond the jurisdiction of this Court, he cannot be reached through the usual contempt proceedings.

To paraphrase the opinion of the Commission of Appeals in Burckhalter v. Conyer, 7 S.W.2d 73, 74, appellant is in the attitude of asking this Court to reverse the judgment of the Trial Court giving appellee permanent custody of the two younger children, Glen and Scott, while his action in keeping the children beyond the jurisdiction of the Trial Court would render the judgment ineffective if it should be in favor of appellee. The judgment of the Trial Court must be complied with before this Court could even consider granting the relief sought by appellant. Appellant’s fourth and fifth points of error are overruled and the judgment of the Trial Court is affirmed.

Affirmed.


author: LANGDON, Chief Justice.

text:
    PHILLIPS PETROLEUM COMPANY et al., Appellants, v. AMERICAN TRADING AND PRODUCTION CORPORATION et al., Appellees.
    No. 5536.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 17, 1962.
    Rehearing Denied Nov. 14, 1962.
    Carl W. Jones, Raymond A. Lynch, W.. B. Browder, Midland, Wm. J. Zeman, Lloyd! G. Minter, Bartesville, Okl., Stubbeman Me-Rae, Sealy, Laughlin, Midland, of counsel, for appellants.
    Frank C. Ashby, Garland Casebier, Turpin, Kerr, Smith & Dyer, Midland, John S. McDaniel, Jr., Baltimore, Md., for appel-lees.
   LANGDON, Chief Justice.

This suit arose over a dispute as to who is entitled to receive the monetary proceeds ($94,246.16) derived from the sale of oil and gas produced from a well drilled in violation of a valid order of the Texas Railroad Commission prohibiting the drilling and production of such well.

The well in question is known as the American Trading No. 1 Woody Heidelberg Well, and was located, drilled and produced by American Trading and Production •Corporation on a 160-acre tract of land, the NW/4 of a certain Section 29 in the Azalea (Strawn) Gas Field in Midland County, Texas.

The suit was filed by Phillips Petroleum Company in the District Court of Midland County against certain designated parties named in the petition as “Group One Defendants” and other parties named as '“Group Two Defendants”. Appellees are •the “Group One Defendants”, consisting of American Trading and Production Corporation (American Trading) and the royalty •owners under the 160-acre tract on which ■the Heidelberg well was drilled. Appellants .are Phillips Petroleum Company and the “Group Two Defendants”. Phillips and the ■“Group Two Defendants” either owned royalty, or other interest in production, or were the operators of all the other wells -which were producing in the same field (Azalea (Strawn) Gas Field) as the American Trading well during the time that well -was on production.

The judgment entered in this case is based solely on the pleadings. At a hearing on the exceptions to the pleadings of plaintiff Phillips and the cross-actions of .certain of the Group Two defendants, the trial court sustained the exceptions, dismissed appellant Phillips’ cause of action and the cross-actions of appellants O’Neill and others (Group Two defendants) and entered judgment for the total sum of the disputed proceeds ($94,246.16) in favor of American Trading and the other “Group One Defendants” on their cross-actions, for certain designated sums of money. From such judgment Phillips and the “Group Two Defendants” have perfected their appeal.

The suit had its origin in a prior suit between the Railroad Commission of Texas (with which appellants were aligned) and appellee American Trading, over the denial of the Railroad Commission to American Trading of a special permit (as an exception to the applicable field density order) to drill and produce a gas well on the NW/4 of Section 29. American Trading appealed from the Commission’s order, denying the permit, to the District Court of Travis County and obtained a trial court injunction enjoining enforcement of the order and any interference with the drilling or production of the well, from which judgment the Commission, Phillips and the Group Two defendants involved in this suit appealed. During the pendency of the appeal, American Trading drilled, completed and produced the well in question. The Court of Civil Appeals upheld the order of the Commission denying the permit to American Trading, and it reversed and rendered the trial court’s judgment. Thereafter, the Supreme Court of Texas refused the application for writ of error, and the Supreme Court of the United States denied certio-rari.

Gas and distillate was produced from the well throughout the period of litigation, from January, 1959 until the mandate of the Court of Civil Appeals was filed and the well was shut-in by the Commission on July 31, 1959. Since Phillips was the only purchaser of gas and distillate in the field during the time the well was being produced, it took the production from such well without discrimination, but placed the proceeds therefrom, amounting to $94,246.16, in suspense pending final determination of the prior litigation. On August 11, 1959, after the mandate was filed in the prior case, Phillips filed this suit in the District Court of Midland County and, thereafter, tendered and paid into the registry of such court the $94,246.16 in dispute.

Special field rules for the Azalea (Strawn) Gas Field were adopted by the Commission on November 21, 1957, and these rules, together with the Commission’s Statewide Density Order, had the effect of permitting only one well to be drilled on each 640-acre tract in the Azalea (Strawn) Gas Field. On the effective date of these rules O’Neill, one of the appellants herein, owned the oil and gas leasehold estate on the NW/4 of Section 29 (on which the Heidelberg well was later drilled) and also owned the SE/4 of said Section 29, on which a well had already been located. Since O’-Neill owned both the NW/4 and the SE/4 of the section on the date the rules became effective, and had already located a well on the SE/4, the Commission assigned an allowable for the O’Neill well on the basis of a 320-acre unit consisting of the NW/4 and SE/4 of Section 29. Thereafter, on January 22, 1958, O’Neill and others assigned their leasehold interest in the NW/4 to American Trading, although for allowable purposes such tract (160 acres) remained assigned to the O’Neill well on the SE/4, which continued to be produced on the basis of a 320-acre unit.

On May 6, 1958, American Trading filed an application with the Railroad Commission for a special permit to drill a well (the Heidelberg) on the NW/4 (160 acres) it had acquired from O’Neill, as an exception to the Commission’s orders which prohibited the drilling of a well in this field on a tract containing less than 640 acres. When the application was denied, the litigation referred to above ensued, and the order of the Railroad Commission denying the application of American Trading to drill such well was eventually sustained by the courts. (Railroad Commission of Texas v. American Trading and Production Corporation, Tex.Civ.App., 323 S.W.2d 474, ref’d. N.R. E.; American Trading and Production Corporation v. Railroad Commission of Texas, 361 U.S. 886, 80 S.Ct. 158, 4 L.Ed.2d 121.)

In the pleadings filed in the instant suit, the appellant Phillips takes the position that the final judgment in the prior suit between the Commission and American Trading and the order of the Railroad Commission were and are res adjudicata and stare decisis of all matters there involved, including the fact that the Heidelberg well was never legally drilled and produced, and that the “Group One Defendants” are estopped and foreclosed to further litigate any such matter or issues. Phillips also asserts that the well was drilled and produced by American Trading while its right to do so was being contested; that American Trading deliberately overproduced the well by taking advantage of Statewide Rule 24(b) of the Railroad Commission which, in effect, allows a gas well to be produced at a rate of double its allowable provided the overproduction is made up during the following six months “balancing period”, knowing that it (American Trading) would not have to make up the overproduction if it lost the prior suit and the well was required to be shut-in, as occurred. Phillips also contends that American Trading produced the well in question so as to violate even Statewide Rule 24(b) by producing gas in excess of double the allowable during the months of March and July, 1959, which was after the date the Court of Civil Appeals had reversed the judgment of the trial court, and the Supreme Court had refused American Trading’s application for writ of error.

As we construe the pleadings filed by the appellants in the trial court, the basic contention of all the appellants seems to be that American Trading, in drilling and producing its Heidelberg well under the color of authority of a Railroad Commission permit which showed on its face to have been issued pursuant to a trial court injunction from which an appeal had been taken, knowingly assumed the risk that the trial court’s injunction might be dissolved and the Commission’s order, denying a permit to drill and produce the well, reinstated. It is contended that the final effect of the prior litigation was to uphold the validity of the Commission’s order denying the permit to drill and produce the well, thus rendering illegal the production of the gas and distillate obtained by American Trading from the common reservoir.

The function of the Railroad Commission with respect to the exercise of its regulatory powers in the oil and gas industry is not confined solely to the prevention of waste and the conservation of a natural resource. The Commission also has the duty, in cases where it has been determined (as it has here) that a common reservoir exists in which numerous parties share certain rights and interests, to promulgate field rules and orders applicable to such common reservoir for the protection of the correlative rights of all who are entitled to take from the common reservoir or share in the proceeds from such production.

If it be alleged by one or more of the operators, or other owners of interests in a particular field, that they own or possess the exclusive or correlative rights with others to take from a common reservoir, and it is alleged that another, not entitled to take from such common reservoir, has taken therefrom; or, if such other be entitled to take, that he has exceeded his production allowable (overproduced) under the field rules applicable to such reservoir; such is sufficient, in our opinion, to state a cause of action against the one so taking, and to require a trial of the issues on the merits. Peterson v. Grayce Oil Co., Tex.Civ.App., 37 S.W.2d 367; Grayce Oil Co. v. Peterson, 128 Tex. 550, 98 S.W.2d 781; Loeffler v. King, Tex.Civ.App., 228 S.W.2d 201, 149 Tex. 626, 236 S.W.2d 772; Elliff v. Texon Drilling Co., 146 Tex. 575, 210 S.W.2d 558 (see also 4 A.L.R.2d 191); Turnbow v. Lamb, 5 Cir., 95 F.2d 29.

In the Grayce Oil Company case cited above, Peterson had installed vacuum pumps in wells on his own lease for the purpose of increasing their production, in violation of Rule 40 of the Railroad Commission. Grayce, owner of the adjacent lease, complained to the Commission, which ordered their discontinuance. Thereafter Grayce sued Peterson for the value of the oil drained beneath Grayce’s lease by reason of the use of such vacuum pumps. In the trial court Grayce recovered both actual and exemplary damages, and Peterson appealed. While the case was reversed on appeal for errors in admission of evidence and in the charge, the existence of a cause of action and Grayce’s right to recover for drainage resulting from a violation of Rule 40 were expressly upheld.

The case of Loeffler v. King, supra, involved numerous questions, among which was the question of whether a cause of action was asserted by plaintiff Loeffler against Scott for drainage of oil from Loeffler’s land by Scott’s wells, which were drilled on Scott’s lease less than 330 feet from the lease-line, in violation of the applicable spacing rule of the Railroad Commission. The trial court held for Scott on the theory that under the law of capture he was not liable for oil drained from neighboring land and produced from his own wells. The Court of Civil Appeals reversed, and held that the trial court erred in not hearing appellant’s cause of action raised by his pleadings upon the merits and the law relative to recovering the value of his oil which had been unlawfully drained from his land, if any, saying that the “trial court applied the stringent rule of capture in this case without applying its limitation, to-wit, ‘legitimate operation.’ ” In the Supreme Court the judgment of the Court of Civil Appeals was reversed on other grounds, rendering it unnecessary for that court to pass on the question.

In the case of Elliff v. Texon Drilling Company, supra, by the Supreme Court, the Elliffs sued for damages to their mineral estate resulting from a blowout of a well drilled by Texon on other land on which Texon had an oil and gas lease. The blowout of the Texon well had led to the cratering and eventual destruction of a well on the Elliff’s land and also resulted in the escape of large quantities of oil and gas from under Elliff’s land. The Supreme Court defined the law of capture in this State as allowing the owner of minerals to drill for and produce the oil and gas from under his land only “so long as he operates within the spirit and purpose of conservation statutes and orders of the Railroad Commission. These laws and regulations are designed to afford each owner a reasonable opportunity to produce his proportionate part of the oil and gas from the entire pool and to prevent operating practices injurious to the common reservoir.” In passing on the question involved, the Supreme Court also cited, with apparent approval, the holding of the Court of Civil Appeals in Peterson v. Grayce Oil Company, supra.

The consensus of authority appears to hold that the right.of an owner to recover oil and gas from beneath his own land is qualified and is limited to “legitimate operations”. Each owner whose land overlies a common reservoir has a like interest, and each must exercise his right with some regard to the rights of others, and must submit to such limitations as are necessary to enable each to get his own. Hague v. Wheeler, 157 Pa. 324, 27 A. 714; 22 L.R.A. 141.

We have concluded that the pleadings filed by appellant Phillips and the cross-actions filed by the “Group Two Defendants” each state a cause of action, and that the trial court erred in sustaining appellees’ exceptions thereto and in rendering judgment in favor of such appellees solely on the pleadings, without a trial of the issues on the merits. We therefore sustain the points of error brought by appellants in so far as they attack the judgment of the trial court on that basis.

We have also considered the cross-assignments of error raised by the appellees herein, with respect to the trial court’s refusal to award attorneys’ fees and interest on their cross-action. In view of the fact that our decision, as announced above, requires a reversal and remand of this case, we deem it unnecessary to pass on such cross-assignments of error.

The judgment of the trial court is reversed, and this cause is remanded with instructions that appellees’ exceptions be overruled and that the case proceed to trial on the merits.

It is the judgment of this court that the costs incurred on this appeal should be taxed one-half against the appellees and one-half against appellants, and it is so ordered.


author: GRISSOM, Chief Justice.

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    B. P. TANKERSLEY et al., Appellants, v. Mrs. Sallie RANDAL, Appellee.
    No. 3750.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 2, 1962.
    Rehearing Denied Nov. 23, 1962.

      Thomas F. Glover, Seymour, Bonner & Montgomery, Wichita Falls, for appellants.
    Newton & Whiteside, R. J. Balch, Seymour, Ratliff & Ratliff, Haskell, for appel-lee.
   GRISSOM, Chief Justice.

Mrs. Sallie Randal, the widow and successor in title of Charles Randal, sued B. P. Tankersley in trespass to try title to 36.3 acres of land out of Section 122 of the T. & N. O. Ry. Co. Survey in Baylor County. This 36.3 acre tract lies immediately east of the boundary line between Sections 103 and 122 and extends east in Section 122 to the west bank of the Brazos River. Said tract was included in the field notes of 131 acres out of Section 122 patented by the State to Charles Randal on March 1, 1936. The 36.3 acre tract is cut off on the west by the river from the remainder of Section 122. On the west it adjoins the east line of Section 103, a part of which section is now owned by B. P. Tankersley. (A map showing the location of the land and river is attached to this opinion.) C. A. Grossman intervened claiming title to one-half the minerals in said 36.3 acres. Only one issue was submitted to the jury. That issue and the jury’s answer thereto are as follows:

“Do you find from a preponderance of the evidence that the defendant, B. P. Tankersley, and those under whom he claims either in person or by and through their tenants, have had and held the peaceable and adverse possession by actual en■closure thereof, of the land in controversy ■in this suit, cultivating-, using, or enjoying ■the same, under a claim of ownership, con■tinuously for any consecutive period of ten ■(10) years prior to the filing of this suit ■ on the 20th day of June, 1958? — Answer: .No.”

Judgment was rendered awarding title :and possession of the 36.3 acres to Mrs. Randal. Tankersley and Grossman have .appealed.

Appellants’ first point is that the court ■erred in refusing to disregard the jury’s answer to said issue because the evidence -conclusively established that Tankersley and those under whom he claims have had peaceable and adverse possession by actual • enclosure of the tract, cultivating, using and •enjoying the same, under a claim of owner- ■ ship, continuously for a period of ten years prior to the filing of this suit on the 20th ■of June, 1958, and that the undisputed evidence shows that McDonald and C. A. •Grossman, the latter being the immediate -predecessors in title of Tankersley, bad •such adverse possession for more than ten years prior to delivery of possession to Tankersley. Appellants’ second point is that said jury finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

Under said points appellants say that a portion of Section 122, which included the 36.3 acres in controversy, was sold by the State of Texas to Charles Randal on October 7, 1901, upon his application filed in the Land Office on September 12, 1901, for $1.00 per acre; that said land was classified as grazing land and, after due proof of occupancy and payment in full by Charles Randal, it was patented to Randal on March 31, 1936; that after it was sold to Randal, but before the patent was issued to him, Randal executed a quitclaim deed to D. M. Ellison covering the land in controversy and Ellison, on June 26, 1903, conveyed same to A. H. Jeter. They say it is not shown that Jeter or anyone claiming under him ever divested themselves of the property in controversy; that Charles Randal died testate and all of his property is now owned by his widow, Sallie Randal, who is the appellee. They point out that L. A. Webb testified that in 1905 or 1906 he helped his father, who worked for A. H. Jeter, build a fence along the river on the land in controversy; that the land in controversy and Jeter’s land in Section 103 were in one enclosure and there was no fence between Sections 103 and 122; that C. M. Randal, son of the plaintiff and Charles Randal, deceased, testified that originally the Randal’s west fence was along the section line between Sections 103 and 122, and that about 1900 his father, Charles Randal, built a fence along both banks of the river but that a fence remained between said sections; that C. M. Randal moved off the farm in 1904 and his father continued to run cattle on all of Section 122 until about 1915, since which time all of Section 122 has been continuously rented or leased by the Ran-dals; that he did not know whether the Randal tenants, except Fancher, who also leased the lands now owned by appellants in Section 103, ever actually ran cattle on the land in controversy; that he did not see the fence between Sections 103 and 122 from about 1908 until 1956, and that sometime between those years that fence disappeared; that Bowman testified that he moved on the Randal land in Sections 121 and 122 with his father in about 1925; that the west boundary of the Randal land was then the west line of Section 122; that there was then a fence on the line between Sections 122 and 103, as well as a fence on the river; that the fence was on the line between Sections 122 and 103 in 1933 and in 1951, but that it has since disappeared; that when he lived on the Randal land prior to 1933, J. M. Jeter owned the land in Section 103 west of the Randal land; that Harmon Hogue testified that he moved on the Randal land after Bowman left in 1933, and that there was then a fence on the line between Sections 122 and 103 but there was no fence on the river, except one which enclosed a few acres on the northwest corner; that in 1937, he helped Mr. Gross-man, who then owned land in Section 103, repair the section line fence because Gross-man’s cattle wére getting out and coming on his place east of the river; that he had a fence on the east side of the river and did not use the land on the west side of the' river; that A. H. Jeter and wife, who in 1903 acquired land in Section 103, died prior to 1917 and in 1917 the property adjoining the land in controversy on the west was conveyed to J. M. Jeter; that J. M. Jeter testified that when he acquired the land west of the river in Section 103 there was a fence which pretty well followed the river bank; that in 1927, J. M. Jeter and wife executed a trustee’s deed to portions of Section 103 adjoining the land in controversy and that the land covered by said deed of trust was sold to Mrs. Kate Liles at a Trustee’s Sale in 1930; that in 1934 C. H. McDonald and C. A. Grossman, one of the appellants, were conveyed the J. M. Jeter land and the Kate Liles’ land, all of which is in Section 103 and adjoins the land in controversy on the west, and that in 1942 McDonald sold his interest to Grossman; that Grossman testified that, while he had the land in Section 103, the strip of land in controversy was fenced in with other lands in Section 103 and there was no fence between Sections 122 and 103; that on July 9, 1949, Grossman executed and delivered to B. P. Tankersley a deed conveying all the surface and one-half of the minerals in a portion of Section 103 which adjoins the land in controversy on its west; that Tank-ersley testified that before purchasing Grossman’s land in Section 103, he walked over the land and there was a fence along the river but none dividing Sections 103 and 122; that J. M. Jeter testified that his father and Charles Randal had some kind of agreement about the land in controversy and that he knew the Randals owned some land in Grossman’s pasture west of the river but that when he sold his land in Section 103 to Grossman and McDonald he didn’t tell them anything about anyone owning land within his fences; that Grossman testified that he and McDonald and later he alone ran cattle on the west side of the river on the property in controversy; that the fence along the river bank was capable of turning cattle and that he repaired the river fence and was never told that anyone owned any land in his pasture and he had never heard of such a claim until this suit was filed in 1958, which was after he sold his land to Tankersley. Appellants admit that the Randals have always paid the taxes on the land in controversy.

From the foregoing, appellants conclude that it is undisputed that there has been and still is a fence along the river on the east side of the land in controversy; that said land was enclosed by a fence with land in Section 103 now owned by Tankersley, and that the fence was capable of turning-cattle; that those who have owned that portion of Section 103 adjoining the land in controversy on the west, or their tenants, have used and occupied the 36.3 acres in controversy for grazing purposes since 1915; that Grossman and McDonald used and claimed it from 1934 until 1949 and that there was privity of possession of the-36.3 acre tract between such former owners- and their successors. From which appellants conclude that the evidence established their title to the 36.3 acres under the ten year statute of limitation or, in the alternative, that the jury finding to the contrary is against the great preponderance of the-evidence.

The appellee says that the evidence merely raised an issue of fact as to appellants’' limitation title. In her brief, appellee discusses the testimony pointed out by appellants but stresses the following as showing-that appellants did not conclusively establish limitation title and that the finding-against them is not contrary to the overwhelming weight and preponderance of the evidence. She points out that Bowman testified that he lived on the Randal land, including Section 122, of which the 36.3 acres - is a part, from 1925 to 1933; that his father rented the farm land and leased the-pasture land from the Randals and that-when-he moved there was a fence between. Sections 103 and 122 and the Randals were running cattle on all of Section 122; that there was also a fence along the river; that after 1933, he next saw the 36.3 acres in 1951, and there was still a fence on the section line but that he went back there about three years before the trial and the stays and corner markers were gone; that Hogue testified that he moved on the Randal land after Bowman left and a fence was then between Sections 122 and 103; that in 1937, he and Grossman repaired that fence; that when he left the Randal ranch in 1942 he thought that fence was still there. She points out evidence that the Randals ran cattle on all the Randal land, in Sections 121 and 122, including that in dispute, when they first moved there in 1898, and that ever since they left the ranch they have leased the 36.3 acres in dispute with the rest of their land; that there is no water on the 36.3acre tract; that the Randals leased it along with other land for oil and gas development ; that they executed an easement thereon in favor of the Sun Oil Company so that it could get to the Tankersley land to drill an oil well; that Tankersley gave .Sun an easement but that it did not cover .any of Section 122; that on November 7, 1950, Tankersley and Grossman leased their .307.68 acres in Section 103 to the Sun Oil •Company and that lease did not purport to •cover any part of Section 122; that Dr. Charles Randal has had the land in dispute 'leased, along with the remainder of Section 122, since 1956; that it is undisputed that the Randal family has always paid the taxes on the 36.3 acres; that Grossman paid taxes on the land his deeds called for but he never rendered or paid taxes on the .36.3 acres; that Jeter never rendered or paid taxes on it and that Tankersley has never rendered or paid taxes on the land in dispute. Although denied by Tankersley, •C. M. Randal testified that in the latter part •of 1949, or the first part of 1950, Tankersley admitted that the Randals owned some land *‘over there” and that both of them said they would like to have the land surveyed. In none of the conveyances affecting Tank-•ersley’s 307.68 acres in Section 103, is there any reference to the 36.3 acres in dispute. When J. M. Jeter sold land in Section 103 to McDonald and Grossman, according to Jeter, he sold only the land his deed described ; that he knew someone owned some land in Section 122 which was enclosed in his pasture and he thought it was the Ran-dals; that his daddy and Mr. Randal were good friends.

Although Grossman and Tankersley testified that they claimed the land “from fence to fence” neither testified to assertion of any claim to the land in dispute until about the time this suit was filed, or to any facts evidencing it, or offered any evidence tending to prove such a claim, except such as might be evidenced by having it enclosed by a fence with Section 103. Appellee says that there was no privity of possession of the disputed tract; that there is nothing in the record to show that the claim of the earlier possessors was transferred to the later occupants by contract, or otherwise, and that privity was not established; that mere occupancy by different persons is not sufficient. The court charged the jury that privity of estate existed between successive occupants or possessors of the land when the earlier occupants’ possession and claim passed, or was transferred, to the later occupants in an unbroken chain, by agreement, gift, devise or inheritance. Appel-lee says that the evidence failed to establish privity of estate. We are forced to the conclusion that privity was not established. Jeter, who sold to McDonald and Gross-man, testified that he never claimed the 36.3acres; that he did not sell the 36.3 acres to them and that he did not sell them any possessory rights he might have acquired by the 36.3 acres being within his fence; that he just sold Grossman and McDonald tire land their deed described, all of which was in Section 103 and did not include the 36.3 acres in Section 122. Nor was it conclusively established that McDonald and Grossman, the latter being Tankersley’s vendor, adversely claimed the 36.3acre tract or transferred such claim. Randal’s testimony indicates that after Tankersley purchased from Grossman land in Section 103, Tankersley acquiesced in Randal’s claim of ownership of land in his enclosure and that later, when Tankersley assumed a different attitude, Grossman told Randal he would talk to Tankersley and get him to change from his then asserted claim to all the land within his fence. If a claim of ownership of the 36.3 acres by Tankers-ley or his predecessors in title for 10 consecutive years before the filing of this suit in 1958 was established, it had to be the claims of McDonald and Grossman. We cannot say that the record conclusively shows that they adversely claimed the disputed tract for the requisite period. As to that, the minds of reasonable men can certainly differ. We think the jury finding is not contrary to the overwhelming weight and preponderance of the evidence.

We concur with appellee’s contention that appellants’ testimony that they claim the land from fence to fence concerns a mental process or opinion which does not evidence an open, visible act manifesting an intention to claim the land adversely. Ap-pellee quotes, as applicable to this situation the following from Delany v. Padgett, 5 Cir., 193 F.2d 806, 810.

“These same authorities do, though, make it perfectly clear that the claim of right referred to in the statutes means a bold and open, a downright and persistent claim asserted not furtively by stealth and artifice, but openly, notoriously, unequivocally, adversely and continuously. Because this is so, the decisions under these statutes take pains to leave in no doubt that if there is any break or chink in the armor of proof which a possessor must put and keep on when he undertakes to acquire a title by limitation, such as a single lisp of acknowledgment, the slightest uncertainty or equivocation in the openness and downrightness of his claim, a failure to comply precisely and exactly with the statutory provision, it is, and will be, fatal to the claim.”

C. M. Randal testified that his father built the river fence. Neither appellants nor those under whom they claim placed any improvements on the 36.3 acres. There is no water on it. Jeter didn’t claim' it. He didn’t convey any right he might have acquired by it being enclosed within the-same fence with his land in Section 103,. which he sold to Grossman and McDonald. Randal’s testimony alone raised an issue of fact as to Grossman’s and Tankersley’s adverse claim of the disputed tract for the requisite time. In a suit for title to a tract of land which is not included in the description of the purchased property, but is claimed by adverse possession, possession of the-claimant cannot be tacked to that of his-predecessor in title to prove possession- for the statutory period unless his predecessor claimed the land and transferred such claim. Art. 5516; Overton Refining Co. v. Harmon, Tex.Civ.App., 81 S.W.2d 207, affirmed 130 Tex. 365, 110 S.W.2d 555, 557; Miller v. Roberson, Tex.Civ.App., 165 S.W.2d 469 (Writ Ref.); Cauble v. Halbert, Tex.Civ.App., 254 S.W. 407; Pierce v. Camp, Tex.Civ.App., 30 S.W.2d 807 (Writ Ref.); 2 Tex.Jur.2d 154, 155.

Appellants’ remaining points are to the-effect that no issue was submitted to the jury as to plaintiff’s title to the 36.3 acres- and none was requested; that record title-was her only ground of recovery and, since-it was not conclusively established, it was-waived and, therefore, judgment should have been rendered for appellants. Appellants say that the portion of Section 122' which included the 36.3 acre tract was awarded to Charles Randal on October 7, 1901, upon his application filed in the Land' Office on September 12, 1901, said land being classified as grazing land, but that after it was sold to Charles Randal and before the patent was issued to him, Randal executed a quitclaim deed dated May 30, 1903,. to D. M. Ellison covering the land in controversy; that in June, 1903, Ellison conveyed the same land to A. H. Jeter; that said deeds were recorded in Baylor County but were not recorded in the General Laud Office; that there is no conveyance ■of record showing that A. H. Jeter, or any ■ one claiming under him, divested himself ■ of the land in controversy and, therefore, the evidence fails to show title in the Ran- • dals or that, at least, a question of fact was raised as to Mrs. Randal’s title and, therefore, judgment should have been rendered •for appellants.

Appellee replies that record title to the 36.3 acres was conclusively established in her and, therefore, she was entitled to judgment, unless her title was defeated by the defendants’ claim of title under the ten year statute of limitation. Appellee says it is undisputed that her husband, Charles Randal paid for the land and the State issued a patent to him; that appellee is the sole beneficiary of Charles Randal’s will, by virtue of which she became the owner of the land in fee simple. The record shows that Charles Randal filed in the Land Office on September 12, 1901, an application to purchase a tract of land that includes the 36.3 acre tract; that it was classified as grazing land and purchased as an addition to his home on Section 121; that on February 7, 1908, Randal made proof of occupancy by an affidavit which recited that he was the owner and had been an actual settler with his family, in good faith, making his home on said land from December 8, 1898, until October IS, 1904; that after his proof of occupancy was filed in the Land ■Office in 1908, he conveyed to Wall 40 acres out of said tract; that a certified copy of that conveyance was filed in the Land Office in 1910, and the land conveyed by said deed was taken out of the original sale to Randal and set up in a separate account in Wall’s name; that there remained in Randal’s name in the Land Office, under the applicable file, all of said tract except said 40 acres; that A. D. Kerr, the Baylor County surveyor, surveyed and compiled field notes showing Randal’s purchase to consist of 131 acres; that before Randal made proof of occupancy in February, 1908, that is, on May 30, 1903, Charles Randal quitclaimed to D. M. Ellison 80 acres which included the 36.3 acre tract. This quitclaim deed was filed for record in Baylor County in June, 1903. The consideration recited in said deed was $25.00 and the grantee’s assumption and agreement to pay and fully discharge the balance due the State. The conveyance to Ellison was never filed in the Land Office. Thereafter, Ellison quitclaim-ed the same land to A. H. Jeter. This deed was not filed in the Land Office. It is undisputed that Randal paid the State in full for the 131 acres, including the 80 acres quitclaimed to Ellison on March 20, 1936, and that a patent therefor was issued to Randal on March 31, 1936. The 36.3 acres in controversy is a part of this 80 acre tract. The statutes in effect at said time contemplated that a sale of public free school lands should be made only to those purchasing for a home who were actual settlers thereon and who otherwise complied with the law. The Acts of the 24th Legislature, General Laws of Texas, 1895 (Gammel’s Vol. 10, pages 793, 795, 796), set out the procedure to be followed when any part of the purchased land was sold. All purchasers were required to reside upon the land, as a home, for three consecutive years, next succeeding the date of purchase. They were required to make proof of occupancy. A subsequent vendee was required to file his own obligation with the Commissioner of the General Land Office, together with a duly authenticated conveyance from the original purchaser, and any intermediate vendee’s conveyance. The law provided that when such provisions had been complied with, the obligation of the original purchaser would be surrendered and his vendee would thereupon become the purchaser direct from the State and -be subject to all the obligations and penalties prescribed by the statute and that the original purchaser should be absolved from further liability. In Hardman v. Crawford, 95 Tex. 193, 66 S.W. 206, 208, the Supreme Court said that

“ * * * the state allows an actual settler to be substituted by another with the same qualifications, and performing the same duties, but there is no provision by which land once sold to and occupied by an actual settler can be transferred, before the expiration of three years’ occupancy, to another person, unless the state at the same time acquires another actual settler in place of the one that is released.”

See also Eriksen v. McWhorter, 108 Tex. 390, 194 S.W. 588; Dugat v. Means, Tex.Civ.App., 91 S.W. 363 (Writ Ref.). The requisite three years’ occupancy had not been completed when Randal quitclaimed the 80 acres to Ellison. Neither Ellison nor Jeter were actual settlers on the land in dispute, neither filed with the Commissioner the required obligations, authenticated conveyances or proof of occupancy; they failed to comply with the statute and Randal remained indebted to the State as the criginal settler and purchaser. The failure of Ellison and Jeter to comply with the statutes was fatal to any claim they had to the land in controversy. In Spence v. Dawson, 96 Tex. 43, 70 S.W. 73, 74, the court in holding that Franklin, the vendee of a purchaser from the State, did not get title by his deed, said

“But the evident legislative policy has been to sell the lands to actual occupants, and thereby secure the settlement of the country, and a consequent enhancement in value of the lands unsold, and therefore it can hardly be said that such policy may not have actuated the legislature in limiting the right of purchasers to sell their lands to actual settlers. But however difficult it may be to see a reason for the restriction, we think the provisions of the statute are so definitely expressed as to leave no doubt as to what was intended by them. For the reason that, when Franklin took a conveyance of section 6 from Taylor, he did not settle upon that' section, and did not otherwise comply with the provisions of the statute already quoted, we conclude that he acquired no title by virtue of that conveyance.”

It is not contended that either Ellison or Jeter were actual settlers on the land or that they complied with the statutory requirements regulating a purchase of public school land from the original purchaser from the State. The provisions of the validating act did not apply to them. We conclude that neither Ellison or Jeter acquired title to the land in controversy by his deed. There is no contention that as substitute purchasers they complied with the statutory requirements. See Payne v. Cox, Tex.Civ.App., 143 S.W. 336, affirmed 107 Tex. 115, 174 S.W. 817.

Appellants contend that the Legislature validated A. H. Jeter’s title to the disputed tract by the Acts of the 35th Legislature, 1917, Chapter 95, Page 255. That statute assumed that land purchased from the State has been properly transferred in the Land Office from the original purchaser to his vendee and that the assignee has complied with all requirements regulating the sale of public school lands to a substitute purchaser. Under the statute, the substituted purchaser had to file his transfer in the General Land Office, together with his affidavit and purchase money obligation and become the purchaser from the State. Randal’s conveyance to Ellison and Ellison’s to Jeter did not vest in said grantees any title to the land that would support an action to recover it, but merely gave the right to apply for purchase of the land upon the conditions stated in the statute. The validating statute applied to .an assignee who was eligible to purchase public school land, who actually settled on the land and timely made payment to the State. Neither Ellison nor Jeter complied with the law governing substitute purchasers, nor the requirements of the validating statute. Neither was shown to be a qualified purchaser and actual occupant. They did not pay the State for the land. They did not pay taxes thereon. Randal, the original purchaser, completed the requisite occupancy after such conveyances, paid the State for the land, paid the taxes thereon and it was patented to him in 1936. We conclude that record title was established in Mrs. Randal. The judgment is affirmed.


author: RENFRO, Justice.

text:
    H. Carl VANDERVOORT, Jr., Appellant, v. Lyman S. BREWSTER, Appellee.
    No. 16362.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 2, 1962.
    Rehearing Denied Nov. 30, 1962.
    Garrett & Garrett, and John C. Andrews, Fort Worth, for appellant.
    Fannin & Fannin, and Oliver W. Fannin, Fort Worth, for appellee.
   RENFRO, Justice.

The plaintiff Vandervoort agreed to sell and the defendant Brewster agreed to buy 47½ per cent, or a total of 4,750 shares, of the stock of Green Feeds Company, Incorporated. The defendant paid $5,000 cash and agreed to pay the remaining $45,000 of the purchase price within 60 days.

The contract was dated April 9, 1958. The $45,000 payment was not made by defendant.

On February 1, 1960, plaintiff brought suit against defendant for specific performance.

The question on appeal is whether the trial court, in a summary judgment proceeding, was correct in holding "there is no genuine issue as to any material fact; that under the admitted facts plaintiff by his conduct has precluded himself from a right to specific performance of the contract; and that defendant is entitled to judgment as a matter of law * *

The plaintiff contends that there was a fact question as to whether plaintiff’s conduct with respect to the stock after defendant’s default was reasonable under the circumstances then existing.

We are concerned only with the question of whether plaintiff was entitled to specific performance, and not with any other remedy, if any, he might have had.

The Green Feeds Company, Inc., was incorporated March 15, 1957. At the time of incorporation plaintiff acquired 47½ per cent of the stock, and it was this 47½ per cent he contracted to sell to defendant. Plaintiff was vice president of the corporation, and was one of the three members of the Board of Directors.

On October 2, 1958, the plaintiff, with the other directors, passed a resolution recommending to the shareholders that certain of the assets of Green Feeds be sold to Hydroponics, Inc.

On October 24, 1958, plaintiff, along with the other shareholders, approved the sale to Hydroponics, Inc. On the same day a special meeting of the directors (of which plaintiff was one) authorized the officers to execute the sales contract with Hydroponics, Inc.

The sales contract provided in part that after the sale was consummated “the undersigned, being owners of all corporate stock of Green Feeds” would commence liquidation of the Company and would dissolve the corporation. In paragraph VI of the contract the officers and shareholders agreed to refrain from competing with Hydroponics, Inc., and stated that officers and shareholders joined in the agreement individually. In paragraph VII the officers and shareholders agreed not to divulge trade secrets, etc.

The sale to Hydroponics was consummated November 1, 1958. The “undersigned” mentioned in the sales contract included plaintiff.

All, or practically all, of the assets of Green Feeds were sold to Hydroponics, Inc. After such sale the stock of Green Feeds was worthless.

In a deposition taken on the 7th of September, 1960, plaintiff testified he still owned the 47½ per cent of the stock of Green Feeds.

Green Feeds did no business after the sale of the assets to Hydroponics, Inc.

Green Feeds forfeited its right to do-business on January 2, 1959, for failure to-pay franchise taxes, and on November 17,. 1959, its charter was forfeited.

The sale of the assets of Green Feeds and" the forfeiture of its charter occurred priorto the institution of suit by plaintiff against defendant for specific performance.

In Kluck v. Leuschner, Tex.Civ.App., 70 S.W.2d 768, writ refused, it was held thatt a vendor who intends to insist upon a specific performance must at all times deal! with the property in a manner consistent:' with a sale thereof to his vendee; that he-cannot treat the property as his own and, deal with it in a manner inconsistent with' such sale.

The rule is stated in 37A Tex.Jur., p. 604,. § 295, to be “If he (the seller) has placed' any portion of the property beyond his power to so deliver he is not entitled to the contract price, for he has himself, in such an-instance, departed from the terms of the contract, and is in no attitude to demand! full performance by the vendee.”

In order to prosecute a suit for specific performance it was incumbent upon: plaintiff to hold or retain the stock for the-defendant. Mulherin v. Brown, Tex.Civ.App., 289 S.W.2d 609.

Subsequent to the date defendant' had agreed to pay the balance due for the stock, the plaintiff, as a stockholder as well' as an officer of Green Feeds, voted to sell' the assets of the company, and consummated said sale. There is no indication in the minutes of Green Feeds, or elsewhere, that plaintiff was acting for any one, in so far' as the 47½ per cent of the shares in question are concerned, other than himself. He, as a principal stockholder, fulfilled the Green Feeds’ promise to Hydroponics, Inc., to dissolve the company by allowing the forfeiture of the charter of Green Feeds by failure to pay franchise taxes. According to his own testimony he still “owned” the stock in question even after he brought the specific performance suit

Plaintiff's dealings with the stock, after defendant’s failure to perform, were not consistent with a sale thereof to defendant. He treated the stock as his own and dealt with it in a manner inconsistent with a sale to defendant.

We agree with the trial court that plaintiff precluded himself from a right to specific performance.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    Fred GOSSETT, Appellant, v. LOCAL UNION NO. 185 et al., Appellees.
    No. 13997.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 17, 1962.
    Rehearing Denied Nov. 14, 1962.
    Bryan Wingo, Corpus Christi, for appellant.
    Edward Anderson, William H. Shireman, Walter Groce, Corpus Christi, for ap-pellees.
   MURRAY, Chief Justice.

This suit was instituted by Fred Gossett against Local Union No. 185 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, hereinafter called Local Union No. 185, and Richard E. Skinner, the duly elected business representative of said Local Union No. 185, seeking to recover actual and exemplary damages suffered by plaintiff because of alleged acts of discrimination which prevented plaintiff from pursuing his trade as. a Member of Local Union No. 185.

Thereafter, the defendants, Skinner and Local Union No. 185, filed a plea to the jurisdiction of the court, alleging that “this suit concerns the exercise of collective bargaining rights and the administration of National Collective Bargaining Agreements arrived at through the exercise of the rights guaranteed to employees who are employed by employers engaged in interstate commerce or whose activities affect commerce within the meaning of the Labor Management Relations Act, 29 U.S.C.A., § 151 et seq., and that said Act provides for exclusive Federal Jurisdiction in the application and administration of same.” After a hearing at which evidence was introduced this plea was overruled by the trial court.

Thereafter defendants filed an alleged motion for a summary judgment in which they again set up the lack of jurisdiction of the State Court to try and dispose of the matters presented by this suit. They attached to this motion an affidavit showing that an application and petition for an advisory opinion had been transmitted to the National Labor Relations Board, and that an advisory opinion had been received. Both the petition and advisory opinion are attached to this affidavit. After a hearing on the so-called motion for summary judgment, the 117th District Court of Nueces County rendered judgment to the effect that it did not have jurisdiction of this suit and dismissed the cause. Fred Grossett prosecuted this appeal from the judgment of dismissal.

Appellant timely filed the transcript in this Court, but no statement of facts. On April 30, 1962, some seventy-nine days after the judgment was rendered, appellant filed a motion asking for an extension of time within which to file the statement of facts. This motion came too late and was overruled by this Court. Rule 386, Texas Rules of Civil P.; Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587. Thus this appeal must be considered without the benefit of a statement of facts.

It has been said that a statement of facts is not required in a summary judgment proceeding, but this case is not a true summary judgment proceeding, it is nothing more than a further hearing of a plea in abatement. In McDonald, Texas Civil Practice, 1962 Cumulative Supplement to Vol. 4, § 17.26.1, p. 33, we find the following statement:

“(I) On the whole case. The circumstances in which the court properly may grant summary judgment can be succinctly stated in abstract terms, but the application to particular actions frequently requires careful analysis. The summary judgment practice looks to a decision upon the merits of the action, and hence is not an appropriate vehicle for testing questions which normally arise on pleas in abatement and are concerned with the procedural right to maintain the action. Summary judgment disposing of the entire action upon the merits is proper when, but only when, the trial court, on motion therefor, is satisfied that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’

The trial court here did not render a judgment on the merits of the case, but, as is shown by the judgment entered, dismissed the cause for want of jurisdiction. The judgment in part reads as follows:

“ * * * and it appearing to the Court that such motion has been made in proper time and form, * * * and that the parties through their respective attorneys of record are personally present and before the Court for a hearing on such motion; and if further appearing that the said motion is accompanied by an affidavit; and the Court having considered the pleadings, the testimony, evidence and stipulations contained in the Court Reporter’s Transcript of the hearing on the Plea to the Jurisdiction, depositions on file, together with the affidavit, and finding that they show an absence of a genuine issue of any material fact upon the question that this Court is without jurisdiction to adjudicate the claim of plaintiff as declared upon in his second amended original petition, and that this summary judgment should be granted for the defendants said Local Union No. 185 and Richard E. Skinner who are entitled thereto as a matter of law.
“It is accordingly ORDERED, ADJUDGED AND DECREED, that this cause be, and the same is hereby dismissed from the docket of this Court.” (Emphasis ours.)

See, Forest Park Properties of Arlington, Inc. v. Padgett, Tex.Civ.App., 323 S.W.2d 320.

Looking beyond the label given the proceeding herein, and considering substance rather than form, the so-called “Motion for Summary Judgment” was nothing more than a re-presentment of appellees’ plea in abatement.

Inasmuch as the trial court expressly states in its judgment that it considered, among other things, “the testimony, evidence and stipulations contained in the Court Reporter’s Transcript of the hearing on the Plea to the Jurisdiction, depositions on file, together with the affidavit,” we cannot consider the questions raised by appellant, in the absence of a statement of facts. In the absence of a statement of facts, we are unable to ascertain whether or not appellant was (1) a member in good standing of Local Union 185 at the pertinent times involved; (2) whether he exhausted his remedies within the Union, in accordance with the constitution and by-laws of the Union; (3) whether he proceeded under the constitution and by-laws of the Local Union, and if so what action it took on his complaint and perhaps other questions relating to the jurisdiction of the 117th District Court of Nueces County to hear this cause.

In arriving at our decision herein, we have assumed, without deciding, that this cause does not present matters over which the National Labor Relations Board would have exclusive jurisdiction. See United Ass’n. of Journeymen and Apprentices of Plumbing and Pipefitting Industry of U. S. and Canada v. Borden, 160 Tex. 203, 328 S. W.2d 739. Independent of this question, in the absence of a statement of facts, we have decided that the judgment of the trial court cannot be set aside.

The judgment is affirmed.