text:
    INTERSTATE CIRCUIT, INC., et al., Appellants, v. PINE FOREST COUNTRY CLUB, Appellee.
    No. 14910.
    Court of Civil Appeals of Texas. Houston.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.
    Johnson, Bromberg, Leeds & Riggs, Dallas, and Presley E. Werlein, Jr., Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Wm. R. Hoge, Jr., and Dan Matthews, Houston, and L. Keith Simmer, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is a class suit against numerous defendants, including appellants, to remove the cloud on appellee’s title to certain real estate created by recitations in its deed restricting the use of said tract to country club or residential use only. Appellee contended that the covenants were not part of a general plan or scheme involving the lands of appellants, but were personal to the grantor in the deed, who had conveyed the right to enforce the covenants to ap-pellee. The trial court set aside the verdict of a jury and rendered a judgment for appellee sustaining this contention.

The Garden Oaks Company purchased 747.229 acres out of the S. W. Allen Survey in Harris County, Texas, and received a deed dated March 3, 1937. Subsequent to said date the Garden Oaks Company platted residential subdivisions designated as Garden Oaks, Sections 1 through 5. Each subdivision was separately platted and the land area included in each plat, described by metes and bounds, was subjected to certain restrictive covenants. Each instrument of dedication and restriction included the following language: “This instrument of dedication relates to and affects the above described property and shall not affect other property not herein described.” No over-all plat of the entire tract was prepared or filed for record. The plats adopted by the Company for the individual residential subdivisions showed adjacent land, not then platted, as “acreage” or “unrestricted”.

Thereafter portions of the original 747.-229 acre tract, including a 24 acre tract, were conveyed wtihout restrictions as to use, leaving the Garden Oaks Company a tract of approximately 165 acres and a few scattered lots in the residential subdivisions. By deed dated December 7, 1945, the Company conveyed to appellee 140.023 acres out of the 165 acre tract. The deed of conveyance contained the following provisions:

“This deed is executed and accepted with the understanding that the property above described is hereby and shall remain restricted for the time hereinafter provided so that same may only be used for purposes as follows:
(a) As a country club and golf course on which may be constructed club houses, a golf course, Swimming pool, tennis courts, play grounds and other improvements suitable for and designed for use of said property as a country club; (b) Said property may also be subdivided and platted as a residential subdivision similar to the platting of Garden Oaks Sec. 2 out of the S. W. Allen survey in which event streets shall be dedicated and the property shall thereafter be used in accordance with and conveyed subject to residential restrictions which shall conform with restrictions then in force against Garden Oaks sec. 2 and with similar easements, (c) The foregoing restrictions shall be deemed covenants running with the land and shall continue in force for the duration of the restrictions applicable to Garden Oaks Sec. 2 as originally restricted and as same may from time to time hereafter be extended. Provided nevertheless grantee shall have the right to exchange any portion of said property fronting on Yale Street and extending back from said street not to exceed five hundred (500) feet free from the above restrictions, for other property adjacent to the property hereby conveyed.
Provided such other property is subject to and charged with the foregoing restrictions, and provided grantor shall not be required to release said property until grantee has acquired good title to property taken in exchange and has executed a deed of trust thereon to further secure the above mentioned note. To have and to hold the above described property and premises together with all rights and appurtenances thereto in anywise belonging subject to the restrictions aforesaid unto the said Pine Forest Country Club its successors and assigns forever. And Garden Oaks Co. hereby binds itself, its successors and assigns to warrant and forever defend all and singular the said property and premises subject to restrictions, easements, and covenants herein-above set out, unto the said Pine Forest Country Club, its successors and assigns against the lawful claims and demands of any and all persons whomsoever lawfully claiming or to claim the same or any part thereof.”

After such conveyance Garden Oaks Company retained approximately 25 acres lying immediately to the west of said property and running the full length of the property, the east line of said tract being described in appellee’s deed as its west line.

Subsequent to the conveyance to Pine Forest Country Club, Garden Oaks Company, or its successors, conveyed portions of the 25 acre tract to St. Matthews Methodist Church, Corrigan-Houston, Inc., Interstate Circuit, Inc., and made a long-term lease of the remaining 13 acres to Sears, Roebuck and Company.

The residential restrictions placed on Garden Oaks, Section 2, are still in full force and effect. This Section lies across North Shepherd Drive from the 25 acre tract, and is near, but not contiguous with, the Pine Forest Country Club tract. The Garden Oaks Company had sold most, but not all, of the lots in Section 2 at the time of the sale to the Pine Forest Country Club.

In answer to the issues submitted, the jury (1) failed to find changed conditions in the area of the country club, but (2) found that there was a general plan or scheme for the development of the country club property and the adjacent property to the west along North Shepherd Drive, and (3) that Garden Oaks Company placed restrictions on the use of the Pine Forest Country Club property for the purpose of increasing the value of the commercial property owned by it to the west of the country club tract along North Shepherd Drive and that Corrigan-Houston and Interstate Circuit, Inc. purchased their property from the successors of Garden Oaks Company relying on the restricted use of the Pine Forest Country Club property.

The problem in this case is that of determining whether anyone other than Garden Oaks Company and its successors has a right to enforce the restrictions on use contained in the deed from the Garden Oaks Company to the Pine Forest Country Club. If the Garden Oaks Company established a general plan for the development of the 165 acres which had not been platted at the time of the sale to the Pine Forest Country Club, and the sale to the club was made with reference to the plan, or if the club had knowledge or notice of the general plan at the time of its purchase, the restrictions as to use can be enforced by subsequent purchasers of other tracts of land included within the general plan. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922).

The jury found that there was a general plan for the development of this tract of land. There is no finding that the Pine Forest Country Club knew of the plan or were charged with notice of such a plan. No plat of the area was ever prepared. The property conveyed to the club was described by metes and bounds. The deed made no mention of the 25 acres adjacent to the land conveyed, the ownership of which remained in grantor. The fact that restrictions as to use were imposed on the land conveyed, in the absence of similar restrictions on the land retained, would not be evidence of a general plan. There is no mutual benefit between the vendor and the vendee. Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.—El Paso 1914); Green v. Gerner, 289 S.W. 999 (Tex.Com.App.1927); Pierson v. Canfield, 272 S.W. 231 (Tex.Civ.App.—Dallas 1925).

Had there been any evidence to warrant the submission of the issue on general plan to the jury, the trial court could not have disregarded the answer made by the jury merely because there was not sufficient evidence to support it. Wilderspin v. Bewley Mills, Inc., 298 S.W.2d 636 (Tex.Civ.App.—Ft. Worth 1957, writ ref., n. r. e.).

We find no evidence to support the finding of the jury on this issue. The trial court did not err in disregarding the finding that there was a general plan for the development of the area included in the Pine Forest Country Club tract and the 25 acre tract retained by the Garden Oaks Company.

Appellant contends that Garden Oaks placed the restrictions on the country club property for the benefit of the adjacent property owned by it, and that as subsequent grantees of portions of this property they are entitled to enforce such restrictions.

The pertinent general rule is stated in McNichol v. Townsend, 73 N.J.Eq. 276, 67 A. 938 (1907), as follows:

“One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. In such case, a subsequent purchaser of all or a part of the remaining land for the benefit of which the stipulation was made may in equity enforce the observance of the stipulation against the prior grantee upon the principle that the rights created by such a stipulation are transferable as part of the land to which they are attached (Coudert v. Sayre, 46 N.J.Eq. 386, 393, 19 Atl. 190), and such subsequent purchaser may in equity enforce the stipulation against a person who holds title under the prior purchaser, who has acquired title with notice of the restriction, upon the principle which prevents a party having knowledge of the just rights of another from defeating such rights (Brewer v. Marshall, 19 N.J. Eq. 537, 542, 97 Am.Dec. 679). As no privity exists between the subsequent purchaser from the common grantor and the original grantee or the persons holding under him, the right of action is necessarily dependent upon the existence of the fact that the stipulation was originally made for the benefit of the remaining land of the common grantor. ⅜ * *»

In Ridley v. Haiman, 164 Tenn. 239, 47 S.W.2d 750 (1932), the court said:

“Whether a person not a party to a deed containing a restrictive covenant is entitled to enforce that covenant depends upon the intention of those who were parties thereto. A grantor has a right to impose such legal restrictions as he desires upon the property he aliens. The grantee, of course, must be apprized of the grantor’s intention. The intention of the parties is to be gathered, not alone from the written contract, but, when that instrument is indefinite, such intention is to be gathered from the circumstances of the case. * * * ”

On the other hand, the courts of California hold that the intention of the grantor and the grantee must be ascertained from the language of the deed and that such intention cannot be established by parol evidence. Werner v. Graham, 181 Cal. 174, 183 P. 945 (1919); McBride v. Freeman, 191 Cal. 152, 215 P. 678 (1923).

The rule stated in Lowell Institution for Savings v. City of Lowell, 153 Mass. 530, 27 N.E. 518 (1891), offers a guide line:

“ * * * an easement or servitude of this description ought not to be held to be imposed for the benefit of an adjacent lot of land, in the absence of any words in the grant itself implying it, unless the circumstances and situation at the time of the grant were such as to make it manifest that the condition or restriction or reservation was intended to be for the benefit of such adjacent lot, and to be annexed to it as an appurtenance. * * *»

In this case the court considered significant the fact that the deed containing the restrictive covenant did not provide that the covenant was imposed for the benefit of the adjacent land, and that the subsequent conveyance of the retained land did not recite the existence of the covenant for the benefit of the land conveyed.

An example of a covenant imposed for the benefit of land retained was cited in Hays v. St. Paul M. E. Church, 196 Ill. 633, 63 N.E. 1040 (1902), wherein the general rule was stated to be that where an owner sells a part of his premises and imposes a restriction on his purchaser by which the lands retained will be benefited, such a transaction is sufficient to show an intention that the restriction is for the benefit of the lands retained, and the grantor, or his subsequent grantee, can enforce it. In a case cited the deed provided that the premises sold were not to be used for saloon or dramshop purposes so long as the grantor owned a saloon building near by.

In McNichol v. Townsend, supra, the court stated that the adjudicated cases do not appear to recognize a presumption that covenants restricting the use of lands conveyed were entered into for the benefit of retained lands. The suggestion appears that there should be something in the deed defining the property which the covenant was intended to benefit.

The rule in Texas was first clearly enunciated in the leading case of Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.—El Paso 1914). There it was stated:

“Whether a person not a party to a restrictive covenant has the right to enforce it depends upon the intention of the parties in imposing it. This intention is to be ascertained from the language of the deed itself, construed in connection with the circumstances existing at the time it was executed. * * * ”

Hooper v. Lottman is generally cited as authoritative by the courts of Texas. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922); Goodman v. Bingle, 48 S.W.2d 432 (Tex.Civ.App.—Galveston 1932); Bein v. McPhaul, 357 S.W.2d 420 (Tex.Civ.App.—Amarillo 1962); Fleming v. Adams, 392 S.W.2d 491 (Tex.Civ.App.—Houston 1965).

In Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318 (1935), it was said:

“In every case where parties seek to enforce a restrictive covenant the burden of proof is upon them to establish that the covenant was imposed on defendant’s land for the benefit of land owned by them. It is also well settled that in the absence of proof that a restriction was imposed for the benefit of other land, it is construed as a personal covenant merely with the grantor. In many instances it is held that unless it is expressly shown in the conveyance itself that the restriction is imposed for the benefit of other land, or unless there is an obvious purpose to sell in accordance with the general plan, the covenant must be construed as merely a personal one. In any and all events in a case like the present one, where there is nothing to show that the grantor owned other lands and nothing whatever to disclose his purpose, or the mutual intention of the party, the covenant (if it is a covenant at all) must be construed to be purely a personal one with the grantor.” (Emphasis added.)

This language was quoted with approval in Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941, opinion adopted), where the court also said:

“As there was no general plan or scheme, and as Thomas H. Henderson at the time of his deed owned no property in Westfield A except Lot No. 23, it necessarily follows that at the most the restriction in the deed in question created only a personal covenant in favor of Thomas H. Henderson as appurtenant to the balance of said Lot No. 23. Such is the uniform holding. Davis v. Skipper, supra; Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38; Coughlin v. Barker, 46 Mo.App. 54; Werner v. Graham, 181 Cal. 174, 183 P. 945; St. Patrick’s, etc., Ass’n v. Hale, 227 Mass. 175, 116 N.E. 407; McNichol v. Townsend, 73 N.J.Eq. 276, 67 A. 938, 939; Berryman v. Hotel Savoy Co., 160 Cal. 559, 117 P. 677, 37 L.R.A.,N.S., 5; Annotation, 21 A.L.R., pages 1281, et seq.” (Emphasis added)

The court also stated:

“There is good authority for the proposition that a grantor having a right to enforce a covenant which is personal to himself as to a tract of land owned by him cannot confer such right on a third person except by express assignment. * * ⅜»

In Green v. Gerner, 289 S.W. 999 (Tex.Com.App.1927), the court said:

“Judged by their own terms, each of the deeds in question is intimate to the grantor and grantee therein named, and the restrictive language evidences an agreement between those parties in respect to future use of the particular lot therein described. There is in the deeds no evidence of covenants, conditions subsequent, or agreements with mutuality as between the various grantees, or as between any grantee and the vendor as representative of any other grantee. The liberty which belonged to the parties enabled them to contract as they saw fit in relation to a lot then being conveyed, and for aught that appears in the language of the deed the grantor retained the liberty to forego and waive the restrictive covenant or condition stipulated by him. * * * ” (Emphasis added.)

The case of Pierson v. Canfield, 272 S.W. 231 (Tex.Civ.App.—Dallas 1925, no writ hist.), said:

“ * * * It may be true that the coincidence of the execution of deeds, by the common grantor containing identical restrictions as to the use of the lots, shows that the common grantor had in mind a general plan, but the intent of the grantor alone cannot control, it requires the joint intent of grantor and grantee, and, as between them, the instrument, or instruments, exchanged and forming a part of the transaction constitute the final and exclusive evidence of the intent of the parties and of the covenants entered into.”

Citing Parsons v. Hunt, 98 Tex. 420, 84 S.W. 644, the court further held that the right to enforce the restrictive covenants in question, if it existed, constituted a servitude running with the land in favor of the lots owned by appellees and against the lot owned by appellant. The court held that such a servitude was an estate in land and could be created only by an instrument in writing and that the right to enjoy the benefits of such a servitude could be conveyed only by an instrument in writing. See Fleming v. Adams, 392 S.W.2d 491 (Tex.Civ.App.—Houston 1965, ref. n. r. e.).

There is nothing in the deed from Garden Oaks to Pine Forest Country Club which indicates an intention that the restrictions as to use were imposed for the benefit of the 25 acre tract which was free of restrictions. The only reference to other land is to Garden Oaks, Section 2. There is no express provision that the restrictions were imposed for the benefit of the owners of lots in this subdivision. With the exception of two unrestricted lots, all of the lots in this subdivision had been sold. Many of the lots were sold on contracts for deeds to be delivered on full payment of the purchase price. Garden Oaks may have had in mind the preservation of the value of its security. While this section was near the country club property, it was not adjacent thereto.

A portion of the retained tract had been leased for business uses prior to the sale to the country club. It may well have been the intention of Garden Oaks, at the time of the sale to the country club, to develop this tract for business purposes. There was no plat of which the country club had notice evidencing such an intent. The country club , was given the right to exchange a portion of the property purchased fronting Yale Street, free of restrictions, for other adjacent property, provided the restrictions were made applicable to the property received in exchange. While a business located on the Yale Street property would be some distance from the retained tract on Shepherd Drive, the fact that the use of a portion of the property for commercial purposes was permitted would suggest that the principal purpose of the restrictive covenant was to preserve the residential character of the area in the vicinity of the subdivisions developed by Garden Oaks, and in which it yet had a financial interest.

The covenants entered into with Garden Oaks by Pine Forest Country Club were either to use the property as a country club or to plat the property as a residential subdivision, in which event certain covenants restricting the use of the various lots were to be established and the lots were to be conveyed subject to such restrictions. These covenants could be enforced by Garden Oaks against Pine Forest Country Club, its successors or assigns. Nothing in the language used purports to authorize anyone other than Garden Oaks to require compliance with the covenants. There is nothing in the instruments by which Garden Oaks, or its successors, conveyed the property in Garden Oaks, Section 2, and the 25 acre tract to appellants indicating an intention to convey, or in fact conveying, to appellants the right to require Pine Forest Country Club to comply with the covenants in question. There is no language in any of these instruments which, when construed in light of the circumstances existing at the time of their execution, would operate to convey to appellants such a right.

There is nothing in the deed from Garden Oaks to Pine Forest Country Club, or in the circumstances under which the transaction was entered into, showing an intention on the part of Pine Forest that the obligation undertaken by it was for the benefit of the 25 acre tract, or that subsequent purchasers of portions of that tract would be authorized to enforce the covenants.

The trial court properly disregarded the findings of fact made by the jury since they are not sufficient to authorize a judgment for appellants. Assuming an intention on the part of Garden Oaks to restrict the property conveyed to Pine Forest County Club for the purpose of increasing the value of the 25 acre tract, and a purchase of portions of this tract by appellants relying on the continuance of the restricted use, in the absence of proof of an intention on the part of Pine Forest to subject its property to these restrictions for the benefit of this tract of land, appellants can acquire no rights as respects Pine Forest Country Club.

Since Garden Oaks and its successors made no conveyance in writing of its rights under the covenants to any of appellants and has now conveyed these rights to Pine Forest Country Club, the restrictions on ' the use of the property can no longer be enforced by anyone. Baker v. Henderson, supra; Pierson v. Canfield, supra.

The judgment of the trial court is affirmed.

WERLEIN, J., not participating.


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    SKINNER CORPORATION et al., Appellants, v. CALALLEN INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 283.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1966.
    Rehearing Denied Dec. 29, 1966.

      Sorrell, Anderson & Porter, Charles R. Porter, Jr., Corpus Christi, for appellants.
    Fischer, Wood, Burney & Nesbitt, Frank W. Nesbitt, Paul D. Little, Corpus Christi, for appellees.
   OPINION

GREEN, Chief Justice.

This appeal is from an order denying a temporary injunction in a suit brought by taxpayers to enjoin appellee school district and its officials from putting into effect an allegedly illegal, discriminatory and arbitrary tax program, and from taking steps to collect taxes from plaintiffs based on such program.

The Calallen Independent School District assesses and collects its own taxes. In the Fall of 1964, school district by written contract employed M. A. Cage to list, appraise and make an annual survey for the tax years 1965 and 1966 of all taxable properties within the district except oil, gas, utilities and industrial properties. The latter type were to be listed and appraised by Thos. Y. Pickett & Company, Inc. under the terms of a separate contract between such company and the school district. Appellants’ properties are of the type which were listed and appraised by Pickett.

In March, 1966, appellants, through their tax agents Ed Slavik and Carlton Meredith, submitted to the proper representatives of the district their sworn renditions of their properties within the district, containing valuations admittedly low so, as testified to by said agents, that they would be sure to receive notice to appear before the Equalization Board. At the May 16 meeting of said Board, Slavik and Meredith attended, and were able to reach an agreement with Pickett and the Board on the valuation of their taxable properties. However, they did not agree to the increase of the ratio of assessment from 60% to 70% that the school district had decided upon, and took exception to what they considered to be the omission from the assessment rolls of much personal property of the type which was to be listed and appraised by Cage. This latter type shall be referred to as “local personal properties”, the designation given it in the pleadings and evidence in the trial court.

Appellants filed this class action in the district court for themselves and all others similarly situated before appellee school district’s Board of Equalization had adjourned and its tax program placed into effect. Their request for relief by way of injunction and mandamus was based on allegations of an illegal, arbitrary and discriminatory scheme of taxation whereby certain categories of the local personal properties were intentionally omitted from the assessment rolls. They stated that such omissions caused appellants and others in their situation, i. e., whose taxable properties came within the classification of oil, gas, utilities or industrial properties listed and appraised for taxation by Pickett, to pay more than their just share of taxes. Pending final judgment on their request for permanent injunction and mandamus, they prayed (1) for a restraining order, and (2) for a temporary injunction restraining and enjoining appellees from performing various functions prerequisite to the assessment and collection of taxes, and to prevent appellees from implementing the procedure for the collection of taxes from plaintiffs under the allegedly arbitrary and discriminatory tax scheme. The restraining order was granted, but after a hearing before the court it was dissolved and the prayer for a temporary injunction was denied. This appeal followed such denial.

Appellees’ motion to dismiss the appeal because their tax program was fully implemented and put into effect after the restraining order was dissolved by the trial court is overruled. Appellants’ prayer for temporary relief which was denied by the court included the enjoining of appellees from attempting to collect from appellants taxes based on the alleged illegal and discriminatory scheme. There remain justiciable issues before this Court on the appeal.

Appellants’ first two points of error are based on their contention that the school district adopted a fundamentally and constitutionally erroneous plan or scheme of taxation that potentially damaged appellants in that a dual standard of assessing was employed, and that appellees failed and refused to equally assess all categories of taxable property, causing potential damage to appellants. Their complaint under these points appears to be that although (1) the agents of Thos. Y. Pickett & Company, Inc. in listing and appraising plaintiffs’ properties for taxation purposes made a complete and thorough personal inspection of their properties, not relying on rendition slips mailed to appellants for completion by them, thus assuring that all of appellants’ properties were listed, appraised, and made subject to taxation, (2) Cage, acting under his contract with school district, intentionally and with the knowledge and approval of the district adopted an illegal, arbitrary and discriminatory plan or scheme of listing and appraising the local personal property coming within his jurisdiction which permitted a large amount of such property, such as household furniture over the exemption value of $250.00, automobiles, boats and trailers, jewelry, cash and bank deposits, to be omitted from the assessment rolls, and thus to escape taxation; that as a result all categories of personal property were not assessed equally, causing discrimination against appellants; that if such omitted properties were properly assessed and taxed, it would not be necessary for district to increase the assessment rate from 60% to 70% of full value.

Appellants construe the testimony to establish as a matter of law the affirmative of both (1) and (2) above and contend that the trial court abused its discretion in denying the temporary injunction. As to (1), we agree that the evidence does not disclose any fault as to the methods used by Pickett’s agents, and all parties appear to be satisfied with his work. We shall therefore confine ourselves to a discussion of contention (2).

It is appellants’ position that the evidence established as a matter of law that a large amount of local personal property of the type coming within Cage’s contract was omitted from the tax assessment rolls as a result of the failure of Cage, acting as agent for the school district, to comply with the requirements as set forth in Title 122, Vernon’s Ann.Tex.Civ.St., and particularly Arts. 7145, 7147, 7161, and 7189, and his failure to make diligent efforts to search out and locate all taxable local property, relying instead almost entirely on voluntary renditions made by taxpayers on the rendition slips mailed to them. They contend that, according to undisputed evidence, such failures were a part of an illegal plan or scheme intentionally to omit such property from the rolls and permit same to escape taxation; that as the result of the dual system of listing and appraising personal property as between the methods used by Pickett and those used by Cage, the school district’s plan of taxation is not equal and uniform as required by Art. VIII, Sec. 1, Texas Constitution, Vernon’s Ann. St., and that appellants are discriminated against and have to bear more of the tax burden than they should.

We do not agree with appellants that the evidence established as a matter of law that Cage as the school district’s agent failed to make proper personal investigation and inquiry in locating and listing personal taxable property, or that there was any lack of due diligence on his part in listing and appraising property to be taxed, or that any taxable properties were omitted from the assessment rolls as the result of a preconceived arbitrary and discriminatory plan or scheme to omit certain types of taxable property from taxation. In addition to Cage, other witnesses including members of the Board of Trustees and of the Equalization Board testified that no property was deliberately left off the rolls, and that no one had ever suggested the omission of any property, and that there was no plan or scheme ever discussed to omit any class of personal property from being taxed. All of such witnesses testified that it was the plan of the district to tax all property within the district subject to taxation that could be located or discovered by the use of reasonable means and due diligence. There were no banks or savings companies in the district, and no evidence of any unassessed bank deposits. Cage testified at length as to the means and diligence used by him, in addition to the voluntary renditions made on the slips mailed to property owners, to prevent taxable property from being omitted from the rolls. Undoubtedly taxable personal property of which Cage and the other defendants had no knowledge escaped the assessment rolls, but it is well known that no tax system is perfect, and there was no evidence of any particular property which was not assessed.

The granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the trial court, and unless it appears from the record that the court has abused that discretion, the action of the trial court will be upheld. Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 270, 109 A.L.R. 1235. In an appeal from an order either granting or refusing a temporary injunction, as in other types of appeals, the appellate court is required to view all evidence and legitimate presumptions in the light most favorable to the judgment of the trial court’s exercise of discretion, and where the evidence is in conflict, an abuse of discretion on the part of the trial court is not shown. 31 Tex.Jur.2d 345, Injunctions § 224; same, p. 350, § 225; Armstrong v. Armstrong, Tex.Civ.App., 295 S.W.2d 542; Wilson v. Whitaker, Tex.Civ.App., 353 S.W.2d 945; City of Corpus Christi v. Gilley, Tex.Civ.App., 379 S.W.2d 84, writ ref. n. r. e.

In an attack upon a tax program because of the omission from the assessment rolls of certain classes of taxable property, the taxpayer must prove not only that a certain category or type of property was omitted from the assessment rolls, but also that such omission was the result of a deliberate, arbitrary and fundamentally erroneous scheme to permit certain classes of property to escape their fair share of the tax burden. State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569; Kelly v. A. & M. Consolidated Independent School District, Tex.Civ.App., 398 S.W.2d 438, writ ref. n. r. e.; Wilson v. City of Port Lavaca, Texas, Tex.Civ.App., 407 S.W.2d 325.

As stated in Kelly v. A. & M. Consolidated School District, supra, a case with a very similar fact situation to the instant case:

“In Whelan v. State, 155 Tex. 14, 22, 282 S.W.2d 378, 381, reversal resulted from exclusion of evidence that the omission ‘was deliberate, arbitrary and systematic,’ and the court emphasized that the taxpayer was entitled to relief where it was shown that there was a ‘deliberate and arbitrary preconceived plan.’ In City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416, the ‘deliberate adoption of a plan for the omission from the tax rolls’ was the criterion announced.”

The provisions of the statutory articles contained in Title 122, V.A.T.S., which are relied upon by appellants to show illegality of Cage’s method of listing and appraising properties, do not apply to independent school districts unless adopted by the district. Seguin Independent School District v. Blumberg, Tex.Civ.App., 402 S.W.2d 552, writ ref., n. r. e., and authorities there cited. In taxing matters, school districts are governed by the provisions of Title 28. But even if such statutes cited by appellants should apply, the trial court has impliedly found that appellees have substantially complied therewith.

The evidence supports the trial court’s implied findings that no taxable property was omitted from the tax rolls of Calallen Independent School District as the result of any deliberate, arbitrary and discriminatory scheme to permit certain classes of property to escape taxation, and also its implied finding that no such illegal scheme in fact existed. Points 1 and 2 are overruled.

We have considered appellants’ remaining points of error, and find no merit in them. They are overruled.

The trial court did not abuse its discretion in denying the temporary injunction prayed for.

Judgment affirmed.

      . We do not wish to be understood as saying that plaintiff’s complaint is directed to the listing or the valuation of their properties; their objections are to the allegedly discriminatory, arbitrary and illegal plan of listing and appraising adopted by Cage with the approval of the school district.


author: SELLERS, Justice.

text:
    LUCKENBACH OVERSEAS CORPORATION, Appellant, v. Charles D. PENLAND, Appellee.
    No. 249.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.

      J. P. Forney, Eastham, Watson, Dale & Forney, Houston, for appellant.
    Bill J. Sanders, James W. Mehaffy, Jr., Keith, Mehaffy & Weber, Beaumont, for appellee..
   SELLERS, Justice.

Charles D. Penland brought this suit to recover damages for personal injuries against Luckenbach Overseas Corporation and the unseaworthiness of its vessel, the S. S. Audrey J. Luckenbach, as well as to recover maintenance and cure. The trial was to a jury and upon the jury’s answer to special issues, the Court denied Penland any recovery based upon his claim of negligence, and no appeal from this part of the judgment is brought forward.

The jury found, among other issues, that Penland had not reached his maximum recovery from medical treatment and that he would reach his maximum recovery in 839 days, and the Court entered judgment for Penland for the sum of $6,712.00, this amount arrived at by using the agreed figure of Eight Dollars per day as maintenance. Defendant moved the Court to disregard the jury’s verdict above referred to and to enter judgment non obstante vere-dicto for the defendant. This motion being overruled, the defendant has duly prosecuted this appeal.

Appellant has many assignments of error, but Appellee in his Brief makes this statement with which we agree:

“This entire appeal raises only two-basic points. These points are:
“(1) Was the Appellee, Charles D. Penland, entitled to recover maintenance even though he had been discharged from the USPHS and given a fit-for-duty slip ?; * * * ”

The view we take of the first question makes it unnecessary to set out the second issue. We are of the opinion that this record shows that appellee was discharged from the hospital as “fit for duty” and the jury so found in answer to issues submitted to it. Appellee went back to sea on numerous occasions and on different boats, and on each trip he had to take a physical examination before sailing and he passed each time. It is further shown that ap-pellee did not ask for, nor did he receive, any treatment, after he left the hospital, which was calculated to perfect a cure of his eleventh rib. In fact, the doctor who testified on this trial said there was no treatment that would aid his recovery. It is true that the doctor testified that an operation might relieve the pain which he was experiencing. Because of this opinion of the doctor, it was the doctor’s testimony that appellee had not reached his maximum recovery. The fact remains that appellee has not had the operation and has not agreed to have one in the future.

Under the facts of this case, it is our opinion that appellee was not entitled to maintenance and cure benefits after he left the hospital with a “fit for duty” discharge which he received on January 1, 1963. The rule that fits this case is announced in Carroll v. Moran Towing & Transportation Co., Inc., 9 Cir., 88 F.2d 144, as follows:

“ * * * In the absence of any showing on the part of the appellant that he had medical treatment and care after he was discharged from the hospital he is not entitled to recover for that period, ⅜ ⅝ ‡»

Appellee contends that this case is controlled by the case of Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88. We do not believe the facts of the Vaughan case are in any way analogous to appellee’s situation in the case under consideration. The big difference is that in the Vaughan case, the patient asked for his discharge from the hospital so he could go to work and make a living when he was not, in fact, cured. In our case, the jury found that appellee was, in fact, “fit for duty” when he left the hospital and appellee actually went back to sea on a number of different ships.

In fact, we regard the Vaughan case as stating the correct rule of law, when it held:

“Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick of injured in the ship’s service; and it extends during the period when he is incapacitated to do a seaman’s work and continues until he reaches maximum medical recovery. * * * »

The judgment of the trial court will be reversed and judgment here rendered for forty-five (45) days maintenance, which covers the time that appellee was an outpatient, the same being the sum of THREE HUNDRED SIXTY AND NO/100 ($360.-00) DOLLARS.

We do not pass upon the question of appellant’s liability in the event appellee should have an operation to relieve his pain which was suggested by his doctor.

What we have said renders it unnecessary to discuss the other point raised on this appeal.


author: HUGHES, Associate Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of Texas, Appellant, v. GENERAL ASPHALT COMPANY, Appellee.
    No. 11434.
    Court of Civil Appeals of Texas. Austin.
    Dec. 14, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty, Gen., H. Grady Chandler and Gordon C. Cass, Asst. Attys. Gen., Austin, for appellant.
    Wilson, Kendall, Koch & Randle, Joe A. Osborn, Austin, for appellee.
   HUGHES, Associate Justice.

This suit was by General Asphalt Company, appellee, against Robert S. Calvert, Comptroller of Public Accounts of the State of Texas, appellant, to recover taxes, penalties and interest imposed by Art. 20.01 et seq., Title 122A, Taxation-General, Vol. 20A, V.A.T.C.S., “Limited Sales, Excise and Use Act,” which it paid under protest. Trial to the court resulted in judgment for appellee.

The only question presented is whether appellee timely gave the notice required by Art. 20.04(H) in order to be exempted under its terms.

The facts are undisputed.

Appellee, a Texas Corporation, was engaged in the paving construction business prior to September 1, 1961, and had entered into contracts to perform paving work in Texas prior to the enactment of the Limited Sales, Excise and Tax Act. Art. 20.04(H) of Article I of this Act reads:

“(H) Written Contracts and Bids Executed Prior to the Effective Date of this Chapter. There are exempted from the taxes imposed by this Chapter the receipts from the sale, use or rental of, and the storage, use or other consumption in this State of, tangible personal property (i) used for the performance of a written contract entered into prior to the effective date of this Chapter or (ii) pursuant to the obligation of a bid or bids submitted prior to the effective date of this Chapter which bid or bids could not be altered or withdrawn on or after that date and which bid or bids and contract entered into pursuant thereto are at a fixed price not subject to change or modification by reason of a tax imposed by this Chapter.
Provided, however, that notice of such contract or bid by reason of which an exclusion is claimed under this paragraph (H) must be given by the taxpayer to the Comptroller on or before the lapse of one hundred and twenty (120) days from the date of passage of this Chapter.”

In Section 1 of Art. VIII of the above styled Act it was provided that the Act should become effective from and after September 1, 1961, except that Art. V of the Act, not relevant here, should become effective from and after August 31, 1961. Similar provisions were contained in the emergency clause of the Act.

The Tax Act passed the House and Senate on August 8, 1961, by a two thirds vote of each legislative body and was filed with the Secretary of State, without the Governor’s signature, on August 16, 1961.

Appellee gave the notice required by Art. 20.04(H) on December 19, 1961. This notice was timely if, as appellee contends, the 120 day period for giving the notice did not commence until September 1, 1961. If, on the other hand, time for giving notice commenced on August 16, 1961, as appellant contends, the notice was not given within the 120 days allowed.

Appellant directs our attention to an amendment of Art. 20.04(H) by the Legislature in 1963 wherein it provided that the notice required in order to obtain exemption should be given within 120 days “from August 16, 1961.”

We are urged to adopt this legislative construction of the original Act. We cannot base our decision on legislative construction for the reason that one legislature is without authority to construe former enactments of other legislatures. Morris v. Calvert, 329 S.W.2d 117, Tex.Civ.App., Austin, writ ref., n. r. e.

We must determine the meaning of the phrase “from the date of passage” as used in Art. 20.04(H). The guiding principles to be employed in making this determination are stated in Scales v. Marshall, 96 Tex. 140, 70 S.W. 945, from which we quote:

“The word ‘passage’ is used in connection with legislation in several senses. The adoption of a measure by either house is spoken of as its passage through that house. The final adoption of a bill by both the house and the senate is commonly spoken of as its passage. Again, after such adoption by the legislature, the approval of a bill by the governor is properly called its passage. Where acts take effect from their passage, the time of approval by the governor, or of final adoption over his veto, or of their becoming laws without his signature is, in law, called the time of their passage. But where the word is employed in an act which is finally passed at one time to take effect at a later time, it may, by reason of a somewhat common usage, be taken as referring to the latter date, unless such a construction is contrary to the intention appearing from the whole statute. The language of statutes which thus take effect at times subsequent to those of their adoption is usually taken as speaking only when they begin to operate as laws. * * * In the case of Galveston, H. & S. A. Ry. Co. v. State, 81 Tex. 572, 598, 17 S.W. 67, Justice Gaines, citing several of the cases above referred to, thus states the doctrine: ‘We apprehend that no universal rule of construction can be adopted when a statute which makes a distinction between future and past transactions is passed upon one day to take effect upon another; but we think the general rule is that a statute speaks from the time it becomes a law, and that what has occurred between the date of its passage and the time it took effect is deemed with respect to the statute, a past transaction. This is in analogy to the rule for the construction of wills. This rule should not be applied when the language of the act shows a contrary intention.’ The rule we are considering is one. of construction, merely, and does not control the expressed intention of the legislature; but, as we have seen, the mere use of such words as ‘before the passage,’ ‘after the passage,’ ‘heretofore,’ ‘hereafter,’ or ‘already,’ does not so plainly show an intention to fix a date differing from that of the taking effect of the statute as to control. This is especially true where there is in force a constitutional provision such as ours, under which, with an exception not applicable here, statutes can only be effective after 90 days from the adjournment of the session of the legislature. In some of the cases it is strongly intimated, if not decided, that such a provision as that in question, if really intended to refer to the date of the passage of the act, would be an attempt to make the law partially operative sooner than permitted by the constitution, and would bring it in conflict with the provision cited. We intimate no opinion as to this, but think it legitimate to hold that the legislature meant that the law, when it became effective, should operate equally upon all, and that the word ‘passage’ was intended to mean what it has so often been held to mean when used in such connections. The statute contained a clause intended to put it into operation from its passage, but the bill did not receive the vote requisite for that purpose, and hence it took effect 90 days after adjournment.”

An Act of the Legislature is not operative as notice of its provisions until it becomes effective as a law. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680, Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716. It performs no function whatsoever until its effective date. Highland Park Independent School District v. Loring, 323 S.W.2d 469, Tex.Civ.App., Dallas, n. w. h.

The phrase “date of passage of this Chapter” is ambiguous. Its meaning must be determined by other provisions of the Act which are not ambiguous and from the intention of the Legislature, easily ascertainable.

It is not arguable but that the Legislature intended to (1) exempt from the tax imposed by the Act the transactions which are the subject of this suit (2) give the persons entitled to the exemption 120 days within which to give notice of the transactions claimed to be exempt from taxation (3) make the Act effective September 1, 1961, as to the provisions before us.

If appellant’s view is sustained, then these latter two clearly expressed intentions of the Legislature are subordinated to the ambiguous phrase “date of passage of this Chapter.” The Act would, in such event, become operative for the purpose of giving the notice required by Art. 20.04(H) on August 16,1961, and the taxpayer would not have 120 days from the time such Act became effective as a law within which to give such notice.

Applying the principles of Scales v. Marshall, supra, we hold that the phrase “from the date of passage of this Chapter” means from the date the Act became operative as a law, September 1, 1961. This holding is consistent with the legislative intent gathered from the Act as a whole and its provisions particularly noted herein.

The judgment of the trial court is affirmed.

Affirmed.

      . This Court followed Scales v. Marshall in Morris v. Calvert, 329 S.W.2d 117, writ ref., n. r. e.


author: STEPHENSON, Justice.

text:
    A. M. CARRUTH, d/b/a Carruth Distributing Company, Appellant, v. WIX CORPORATION, Appellee.
    No. 6847.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 9, 1966.
    Rehearing Denied Dec. 7, 1966.

      Fred A. White, Port Arthur, for appel- . lant.
    John L. Fulbright, Beaumont, for appel-lee.
   ON MOTION FOR REHEARING

STEPHENSON, Justice.

Our opinion delivered September 8, 1966, is withdrawn and the following opinion is substituted therefor.

This is an action on a sworn account for goods sold and delivered. The trial court granted plaintiff’s motion for summary judgment. The parties will be referred to here as they were in the trial court.

Defendant’s first point of error is that the trial court erred in granting the motion for summary judgment because the defendant had denied the account was just and true, and had asserted under oath that he was not justly indebted to plaintiff in any sum of money, and that all legal offsets, payments and credits had not been allowed.

Defendant’s first amended answer contained a general denial, among other pleadings, and contained the following affidavit:

BEFORE ME, the undersigned authority, on this day personally appeared A. M. CARRUTH, doing business as A. M. Carruth Distributing Company, defendant in the foregoing-styled Answer and Cross-Action, denies the purported verified account of the plaintiff made against him and filed in this cause, and says the same is within his knowledge, not just or true, and further says that he is not justly indebted to the plaintiff in any sum of money, and that all offsets, payments and credits have not been allowed.
/s/ A. M. Carruth
SUBSCRIBED AND SWORN TO BEFORE ME, this the 16th day of September, A.D. 1965.
/s/ Leland Lacy
Notary Public in and for Jefferson County, Texas.”

Defendant argues that this answer and affidavit raised issues of fact and summary judgment was not proper. Plaintiff contends that this is a proper case for summary judgment even though defendant filed a sworn denial, relying upon defendant’s failure to deny certain requests for admissions of fact.

Plaintiff’s petition contained this paragraph :

“II.
“That heretofore, to-wit, on the dates shown on the invoices, marked ‘Exhibit A’, attached hereto and incorporated herein by reference, as the Plaintiff’s statement on account, and at the special instance and request of the Defendant, the Plaintiff sold and delivered the goods shown therein, to the Defendant. .Defendant expressly agreed to pay the amount set opposite such items; or, alternatively, the Defendant thereby became bound to pay, upon the delivery of such goods, such amounts as such goods were reasonably worth, and'such goods were reasonably worth the amounts set out on such invoices.”

A typical invoice attached to such petition read as follows:

Defendant filed special exceptions to plaintiff’s petition to the effect in substance that the exhibit “A” attached to such petition did not give a sufficient description as to the goods sold. These exceptions were overruled. Then plaintiff made the requests for admissions of fact which were in series as to each invoice and a typical series was as follows:

“7. That on or about May 6, 1964 the Plaintiff at the request of the Defendant shipped to the Defendant the merchandise shown on invoice number 59896 attached to the Plaintiff’s Original Petition as part of Exhibit “A” thereto.
8. That the items referred to in said invoice number 59896 were received by the Defendant.
9. That the items referred to in said invoice number 59896 were retained by the Defendant.
10. That the purchase price of each item referred to in said invoice number 59896 was agreed upon by Plaintiff and Defendant.
11. That the Defendant received either the original or a copy of said invoice number 59896.
12. That the original invoice number 59896 or the copy of the same received by the Defendant contained the same words and figures as shown on the copy of said invoice number 59896 attached to Plaintiff’s Petition.”

Defendant’s response to 7,8, 9 and 10 was as follows:

“He can neither admit nor deny under oath the truth of such statements because the invoice referred to does not contain a list of any material or items of merchandise.”

Defendant’s response to 11 and 12 was as follows:

“He neither admits nor denies the truth of the statements contained in such request at this time, because he does not know.”

The same answers were given to each series of requests directed to each of the invoices.

Plaintiff contends further that defendant’s amended answer containing the sworn denial came too late inasmuch as it was filed on the day of the hearing of the motion for summary judgment. The trial court could have refused to consider such amended pleading because of the late filing, but apparently according to the record did give such pleadings consideration. In the first place, the record does not reveal that any objection was made by plaintiff to the filing of the amended answer. In the second place, the trial court heard the special exceptions contained in the amended answer before the hearing on the motion for summary judgment, and an order was entered overruling these exceptions.

There is also nothing in this record to indicate that the trial court found the defendant’s responses to plaintiff’s requests for admissions were evasive and therefore that the trial court was treating such requests as having been admitted.

There is nothing in the record to show that the symbols and code letters used in the invoices were sufficient so as to be understood by one engaged in the business or trade and familiar with the technical terms used in such invoices.

Questions of fact were raised and it was error to grant the motion for summary judgment.

Reversed and remanded.


author: SHARPE, Justice.

text:
    Earl WALKER, Appellant, v. S & T TRUCK LINES, INC., et al., Appellees.
    No. 229.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 15, 1966.
    Rehearing Denied Jan. 5, 1967.
    Cox & Patterson, J. W. Patterson, Jr., McAllen, for appellant.
    Adams, Graham, Lewis & Graham, Marshall Graham, M. W. Russell, Jr., Martin Ferrero, of Ferraro, Snedeker & Vela, Har-lingen, for appellees.
   OPINION

SHARPE, Justice.

Appellees’ motion to dismiss the appeal for want of jurisdiction in this court is granted.

On November 3, 1965 the lower court after jury trial rendered judgment that appellant, plaintiff below, take nothing by this suit. Appellant did not file a motion for new trial. However, on November 12, 1965 appellant filed motion for judgment non obstante veredicto and to disregard certain jury findings and to set aside the judgment previously rendered and to enter judgment in favor of appellant in the amount of $6,707.66, which motion was amended on November 19, 1965. For convenience, we will hereafter usually refer to plaintiff’s motion as one for judgment non obstante veredicto. The trial court conducted a hearing on the amended motion on December 31, 1965 and overruled it on January 3, 1966, which date was on the sixty-first day after entry of the judgment and on the forty-fifth day after the filing of appellant’s amended motion for judgment non obstante veredicto. Notice of appeal for the first time was filed on that same date along with the appeal bond.

Appellees’ motion to dismiss the appeal is premised upon the contention that the judgment of the trial court rendered on November 3, 1965 became final thirty days after its entry in the absence of a motion for new trial; that since notice of appeal was not given within ten days as provided by Rule 353 Texas Rules of Civil Procedure and bond was not filed within thirty days of the judgment as provided for by Rule 356 T.R.C.P., that the appeal was not perfected and that this court is without jurisdiction.

Appellant’s position is that his appeal was timely perfected even though he did not file motion for new trial, because after entry of judgment he filed an original and amended motion for judgment non obstante veredicto within the time limits provided by Rule 329b, T.R.C.P., for filing of original and amended motions for new trial; that the trial court denied his amended motion for judgment non obstante veredicto on the forty-fifth day after it was filed, and notice of appeal and bond were filed on the same date.

We agree with appellees.

There is no provision in the Rules or Statutes which prevents a judgment from becoming final simply because motion for judgment non obstante veredicto and to disregard findings is filed under Rule 301, T.R.C.P., after entry of judgment.

In 4 McDonald Texas Civil Practice, Judgments, § 17.32, page 1415, relating to motions under Rule 301, T.R.C.P., the following statement appears:

“Undoubtedly it is desirable for the motion to be filed and determined before any judgment is rendered. The trial court may, however, err in rendering judgment and, before such erroneous judgment becomes final, may be convinced of his error. Consistent with the theory underlying rule 301, that the error of an improper decision should be corrected in the trial court, that court may, by the better view, set aside such judgment before it becomes final and grant a motion for judgment non obstante veredicto.”

In Hann v. Life & Casualty Insurance Co. of Tenn., 312 S.W.2d 261, 263 (Tex.Civ.App., San Antonio, 1958, n. w. h.), the court held as follows:

“The rules do not provide for a time limit on the filing and passing upon of a motion non obstante veredicto, therefore, such motion may be filed even after the court has rendered judgment on the verdict, and may be acted upon any time before the motion or amended motion for a new trial has been overruled, either by the court or by operation of law.”

In De Moss v. Briggs, 145 Tex. 582, 201 S.W.2d 40, 41, (1947) where both motions for new trial and for judgment non obstante veredicto were involved, the court said:

“The two motions differ widely in the inquiry invoked and the relief sought, and the granting of a motion for judgment non obstante veredicto is in no sense the granting of a motion for new trial. City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989.”

See also the opinion in Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970 (1936), which discusses the history and purpose of Article 2211, V.A.C.S., enacted in 1931, and since 1941 carried forward unchanged as Rule 301, T.R.C.P.

In Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), our Supreme Court has held that contentions raised by motion for judgment non obstante veredicto need not be incorporated in a motion for new trial as a prerequisite to appeal. In such connection at P. 890 of the opinion the court said:

“While trial court action denying a motion for judgment non obstante veredicto would seem, under the literal wording of Rule 324, to eliminate altogether the necessity for filing a motion for new trial as a prerequisite to appeal, except as to the matters designated in Rule 325, it was not so intended and it has not been and should not be so construed. Miller v. Miller, Tex.Civ.App., 274 S.W.2d 762, 763-764, writ refused; Fenley v. Ogletree, Tex.Civ.App., 277 S.W.2d 135, 140, writ refused, n. r. e.; City of San Antonio v. Gonzales, Tex.Civ.App., 304 S.W.2d 429, writ refused, n. r. e.; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, 910-911, writ refused, n. r. e. The purpose of the quoted provision of Rule 324 as it relates to a party whose motion non obstante veredicto is denied is to authorize appeal on the grounds stated in the motion without the necessity of incorporating the grounds in a motion for new trial. It was not the purpose of that language to eliminate the necessity for complaining in a motion for new trial of other errors committed on the trial. A party whose motion for judgment non obstante veredicto is denied may forego the filing of a motion for new trial and predicate his points of error on appeal on the matters included in such motion. If he follows that course, he may complain on'appeal only of the denial of the motion non obstante veredicto. If he files a motion for new trial as a predicate for complaining of other errors, he need not incorporate in it assignments complaining of the overruling of his motion for judgment non obstante veredicto.”

Rule 324, T.R.C.P. was amended in 1962 so as to clarify and restate it in the light of Wagner v. Foster, supra.

It is true that had appellant filed an original and amended motion for new trial within the time limits permitted by Rule 329b, T.R.C.P., then the trial court could have ruled upon appellant’s motion for judgment non obstante veredicto at any time until expiration of forty-five days after the filing of the amended motion for new trial, and, if denied, could have then perfected an appeal by timely giving notice of appeal and filing bond. Hann v. Life & Casualty Insurance Co. of Tenn., supra. But in the absence of a timely filed motion for new trial, the judgment herein rendered on November 3, 1965 became final after the expiration of thirty days from its date. Rule 329b, T.R.C.P. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Stonedale v. Stonedale, 401 S.W.2d 725, 728 (Tex.Civ.App., Corpus Christi, 1966, n. w. h.).

In this case, where a motion for new trial was not filed, the appellant could have perfected his appeal only by giving notice of appeal within ten days and filing appeal bond within thirty days after entry of the judgment as provided by Rules 353 and 356, T.R.C.P. This was not done.

Appellees’ motion to dismiss this appeal is supported in principle by American Hospital and Life Insurance Co. v. Kern, 359 S.W.2d 907 (Tex.Civ.App., Beaumont, 1962, wr. dism.) and Bellmead State Bank v. Campbell, 386 S.W.2d 205 (Tex.Civ.App., Waco, 1964, n. w. h.).

None of the cases cited by appellant supports his position that his appeal can be timely perfected on the basis of a trial court order overruling his amended motion for judgment non obstante veredicto on the sixty-first day after entry of the judgment, even though appellant filed his original and amended motions for same within the time limits provided by Rule 329b, T.R.C.P., and the trial court denied the amended motion on the forty-fifth day after it was filed.

The cases upon which appellant apparently places primary reliance are Fireman’s Fund Insurance Company v. Martinez, 387 S.W.2d 443 (Tex.Civ.App., Austin, 1965, wr. ref. n. r. e.) and Beal v. Great American Indemnity Company, 322 S.W.2d 399 (Tex.Civ.App., Texarkana, 1959, n. w. h.). In Fireman’s Fund Insurance Company v. Martinez, supra, the Court of Civil Appeals overruled appellee’s motion to dismiss and considered only the points raised in appellant’s motion for judgment non obstante veredicto. That motion was filed in the trial court on May 25, 1964 and objected to the proposed judgment which was entered on the same day. Later, and within 30 days from entry of the original judgment, the trial court changed the date of entry of judgment to June 17, 1964, and stated that the purpose of the change was to permit appellant to file a motion for new trial. The Court of Civil Appeals held that this latter action was improper and that the trial court was not authorized to enlarge the time for filing the motion for new trial. However, the Court of Civil Appeals further held that appellant’s motion to set aside the judgment fulfilled the requirements of a motion for judgment non ob-stante veredicto under Rule 301, T.R.C.P., and that the appellate court could consider the points raised thereby, without a motion for new trial being filed, citing Rule 324 and Wagner v. Foster, supra. The opinion does not show that any question was raised concerning either the timely giving of notice of appeal or filing of the appeal bond. The decision is not authority for the proposition that the trial court can consider a motion for judgment non obstante veredicto at a time after expiration of thirty days from entry of the judgment in the absence of a motion for new trial. In Beal v. Great American Indemnity Company, supra, the trial court first granted appellant’s motion for judgment non obstante veredicto and to disregard a jury finding and awarded him a recovery of $4,272.50. Thereafter ap-pellee timely filed original and amended motion for new trial, two grounds of which set up that the trial court had erred in refusing to grant appellee’s motion for instructed verdict. The trial court then agreed with appellee, disregarded the jury answers to certain issues, and proceeded to render judgment in favor of appellee that appellant take nothing. The Court of Civil Appeals reversed the last-mentioned judgment and held that appellee’s amended motion for new trial did not satisfy the requirements of a motion for judgment non obstante veredicto under Rule 301, T.R.C.P., and, therefore, the effect of the second judgment was to set aside the first one and grant a new trial. That case is not authority in support of appellant’s position here.

Appellant also contends that his motion for judgment non obstante veredicto was in the nature of a motion for new trial although not so designated and that it was intended to serve as a motion for new trial for the purpose of establishing the time schedule presented by the Rules. Appellant places reliance in part on the case of Worth Steel Corporation v. Gartman, 361 S.W.2d 426 (Tex.Civ.App., Fort Worth, 1962, wr. ref. n. r. e.). In that case the court held that the only legal effect the instrument there in question could have was as an amended motion for new trial, although it was deficient in some respects. In this case the appellant has consistently insisted in the trial court and here that he does not want a new trial; that what he desires is for the court to set aside the judgment rendered against him and enter another judgment awarding him a recovery of $6,707.66. The prayer of appellant’s amended motion reads as follows:

“WHEREFORE, PLAINTIFF prays that the Court set aside the judgment in favor of the DEFENDANTS previously entered herein on or about November 3, 1965, and that the Court disregarded the answers of the jury to Special Issues Nos. 11 and 12 and enter a new judgment for PLAINTIFF in accordance with the remainder of the verdict of the jury in the amount of $6,707.66, in lieu of and to replace the original judgment, and that PLAINTIFF recover all costs herein expended, and have such other and further relief as shall be appropriate and to which PLAINTIFF may show himself entitled with relation to the entering of a new judgment in favor of PLAINTIFF, in the amount of $6,707,66.”

Plaintiff’s position is consistent with the relief sought by a motion for judgment non obstante veredicto, but not that sought by motion for new trial. In Wichita Falls Traction Co. v. Cook, 122 Tex. 446, 60 S.W.2d 764, 768 (1933) the court said:

“The granting of a new trial means that the case shall be reinstated upon the docket of the trial court and stand for trial the same as though no trial had been had.”

Appellant’s motion for judgment non ob-stante veredicto was not a motion for new trial and cannot be so considered.

We are not dealing with a case where the trial court acts within thirty days of entry of the judgment, during which period of time the court has control of it under Rule 329b, T.R.C.P. However, even if we were, and the trial court had denied appellant’s motion for judgment non ob-stante veredicto within 30 days from the judgment, the time for giving notice of appeal and bond as provided by Rules 353 and 356, T.R.C.P., would run from the date of the judgment in the absence of a motion for new trial.

For the reasons stated, appellees’ motion to dismiss is granted and the appeal is dismissed.


author: DENTON, Chief Justice.

text:
    H. C. LEWIS, Appellant, v. L. C. HILL, Appellee.
    No. 7659.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1966.
    Rehearing Denied Jan. 3, 1967.

      Evans, Pharr, Trout & Jones, Lubbock, for appellant.
    Nelson, McCleskey & Harriger and Ralph S.Daniel, Lubbock, for appellee.
   DENTON, Chief Justice.

This is a suit brought by L. C. Hill for an accounting and distribution of the property between equal partners upon an agreed dissolution of partnership. The trial court, without a jury, entered judgment distributing the partnership assets between Hill and H. C. Lewis, his partner. Lewis’ only complaint here is the award to Hill of a salary of $125.00 per week for the duration of the partnership from May 1959 through April 22, 1964, which amounted to $16,-187.50.

Prior to May 1959 appellant H. C. Lewis and George A. Fields, as equal partners, formed a partnership known as “F. & L. Fence Company”, which had approximately an $80,000.00 book value. In the process of dissolving this partnership in May 1959, George A. Fields sold his one-half interest in the partnership to his brother, Lee Fields. Lee Fields simultaneously sold this interest to appellee Hill for $40,000.00. By duly executed instruments Hill assumed the payment of this $40,000.00 note with $11,600.00 down payment to Lee Fields and the balance in five annual payments. The $11,600.00 down payment was paid from the partnership funds with Hill repaying this from his future profits. As part of the transaction Lewis executed an instrument in which he guaranteed the payment of Hill’s note to Lee Fields, however Hill testified he had no knowledge that the note was guaranteed by Lewis. Lewis later purchased the note from Fields in January 1963. Hill devoted his full time as manager of the business. Lewis was engaged in contracting and other business activities; and although he did not actually participate in the day to day management of the fence business, he contributed his credit and used his business connections to secure business for the partnership. Prior to the formation of this partnership Hill was the salaried manager of F. & L. Fence Company, with a salary of $125.00 per week. The partnership agreement between these partners was not reduced to writing.

The sole question is whether or not there was an implied agreement that Hill would be paid compensation as managing partner over and above his equal share of the partnership’s profits. It is not contended there was an express agreement that compensation would be paid. The general rule is that in the absence of an agreement therefor, a partner is not entitled to compensation other than his share of the profits for his services to the partnership no matter how valuable these services may be. Horn v. Builders Supply Co. (Tex.Civ.App.) 401 S.W.2d 143 (Ref.N.R.E.); Butler v. Thomasson (Tex.Civ.App.) 256 S.W.2d 936; Heilbron v. Stubblefield (Tex.Civ.App.) 203 S.W.2d 986 (Ref.N.R.E.). 68 C.J.S. Partnership § 94, page 531; The Texas Uniform Partnership Act, Article 6132b, Section 18 (1) (f), Vernon’s Ann.Civ.St, declares this common law rule. However, an agreement for compensation whether express or implied will be enforced. Meier v. Murphy (Tex.Civ.App.) 207 S.W.2d 947 (Ref.N.R. E.).

The real question is to ascertain under this record the intentions and understanding of the partners. It is a question of fact. In Vol. 1, Corbin on Contracts, Section 17, he says: “A promise that is implied in fact is merely a tacit promise, one that is implied in whole or in part from expressions other than words on the part of the promissor. It is a question of fact whether or not in a particular case a promise should he so inferred.” We must therefore look to the material facts surrounding the partners’ dealings to determine the question.

For some three weeks after the commencement of this partnership, the company’s bookkeeper continued to pay Hill $125.-00 per week and designated it “salary”. Upon being informed of the formation of the partnership, the bookkeeper then began issuing weekly checks to Hill in the amount of $175.00 designated “draw”. Lewis agreed for Hill to set his own “draw” at an amount “to keep him out of hock”. No specific amount was ever agreed upon between the two, but it was not-qnestioned by Lewis. Hill was paid this amount throughout the duration of the partnership and it was treated on the partnership books as a “draw” or as an advance against the partnership profits. This is also reflected in each of the partnership income tax returns.

The question of the payment of a salary to Hill was first discussed between Hill and Lewis in December 1959, the end of the first fiscal year of the partnership. Hill testified that on that occasion: “I told him that I wouldn’t work without a salary and he said he wouldn’t * * * he’d lock the doors before he’d pay one, so we both agreed to lock the doors.” However, this was not done and the partnership continued “just like we had been”. The matter of a salary came up again in April 1962. Hill admitted Lewis did not agree to Hill receiving a salary in addition to his equal shares in the profits and the income tax returns so reflected. Although Hill often insisted to Lewis he “couldn’t afford” to stay on without a salary and Lewis “couldn’t afford to pay the salary” the partnership did continue in the same manner until its dissolution.

Appellee and the trial court relied principally upon Montgomery v. Burch (Tex.Civ.App.) 11 S.W.2d 545 (Writ Dis.). There the court held there was an implied agreement to pay a salary to the partner managing the service station; however the facts in that case are clearly distinguishable from the instant case. In Montgomery the intentions of the partnerships were that the business was to be “run by hired help”. It was so operated for three years. When the business “got in bad condition” the managing partner then assumed full time management of the business at the request of the other partner. Also, there was no evidence the inactive partner furnished any credit or business connections or any efforts to promote business for the partnership as did Lewis in this case. Nor, most importantly, was there any evidence the partners affirmatively disagreed on the matter of salary. In fact it was never mentioned until after the partnership was dissolved. We cannot say, under this record, there was an implied agreement to pay Hill a salary in the face of Lewis’ express opposition to the payment of such salary. Hill admitted Lewis consistently refused to agree to the payment of the salary. The fact they continued the partnership in the same manner rather than “close the doors” cannot be said to create an implied agreement that a salary be paid. It is apparent the payment of a salary was subject of contention between the parties through much of the life of the partnership with one partner demanding it and the other partner refusing it. A contract or agreement may not be implied contrary to the intentions or understanding of the parties or against the express declaration of the person to be charged. Stone Co. v. Carminati (Tex.Civ.App.) 317 S.W.2d 78; 17 C.J.S. Contracts § 4, page 562 and cases cited. Under such circumstances there is no evidence to support the finding there was an implied agreement for the payment of a salary to Hill.

The judgment of the trial court is reversed and reformed by reducing the amount of recovery by Hill against Lewis by $16,187.50, and as so reformed, affirmed.


author: DIXON, Chief Justice.

text:
    Charles F. HANNAH et ux., Relators, v. The Honorable Dee Brown WALKER et al., Respondents.
    No. 16913.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1966.
    Rehearing Denied Dec. 23, 1966.

      Charles Ben Howell, Dallas, for relators.
    John J. Orvis, Asst. Dist. Atty., Dallas, B. Thomas McElroy, of White, McElroy & White, Dallas, for respondents.
   DIXON, Chief Justice.

Charles F. Hannah and wife Annabelle Hannah, Relators, with our permission filed an application for a writ of mandamus. They desire this court to direct the Honorable Dee Brown Walker, District Judge, the Honorable Bill Shaw, District Clerk and the Honorable Betty S. Tate, Official Court Reporter, to order and prepare a Transcript and Statement of Facts so that Relators may proceed with an appeal to this court.

Following a judgment against them in a personal injury damage suit Relators gave notice of appeal and filed an affidavit of inability to pay the costs of appeal pursuant to Rule 355, Vernon’s Texas Rules of Civil Procedure. The District Clerk and the Court Reporter filed controverting affidavits contesting Relators’ affidavit, as did Sears, Roebuck & Company, one of the defendants in the damage suit.

On September 19, 1966 Judge Walker, following a hearing, signed a decree sustaining the contest of Relators’ affidavit of inability to pay costs of appeal.

Relators challenge the sufficiency of the controverting affidavit filed in behalf of the District Clerk. This affidavit was made by Jean Penn, a Deputy District Clerk, before Mary Ann Mitchell, a Notary Public, who is also a Deputy District Clerk. Relators contend that one deputy district clerk cannot act as a notary public in taking the affidavit of another deputy district clerk.

We do not agree with Relators. Art. 16, Sec. 40, of the Constitution of Texas, Vernon’s Ann.St. provides that no person shall hold or exercise at the same time more than one civil office of emolument. But it also expressly names a number of exceptions and among the exceptions is the office of notary public. In other words, a person may at the same time hold the office of notary public and another civil office, without there being necessarily any conflict of interest. Figures v. State, 99 S.W. 412 (Tex.Civ.App., no writ hist.); State v. Parker, 34 N.M. 486, 285 P. 490. As to conflict of interest see Schaefer v. First Nat’l Bank, 189 S.W. 566 (Tex.Civ.App., no writ hist.); Gall v. Townsend, 77 Tex. 464, 14 S.W. 365; Belcher Land Mortgage Co. v. Taylor, 212 S.W. 647 (Tex.Com.App.); Duncan v. Duncan, 300 S.W.2d 149 (Tex.Civ.App., writ dis.); Peck v. People, 153 Ill. 454, 39 N.E. 117; Kirkland v. Ferris, 145 Ga. 93, 88 S.E. 680. We overrule Relators’ motion to strike the controverting affidavit filed in behalf of the District Clerk.

Charles F. Hannah testified that he is employed at a salary of $75 per week. He is in good health. He changed jobs twice in the last few months, there being short intervals of unemployment between jobs. He owns a 1962 Ford automobile which he bought in 1964 for $1,250 and which he now values at $350. It is mortgaged for $300. He pays $50 per month on the mortgage. Formerly he paid $65 per month on the car, but a short time age refinanced the car and the monthly payments were reduced. His boss persuaded the finance company to refinance the car, but would not try to help him raise the money for this appeal. He needs the car to go back and forth to work. He has no bank account, owns no stock, bonds, insurance or real estate. His household furniture was recently repossessed. He owes debts amounting to about $800 to $1,000. He tried to borrow money to pay for this appeal, which amounts to about $500, but was unable to do so. At the end of the month he usually has about $2.00 left out of his pay.

He and his wife are separated and a divorce suit is pending. They have no children. He has paid $35 in legal fees. The divorce cannot be concluded until he pays $35 more. Hannah’s mother lives with him. She is in good health. She is not employed but receives Social Security payments and a widow’s pension totaling $100 per month.

Mrs. Hannah has worked for about five years as a clerk at St. Paul’s Hospital. She is in good health. After the cost of insurance, hospital insurance, income tax, F.I.C.A. and the sum of $30 a month paid to her credit union are deducted from her pay she receives $80 every two weeks as “take home” pay — something over $160 per month. She does not own a car, though when she and her husband were living together they owned two cars. After they separated last March he disposed of one of the cars. She owns no stock, bonds, or real estate. Her debt to her credit union will be paid off next January. She had only $30 in the bank.

Mrs. Hannah owes no current bills except a $10 doctor’s bill. She has no children. She goes to and from her work with a lady with whom she lives and pays $45 per month as board. At the end of every month she has $15 or $20 left over from her pay. She stated that there is no reason why she couldn’t work at a part time job for a while if she wanted to. She does not believe she could borrow $500 but has not tried to do so, though at one time she had been told that her credit union would not lend her more than her monthly salary.

The test which we must apply is this: did the trial court abuse his discretion in sustaining the District Clerk’s contest of Relators’ affidavit of inability to pay costs? Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19; King v. Payne, 156 Tex. 105, 292 S.W.2d 331; Tubbs v. Coker, Tex.Civ.App., 401 S.W.2d 272.

In the Pinchback case above cited our Supreme Court stated that no hard and fast rule could be laid down applicable to all cases, but that if a party is earning a substantial income, though he is expending it as rapidly as it comes in, he should be required to pay the costs.

In this case the Relators between them have an income in excess of $525 per month before deductions. Charles F. Hannah’s mother is not entirely dependent on him, for she has an income of $100 per month. Relators have no children. Mrs Hannah owes only $10 in current debts. Though she does not believe she could borrow $500 she has not tried to do so.

The burden is on Relators to prove their inability to pay costs. The trial court in effect found that they had failed to sustain their burden. In so finding we cannot say that the trial court abused its discretion.

The application for a writ of mandamus is denied.

      . Relators also attack the sufficiency of the controverting affidavits of Sears, Roebuck & Co. and Betty S. Tate. We shall not pass on the sufficiency of these controverting affidavits, for we believe that the District Clerk’s controverting affidavit was sufficient to bring the contest before the Judge for determination on its merits; therefore the sufficiency of the other controverting affidavits becomes an immaterial issue.


author: BATEMAN, Justice.

text:
    Wilma Cook FARLEY et al., Appellants, v. Willie B. Graves COOK, Appellee.
    No. 16801.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1966.
    Rehearing Denied Dec. 16, 1966.
    Harless, Bailey & Youngblood, Bruce Youngblood, Dallas, for appellants.
    Grier H. Raggio, J. Harvey Lewis, Dallas, for appellee.
   BATEMAN, Justice.

This is an appeal from the judgment of the district court sustaining a motion for summary judgment in a probate case, dismissing the appeal from the probate court to the district court and remanding the case to the probate court. We shall endeavor to list in chronological order the events leading up to this appeal, as reflected by the record before us.

On March 2, 1965 Willie B. Graves Cook, Successor Temporary Administratrix of the Estate of W. T. Cook, Deceased, filed in the probate court her Final Account and Application for Discharge as Temporary Administratrix and Appointment as Permanent Administratrix. On March 8, 1965 Weldon Fisher, one of the appellants herein, alleging himself to be an heir at law of W. T. Cook, filed in the probate court his objections to the final account mentioned. After a hearing the probate court entered an order dated May 4, 1965, approving the account, discharging the Temporary Admin-istratrix, awarding certain fees to her and her attorney and appointing her Permanent Administratrix of the estate. The appellants here, Wilma Cook Farley and Weldon Fisher, and another, perfected their appeal from that order of May 4, 1965 to the district court. Willie B. Graves Cook, as defendant in the district court and as the ad-ministratrix of the estate of W. T. Cook, filed a sworn instrument labeled “Motion for Summary Judgment and/or Dismissal.” The district court sustained this motion and dismissed the appeals. An appeal from that order was taken to this court, and thereafter the Supreme Court, in equalizing the dockets of the Courts of Civil Appeals, transferred the case to the Texarkana Court of Civil Appeals. That court on April 12, 1966, held, inter alia, that the district court had erred in sustaining the motion for summary judgment because that motion, although sworn to, contained no evidentiary matter bearing upon the fact issues raised by the final account, and that Willie B. Graves Cook had not carried the burden of proving the absence of any genuine issue of material fact. See Farley v. Cook, Tex.Civ.App., 402 S.W.2d 779.

On August 31, 1965, while the aforesaid appeal was pending, Willie B. Graves Cook, as administratrix of the estate of W. T. Cook, filed in the probate court her Application to Pay Claims and Transfer Funds. Included in the claims to be paid were the fee allowed Willie B. Graves Cook, as Temporary Administratrix, and the fee allowed to her attorneys by the aforesaid order of May 4, 1965, as well as certain claims which had been listed in the final account approved by the order of May 4, 1965. Weldon Fisher and Wilma Cook Farley filed their objections to that application on the ground, among others, that the previous order authorizing the payment of at least some of the same claims was then pending on appeal. The probate court entered an order on September 10, 1965 approving the Application to Pay Claims and Transfer Funds, the order containing notice of appeal by Weldon Fisher and Wilma Cook Farley. The appeal went to the same district court of Dallas County to which the former appeal had been taken. Willie B. Graves Cook, administratrix, filed in the district court a Motion for Summary Judgment and/or Dismissal, sworn to by ap-pellee, and reciting that there was “no substantial issue as to any genuine or material fact” and that she was entitled to a summary judgment as a matter of law; also that the district court had previously entered an order sustaining a motion for summary judgment and ordering the cause remanded to the probate court, and that that order was res judicata. On December 22, 1965 the district court sustained the last mentioned motion for summary judgment, dismissed the appeal and remanded the cause to the probate court for such action as that court might deem appropriate. It is from that order that this present appeal is taken.

By their first point of error on appeal the appellants complain of the dismissal by the district court of their appeal without giving them the trial de novo to which they were entitled under the law. An appeal from the probate court may not properly be dismissed by the district court, denying the appellants their trial de novo, unless it be shown that there was a procedural defect in the perfection of the appeal, or that the appeal had been abandoned. Rules 332-339, Vernon’s Texas Rules of Civil Procedure, as amended; 18 Tex.Jur.2d, DECEDENTS’ ESTATES, §§ 89, 90 and 91, pp. 102-104. We find here no such procedural defect or abandonment.

The probate court had approved appellee’s Application to Pay Claims and Transfer Funds, wherein she requested authority to pay claims totaling $6,185.61, including the fee previously allowed by the probate court to her as Temporary Admin-istratrix and the fee previously allowed to her attorneys. Appellants were entitled to a trial de novo to determine whether such claims should be paid, unless appellee could carry the burden imposed upon her by Rule 166-A, T.R.C.P., of showing the absence of any genuine issue as to any material fact. In determining whether that burden has been discharged the court must resolve against the movant all doubts as to the existence of such an issue. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.Ct., 1965, 391 S.W.2d 41. No such showing was made by appellee.

Appellants’ first point of error must be sustained on another ground also. Appel-lee’s first motion for summary judgment related to the final account filed by appellee in her then capacity as Temporary Admin-istratrix. That final account contained several of the same claims listed in appel-lee’s Application to Pay Claims and Transfer Funds. In fact, appellee’s second motion for summary judgment is almost wholly based upon the doctrine of res judicata in that appellee asks the court therein to render summary judgment and remand the case to the probate court because that is what the district court did on the previous motion for summary judgment. In the second motion appellee alleges that both motions relate to “the same basic facts,, many of the same documents, appeal from the same probate case and involving the same parties.” Incidentally, it is also alleged therein that appellants had perfected their appeal from the order sustaining the first motion for summary judgment, which appeal “is presently pending.” We agree with appellee that the doctrine of res judi-cata is applicable here, but the prior judgment of the district court, upon which ap-pellee relies, was reversed by the Texar-kana Court of Civil Appeals, and apparently no application for writ of error was filed in connection therewith. Therefore, the opinion of the appellate court may be said to have already decided the question before us.

Appellants’ first point is therefore sustained.

By their second point of error appellants complain of the order sustaining the second motion for summary judgment because there were no pleadings, depositions, admissions or affidavits on file to show that appellee was entitled to a judgment as a matter of law; and their third point of error complains of the order overruling their motion to strike the affidavit filed by appellee in connection with her motion for summary judgment. In apparent recognition of her burden of showing the absence of any genuine issue as to any material fact, appellee filed in connection with her second motion for summary judgment an instrument which she calls an “Affidavit in Support of Motion for Summary Judgment.” All this document purports to do is to incorporate by reference “for all purposes as if copied in full in this Affidavit all pleadings, orders, exhibits, court-reported testimony and other documents which are a part of the court record in Cause No. 61372-T, In Re: Estate of W. T. Cook, Deceased, in the Probate Court of Dallas County, Texas,” and “all pleadings, orders, exhibits, court-reported testimony and other documents which are a part of the court record in Cause No. 65-4537-B, In Re: Estate of W. T. Cook, Deceased, in the 44th Judicial District Court of Dallas County, Texas.” Appellants moved to strike the affidavit because: (1) sworn or certified copies of the pleadings, orders, exhibits, etc., referred to therein were not attached or served therewith as required by Subdivision (e) of Rule 166-A, T.R.C.P.; and (2) the document was not in reality an affidavit because no facts were contained therein. This motion was overruled.

We agree with appellants that appellee failed to carry the burden which she assumed when she filed her motion for summary judgment. Her second motion is subject to the same criticism made of the first by the Texarkana Court of Civil Appeals in Farley v. Cook, supra, as follows :

“The motion for summary judgment was sworn to, but the motion contained no evidentiary matter bearing upon the fact issues raised. No depositions, affidavits or admissions were filed. In short, genuine issues of material fact that Willie M. Graves Cook had the burden of proving were left unresolved.”

The so-called affidavit did not effectively prove or establish anything. It contained no facts which would have been admissible in evidence, and the attempt to incorporate as proof unsworn and uncerti-fied copies of other papers, pleadings, etc., was wholly ineffective. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274; Boswell v. Handley, Tex.Sup.Ct., 1965, 397 S.W.2d 213, 216.

Appellants’ second and third points of error are sustained.

By their fourth point of error the appellants say that the district court should have ordered the dismissal or abatement of appellee’s Application to Pay Claims and Transfer Funds because the matters there concerned were matters which were the subject of the prior pending appeal, citing Wiren v. Nesbitt, 85 Tex. 286, 20 S.W. 128, and other authorities. In view of the fact, however, that the Texarkana Court of Civil Appeals, in Farley v. Cook, supra, reversed the first judgment sustaining the first motion for summary judgment, and that appeal is therefore no longer pending, we consider this fourth point of error to be now moot.

The judgment appealed from is reversed and the case is remanded to the trial court with instructions to hear and determine the appeal from the order of the probate court de novo pursuant to Rule 337, T.R.C.P.

Reversed and remanded.