author: McDonald, judge.

text:
    Burl Eugene LYLES, Appellant, v. STATE of Texas, Appellee.
    No. 33826.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.

      O. E. Halsell, Odessa, for appellant.
    Jack Tidwell, Dist. Atty., Mike Berry, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is burglary at night with intent to commit theft; the punishment, eight years and six months in the penitentiary.

The appellant did not take the stand, nor did he adduce any evidence. The uncontra-dicted facts produced by the state in evidence reflect that Jack D. McCall was employed by the victim, Bill Hale. • One of McCall’s duties was to secure' the building and its contents before leaving each evening. This included making sure that the windows and the doors were closed and locked securely. McCall testified to making such a security check at about 6 or 6:30, p. m., on the evening preceding- the alleged offense and that at such time the building was secure with all windows and doors locked and closed.

Garland Sanders, another witness, also an employee of the victim, testified to opening the business the next day and discovering the burglary. This included finding the broken window and the debris from the safe scattered about in the parts room.

The witness Bill Hale, the victim, testified that he was the owner and operator of the Bill Hale Motor Company, located in Odessa, Texas. He testified to the remainder of the elemental facts of the offense, including the discovery that his safe and a pickup truck were missing.

Fred E. Johnson testified that he was a detective in the police department of- the city of Odessa and that he took a confession from the appellant. Another detective, Floyd C. Hudman, Jr., of the Odessa police department, testified with reference' to his investigation at the scene of the crime. Hudman also related the recovery of the big safe, the pickup truck, and the subsequent recovery of the smaller money vault.

Appellant, by informal bill of exception and by brief and oral argument, contends that the trial court erred in admitting testimony concerning the safe. He contends that since the safe had only been identified as State’s Exhibit #1 and that it had not been admitted into evidence that the court erred in allowing testimony pertaining to it. As qualified, appellant’s purported bill reflects a conference among the attorneys and the court in the presence of the appellant relative to the proposed exhibit at the time the exhibit was brought into the courtroom. The court suggested that it not be offered in evidence due to its 300 pound weight and bulk. Appellant agreed to said proposal. The exhibit was clearly admissible in evidence, under the facts of the case. We can find no harm attached to any testimony concerning this exhibit. The various witnesses could have referred to the safe, described it, and alluded to the money vault without reference to whether or not the exhibit was in the courtroom. This court has occasion to consider the practicability of certain exhibits from time to time. In the case of Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272, the court said: “We do not think the man who testifies that he found a horse must produce the horse before the jury before his testimony will be received.” We think the testimony of the witnesses with reference to the safe, State’s Exhibit #1, was admissible as was also the exhibit. See: Zoch v. State, 160 Tex.Cr.R. 620, 273 S.W.2d 622, 623.

Appellant next contends, by informal bill of exception, that the trial court erred in not excluding the confession, for the reason that Officer Johnson testified that he gave the warning that it would be used in evidence against him, in contrast to the words could or may.

We have carefully read the statement of facts and-find that the confession was tendered and received into evidence without any objection on the part of the appellant. Prior to the admission of the confession, the court recessed for fifteen minutes to allow appellant’s counsel time to read it. The confession was read to the jury, without objection. We note that the witness Johnson testified once on direct examination to the effect that the confession “would” be used against him, prior to the state offering it in evidence. The first objection by appellant’s counsel came some fifteen pages later, after the confession had been admitted and read to the jury. We think appellant waived any objection he might have had concerning the admissibility in evidence of the confession, and the contention is overruled. McCain v. State, 139 Tex.Cr.R. 539, 141 S.W.2d 613.

The next contention made is that the court erred in not instructing the witness Hudman to divulge the name of his “informer.” This court has many times held that an officer does not have to divulge the name of his informer. Shafer v. State, 151 Tex.Cr.R. 558, 209 S.W.2d 599; Phillips v. State, Tex.Cr.App., 328 S.W.2d 873; Sikes v. State, Tex.Cr.App., 334 S.W.2d 440.

Appellant next predicates error up-⅛ the action of the trial court in allowing the state to amend the indictment to show the proper term at which the grand jury was organized.

The indictment recited that it was returned by the grand jury at the September Term, A.D.1961, of said court; the endorsement and file mark of the clerk on the back of the indictment showed that it was filed on February 10, 1961. The court granted the state’s motion to amend the indictment by changing on the face thereof the number “61” to “60.”

We think the case of Grayson v. State, 35 Tex.Cr.R. 629, 34 S.W. 961, effectively disposes of appellant’s contention in this regard. In that case the question of the propriety of allowing the state to amend the indictment after the announcement of ready so as to make it show the organization of the grand jury at .the “September Term, 1895,” instead of reading “September Term, 189-,” was involved. In affirming the conviction, the court said:

“If this was a necessary, formal part of the indictment, the amendment should have been made before an announcement of readiness for trial by the parties, upon the exception urged. This amendment, in our opinion, was not necessary.”

This opinion further states that “this portion of the indictment might have been stricken out, without invalidating [it].” To the same effect, see Murphy v. State, 36 Tex.Cr.R. 24, 35 S.W. 174 and Reys v. State, 45 Tex.Cr.R. 463, 76 S.W. 457.

We find no harm or error in the action of the trial court in allowing the amendment of the indictment.

Appellant next contends that the trial court erred in failing to instruct the jury that it could not convict him on his confession, alone.

The rule in Texas,- historically, since the case of Kugadt v. State, 38 Tex. Cr.R. 681, 44 S.W. 989, has been that “a confession in sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant’s guilt in the minds of a jury beyond a reasonable doubt.” For other cases in point, see: Johnson v. State, Tex.Cr.App., 36 S.W.2d 748; Hernandez v. State, 165 Tex.Cr.R. 329, 307 S.W.2d 88. We think the case of Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, 562, sets forth explicitly the propositions of law which govern questions of the nature presented by appellant in this case. The court said, in that case:

“The confession of the guilty party alone is not sufficient to support a conviction for the offense, the confession must be corroborated.
“ 'Corroboration of the confession’ in effect means proof of the corpus delicti.
“ ‘Corpus delicti’ as used in this connection means proof of the fact that the crime charged has been committed by someone.”

Appellant urges us to follow the case of Randolph v. State, 122 Tex.Cr.R. 151, 54 S.W.2d 104. While we agree with the holding, we do not think it applicable to the case at bar. Randolph’s case is necessarily limited to the facts giving rise to the opinion. There was a question in Randolph independent of the confession as to whether or not the items stolen were taken by means of straight theft or by theft as a result of a burglarious entry.

The facts in the case of Estes v. State, 160 Tex.Cr.R. 632, 274 S.W.2d 411, are similar to the facts in this case. The evidence there showed that the owner of a drug store testified that it was broken into at night and some money taken from the cash register. The state produced an employee of the drug store, who testified that he had checked the drug store at 10 o’clock on the night in question and found it to be locked. Also, the investigating officer testified as to the results of his investigation, which showed that the door had been prized open and that he had seen the defendant in custody the next day. Added to that was the confession of the defendant. This conviction was affirmed on the basis of the rule that “where the State shows that a burglary has been committed by someone, the confession may be used to establish who the guilty party was.”

We overrule appellant’s contention.

Appellant also makes a contention concerning jury misconduct. There are no formal bills of exception nor supporting affidavits as to jury misconduct. Therefore this is not before us for review.

The sentence appearing in the record assesses punishment at eight years and six months. Not being indeterminate, the sentence is reformed to read not less than two years nor more than eight years and six months.

Appellant’s counsel is to be commended for his diligence in prosecuting this appeal.

Finding no reversible error, the judgment is in all things affirmed.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Ex parte Edgar THOMPSON, alias Richard Pressley.
    No. 32810.
    Court of Criminal Appeals of Texas.
    Oct. 18, 1961.
    Slagle, Hughes & Kennedy, by Charles E. Hughes, Sherman, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Georgia.

The executive warrant issued by the Governor of Texas directing the arrest of Edgar Thompson and his delivery to the agent of the State of Georgia for return to that state was introduced in evidence.

Being regular on its face, the warrant made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Emmons, 167 Tex.Cr.R. 544, 322 S.W.2d 534, and Ex parte Green, Tex.Cr.App., 340 S.W.2d 821.

Appellant predicates his appeal upon two contentions.

He first contends that the court erred in overruling his motion for continuance and in denying his petition for discharge because duplicates of the instruments accompanying the governor’s requisition had not been delivered to appellant or to his attorney, as provided by Sec. 3 of Art. 1008a, Vernon’s Ann.C.C.P.

The record reflects that two sets of the extradition papers were delivered to appellant’s attorney, which consisted of photostatic copies of the executive demand and certain instruments accompanying the same. One set was delivered to the attorney eight days prior to the date of hearing and the other set delivered four days prior to the hearing date. The latter set of instruments was certified by Zollie Steakley, Secretary of State of the State of Texas, as true and correct copies of the orignial requisition papers on file in the office of the Secretary of State from the Governor of the State of Georgia to the Governor of the State of Texas in the case of Edgar Thompson “who stands charged with the crime of robbery by force; robbery; escape * *

By legislative enactment in the passage of Arts. 3731b and 3731c, Vernon’s Ann. Civ.St., the legislature of this state has provided for the admission in evidence of photographic or photostatic copies of the originals of business and official records.

We hold that furnishing appellant’s counsel with photostatic copies of the instruments, duly certified by the Secretary of State as true and correct copies of the originals, was substantial compliance with the provisions of Sec. 3 of Art. 1008a, supra, which provides that such copies shall be in duplicate and one complete set of such instruments be delivered to the defendant or to his attorney.

While there were some discrepancies between the two sets of instruments furnished appellant, such as the absence of an official seal and an official’s signature on two of the instruments of the first set, the same was cured when appellant was later furnished with a complete set properly certified by the Secretary of State.

It is next contended that the court erred in refusing to discharge appellant because he was never properly identified as the accused.

In his amended application for writ of habeas corpus, which he signed and swore to under the name of Richard Pressley, appellant alleged—-among other grounds— “Further, your petitioner is not properly identified as the fugitive in question.”

It is the rule in this state that the initial burden of proof is on the demanding state to show the identity of relator with accused where such identity is put in issue, and although identity must be clearly established, the burden of going forward with the evidence shifts to the relator where a prima facie case of identity is made out, as by presumption arising from identity of name, that alone being sufficient, in absence of issue being raised, to .require relator to go forward with proof to the contrary. Ex parte Kaufman, Tex.Cr.App., 323 S.W.2d 48.

At the hearing, Deputy Sheriff Seaburn Haerrel, upon being called as a witness, testified that he knew a man alleged to be Edgar Thompson who had been going under the name of Richard Pressley, and positively identified appellant as such person. He further identified the appellant as the man,,arrested under the governor’s warrant and as the^man whose name was Edgar Thompson alias Richard Pressley. The deputy sheriff’s testimony as to the name by which appellant was known was not hearsay and inadmissible as such. 18 Tex.Jur., par. 69, page- 138; 24 Tex.Jur.2d, par. 564, page 77.

Appellant did not testify or offer any proof that he was not Edgar Thompson, the person named in the executive warrant.

Under the record and evidence presented, appellant was sufficiently identified as the person sought to be extradited.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    STATE of Texas ex rel. Will WILSON, Attorney General of Texas, Frank Briscoe, District Attorney, Harris County, Texas, Samuel H. Robertson, Jr. and Neil McKay, Assistant District Attorneys, Harris County, Texas, Relators, v. Judge Cullen W. BRIGGS, District Judge, 117th Judicial District Court, Nueces County, Texas, Respondent.
    No. 34250.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1961.

      Percy Foreman, Houston, for relator.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Neil McKay, Asst. Dist. Attys., Houston, and Will Wilson, Atty. Gen., of Texas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This' is an action seeking the issuance of Writ of Prohibition against the Respondent Cullen W. Briggs, Judge of the 117th Judicial District Court of Nueces County, Texas.

On January 29, 1959, Howard B. Stickney was convicted in Harris County, Texas, of murder and his punishment was assessed at death. The conviction was affirmed by this Court. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133, certiorari denied, 363 U.S. 807, 80 S.Ct. 1245, 4L.Ed.2d 1151.

Mandate issued June 18, 1960, and sentence was pronounced in the trial court on June 27, 1960, to be executed on August 12; 1960. ' - ■

Following various habeas corpus proceedings, during which Howard B. Stickney had received a number of stays of execution and reprieves, the execution of the death warrant was scheduled to be carried out before sunrise on June 10, 1961.

At’ 11:15 P..'M.'-.on June 9, 1961, the Respondent Cullen" W. Briggs, Judge of the 117⅛ District-Court, enjoined the execution and ordered Howard B. Stickney produced in his court at Corpus Christi, Texas, on June 14, 1961 for a hearing on a writ of habeas corpus. Hearing was had and the writ was granted, returnable before this Court. On October 11, 1961 we set aside the order staying the execution and denied the relief prayed for. Ex parte Stickney, Tex.Cr.App., 349 S.W.2d 732.

Mandate having issued and the Governor’s reprieve having fixed October 27, 1961 as the execution date, the execution was stayed by order of District Judge E. D. Salinas who, like the Respondent, is the judge of a judicial district far removed from Harris County where Stickney was convicted. Judge Salinas stayed the execution upon what he correctly described as “a legal and technical ground” bottomed upon the eleventh hour stay of execution granted by Judge Briggs.

On November 9, 1961, we set aside the order of Judge Salinas and denied the relief sought, noting in our opinion that Judge Salinas heard the application at the request of Judge Briggs, the Respondent herein. Ex parte Stickney, No. 34,220, Tex.Cr.App., 350 S.W.2d 564.

The last date set for the execution of the death warrant against Stickney was November 11, 1961.

Acting upon a petition presented to him eight minutes befófe’midnight on November 10, 1961, Judge Briggs again stayed the execution and set a hearing in his court in Nueces County for November 21, 1961.

Relators’ petition herein prayed for an order setting aside the order of Judge Briggs staying the execution, and an order directing Judge Briggs to take no further action or hold any further hearings on this application for habeas corpus.

We granted this relief on November 14, 1961 when we granted leave to file the petition herein.

Upon the Relators’ further prayer, we ordered and directed the Respondent to refrain from taking any further action by entertaining an application for a writ of habe-as corpus or otherwise with reference to Howard B. Stickney, and set hearing for November 22, 1961.

Howard B. Stickney and three of his attorneys were named as Respondents also, but in the petition no relief was prayed for as to them. We granted the Relators’ motion to dismiss them from the cause, and denied their motion for leave to intervene.

The Respondent Judge Briggs filed answer and oral argument was presented in his behalf. There is no denial on the part of Judge Briggs of any purpose to further prevent or delay the execution of the judgment and sentence against Howard B. Stickney, nor any assurance that he will not again order the execution stayed upon allegations that have been adjudicated against Stickney by this Court.

Respondent challenges the authority of this Court to issue the writ of prohibition, contending that the granting thereof would suspend the writ of habeas corpus and do violence to the statutes and constitution of this state, and would be an unlawful infringement by this Court on the jurisdiction of the 117th District Court of Nueces County, Texas.

We do not agree with such contention. To the contrary, it appears that only by the granting of relief such as prayed for may the original jurisdiction of this Court in habeas corpus cases be enforced. In State ex rel. Looney, Attorney General v. Hamblen, District Judge, 74 Tex.Cr.R. 526, 169 S.W. 678, a similar writ was issued directing the respondent district judge to dismiss a habeas corpus proceeding and make no further order thereabout.

The Court of Criminal Appeals is the court of last resort in this state in criminal matters. This being so, no other court of this state has authority to overrule or circumvent its decisions, or disobey its mandates.

The Constitution of Texas, Article V, Sec. 5, Vernon’s Ann.St., provides that this Court and the Judges thereof “shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction.”

The original jurisdiction of this Court to issue writs of habeas corpus is unlimited. Where the person claimed to be unlawfully restrained is under indictment, or has been finally convicted in a felony case, the authority of district judges in habeas corpus proceedings is limited by Art. 119, C.C.P., Vernon’s Ann.C.C.P. art. 119. After indictment and before conviction, the writ must be returnable in the county where the offense has been committed, on account of which the applicant stands indicted.

After final conviction in any felony case, the writ must be made returnable to this Court.

Art. 119, C.C.P. provides that the Court of Criminal Appeals may designate and direct any district judge or judges of this state to ascertain the facts necessary for proper consideration of the issues involved.

Respondent agrees that this Court has the authority to set aside and hold for naught stays of execution ordered by a district judge, yet he insists that he should not be prevented by order of this Court from again staying the execution at the eleventh hour, and thus deprive this Court of the opportunity to exercise such authority.

In this manner the Respondent has done, and may do, indirectly what he has no authority to do directly; that is, to stay the effectiveness of the decisions and mandates of this Court.

It is apparent from the records that Judge Briggs entertains a fixed conviction that Howard B. Stickney should not be executed. We assume that he is conscientious in his fixed determination to delay the execution of the death warrant until the orders of this Court be reviewed and Stickney’s conviction be set aside.

Judge Briggs has not only placed himself in the position of setting aside final judgments and orders of this Court, but, as the Relators point out, has assumed the role of advocate for Howard B. Stickney.

In the hearing before him in Nueces County, over objection of the District Attorney, he called witnesses to testify and permitted Stickney’s attorney to cross-examine them. One such witness was a psychiatrist he had appointed to examine Stickney. He erroneously asserted that he had authority to hold a sanity hearing in Nueces County, but the psychiatrist did not furnish proof that Stickney was legally insane.

After this Court had held that he was in error in granting a petition that this Court had denied, Judge Briggs contacted District Judge Salinas. We quote from Judge Salinas :

“Judge Briggs has called me and he seemed very distressed about this man being about to be executed and told me he felt very strongly that the man was innocent and he asked me if I would hear the application.”

The first ground upon which Judge Briggs stayed the execution set for November 11, 1961 was that which this Court had rejected and overruled on November 9, 1961.

The second ground was also one that this Court had found to be without merit by denying an application for habeas corpus, namely, that the death penalty was abolished by the adoption of Art. 3, Sec. 51-c of the Constitution of Texas. '

The third ground was that Stickney was denied due process by the refusal of the trial court to grant him leave to withdraw his notice of appeal and extend the time for filing an amended motion for new trial incorporating newly discovered evidence. This contention was decided against Stick-ney on the original appeal as well as in subsequent habeas corpus proceedings.

The following quotation is from the opinion of the Circuit Court of Appeals, 5th Circuit, in Stickney v. Ellis, Director, Texas Department of Corrections, 286 F.2d 755, 756.

“In his petition below, Stickney also charged that the State Court had denied him his constitutional rights in failing to grant a new trial for newly discovered evidence. On this charge the habeas corpus court held an extended hearing. At its conclusion, the trial judge held that the only evidence to support the charge was ‘fantastic and false’ and held that there was no merit in the claim. Appellant does not appeal from this ruling.”
“This record discloses no ‘vital flaw’ in the state court proceedings. Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361. In fact a reading of the record discloses that the trial court and counsel for the accused meticulously guarded all rights of the accused and adequately and properly dealt with each matter presented on his behalf.” (p. 760)

Though not made a ground in the application or in the order of Judge Briggs, there is suggestion at least that Judge Briggs delayed the execution in order to allow Stick-ney’s attorneys more time to obtain a review by the Supreme Court of the United States of the final judgment of this Court setting aside the stay of execution ordered by Judge Salinas.

While there is no doubt that judges the United States Courts have such authority, judges of the district courts of this state do not.

Justices and Judges of the Courts of the United States derive their authority to entertain writs of habeas corpus in behalf of a person in custody pursuant to a judgment of a state court from the Federal Statutes, Title 28 U.S.C.A. §§ 2251 to 2254. Title 28 U.S.C.A. § 2254, reads as follows:

“An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoners.
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”

The following quotation from Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 437, 448, 97 L.Ed. 469, relating to the authority of Federal District Courts under the cited statutes is deemed appropriate.

“Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guranteed by the United States Constitution it is not a case of a lower court sitting' in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause, of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.”

Judge Briggs has no greater authority or responsibility in death penalty cases tried in counties'not in his judicial district than any of the other more than 150 district judges of this state. If it be the law in Texas that every district judge must be satisfied before a death sentence may be carried out, and any district judge may prevent the execution of such a sentence upon grounds which this Court has rejected, then this Court is not a court of last resort in criminal matters in this state.

We conclude that it is necessary in order to enforce the jurisdiction of this Court that the Respondent be prohibited from taking any further action as district judge with reference to the death sentence against Howard B. Stickney and the execution thereof.

We, further conclude that in so ordering we preserve, rather than suspend, the writ of habeas corpus, and the availability of relief thereby in the Federal Courts.

The Respondent Cullen W. Briggs is ordered and directed to take no further action as district judge to delay or interfere with the execution of the sentence of death against Howard B. Stickney, by entertaining application for habeas corpus or otherwise. '

Writ of Prohibition will issue.


author: WILSON, Justice.

text:
    Pansy M. GRANT, Appellant, v. W. C. GRANT, Appellee.
    No. 3901.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1961.
    Rehearing Denied Nov. 30, 1961.
    Moore & Moore, Orgain, Bell & Tucker, Beaumont, for appellant.
    W. G. Walley, Jr., Everett B. Lord, Jack R. King, Beaumont, Crawford C. Martin, Hillsboro, for appellee.
   WILSON, Justice.

Appellee instituted this divorce action, and his wife filed a cross-action for divorce. No children were born of their marriage. Properties owned by them were alleged to be of value in excess of $7,000,000. Judgment was rendered on a jury verdict denying appellee’s prayer for divorce, and granting a divorce to appellant on her cross-action. The jury answered numerous issues submitted as to the character of various items of personal property. Realty is not involved in this appeal, and specific complaints relate primarily to disposition by the judgment of corporate stock. The record of several thousand pages is principally devoted to tracing complex transactions, to the nature of properties as being separate or community, and the physical condition of the parties.

Appellant attacks the judgment on the ground that there is no- pleading to authorize the court to do other than set aside to each of the parties their separate property and divide the community equally. Although this is the specific relief prayed for by appellant in her cross-action, appel-lee, in seeking order requiring statement of accounts, alleged that the properties owned by the parties “will be required to be divided between the parties in such a way as this court shall deem just and right, having due regard to the rights of the parties upon final hearing within the purview of Art. 4638 of the Revised Civil Statutes of Texas,” and that final determination of a “fair and just manner” of division would require an extended trial. Both parties prayed for general relief. Art. 4638 directs the court to order a division of the estate of the parties “in such a way as the court shall deem just and right, having due regard to the rights of each party,” and although as a general rule separate property will be restored to its owner, Fitts v. Fitts, 14 Tex. 450, as to personalty the court “is invested with wide discretion in disposing of any and all property of the parties, separate or community.” Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23; Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306, 313; and see Hailey v. Hailey, Tex.Sup., 331 S.W.2d 299, 302; Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682, 684. The contention is overruled. Lindsey v. Lindsey, Tex.Civ.App., 228 S.W.2d 878, 881; Scott v. Ft. Worth Nat. Bank, Tex.Civ.App., 125 S.W.2d 356, 362, writ dis.; Bagby v. Bagby, Tex.Civ.App., 186 S.W.2d 702, 704; Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403, 406, writ dis.; Caywood v. Caywood, Tex.Civ.App., 290 S.W. 889, 891.

There is evidence in this case from which the court was justified in exercising the authority vested by statute to set aside to the other certain separate property of either spouse. The case differs from Fuhrman v. Fuhrman, Tex.Civ.App., 302 S.W.2d 205, writ dis., in which the court said it had no such facts.

It is said the court erred in determining that it was not bound by findings of the jury that certain personalty was appellant’s separate property. We do not regard the judgment as necessarily constituting a determination by the court that the status or character of these properties was other than as found by the jury. In most instances, items of property found by the jury to have been appellant’s separate property were awarded to her by the judgment, and the judgment otherwise generally followed the jury findings except as to stock in three corporations. The judgment recited that the court found the division made was fair, just and equitable, with due regard to the rights of the parties, and awarded certain described personalty to appellant. It awarded all other personalty, whether theretofore separate or community to appel-lee. The fact that the separate character of some of the personalty awarded to appel-lee was fixed as a fact determination by the verdict, however, does not preclude its division as the statute authorizes in a proper case. The court was empowered to utilize the jury findings as to the status of the property as a basis for ascertaining what was “just and right” as the statute directs.

Most of appellant’s brief is devoted to contentions that the court erred “in setting aside” various findings of the jury which determined the character or nature of certain personalty. Although the judgment does employ language to the effect that the findings are “set aside,” it appears that the quoted language was limited and qualified to mean, as the judgment states, that the findings “are not binding upon the court” in division of the property; and we do not construe the judgment as necessarily meaning the court disregarded determination of the character of the property. Although Art. 4632 may be said to govern as to the right to have a jury determination of nature and character of property where the question is controverted, Art. 4638 governs the court’s powers and duties as to division. Consequently, no reversible error is shown. Turman v. Turman, Tex.Civ.App., 99 S.W. 2d 947, 949, writ dis.; Bagby v. Bagby, Tex.Civ.App., 186 S.W.2d 702, 707, no writ; Hamm v. Hamm, Tex.Civ.App., 159 S.W. 2d 183, 186, no writ; Scannell v. Scanned, Tex.Civ.App., 117 S.W.2d 538, 544, no writ; Tims v. Tims, Tex.Civ.App., 201 S.W.2d 865, 866, writ dis.; Baker v. Baker, Tex.Civ.App., 104 S.W.2d 531, 532, no writ; Becker v. Becker, Tex.Civ.App., 299 S.W. 528, 530, no writ; Helm v. Helm, Tex.Civ.App., 291 S.W. 648, 650, no writ; Fain v. Fain, Tex.Civ.App., 6 S.W.2d 403, 406, writ dis.; Lindsey v. Lindsey, Tex.Civ.App., 228 S.W.2d 878, 881, no writ; Daniel v. Daniel, Tex.Civ.App., 30 S.W.2d 801, 805, no writ; 17 Tex.L.Rev. 211.

Appellee asserts that the court erred in awarding appellant a divorce from him because she failed to prove ground for divorce by full and satisfactory evidence. The contention is overruled.

We are unable to say from this record that the court acted arbitrarily in any respect complained of, or that there is shown any abuse of discretion. All points have been considered and are overruled.

Affirmed.


author: WALTER, Justice.

text:
    F. Fox BENTON et al., Appellants, v. DOW CHEMICAL COMPANY, Appellee.
    No. 3674.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 17, 1961.
    Rehearing Denied Dec. 8, 1961.
    Burris, Benton & Zwiener, Houston, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
   WALTER, Justice.

Roy W. Champion filed suit against Dow Chemical Company for damages. The law firm of Burris, Benton & Zwiener represented Champion. Dow Chemical Company complied with the rules to secure Champion’s deposition. Champion failed and refused to appear for his deposition. Dow filed a motion to dismiss the plaintiff’s case under Texas Rules of Civil Procedure, rule 215a because he failed to appear. Champion’s attorneys filed their petition of intervention and alleged they had a contract with their client for a contingent interest in his claim. The material portion of the contract is. as follows: “For and in consideration of the services rendered to me by them, I hereby give and obligate myself to give and allow them, as their own compensation herein 331/3% of all that they may recover herein, whether in money or in kind, by compromise or settlement prior to the filing of suit, and 40% of all that my said attorneys may recover after the filing of suit by compromise or otherwise and 45% if the case is appealed to the Court of Civil Appeals, and I hereby sell, transfer, assign and convey to my said attorneys the respective undivided interest in and to my said claim as .set out above, against the aforesaid parties and to any judgment or judgments that I may obtain or that may be rendered to me or my heirs and assigns.”

From an order dismissing Champion’s case and his attorneys’ petition of intervention the intervenors have appealed contending the court should have allowed their petition to remain on the docket for trial. Champion has not appealed.

Champion alleged that Texas Employers Insurance Association had paid him workmen’s compensation insurance growing out of his accident and suggested that it be made a party to protect its statutory sub-rogation rights. Texas Employers Insurance Association was, therefore, a potential party. Dow, Champion and the intervenors were parties at the time the case was dismissed. Appellants and appellee have informed the court they have been unable to find a case in point on the question presented on this appeal. We have found none.

Sec. (c), 215a, T.R.C.P. provides, in substance, that if a party fails to appear for his oral deposition after proper service of subpoena, the court is authorized to strike out all or any part of any pleading of "that” party or dismiss the action.

Attorneys have the right to contract with their clients for a contingent interest in their law suit as compensation for their services. “Since an assignee may sue in his own name, an' attorney to whom part of a c'aiise of action has been assigned may prosecute the assigned cause of action for damages to a judgment and recover his share thereof, although the client may have assumed to compromise the cause with the defendant or person liable. In other words, the attorney may proceed on the cause, pleading and proving liability on the part of the defendant and the quantum of damages, and may recover his part of the damages as established. If the client has ordered the cause to be dismissed, the attorney has a right to intervene in the suit, and to prosecute it to a conclusion, in order to realize on his part of the claim.” 7 Tex. Jur.2d 158, 159.

The court was authorized to dismiss Champion’s case because he failed to appear for his oral deposition. But it was not shown that the intervenors failed to comply with any of the pre-trial procedures or violated any of the rules which would have authorized the court to dismiss their case. The judgment is therefore reversed and the cause is remanded.

Judgment reversed and remanded.


text:
    STATE of Texas, Appellant, v. George E. WILLEY et ux., Appellees.
    No. 3911.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.

      Will Wilson, Atty. Gen., for appellant.
    Hustmyre & Harris, Orange, for ap-pellees.
   WILSON, Justice.

Appeal from judgment in a total taking condemnation action based on the answer of the jury to a single issue as to the value of the strip acquired.

In 1951 Orange County acquired a strip of land from appellee as right-of-way for a designated conventional free-access state highway. This tract will he referred to as Tract A. In 1956 appellee subdivided land he owned adjoining this right-of-way tract A, and sold lots from the subdivision. At that time no highway construction had commenced on tract A.

After 1956 the State Highway Commission altered its plans and designated an interstate limited-access highway along the route earlier designated, which required acquisition of the additional tract taken by the present proceedings for construction of an overpass. This latter land will he called tract B. Contract for construction of the interstate highway, let in 1957, called for it to be built on tract A as well as the subject tract. Tract B, here involved was taken in T958. Tracts A and B are adjacent. -

Appellant’s basic point is that the- court erred in admitting opinion evidence as to the value of Tract B based in part on enhancement of its value due to the prior acquisition of tract A for highway purposes. The contention is that this permitted appellee to recover damages based on benefits resulting from the very project for which the present proceedings were instituted.

It is settled that a “condemnor should not have to pay the increased value of property taken, due to the public improvement itself.” City of Dallas v. Shackelford, 145 Tex. 528, 199 S.W.2d 503, 505; State v. Vaughan, Tex.Civ.App., 319 S.W.2d 349, 356, no writ; Rayburn, Texas Law of Condemnation, Sec. 156(2), p. 451; 1 Orgel, Valuation Under Em. Domain (2d ed., 1953) Sec. 98, p. 425.

This, however, is not the present situation. Appellee and his witness on value testified as to values based on what comparable land in the subdivision adjacent to tract A had sold for; and as to prices at which adjacent land had sold for in 1956 to people with knowledge that tract A had already been acquired as right-of-way for a designated state highway. The record does not show these witnesses considered increment in value of tract B resulting from the contemplated or projected construction of the interstate highway, as distinguished from that resulting from actual prior acquisition of tract A for the highway originally designated. The witness Davis referred to a “super-highway”, but testified that in appraising value of tract B he was considering the right-of-way “already acquired.”

The rule here applicable is stated in 4 Nichols, Em. Domain, (3rd ed. 1951) Sec. 12.3151(3), p. 127: “If a definite area has already been condemned, the market value of the neighboring property is naturally affected thereby. If an enhancement in value results such property is entitled to the benefit thereof. It follows that if the original project is subsequently enlarged so as to embrace additional property, such additional property as is involved in the supplemental taking is entitled to the benefit of any enhancement in value which resulted from the original taking.” The rule is similarly epitomized in Jahr, Em. Domain (1953) Sec. 94, p. 131. 1 Orgel, supra, Sec. 104, p. 443 summarizes this rule: “While the decisions of courts are not in accord on the question of whether an enhancement in value caused by the very improvement for which the land is taken should be considered, they would probably all agree that an increase in value resulting from a prior and separate improvement should be allowed.” This rule is applied by that authoritative text writer to projected prior and separate improvements and anticipated benefits therefrom.

Appellant cites City of Dallas v. Shackelford, supra; City of El Paso v. Coffin, 40 Tex.Civ.App. 54, 88 S.W. 502; writ dis.; McChristy v. Hall County, Tex.Civ.App., 140 S.W.2d 576, 577 no writ. These decisions are against appellant, but it seeks to distinguish them on the ground that in the instant case the improvements on tract A had not been actually constructed or contracted for when the enhancement in value to tract B occurred. That distinction was not a part of the ratio decidendi of the Shackelford case. It is true that there the city had built a shed on a proposed market place (corresponding to tract A here) completion of which was deferred pending cessation of war. But the Supreme Court held that as to the tract equivalent to present tract B it was proper to consider enhancement in value “due to the previous steps taken” by the condemnor to establish a public market. It emphasized the fact the ap-pellee’s property (tract B here) had not been designated originally “for immediate acquisition by purchase or condemnation”, and held the owner should not be deprived of benefits to which he would have been entitled had his land not been condemned. In McChristy v. Hall County, the initiation of the enterprise to establish the road, “the procedure by which the original right-of-way for the road was procured”, and the definite establishment of the location of the road were what were spoken of as being accomplished. The construction contract was referred to as emphasizing that the subsequent supplemental taking was an independent proceeding. In this, and in the Coffin case, the construction factor merely augmented the basis for the holding. We overrule the contention. San Antonio & A. P. Ry. Co. v. Ruby, 80 Tex. 172, 15 S.W. 1040, 1042; Gulf C. & S. F. Ry. Co. v. Brugger, 24 Tex.Civ.App. 367, 59 S.W. 556, 558; Aycock v. Houston L. & P. Co., Tex.Civ.App., 175 S.W.2d 710, syl. 17, writ ref. w. m.

A more difficult problem arises on these facts: Appellant presented a motion in limine asking the court to suppress any statement or reference by appellee’s counsel or witnesses relating to participation by the Federal Government in payment of acquisition cost. The motion was overruled. On voir dire examination of the venire appellee’s counsel objected to appellant’s statement that the Constitution requires the State to pay adequate compensation, and stated the facts would show “the Federal Government has obligated itself to pay up to 90% of the cost of this right-of-way”, and asked the court to instruct appellant’s counsel to tell the jury these facts, because otherwise the impression would be left “that the State is paying the entire cost of this right-of-way, which is not true.” After a colloquy concerning the matter, the record shows:

“The Court: The objection is sustained.”
“Appellant’s Counsel: Well, Judge, where does that leave me?”
“The Court: It leaves you to tell the jury that the Federal Government and the State of Texas will pay for this right-of-way.”

The court then instructed counsel to tell the jury “that the Federal Government will pay part of it or will liable to have to pay part of it,” to which appellant excepted. Appellee’s counsel thereafter told the jurors that if the Federal Government approved the project it would pay 90% of the cost, and that the jurors should not be persuaded, “regardless of who pays for it,” to do other than be fair and impartial in finding fair market value. Appellee’s counsel was thereafter permitted to elicit from appellant’s engineer, over general objection, that it was “his understanding” that depending on approval, the Federal Government had “obligated itself to pay up to 90% of the cost of this program.” The jury found the precise market value shown by appellee’s evidence, which was several times that shown by the evidence of appellant.

Appellee says his interrogation of this witness was proper since the jury had already been apprized of the same facts on voir dire, and the error was waived because the objection was general and the court was not pressed for a ruling. The preliminary motion fully preserved the points, and appellant certainly did not acquiesce in the voir dire examination.

These , facts, coupled with the court’s express mandate that the jury be told of Federal contribution, clearly reflect error. The only problem for determination is whether the error is harmless or reversible under Rule 434, Texas Rules of Civil Procedure. In St. Clair County Housing Authority v. Quirin, 379 Ill. 52, 39 N.E.2d 363, 366, the condemnee’s attorney was permitted over objection to question jurors on voir dire as to whether the fact that the United States Government was interested in the project (for which a municipal corporation was condemning land), or was financing it in whole or in part, would influence them in their verdict. The Illinois harmless error rule was stated to require “a clear and palpable mistake or the verdict”, or that “the verdict was the result of passion and prejudice.” The Supreme Court pointed out that the narrow issue of damages in a condemnation case could not be broadened, nor the jury influenced, by interjection of prejudicial matters, and whether the judgment was ever paid, or who paid it were not questions to be considered. In reversing, it said:

“Appellees having intentionally asked these questions, which amounted to an invitation to the jury that it might as well be liberal with the money of the richest nation in the world, are in no position to offer any excuse whatever for the error which they deliberately caused. To temporize with or to condone such conduct as this would constitute a standing invitation for every lawyer who saw fit to do so to go just as far as he could and take a chance on going just a little bit further in getting immaterial ■ and prejudicial matter before a jury.”

We agree with the Supreme Court of Illinois. The judgment is reversed and the cause remanded.


text:
    STATE of Texas, Appellant, v. George E. WILLEY et ux., Appellees.
    No. 3916.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Dec. 7, 1961.
    Will Wilson, Atty. Gen., Jot Hodges, Jr., Asst. Atty. Gen., for appellant..
    Iiustmyre & Harfis, 'Orange, for ap-pellee.
   WILSON, Justice.

In this jury condemnation action the State took 3.221 acres from appellees’ 104 acre tract.

The State complains of the definition of “market value” given in the charge as the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, “taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.” The objection is that the quoted wording is proper only where zoning restrictions exist which will probably be lifted within a reasonable time, as suggested in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815.

There is no evidence in this case relating to zoning restrictions. The State says it was reversible error, therefore, to add the language complained of to the definition. In Cannizzo it was said that under the hypothesis presented, no violence would be done to the “market value” definition in State v. Carpenter, 126 Tex, 604, 89 S.W.2d 194, 979, 980 by adding the quoted words. Appellant’s deduction therefrom is that in the absence of the evidence hypothesized, the addition requires reversal. It relies on Frost v. State, Tex.Civ.App., 284 S.W.2d 232; Eubank v. State, Tex.Civ.App., 330 S.W. 2d 510, writ ref. n. r. e.; South v. Texas Eastern Transmission Corp., Tex.Civ.App., 332 S.W.2d 442 and Continental Dev. Corp. v. State, Tex.Civ.App., 337 S.W.2d 371. These cases do not imply that giving the instruction complained of was error; they merely hold that it is not error, absent evidence as to zoning restrictions, to refuse the requested Can-nizzo definition.

' In our case, appellant states witnesses fot'appellant and appellees “were in agreement that the highest and best use of the subject property was for subdivision into residential homesites, with some commercial sites.” The record thereby makes it more nearly analogous to State v. Albright, Tex.Civ.App., 337 S.W.2d 509, 511, writ ref. n. r. e., where appellant’s present contention was rejected. We hold the giving of the instruction was not reversible error. We point out, however, that the Supreme Court stated in the Cannizzo case, 153 Tex. 324, 267 S.W.2d 808, 814, that the standard Carpenter definition “would permit consideration of all uses to which the property was reasonably adaptable and for which it was, or in reasonable probability would become, available within a reasonable time.” The language here complained of encompasses no more, therefore, than is held to be included in the Carpenter instruction, and in the interests of simplicity and safe practice might well be omitted.

Appellant presents other points relating to admission of evidence. We have fully considered them and they do not reflect reversible error. We think the evidence supports the verdict, which it is said is excessive. Appellant’s points are overruled and the judgment is Affirmed.


text:
    STATE of Texas, Appellant, v. J. I. CARTWRIGHT, Sr., et al., Appellees.
    No. 3929.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Nov. 30, 1961.
    Will Wilson, Atty. Gen., W. T. Blackburn, Asst. Atty. Gen., for appellant..
    George A. Weller, Beaumont, for ap-pellee.
   WILSON, Justice.

In this condemnation case appellant complains of refusal of its requested instruction to the jury: “Since the strip of land under condemnation ’ is within the right-of-way for a highway which the State of Texas is acquiring, you are instructed that in arriving at your answer to Special Issues numbers one and two you shall not take into consideration any increase in value, if any, which may have accrued to defendant’s land due to location of the highway on such site.”

In answer to Special Issue 1, the jury found the market value of 3.528 acres taken to be $19,404 immediately before the date of taking. In answer to the second issue the jury found the pre-taking value of the remaining tract. To a third issue the jury found the market value of the remainder had doubled immediately after the taking.

Appellees’ witness gave his opinion that the tract taken had a market value of $5500 per acre, stating he arrived at his valuation “primarily by comparing sales of property in that area,” which he then detailed. On cross-examination he testified “knowledge of this freeway” had influenced land values, and that knowledge of the location of the interstate highway for which land was being acquired was “reflected in all those comparable sales.” The court sustained appellees’ objection to appellant’s inquiry to the witness as to what the value would be, disregarding the freeway. Ap-pellees’ objection was that values were to be determined as of the 1958 taking date, and “if they wanted to take this property back in 1954 when the project was started they had the same right to do it as they had to take it in 1958. But they didn’t, and they couldn’t sit down for four years in peace, and tie up this man’s land for four years and then let it be worth $6000 or $5500 an acre on the date they came in, and at that time try to roll back the price to 1954; ” and that what the property was worth in 1954 was too speculative. Appellant insisted the property should be valued as if the highway was not pro-j ected.

On the bill of exception it was developed by the witness that in making his estimate of values the purchase price of sales asserted to be comparable in value was enhanced because of imminence of the contemplated freeway; that in his opinion the market value of the subject property as testified to, would be less “if the freeway had not been going through there”; that increase in value “was reflected in the sales of comparable property,” and his opinion given as to values was as of the date of taking. Although appellant’s evidence was to the effect the value of the tract taken was $3500 per acre, the jury found the value to be the identical amount testified to by this witness for appellees.

Having refused appellant’s requested instruction, the court instructed the jury that “even though the condemnation of a portion of a tract for highway purposes and the proposed use of it by the State increases, rather than decreases the value of the tract as a whole, the owner is nonetheless entitled to compensation based upon the market value of the land actually taken for highway purposes at the date of such taking.”

Although in the usual eminent domain proceeding the instruction might not be required, we think the refusal of the requested instruction under the entire record in this case was clearly reversible error. State v. Vaughan, Tex.Civ.App., 319 S.W. 2d 349, 356; Vey v. City of Fort Worth, Tex.Civ.App., 81 S.W.2d 228, 231, writ dis.; Too Fan v. City of El Paso, Tex.Civ.App., 214 S.W.2d 158, 159; 1 Orgel, Valuation under Eminent Domain (2d ed. 1953) Sec. 98, p. 425; Rayburn, Texas Law of Condemnation, Sec. 156(2), p. 451; and see City of Dallas v. Shackelford, 145 Tex. 528, 199 S.W.2d 503; Housing Authority v. Hubbard, Tex.Civ.App., 274 S.W.2d 165, 167; City of El Paso v. Coffin, Tex.Civ.App., 88 S.W. 502, 505, writ dis.; Robards v. State, Tex.Civ.App., 285 S.W.2d 247, 249, writ ref. n. r. e.

There is a distinction between enhancement in value resulting from prior and separate acquisition for a previous improvement, and increase in value resulting from the very improvement, contemplated and projected, for which the land is being acquired. 1 Orgel, Valuation under Eminent Domain, Sec. 104, p. 443; and see State v. Willey, No. 3911, this day decided, 351 S.W.2d 900.

Other errors complained of are collateral to the matters discussed, or are not likely to occur on another trial. Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    STATE of Texas, Appellant, v. George E. WILLEY et al., Appellees.
    No. 3915.
    Court of Civil Appeals of Texas. Waco.
    Nov. 16, 1961.
    Rehearing Denied Dec. 14, 1961.
    Will Wilson, Atty. Gen., Jot Hodges, Jr., Asst. Atty. Gen., for appellant.
    Hustmyre & Harris, Orange, for ap-pellees.
   McDONALD, Chief Justice.

This is a condemnation case. Parties will be referred to as in the Trial Court. Plaintiff, State of Texas, instituted this suit for the condemnation for highway purposes of .483 of an acre in Orange County, owned by defendants. Trial was to a jury which, in answer to special issues, found: 1) The market value of the .483 acres condemned, at the time it was condemned, was $1875.; 2) The market value of the remainder of defendants’ land before the taking was $25,000.; 3) The market value of the remainder of defendants’ land- after the taking was $22,500. The Trial Court rendered judgment on the verdict, for defendants, for $4375.

Plaintiff appeals on 13 points, principally contending: 1) The Trial Court erred in overruling plaintiff’s objection to testimony of sales of real property, which would not have sold for as much money, except for the location of the highway. 2) The Trial Court erred in not striking the testimony of the witness Davis because he based his values on an erroneous definition of market value. 3) The Trial Court erred in permitting testimony over plaintiff’s objection that the defendants were not willing sellers. 4) The Trial Court erred in its definition of' “market value” in its charge to the jury. . , .

We revert to plaintiff’s 1st contention that the Trial Court erred in admitting testimony of sales of real property, which would not have been sold for as much money, except for the location of the high-wa3>-. The original right of way for the highway was acquired by plaintiff in 1951 for construction of a conventional highway. In 1956 the Federal Highway Act became effective under which the Federal government participated in highway construction under certain conditions. Defendants’ land involved in this case was additional land, taken in 1958, for the construction of an overpass over the existing (1951) right of way. The witness Davis testified, over objection, as to land sales in the vicinity, for prices which he admitted- would not have obtained, except for location of the highway by virtue of the 1951 taking.

It is settled that a condemnor should not have to pay the increased value of property taken, due to the improvement itself. City of Dallas v. Shackelford, 145 Tex. 528, 199 S.W.2d 503; State v. Vaughan, Tex.Civ.App. (n. w. h.) 319 S.W.2d 349.

This, however, is not the present situation. Here we have two takings. The 1st taking was in 1951, and was for construction of a conventional free access highway. The 2nd taking was in 1958, and was for the construction of an overpass over the 1951 highway right of way. The witness complained of, considered increase in value, resulting from the 1951 taking, and not increase in value resulting from the 1958 additional taking (which is here involved). In the situation here involved, the rule is that, an increase in value resulting from a prior and separate taking should be allowed. As stated by this court in (No. 3911 10th Court) State v. Willey, 351 S.W.2d 900, 902: “If a definite area has already been condemned, the market value of the neighboring property is naturally affected thereby. If an enhancement in value results such property is entitled to the benefit thereof. It follows that if the original project is subsequently enlarged so as to embrace additional property, such additional property as is involved in the supplemental taking is entitled to the benefit of any enhancement in value which resulted from the original taking.” We overrule the contention.

Plaintiff’s 2nd contention is that the testimony of the witness Davis should have been stricken because he based his values upon an erroneous definition of market value. The witness Davis qualified as an expert real estate broker and appraiser. He testified that the value of the land taken was. of the fair market value of $2,000., and that the remainder was worth $25,000. before the taking, and $20,000-., after the taking. He further testified that he was familiar with the subject property and adjacent pieces of property. On cross examination counsel for plaintiff asked the witness Davis to give his definition of ■“market value”. Davis replied: “that market value is the price at which a willing buyer will pay for a piece of property to a willing seller under existing circumstances.” Plaintiff moved to strike Davis’ testimony because he predicated same upon an erroneous definition of “market value.” The Trial Court overruled such motion. We perceive no error. The witness was qualified beyond any doubt to testify as to values. The objection made goes to the weight rather than to the admissibility of Davis’ testimony. City of Teague v. Stiles, Tex.Civ.App. (n. r. e.) 263 S.W.2d 623. Moreover, it is largely discretionary with the trial judge as to what witness is qualified to testify as to market value, and that discretion will not be disturbed, absent a clear abuse thereof. State v. Evans, Tex.Civ.App. (n. r. e.) 340 S.W.2d 99. The contention is overruled.

Contention 3 is that the Trial Court erred in permitting testimony that the defendants were not willing sellers. On cross examination of plaintiff’s witness, Hall, by defendants’ counsel, defendants’ counsel propounded questions which reflected that defendant was not a willing seller. Plaintiff objected to such line of questioning. The Trial Court sustained such objection. The pliantiff’s witness Hall had previously testified on direct examination: “I had considered the fact that if he had been a willing seller”, and we think plaintiff invited the error, if any. The matter, if error, was harmless. Rule 434, Texas Rules of Civil Procedure. City of Mart v. Hasse, Tex.Civ.App., W/E dism’d., 281 S.W. 318. Further, inasmuch as common sense tells us that the condemnee in a condemnation suit is not a willing seller, mention of such fact already known to all involved could not possibly produce harm. Contention 3 is overruled. ” ■ '

Plaintiff’s 4th contention is -that the Trial Court erred in its definition of “market value” in its charge as follows:

“You are instructed that the term ‘market value’ is the price which the property would bring when it is offered for sale by one who desires, but is not obliged to sell, and is bought by one who is under no necessity of buying it, taking into consideration all of the uses to which it is reasonably adaptable and for which it either is or in all reasonable probability will become available within the reasonable future.”

Such definition was approved by our Supreme Court in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808. Plaim, tiff contends that since there.was no evP dence of zoning restrictions prohibiting use for the land for commercial purposes, there was no evidence of probable change in this respect in the reasonable future, hence the definition of market value approved by our Supreme Court in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979 should have been used. (Such definition is the same except it stops with the words “buying it”, and deletes the last phrase “taking into consideration * * * etc.”).

While the record reflects that the property’s best use was for residential purposes,' there is evidence that small tracts near the property sold for industrial sites. We think the definition under the facts proper, and in any event certainly not reversible error. See State v. Willey, Tex.Civ.App., 351, S.W.2d 904 (No. 3916 10th Court).

We have carefully considered plaintiff’s points and the contentions thereunder made, and overrule same.

The judgment of the Trial Court is affirmed.


author: DENTON, Chief Justice.

text:
    Willie TERRELL v. W. T. VANDERGRIFF d/b/a Community Finance Company.
    No. 7130.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 4, 1961.
    Byron L. McClellan, Gatesville, for appellant.
    Jones, Phillips, Barnes & Watkins, Dallas, for appellee.
   DENTON, Chief Justice.

This is a venue case. On December 21, 1960 appellee, as plaintiff below, filed suit against appellant on a note and a written conditional sales contract. On January 23, 1961 appellant, defendant below, filed his plea of privilege. It was duly verified and no question has been raised relative to its being properly served on the attorney for the adverse party. Plaintiff filed no controverting affidavit, but on February 20, 1961, in open court, plaintiff orally objected to the plea of privilege on the ground it was insufficient and presented nothing for adjudication by the court. This motion was reduced to writing and filed on February 24, 1961. On March 23, 1961 the trial court entered an order overruling, the plea of privilege, and ordered the case to remain in that court in Dallas County. , It is from that order that the appellant duly perfected this appeal. The basic question to be determined is whether or not the plea of privilege was sufficient under Rule 86, Texas Rules of Civil Procedure.

Defendant’s plea of privilege alleged the defendant was not at the institution of the suit, nor at the time of service of process therein, nor at the time of filing such plea, a resident of Dallas County, Texas, the county in which such suit was instituted. The plea further states that at these pertinent times defendant’s residence was in Gatesville, Coryell County, Texas, and that his postoffice address was 2600 East Main Street, Gatesville, Texas; and that no exception to exclusive venue in the county of one’s residence provided by law exists in said cause. The plea further alleged, “This suit is not commenced in the proper county.” The plea’s prayer read as follows: “Wherefore, defendant prays the Court to sustain this plea of privilege together with all costs herein expended.”

Although plaintiff’s objection to the plea of privilege merely alleges the plea is ■“insufficient as a matter of law,” by brief the objection is made that the plea of privilege in insufficient in that it made no request that the case be transferred but simply challenged the venue in Dallas County. In effect plaintiff is now contending the plea of privilege is insufficient in that its prayer does not specifically pray that the suit be transferred to a particular county. Plaintiff relies on Tempelmeyer v. Blackburn (Comm.App.) 141 Tex. 600, 175 S.W.2d 222 (opinion adopted) to support its position. In our opinion this case is not controlling on the question before us. There the primary issue was the effect of a non-suit as to one defendant after its plea of privilege and plaintiff’s controverting affidavit had been filed and before the trial court announced a decision on the venue question. The court held the taking of the non-suit became res judicata on the issue of'venue, precluding the plaintiff from making such defendant a party defendant to the same action when venue as to other defendants was changed to a third county. Other language in the opinion which dealt with the legal effect of a plea of privilege was not relative to the sufficiency or insufficiency of the form of the plea of privilege. That question was not in issue.

In our opinion defendant’s plea of privilege fully complied with the provisions of Rule 86. All allegations required by this rule were set out in the plea. In our opinion defendant’s prayer that the trial court “sustain this plea of privilege” sufficiently complied with the applicable rule. No case has been cited and we have found none which requires the prayer to specifically seek a transfer of a case to a designated county. Although we are of the opinion it is better practice to pray that the case be, transferred to a particular county, we do not think such an omission is fatal when all requirements of Rule .86 are met. It. is to be noted that Rule 86 makes no reference to the prayer of a plea of privilege.

It has been held that a statutory plea of privilege is more than a pleading. It is prima facie proof of defendant’s right to have venue changed from the county in which suit was filed to the county named in the plea of privilege. Tempelmeyer v. Blackburn, supra; Stull’s Chemicals v. Davis (Civ.App.) 263 S.W.2d 806 (no writ history); Anderson v. Southwestern Presbyterian Home and School for Orphans (Civ.App.) 248 S.W.2d 775 (error dismissed) ; Pool v. Sanders (Civ.App.) 241 S.W.2d 739 (no writ history). We are therefore of the opinion and so hold the form of the plea of privilege was sufficient, and was not subject to plaintiff’s general obj ection.

Having concluded the plea of privilege was sufficient and contained all the necessary allegations, and it appearing that no controverting affidavit was filed, the trial court erred in overruling defendant’s plea of privilege. Under these circumstances the case now comes within the well-settled rule of law that where a defendant has filed a plea of privilege to be sued in the county of his residence and gives notice thereof in accordance with the provisions of Rule 86, T.R.C.P., and the plaintiff fails to controvert such plea within ten days thereafter, the trial court possesses no jurisdiction over said cause other than the authority to enter an order transferring the case to the county of the defendant’s residence as set forth in the plea of privilege. John E. Quarles Co. v. Lee (Comm.App.) 58 S.W.2d 77; Bell v. Jasper Lbr. Corp. (Civ.App.) 287 S.W.2d 746 (writ dismissed); Bogle v. Landa (Comm.App.) 127 Tex. 317, 94 S.W.2d 154 (opinion adopted).

We are aware of the rule that insufficiency of a plea of privilege may be tested by exceptions, and that in such cases controverting affidavits are unnecessary. Peacock v. Bradshaw (Sup.Ct.) 145 Tex. 68, 194 S.W.2d 551; Duncan v. Glasscock (Civ.App.) 118 S.W.2d 658 (no writ history). In cases so holding, however, there was an insufficiency of the plea of privilege appearing on its face. Here there is no insufficiency, and the plaintiff failed to file a controverting affidavit in the alternative at its own risk.

The judgment of the trial court is therefore reversed . and the trial court is instructed to enter an order transferring this case to the County Court of Coryell County, Texas.


author: WILLIAMS, Justice.

text:
    Byron O. BURNETT, Appellant, v. Alex MELETIO, Jr., et al., Appellees.
    No. 15927.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 3, 1961.
    Rehearing Denied Dec. 1, 1961.

      Wm. Andress, Jr., Dallas, for appellant.
    Matthews & Matthews, Dallas, for ap-pellees.
   WILLIAMS, Justice.

On June 18, 1959 Alex Meletio, Jr., and others brought this suit in a District Court against Byron O. Burnett in which judgment was sought upon itemized sworn account. The record, as corrected by affidavit of the District Clerk, reveals the notary seal was not actually impressed as a part of the jurat in support of the verified account. The defendant, Byron O. Bitrnett, through his then counsel Grover Hartt, Jr., filed his first amended original answer in which he denied the justness of parts of the account sued upon and also asserted that certain credits had not been properly allowed. This answer was duly verified by defendant. On May 17th, 1960 Grover Hartt, Jr., filed his application to withdraw as attorney for defendant Burnett, said motion asserting failure of the client to cooperate and to accept the advice of his attorney. The court entered an order granting the application of defendant’s attorney to withdraw. In said order, dated May 17th, 1960 the trial court said: “It is further Ordered, Adjudged and Decreed that said defendant, Byron O. Burnett, having received notice of withdrawal of his attorney, is instructed to retain counsel if he so desires and respond to the pleadings of plaintiffs by Monday May 30th, 1960.” Thereafter, on the 8th day of June 1960 judgment was rendered against defendant for $1,824.04, plus interest. This judgment recited: “On the 8th day of June 1960, came on for hearing, the above styled and numbered cause, and came plaintiffs and announced ready for trial, and the defendant, though having heretofore answered herein and being duly notified of the date and hour of the trial appeared not, and no party hereto having requested a jury, this cause proceeded to trial before the court, and the court having heard the evidence, pleadings, and argument of counsel, and being of the opinion that the law and facts are in favor of the plaintiffs * * *

Defendant, appearing through his present attorney, William Andress, Jr., filed his motion for new trial on June 17th, 1960 in which he sought to have the judgment nil dicit entered on June 8th, 1960 set aside. The motion for new trial is set forth in footnote. On November 1st, 1960 the trial court, reciting due notice to all parties and a hearing in court, overruled the defendant’s motion for new trial.

By his first three points on appeal appellant complains of the judgment because (a) the sworn account is not sufficient to sustain the judgment because the affidavit does not bear a notarial seal and is therefore a nullity; (b) the sworn account, after sworn denial, is no evidence to support the judgment; and (c) the judgment, consisting of a purported sworn account without notarial seal denied under oath, is without evidence to support it. These points having to do with the same general subject matter, may be considered together. Appellant places great weight upon the fact that the affidavit in support of the verified account does not contain a notarial seal and therefore would not be admissible in evidence to support the judgment. McKellar v. Peck, 39 Tex. 381; Missouri Pacific Ry. Co. v. Brown, Tex., 53 S.W. 1019 and McDonald v. Stanfield, Tex.Civ.App., 197 S.W. 892. Even so, when appellant filed his verified answer to the original petition in this case such had the effect of neutralizing the legal effect of any verified petition and places the burden of proof upon the plaintiff to prove his cause of action by a preponderance of the evidence. Burtis v. Butler Brothers, Tex.Civ.App., 243 S.W.2d 235.

Appellant’s argument under his first three points postulates the non-existence of any evidence other than the defective verified petition. The record does not support appellant in this assumption. The trial judge filed a certificate in which he stated that when the case was called for trial plaintiffs introduced evidence on the witness stand both oral and company records. Moreover, the judgment itself recites that the court heard evidence prior to the rendition of the judgment. There is no statement of facts nor is there findings of fact and conclusions of law by the court. It is well settled that where there is no statement of facts it will be presumed that the evidence supports the judgment of the trial court, unless there is something in the judgment that affirmatively shows the trial court did not dispose of the case on the basis of the evidence before it. Where the judgment recites that evidence was heard it is to be presumed that the trial court correctly performed its duty and disposed of the case by finding the facts in a manner supported by the evidence and correctly applying the law to the facts as found by it. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683; Kavanagh v. Holcombe, Tex.Civ.App., 312 S.W.2d 399. We find nothing in this record to indicate that the trial judge did not correctly perform his duty after hearing evidence and applying the law thereto. It necessarily follows that t here is no merit to appellant’s first three points of error.

Another reason why said points are not well taken is found in the fact that nowhere in appellant’s motion for new trial filed in the trial court does he present the question of no evidence or insufficient evidence to support the judgment. While it is true that in a case tried before the court a motion for new trial is not essential for appeal, yet it is equally true that when a motion for new trial is filed the moving party, on appeal, is confined to the assignments presented in said motion. Rule 323, Texas Rules of Civil Procedure; Humphreys v. Humphreys, Tex.Civ.App., 200 S.W.2d 453.

Appellant’s chief point on appeal is contained in his point four wherein he charges an abuse of discretion on the part of the trial court in overruling his motion for new trial: “Where the judgment nil dicit was rendered on a date other than fixed, upon inadequate notice to defendant, based on insufficient pleadings of sworn account denied under oath, with a showing of a meritorious defense, thereby depriving defendant of his day in court.” This question calls for careful consideration of the record to determine whether appellant has really been deprived of his day in court. After the case had been on file for approximately eleven months, appellant’s first attorney sought for, and obtained, permission to withdraw. On the same date the trial court ordered the appellant to take some action to protect himself within two weeks time. The trial court certified that on April 7th, 1960 the case was set for trial on May 30th, 1960 and that the defendant was notified by mail. On May 30th, 1960, at the call of the docket the cause was set as No. 11 in the list of cases to be tired. The court certified that the case was reached for trial on June 8th, 1960 and that the Clerk of the Court called the plaintiff’s attorney during the morning and notified them that the case would be reached for trial at 2 p. m. that afternoon. At that time plaintiff’s attorney advised the court that Mr. William Andress, Jr., had just called the Clerk of the Court inquiring about the case and that he, the attorney, had talked to Mr. Andress. That conversation between the attorneys revealed that Mr. Andress advised that he had consulted with Mr. Burnett in regard to the case but that up to that time he had not been employed as attorney. The court at that time heard testimony, both oral and record, and rendered judgment. The motion for new trial reveals that Mr. Burnett contacted Mr. Andress on May 18th, 1960, but that Mr. Andress was not given the responsibility of defending the case as of the date of the trial on June 8th, 1960. It is alleged that Burnett had a misunderstanding concerning the file in the case. While appellant does allege in paragraph 2 of his motion for new • trial a meritorious defense the above facts seem to constitute the entire record concerning any excuse why he did not appear either in person or by attorney at 2 p. m.. on June 8th, 1960 for the trial of this case. The record is also silent as to any application for continuance or postponement of the case. Therefore that part of appellant’s fourth point complaining of the trial being on a date other than fixed or upon inadequate notice is not supported by the record.

Moreover, appellant’s motion for new trial does not assign error concerning judgment being rendered on a date different than fixed or that there is inadequate notice to defendant. What we have said above concerning assignments in motion for new trial applies equally here. The law presumes, in the absence of a statement of facts or findings of fact and conclusions of law, that the trial court was justified in acting upon said motion by the facts established on such hearing. Murphy, et al. v. Moseley, Tex.Civ.App., 11 S.W.2d 234.

This leaves the sole question: did the trial could abuse his discretion in not sustaining appellant’s motion for new trial ? The point is controlled by the rule announced by Judge Hickman, then on the Commission of Appeals, in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126. Wherein, Judge Hickman announced the rule:

“Trial judges desire and are entitled to have a principle or rule to guide them, and we, therefore, re-announce, in slightly changed .language the rule established by the above authorities, as follows: A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

Though the Craddock case involved a default judgment, the above rule has also been applied to judgments nil dicit. Strode v. Silverman, Tex.Civ.App., 217 S.W.2d 454, err. ref.

It is our opinion that the appellant in this case has failed to demonstrate by this record one of the essential elements of the rule announced in the Craddock case, namely, a reasonable excuse for his failure to appear either in person or by attorney at the time this case was tried. The record reveals that ample time was provided him to secure additional attorneys after the withdrawal of his first attorneys. He was notified prior to the date of the trial. Within due time he conferred with another attorney but due to his own fault or neglect no employment agreement was reached prior to time of trial. He was notified on .the day of the trial to appear. Appellant did not appear either to resist the case or to seek continuance or postponement. No reason, other than his own conduct in the nature of inadvertence or misunderstanding, is assigned for his failure to do that which an ordinary prudent person should have done. The trial court heard evidence on motion for new trial and concluded that such should be overruled. We find no reason to hold that the trial court thus abused his discretion. Appellant’s fourth point is overruled.

The judgment of the trial court is affirmed.

      . Motion for New Trial.
      To Said Honorable Court:
      “Defendant Byron Burnett moves the court to set aside the judgment rendered herein on 8 June 1960, nil dicit and to grant him a new trial, and as grounds therefor alleges;
      “1.
      “Defendant had formerly been represented herein by the firm of Tobolowsky, Hartt, Schlinger & Blalock, who had been permitted to withdraw on 17 May 1980, and who had theretofore notified this defendant of their intention to so withdraw. On 18 May 19G0 defendant consulted with Wm. Andress, Jr., his undersigned attorney, who was then handling other matters for him, and in the course of such conference, discussing a number of matters, this case and the withdrawal of prior attorneys was discussed, and defendant thought that he left some of the papers pertaining to this matter with the undersigned attorney, and when he was advised on the morning of 8 June 1960 by either counsel for plaintiffs or the Clerk of the Court in a message to his office that the matter would be heard that afternoon, he immediately contacted the undersigned attorney and then learned that he had not left the file with the undersigned attorney, but had inadvertently taken the file back with other papers he retained at such conference. As a result of such misunderstanding, responsibility had not been passed to another attorney at the time that the matter came on for trial, and the defendant was not present or represented at said hearing.
      “2.
      “The defendant has a meritorious defense, which is contained in his first amended original answer, and also in his affidavit in opposition to the motion for summary judgment, on file in this cause, showing photostatic copies of checks payable to the order of plaintiff for which he has not received credit; a baseless restocking charge not based upon any agreement, failure to credit an advertising allowance, and failure to credit units transferred to the manufacturers service representative for which the plaintiff has received credit. In addition to the defendant, who would so testify, he has as witnesses G. N. DeJarlis and Kenneth Woods, who would testify to portions of the defense, and would materially reduce if not eliminate the plaintiffs’ claim and judgment.
      “3.
      “Defendant would further show that this cause is sued upon a verified account, but that the affidavit thereto does not bear any notarial seal, and is therefore insufficient as a verified account to support judgment.
      “4.
      “Por the foregoing reasons injustice has been done to the defendant, and the judgment should e set aside as contrary to the law and the evidence.
      “Wherefore, defendant moves the Court to set aside the judgment and grant him a new trial.”