text:
    Willie ADAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1968.

      Willie Adams, pro se, J. W. McKenzie, Earle W. Moffitt, Ashland, for appellant.
    John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, William B. Arthur, Commonwealth’s Atty., Ashland, for appellee.
   STEINFELD, Judge.

In February 1960 Willie Adams was found guilty of armed robbery and his penalty was fixed at life imprisonment. On August 8, 1966, Adams petitioned to set aside his conviction and sentence. RCr 11.-42. From a judgment denying the relief he demanded this appeal was taken. We affirm.

On the 17th day of December 1959, a warrant was issued for Willie Adams and he was arrested on the 22nd day of December, 1959. An examining trial was held in the Boyd Quarterly Court on the 29th day of December, 1959. After indictment was returned on February 2, 1960, the case was brought on for trial on February 18, 1960. Mr. Morton Nickell, an attorney at law who was appointed by the court to defend the accused, entered a plea of “not guilty”. Upon the calling of the case Mr. Nickell announced that he was not ready and he moved for a continuance because of the absence of Willard Adams, the only witness who could prove an alleged alibi. The motion was overruled and an affidavit prepared according to Criminal Code Sections 188, 189 (now RCr 9.04) was filed and read to the jury. The subpoena for Willard Adams was issued only two days before the trial. The return shows that the sheriff attempted to serve the subpoena but could not find the witness.'

Adams claims that the falure to grant the continuance was such error that the post conviction relief should be granted and cites Lay v. Commonwealth, 186 Ky. 163, 216 S.W. 123 (1919) and Wilcher v. Commonwealth, 297 Ky. 36, 178 S.W.2d 949 (1944). The Commonwealth argties that both cases involved surprise due to the initial presence of the witnesses and their later absence during the trial.

The granting of a continuance is a matter within the sound-discretion of the trial court which will not be interfered with unless it has been plainly abused and results in manifest injustice. Toler v. Commonwealth, 295 Ky. 105, 173 S.W.2d 822 (1943) ; Dunn v. Commonwealth, Ky., 350 S.W.2d 709 (1961) and Bagby v. Commonwealth, Ky., 424 S.W.2d 119 (decided February 2, 1968). There is an adequate record before us to enable us to fully consider this claim. We find no element of surprise and that due diligence was not used to secure the attendance of this important witness. The trial court did not abuse its discretion. Also see Vincennes Bridge Co. v. Poulos, 228 Ky. 446, 15 S.W.2d 271 (1929).

Adams says that the failure of counsel to appeal and to advise him of his right to appeal deprived him of rights guaranteed by the 6th and 14th Amendments of the Constitution of the United States. He contends that he did not have adequate representation by counsel or the equal protection of the law. He refers us to Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965) and Hammershoy v. Commonwealth, Ky., 398 S.W.2d 883 (1966). Adams testified that his court appointed counsel informed him that in a few days he was leaving for government service and would not have time to appeal the case. He argues that if an appeal had been taken the failure of the trial court to grant a continuance would have resulted in a reversal. Since his counsel entered government service two weeks after the trial we have considered that and the other claims he makes as if presented on an appeal even though an RCr 11.42 proceeding is not a substitute for an appeal. Kiper v. Commonwealth, Ky., 415 S.W.2d 92 (1967). As above indicated we have rejected these contentions, therefore, if an appeal had been taken the judgment would have been affirmed.

The final contention is that Adams’ counsel failed to advise him of his right to have the jury kept together and without his approval, agreed that the members of the jury could separate. Section 244 of the Criminal Code then in effect provided that “On the trial of offenses which are or may be punished capitally or by life imprisonment the jurors after they are accepted, * * * ” shall not be permitted to separate and shall remain “in charge of the proper officers”, but separation may be permitted “by agreement of the attorney for the Commonwealth and the attorney for the defendant, with the approval of the trial judge, which shall be in open court and entered of record; * * * (This is now RCr 9.66).

In these proceedings Adams was asked and testified as follows:

“Q. Do you recall the Court asking you and your attorney if you wanted the jury kept together or if you wanted them separated?
A. No, I do not recall.
Q. Do you recall an agreement was made with the Commonwealth and you and your court appointed attorney that it was agreeable with the Commonwealth and you and your court appointed attorney for the jury to separate?
A. I do not recall anyone asking me that.”

It should be noted that Section 244 of the Criminal Code required that an agreement to permit the separation of the jurors be made in open court and entered of record. Adams did not say that his counsel failed to inform him of his claimed right to insist upon the jurors remaining together, only that he did not recall. Furthermore, the criminal code authorized “the attorney for the defendant, with the approval of the trial judge” to make the agreement. (italics ours) A lawyer is not required to ask client to approve each procedural step he takes. Anglo-American Mill Co. v. Phillips, 236 Ky. 245, 32 S.W.2d 994 (1930); 7 C.J.S. Attorney and Client § 80 and subd. b, pp. 898-901.

Even though Adams does not claim misconduct the court in the present RCr 11.42 proceedings interrogated six of the jurors who served on the original trial and found that these jurors talked to no one about the trial while it was pending. The court found no misconduct. Howard v. Commonwealth, 24 Ky.Law Rep. 612, 69 S.W. 721 (1902); Kiper v. Commonwealth, supra.

The trial court heard and saw the witnesses, therefore, it is in a better position than this court to evaluate the testimony and the other evidence. Gates v. Gates, Ky., 412 S.W.2d 223 (1967). Its findings are included in the judgment. There is nothing that convinces us that they are clearly erroneous, therefore, we cannot set them aside. CR 52.01; Stivers v. Samuels, Ky., 415 S.W.2d 366 (1967); Burke v. Burke, Ky., 416 S.W.2d 724 (1967).

It is apparent that Adams was not prejudiced by the separation. Tunget v. Commonwealth, 303 Ky. 834, 198 S.W.2d 785 (1946).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRIFFIN, Justice.

license: Public Domain

text:
    Ex parte James J. ROHLEDER, Jr.
    No. B-392.
    Supreme Court of Texas.
    Dec. 13, 1967.
    James J. Rohleder, pro se. James E. Ferguson and Don Busby, Cleburne, for relator.
    Hugh Higgins, Cleburne, for respondent.
   GRIFFIN, Justice.

This is an original habeas corpus proceeding. Relator, James J. Rohleder, Jr., has been adjudged in contempt by the 18th District Court of Johnson County for failure to make payments for the support of his minor children as required by the divorce judgment entered by that court on July 22, 1964. The contempt decree fixed the punishment at three days in jail and directed that relator continue in jail until he purged himself by paying the $1835.00 found to be in arrears. We order relator discharged.

Relator was ordered by the divorce decree to make child support payments of $64.00 payable on the 1st and 16th of each month beginning August 1, 1964. The record contains evidence which supports the conclusion that relator was able to pay one or more of the delinquent installments as they accrued and was therefore subject to the punishment authorized by Article 1911, Vernon’s Ann.Tex.Civ.Stat., notwithstanding any inability of relator to pay the full amount of the arrearages at the time of the contempt decree. Punishment under this statute, however, is limited to a fine not exceeding $100.00 and imprisonment not exceeding three days. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948). It appears that relator remained in jail for more than the three days before being released on bail by order of this Court, and we are now concerned only with the power of the trial court to order the indefinite confinement of relator until the $1835.00 is paid.

In this case there were hearings held on three separate occasions but they were all a part of the one proceeding to hold relator in contempt. On each occasion only relator testified, although the mother of relator’s children, who instituted these proceedings, was represented by an attorney on all occasions. On June 30, 1967, after relator had testified that he was in arrears on his support payments because his ex-wife had moved the children several times without notifying him, the court stated that the relator was in contempt for such failure. However, no order was entered; and the court gave relator until July 5, 1967 to raise the $1835.00. On July 5, 1967, the relator testified he had not been successful in his attempts to borrow the amount of his arrear-ages and requested a few days to attempt to mortgage his mother’s house. The court granted this request and delayed the order until July 10, 1967. On July 10, 1967, relator returned to court and testified to his inability to secure this amount from any source. The trial judge then signed the order holding relator in contempt and ordering him confined to jail for three days and thereafter until he purge himself by paying the $1835.00 into court.

An original habeas corpus proceeding in this Court is a collateral attack on the contempt decree. However, we treat the contempt order as void if the evidence offered at the hearing conclusively establishes that at the time of the contempt hearing relator did not have, and had no source from which he might reasonably be expected to obtain, the $1835.00 in arrears. Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956). He must be able to perform the order of the court, for if his inability is conclusively shown, the trial court has no power to order the coercive imprisonment. Ex parte De Wees, supra. The testimony of relator at the hearing may be summarized as follows: he had attempted to borrow the amount from several loan companies and a credit union without success because a loan of this size required collateral and the only property he owns is a 1966 automobile on which he owes $2,900.00; he and his mother had attempted to mortgage the mother’s house for this amount but without success; he knows of no one and no source from which he could obtain this amount without some collateral or security; he is employed as an “extra” telegraph operator who must be ready to work whenever he is called, and if he is not available for any period of time he will lose his job; and, although he could not pay the full balance of the delinquency, he was making the current payments and offered to pay an additional $25.00 per month until the $1835.00 has been paid. We hold that this testimony, although given by an interested party and uncorroborated, falls within the exception giving conclusive effect to such testimony where it is clear and positive and there are no circumstances in evidence tending to discredit or impeach it, and it is further strengthened by the fact that it was uncontradicted when there was a means and an opportunity for an opposite party to disprove the testimony if it were not true. Ex parte Gonzales, 414 S.W.2d 656 (Tex.Sup. 1967); McGuire v. City of Dallas, 141 Tex. 170, 170 S.W.2d 722 (1943).

In such cases as this “our concern is not what will certainly happen if relief is denied, but what could happen.” Ex parte De Wees supra. Relator in this case has conclusively shown that what could happen is his continuing imprisonment without the ability on his part to bring about his own release. Such imprisonment is beyond the powers of the trial court, and we hold that the court exceeded its power in ordering that relator be imprisoned until the $1835.00 is paid.

The relator is discharged.


author: STEAKLEY, Justice. SMITH, Justice.

text:
    W. P. FRENCH, Individually, and d/b/a W. P. French Painting and Contracting, Petitioner, v. Homer BROWN, Respondent.
    No. B-289.
    Supreme Court of Texas.
    Dec. 13, 1967.

      Dunlap & Zimmerman, Warren E. Zimmerman, Amarillo, for petitioner.
    Jerry R. Hollingsworth, Amarillo, for respondent.
   STEAKLEY, Justice.

Petitioner sued Respondent for the reasonable value of labor and materials allegedly furnished Respondent under a contract to paint a house. Respondent was served with citation and duly filed an answer in the form of an unsworn general denial. Thereafter Petitioner filed a motion for summary judgment which was set for hearing by order of the court. The parties stipulated that notice of the motion for summary judgment and of the hearing thereon was “duly and regularly mailed, but that the notice was not received.” The court granted Petitioner’s motion for summary judgment on the date set for hearing. Neither Respondent nor his counsel was present, but within ten days Respondent filed a motion for new trial asserting defenses against Petitioner’s suit and that neither Respondent nor his attorney of record had notice of the filing of Petitioner’s motion for summary judgment or of the date the motion was set for hearing. The motion for new trial was subsequently overruled by operation of law. Respondent did not perfect an appeal and the judgment, became final. Respondent thereafter filed a bill of review attacking the judgment in which he again urged the matters previously asserted in his motion for new trial. The petition for bill of review was silent with respect to Respondent’s failure to prosecute an appeal from the judgment upon the overruling of his timely motion for a new trial. The trial court after hearing without a jury denied the relief from which action this appeal was taken. The court of civil appeals was of the view that the trial court was without jurisdiction to enter the judgment because Respondent was not served with the summary judgment motion as required by Rule 166-A, Texas Rules of Civil Procedure, for which reason the judgment was void. The judgment was accordingly reversed and the cause remanded to the trial court. Tex.Civ.App., 413 S.W.2d 924.

Rule 166-A of the Texas Rules of Civil Procedure provides that a motion for summary judgment shall be served at least ten days before the time specified for the hearing. The purport of the stipulation of the parties in this case is that such did not occur. The problem, then, is twofold, namely, whether the failure of the procedural requirement of service of the summary judgment motion deprived the trial court of jurisdiction to grant the motion, for summary judgment and hence rendered its judgment void, as held by the court of civil appeals; and, if not, whether the allegations of Respondent’s petition for bill of review attacking the judgment were sufficient to entitle Respondent to the relief sought under the established requirements for relief by bill of review. We hold that the judgment was not void and that there was not sufficient cause for granting the bill of review.

Petitioner’s suit invoked the jurisdiction of the court, and Respondent duly answered after being served with citation. Thereupon, the trial court had jurisdiction of the subject matter and of the parties; indeed, Respondent does not claim otherwise. The procedural faihtre with respect to service of the motion for summary judgment did not have the effect of ousting or terminating the jurisdiction of the trial court; at the most, such rendered the summary judgment erroneous, corrective either by the trial court in response to Respondent’s timely filed motion for new trial, or, upon its overruling, by the appellate courts on appeal. It was held by this court in Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876, l. c. 877 (1895) :

“Where a court of general jurisdiction, in the exercise of its ordinary judicial functions, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear, from the face of the record or otherwise, to be. * *

More recently we have said that a judgment is not void, although it may be erroneous, if the court had jurisdiction of the parties and the subject matter and the power to render the particular judgment. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428; Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833 (1953); Heard v. State, 146 Tex. 139, 204 S.W.2d 344 (1947).

A bill of review is an equitable proceeding designed to prevent manifest injustice. The relief afforded thereby must be for sufficient cause under Rule 329b (5) of the Texas Rules of Civil Procedure. In Hanks v. Rosser, 378 S.W.2d 31, l. c. 34 (Tex.Sup.1964), we restated the rule “that before a litigant can successfully set aside a final judgment, he must allege and prove, within the time allowed, (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence on his own part.” In Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280, l. c. 281, this court said: “* * * [A]n appeal from the judgment was available to her. Having neglected to avail herself of this legal remedy, she is not entitled to resort to a court of equity for relief against the judgment.” See also the statement of the rule with supporting cases in 34 Tex.Jur.2d Judgments, § 198, p. 36 and § 230, p. 101, and 4 McDonald, Texas Civil Practice, § 18:27.

So there is insufficient cause here for relief by bill of review. Respondent permitted the judgment to become final by his failure to invoke the right of appeal. No reason is advanced in his petition for bill of review for the fact that he did not seek correction of the asserted error of the trial court by the appeal remedy. There is no allegation that he was prevented from doing so by fraud, accident or wrongful act of petitioner. There was no showing of diligence. In an analogous context, we said in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, l. c. 710 (1961), that a defendant who negligently suffers a default judgment to be rendered against him by a court having the jurisdictional power to render it, or negligently permits it to become final, should not be heard to say that the judgment is void. Here, as we have held, the trial court had jurisdictional power to render the summary judgment. Respondent obviously had prompt notice of this action since his motion for a new trial was filed within ten days. He has not made the requisite showing for relief by bill of review.

In view of the foregoing, we do not reach the question of whether Respondent alleged and proved a meritorious defense to the cause of action supporting the judgment of the trial court. The points of error not considered by the court of civil appeals were directed to this problem.

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

CONCURRING OPINION

SMITH, Justice.

I concur in the result. The trial court rendered judgment for the plaintiff in the original case on October 19, 1965. Eight days later defendant Brown filed a motion for new trial. His motion was grounded upon his failure to receive notice of the plaintiff’s motion for summary judgment. Defendant did not present his motion for new trial and it was overruled by operation of law. Defendant then on December 28 gave notice of appeal, but he did not timely perfect his appeal. On April 11, 1966, defendant filed this petition for an equitable bill of review, but does not state any reason for his failure to urge his motion for new trial or perfect his appeal. These facts defeat Brown’s right to an equitable bill of review, for the reason stated in Duncan v. Smith Bros. Grain Co., 113 Tex. 555, 260 S.W. 1027 (1924):

“Appellant failed to show that he was prevented from making his defense at the proper time without fault on his part. This was essential to the relief here sought. He knew this judgment was rendered in time to have applied for a new trial before the close of the term and has shown no excuse why this was not done. Coffee v. Ball, 49 Tex. 16, 25; Hamblin v. Knight, 81 Tex. 351, 355, 16 S.W. 1082, 26 Am.St.Rep. 818.”

The same principle is stated in 4 McDonald, Texas Civil Practice, § 18:27, where the elements of a bill of review are stated. One of those elements is:

“That the complainant exercised due diligence to avail himself of all adequate legal remedies against the former judgment, and that at the time he files the bill of review there remains no such adequate legal remedy still available. A bill of review is not a mere alternative of review on motion for new trial or upon appeal, and it may thereforé be successfully urged only when there remains no other method of assailing the judgment. A person is charged with knowledge of all facts which he could have discovered by due diligence, and one who claims ignorance of an adverse judgment for a period of time after its rendition must justify his lack of knowledge. From the date he learns of the decree, or by the exercise of due diligence would have learned of it, the complainant must seize upon all legal remedies still available, including motion for new trial, appeal, or writ of error. * *

Since the failure of Brown to perfect his appeal defeats his right to an equitable bill of review, why enter into a lengthy discussion as to the nature of a bill of review, etc?


author: GREENHILL, Justice.

text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Petitioner, v. Owen J. DUKE et al., Respondents.
    No. B-262.
    Supreme Court of Texas.
    Dec. 13, 1967.

      Clyde W. Fiddes, Tyler, Albert Tarbut-ton, Jr., Daingerfield, Ramey, Brelsford, Flock & Devereux, Jack Flock and Michael A. Hatchell, Tyler, for petitioner.
    Jones, Jones & Baldwin, Franklin Jones, Marshall, J. Alex Blakeley, Dallas, for respondents.
   GREENHILL, Justice.

The decision in this case turns upon applications of the Texas Rules of Civil Procedure dealing with the filing of, or the failure to file, a motion for new trial. After the jury had returned its answers to special issues, counsel for the plaintiffs filed a “motion for mistrial” because of alleged conflicts in the jury’s answers. The motion was overruled, and a judgment was entered upon the verdict for the defendant. The plaintiffs thereafter filed no motion for new trial but sought a reversal in the Court of Civil Appeals on the sole basis of the alleged conflicts. As will be developed below, it is contended that no motion for new trial should be required under the circumstances. It is further asserted that the pleading called a motion for mistrial was in substance a motion for new trial, or that it served that function.

The defendant filed a motion in the Court of Civil Appeals to dismiss the appeal because no motion for new trial had been filed in the trial court raising the question of conflicting answers in the jury’s verdict. The Court of Civil Appeals overruled that motion and entered a judgment reversing the judgment of the trial court and ordering a new trial because of the conflicts. 413 S.W.2d 813. We granted a writ of error on the procedural problems.

The action arose out of an automobile-train collision. The jury found the railroad guilty of negligence and also found the driver of the automobile, Mrs. Duke, guilty of contributory negligence. But the jury found that neither the railroad’s nor Mrs. Duke’s negligence was a proximate cause of the collision, and that the collision was not an unavoidable accident. Counsel for the plaintiffs thereupon moved that the court retire the jury for further deliberations because of alleged conflicts in the above findings. The court overruled that motion and received the verdict of the jury. Ten days later plaintiffs’ counsel filed “plaintiffs’ motion for a mistrial made subject to the action of the court on their motion for judgment on the verdict.” It again asserted the conflict in the jury’s answers. Its prayer, if the court failed to enter judgment for the plaintiffs on the verdict, was: “the Plaintiffs respectfully pray the Court to declare a mistrial and set this cause for another trial.” The judgment of the trial court, entered several weeks later, overruled the “plaintiffs’ motion for mistrial”," and, based upon the verdict of the jury, it decreed that plaintiffs take nothing.

The plaintiffs gave timely notice of appeal and filed an appeal bond after judgment was entered. But, as stated, they filed no motion for new trial. And, as stated, the Court of Civil Appeals, after overruling the defendant’s motion to dismiss the appeal, reversed the trial court’s judgment and remanded the cause for a new trial. We do not reach the question of conflicts in the answers to the special issues upon which the Court of Civil Appeals reversed because of the requirements of the rules of civil procedure which require the filing of a motion for new trial to preserve the error complained of.

A motion for new trial is a jurisdictional prerequisite to appeal from a case tried to a jury, with certain specific exceptions. Rule 324 provides that:

“In all cases tried in the county or district court, where parties desire to appeal from a judgment of the trial court, a motion for new trial shall be filed as a prerequisite to appeal; provided that neither a motion for new trial nor an assign-ment therein shall be a prerequisite to the right to complain on appeal of the action of the court in giving a peremptory instruction, or in withdrawing the case from the jury and rendering judgment, or 'in rendering or refusing to render judgment non obstante veredicto or notwithstanding the finding of the jury on one or more special issues, or in overruling a motion for jugment on the verdict made by the party who becomes appellant; nor shall a motion for new trial be required in a non-jury case or in a case where the appeal is based upon some error of the "trial court arising after its action upon "the motion for new trial. * * * ”

None of the above exceptions to Rule 324 are applicable in the instant case. The plaintiffs do not complain of a peremptory instruction; the trial court did not withdraw the case from the jury; there was no motion for judgment non obstante veredicto or to disregard special issue findings. Under these circumstances, a motion for new trial was clearly required as a prerequisite to appeal. Assuming, without deciding, that there was an irreconcilable conflict in the jury answers, it was necessary "to file a motion for new trial assigning as error the entry of judgment on conflicting jury findings. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

It is contended that the function of a motion for new trial is to call the attention of the trial court to errors in the trial so that they may be corrected; that the motion filed by plaintiffs did this; and that it would cause unnecessary expense and delay to require that a motion stating in substance the same thing must be filed again at a later time as a motion for new trial. It is asserted that Rule 1, which calls for a liberal interpretation of the rules to obtain substantial justice, should be used to reach rthat result. This Court, however, in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270 (1936) laid out the conflicting opinions as to whether matters once complained of during a jury trial must be again called to the trial court’s attention in a motion for new trial. A line of cases was set out which held that if the ruling complained of had once been called to the attention of the trial court, it was not necessary to include again such point or points in a motion for new trial. Cases to the contrary were also set out. There was then before the Court Rule 71a for district and county courts, a predecessor of Rule 324. This Court deliberately chose the interpretation that with exceptions set out in the rule, the errors complained of must be repeated in a motion for new trial. This construction of Rules 1 and 324 was reaffirmed in Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960). In that case, written objections to the charge which had been presented to the trial court were held to have been waived because they were not properly preserved in a motion for new trial. See also St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27 (Tex.Sup.1965).

This Court recently overruled similar contentions when it approved the opinion in Manning v. Sears, Roebuck & Company, 417 S.W.2d 639 (Tex.Civ.App.1967, writ refused). In that case the plaintiff objected to the number of peremptory challenges to the jury panel allowed the defendants. He had also requested special issues which were marked “refused” and signed by the trial court. He failed to file a motion for new trial, instead relying on bills of exceptions to preserve the alleged errors on appeal. The Court of Civil Appeals correctly held that it could not consider the points since they were not assigned in a motion for new trial and did not fall within any of the exceptions to Rule 324. Following these cases, we hold that the error complained of must have been embodied in a motion for new trial.

Counsel for plaintiffs asserts that the pleading which had a title beginning “plaintiffs’ motion for mistrial” was in substance a motion for new trial because, among other things, it prayed that the court “declare a mistrial and set this cause for another trial.” [All emphasis herein is ours.] We are then referred to Rule 71 which states that when a party has mistakenly designated any pleading, the court, if justice so requires, shall treat the pleading as if it had been properly designated. The motion was filed well before the entry of judgment; but, assuming the “motion for mistrial” was in fact a motion for new trial, we are referred to Rule 306c, which says that no motion for new trial shall be held to be insufficient because prematurely filed, but “shall be deemed to have been filed on the date of, but subsequent to the rendition of the judgment the motion assails, * * * »

We are unable to agree that the pleading called “plaintiffs’ motion for mistrial” is a mislabeled motion for new trial. The distinction between the two was discussed in Cortimeglia v. Herron, 281 S.W. 305 (Tex.Civ.App.1926, writ refused):

“There is also a marked difference between a court granting a motion for a new trial and declaring a mistrial. * * The former contemplates that a case has been tried, a judgment rendered, and on motion therefor said judgment set aside and a new trial granted. The latter results where, before a trial is completed and judgment rendered, the trial court concludes there is some error or irregularity that prevents a proper judgment being rendered, in which event he may declare a mistrial.”

Looking to the substance of the pleading styled “plaintiffs’ motion for mistrial,” we find the following: It is brief and begins with a sentence which says that if the court overruled their motion for judgment on the verdict of the jury, plaintiffs “present their motion for mistrial for the following reasons.” Then follow two numbered paragraphs in which it is asserted that the findings of the jury are in direct and irreconcilable conflict. The pleading then concludes with a prayer which, as stated, asks the court to declare a mistrial and set the cause for another trial. The motion does not attack a judgment. It asks the court to terminate the trial before judgment and to set the cause for another trial. Moreover, under Rule 306c dealing with prematurely filed motions for new trial, the rule speaks in terms of “the judgment the motion assails.” This motion assails no judgment. It is correctly called a motion for mistrial and cannot be considered a prematurely filed motion for new trial under Rule 306c.

Under Rule 324 and the previous decisions of this Court construing it, the Court of Civil Appeals erred in overruling the defendant’s motion filed in that court to dismiss the appeal because of failure of the plaintiffs to file a motion for new trial complaining of the only point contained in their brief in the Court of Civil Appeals. The judgment of the Court of Civil Appeals is reversed, and the appeal is dismissed.

      . All references herein are to the Texas Rules of Civil Procedure unless otherwise indicated.


text:
    Myrtle R. FORREST et al., Petitioners, v. J. R. HANSON et al., Respondents.
    No. B-260.
    Supreme Court of Texas.
    March 6, 1968.
    Rehearing Denied April 3, 1968.

      Roundtree, Renner & Snell, Ray Renner, Lamesa, Garland Casebier, Frank C. Ash-by, Midland, Cayton & Gresham, William E. Fulbright, Lamesa, for petitioners.
    Huffaker & Green, Harold Green, Tahoka, Shaw & Bowman, Rodrick L. Shaw, Lubbock, Dillard Baker and Walter B. Morgan, Houston, for respondents.
   GRIFFIN, Justice.

This is a trespass to try title suit brought by respondent, J. R. Hanson, against various defendants, petitioners herein, with alternative pleadings against specific defendants, now petitioners, for construction of a deed with a mineral reservation for breach of warranty, estoppel to assert title, damages, and other incidental relief. The cause was tried before the court without a jury, and judgment was rendered by the trial judge against the petitioners for part of the relief prayed for and against various named defendants for certain relief. Hanson and certain of the defendants gave notice of appeal from the judgment, and the Court of Civil Appeals reversed and rendered in part; affirmed in part. 413 S.W. 2d 394. Hanson filed an application for writ of error, and other applications were filed by two groups of defendants. All applications were granted.

In his pleadings on which Hanson went to trial, he separated the defendants into eight different groups designated A through H. Some of the groups had common interests and filed their applications for writ of error according to their common interests. We adopt Hanson’s classification and will dispose of this cause as to the claims of Hanson against such groups and their counterclaims, if any.

Defendants F (Humble Oil & Refining Company) and G (the heirs and assigns of Bockman), are respondents herein. A short history is necessary in order to understand the case. In 1919 H. Bockman and wife, S. E. Bockman, owned in fee simple the title to all of the north one-half (N/2) of Section 37, Block 36, Township 5 North, T & P Ry. Co. Survey in Dawson County, Texas. On November 21, 1919, the Bock-mans conveyed this tract of land by warranty deed to D. M. Corley, which contained the language giving rise to this litigation, to-wit:

“It is especially understood and agreed that the said H. Bockman retains all of the Oil, Gas and Mineral rights on the Northeast Quarter (NE/4) of Survey 37, Block 36, Township 5 North, T & P Ry. Co. Surveys in Dawson County, Texas, and at any time he shall desire to develop any of the minerals above mentioned or retained herein, he can proceed with such development at his will by paying to the then owner of the land the actual damages caused by such development, if there should be cause for such damage, otherwise, he shall proceed at his will to the development of said minerals.”

Due to error of an abstractor this paragraph of the deed was not included in the abstract of title. It was this unfortunate mistake that has caused this suit.

By mesne conveyances from Corley, Pel-ham became the owner of the land, and' no reservation was contained in his deed from the Corleys.

In this opinion we will refer to the reservation “of oil, gas and other minerals” as “minerals” for brevity.

On July 13, 1943, Pelham, by warranty deed, conveyed the north half (N/2) of Section 37 to S. L. Forrest and reserved to himself, his heirs and assigns all the minerals in, on, and under the north 80 acres of this half section. No mention was made of the Bockman reservation.

On March 17, 1947, S. L. Forrest, by warranty deed, conveyed this half section of land to R. A. Stuart, reserving unto himself, his heirs and assigns, all minerals in, on and under the south 80 acres of the half section. This deed made no mention of the Bockman mineral reservation or of the1 Pelham mineral reservation.

On February 9, 1948, R. A. Stuart conveyed this half section by warranty deed to J. R. Hanson, and this deed contained no reference to or mention of any of the prior reservations. However, upon the trial of the case it was stipulated that J. R-Hanson understood that the said Pelham and Forrest had previously reserved the minerals as hereinbefore set out, and that the warranty to the said J. R. Hanson was to cover only 160 acres of minerals. This 160 acres was in the middle 160 acres of said half section, 80 acres of the NE/4 and 80 acres of the NW/4. Hanson’s title to the middle 80 acres of the NW/4 has not failed, and it is not in this suit. The stipulation above set out prevented Hanson’s recovery for breach of warranty to the north 80 acres and the south 80 acres of the N/2. Upon trial it was stipulated that defendant F, Humble Oil & Refining Company, was the owner and holder of an oil, gas and mineral leasehold under the northeast quarter (NE/4) of said section,, if the Bockman mineral reservation in the Bockman deed in 1919 is now a valid and subsisting one. Humble held its lease from the heirs of H. Bockman and wife and their assigns. The sketch below shows the various mineral reservations out of the north half (N/2) after Hanson took his deed.

Hanson contends here, as he did in the courts below, that the above quoted reservation in the Bockman deed confers, at the most, a right on the part of Bockman during his lifetime to go upon the NE/4 of said section for the purpose of developing the minerals, and that such right, if any, terminated upon the death of H. Bock-man and did not inure to the benefit of his heirs, executors or assigns. Both courts below have rejected this contention. We agree with the holdings of both courts below that the reservation contained in the Bockman deed to Corley in 1919 was a reservation, to Bockman, his heirs and assigns of all of the oil, gas, and other min-arais in, on, and under, or that may be produced from said NE/4. Humble is lessee under the Bockman title and is the owner of a valid and subsisting lease on the NE/4.

The Court of Civil Appeals has clearly and adequately discussed and decided this point, and we see nothing to be gained by our writing further thereon.

Rights of the heirs of S. L. Forrest named and designated in plaintiffs original petition as Defendants B; of Pelham, Defendant A; and of Stuart, Defendant C:

Pelham’s deed to Forrest conveying the N/2 of Section 37 was a warranty deed purporting to convey all title, except Pelham reserved all of the minerals in the north 80 acres of said half section. Pel-ham owned no minerals in the NE/4 of the section; therefore, his warranty was breached as to all the minerals under the south 120 acres of the NE/4. Forrest’s warranty deed conveying this north half section to Stuart purported to convey all title, reserving only the minerals under the south 80 acres of the half section. Forrest owned no minerals in the NE/4 nor in the north 40 acres of the NW/4. Therefore, his warranty was breached as to all of the minerals under the NE/4 except as to the south 40 acres he reserved and also was breached as to the minerals under the north 40 acres of the NW/4. Stuart’s warranty-deed conveying to Hanson the north half of Section 37 purported to convey all of the title thereto and with no reservation of any minerals. Therefore, by virtue of the stipulation above set out, Hanson could recover on Stuart’s warranty only for the breach as to all minerals under the middle 80 acres of the NE/4. Stuart owned title only to the minerals under the middle 80 acres of the NW/4. Previous to the filing of this suit Pelham had conveyed all his mineral interest in the north 80 acres of the N/2 of the section to L. F. Jamison, who in turn had conveyed an undivided one-fourth (¼) interest therein to J. Hiram Moore.

Hanson sought recovery in his trespass to try title suit for all the minerals under the north half section. In the alternative, should Bockman’s reservation be held good, Hanson, as a remote grantee under Pel-ham’s and Forrest’s deeds and as the grantee under Stuart’s deed, sought recovery from Pelham, Forrest and Stuart for the value of the middle 80 acres mineral interest in the NE/4. This value was stipulated to be $5.00 per acre.

To Hanson’s original petition Forrest and Stuart each filed an answer in which each pleaded “not guilty” and a general denial. Pelham’s answer pleaded only a general denial. By virtue of the stipulation, the warranty in favor of Hanson was to cover only the minerals under the middle 80 acres of the NE/4 and the middle 80 acres of the NW/4.

The trial court gave Hanson recovery against Pelham, the heirs of Forrest, and Stuart for $400.00, plus interest from the date of his deed to date of judgment. This recovery was for the breach of warranty only as to the middle 80 acres of the NE/4. Hanson was denied any recovery of minerals in the north 40 acres and the south 40 acres in the NW/4. On appeal the Court of Civil Appeals sustained Hanson’s contention that the minerals under each of these 40-acre tracts in the NW/4 should be substituted for the middle 80 acres in the NE/4, as to which such 80 acres a breach of warranty resulted in the Pelham, Forrest, and Stuart deeds. The Court of Civil Appeals held this result was required under the holding of this Court in the case of Duhig v. Peavy-Moore Lumber Co., Inc.,. 135 Tex. 503, 144 S.W.2d 878 (1940).

Having awarded Hanson these two 40-acre tracts out of the NW/4 to satisfy the breach of warranty of title to the middle 80 acres of the NE/4, the Court of Civil Appeals reversed the trial court’s judgment awarding Hanson $400.00 for the value of the minerals under the middle 80s acres of the NE/4, together with interest from the date of the conveyance to him by-Stuart of the N/2 of Section 37, to-wit; February 9, 1948, to date of judgment.

In his application for writ of error, in’ addition to assigning error to the judgment of the Court of Civil Appeals affirming the' trial court’s judgment recognizing Bock-man’s reservation as good, Hanson complains of the holding of the Court of Civil Appeals that he was not entitled to interest on his judgment for $400.00 from the date of Stuart’s deed to him. Hanson also has a point of error complaining of the Court of Civil Appeals holding that he must be evicted and disturbed in his possession of the-minerals, title to which failed, before he-can recover damages for the breach of warranty, and therefore, interest can only be recovered from such date of eviction or interference with his possession.

We find no application for writ of error-filed by Pelham or Stuart, nor did they join, in any application filed by other parties. Stuart joins with the Forrest heirs in their reply to Hanson’s application wherein he complains of the Court of Civil Appeals-holding regarding the necessity that Hansonbe evicted and his possession disturbed to the mineral interests as to which Hanson claims a breach of warranty; and also to Hanson’s complaint about the date from, which interest will be allowed.

The Forrest heirs filed an application for writ of error, complaining of the holding of the Court of Civil Appeals whereby it decreed Hanson should recover the minerals under the south 40 acres of the NW/4 of Section 37. These mineral interests in this 40 acres were awarded to Hanson to make good the breach of warranty as to a 40-acre mineral interest out of the middle 80 acres of the NE/4, and which interest has been severed and reserved by Bock-man.

We sustain the Forrest heirs’ assignment of error, complaining of the award to Hanson of the minerals under the south 40 acres of the NW/4.

When Forrest conveyed the N/2 of Section 37 to Stuart and reserved all of the minerals in and under the south 80 acres thereof, his warranty was immediately breached as to the minerals in and under the north 120 acres of the NE/4. These minerals having been previously severed, and Forrest owning no interest in the minerals under the NE/4, he owned no minerals under this NE/4 out of which his warranty could be fulfilled.

In Duhig v. Peavy-Moore Lumber Co., Inc., 135 Tex. 503, 144 S.W.2d 878 (1940) the deed conveying the Josiah Jordan Survey of 574⅜ acres to W. J. Duhig reserved an undivided one-half of the minerals under the survey. Later Duhig conveyed the same survey to the predecessors in title of Peavy-Moore Lumber Company, and in this deed no mention was made of the prior reservation of one-half of the minerals. Duhig’s deed purported to reserve an undivided one-half of the minerals in the Jordan Survey, and it purported to convey to the grantee the other half interest in the minerals, which interest had been reserved by Duhig’s grantor. In that case this Court said:

“ * * * When the deed is so interpreted the warranty is breached at the very time of the execution and delivery of the deed, for the deed warrants the title to the surface estate and also to an undivided one-half interest in the min-£rals. The result is that the grantor has breached his warranty, but that he has and holds in virtue of the deed containing the warranty the very interest, one-half of the minerals, required to remedy the breach. * * *”
“ * * * The decision here made assumes, as has been stated, that Duhig by the deed reserved for himself a one-half interest in the minerals. The covenant is not construed as affecting or impairing the title so reserved. It operates as an estoppel denying to the grantor and those claiming under him the right to set up such title against the grantee and those who claim under it.”

The Duhig doctrine is a doctrine of estoppel and not one of replacement. The Duhig case applied the estoppel principle of the after-acquired title cases. The only difference is that in such cases the title was acquired after the conveyance rather than as in Duhig the title was reserved in Duhig’s instrument of conveyance. This Court in Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270, 272 (1942), said :

“The estoppel in the after-acquired title cases arises from the assertion of ownership made by the grantor in the covenant of warranty, express or implied, or in other recitals in the deed. Such assertion is a representation that the grantor owns the land or the estate or interest to which it relates, and having thus represented the fact of ownership, the grantor is estopped to deny that fact.”

Thus, if a party attempts to claim an interest which he purported to convey, he is in effect denying a fact represented by his conveyance and either the Duhig doctrine or the doctrine of after-acquired title would work an estoppel. In the case at bar neither Pelham (nor his vendees, Jamison and Moore), Forrest, nor Stuart owned any interest in the minerals under the NE/4, although their deeds purported to convey certain mineral interests therein; therefore, there were no mineral interests in the NE/4 belonging to either of these grantors to which the doctrine of estoppel could apply and remedy their breach of warranty as to minerals in and under the NE/4. Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62, 65 (1959); Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781, 786 (1956); Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166, 168 (1953).

Pelham, Forrest, and Stuart would only be liable for money damages for breach of their warranty as to any mineral interest in the NE/4 which their deed purported to convey but which they did not own, i. e., the middle 80 acres of the NE/4. Under the facts of this case Hanson is relegated to his claim for money compensation for the breach of warranty because of title failure. Wilbarger County v. Robinson et al. (1893), 5 Tex.Civ.App. 10, 23 S.W. 823, no writ history; Daniel v. Allen (Tex.Civ.App., 1939), 129 S.W.2d 392, no writ history.

The trial court correctly recognized the stipulation of the parties that $5.00 per mineral acre was the value of these minerals at the time the deeds in question were executed. The trial court gave Hanson interest on the $400.00 award for the middle 80 acres of the NE/4 from the date of the deed to him to the time of trial at 6% per annum. The Court of Civil Appeals reversed the judgment of the trial court as to the $400.00 plus interest and rendered judgment denying Hanson any recovery of damages or interest against Forrest’s heirs, Pelham, and Stuart. This judgment of the Court of Civil Appeals denying Hanson interest is correct.

“Interest for the time prior to the eviction during which the warrantee was in possession of the land and enjoying it without any liability to the owner for the rent thereof should not be allowed. And it has been held that the proper measure of damages where the premises are occupied and no mesne profits are demanded or recoverable by the owner is the amount paid for the land. The reason for the rule appears to be that it is not equitable to allow interest on the agreed value of the land if the use thereof was had without liability to any person, the use of the land being equivalent to interest.” 15 Tex.Jur.2d, Section 87, Interest, page 707.

See also Brown v. Hearon, 66 Tex. 63, 17 S.W. 395 (1886).

The defendants, D (L. F. Jamison); E (J. Hiram Moore); and H (C. R. Jamison) have an application for writ of error complaining of the holding of the Court of Civil Appeals that Hanson was entitled to recover the minerals under the north 40 acres and the south 40 acres of the NW/4 to make good his breach of warranty as to the title to the minerals under the middle 80 acres of the NE/4.

Hanson filed a motion to dismiss L. F. Jamison’s application for writ of error filed in this Court because L. F. Jamison filed no motion for rehearing in the Court of Civil Appeals complaining of the Court of Civil Appeals judgment against him, as is required by Rules 458 and 469(c), Vernon’s Texas Rules Annotated. We have carefully examined the record in this case and we fail to find that L. F. Jamison filed a motion for rehearing in the Court of Civil Appeals. We therefore have no jurisdiction to consider the application for writ of error filed by L. F. Jamison. Wallace v. Scrogum, Tex.Sup., 372 S.W.2d 941 (1963). The Court of Civil Appeals judgment disposing of his rights and claims is final.

For the reasons given above in reversing upon the complaint of the Forrest heirs that part of the Court of Civil Appeals judgment as to the minerals in the south 40 acres of the NW/4, we here reverse the judgment of the Court of Civil Appeals divesting these defendants, Moore and C. R. Jamison, of their title to the minerals under the north 40 acres of the NW/4 and vesting title in Hanson. Title to the interests in the minerals owned by defendants C. R. Jamison and J. Hiram Moore under the two 40-acre tracts of land is hereby vested in those defendants.

The defendants E and H also complain (1) of the holding of the Court of Civil Appeals affirming the judgment of the trial court refusing to allow these defendants to re-open the case and then try their asserted cause of action for breach of warranty against Hanson; and (2) in denying these defendants any recovery against Hanson by reason of any asserted claim for breach of warranty.

The background of the court’s ruling is as follows: Plaintiff Hanson in his original petition alleged that in June, 1965, defendant Pelham gave a mineral deed to defendant L. F. Jamison, purporting to convey all the minerals under the west half of the north 80 acres of Section 37 (NW/4), and later L. F. Jamison purported to convey an undivided one-fourth (¼) interest in said minerals to J. Hiram Moore; that these conveyances constitute a cloud on Hanson’s title to such minerals, and he asks that said cloud be removed and said deeds cancelled and expunged.

Hanson also alleged that Moore was claiming to be the owner of an oil and gas lease from the Forrest heirs to the oil and gas under the south 80 acres of the N/2 of Section 37. He alleged this lease constituted a cloud on his title to such minerals and prayed this cloud be removed and the oil and gas lease and its assignment to Moore be cancelled and expunged from the deed records.

Hanson further alleged that in 1962 he and his wife gave an oil and gas lease to C. R. Jamison, Defendant H, covering all of the oil and gas under the N/2 of Section 37, save and except the north 80 acres and the south 80 acres thereof; that C. R. Jami-son had assigned this lease to J. Hiram Moore. This lease purported to convey minerals in and under the middle 160 acres of said N/2. Hanson further alleged that by virtue of the Bockman reservation on the NE/4, C. R. Jamison and J. Hiram Moore were asserting a claim against him on his breach of warranty to the middle 80 acres in the NE/4. Hanson asked that this claim against him be denied and that C. R. Jami-son and J. Hiram Moore take nothing against him on said warranty, and that he have judgment against defendants, declaring he was the owner of all of said minerals and that he did not in truth and fact breach said warranty. He alleged that their remedy for breach of warranty, if any, was for recovery of a money judgment against Pel-ham, Forrest and Stuart.

To Hanson’s pleadings the defendants, Moore, Pelham and the two Jamisons, filed a joint answer containing only a general denial and a prayer that they “go hence without day and with their costs.” The judgment of the trial court recites that these defendants asked no affirmative relief and upon the trial offered no evidence upon the nature and amount of any claim they might have against Hanson. The judgment further recites that after the trial and after the trial judge had announced his ruling on the claims of the various parties, but prior to the actual entry of the judgment, these defendants, C. R. Jamison, J. Hiram Moore and L. F. Jamison, filed a motion to re-open the case and that they be given permission to file an amended answer and cross-action seeking affirmative relief against Hanson. This motion, after a hearing thereon, was denied by the trial court. In the judgment it was recited that these defendants take nothing against Hanson by reason of any asserted claim for breach of warranty. The Court of Civil Appeals affirmed the trial court’s take-nothing judgment against the two Jamisons and Moore. One of the grounds for affirmance was that the relief sought by these defendants was a compulsory counterclaim which should have been alleged and proven in the trial.

As to the defendants, C. R. Jamison and J. Hiram Moore, designated as Defendants H and E, respectively, and their contentions that they should have been permitted to reopen the case and file pleadings seeking affirmative relief against Hanson, we agree with the Court of Civil Appeals in its judgment affirming the action of the trial court refusing to permit these two defendants to re-open the case.

The trial court did not abuse its discretion in refusing C. R. Jamison and Moore permission to re-open the case and plead a cause of action against Hanson after the trial judge had tried the case and announced the judgment he rendered.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is modified by eliminating the recovery by Hanson of 6% interest from Defendants A (Pelham), B (Forrest heirs), and C (Stuart) on the sum of $400.00 from February 9, 1948, to date of the judgment, and as thus modified the trial court’s judgment is affirmed.

Hanson is adjudged to pay three-fourths of the court costs, and C. R. Jamison, J. Hiram Moore, and the Forrest heirs shall jointly be liable for one-fourth of the court costs.


author: BELCHER, Judge.

text:
    Charles Edward HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 41056.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1968.
    Rehearing Denied March 27, 1968.
    Will Gray, Houston (On Appeal Only), for appellant.
    Carol S. Vance, Dist. Atty., Houston, James C. Brough and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for robbery by assault with a prior conviction for burglary, an offense of like character and of the same nature, alleged for enhancement; and the punishment was assessed at life.

While testifying for the state, Macy Carpenter, the owner of a grocery store, and a customer, positively identified the appellant as the person who exhibited a pistol and caused Carpenter to deliver to him over $100 in money; and that the appellant put Carpenter in fear of his life and bodily injury and took the money without his consent.

Proof of the prior conviction for burglary with the intent to commit theft was introduced and the appellant was identified as the person so convicted.

The appellant did not testify, but offered the testimony of several witnesses showing an alibi.

The first ground urged as error in appellant’s brief is that he “was denied a fair trial by an impartial jury contrary to the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, where the Bailiff who had custody of the jury was permitted to testify, over Appellant’s objection, to an escape attempt made by the Appellant at a prior trial setting of the case.”

To support his position, the appellant called R. L. Holden as a witness. In the absence of the jury, Holden testified that on the morning of November 8, 1965, he was assigned as bailiff to the court which began trying this case that morning; that between 12:30 and 1:30 p. m., he took the jury to lunch which was about one block from the courthouse, and that he sat alone at a different table; that he never knew any of the jurors before the day of the trial, and he never talked with the jury except when they asked to buy some cigarettes.

When the appellant objected to Holden testifying as a witness to appellant’s attack on him in an attempt to escape, on September 21, 1965, the court dismissed Holden as bailiff and appointed another bailiff to serve.

Also, in the absence of the jury, Allen Stilley, assistant district attorney, testified that this was his first trial in this court, since he had been assigned to it; that he had heard of appellant’s attack on Holden and had intended to prove his attempt to escape by the attack; that Holden had acted as bailiff after the jury was impanelled in the morning and during the examination of one witness before court adjourned for lunch.

Appellant objected to Holden’s testimony on the ground that this is a trial de novo, and that Holden’s testimony is immaterial and highly prejudicial to the rights of the appellant before the jury.

Holden, age 63, testified before the jury, that he had nothing to do with the investigation of this case, and that his duties were the handling of defendants, jurors, and witnesses; that he was the bailiff and had charge of the appellant when his case was called for trial on September 21, 1965; that the judge directed him to take the appellant into his chambers to talk over the telephone which he did; that when the appellant had finished he (Holden) opened the door, and the appellant grabbed him and tried to lock him in the cell, but with the aid of a prisoner they restrained the appellant.

The nature and extent of the contact and association of the bailiff with the jury as shown by the evidence and his testimony does not reveal such association and communication with them as calls for a reversal. Jackson v. State, Tex.Cr.App., 403 S.W.2d 145, certiorari denied 385 U.S. 938, 87 S.Ct. 301, 17 L.Ed.2d 217; Bowles v. State of Texas, 5 Cir., 366 F.2d 734 (1966); Crawford v. Beto, 5 Cir., 385 F.2d 156 (1967).

It is insisted that error was committed on the ground that the trial court failed to limit the purpose for which the state’s evidence of appellant’s purported attempt to escape was admitted.

The appellant concedes that Holden’s testimony of the attempt to escape was admissible on the issue of guilt. Cawley v. State, Tex.Cr.App., 310 S.W.2d 340; Hutchins v. State, Tex.Cr.App., 360 S.W.2d 534.

But, the error he urges is that the court in failing to limit the jury’s consideration of such evidence resulted in a fundamental denial of substantive and procedural due process of law.

Assuming without deciding that a limiting charge would have been appropriate, in the absence of any objection or a requested charge the contention is not properly before us for review. Further, the failure to so charge under the record presented did not deprive the appellant of due process.

Another ground of error presented is that the appellant was denied substantive and procedural due process of law when the state offered evidence that he committed anotehr robbery after the offense charged in this case.

From the record, it appears that the state’s question on the examination of the witness Snead assumed a date subsequent to the robbery as the date of the offense charged. When Snead was asked by the appellant if the date could be an error he replied: “He asked me and I guess he knew.” No objections were made at the time the testimony now complained of was adduced. No error is perceived.

The judgment is affirmed.

      . Notice of appeal in the instant case was given prior to the effective date of the 1965 Code of Criminal Procedure. Therefore, the provisions of Art. 36.24, Vernon’s Ann.C.C.P., are not applicable to this case.