author: MASSEY, Chief Justice.

text:
    KING LAND AND CATTLE CORPORATION et al., Appellants, v. Leland FIKES et al., Appellees.
    No. 16804.
    Court of Civil Appeals of Texas. Fort Worth.
    March 3, 1967.
    Rehearing Denied March 31, 1967.

      Guy Rogers, Nelson & Sherrod, Walter Nelson, and Arch Dawson, Wichita Falls, for appellants.
    Prothro & Sellers, Wichita Falls, Gene Lary, Dallas, for appellees.
   OPINION

MASSEY, Chief Justice.

Reference is made to our prior opinion styled Fikes v. Ports, 373 S.W.2d 806 (1963, writ ref., n. r. e.). Pursuant to our action in dismissing the proceedings theretofore taken as against Leland Fikes and Trans-Southern Corporation by the receiver of King Land and Cattle Corporation under proceedings pending in the district court of Wichita County, Fikes and Trans-Southern were made formal parties to the receivership action. They filed pleas of privilege to have the case against them removed to Young County. By agreement of the parties and the court an order was entered in accord with their desires.

The order of transfer read “the cause of action asserted by the plaintiff and the Receiver herein against the said defendants Trans-Southern Corporation and Leland Fikes, drawing in issue the title to the oil, gas and mineral leases in Young County, Texas, described in the Plaintiff’s first amended original petition, be, and the same hereby is severed from this cause and the venue of such severed cause is changed and the same is hereby ordered transferred to the District Court of Young County, Texas, which is the proper court.”

In Young County trial was held before the court without intervention of the jury. In Wichita County there was a change of receivers and Ralph E. Waggoner succeeded Waldo Ports as Receiver for the King Land and Cattle Corporation.

As we view the matter proper to be considered as tried in the district court of Young County such was the issue of title to certain undivided mineral interests in realty therein located, though the form of the proceeding was other than that of a trespass to try title case. All parties seem to have tacitly conceded that if the subject property was in custodia legis under the March 6, 1961 receivership of the King Land and Cattle Corporation — as of the time of sale thereof on July 4, 1961, by trustee under deed of trust — no transfer of title was effected and it was and remained a part of the realty in and to be administered under the proceedings in receivership; but if the contrary was true, i. e. it was not — at time of the sale — a part of the receivership property in custodia legis, the title vested in Trans-Southern Corporation as result of the purchase at trustee’s sale. If the receivership proceedings were void, in toto or as applied to the subject property, the property would not have been in cus-todia legis.

Judgment was rendered for defendants Fikes and Trans-Southern Corporation. An appeal was taken by King Land and Cattle Corporation, and its receiver, Waggoner.

Reversed.

There are no findings of fact and conclusions of law in the record. The judgment does not disclose the theory under which the trial court made its decision.

It appears to us that a preliminary question to be resolved is whether Fikes and Trans-Southern Corporation were entitled, as they contend, to make a direct attack on the propriety and effectiveness of the receivership proceedings. It seems that no bond was ever filed by the applicant for the appointment of a receiver for King Land and Cattle Corporation. Furthermore, the original application for such appointment was made by that corporation. The proceedings were not ancillary to any other independent cause of action. Prior to entry of the order appointing a receiver for said corporation (by the Wichita County district court) two of its creditors joined in the application for such appointment, though the pleadings of such creditors nowhere alleged any lien to have attached to its property. No pleading before the district court of Wichita County specifically described the particular properties in Young County over which title issues were raised, and the original petition for appointment of receiver merely referred to property sought to be cast in receivership as: “On or about the 25th day of February, 1960, by instrument recorded in * * * Volume 362 at Page 224, of the Deed Records of Young County, Texas * * * Roy H. King transferred, assigned, conveyed and delivered unto King Land and Cattle Corporation various leasehold interests in various oil and gas leases as well as personal property, the extent, nature and amount of which is fully set out in such instrument so recorded and to which reference is here made for all purposes.” Roy H. King was named as a party defendant in the original petition. The order appointing a receiver merely referred to the Petition for the Appointment of a Receiver for designation of the property for which the appointment was made, with additional reference made to the same volumes and pages of the records in the several counties. By publication in Young County the legal notice recited: “Notice is hereby given to all persons, firms and/or corporations having a lien upon or claim against property described in an Assignment from Roy H. King to King Land & Cattle Corporation on February 25, 1960, and to all creditors of either of such parties to such Assignment to file in the 78th District Court of Wichita County, Texas, in Cause No. 67,200-B, a verified statement of their debt, lien, interest and/or other claim against such property on or before 130 days from March 13, 1961. Failure so to file will prevent any unfiling claimant from participating in the Receivership assets, /s/ Waldo W. Ports, Receiver.”

Established in the evidence was the fact that both Fikes and Trans-Southern Corporation at all material times actually knew of the fact of the receivership and that the subject property in Young County was a part of that embraced in the deed of February 25, 1960. Such property was properly described therein. Fikes’ mortgage was prior in time and from Roy H. King. Trans-Southern’s interest in the subject property, if any, had not accrued as of March 6, 1961. Trans-Southern became an interested party upon effecting a purchase at the later held Trustee’s sale. However, both parties were at all material times aware that all other interested persons, firms and corporations were treating and considering the property as part of that sought to be cast and/or cast in receivership and that it was included in the assignment of February 25, 1960.

Reverting to the subject matter set out in the next preceding paragraphs, those matters are noticed of which Fikes and Trans-Southern sought to avail themselves on trial in the district court of Young County under the contention that they were not confined to a collateral attack upon the orders of the receivership court. They claimed that they were entitled to make a direct attack thereupon. In this connection we deem it worthy to note that the record is silent as to whether either of them have ever filed any motion to vacate the appointment of receiver in the district court of Wichita County. We do know from the record before us that neither ever filed such a motion in the district court of Young County. To have filed such in Wichita County would have been procedurally correct, Texas law providing for an appeal from an order refusing to vacate the appointment of a receiver despite the fact that such is interlocutory. Vernon’s Ann. Tex.Civ.St. Art. 2250, “Appeal from interlocutory order”. We believe that it would only be in instances where such a motion were made and overruled, with timely appeal therefrom taken, that an appellate court would have jurisdiction to examine into the question of propriety of the order refusing to vacate. We furthermore are of the opinion that it would be only in such an instance that the matter of propriety of the appointment of a receiver could be considered as raised by direct attack. The same thing would apply to matters preliminary to such appointment. An attack upon such in any other court would necessarily be collateral.

A receivership proceeding is equitable in its nature. It is neither an action in personam nor in rem, but rather an action quasi in rem and subject to consideration under the rules relating to such. Equity seizes upon the transaction and the chancellor totally administers and makes complete disposition of the controversy. Equity regards as done that which ought to be done and regards substance rather than form. With such principles in mind the situation obtaining in the district court of Wichita County is properly viewed. Such court could, as it did in this case, transfer matters ancillary to receivership administration to another jurisdiction for determination. No part of that court’s responsibility in relation to the receivership, as such, was intended to be transferred to Young County when the plea of privilege was sustained. Nor would it have been proper to have done so and split the receivership, as such, into segments. In the district court of Young County Fikes and Trans-Southern were privileged to attack the validity and effectiveness of orders entered by the district court of Wichita County, but in so doing they were confined to a collateral attack. That court was not entitled to disregard orders of the other except upon a determination that they were void.

As a collateral attack the contentions made by Fikes and Trans-Southern Corporation must be held to have failed. They did not attempt to introduce any evidence relative to the proof before the district court of Wichita County when the receiver was appointed. It would not have been proper to have received and considered such had it been tendered. Relative to the question of jurisdiction of the court in Wichita County elements of which advantage is sought to he obtained could have been cured by such court if properly raised therein. Assuming impropriety of the appointment of the receiver because the receivership proceedings were original and not ancillary, such is not to he taken advantage of on collateral attack since the error is not one with respect to the court’s jurisdiction. Spence v. State Nat. Bank, 5 S.W.2d 754 (Tex.Comm.App., 1928). We may not, in any event, disregard the fact that before the receiver was appointed other parties had appeared and joined in application for such appointment.

We will take particular note of the fact that neither King Land and Cattle Corporation (which filed the original Petition for Receiver) nor any creditor who joined in the request for such appointment prior to entry of the Order Appointing Receiver ever filed the requisite bond. Texas Rules of Civil Procedure, Rule 695-a. “Bond, and Bond in Divorce Case”. In instances of direct attack it has always been held that such a bond is essential to the appointment of any receiver. See O’Connor v. O’Connor, 320 S.W.2d 384, 391 (Dallas Civ.App., 1959, writ dism.); Greenland v. Pryor, 360 S.W.2d 423 (San Antonio Civ.App., 1962, no writ), and cases cited. Without specifically so stating it appears that Justice Young, author of the opinion in O’Connor v. O’Connor, understood that upon a reversal of the case because of the failure to give such bond the proper order would be one of remand so that the “oversight” could be corrected by the trial court. The purpose of such a bond is to secure the payment of all damages which might be sustained by reason of the appointment of a receiver, and furnishing such — though mandatory — is not a jurisdictional requirement, at least as applied to receiverships with notice as in the instant case. Such a bond must be made, as a condition precedent to the right of the receiver to function as such, and upon direct attack a complainant may compel the remedial action indicated, to-wit: the filing of such bond. But an order appointing a receiver cannot be attacked collaterally on the ground that the applicant for the receivership was not required to give bond. 75 C.J.S. Receivers § 89, p. 732 “ — Collateral Attack”; Strother v. McCord, 222 Ala. 450, 132 So. 717, and cases therein cited from other jurisdictions in which statutes have made the filing of such a bond mandatory.

The district court of Wichita County having had jurisdiction and Fikes and Trans-Southern Corporation having at all material times had actual notice of the receivership proceedings and that the subject property in Young County was a part of the property referred to in the Order Appointing Receiver (albeit not sufficiently described were rules applicable to law courts controlling) they necessarily found themselves in a position where they could hold the subject property only upon the theory that some order of the district court of Wichita County effectively removed the property out of the receivership, i. e. made it property not covered by the receivership (other than in custodia legis), — or, in the alternative effectively authorized Fikes’ right to foreclose his mortgage lien by sale under authority of the deed of trust.

In the alternative Fikes and Trans-Southern Corporation made both contentions. We have already noticed that the Order Appointing Receiver designated the subject property as a part of that in custodia legis by reference. ,Such reference was: “all interests, if any, of the parties to this suit, in and to the properties described in Plaintiff’s Original Petition, being those identical properties described in an assignment from Roy H. King to King Land & Cattle Corporation on or about 25 February, 1960, recorded in * * * Volume 362 at Page 224 of the Deed Records of Young County.” The order copied (apparently from the petition) the volumes and pages of the deed records of various counties wherein the assignment was recorded.

In the body of the order it was further provided: “All persons, firms and/or corporations are hereby enjoined from proceeding to levy upon or otherwise interfering with the receivership’s exclusive possession of such property until final judgment of this Court.

“No lien, claim or other security concerning any property affected by this receivership shall in any manner be affected by this order nor shall any party’s failure to oppose the appointment of a Receiver, his-.consent thereto, or his procurement thereof constitute waiver of any lien, claim or right.”

Under general principles according to good reason and sound public policy a sale of real estate over which a receiver has been appointed—by anyone other than the receiver or under his authority—is illegal and void. Ellis v. Vernon Ice, Light & Water Co., 86 Tex. 109, 23 S.W. 858, 862 (1893). To construe the language quoted from the body of the Order Appointing Receiver so as to accord with the theory of Fikes and Trans-Southern Corporation would be to defeat the purpose of receivership. It would be unrealistic to So construe the language as to cause it to extend to preservation of right to remedies as well as to merely preserve lienholders’ rights.

Our holding, therefore, is that the language of the order did not authorize Fikes to have the property sold under trustee’s deed. Trans-Southern Corporation was not an innocent purchaser.

We have already held that the proceedings in the district court of Wichita County, having the characteristics of an equitable proceeding, and of which both Fikes and Trans-Southern had actual knowledge—and knew and understood that the subject property was a part of the property cast in custodia legis pursuant to receivership proceedings—were bound to honor such status as applied to the subject property despite the somewhat inadequate property description in the Order Appointing Receiver.

The trial court erred in rendering judgment. In so far as the case existed on the record made in said court the trustee’s sale of the subject property in Young County was illegal and void and had no effect upon the title thereto as it existed immediately prior. Our judgment is one setting aside that of the trial court and declaring that it remained property in custodia legis because of the receivership, the legal title being in King Land and Cattle Corporation.

Reversed.

ON MOTION REHEARING

On rehearing our attention is directed to the fact that a part of the Receiver’s relief prayed for, and to which he is entitled in view of our decision relative to title, is an accounting of profits from the leases in question.

Accordingly the judgment of this court is one of reversal, with the cause remanded to the trial court for action upon the accounting.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    J. A. BAUMERT, Jr., Appellant, v. A. C. PORTER, Appellee.
    No. 7806.
    Court of Civil Appeals of Texas, Texarkana.
    April 18, 1967.
    Taylor Moore, Browne & Moore, Houston, for appellant.
    Raymond C. Kerr, Whatley, Hodges & Kerr, Houston, for appellee.
   FANNING, Justice.

Plaintiff-appellee sued and moved for summary judgment on a promissory note. Defendant-appellee filed a sworn answer and a sworn controverting affidavit, which, while admitting the execution of the note sued upon, alleged in defense that there was a contemporaneous collateral oral agreement that the plaintiff would allow as credits against the note the income from an insurance agency transferred by defendant to plaintiff, which income, the exact amount of which was not known at the time of the hearing, but was at least $6,000.00 according to defendant’s controverting affidavit, had not been allowed as agreed. The trial court granted plaintiff’s motion for summary judgment for the full amount sued for and did not allow defendant any of the offsets pleaded by defendant as alleged in his sworn pleadings and controverting affidavit. Defendant -has. appealed.

Our review of the summary judgment must be within the guidelines summarized in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex.Sup.1965, 391 S.W.2d 41, in substance, as follows:

1. Summary judgment is authorized only when it is shown that there is no genuine issue of material fact and movant is entitled to judgment as a matter of law.
2. Burden of proof is on movant to establish the absence of any such issue.
3. Conflicts in evidence are disregarded, and the court must view the evidence in the light most favorable to the party opposing the motion, accepting as true all evidence which tends to support his position.
4. All doubts as to the existence of a genuine issue of material fact are to be resolved against the movant.
5. If the motion involves the credibility of affiants or defendants, or the weight of their statements, or a mere ground of inference, the motion should be denied.

Appellant presents two points on appeal contending (1) the pleadi.ngs--upon which the ••motion for summary judgment was granted are insufficient to sustain such judgment because neither the affidavits nor the exhibits .attached thereto comply with Rule 166-A(e), Texas Rules of Civil Procedure, which requires that they be made on personal knowledge and .show affirmatively that the affi-ant is competent to testify to the matters stated therein; and (2) that the sworn pleadings and controverting affidavit of the defendant show there are material fact questions to be determined.

Defendant’s controverting affidavit was properly sworn to and raised material issues of fact. Plaintiff did not file in response thereto a controverting affidavit as such. Plaintiff, however, filed his second.amended original petition, which he attempted to either acknowledge or swear to, but which as hereinafter shown, if the same was sworn to, was defectively sworn to and the affidavit and exhibits attached were not in compliance with Rule 166-A(e). In his second amended original petition plaintiff alleged the execution of the note in question, and attached a photostatic copy of the note as Exhibit A and made a part of the petition. (Since defendant in his pleading admitted the execution of the note in question, we need not be concerned about Exhibit A.) In paragraph V of plaintiff’s second amended original petition it was alleged as found below.

Plaintiff’s second amended original petition was signed by plaintiff’s attorney. The acknowledgment or attempted swearing thereto was made in the manner found below.

In Nagelson v. Fair Park National Bank, Tex.Civ.App., 351 S.W.2d 925, wr. ref., n. r. e. (1961), it was stated in part as follows:

“In his brief appellant Nagelson presents one point on appeal. He asserts that the court erred in rendering summary judgment absolving the Bank from liability for the tort committed by persons repossessing an automobile upon which the Bank was the only lien holder, especially when appellant had answered the motion for summary judgment with controverting affidavits tending to prove that the tort-feasors were acting in the interest of the Bank, as its agents and raising genuine issues of fact material to such issue.
"Appellant filed only one controverting affidavit and it is fatally defective. It does not show, as provided by Rule 166-A (e) Texas Rules of Civil Procedure, that it is made on personal knowledge and does not affirmatively show that affiant is competent to testify to the matters stated therein. Lawyers Surety Corp. v. Sevier, Tex.Civ.App., 342 S.W.2d 604; Gaston v. Copeland, Tex.Civ.App., 335 S.W.2d 406; Duffard v. City of Corpus Christi, Tex.Civ.App., 332 S.W.2d 447; Page v. Pan American Pet. Corp., Tex.Civ.App., 327 S.W.2d 469; Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396.
“The controverting instrument was signed by one of appellant’s attorneys who merely swore that ‘the facts contained in the foregoing pleadings are true and correct to the best of his knowledge and belief.’ In 2 C.J.S. Affidavits § 26 page 981 it is recognized that affidavits on information and belief are sometimes sufficient. But the text further says, ‘However, the averments must be direct and positive and not on information and belief if the statute which provides for the making of the affidavit expressly requires the facts to be positively stated * * *.* Texas decisions are in accord with the rule as above quoted. St. Paul Fire & Marine Ins. Co. v. Earnest, Tex.Civ.App., 293 S.W. 677 (Syls. 26 & 27); Scudder v. Burrus Mill & Elevator Co., Tex.Civ.App., 285 S.W. 681; Graves v. M. Griffin O’Neil & Sons, Tex.Civ.App., 189 S.W. 778; Abilene Ind. Tel. & Tel. Co. v. Southwestern Tel. & Tel. Co., Tex.Civ.App., 185 S.W. 356; Smith v. Banks, Tex.Civ.App., 152 S.W. 449; Moss v. Whitson, Tex.Civ.App., 130 S.W. 1034; Missouri K. & T. Ry. of Texas v. Pietzsch, 10 Tex.Civ.App. 572, 30 S.W. 1083; Spinks v. Matthews, 80 Tex. 373, 15 S.W. 1101; Graham v. McCarty, 69 Tex. 323, 7 S.W. 342 ; 2 Tex.Jur.2d 416. * * *
“Appellant in his supplemental brief asserts that appellee made no challenge at the hearing in the trial court to the sufficiency of his controverting affidavit, did not object to consideration of it by the trial court and made no objection to its inclusion in the transcript on appeal; therefore, this court may properly consider the controverting plea though it technically fails to conform to the rule. In support of this contention appellant cites us to Barron & Holtzoff, ‘Federal Practice and Procedure’, Ruled Ed. § 1237, p. 171; Jno. T. McCoy v. Schuster, D.C., 44 F.Supp. 499; and United States v. Newbury Mfg. Co. D.C., 1 F.R.D. 718. * * *
“As above stated, we do not agree with appellant’s contention even if it were shown in the record that appellee made no objection at the hearing in the trial court to the sufficiency of appellant’s controverting plea. The deficiencies in our opinion are not merely technical in nature. They go to the very substance of the matter so that the purported controverting affidavit cannot be considered as anything more than an unsworn pleading.”

In Spillyards v. Ferris Brick Company, Tex.Civ.App., 390 S.W.2d 837, no writ (1965), it was stated in part as follows:

“ * * * Employers filed opposition to plaintiff’s motion, amended answer, and a plea in abatement, and Employers’ attorney verified the matter set forth ‘to the very best of his ‘knowledge and belief,’ ‘is true and correct.’ Rule 166-A(e) requires that supporting or opposing affidavits shall be made on personal knowledge setting forth facts admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.
“Employers’ attorney’s verification above does not constitute the matters so verified an affidavit as required by the rule, and is ineffectual to oppose plaintiff’s motion for summary judgment. Youngstown Sheet & Tube Co. v. Penn, Sup.Ct., 363 S.W.2d 230; Nagelson v. Fair Park Nat. Bank, CCA (n. r. e.), 351 S.W.2d 925; Farmers State Bank v. First State Bank, CCA (n. w. h.), 317 S.W.2d 768; Sparkman v. McWhirter, CCA W/E Ref., 263 S.W.2d 832. * * *” Emphasis added.

In Boswell v. Handley, Tex.Sup.1966, 397 S.W.2d 213, it was stated in part as follows:

“The legal problem presented in this case arises because the petitioners did not attach to their pleadings, affidavits, or motions for summary judgment a certified or sworn copy of the last will and testament of Mrs. Carrie Slaughter Dean and of the order showing that said will had been duly probated. Petitioners did include in their unsworn pleadings a purported copy of a will, known to all parties as ‘Exhibit A.’ * * *
“Petitioners then filed their unverified motions for summary judgment relying upon sworn affidavits. Controverting affidavits were filed, but there was nothing attached to the affidavits of either party nor did the affidavits of the petitioners refer to ‘Exhibit A.’
“Petitioners rely upon the case of Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962), as controlling in this situation. They contend that since there was no objection in the trial court concerning the absence of the sworn or certified copy of Mrs. Dean’s will and the order probating it being attached or served with their affidavits, then an assignment of error to that effect comes too late when raised for the first time before the Court of Civil Appeals. See also Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ.App.1963, error ref. n. r. e.), relying upon Youngstown, supra.
“We distinguish Youngstown Sheet & Tube Co. v. Penn for the following reasons. In that case the plaintiff sued the Texita Oil Company on a sworn account and for foreclosure of its materialmen’s lien on the Mallard ‘A’ and Mallard ‘B’ leases in Atascoca County. Plaintiff by amended petition alleged that Texita was a partnership composed of certain named individuals. Three of these individuals, the defendants, filed a verified answer denying that they were partners in Texita, and further denied that they had engaged in a partnership with Texita in the development and operation of the two leases. Defendants’ motion for summary judgment was granted and the Court of Civil Appeals affirmed. Of the affidavits filed in support of their motion for summary judgment, one referred to a photostatic copy attached to the defendants’ original answer and stated that such instrument was executed by the three defendants and Texita concerning the operation of the Mallard ‘B’ lease.
“We held that those affidavits were subject to exception in the trial court because, among other defects, sworn or certified copies of the operating agreements were not attached to or served with the Johnson affidavit. However, we went on to hold that:
‘ * * * objections of this kind may not be raised for the first time on appeal when it fairly appears from the record that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ 363 S.W.2d 230,234.
“A different situation and result prevailed with respect to the Mallard ‘A’ lease. No attempted incorporation by reference of that operating agreement into the defendants’ affidavits was made, nor was such attached to the motion for summary judgment or to any of the pleadings. It simply was not in the record. We therefore held on the basis of Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), that the defendants had not discharged their burden of showing that they were entitled to judgment as a matter of law, regarding the Mallard ‘A’ lease.
“The distinction that we draw is that in Youngstown, supra, as to the Mallard ‘B’ lease, there was a reference to the copy of the operating agreement attached to defendants’ answer. By sworn affidavit defendants stated that such was executed by the parties. A copy of the affidavit was served on the plaintiff, as was a copy of the defendants’ original answer with the photostat of the operating agreement attached. We held that in those circumstances the copy constituted a sufficient basis upon which a motion for summary judgment could either be granted or denied, in the absence of an exception by the opposing party.
“In the case before us petitioners did not attempt in their sworn affidavits to adopt by reference the copy attached to their pleadings, known as ‘Exhibit A.’ A duplicate of petitioners’ pleadings, including ‘Exhibit A’, had been served upon the respondents. The same was true in regard to petitioners’ affidavits that they filed in support of their motions for summary judgment. However, in the affidavits of the petitioners, ‘Exhibit A’ was never sworn to be a true and correct copy of the duly probated will of Mrs. Carrie Slaughter Dean. As it now stands, petitioners’ exhibit attached to their pleadings cannot come within the rule set out in the Youngstown case.
“Instead, we agree with the Court of Civil Appeals, which holds that this case is controlled by Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961). In that case we held that where the defendant failed to attach to his motion for summary judgment either sworn or certified copies of the record and judgment in an earlier suit that there was nothing in the record upon which the appellate court could rely to determine whether that motion had been properly granted. As a result we held that the judgment could not stand.
“The facts in this case before us are substantially the same. True enough, there was nothing in the Gardner record of the prior judgment, not even a purported copy of that judgment. Here there is a copy which is not certified■ or verified to be the duly probated mill of Mrs. Carrie Slaughter Dean. Rule 166-A has not therefore been complied with and the motion for summary judgment should have been overruled by the trial court. Rule 166-A(e), Texas Rules of Civil Procedure." * * * Emphasis added.
“Petitioners point out that the respondents objected for the first time before the Court of Civil Appeals to the absence of a verified or certified copy of Mrs. Dean’s will. Since this was a nonjury trial, no motion for new trial was required to be filed. Rule 324, T.R.C.P. However, petitioners argue that even though not required to do so, respondents did file a motion for new trial and are therefore limited to the errors assigned therein. This question has been decided to the contrary by this court in Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101, 104 (1939). See McDonald, Texas Civil Practice, Vol. 4, p. 1427 § 18.04.
“There is no verified or certified copy of the will nor a sworn or certified copy of the order probating such before the court upon which to base petitioners’ motion for summary judgment. Therefore, the judgment of the Court of Civil Appeals is affirmed.”

Plaintiff’s Exhibits B and C have been carefully examined. They are not certified copies nor can they be considered to be properly sworn to copies as required by Rule 166-A(e). Furthermore plaintiff’s attorney does not appear to be a party to any of said instruments and obviously said instruments are hearsay to him. In this connection, see the Youngstown Sheet and Tube case, supra, wherein it was stated, 363 S.W. 29 at p. 233:

“Hearsay may not be made the basis of a summary judgment, and the trial judge should not be required to speculate as to whether the affiant could establish the facts in his affidavit if he were testifying from the witness stand.”

Furthermore, plaintiff’s pleading in its paragraph V with respect to the force and effect of Exhibits B and C are obviously legal conclusions. Furthermore, said Exhibits B and C do not conclusively establish, as a matter of law, that appellant’s sworn defense does not raise material issues of fact to be determined by a trier of the facts.

Irrespective of whether defendant’s failure to object or except to the defective affidavit to plaintiff’s second amended original petition constituted a waiver to insist that Rule 166-A (e) was not complied with, we have reached the conclusion that under the whole record in this case there were material issues of fact raised which precluded the entry of the summary judgment.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

      . “Plaintiff specially denies the allegations in Paragraph II of Defendant’s First Amended Original Answer and especially the portion starting at the end of line 2 of said paragraph in which Defendant alleges that contemporaneous with the execution of the promissory note, marked Exhibit “A” and attached hereto, the Defendant assigned to the Plaintiff his undivided one-half interest in the agency known as State Agency to be used as collateral and that the income from said agency was to be applied to Defendant’s promissory note, Plaintiff would show unto the Court that such allegation has no factual basis and Plaintiff submits as evidence thereof a photostatic copy, marked Exhibit “C”, attached hereto, and made a part hereof for all purposes, of an assignment of any interest the Defendant may have had in two insurance agencies, one known as State Agency and the other as Southwest Agency, which is dated the 1st day of January, 1965, a period in time prior to the date of the execution of the said promissory note; and Plaintiff would further show unto the Court, if further showing is necessary, that the release agreement attached hereto, marked Exhibit “B” and made a part hereof for all purposes, is a release of the Plaintiff by the Defendant and others, signed individually and in other capacities, was executed on the 30th day of September, 1965, and by its plain language releases and forever discharges the Plaintiff from ‘any claims, duties, debts, responsibilities, liabilities, causes of action, in law or in equity’ involving any transaction between the Plaintiff and the various individuals signing the release, one of whom was the Defendant.”

      . “THE STATE OF TEXAS 1 COUNTY OP HARRIS J
      “BEFORE ME, the undersigned authority, on this day personally appeared RAYMOND C. Kerr, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he is the attorney of record for the Plaintiff, A. C. PORTER, in the above entitled and numbered cause, that he has read the foregoing petition, and knows the contents thereof to be true and correct to the best of his knowledge and belief.
      /s/ Raymond O. Kerr RAYMOND O. KERR
      “SUBSCRIBED AND SWORN TO BEFORE ME by the said Raymond C. Kerr this the 8th day of June, 1966, to certify which witness my hand and seal of office.
      /s/ Bonnie Mayeur
      NOTARY PUBLIC in and for Harris County, Texas


author: CHADICK, Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Patsy Ruth RAZEY et vir, Appellees.
    No. 7799.
    Court of Civil Appeals of Texas. Texarkana.
    April 18, 1967.
    Rehearing Denied May 9, 1967.

      Raybourne Thompson, Jr., Vinson, Elk-ins, Weems & Searls, Houston, for appellant.
    W. C. “Bill” Shead, Freeman M. Bullock, Houston, for appellees.
   CHADICK, Justice.

This is an action to recover damages for personal injury resulting from common law negligence. The judgment of the trial court awarding the plaintiff damages is affirmed.

Considered in the aspect most favorable to the verdict of the jury the evidence shows that potted flowers and shrubs were exposed for sale in a border along the concrete walkways and adjacent paved parking area leading to the entrances of a J. Weingarten, Inc., Store in Houston, Texas. The displayed plants were rooted in soil, many in metal buckets of one to three gallon capacity, others in wood and cardboard boxes, with some of the larger varieties having their roots balled and burlap wrapped. All plants were outside the store proper and divided into sections by 24 inch aisles, though they were not completely in the open as the store building roof overhung the sidewalk and was supported by columns along the walk’s outer edge. The roof was of a height that permitted falling rain to be swept by air currents so as to fall upon the plants and their containers.

The stock of plants had been arranged and displayed as described for a period of two months prior to the time Mrs. Patsy Ruth Razey alighted from an automobile at the edge of the parking area and proceeded toward a store entrance, passing near one of the roof support columns and along an aisle separating the plants. There was a heavy downpour of rain, described in appellant’s brief as a “blinding rainstorm” preceding and at about the time of Mrs. Razey’s appearance at the store. Mrs. Razey fell in the aisle and was injured. A skim of mud and silt was observed by her husband on the surface of the walkway at the place she fell. No source of mud and silt in the vicinity except the plant containers is suggested by the evidence. Muddy water was oozing from among the plants and accumulating in the walkway.

The appellant’s first three points of error are condensed in its brief to this statement:

“It is the Appellant’s basic position that there is no competent evidence that Appellant had any notice of the condition which Appellees contend existed outside the Weingarten’s store or its alleged cause, nor is there evidence that the condition existed for any period of time immediately preceding Appellee’s fall so as to allow Appellant to discover and rectify the dangerous condition, if it actually existed. Therefore, as a matter of law, Appellees should be permitted no recovery.”

Discussion here will be on the issues drawn by this proposition.

It is conceded that Mrs. Razey was an invitee on the premises. The critical fact for determination under the pleadings was whether or not in the exercise of reasonable care the store operator knew or should have known that under the circumstances mud and silt probably would be deposited on the walkways unless measures were taken to prevent it, such as removing the plants or cleaning the aisle as the muck accreted. The store operator was under the common law duty to foresee the probable consequences of its acts and omissions. Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962); 40 Tex.Jur.2d Negligence § 10 (1962) and cases listed in footnote 4. By common knowledge the operator knew, or should have been aware, that during the two or more months the plants were displayed that rains would probably fall and wash over plants and containers, and that soil and silt laden rainwater would probably drain off, particularly from the balled and burlapped plants, and trickle into the display aisles. From the same source, common knowledge, the operator was aware that mire on a concrete walkway rendered footing on it uncertain and insecure.

The facts of this case do not present the situations appellant briefed, which are frequently found in reported slip and fall cases where the store operator had no notice of and could not have in the exercise of care reasonably anticipated a hazardous floor condition, or where there is no evidence that the hazardous condition existed for a period of time that would permit its discovery, correction, etc. Here the aisle condition was created by the operator’s acts and omissions and is such that the operator in the exercise of ordinary care could reasonably foresee the probable result that would flow from the condition.

The special issue inquiring about damages permitted the jury to award recovery for future incapacity. The appellant’s brief sketches its view of the testimony, emphasizes that there is no medical testimony of future disability and asserts the conclusion that “ * * * there was no testimony in the record from which the jury could find Mrs. Razey would have any future incapacity, or disability because of her complaints.” On examination of the statement of facts testimony is found that, in its most favorable aspect, shows Mrs. Razey’s left knee started swelling two days after her fall, and shortly her hip began to give her pain. Soon she was not able to fully perform her household duties, and the pain in her hip and knee persisted. She consulted several medical practitioners but nothing prescribed and no treatment undertaken alleviated her condition. The accident occurred in April, 1964, and trial was in May, 1966. Her pain, impaired use of her knee and hip, weakness, etc., increased, rather than abated between the time of injury and trial date. There was testimony that her condition had not responded to any treatment in the two year period. The jury could reasonably conclude that her condition would continue indefinitely. The prospective effect of the injury is supported by this evidence; and if the jury gave it credit, as it well may have, an award of damages therefor was proper. 17 Tex.Jur. 2d Damages, § 249 (1960).

Appellant’s four points are respectfully overruled and the judgment is affirmed.


author: DAVIS, Justice.

text:
    Calvin O. BAUCUM, Appellant, v. PYRAMID LIFE INSURANCE COMPANY, Appellee.
    No. 7794.
    Court of Civil Appeals of Texas. Texarkana.
    April 11, 1967.
    Rehearing Denied May 9, 1967.
    Wm. V. Brown, Jr., Brown & Brown, Texarkana, for appellant.
    Cahill Hitt, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.
   DAVIS, Justice.

A suit on a medical and hospital policy. Plaintiff, Calvin O. Baucum, sued Defendant, Pyramid Life Insurance Company, as the result of certain illnesses and hospitalizations, and for attorney’s fees. The insurance policy was admitted. There are no arguments about its contents. It was stipulated, in the event plaintiff was entitled to recover, the amount due was $241.40 and he was entitled to recover $250.00 as attorney’s fees. The case was tried to a jury. Only two special issues were submitted. They inquired if Coronary Insufficiency was the cause rendering it necessary for plaintiff to receive medical treatment and hospitalization; and, what percentáge, if any, did it find from the evidence the hospitalization was attributing to Coronary Insufficiency. The issues were answered “no” and “none”. Plaintiff filed a motion for judgment. Defendant filed a motion for judgment n. o. v. The trial court granted the defendant’s motion. Plaintiff has perfected his appeal and brings forward three points of error.

By his points, plaintiff says the trial court erred in setting aside the verdict of the jury that was returned upon a disputed fact issue, in failing to render judgment on the verdict for the reason that all the medical evidence does not point out to a possible Coronary Insufficiency.

The evidence shows that the plaintiff became ill with a pain in his chest and in his side and required him to be taken to a hospital. He was first taken to a hospital in New Boston, Texas, and was later transferred to St. Michael’s Hospital in Texarkana, Arkansas. As a result of this illness, he was hospitalized for six or seven days. After the hospitalization, he became completely well and returned to his work as a carpenter.

According to the medical evidence that was offered by defendant, it showed the plaintiff was suffering from possible Coronary Insufficiency; Chronic Gall Bladder Disease; Chronic Gastritis; Chronic Chole-cystitis with Cholelitiasis. It further shows:

“HEART: Rate is slightly increased. The rhythm is normal and there is no irregularity. There are no murmurs. There apparently is no enlargement. The peripheral vessels do not show any increase in arteriosclerotic changes.”

It also shows:

“1-7-66: X-Ray — St. Mich — G. B. and B. I.
1. Prephloric Gastritis with pholaspe of Gastric Mucosa into the base of the Bulb. 2. Bulb slightly deformed, but no /efinite Ulcer can be identified. 3. Some exaggerated Extrinsic pressure along the greater curvature of the Media of stomach in upright position. May be due to the proximity of the Spleen or a loop of colon.”

On March 16, 1966, the doctor wrote a letter in which he states in part:

“ * * * To my knowledge and to the best of my belief Mr. Baucum has not had Coronary Insufficiency at any time prior to his admission to the hospital. * * * ” Emphasis added.

There were several electrocardiograms made upon the plaintiff, but they all showed normal or negative. There is no evidence df any treatment of plaintiff by the doctor for Coronary Insufficiency or heart attack. The doctor made the statement, offered in evidence by the defendant, that the plaintiff had NOT had any Coronary Insufficiency at ANY TIME PRIOR to his admission to the hospital. If the plaintiff had not had any Coronary Insufficiency at any time PRIOR to his admission to the hospital, the Coronary Insufficiency was not the cause of him being admitted thereto.

At least the medical evidence is conflicting. This creates an issue of fact that must be decided by the jury. Ford v. Panhandle & Santa Fe Ry. Co., (1952), 151 Tex. 538, 252 S.W.2d 561; 62 T.J. 2nd 443, Sec. 371, and authorities cited therein. The medical evidence of possible Coronary Insufficiency does not create positive proof of a fact. The word “possible”, as defined by Webster’s Dictionary reads as follows:

“pos'si-ble, a. (L. possibilis, from posse, to be able.)
1. That may or can happen, be, or exist; that may be done; not contrary to the nature of things; liable to happen or come to pass.
Precedent of experience is in all this the only possible guide — John Graham Brooks.
2. Capable of being, existing, or coming to pass, but highly improbable.
’Tis possible to infinite power to endue a creature with the power of beginning motion — Clarke.
Syn. — Practicable, feasible, likely, potential.”

There was evidence offered by the plaintiff that he was a pretty sick man, and apparently, the doctor thought so. The plaintiff swore that the doctor did not tell him that he was suffering because of Coronary Insufficiency, or any other circular disease. This created conflicting issues of fact that became the duty of the jury to resolve. 62 T. J. 437, Section 370, and the authorities cited therein. The principle of the law wherein a trial court may grant a judgment, notwithstanding the jury verdict, is very limited. If there is any evidence of probative value, he cannot do so. Burt v. Lochausen (1952), 151 Tex. 289, 249 S.W.2d 194; Benoit v. Wilson (1951), 150 Tex. 273, 239 S.W.2d 792; Muro v. Houston Fire and Casualty Insurance Co., (Ct.Civ.App.1950) 329 S.W.2d 326.

We hold that there is sufficient evidence of probative value to support the jury’s findings. The points of error are sustained.

The judgment of the trial court is reversed and rendered.


author: NYE, Justice.

text:
    Santos SUAREZ, Appellant, v. A. C. BROWN d/b/a Brown Motor Company, Appellee.
    No. 320.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 30, 1967.
    Rehearing Denied April 20, 1967.
    William Brode Mobley, Jr., Corpus Christi, for appellant.
    Charles Lyman of Lyman & Sudduth, Corpus Christi, for appellee.
   OPINION

NYE, Justice.

On December 13, 1966, judgment was entered on behalf of the defendant in the district court. Plaintiff gave notice of appeal. The transcript and statement of facts were filed in this court. Prior to the submission of this appeal appellee filed a motion to strike the transcript and statement of facts and dismiss the appeal for want of jurisdiction of this court to consider the appeal.

The facts are undisputed. The appellant filed his affidavit in forma pauperis under Rule 355 Texas Rules of Civil Procedure on the twenty first day after the date of judgment. Rule 356 requires that the affidavit in lieu of bond shall be filed not more than twenty days after the date of rendition of such judgment or order.

New Years Day of 1967 fell on Sunday. The office of the district clerk of Nueces County was closed on Saturday, December 31, 1966, Sunday, January 1, 1967 and Monday, January 2, 1967. The affidavit was filed on Tuesday, January 3, being the twenty first day. It is appellant’s contention that Monday, January 2 is a statutory legal holiday or a day recognized by legislative declaration as being a general holiday by popular acceptance and therefore the affidavit filed on Tuesday, January 3, 1967, when the courthouse opened for business, was timely filed. Citing Rule 4, Tex.R.Civ.P., Article 4591 and Article 4591d, Section la and lc, Tex.Rev.Civ. Stat.Ann. Appellant contends that the term “legal holiday” as used in Rule 4 includes not only those days designated as general holidays in Article 4591 but also those which are recognized by legislative declaration as being holidays by popular acceptance. Citing Blackman v. Housing Authority of City of Dallas, 152 Tex. 21, 254 S.W.2d 103, Sup.Ct.1953. It is true that the Blackman case is authority for this proposition; however, this decision was handed down in 1953-and involved a construction of Rule 386, Rule 4 and Art. 459Id, Sec. 1. This latter article was subsequently amended in 1955 and 1957 and section 1 was completely eliminated. This eliminated section provided that:

“All of the dates in each year enumerated in Article 4591 of the Revised Civil Statutes of the State of Texas, and in addition May 30 and February 12 of each year, and when any of such dates fall upon Sunday, then the Monday next following such Sunday, are declared to he legal holidays, * * * ”

In 1959 the Supreme Court of Texas in Smith v. Harris County-Houston Ship Chan. Nav. Dist., 160 Tex. 292, 329 S.W.2d 845, in answering a certified question from the Court of Civil Appeals held that only the days designated in Article 4591 are legal holidays within the meaning of Rule 4. In view of the fact that Rule 356 requires the cost bond or affidavit in lieu of bond to be filed not more than twenty days the affidavit being filed on the twenty first day came too late unless the Monday following Sunday January 1 which was a legal holiday would also be designated as a legal holiday. Rule 4 provides that:

“In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. As amended by order of July 26, 1960, effective Jan. 1, 1961.”

Since January 2 was neither a Saturday or Sunday under Rule 4 we must look to Article 4591 to see if Monday, January 2 is so designated. Article 4591 does not include this date.

The Supreme Court recognized the holding in the Blackman case but stated that at the time of the rendition of the Blackman opinion, Article 4591d, Section 1 was in effect and constituted a legislative declaration as making Monday, March 3 a general holiday by popular acceptance. The Supreme Court goes on to point out in the Smith case that Article 4591d has been twice amended since the Blackman case and that in such amendments there is no existing legislative declaration as to the date involved in the Smith case as being commonly observed as a holiday. The Supreme Court in the Smith case went on to say:

“The application of Rule 4 as interpreted in the Blackman case was reasonably certain in the light of the statutes then in force, but this will not be true if such interpretation is now extended to include any day in the year which has ever been recognized by the Legislature as a general holiday by popular acceptance. In our opinion, it would be unwise to go that far, and the question submitted by the Court of Civil Appeals is answered in the negative. Under our present statutes, only the days designated in Article 4591 are legal holidays within the meaning of Rule 4”

As pointed out herein the Smith case does not specifically overrule the Blackman case. It is therefore appropriate to the facts of this case to quote from the Supreme Court in the Blackman case, supra:

“(Nor) do we think the rule (Rule 4) meant to include those days, which the Commissioner’s Court of the County, wherein the particular court should be located or wherein counsel for one party or another should reside, might choose to designate as a holiday. * * * ”

We construe this language to mean that if a county office or all offices in the courthouse are authorized by the county officials in charge to close on a certain day which is not designated by statute (art. 4591) as being a legal holiday, such authorization to close does not create a legal holiday within the provisions of Rule 4.

Appellee’s motion to dismiss is granted. Appeal dismissed.


text:
    William E. WOLF et al., Appellants, v. W. R. PETTY et al., Appellees.
    No. 16829.
    Court of Civil Appeals of Texas. Fort Worth.
    March 31, 1967.
    Rehearing Denied May 5, 1967.

      Shirley W. Peters, Denton, for appellants.
    Bill Atkins, Arlington, for appellees.
   OPINION

MASSEY, Chief Justice.

The question posed relates to the consolidation of cities, pursuant to the provisions of Vernon’s Ann.Tex.St. Title 28, “Cities, Towns and Villages”, Chapter 15, “Consolidation of Cities”, Art. 1188 et seq.

In the City of Bedford, in Tarrant County a petition was filed with the governing body to order an election for the purpose of voting on its consolidation with the City of Euless, also in Tarrant County. In part, at least, the boundaries of said municipalities adjoin and are contiguous. Under the record such was not made a fact issue. If it was then the fact was indisputably established. The petition was signed by qualified electors equal to fifteen per cent of the total vote cast at the last preceding general election for city officials, next preceding the filing of said petition. Under the provisions of Art. 1189, “Petition”, it is prescribed that in such instances the governing body of the city shall, within ten days after the receipt thereof, order such an election to be held.

Upon the failure and refusal of the governing body of the City of Bedford to order such election, W. R. Petty, et al., as qualified voters and electors of that city, and as signers of the petition for the holding of such election, brought suit in district court in mandamus to compel William E. Wolf, mayor, and others who comprised the remainder of the governing body, and the City Secretary, to order the election provided for.

Judgment granted mandamus. Mayor Wolf and the other respondents appealed.

An initial question is whether petitioners, Petty and others, had authority to bring the suit in the direct form adopted rather than as relators in a suit brought by an authorized person as in an action in qtio warranto. We have concluded that there was such authority and that the suit was properly brought and the trial court had jurisdiction to grant writ of mandamus. When the question is one of public right, and the object is to procure the enforcement of a public duty, a citizen may maintain the suit without showing any interest special and peculiar to himself, and, in a proper case, without the intervention of a governmental law officer, and, where a specified number of voters is given the right to demand an election by petition, one or more of the petitioners may apply for, and in a proper case obtain, a writ to compel the calling of the election. 37 Tex.Jur.2d, p. 738, “Mandamus”, § 90, “Private person, citizen, or taxpayer”, and cases cited; Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648 (1951); City of De Leon v. Fincher, 344 S.W.2d 743 (Eastland Tex.Civ.App., 1961, writ ref. n. r. e.); Newton County Water Supply District v. Bean, 320 S.W.2d 158 (Austin Tex.Civ.App., 1959, writ ref. n. r. e.).

As applied to the City of Bedford there was no issue joined in the pleadings of petitioners and respondents. What respondents sought to do was to present issues of fact upon the propriety of activities of the City of Euless, and of petitioners therein to their governing body. The record reflects that at the same time of the activity by the petitioning citizens of the City of Bedford there was like activity by petitioning citizens of the City of Euless. The fact is immaterial. Nothing to be found in the statutes requires that action in one city directed toward having an election upon title proposition of its consolidation with the other depends upon any similar action in that with which consolidation was proposed. We are not presently required to decide whether an election could be held by only one of the electorates, or whether such an election must be held on the same day. We do not attempt to do" so. What we do hold is that the validity and effectiveness of a petition to the governing body of one city to order such an election would not in any way depend upon the validity and effectiveness of a petition to the governing body of the city with which a consolidation was proposed.

As result of such holding the aforementioned issues sought to be made by respondents would be immaterial upon a question of petitioners’ right to mandamus. However, even if we err in such conclusion, and petitioners’ right to such relief did thereupon depend, the attack made upon the propriety of the proceedings in and by the City of Euless would be collateral. As a collateral attack the respondents’ evidence would fail in view of acts and decisions shown to have been made by the governing body of the City of Euless.

Under such state of affairs no fact issue was raised by the pleadings in the case and respondents were not entitled to a jury. No error has resulted because the trial court denied respondents a trial by jury.

The governing body of the City of Bedford was under a clear legal duty to order the election prescribed by Art. 1189. Mandamus was proper.

Affirmed.


author: HUGHES, Justice.

text:
    Linda MEADE, Appellant, v. Walter B. MEADE, Appellee.
    No. 11486.
    Court of Civil Appeals of Texas. Austin.
    April 12, 1967.

      John Wright, Grand Prairie, for appellant.
    Frank S. Wright, Dallas, for appellee.
   HUGHES, Justice.

This is a divorce suit in which Linda Meade, appellant, sued Walter B. Meade for divorce and for custody of their only child, Jeffery Barnett Meade, a boy age four years. Trial to the court without a jury resulted in a judgment granting appellant a divorce and awarding appellee custody of Jefféry.

Appellant relying upon the rule that, other things being equal, a child of tender years should be in the custody of its mother, contends the trial court erred in not awarding her the custody of Jeffery.

We are of the opinion'.that the record clearly reflects that “other things” are not equal, and that no abuse of discretion on the part of the trial court is shown in awarding appellee the custody of his son.

The statement of facts contains more than two hundred pages and contains, for the most part, testimony of three medical doctors and others pertaining to mental illness of appellant.

We refrain from writing the full details of this illness as shown by the record, but will do so if appellant so requests us.

Appellant has undergone psychiatric treatment in Parkland and Beverly Hills hospitals in Dallas, and in the Terrell State Hospital. She has been an in or out patient, receiving psychiatric care, since July 1964. She was an in-patient just a few days before the trial below, which was on March 1, 1966.

The last doctor treating appellant testified that in his opinion appellant would completely recover in a year’s time. If this prediction comes true, as all persons must assuredly hope, appellant will be in a position to ask for modification of the custody decree on the ground of changed conditions. We wish to emphasize that the only evidence appearing in this record upon which the trial court could predicate a finding that appellant was an unfit person to be awarded custody of Jeffery is the evidence relating to her mental illness.

The judgment of the trial court is affirmed.

Affirmed.


text:
    W. Bayard TAYLOR, Appellant, v. Victor P. HEAD et al., Appellees.
    No. 7804.
    Court of Civil Appeals of Texas. Texarkana.
    April 4, 1967.
    Rehearing Denied April 25, 1967.

      Wm. J. Kershner, Houston, for appellant.
    Blake Tartt, Carl Wm. Vogt, Donald O. Jansen, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.
   DAVIS, Justice.

A tort case. Plaintiff appellant, W. Bayard Taylor, sued Victor P. Head and his ex-wife, Doraldine Head, in connection with an automoble rear-end collision that occurred about April 5, 1964, in the City of Houston, Harris County, Texas. The case was tried to a jury. The jury answered all the special issues in favor of appellant, except the issues as to damages and future medical and hospital expense. The jury found that appellee, Doraldine Head, the driver of the other car, was guilty of negligence that was the proximate cause of the damages and injuries suffered by appellant. The jury awarded appellant $1,000.00 as medical and hospital expenses as the result of the injuries. The jury answered “none” to the special issues as to the damages and did not answer the issues as to future medical and hospital expenses. Appellant has perfected his appeal and brings forward one point of error.

By his point appellant says the trial court erred in failing to grant his motion for new trial because the damages that he recovered were inadequate. As a result of this point of error, we have carefully ex-mined the statement of facts. There is much evidence that appellant suffered a back injury and was still suffering with severe pain in his legs. He was hospitalized on two occasions. There were two doctors who testified in the case and with the limited authority that 'they were permitted to testify by the trial court they both testified that there was something wrong with the appellant and that he was damaged by the accident in question. One of the doctors testified as follows:

“Q. Even though you couldn’t find anything positive with him up until then except his complaints?
A. Oh, I found definite things positively wrong with him.
Q. Well, were your clinical findings sufficient to indicate nerve root involvement ?
A. I found chronic and at times severe localized inflammation in certain muscles and ligamentus areas of his back. I did not find evidence of nerve root involvement, even though his symptoms were suspicious of it. That’s why I did the first EMG. And then he gradually developed unequivocal evidence of nerve root involvement.”

Special issue No. 8 that was submitted to the jury, along with the instructions, reads as follows:

“SPECIAL ISSUE NO. 8
“What sum of money, if any, if now paid in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff for his damages, if any, as were directly and proximately caused by the collision made the basis of this suit, taking into account the injuries sustained by him, if any, including the following elements, if any, as you may find to be established by a preponderance of the evidence and none other:
(a) Such physical pain, if any, as you find from a preponderance of the evidence Plaintiff has sustained from April 5, 1964, to the date of this trial, resulting from the injuries, if any, suffered by him as a direct result of the collision made the basis of this suit;
(b) Such mental anguish, if any, as you find from a preponderance of the evidence Plaintiff has sustained from April 5, 1964, to the date of this trial, resulting from the injuries, if any, suffered by him as a direct result of the collision made the basis of this suit;
(c) Such physical pain,' if any, as you find from a preponderance of the evidence Plaintiff will in reasonable probability sustain in the future beyond this date, resulting from the injuries, if any, suffered by him as a direct result of the collision made the basis of this suit;
(d)Such mental anguish, if any, as you find from a preponderance of the evidence Plaintiff will in reasonable probability suffer in the future beyond this date, resulting from the injuries, if any, suffered by him as a direct result of the collision made the basis of this suit;
“Answer by stating the amount, if any, in dollars and cents.”

To this issue the jury answered, “none”.

There is a case that is direct in point which holds that a jury must award some damages for pain and suffering. Bolen v. Timmons, (CCA 1966) 407 S.W.2d 947, n. w. h., and the authorities cited therein.

The judgment of the trial court is reversed and the cause is remanded.


text:
    Esther BROOKS et al., Plaintiffs-Appellants, v. LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF ST. LOUIS COUNTY, Defendant-Respondent.
    No. 52147.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Jerome- Raskas> Sylvan . Agatstein, St. Louis, for appellants.
    John J. McAtee, Clayton, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

Plaintiffs in this case are residents of Elmwood Park located in St. Louis County, Missouri. The defendant is the Land Clearance for Redevelopment Authority of St. Louis County, Missouri, operating under the provisions of Secs. 99.300-99.660, V.A. M.S.

In their petition, plaintiffs asked the court for a declaratory judgment and a restraining order prohibiting the defendant from proceeding with an Urban Renewal Plan relating to Elmwood Park. A trial was had on the merits and the trial court entered a judgment denying plaintiffs any relief. Plaintiffs appealed.

We shall refer to plaintiffs-appellants as plaintiffs and to the defendant as Clearance Authority.

Plaintiffs contend that this Court has jurisdiction of this appeal for the reason that the defendant is attempting to take their property by condemnation, without due process of law, contrary to the Foui-teenth Amendment to the U. S. Constitution and in violation of the Constitution of Missouri.

In their petition, plaintiffs did not question the validity of any law, federal, state, or county. They claim that the County of St. Louis passed an ordinance declaring Elmwood Park to be in need of redevelopment. Note what plaintiffs stated in their petition:

“4. Defendant is now and at all times hereinafter mentioned was a public body corporate and politic exercising public and essential governmental functions and having all powers necessary and convenient to carry out and effectuate all purposes and provisions of the Land Clearance Development Law, Sections 99.300-99.660 V.A. M.S., 1955, with its office in St. Louis County, Missouri.

“5. The County Council of St. Louis County, in purported compliance with the provisions of the Redevelopment Authority Law of the State of Missouri, adopted Ordinance 1001, approved April 3, 1957, whereby said County Council, pursuant to said act did find that the area described in said ordinance known as Elmwood Park Project to be blighted and unsanitary and in need of redevelopment, and that thereafter under and pursuant to the directions contained in said ordinance the Land Clearance Authority cause to be prepared a redevelopment plan in purported conformity and compliance with said law relating to said Elmwood Park Proj ect, which plan was dated February 9,1960, and was on said date approved by Defendant.

“6. Subsequent thereto, the Land Clearance Authority caused to be prepared a modified Urban Renewal Plan dated October 4, 1962, which plan Defendant now purports to be in full force and effect.

“7. That said plan above referred to contained, among other things, a statement of the proposed method and estimated cost of the acquisition and preparation for redevelopment of said area; a statement of the proposed method of financing same; and a statement there and then purporting to be a feasible method proposed for relocation of families to be displaced from the project.

“8. That said last-referred-to statement is a required and integral part of all proposed plans for redevelopment as set forth in Section 99.430 V.A.M.S.; said statute reading in part as follows: ‘Preparation and approval of redevelopment and urban renewal plans shall be carried out within the following regulations: 7. The recommendation of a redevelopment or urban renewal plan by an authority to the governing body shall be accompanied by * * * a statement of a feasible method proposed for the relocation of families to be displaced from the land clearance or Urban Renewal Project Area.’ ”

In the following paragraphs of the petition, plaintiffs related the details of the plan and the alleged defects. Then, in paragraph 17, plaintiffs conclude with the following:

“17. Any suit in eminent domain purported to be pursuant to the Urban Redevelopment Act hereinabove referred to, if based upon the plan of redevelopment hereinabove described is not due process of law and in violation of Article I, Section 28, of the Constitution of the State of Missouri, and the XIV Amendment to the Constitution of the United States.”

In the prayer of the petition, plaintiffs did not ask the court to declare any law to be unconstitutional. The relief sought is directed to the plan adopted by the Clearance Authority on the theory that the plan does not meet with the requirement of Sec. 99.430, V.A.M.S. Note the first paragraph of the prayer of plaintiffs’ petition:

“WHEREFORE, it is prayed:

“1. That this Court enter its declaratory judgment determining, adjuding [adjudging] and decreeing that the Urban Renewal Plan hereinabove described does not comply with the requirements of State or Federal law, is of no force or effect, and is null and void and is unenforceable against Plaintiffs and other persons similarly situated ; * * * ”

The question to be decided is whether the plan adopted by the Clearance Authority conforms to the Missouri statute, particularly Sec. 99.430, V.A.M.S., supra.

We are of the opinion that this Court does not have appellate jurisdiction of this case. To vest this Court with appellate jurisdiction on the ground that a constitutional question is involved “It is necessary that the constitutional question should be real and substantial, and not merely colorable, and that a construction of the constitution should be essential to the determination of the case, * * 21 C.J.S. Courts § 404, p. 655.

This Court held in Langan v. United States Life Ins. Co., Mo., 114 S.W.2d 984, that a trial court’s construction of a statute did not raise a constitutional question. In Dunbar v. Board of Zoning Adjustment et al., Mo., 380 S.W.2d 442, the contention was made that the establishing of a lagoon pursuant to a zoning ordinance was illegal because it failed to protect neighboring property. It was claimed that such action deprived the owners of property in violation of their constitutional rights. This Court held it had no jurisdiction for the reason that “The errors urged, if established, are correctible on appeal without involving the construction of any provision of either constitution.” 380 S.W. 2d 1.c. 444(1).

In the case before us, it is not necessary to decide constitutional questions. All that is necessary to decide is whether the plan adopted by the Clearance Authority conforms to the established law. Cases cited supra and see State ex rel. Harline v. Public Service Commission, Mo., 332 S.W.2d 940; Marshall et al. v. City of Gladstone et al., Mo., 380 S.W.2d 312; Stock v. Schloman et al., 322 Mo. 1209, 18 S.W.2d 428, 1.c. 430(2); and State ex rel. State Highway Commission v. Mahon et al., Mo., 343 S.W.2d 165, 1.c. 167(3).

It follows that the case should he and it is hereby transferred to the St. Louis Court of Appeals. It is so ordered.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Kenneth Adreon KIPLINGER, Appellant.
    No. 52140.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ray L. Siggins, Special Asst. Atty. Gen., Kansas City, for respondent.
    Henry G. Morris, St. Louis, for appellant.
   SEILER, Judge.

Defendant appeals from a conviction, upon trial by the court, of the offense of malicious destruction of property (a garage) by fire, a misdemeanor, Section 560.395, V.A.M.S. His punishment was assessed at one year in the St. Louis County jail. Defendant contends his alleged oral confession testified to by a police officer, was not voluntary and that defendant was denied assistance of counsel while in police custody, thus violating defendant’s rights under Sections 10 and 19 of Article I of the 1945 Constitution, V.A.M.S. and the Fifth, Sixth and Fourteenth Amendments to the federal constitution; that therefore this case involves “the construction of the Constitution of the United States or of this state”, so that this court has jurisdiction. We do not agree.

Defendant does not claim indigency and was represented at his trial and here by counsel of his choice.

Defendant filed a motion to suppress the evidence of his alleged oral confession, on. which a hearing was held'by the judge of Division No. 5, consisting of the testimony of defendant and his attorney on one side and the testimony of the police captain, Captain Vasel, and the arresting officer, Officer Wendel, on the other. The motion was overruled. The trial of the charge, a jury being waived, was heard beginning November 23, 1965, before the judge of Division No. 9. The motion to suppress was-renewed at trial. The trial judge stated he would take the motion to suppress with the case. At the conclusion of the evidence the trial court made no specific finding with reference to the oral confession, although he permitted the state to prove the same over objection and without the confession the state would not have made out a case. Upon the close of the case the court overruled the motion to suppress evidence and ruled that “upon the evidence adduced the Court will find the defendant guilty of the offense of malicious destruction of property.” Presumably, therefore, the court concluded the confession was voluntary.

The meaning of the constitutional provisions relied upon by defendant as applied to confessions is not disputed by the parties. Both the state and the defendant agree in their brief the state is constitutionally prohibited from using any but a voluntary confession against an accused in a criminal trial. It is firmly established as a matter of federal and state constitutional law that a conviction of crime based upon a coerced or involuntary confession cannot stand. It is not an open question. The decisions establishing this principle have already been written, see the United States Supreme Court cases collected in annotation in 12 L.Ed.2d 1340; also State v. Anderson (Mo.Sup.) 384 S.W.2d 591; State v. Stabler (Mo.Sup.) 383 S.W.2d 534, 538; State v. Bunton (Mo.Sup.) 291 S.W.2d 122, 125, and the assertion of this established principle as a basis for relief does not fix jurisdiction in this court as thereby involving construction of the Constitution, State v. Harris (Mo.Sup.) 321 S.W.2d 468; Nelson v. Watkinson (Mo.Sup.) 260 S.W.2d 1, 2; State v. Mohr, 316 Mo. 204, 289 S.W. 554; Washington University Law Quarterly, “Missouri Appellate Jurisdiction”, Vol. 1964, pp. 491-96. What is involved here is a claim by defendant that his constitutional rights were violated with respect to admission of the alleged oral confession. The state contends they were not. This turns on the application of the facts to well established principles and does not involve construction of the Constitution in the sense required to give this court jurisdiction it would not otherwise have in an appeal involving a misdemeanor conviction.

Does the contention defendant was denied right to counsel give this court jurisdiction? As has been pointed out, 6 Ariz.L.R. 280, “The right to assistance of counsel has two elements: the right to retain counsel; and the right, in certain situations, to have counsel appointed.” Defendant is not an indigent and it is not contended that counsel should have been provided for him by the state; the contention is that he was prevented from exercising his right to obtain counsel of his own. There is no doubt of such a right in criminal prosecutions, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Section 18(a), Article I, 1945 Constitution; State v. Johnstone (Mo.Sup.) 335 S.W.2d 199, 207. This includes misdemeanor prosecutions, Patterson v. Warden, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137; City of Webster Groves v. Quick (Mo.Sup.) 319 S.W.2d 543, 545; Ex parte Stone (Mo.App.) 255 S.W.2d 155. Again there is no open issue, nothing calling for constitutional construction by this court. Defendant had a right to obtain counsel of his choice and the question is whether, under the facts, he was deprived of that right.

We do not have jurisdiction and the case is ordered transferred to the St. Louis Court of Appeals.

All concur.

        . The foregoing applies to jurisdiction on original appeal. It would not, of course, prevent determination by this court of the merits of a misdemeanor ease arriving here by transfer under Section 10, Article Y of the Constitution.


author: HIGGINS, Commissioner.

text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. Jesse I. HEARN and Edith M. Hearn, Harold R. Bond, Dora Bond and Patricia Bond, Alva McGinness, and Don McMurray & Associates, Inc., Respondents.
    No. 51984.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.

      Paul H. Niewald, Gordon, Adams, Nie-wald & Risjord, Kansas City, for appellant.
    Donald W. Johnson, Kansas City, for respondents Jesse I. Hearn and Edith M. Hearn.
    E. E. Thompson, Kansas City, for responds, Harold R. Bond, Dora Bond and Patricia Bond, Popham, Thompson, Pop-ham, Trusty & Conway, Kansas City, of counsel.
   HIGGINS, Commissioner.

Republic Insurance Company sought a ■declaratory judgment adjudicating that it was not liable under its Homeowners’ Insurance Policy No. MR1023764 for the period November 11, 1962, to November 11, 1965, issued to respondents Jesse I. and Edith M. Hearn as named insured, providing $25,000 coverage for comprehensive personal liability. It alleged that on September 6, 1964, Jesse I. Hearn was operating a boat with respondents Harold R. Bond, Dora Bond, Patricia Bond, and Alva McGinness as passengers, when the boat was involved in a collision; that “there are claims and potential claims against Jesse I. Hearn by Harold R. Bond, Dora Bond, Patricia Bond and Alva McGinness as the result of said accident”; that said policy contained a special exclusion relating to watercraft and outboard motors; that said policy “provides no coverage or obligation on the part of the plaintiff to defend or otherwise incur any liability or expense as a result of the accident * * * and of claims or potential claims to be asserted by any of the parties hereto, and plaintiff does further deny any and all liability to any of the defendants under its policy of insurance”; “that it is the contention and allegation of Jesse I. Hearn and Edith M. Hearn that the defendant, Don McMurray & Associates, Inc., created coverage or extended the coverage of the insurance policy * * * through the said Don McMurray & Associates, Inc.’s independent action at the time of the issuance of said policy and that said coverage would be contrary to and in violation of the terms and provisions of the insurance policy.” Answers were filed, the cause went to trial, and the court adjudged and decreed that the boat and motor operated by defendant Jesse I. Hearn at the time and place of the occurrence described in plaintiff’s petition were insured against comprehensive personal liability under policy No. MR1023764; that plaintiff is obligated to pay, on behalf of the Hearns, all sums which they shall become obligated to pay as damages by reason of the occurrence, and that plaintiff is obligated to defend any suit now or hereafter filed against the Hearns seeking damages by reason of the occurrence.

Republic has appealed to this court on the theory that the amount m controversy is in excess of $15,000, to wit: $25,000.

“For the supreme court to have appellate jurisdiction because of the amount in dispute, the record must affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds $15,000, and this court will not indulge in speculation and conjecture as to the amount in dispute or the value of the relief sought in order to bring a case within its limited appellate jurisdiction. * * * In Emerson Electric Mfg. Co. v. City of Ferguson, Mo., 359 S.W.2d 225, 228 [2], this court held that the minimum jurisdictional amount must be affirmatively, established by the record and the amount in dispute is not what may be affected by the result of the case but what is directly involved in the suit.” Jackson County Pub. W. Sup. Dist. v. Ong Aircraft Corp., Mo., 388 S.W.2d 893, 895-896 [2].

This appeal is from a judgment denying relief sought by appellant but the record does not disclose the pecuniary value of the relief sought or the financial loss to the respondents if the relief sought be granted. “The relief sought here * * * is a declaration concerning existence of liability if negligence is established; the question of how much is ‘contingent’ because the circumstance giving rise to a liability may never arise.” Washington University Law Quarterly, Vol. 1964, p. 656; National Surety Corp. v. Burger’s Estate, Mo., 183 S.W.2d 93. Appellant apparently appeals on the theory that the amount in controversy is the maximum amount of liability under its policy, i. e., $25,000, but the record does not show the amount of any claims, and the respondents Bond and McGinness may never recover in any amount against respondents Hearn, let alone in an amount exceeding $15,000. The mere chance of a judgment or settlement exceeding $15,000 does not establish jurisdiction here. Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 249 [3-5].

The record discloses no other ground for jurisdiction in this court and the appeal is, accordingly, transferred to the Kansas City Court of Appeals.

HOUSER and WELBORN, CC, concurs.

PER CURIAM:

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.