author: BAUGH, J.

text:
    MATHEWS et al. v. MYERS et al.
    No. 7637.
    Court of Civil Appeals of Texas. Austin.
    Oct. 21, 1931.

      Gibbs & Lewis, of San Angelo, for appellants.
    Collins, Jackson & Snodgrass, of San Angelo, for appellees.
   BAUGH, J.

Suit by Glenn Myers against J. H. Mathews, guardian of the estate of Lennie Lorena, Willie May, and Minnie Pearl Mathews, minors, in trespass to try title to certain lands in Pecos county, Tex. Numerous parties, grantees from Myers, intervened. Trial was to the court without a jury, and judgment for the plaintiff and interveners; hence this appeal.

The issues here involved, and the rights of the minors asserted in the lands, arise from sales of the minors’ interests by the guardian, under orders of the probate court.

Mrs. M. A. Smith, grandmother of said minors, is the common source of title. In 1922, she conveyed to said above-named minors jointly, among other lands, an undivided one-eighth interest in and to surveys Nos. 2, 10, and 19, and the west 116½ acres of section 20, in block 194, Gulf, Colorado & Santa Fé Railway Company lands in Pecos county, Tex. All of this land was subsequently leased to various parties for oil and gas development, on standard 88 form leases, providing for rentals, and reserving in the grantors the usual one-eighth royalty. After the execution of these leases, under orders of the probate court of Tom Green county, the guardian sold and conveyed to Myers in 1928 certain mineral interests of the minors in said lands, and in 1929 similarly sold and conveyed what appellants contend was merely their surface rights in the lands; but what appellees contend was both surface and mineral rights, completely divesting them of all their interests in said tracts of land. There is no serious controversy over the facts, and the issues here presented are determinable largely, if not entirely, by record evidence consisting of proceedings in the guardianship of said estate, and the deeds made pursuant to such proceedings.

The first guardianship proceeding in question was commenced in 1928. In April, 1928, the guardian of the estates of said minors made application to the court for an order to sell the minors’ mineral interests in numerous lands in Pecos county, including the four tracts here involved. This order was granted, and in May, 1928, sale of numerous lands other than those here involved was duly consummated. Pursuant to this same order, the guardian reported on February 6, 1929, sale of the interests of said minors in the tracts here involved to Glenn Myers, as follows:

“An undivided 1/16 interest in and to all the oil, gas and other minerals in, under and that may be produced from an undivided 1/8 interest in Sur. No. 2 * * * and 116½ acres off the west end of Sur. No. 20. And also an undivided 1/8 interest in and to all the oil, gas and other minerals in and under ,and that may be produced from an undivided 1/8 interest of said minors in and to Secs. Nos. 10 * * * and 19, Block 194, * * * G. C. & S. F. Ry. Co.”
“Said sale being subject, however, to the existing oil, gas. and mining leases, covering the last above mentioned four surveys of land, but covering and including 1/16 of the oil royalty and gas rental or royalty due and to be paid under the terms of the existing leases from said surveys Nos. 10 and 19.”

On February 22, 1929, the court by order confirmed the sale as reported; that is one-sixteenth of the one-eighth interest of said minors in sections 2 and 20; and one-eighth of the one-eighth interest in sections 10 and 19.

The deed executed by the guardian recited and adopted by reference said order of sale, report of sale, and confirmation thereof, and conveyed to Glenn Myers the following: An undivided one-eighth interest in and to all of the oil, gas and other minerals in and under and that may he produced from the following described surveys of land situated in Pecos county, Tex., to wit: Section No. 10; section No. 19; an undivided one-sixteenth in and to all the oil, gas, etc., under section No. 2; and an undivided one-sixteenth of the minerals under and from an undivided one-eighth interest in the west 116½ acres of section No. 20. Following this description of the interests conveyed in said deed was the following provision: “It being understood that the above described lands are now under oil and gas leases held by various companies, and this sale is made subject to the terms of said leases; but covers and includes one-eighth (1/8) of all the oil royalty, gas rentals or royalties payable or that may become due and payable under the leases covering sections 10 and 19, and one-sixteenth (1/16) of all the oil royalty, gas rentals or royalties, payable or that may become due and payable under the leases covering Section No. 2, and one-eighth (1/8) of the west 116½ acres of- Survey No. 20, in so far that said leases covers said tracts of land.”

While there are some ambiguities in the above-quoted instruments, taken in their entirety, and in conjunction with each other, all as evidencing a single transaction, and bearing in mind that said minors owned only an undivided one-eighth interest in the fee to said lands, the only reasonable construction of them, and the necessary construction as a matter of law is, we think, that there was conveyed to Myers by said guardian the one-eighth of the minerals retained by the minors in sections 10 and 19 under their oil and gas leases. That is, one-eighth of the oñe-eighth owned by them in the entire minerals under said sections 10 and 19, or a one sixty-fourth of the entire production. Myers therefore obtained title to one sixty-fourth of the minerals under said sections 10 and 19, and a one-eighth interest in their possibility of reverter. Hogg v. Magnolia Pet. Co. (Tex. Com. App.) 267 S. W. 482, 486.

It appears, however, that sections 2 and 20 were state school lands, and classified by the state as niineral grazing lands. The minors, therefore, as owners of an undivided one-eighth interest in the .fee to these lands, did not own any of the minerals under same prior to the time they were leased. Under the relinquishment act, however (R. S. arts. 6367-5382) and Greene v. Robison, 117 Tex. 516, 8 S.W.(2d) 655, when the guardian leased said lands for oil and gas, they became entitled to a one-half interest in the royalties reserved, or a one-sixteenth interest in their one-eighth fee title. Their entire interest in the minerals under said sections 2 and the 116½ acres in section 20, was clearly conveyed to Myers under the orders of the court and the deed from the guardian.

The reversionary interest, or possibility of reverter, as same is denominated in Caruthers v. Leonard (Tex. Com. App.) 254 S. W. 779, and Hogg v. Magnolia Pet. Co., supra., in and to their interest in the minerals under sections 10 and 19 remained in said minors, unless same passed to Myers under subsequent conveyance. This possibility of re-verter would, of course, be contingent upon a termination of such leases.

We think the foregoing instruments are sufficiently clear and free from ambiguity, as not to need parol testimony to disclose the intentions of the parties and of the probate court in making or executing same. It is a cardinal rule that, where such intent can be derived from a written instrument itself, parol evidence is not admissible to vary its terms. This rule would apply with equal force to the orders of the probate court which become part of the chain of title to the lands in question. Collins v. Ball, 82 Tex. 259, 17 S. W. 614, 27 Am. St. Rep. 877; Hank v. Hamman (Tex. Com. App.) 289 S. W. 993. The deed from the guardian should be construed in the light of the probate proceedings authorizing it, and, even if the guardian’s deed had attempted to convey a greater interest than that ordered sold, reported as sold, and such sale confirmed, it would be void as to any excess over the interest designated in the probate proceedings. Pace v. Fishback, 10 Tex. Civ. App. 450, 31 S. W. 424; Schaeffer v. Williams (Tex. Civ. App.) 208 S. W. 220; Smith v. Patrick (Tex. Civ. App.) 297 S. W. 482, 485.

Appellees contend, however, that all of the interests of said minors passed to M. D. Bryant, through whom they deraign title, under a second guardianship sale approved by the probate court at its January term, 1929; that is, several months subsequent to the sale of the mineral interests above discussed. The remaining question is, therefore, What interests of the minors passed under these subsequent probate proceedings and the guardian’s deed made pursuant thereto? The following record facts appear in that conneetioii:

On February 26, 1929, the guardian made additional application for sale reciting that said minors owned an undivided one-eighth interest in the above-described lands; that same were being explored for oil and gas; were nonrevenue producing, etc.; and asked the court for “an order authorizing her to make sale of the minors’ interest in the above described lands. * * * ”

Attached to said application and made a part thereof to show “more fully the necessity for said sale” was a sworn exhibit of the guardian stating “that under orders of this court, made on May 7th, 1928, your guardian has sold all the mineral, oil and gas in and tinder all of the lands described in this application.”

The order of sale based upon said application recites, among other things, that the court “considered' such application, the exhibit filed therewith and the evidence offered,” and found that it would be advantageous to the estates of said minors to sell their undivided one-eighth interest in and to the 4 tracts of land here involved. The court also expressly found and recited in said order of sale: “That said lands ought to be sold and that it is to the best interest of the estate that it be sold for cash, because and for th*e reason that it appears to the court from the evidence that the minors are the owners of only an undivided interest in said lands, that heretofore under orders of this court that guardian sold all of the minerals, oil. and gas in and under all of said lands, that said land is now being explored for oil and gas by the owners of said minerals and that it is not revenue producing but is wholly without value, so far as pro-, ducing revenue is concerned, and that said land should be sold and the proceeds derived from such sale invested or used by said guardian under proper orders of this court”— and ordered the guardian to “sell the above described interest of the minors in the above described tracts of land.”

. ■ The guardian’s report of sale and the order of confirmation thereof make no reference whatever to a former severance of the minerals under said lands, but describe and relate to a sale of an undivided one-eighth interest of said minors in and' to the lands in question. That is, the report of sale, the order of confirmation, and the guardian’s deed, if taken independent of. the order of sale, would convey to appellees all rights of said mjnors in said lands, mineral and otherwise. Both' the report of sale and the order of confirmation, however, specifically refer to and recite that they are in obedience to said order of. sale above set out.

It is now well settled that our probate courts are'courts of general jurisdiction in the matters over which they are given jurisdiction; that their orders and decrees are to be given verity as such; and that same are not subject to collateral attack unless void. Many pronouncements have been made by the Supreme Court and Courts of Civil Appeals with reference to presumptions that will be indulged in favor of the validity of such sales, where the record fails to show that all of the requirements of the statutes regulating such sales were complied with; or where it affirmatively appears that some of the steps required by the statutes in sales by guardians were not taken.

However, in the instant ease, all of the steps prescribed by the statute were taken, and the issues presented are not attacks upon such probate proceedings, but involve rather an interpretation or determination of whát interests of the minors were in fact and in law conveyed under such proceedings. No presumptions need be indulged, because all of said proceedings were duly had and recorded, and were presented in appellees’ chain of title. No one order of the probate court should be taken alone, therefore, but should be interpreted in the light of the other proceedings to which it refers or relates, and upon which it is dependent for validity. Recurring then to the second sale in probate above referred to, it is manifest, we think, from the application and order of sale that no conveyance of any minerals under said lands of the minors was authorized, contemplated, or intended.

Whether the court’s recital in the subsequent order of sale, that all of the minerals had theretofore been sold, be true or not, it clearly manifests an intention, we think, to authorize and direct a sale only of the surface interest of the minors in said lands. Former proceedings in the same guardianship, of which the court could take judicial notice [.¿Etna Ins. Co. v. Dancer (Tex. Com. App.) 215 S. W. 962; Scott v. Clark (Tex. Civ. App.) 38 S.W.(2d) 382], disclosed that mineral rights in these lands were valuable and had been sold for large sums. The lease on some of same had brought a bonus of $200 an acre in addition to rents and royalties; and the order of sale here in question disclosed that same were being developed for oil and gas. Following this was a further finding that the interest then sought to be sold was of no value, and sale actually made on the basis of $1 per acre for the entire fee, or 'at 12½ cents per acre for the minors’ interest. It is therefore obvious, we think, that only the interests of the minors in and to the surface of said lands was ordered sold or intended to be sold: and that only such interest passed to Bryaht in the guardian’s deed, even though said deed on its face appears to convey a greater interest.

The validity of such deed and the interest conveyed must depend upon the orders of the probate court. While there is some confusion in the early decisions involving cases where some of the steps prescribed by the statute were not complied with, or were not sufficiently shown, thus necessitating liberal presumptions as to their validity in old land titles; we find no need here for indulging such presumptions. All of the probate proceedings appear of record. Appellants do not attack them, but merely .ask for a proper construction of them. While the report of sale and order of confirmation of what we may designate as the “surface interest” of said minors in said lands .do not limit the interest conveyed, they do refer to and purport to accord with the order of sale, which, as above indicated, must be construed to relate only to such interest in the surface. And if it could be said that there is a conflict between the order of sale and the order confirming the report of sale, the order of sale would control. The order of sale is indispensable to a valid conveyance. As stated in Schaeffer v. Williams (Tex. Civ. App.) 208 S. W. 220, 224, writ of error refused: “The power of the guardian to sell the property of his ward must depend solely upon the authority granted by the order of sale, and, if he sells different property from that for which the order was given, a confirmation of that sale could give no validity to his action in selling. The order of confirmation must follow the order of sale, * ⅜. * and any inconsistency with the description in the order of sale must give way to it.”

The subsequent sale by the guardian to Bryant did not, therefore, pass to him any interest in the minerals under said lands, if any, then owned by said minors. And, as above stated, the only interest still retained by them was a seven-eighths interest in the possibility of reverter reserved to them in the oil and gas leases on sections 10 and 19. The judgment of the trial court as to section 2 and the west 116½ out of section 20 is affirmed. As to sections 10 and 19, it is reversed and judgment here rendered awarding to said minors an undivided seven-eighths interest in their possibility of reverter under and by virtue of the oil and gas leases on said lands, made under orders of the probate court. Said minors having owned only an undivided one-eighth interest in said lands, and having already sold to Myers a one sixty-fourth interest, there would remain as such possibility of reverter only a seven sixty-fourths interest in and to the entire minerals under said two tracts of land.

Affirmed in part, and in part reversed and rendered.


source: Caselaw Access Project

author: MORROW, P. J.

license: Public Domain

text:
    Lee BELL v. STATE.
    No. 14611.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    See, also, 115 Tex. Cr. R. 121, 29 S.W.(2d) 389.
    ' L. D. Griffin, of Plainview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully transporting . intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified hy his affidavit, the appeal is dismissed.


author: HAWKINS, J.

text:
    Milam BROWN and Belk Brown v. STATE.
    No. 14659.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. W. Culwell, of Amarillo, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

' Conviction is for assault with intent to murder ; punishment assessed against Milani Brown being five years’ imprisonment in the penitentiary, and that against Belk Brown being four years’ imprisonment in the penitentiary.

Each appellant has filed with this court his affidavit advising the court that he does not further desire to prosecute his appeal, and requesting that the same be dismissed.

Complying with said requests, the appeal is ordered dismissed.


text:
    Joe BURNETT v. STATE.
    No. 14371.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Duncan & Fanning, of Sulphur Springs, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction was under the provisions of chapter 195, Acts Regular Session, 41st Legislature, which sought to amend article 602, P. C. 1925, making penal the act of deserting a wife or minor child; punishment was assessed at confinement in the county jail for six months.

The amended act referred to above has been held unconstitutional because of a defective caption. See Ex parte Heartsill (Tex. Cr. App.) 38 S.W.(2d) 803; Smith v. State (Tex. Cr. App.) 39 S.W.(2d) 53; McBrayer v. State (Tex. Cr. App.) 41 S.W.(2d) 245.

The prosecution proceeded in the district court as if it were a felony. The defect in the caption of the act in question was called to the trial court’s attention in the motion for new trial.

Under the authorities cited, the judgment must be reversed, and the cause remanded, and it is so ordered.


author: CALHOUN, J.

text:
    Elmo CAMPANOVER v. STATE.
    No. 14183.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.

      Davidson, Blalock & Blalock, of Marshall, for appellant.
    John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is violating the Sunday law; the punishment, a fine of $31.60.

In his written motion filed in this court, appellant requests that the appeal be, dismissed.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Ex parte J. C. CARTER.
    No. 14660.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Bob Calvert, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

The appeal is from an order of the judge of the district court of the Sixty-Sixth judicial district of Texas remanding appellant without bail, under an indictment charging him with rape.

Appellant has now filed an affidavit with this court advising that since the appeal he has been tried upon said indictment, the trial resulting in a conviction for the offense of aggravated assault, and, upon appeal from that conviction, he has been released upon a recognizance, and therefore he no longer desires to prosecute the appeal in the present case.

At his request the appeal is dismissed.


text:
    Joe CASEY v. STATE.
    No. 14850.
    Court of Criminal Appeals of Texas.'
    Oct. 14,1931.
    P. O. French, of Fairfield, and A. B. Geppert, of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Ray CATCHINGS v. STATE.
    No. 14800.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    E. A. Wallace, of Cameron, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is possessing intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

Upon written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

The for’egoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Murry COOPER v. STATE.
    No. 14798.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Cunningham & Lipscomb, of Bonham, for appellant.
    Llóyd W. Davidson, State’s Atty., of Austin, for the State.
   OALHOUN, X

The offense is burglary; the punishment, confinement in the penitentiary for two years.

Affidavit in proper form has been filed by appellant ashing this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: LATTIMORE, J.

text:
    Willie DAVENPORT v. STATE.
    No. 14524.
    Court of Criminal Appeals of Texas.
    June 17, 1931.
    Rehearing Denied Oct. 21, 1931.
    J. L. Manry, of Livingston, and J. L. Pitts, of Conroe, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of a hog; punishment, three years in the penitentiary.

The record contains neither a statement of facts nor bill of exception. The proceedings appear to be regular.

The judgment will be .affirmed.


text:
    Ben EASLEY v. STATE.
    No. 14547.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1931.
    Pierre M. Stine, of Henrietta, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is aggravated assault; the punishment, a fine of $100.

Affidavit in proper form has been filed by appellant ashing this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Jack FERGUSON v. STATE.
    No. 14761.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Robert P. Brown, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is theft; the punishment, confinement in the penitentiary for three years.

Affidavit in proper form has been filed by appellant asking this court to dismiss his appeal.

The motion is granted, and the appeal dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    L. C. FISHER v. STATE.
    No. 14908.
    Court of Criminal Appeals' of Texas.
    Oct. 28, 1931.
    Joe W. Taylor and W. E. Davidson, both of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the penitentiary for five years.

The indictment appears regular and regularly presented. The record is before this court without statement of facts and bills of exception. No fundamental error has been pointed out or perceived.

Tbe judgment is affirmed.


text:
    Ben FLORES v. STATE.
    No. 14594.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    M. C. Nelson, of Aransas Pass, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   MORROW, P. J.

Tbe conviction is for tbe unlawful possession of intoxicating liquor for tbe purpose of sale; penalty assessed at confinement in the penitentiary for one year.

Tbe indictment appears regular and regularly presented. The record is before this court without statement of facts or bills of exception. No fundamental error having been perceived or pointed out, the judgment is affirmed.


text:
    J. W. GORDON, alias J. W. Duffy, v. STATE.
    No. 14707.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    E. R. Valentine, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   CALHOUN, J.

Tbe offense is theft; tbe punishment, confinement in tbe penitentiary for three years.

Upon written request- of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by the judges of tbe Court of Criminal Appeals and approved by tbe court,


text:
    Tom HADEN v. STATE.
    No. 14186.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Davidson, Blalock & Blalock, of Marshall, for appellant.
    John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   CALHOUN, J.

Tbe offense is violating the Sunday law; the punishment, a fine of $50.

In bis written motion filed in this court, appellant requests that the appeal be dismissed.

Tbe appeal is dismissed.

PER CURIAM.

The foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.


author: LATTlMORE, J.

text:
    Fred Harrison HANEY, alias Frank D. Coleman, alias John Harrison Murphy, v. STATE.
    No. 14909.
    Court of Criminal Appeals of Texas.
    Oct.. 28, 1931.
    John L. Poulter,. of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTlMORE, J.

Conviction for robbery; punishment, ninety-nine years in tbe penitentiary.

We find in the record neither statement of facts nor bills of exception. Tbe indictment, judgment, and sentence seem in conformity with law.

No error appearing, the judgment will be affirmed.


author: CHRISTIAN, J.

text:
    J. M. HEWITT v. STATE.
    No. 14684.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Reynold M. Gardner, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for fifteen months.

No statement of facts is brought forward. We find in the record one hill of exception which we are unable to appraise in the absence of a statement of facts. 0

No error appearing, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Claude JOHNSON v. STATE.
    No. 14443.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Phillips & Bell, of Trinity, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is passing'a forged instrument; the punishment, confinement in the penitentiary for two years.

Upon written request of appellant, duly-verified by affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the' Court of Criminal Appeals and approved by the court.


text:
    Willie JOHNSON v. STATE.
    No. 14721.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Letcher D. King, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years and six months in the penitentiary.

There appears no statement of facts or bills of exception in the record. The proceedings of the court below appear to be legal and regular.

The judgment will be affirmed.


text:
    Willie JOHNSON v. STATE.
    No. 14722.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Letcher D. King, of Abilene, for appellant.'
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years and nine months in the penitentiary.

We find no statement of faSts or bills of exception in the record. The proceedings appear to be regular and legal.

No error appearing, the judgment will be affirmed.


text:
    J. C. JONES v. STATE.
    No. 14762.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    • R. G. Hughes, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s'Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for passing a forged instrument; punishment being two years in the penitentiary.

Appellant has filed Ms affidavit stating that he no longer desires to prosecute his appeal.

At his request the appeal is dismissed.


author: . LATTIMORE, J.

text:
    Knox KELLEY v. STATE.
    No. 14437.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1931.
    Tom R. Mears, of Gatesville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   . LATTIMORE, J.

Conviction in the district court of Coryell county of child desertion; punishment, thirty days in the county jail.

At the time this case was tried in January, 1931, the opinion of this court in Ex parte Heartsill, 38 S.W.(2d) 803, had not been handed down. Giving effect to what we said in that case, it would follow that, we must reverse the case before us because of the lack of jurisdiction in the district court to try the case. Without discussing any of the other matters raised, the judgment will be reversed and remanded, with instructions to the court below that the ease be transferred to the county court of Coryell county for future disposition. The offense, if any, having been manifestly committed prior to the enactment, of chapter 276, Acts of the Regular Session of the Forty-Second Legislature (Vernon’s Ann. P. O. art. 602), must be governed by the law as same appears in articles 13-17, chapter 1, of our Penal Code.

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


text:
    C. W. LAWRENCE v. STATE.
    No. 14728.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Oscar Callaway, of Comanche, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, three years in the penitentiary.

The record contains neither statement of facts nor bills of exception. All proceedings in the court below appear to have been in conformity with the law.

No error appearing, the judgment will be affirmed.


text:
    Tony LONG v. STATE.
    No. 14467.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1931.
    ’ J. G. Lyles, of Franklin, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, one year in the penitentiary.

Appellant pleaded guilty, but asked for a suspended sentence, which the jury declined to give. The record is here without any bills of exception.- The testimony heard by the jury upon appellant’s plea of guilty amply supports the verdict and judgment.

No error appearing, the judgment will be affirmed.


text:
    J. B. McCASLAND v. STATE.
    No. 146491.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. A. Carlisle, of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for chicken theft; punishment, one year in the penitentiary.

We find filed with this record an affidavit made by appellant in due form requesting that his appeal be dismissed. The request is granted; the appeal is dismissed.


text:
    W. A. McCOY v. STATE.
    No. 14765.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Art Sclilofman, of Dalhart, and W. J. Flesh-er, of Amarillo, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment having been assessed at two years’ confinement in the penitentiary.

Appellant has filed with this court his affidavit advising that he does not desire further to prosecute ¿is appeal, and at his request the same is dismissed.


text:
    M. McGEE v. STATE.
    No. 14619.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Unlawfully possessing intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

The indictment appears regular and regularly presented. The record is before this court without statement of facts or bills of exception. No fundamental error has been perceived or pointed out.

The judgment is affirmed.


author: DATTIMORE, J.

text:
    Slim MEADOR v. STATE.
    No. 14719.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Don A. Brooks, of Abilene, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for selling intoxicating liquor; punishment, two years in the penitentiary.

Finding no statement of facts or bills of exception in the record, and the indictment, judgment, and sentence appearing regular, the judgment will be affirmed.


author: DATTIMORE, J. '

text:
    Slim MEADOR v. STATE.
    No. 14720.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Don A. Brooks, of Abilene, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   DATTIMORE, J. '

Conviction for selling intoxicating liquor; punishment, eighteen months in the penitentiary.

The reeord is here without statement of facts or bills of exception. The indictment, judgment, and sentence appear regular, and the judgment will be affirmed.


text:
      J. E. MOSS v. STATE.
    No. 14793.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for five years.

It has been made known to this court by the affidavit of the sheriff of Clay county that the appellant, pending his appeal, escaped from the jail of said county and did not voluntarily return within ten days. By reason of such escape, this court is deprived of jurisdiction of the appeal. See article 824, O. O. P. 1925.

The appeal is dismissed.


text:
    Albert NELSON v. STATE.
    No. 14429.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1931.
    Dave Miller, of Fort Worth, for appellant. .
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for manufacturing intoxicating liquor; punishment, two years in the penitentiary.

We find in this record neither statement of facts nor bills of exception. The indictment, the judgment, and sentence appear to be regular, and, no error appearing, the judgment will be affirmed.


text:
    H. J. PARKER v. STATE.
    No. 14185.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Davidson, Blalock & Blalock, of Marshall, for appellant.
    John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is operating a moving picture show on Sunday; the punishment, a fine of •$50.

In his written motion filed in this court appellant requests that the appeal be dismissed.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Filmore PARMER v. STATE.
    No. 14599.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    J. H. Baker, of San Saba, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   LATTIMORE, J.

Conviction for theft of sheep; punishment, two years in the penitentiary.

The record is before us without any statement of- facts or bills of exception. All formal-matters appear to be regular.

The judgment will be affirmed.,


text:
    Mrs. Gentry PATRICK v. STATE.
    No-. 14433.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1931.
    Hughes & Monroe, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is negligent homicide; penalty assessed at a fine of .$50.

The facts before the trial court are not brought up for review. There are no bills of exception complaining of the rulings of the court save exceptions to the charge of the court. This court is unable to appraise the complaints of the charge of the court in the absence of knowledge of the facts to which the charge related. There is no brief pointing out any errors in the trial, and none have been perceived.

The judgment is affirmed.


text:
    A. G. ROLAND v. STATE.
    No. 14799.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.

      Cunningham & Lipscomb, of Bonham, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

It appears from the affidavit of the sheriff, on file in this court, that appellant escaped from jail on the 15th day of August, 1931, and that he is still at large.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved' by the court.


text:
    Albert SMITH v. STATE.
    No. 14648.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for the unlawful possession of intoxicating liquor for the purpose of sale; penalty assessed at confinement in the penitentiary for one year.

Upon the written motion of the appellant, duly verified by his affidavit, the appeal is dismissed.


author: MORROW, P. J. LATTIMORE, J.

text:
    Homer SMITH v. STATE.
    No. 14531.
    Court of Criminal Appeals of Texas.
    June 24, 1931.
    Rehearing Denied Oct. 21, 1931.
    J. A. Carlisle, of Sherman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

The indictment appears regular. The record is before this court without statement of facts and bills of exception. No fundamental error has been perceived or pointed out.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In spite of the fact that the record here contains neither bills of exception nor statement of facts, appellant makes a sworn motion for rehearing setting up, as to the statement of facts, that he requested the court reporter to prepare such statement, and relied on him to prepare and file same. This is no showing of diligence in the preparation and filing of statement of facts, and presents no excuse for the failure to have' same prepared.

The motion for rehearing will be overruled.


text:
    J. H. SMITH v. STATE.
    No. [4448.
    Court of Criminal Appeals of Texas.
    Oct. 21,1931.
    Morrow & Clarke, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, ■ for the State.
   CHRISTIAN, J.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for one year.

Upon the written request of appellant, duly verified by affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    E. SPICER v. STATE.
    No. 14839.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Harry Tom King, of Abilene, for appellant. Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, seven years in the penitentiary.

We find in this record an affidavit made by the appellant in due form, in which he requests this court to dismiss the appeal in this case. The request is granted, and the appeal is dismissed.


text:
    Mary Gunter TAYLOR v. STATE.
    No. 14641.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; punishment being assessed at one year’s confinement in the penitentiary. i

Appellant has filed in this court her affidavit advising the court that she does not further desire to prosecute her appeal and requesting that the same be dismissed.

In compliance with such request a dismissal is ordered.


text:
    Jimmie THOMAS v. STATE.
    No. 14729.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment being assessed at six years’ confinement in the penitentiary.

It is made to appear by proper affidavits on file with this court that since perfecting the appeal appellant has escaped from jail in Har-. rison county where he was held pending the appeal. Under the provisions of article 824, C. C. P., such escape ousts this court of jurisdiction.

The appeal is therefore dismissed.


text:
    J. R. WALKER v. STATE.
    No. 14184.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Davidson, Blalock & Blalock, of Marshall, for appellant.
    John E. Taylor, Co. Atty., and Benjamin Woodall, Asst. Co. Atty., both of Marshall, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is violating the Sunday law; the punishment, a fine of $40.

In his written motion filed in this court, appellant requests that the appeal be dismissed.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    Gus WILCOXSON v. STATE.
    No. 14818.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1931.
    Wallace Hughston, of McKinney, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   MORROW, P. J.

Theft over $50 is the offense; penalty assessed at confinement in the penitentiary for two years.

Upon the written request of the appellant, duly verified by his affidavit, the appeal is dismissed.


text:
    Sam WILSON v. STATE.
    No. 14771.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1931.
    Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense is possessing intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for eighteen months.

The record is before us without a statement of facts or bills of exception. We note that the verdict of the jury finding the appellant guilty assessed his punishment at eighteen months in the penitentiary, while the sentence fixed his punishment at confinement in the penitentiary for a straight term of eighteen months. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than eighteen months, and, as so reformed, no question being presented for review, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the' judges of the Court of Criminal Appeals and approved by the court.


author: HIGHTOWER, C. J.

text:
    W. P. BOND et al. v. KIRBY LUMBER CO. et al.
    No. 2156.
    Court of Civil Appeals of Texas. Beaumont.
    June 15, 1931.
    Rehearing Denied July 1, 1931.
    C. A. Lord and Todd & Pipkin, all of Beaumont, and John B. Warren, of Houston, for plaintiffs in error.
    Andrews, Streetman, Logue & Mobley, of Houston, J. B. Eorse, of Newton, and Smith, Smith, Huffman & Boyd, of Beaumont, for defendants in error.
   HIGHTOWER, C. J.

This is a writ of error, and a motion has been made in this court by defendants in error, Kirby Lumber Company, National Surety Company, and Peavy-Moore Lumber Company, to dismiss the cause from the docket of this court because of defective service of citation in error upon defendants in error.

Upon consideration of this motion, in connection with the record, we find that there is no showing of sufficient service of citation in error upon the Peavy-Moore Lumber Company, and for that reason grant the motion of defendants in error to dismiss the cause from the docket of this court, without prejudice to any of the parties. The writ of error itself is, of course, not dismissed. Vineyard v. McCombs, 100 Tex. 318, 99 S. W. 544.


author: BROADDUS, Sprecial Commissioner.

text:
    William R. ROYSTER, Plaintiff-Appellant, v. Carolyn S. ROYSTER, Defendant-Respondent.
    Nos. 24521, 24648, 24649.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Richard P. Sprinkle, Kansas City, A. V. McCalley, Richmond, for appellant.
    David R. Smalley, Jerry Conkling, Kansas City, for respondent.
   BROADDUS, Sprecial Commissioner.

On November 2, 1964, defendant was awarded a decree of divorce from plaintiff on her cross-bill. The decree awarded the custody of the parties’ son, who was then a few months more than two years of age, and ordered plaintiff to pay $250 per month to defendant for the child’s support.

A property settlement entered into between the parties was approved by the court and made a part of the decree. This settlement agreement provided that plaintiff pay to defendant the sum of $400 per month less amounts that might be earned by defendant at employment secured for her by plaintiff.

On September 26, 1965, defendant filed her “Motion to Enforce Decree.” And on October 14, 1965, plaintiff filed a Motion to Dismiss. On the same day the parties stipulated that evidence be heard on Defendant’s Motion. A three day hearing then followed and at the close of the evidence, plaintiff, by leave of court dismissed his Motion to Dismiss Defendant’s Motion. Thereafter, on November 26, 1965, the court entered its order giving judgment to defendant on her Motion in the amount of $491.66, and awarding her attorneys’ fees in the amount of $500, from which judgment plaintiff appealed. This is case Number 24521.

On January 5, 1966, defendant filed her Motion to Modify the child support provi-~ sions of the original divorce decree, and after a hearing of the issues on March 23, the court by its order of June 17, 1966, increased the child support payments by $25 per month and awarded defendant attorneys fees in the sum of $250, from which order plaintiff also appealed. This is case number 24648.

On May 19, 1966, defendant filed her motion for suit money to defend the first of plaintiff’s appeals. After argument was heard on this motion, the court, on June 17, 1966, ordered plaintiff to pay defendant the sum of $250. Plaintiff also appealed from this order. This is case Number 24649.

Plaintiff’s three appeals were consolidated for hearing by this Court’s order of August 15, 1966.

Plaintiff-appellant first contends that the Circuit Court lacked “jurisdiction over the subject matter” because defendant’s Motion to Enforce Divorce Decree was actually a claim based on a contract (the property settlement agreement) rather than an attempt to collect statutory alimony. Plaintiff points out that “this is not a situation where the wife is attempting to collect alimony which is in arrears.” This is true. Neither is this a situation where the wife is seeking to modify a contractual provision for support in lieu of alimony and hence is foreclosed from attempt by North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061, and Alverson v. Alverson, 249 S.W.2d 472, Mo.App., both of which cases are cited' by plaintiff in support of his contention, and both of which are inapplicable. Nor is this a situation where defendant has sought execution to collect arrearages in payments under an agreement for her support in lieu of alimony, hence entitling plaintiff to have that execution quashed under the doctrine of such cases as Chappell v. Nash, 399 S.W.2d 253, Mo.App., and Edmondson v. Edmondson, 242 S.W.2d 730, Mo.App., both of which cases are further cited by plaintiff in support of his position, but both are likewise wholly inapplicable.

This was, instead, an attempt by plaintiff to collect money wherein she moved “for judgment”, in which she set forth “a short and plain statement of facts showing that (she) is entitled to relief,” by specifying the paragraphs of the property settlement she relied upon; in which she plainly demanded judgment for the relief to which she deemed herself entitled, and in which, since recovery of money was demanded, she specifically stated the amount, all as required by Rule 55.06 Mo. Rules of Civil Procedure, V.A. M.R.

Additionally, our Rules provide that no technical forms of pleadings or motions are required and that pleadings shall be so construed as to do substantial justice. Rules 55.05 and 55.26.

Conceding that defendant’s pleading filed September 22, 1965, may have been inartfully titled, or that her position might have been stronger had she brought an entirely separate suit, as plaintiff now suggests, plaintiff’s recourse was a motion to dismiss.

Twenty-two days after defendant’s pleading was filed plaintiff did file a motion to dismiss. But, having filed his motion, plaintiff then stipulated on the same day, October 14, that evidence be heard on Defendant’s Motion, which it was, and six days later, on October 20, 1965, plaintiff, with leave of court, dismissed his motion to dismiss defendant’s motion.

Having thus submitted himself and his evidence to the court, and having thus formally withdrawn his objections to, and having acquiesced in, the procedure followed bv the court in determining- the dispute, plaintiff has waived his objections and, as a consequence, plaintiff should not be permitted at this late date to complain that the court heard the evidence, determined the issues and entered the judgment. Where a party generally appears, defends on the merits, and explicitly withdraws his objections or challenges to the court’s jurisdiction, it has always been the law of Missouri that a Circuit Court may render a general personal judgment against such party. Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, 94.

Plaintiff next contends that the court erred in rendering its judgment on November 26,1965, allowing defendant $500 for attorneys fees, and on June 17, 1966, allowing defendant $250 attorneys fees and $250 for suit money. Plaintiff does not contend that the amount of these awards was in any instance excessive, or constituted abuse of discretion by the trial court.

As to the allowance of $500 to defendant as attorneys’ fees on November 26, 1965, plaintiff as we have stated, voluntarily submitted the dispute to the determination of the court, waived his objections to the court’s proceeding to hear the evidence, find the facts and enter an order, and consequently he may not now raise the point.

As to the court’s judgment of June 17, 1966, ordering that plaintiff pay $250 to defendant for attorneys fees and its order of the same date ordering plaintiff to pay defendant for suit money, the law is well settled in Missouri that “[allowances for counsel fees and suit money for the wife in a divorce action, and in proceedings ancillary thereto, are largely discretionary with the trial court; * * *''. Copenhaver v. Copenhaver, 402 S.W.2d 612, Mo.App.; Wonneman v. Wonneman, 305 S.W.2d 82, 83, Mo.App.

Plaintiff asserts that these awards were not in accord with paragraph 10 of the property settlement agreement which provides :

“In the event from time to time (plaintiff) fails to make any of the payments required of him herein and (defendant) employs an attorney to collect, by suit or otherwise, such payment, and obtains judgment or otherwise effects collection thereof (plaintiff) will pay a reasonable fee for such attorney’s services to (defendant).”

Defendant did comply with the two requirements specified in that paragraph. She did “employ an attorney” and did “obtain judgment.” However, there is nothing whatsoever in paragraph 10 which at all implies that defendant’s exclusive recourse for the payment of her attorneys fees is plaintiff’s promise to pay them and that she therefore no longer has access to the courts.

Finally, plaintiff contends that the trial court erred in awarding defendant an increase of $25 per month for support of the child. Defendant testified that whereas she was not working in November, 1964, when the original decree was entered, she was now employed and could not care for the child and consequently had to take him to a nursery during working hours, which cost her $52 per month, that being an expense she did not have in November, 1964. Moreover, the little boy has now become badly in need of extensive dental care.

The increased expense of supporting a child caused by his growing up and requiring additional medical care, clothing and other expenditures, constitutes a sufficient change of conditions so that as said in Bettinger v. Bettinger, 355 S.W.2d 354, 359, Mo.App.:

“ * * * it cannot be said that the trial court abused its discretion in decreeing modification. That is the extent of our review in these matters.” (Emphasis ours.)

In Bradshaw v. Bradshaw, 317 S.W.2d 21, this Court in affirming a trial court’s modification of a child support decree said: “It has been repeatedly held by the courts of this state that an appellate court should not disturb the findings and conclusions of the trial judge in a matter of this kind unless there has been a manifest abuse of judicial discretion by the trial judge.”

The judgments should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgments are affirmed.


author: SPERRY, Commissioner.

text:
    STATE of Missouri ex rel. Valiant M. YATES, Phil M. Smith III, and Bernice C. McClellan, Relators-Respondents, v. Lewis C. MOCK, Secretary of the Board of Directors of Reorganized School District R-1, Callaway County, Missouri, and John Durk, Elmo Young, Wilbur Foster, Jr., William Stewart, Norman Roberts, and Robert Schulze, Members of the Board of Directors of Reorganized School District R-1 of Calloway County, Missouri, Respondents-Appellants.
    No. 24510.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      William C. Whitlow, Fulton, William W. Van Matre, Van Matre & Van Matre, Mexico, for appellants.
    Warren D. Welliver, Welliver, Porter & Cleaveland, Columbia, for respondents.
   SPERRY, Commissioner.

This mandamus action was instituted at the relation of Valiant M. Yates, Phil M. Smith III, and Bernice C. McClellan residents and voters of Reorganized School District R-l, Callaway County, Missouri. We shall refer to relators as plaintiffs. Respondents are Lewis C. Mock, Secretary of the Board of Directors of said school District, John Durk, Elmo Young, Wilbur Foster, Jr., William Stewart, Norman Roberts, and Robert Schulze, members of the Board of Directors, hereafter referred to as defendants. Plaintiffs sought, by a writ of mandamus, to compel defendants to place on a ballot and submit to a vote of the voters of the above school district, (hereafter referred to as R-l) a proposition to change the boundary of the district. The court issued its preliminary writ and, after a full hearing at which the parties presented the oral testimony of eleven witnesses, and also documentary evidence, the court issued its peremptory writ ordering that the proposition be submitted to the voters of the district at a special election to be held Tuesday, November 30th, 1965. Defendants have appealed.

This paragraph is intended to be a brief historical statement which is explanatory of the remainder of this opinion. Prior to the creation of R-l, May 16th, 1964, Auxvasse school district C-l consisted of territory in Callaway County, as outlined in a colored map filed as an exhibit by defendants. After May 16, 1964, R-l consisted of lands in Callaway and Audrian Counties, as shown by said map. The map shows no lands in Boone County. Old C-l is depicted in red, the territory in Callaway and Audrian Counties included in R-l, is shown in green. All of the territory of R-l, to be included in Fulton is contiguous to Fulton. This petition for change of boundaries was served on defendants on July 11th, 1964. The minutes of Board meetings do not make reference to it until, under date of March 22nd, 1965, it was shown that the Board voted to refuse to submit the petition to a vote of the qualified voters of R-l. It also appears that, on March 8th, 1965, the territory of Toledo school district was added to R-l, by action of defendants. The minutes of the Board meeting under date of March 22nd, 1965, were not approved and signed by the secretary of the Board until some time in July which, according to statements contained in plaintiffs’ brief and argument, was three months after the filing of this petition in mandamus.

The court found:

(1) that, on July 9th, 1964, more than 10% of the qualified voters and tax payers of the district, as determined by the total vote cast in the district for County Superintendent of Schools, in the April, 1963, election, filed a petition to change the boundaries of the district (the necessity for said change being stated therein), requesting that the following described real estate:

All of the land within the boundaries <of the district, excluding and excepting •.that portion known as Auxvasse Consolidated district C-l, be removed from R-l and added to Fulton school district 58, an adjoining six director High School district;

(2) that said petition was directed to the secretary of the Board of Directors of said district;

(3) that it was presented to-the Board and to its secretary by the Sheriff of Calla-way County, who delivered a copy thereof personally to the then secretary, on July 11th, 1964;

(4) that the same petition was duly and lawfully presented to the Board of Directors, and to the secretary thereof, of Fulton school district 58, Callaway County, Missouri, (hereafter referred to as Fulton);

(5) that the signatures appearing on the two petitions were those of qualified voters, residents, and tax payers of R-l;

(6) that, notwithstanding the petition was received by the Board of Directors and secretary of R-l on July 11th, 1964, at a time when said Board and secretary could have posted notices and could have otherwise legally advertized the submission of said issue to the voters fifteen (15) days prior to the next annual school election (April 1965), as provided by Section 165.294 RSMo 1959; that Section 165.294, RSMo 1959, was in effect at all times material to this action; (this section now appears in V.A.M.S. as Section 162.431, but that section was riot in effect when the petition herein was filed and rejected by defendants) ; that said officials “failed, omitted, refused and neglected” so to do and that said Board refused to permit the secretary to advertize same;

(7) that the secretary and Board of Directors of Fulton district accepted said petition, lawfully acted thereon in accordance with the provisions of Section 165.294, supra, and the voters of Fulton cast a majority of their votes in favor. of the proposed change of boundaries, and that the Board of Fulton declared the proposition “carried”

(8) that the refusal and failure of the secretary of the Board of R-l to post notices or otherwise advertize said proposed change in the boundary of R-l, and the refusal of the Board of R-l to order or permit the posting of notices or publication, in accordance with law, was unlawful and arbitrary and was intended to deny, and did deny, the signers of said petition, including relators (plaintiffs herein) their lawful right to have said proposal voted upon at the annual school election held on April 6, 1965, in R-l, contrary to law.

We have read the entire record in this case and have considered the exhibits filed herein. We hold that the facts, as found by the court, are fully supported by the evidence. From the testimony of the members of the Board, and other evidence, it appears that the members, by a vote of three to two (one abstaining), adopted a resolution which effectually prevented the proposal from being submitted to the voters for action, as is clearly provided in Section 165.294, supra.

Some of the directors professed, in their testimony, to be confused by the language used in the petition setting forth the description of that portion of R-l which, it was proposed, should be detached from R-l and included in Fulton. However, there was testimony to the effect that others knew what lands were meant. We note that the secretary, the Board of Directors, and a very large majority of the voters of Fulton, apparently understood the same proposal and approved of the change of boundaries. It also appeared that no part of the boundary of former Consolidated (C-l), old Auxvasse district, was included within the territory affected by the proposed change in boundaries. Former C-l had existed since long prior to July 11th, 1964, and several witnesses stated that they understood of what it consisted and that it was not affected by the proposed change of boundaries. We think that this stated confusion did not in fact exist in the minds of the members of the Board of R-l; and we think that, if some members of the Board were in some doubt as to what the petition, as worded, really meant, there was no sound reason for such confusion. The record contains much evidence tending to show that the Board adopted the resolution not to submit the proposal to a vote because of ill feeling existing between factions whose members were involved; and because some of the Board members felt that the minority who signed the petition (although the number of signatures was sufficient under the statute) were not worthy of being given the opportunity to vote on the petition, although they were clearly entitled to do so under the law.

Defendants contend here that the effect of a change of boundaries, such as is mentioned in the petition would, in effect, amount to an annexation of R-l, not a change in boundaries; and that such a result may not be approved under the provisions of Section 165.294, supra. In England v. Eckley (Mo.) 330 S.W.2d 738, 743, the court held that the provisions of the above section of the statute contemplate the continued existence of both (or all) of the districts affected. In this case, no part of the former C-l, is affected. It had functioned as a school unit prior to the time when the territory here involved was joined with C-l to make the present R-l district. Its facilities are still there and in operation, according to the evidence. This contention of defendants must be denied.

It is shown in oral testimony and by exhibits, that former “Toledo” district was annexed to R-l long after the filing of this petition. It is now claimed that, if this change of boundary is made, Toledo will be left alone, separated from R-l and from Fulton. We must rule this law suit and establish the rights of plaintiffs and defendants as of the date the petition was filed. The fact that defendants wrongfully failed and refused to conform to the law in such cases as this, as clearly set forth in Section 165.294, supra, and instead, deferred any action on the petition until March 22nd, 1965, fifteen (15) days prior to the annual school election, (and even then may have intentionally concealed their action), and that they, while withholding action on this petition, acquiesced in or permitted the annexation of Toledo, cannot affect the rights of plaintiffs and those of other voters of R-l. If that were the law, then many petitions such as this might be defeated by the expedient of adding new territory to the district involved. However, we do not rule the legal status of the Toledo territory because it is not an issue here.

It is also urged that the future status of territory R-l located in Boone and Audrian Counties will be left in doubt if this change in boundaries is finally approved. No part of original C-l is involved in this proposed change of boundaries. No part of that territory will be affected by this change, if it eventually occurs. That clearly appears’ from the face of the petition.

The peremptory writ was properly issued. Plaintiffs are clearly entitled to the relief sought in this action in mandamus and it is the function of the courts to order defendants to do that which it is their clear legal duty to do. The judgment is affirmed.

However, it is ordered that the cause be remanded to the trial court with instructions that it order that the issue herein be submitted to the voters entitled to vote thereon. We take this action because we think the trial court is, and will be better informed than we are, as to when and how the election shall be held. See England v. Eckley, supra (Mo.) 330 S.W.2d 738, 743.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


author: MAUGHMER, Commissioner.

text:
    Gordon A. GANTZ, Plaintiff-Respondent, v. AMERICAN NATIONAL BANK, Executor of the Estate of Willard F. Wilkinson, Deceased, Defendant-Appellant.
    No. 24733.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Robert B. Paden, Maysville, for appellant.
    Robison & Miller, Maysville, for respondent.
   MAUGHMER, Commissioner.

This suit is based upon a claim filed by plaintiff against the estate of Willard F. Wilkinson, deceased. It was tried to a jury. The result was a verdict and judgment for plaintiff in the sum of $6600. The executor has appealed.

The plaintiff, Gordon A. Gantz, claims that deceased at the time of his death on April 14, 1965, was indebted to him in two categories: First, in the sum of $5,240.23, based upon a 7½ percent commission on the volume of business done by deceased from 1952 until the date of his death, pursuant to the terms of a written contract and; second, in the sum of $1440.76 for supplies furnished to deceased which were not paid for by him during his lifetime. There was a ten member jury verdict in favor of plaintiff for: “Recovery under contract, $5200. Recovery for account, $1400”. Judgment accordingly was entered for plaintiff in the total amount of $6600. At the close of plaintiff’s evidence, defendant filed a motion for directed verdict, which was overruled. The defendant offered no evidence.

We believe this story can best be told by presenting the evidence on plaintiff’s part which was offered and received, and then subjecting such evidence to examination under the light of defendant’s assignments of error and determining if the evidence was properly received. The assignments relate directly and entirely to alleged error in the reception of evidence on behalf of plaintiff.

The plaintiff at all times hereinafter mentioned was a tax consultant and accountant. His office was in St. Louis. In his work he used form books and record forms made up during the early years by Simplified Tax Records of New York and later by its successor Systematic Tax Records, Inc. He had representatives which he called Section Managers in various counties in Northwest Missouri, including DeKalb County. These Section Managers bought from or through plaintiff such forms which were produced by Systematic Tax Records, Inc. These representatives furnished tax services and consultations to a clientele in their county or area. Mr. Gantz was available for consultation as to any problem cases and he occasionally visited them at their offices. For supplying this tax service know-how, forms, supervision and advice, Mr. Gantz charged a commission of 7½ percent on the business done — at least that was his contract with Mr. Wilkinson, who from 1952, until his death maintained such an office at Stewartsville in DeKalb County, Missouri.

The plaintiff’s evidence consisted of the following: Exhibits 1, 2, and 3, the oral ■testimony of seven witnesses and Exhibits 34, 35 and 36. Exhibit 1 is a six page written agreement, dated ^August 1, 1954, bearing the signatures of plaintiff and Mr. Wilkinson, under the provisions of which Wilkinson formally signed up as a Section Manager and agreed to pay to plaintiff 7½ percent of “amounts collected from customers”. The contract also provided for supervision and consultation by plaintiff. The signature “Willard F. Wilkinson” was declared by plaintiff to be that of the testator Wilkinson. There was no objection to this testimony. Exhibit 2 is a ledger sheet which lists in total dollars the “Volume of Business” done by “Willard F. Wilkinson, Stewartsville, Missouri”, from January 10, 1953 until April 14, 1965. This exhibit also contains a computation at 7½ percent on the volume of business reduced to dollars, and a third computation lists the balance (7½ percent) as $5240.23, the amount sued for under the contract. Exhibit 3 consists of four ledger sheets listing “Systems and Supplies” furnished during the same period to Mr. Wilkinson. In these three columns of figures which are designated debits, credits and balance, the balance due as reflected by the exhibit is $1440.76, the amount claimed for supplies furnished. Plaintiff, his wife Lee Gantz, and Charles Ellis; an accountant employed in plaintiff’s St. Louis office, each testified without objection that these three exhibits were in the handwriting of plaintiff, were made “at or near” the time of the transaction therein referred to, were kept in plaintiff’s St. Louis office and as “a part of the files and records of the office”. Exhibits 4 to 33, additional office records, were identified but withdrawn and not received in evidence.

In addition, plaintiff testified that at the request of Mr. Harold G. Baughman, trust officer and Vice-President of the;American National Bank, Executor, he furnished to Mr. Baughman a complete statement of his claim against the estate, that the same was true and correct and no part of it had been paid. Counsel for defendant allowed plaintiff (without objection under the Dead Man’s Statute, Section 491.010, V.A.M.S.) to testify as to his occupation, acquaintance with deceased, the fact he represented and sold Systematic Tax Records to Section Managers, and that Mr. Baughman requested a statement of the account with Mr. Wilkinson, and he supplied same. Then defendant objected to a question as to the amount due under the account submitted. The objection was that plaintiff “was an incompetent witness”. The objection was overruled. Then counsel for defendant cross-examined plaintiff as to Mr. Baugh-man’s request and as to the contents of the account furnished. On cross-examination plaintiff was asked if he removed any records from Mr. Wilkinson’s Stewartsville office after his death. He denied that he had done so. He was also asked if the entries on Exhibits 2 and 3 were made at or near the time of the alleged transactions.

Mr. Dean Curnitt testified that he had been associated with Mr. Wilkinson during the last ten years of his life and had worked with him in tax and accounting matters. He said he had seen plaintiff and Mr. Wilkinson working together on tax matters and expressed his opinion that the charges made by plaintiff for forms and supplies were fair and reasonable, and that Mr. Wilkinson had “acknowledged an indebtedness to Mr. Gantz”.

Mr. Glen Rollett, former Stewartsville city clerk, shared offices with Mr. Wilkinson for a short period and said he “knew they (Gantz and Wilkinson) were together” on the bookkeeping and tax service work.

Myrtle Schleicher worked for a time in Mr. Wilkinson’s office in Stewartsville. She said Wilkinson referred questions on tax work and auditing to Mr. Gantz — made telephone calls and wrote letters to him and sent income tax returns to his St. Louis office.

Mr. Harold G. Baughman, trust officer for the executor, testified that he “handled the details of the Wilkinson estate”. He said he “suggested” that Mr. Gantz furnish him some statement or proof supporting the amount of the plaintiff’s claim. Exhibits 34, 35 and 36 are copies of income tax returns prepared for Mr. Wilkinson and his estate by his executor and by the attorney for the estate after testator’s death.

Appellant says it was error to receive “evidence pertaining to an account with Systematic Tax Records * * * as the named claimant was Gordon A. Gantz * * * and no admissible evidence was offered by plaintiff to show any authority of Gantz to prosecute any action on behalf of Systematic Tax Records, Inc.” Appellant cites Section 351.385(2), V.A.M.S., giving corporations the right to sue, and Rule 52.01, V.A.M.R. providing that actions shall be prosecuted in the name of the real party in interest. We fully recognize this procedural requirement. However, under the evidence before us plaintiff appears to be the real party in interest. He bought or procured the forms and supplied or sold them to Mr. Wilkinson. The debt was due plaintiff and not to Systematic Tax Records, Inc.

In Andrae et al. v. Peck, 176 Mo.App. 61, 162 S.W. 1059, syl. 1, it was held that even. where a corporation sold goods to defendant, yet the goods were billed in the name of plaintiff and the accruing indebtedness was treated as an indebtedness to plaintiff, plaintiff was the real party in interest.

Caldwell et al. v. Eubanks et al., 326 Mo. 185, 30 S.W.2d 976, 72 A.L.R. 621, cited by appellant is a suit brought by minority stockholders and is not in point. We deny this assignment.

The second point is that the court erred in requiring defendant to produce for plaintiff’s inspection, all business records of deceased’s business office, including all books of account, checks and correspondence concerning deceased’s operation of the Stewartsville tax and auditing office and particularly with respect to plaintiff or Systematic Tax Records, Inc. Motions to produce for inspection are today liberally construed, give wide discretion to the trial judge, and inspection is permitted if deemed likely to lead to production of competent evidence. Section 510.030, V.A.M.S.; Rule 58.01, V.A.M.R.; Rule 57.01, V.A.M.R. and State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757. None of those records were received in evidence. We are unable to conclude that defendant suffered prejudicial error as a result of such production. Appellant has frankly conceded that it has found no Missouri authority upholding its contention or even ruling this particular assignment. It is denied.

The final assignment is that “The court erred in admitting evidence of the plaintiff concerning transactions by and between plaintiff and the deceased defendant as such evidence is inadmissible under the so-called “Dead Man’s Statute”. Under this point defendant protests not only oral testimony by plaintiff but the reception into evidence of Exhibits 2 and 3, which were received under the Business Records Act, and Exhibit 1, the written contract signed by the parties. A witness, even though disqualified under the “Dead Man’s Statute” may, nevertheless, testify as to the deceased’s handwriting. Reidinger et al. v. Adams et al., Mo.Sup., 266 S.W.2d 610, 613; Stephenson v. Stephenson et al., 351 Mo. 8, 171 S.W.2d 565, 568.

Section 491.010, V.A.M.S. provides in part:

“No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility; provided, that in actions •where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not he admitted to testify either in his own favor or in favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided, and where an executor or administrator is a party, the other party shall not he admitted to testify in his own favor, * * *, except as to such acts and contracts as have been done or made since the prohate of the will or the appointment of the administrator; provided further, that in actions for the recovery of any sum or balance due on account, and when the matter at issue and on trial is proper matter of book account, the party living may be a witness in his own favor so far as to prove in whose handwriting his charges are, and when made and no farther”. (Italics ours).

Section 490.680, provides:

“A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

In our opinion Exhibit 1 — defendant’s signature to the contract — was identified and the exhibit was admissible. It is further our opinion that Exhibits 2 and 3 were admissible as Business Records.

As to the “Dead Man’s Statute” we refer to Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 849, 850. There the court said:

“This statute is a qualifying enactment in that it first removes the common-law disqualification of witnesses by reason of interest, and it is a disqualifying enactment in that it then explicitly recognizes and imposes disqualification in certain instances.
⅜ ij< ⅜ ⅜ ijc ⅝
“It is now well-settled that the 'transactions ’ proviso does not impose a general disqualification and does not make the surviving party an incompetent witness for all purposes, but that such surviving party is disqualified ‘only to the extent that his testimony might be subject to question by the other party if living’ and in respect ‘to transactions between the witness and the party then dead’ [Elsea v. Smith, 273 Mo. 396, 408, 202 S.W. 1071, 1073(2)] and remains a competent witness in respect to transactions with others and as to matters ‘with which [the deceased] had no connection, and of which he had no knowledge’ ”.

The court in Birdsong v. Estate of Ladwig, Mo.App., 314 S.W.2d 471, 477, made the following comment on the requirement of proper objection when the plaintiff was testifying and the other party (testator) was deceased:

“Since the witness is not incompetent under the dead man’s statute for all purposes, objections must be specific and sufficiently exact to inform the court of the reason why the witness is disqualified in the particular instance. The court cannot be convicted of error in refusing to sustain general objections where the evidence is competent for any purpose”.

The plaintiff, called as a witness in his own behalf, testified that he was a tax consultant and accountant and resided in St. Louis. He listed the schools he had attended, described working in Kansas City as an accountant, said he started his own business in 1947, and became a distributor of accounting and tax record forms produced by Systematic Tax Records, Inc. He testified that he first met the testator Wilkinson, many years ago, and that they were slightly related by marriage. He stated that Mr. Wilkinson returned to Stewartsville (his earlier home) about 1952, built some fences and made other repairs for his aunt. The witness then started to repeat what Wilkinson told him, whereupon defendant objected to “what Mr. Wilkinson told him” and the objection was sustained. The defendant offered no other objection to plaintiff’s testimony thus far. The examination continued:

“Q. (BY MR. MILLER) All right. Do you know of your own knowledge whether or not there was a change in arrangements, that is, on the part of Mr. Wilkinson, under which he did then in the latter part of 1952 begin work in connection with bookkeeping and auditing and preparing tax reports and tax services?
“A. Well, he did, yes. Under our instruction, yes.
“MR. PADEN: I want to object to the last part of the answer by the witness, under our instruction, and I ask that the jury be instructed to disregard that part of the answer”.

The court sustained the objection as made and instructed the jury to disregard that part of the answer. We continue further with the examination of plaintiff.

“A. (The witness) Yes, I made numerous visits to different towns for checking up of tax records and accounts.
“Q. (BY MR. MILLER.) Without telling the names of who might be involved as having been with you, were these trips made in company with other people or persons?
“MR. PADEN: I object to that Your Honor as leading, and the second part is a flagrant attempt to get around the provisions of the statute. He must limit his questions to something that can reasonably be answered.
“(BY MR. MILLER) Was there— without describing the name of the place, was there a place or office to which you first came in this area from St. Louis, in the area of Northwest Missouri before you made these trips with other persons to towns and cities and places in the Northwest Missouri territory in connection with your work? A. Yes, sir.
“MR. PADEN: I object to that on the grounds it’s immaterial and irrelevant and incompetent to any issue in this case. (Italics added).
“THE COURT: Objection overruled.
“Q. (BY MR. MILLER) And where did you go? A. Stewartsville.
“Q. Stewartsville, Missouri? A. In Stewartsville, Missouri.
“Q. State whether or not without naming the person or names there was during that time being maintained in the city of Stewartsville, Missouri, any office by any person, and again not naming the person for the purpose of doing tax and auditing and bookkeeping services and selling bookkeeping supplies ?
“MR. PADEN: I object to that on the grounds it’s immaterial, irrelevant and incompetent to any issue in this cause.
“THE COURT: Well, . . .
“MR. MILLER: (Interrupting) This will be developed.
“THE COURT: Well, at this time I’m going to sustain this objection. You can develop that with other witnesses I believe Mr. Miller”.

Mr. Gantz then identified Exhibits 1 through 33 and testified as to correspondence with Mr. Baughman of the executor bank. In our opinion the bar of the Dead Man’s Statute was not invoked as to any of this evidence. Thereafter defendant proceeded to cross-examine plaintiff. We quote from that cross-examination:

“THE COURT: Go ahead.
“BY MR. PADEN: Mr. Gantz, it’s your contention then that Mr. Wilkinson purchased this equipment as shown on this list m your handwriting, from funds which you claim he owed you?
“A. Is that the finish of your question?
“Q. Yes? A. Well, what I was explaining was that the connection was the fact that Mr. Wilkinson asked permission to use funds due me to buy equipment, that that would speed up his work, and this was a list of the equipment that he did purchase.
“Q. Mr. Wilkinson purchased that equipment? A. Yes.
“Q. Now Mr. Gantz, you have answered some questions concerning what are styled Plaintiff’s Exhibits 2 and 3, Plaintiff’s Exhibit 2 being one yellow ledger sheet and Plaintiff’s Exhibit 3 being four pages written on both sides, and I want you to look at these pages once more Mr. Gantz and let me ask you the question. Were each and every entry on Plaintiff’s Exhibits 2 and 3 entered on those sheets contemporaneously, meaning at or near the time, that the alleged transaction took place ?
“A. Yes approximately, yes”.

As stated by the court in Birdsong v. Estate of Ladwig, supra, objections must be specific and sufficient to inform the court that the incompetency of the evidence offered is being objected to under the Dead Man’s Statute. We do not believe that any incompetent evidence was received over any such specific objection and therefore if any such incompetent evidence was received its incompeten'cy was waived. The instant case is different from Schwalbert v. Konert et ux., 230 Mo.App. 811, 76 S.W.2d 445, 453, in which there was a clear-cut ruling at the outset that the witness was not disqualified and it was held the objection need not be repeated.

In Gillespie v. Ringhausen’s Estate, Mo. App., 364 S.W.2d 633, the plaintiff offered to testify regarding a conversation between her and the testator. After an objection that such testimony would be m contravention of the Dead Man’s Statute, the court properly refused to hear it.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of- the Court.

All concur.