author: PRESLAR, Justice.

text:
    Edalene ANDERSON, a feme sole, Appellant, v. J. Patrick HOOKER, M.D., Appellee.
    No. 5898.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1967.
    Rehearing Denied Nov. 1, 1967.

      John J. Watts, William D. Kimbrough, Odessa, for appellant.
    William L. Kerr, Kerr, Fitz-Gerald & Kerr, Midland, for appellee.
   OPINION

PRESLAR, Justice.

This is a malpractice suit brought by the appellant against the appellee, asserting numerous counts of negligence in connection with surgery performed by the ap-pellee on the appellant for removal of a cervical disc. It was alleged that the doctor-appellee should not have operated after he observed an X-ray picture showing no bone defect in appellant’s neck; operated on her until after heat treatments had been tried, and operated upon her without the administration of added amounts of traction; and it was asserted that the doctor should have run a myelogram test prior to the surgery and applied traction following surgery. Appellant-plaintiff also asserted that the defendant-doctor failed to keep a proper lookout for her safety during performance of the surgery; performed the surgery from the front of her neck instead of the back; removed one of her cervical discs without sufficient diagnostic findings; unnecessarily removed such disc; and failed to make a full disclosure to her prior to surgery of the risks, dangers and complications incident to, and that might be reasonably anticipated from, the surgery. In response to special issues the jury found against plaintiff-appellant on each of the above assertions of negligence, and it also found that there was no failure on the part of the doctor to exercise the care and skill usually conformed to by physicians and surgeons in the area which would constitute negligence; that the operation accomplished the purpose for which it was intended, and that no sum of money was due to be paid to the plaintiff-patient by the defendant-doctor. Based upon the verdict, a take-nothing judgment was entered. We affirm.

Appellant gave her written consent for the surgery to be performed, but maintains that she would not have given such consent had the appellee more fully informed her of the risks and dangers involved, more particularly had he informed her that a stroke or paralysis might result. In her brief before this court, appellant states that the central issue in the trial of this case was whether or not Edalene Anderson had given an informed consent to the operation, and that the point of conflict centered upon whether or not the risk of a stroke was incident to the operation performed on her, and whether or not the defendant failed to conform to the standard medical practice by disclosing to her that a stroke was one of the risks incident to the operation. The defendant-doctor informed the plaintiff of various things concerning the proposed surgery, but he did not inform her that a stroke was one of them, and the evidence is that she had some kind of episode or stroke while in the recovery room following the surgery.

Appellant assigns as error the exclusion of evidence which she says would show that the doctor knew that a stroke was a risk of this operation. The doctor’s testimony was that he did not consider a stroke an anticipated complication of the operation. The excluded evidence concerned another patient of the defendant-doctor, one Manon Moore, who had the same type of surgery some two months prior to appellant’s operation. The proffered evidence, which was disputed, was that Moore suffered a stroke some 24 hours after surgery. This evidence was in the form of the hospital records of Manon Moore, the testimony of a doctor who had examined him some several months after surgery and was of the opinion that he had suffered a stroke some time after surgery, and the testimony of the defendant elicited on cross-examination. Appellant urges that the evidence was admissible to show the doctor’s knowledge that a stroke was one of the things to be expected from this type of surgery, and therefore one of the things of which he should have informed her.

As a generalization, it may be said that every normal human being of adult years has a right to determine what shall be done to his own body, and a patient’s consent is thus a necessary prerequisite to any treatment or operation. And to that may he added that one who gives his consent must have such information regarding the consequences as is necessary to form the basis of an intelligent consent. The duty of the physician to furnish the patient with sufficient information to make an intelligent decision — to disclose risks inherent in proposed treatment or surgery —is recognized. Wilson v. Scott, 412 S.W.2d 299 (Tex. Feb.1967); Gravis v. Physicians & Surgeons Hospital of Alice, Tex.Civ.App., 415 S.W.2d 674 (n. w. h.). One writer has observed that the reported cases present much confusion as to what risks a physician should disclose to his patient before obtaining consent to operate. Vol. 44 Texas Law Review 799, 800. Both of the above-cited cases quote from the recent opinion by the Supreme Court of Missouri in Aiken v. Clary, 396 S.W.2d 668, 674, as follows:

“We have reexamined this question and have concluded that the question of what disclosure of risks incident to proposed treatment should be made in a particular situation involves medical judgment and that expert testimony thereon should be required in malpractice cases involving that issue. The question to be determined by the jury is whether defendant doctor in that particular situation failed to adhere to a standard of reasonable care. These are not matters of common knowledge or within the experience of laymen. Expert medical evidence thereon is just as necessary as is such testimony on the correctness of the handling in cases involving surgery or treatment. In Fisher v. Wilkinson, Mo., 382 S.W.2d 627, 632, we held: ‘Without the aid of expert medical testimony in this case a jury could not, without resorting to conjecture and surmise or by setting up an arbitrary standard of their own, determine that defendants failed to exercise their skill and use the care exercised by the ordinarily skillful, careful and prudent physician acting under the same or similar circumstances.’ And, as we said in Pedigo v. Roseberry, 340 Mo. 724, 736, 102 S.W.2d 600, 607: ‘Juries should not be thus turned loose and privileged to say, perchance, the method of treating an injury * * * (or an illness) was negligent notwithstanding, for instance, the uncontradicted competent testimony establish (ing) that the uniformly adopted practice of the most skillful surgeons (or physicians) had been followed.’ The question is not what, regarding the risks involved, the juror would relate to the patient under the same or similar circumstances, or even what a reasonable man would relate, but what a reasonable medical practitioner would do. Such practitioner would consider the state of the patient’s health, the condition of his heart and nervous system, his mental state, and would take into account, among other things, whether the risks involved were mere remote possibilities or something which occurred with some sort of frequency or regularity. This determination involves medical judgment as to whether disclosure of possible risks may have such an adverse effect on the patient as to jeopardize success of the proposed therapy, no matter how expertly performed.”

Appellant’s complaint with regard to the duty to warn is that the court excluded evidence that a prior patient of her doctor had had a stroke following surgery of the kind which was performed on her. Whether the doctor should have told her of this specific thing which happened to his other patient is not for us to say. “What” the doctor should have disclosed to his patient depends not on a standard set by courts, but by the medical practitioners of the area, so that it was appellant’s burden, as plaintiff, to say what the standard was, through testimony of medical practitioners. In Govin v. Hunter, 374 P.2d 421, the Supreme Court of Wyoming held:

“Whether or not a surgeon is under a duty to warn a patient of the possibility of a specific adverse result or a proposed treatment depends upon the circumstances of the particular case and upon the general practice followed by the medical profession in the locality; and the custom of the medical profession to warn must he established by expert medical testimony.” (Citing authorities from other jurisdictions).

And in Wilson v. Scott (supra), our Supreme Court held that the plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have disclosed to his patient about the risks incident to a proposed treatment. We are of the opinion that the medical standard which was established in the case before us did not require the defendant to disclose that a prior patient suffered a specific adverse result; therefore, no error was committed by the court in excluding the proferred evidence. And if error was committed, it was not such as resulted in material harm to appellant, in view of the fact that the medical standard which was established so fitted that given by the court in its charge. Nor can we ignore the difference in the facts as to patient Moore and patient Anderson, which are such that only a medical expert could say that what one experienced as a result of surgery the other would experience. Manon Moore was an older man with a history of the trouble which he experienced, and his trouble did not occur during the surgery procedure and was not of the exact nature of appellant’s. The appellant was a woman 32 years of age at the time of her surgery, whose only health problem was a history of headaches. When we say that a doctor has a duty to disclose risks which are involved in a contemplated operation, we must keep in mind that how the physician discharges his obligation to a patient involves primarily a question of medical judgment.

The expert medical testimony as to the standard in the case before us was in general terms. No witness was asked about a medical standard for disclosure to the patient of a specific adverse result, and no medical witness testified about a medical standard for disclosure to a patient of the surgeofi’s experience with another patient. Relied on by appellant as establishing the medical standard is the following question and answer, propounded to her medical witness, Dr. Rader:

“Q Is it customary to inform a patient that you are getting ready to put them under — the whatever it is you put them under — and operate on them with the knife and what the hazards of that operation are going to be — fully and completely so that they can make an informed and an intelligent choice as to whether they want to go on suffering or whether they want to try to take the chances on the cure?”
******
“A It is our practice and it is becoming increasingly so in recent years to inform the patient upon whom we are going to carry out the procedure, and primarily this applies to surgery, as to the various things which might happen. I think that it is virtually impossible to go into all of the various complications that might occur but we do try to inform them of those things which might, with some possibility, happen, which in this particular operation, we know, has happened in the past which might be of an undesirable character the patient would not want, and we try as much as we can to make that clear because, after all, it is the patient who must make the final decision, I think, on so-called electrosurgery.”

And the testimony of Dr. Raeburn C. Llewellyn, a witness for the defendant, who testified as follows:

“Q As a doctor, isn’t it customary to inform a patient of all the possible risks of any operation that you are going to perform?
A Yes, it is true.”

The court submitted, without objection, the following issue and instruction to the jury:

“Do you find from a preponderance of the evidence that defendant, J. Patrick Hooker, failed to make a full disclosure prior to surgery to Edalene Anderson of the risks, dangers and complications incident to and that might be reasonably anticipated from the operation?
You are hereby instructed unless you find from a preponderance of the evidence that Edalene Anderson at the time she executed the consent form executed in evidence in this case was informed as to the dangers to be anticipated as a result of the operation in question, then you will not find that the plaintiff consented to the operation.
In this connection, the Court charges you, as a matter of law, that the defendant, Dr. J. Patrick Hooker, was under a duty to make a full disclosure of the nature of the operation, the processes contemplated, and the danger and hazards of the operation.
Answer ‘Yes’ or ‘No.’ ”

The jury answered “No.”

These matters were presented fully to the trial court in an Amended Motion for New Trial, and we see no abuse of discretion in overruling them.

Appellant assigns as error numerous findings of the jury in response to special issues as being against the great weight and preponderance of the evidence. When such complaint is made we must consider and weigh all of the evidence material to the issue, and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. All of the evidence is considered—that which supports the verdict as well as that which is against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. A careful examination of the Statement of Facts leads us to the conclusion that none of the findings of the jury complained of is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant assigned jury misconduct on her Amended Motion for New Trial, and attached an affidavit of one of the jurors to such motion. Appellee attached to his reply to the Amended Motion for New Trial an affidavit by the same juror. The testimony of the jurors on the Amended Motion for New Trial is not a part of the record before us, but the affidavits and pleadings are, so that it is clear that the question raised was whether or not misconduct actually occurred. The trial court overruled the motion and, in the absence of express finding, it must be presumed that the trial judge found that there was no misconduct.

Rule 327, Texas Rules of Civil Procedure, governs the requirements for new trials based on jury misconduct, and it is well settled that the complaining party must establish under that rule: (1) that such misconduct did in fact occur, and (2), that injury probably resulted to him. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462; City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259. If either requirement is answered in the negative, then the complaining party has not met the burden placed on him by Rule 327.

In the case before us, the trial judge having found that, as a matter of fact, there was no misconduct, the question for this court is whether such finding is an abuse of discretion. Viewing the entire record in this case, we are of the opinion that there is support in the evidence for the finding of the trial court, and that such finding is not an abuse of discretion. In the absence of an abuse of discretion, this court is bound by such finding. State v. Wair, 163 Tex. 69, 351 S.W.2d 878; Selmikeit v. El Paso City Lines, Tex.Civ.App., 365 S.W.2d 840 (ref., n. r. e.).

Each assignment of error is overruled and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    Cora B. CARPENTER et vir, Appellants, v. D. A. TINNEY et al., Appellees.
    No. 11537.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1967.
    Rehearing Denied Nov. 8, 1967.

      Charles E. Wallace, Waco, for appellants.
    Warden Terry, San Saba, Lee & Lee, Jack Lee. Mason, for appellees.
   O’QUINN, Justice.

This lawsuit, originally brought in the County Court of San Saba County, contests the will of Frankie Tinney. In her will Mrs. Tinney sought to leave all her property, except for minor cash bequests, to two of her four children. To the other two children and to her husband, who was living when she made the will, Mrs. Tinney left $5 each.

One of the children, Cora (Tinney) Carpenter, joined by her husband, filed a contest in county court in July, 1962, naming as defendants her three brothers, who were the other three children of the testatrix. One brother was sued individually and as the designated executor of their mother’s will. The county court held against the contestants, and they appealed to district court. From an adverse judgment entered November 11, 1966, in district court, contestants bring this appeal.

Frankie Tinney was the wife of W. I. Tinney, a stock farmer, at Cherokee. Together they owned about 400 acres of land, in two separate tracts, and cattle. W. I. Tinney died in February, 1959, after which Mrs. Tinney filed application to probate her husband’s “lost” will, under which she claimed to be the sole beneficiary. A contest was brought, and on appeal this Court denied probate of the proffered will in 1963. Tinney v. Carpenter, 369 S.W.2d 440, Tex.Civ.App., Austin, writ ref. n. r. e.

While her husband was still living, Frankie Tinney executed a will dated May 8, 1958. Under this will she bequeathed $5 to her husband and $5 each to her daughter, Cora, and to her son Clifton. All her “other estate, real, personal and mixed” she left to her “two sons, Dor and Milton.” She appointed Dor independent executor of her estate.

The contest attacked the will on the grounds that Frankie Tinney was of unsound mind and incapable of making a will, that Dor and Milton exercised undue influence over their mother, and that the will was the result of “a fraud or mistake.” This last claim was based on testimony that at the time Mrs. Tinney made her will, and on occasions afterwards, she said that her husband had made a will leaving his property to Cora and Clifton, to the exclusion of the other two children, and that she wanted to equalize distribution of their property by leaving all of her property to Dor and Milton, to the exclusion of the two children favored by her husband. It was not true that Mr. Tinney had left his property to two children, leaving out the other two children, and contestants contend that if Mrs. Tinney had not been mistaken, she would not have left her property as she did to only two of her four children.

In answer to special issue No. 1, the jury found that Frankie Tinney had testamentary capacity when she made her will. The trial court refused to submit an issue on undue influence. Contestants moved for judgment non obstante veredicto, and the trial court overruled the motion. Motion for new trial was also overruled.

Appellants predicate this appeal on seven points of error. Points four, five, and six, challenging evidentiary support of the jury’s finding as to testamentary capacity, are not briefed. These points are therefore waived and we overrule them without discussion. Burrell v. VanLoh, 404 S.W.2d 860, 861-862, Tex.Civ.App., Fort Worth, no writ, and authorities cited.

Points one and two are briefed together, under which appellants contend the trial court should have entered judgment for appellants because the undisputed evidence shows the true intention of Frankie Tinney was that all four of her children receive equal parts of the property she and her husband owned.

Under point three appellants attack the refusal of the trial court to submit an issue on undue influence. Point seven, appellant’s remaining contention, asserts that the trial court erred in admitting in evidence the deposition of Dr. G. L. Gray because proper predicate for its introduction was not laid.

We overrule points one and two based on the contention that the true intention of Frankie Tinney was to effect equal distribution of her property and her husband’s property among the four children. To hold as appellants urge, we would need to find that Frankie Tinney made her will under a mistake of fact and that the court is therefore privileged to reform her will. We believe the law to be contrary to this contention.

Appellants confess in their brief that they have been unable to find cases decided by courts of this State involving mistake such as pleaded in this cause. Appellants cite cases holding that a will may be attacked on the ground that its execution was induced by a fraudulent promise to do something in the future. “If a will can be set aside,” appellants argue, “based on a promise, then by the same reasoning a will ought to be set aside when it is uncontroverted that the will is based on a false belief in a given state of facts.”

We are unable to accept this proposition, either on the basis that mistake of fact is analogous to a fraudulent promise, or that a mistake of fact, not induced by fraud or undue influence, licenses this Court to rewrite Frankie Tinney’s will.

Testimony was offered through a neighbor that Mrs. Tinney said at the time she was making her will, and at other times later, that because her husband had made a will leaving his property to two children she wanted to even the distribution of their property by leaving her estate to the two children left out of her husband’s will.

Frankie Tinney made her will in 1958, some eight months before her husband’s death in February, 1959. She died nearly two years after his death and about eighteen months after she had undertaken to probate her husband’s “lost” will under which she was his sole heir. It appears she did write a doctor in Temple, where her husband had been in a hospital for some time before his death, inquiring as to whether Mr. Tinney had signed any papers while there.

In so far as the record of this case discloses, Mrs. Tinney never learned anything to confirm the belief, if she ever had it, that her husband left his property to two •children instead of all four. There is no evidence that Frankie Tinney ever mentioned changing her will in the light of facts, known to her after her husband’s •death, contrary to her earlier belief that he favored two children over the others. Frankie Tinney died early in 1961 with her will of May 8, 1958, unchanged.

In American Jurisprudence it is said that validity of a will or any part of it is not .affected by mistake of fact or law inducing execution of the will, unless fraud or undue influence was perpetrated upon the testator. 57 Am.Jur., Wills, sec. 375, p. 272.

Generally a mistake of fact or law, in the absence of fraud or undue influence, will not defeat the probate of a will, even though the testator would or might bave made a different will if there had been no such mistake inducing the testator to make the will. 41 L.R.A.,N.S., 1126, 1129, col. 1, and authorities cited. It is also the general rule that courts have no right to vary or modify the terms of a will or to reform it even on grounds of mistake. 95 C.J.S. Wills § 586, p. 713.

In Holmes v. Campbell College, 87 Kan. 597, 125 P. 25, 41 L.R.A.,N.S., 1126, the testatrix, after making specific bequests, left the residue of her estate to Campbell College. External evidence was offered to show that the testatrix was grossly mistaken .as to the exent of her estate, believing that the specific bequests of $7,715 would practically exhaust her property, when in fact the residue amounted to more than $17,000.

The court found that “it was only because of such belief that she allowed the provision to stand, giving the residue to the college. If she had known its real value, she would have left it to her heirs.”

The court held, “The provision cannot be stricken from the will, however, merely because it was the result of a mistake of fact on her part. This would be in effect to reform the will, and the court possesses no such power.”

In Johnson v. Moore, 223 S.W.2d 325, Tex.Civ.App., Austin, writ ref., this Court held that property forgotten or overlooked by the testator, or property he did not know he owned, may be devised under a residuary clause, regardless of whether the testator knew or believed he had title to the property.

It has been held that if the testator labors under no mistake in identity of the document executed, a mistake of fact or law, there being no fraud or undue influence, will not defeat probate of a will. Re Gluckman, 87 N.J.Eq. 638, 101 A. 295, L.R.A.1918D, 742.

It has also been held that mistake by the maker of a will, in believing the person with whom the maker cohabited was a lawful spouse, will not vitiate a bequest to such person, although the marriage was in fact invalid. McDole v. Thurm, 276 Ill. 200, 114 N.E. 542, L.R.A.1917B, 1150; Re Carson’s Estate, 184 Cal. 437, 194 P. 5, 17 A.L.R. 239; Texada v. Spence, 166 La. 1020, 118 So. 120, 62 A.L.R. 281.

We believe that if Frankie Tinney in truth believed when she made her will that she would have to leave her property to two of her children, instead of the four, because of an opposite provision in her husband’s will, in order to make even distribution of the property owned by her and her husband, the opportunity to disabuse her mind of such mistaken belief was ample during the two years after her husband’s death and before her own demise. We find no fraud or undue influence inducing any such belief. If it was merely a mistake of fact, this Court should not now undertake to reform a will that the maker let stand after she, through her action in probate court, demonstrated a correct understanding, or at least a different understanding, of the disposition made by her husband of his property.

We hold that what Frankie Tinney as maker of her will did, and not what she meant or failed to do, is to be given effect under the facts of this case.

Under their third assignment, appellants attack the action of the trial court in refusing to submit an issue on undue influence. We overrule this point.

The burden of proving undue influence was upon appellants as contestants of the will. Rothermel v. Duncan, 369 S.W.2d 917 (Tex.1963).

Appellants raised the issue of undue influence in district court by their first supplemental petition under the allegation they “would show that the defendants D. A. Tinney and Thomas Milton Tinney exercised undue influence over the said Frances Tinney * * * ”

Before a will may be set aside on the ground of undue influence the contestant must prove (1) existence and exertion of influence, (2) effective operation of the influence so as to subvert or overpower the mind of the testator at the time of execution of the will, and (3) execution of a will the maker would not have executed but for the influence. Rothermel v. Duncan, supra; Pearce v. Cross, 414 S.W.2d 457 (Tex.1967); Olds v. Trayler, 180 S.W.2d 511, Tex.Civ.App., Waco, writ ref.; Stewart v. Miller, 271. S.W. 311, Tex.Civ.App., Waco, writ ref.

Appellants as contestants of Frankie Tin-ney’s will had the burden to introduce some tangible and satisfactory proof of the existence of each of the three elements of undue influence. Rothermel v. Duncan, supra; Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138.

No witness testified to any act or deed of either Dor or Milton showing or tending to show the exercise of influence on their mother, Frankie Tinney. Dor Tinney, a married man between the age of 45 and 50, lived at Big Lake, Texas, and was not shown to have more than occasional visits with his mother. Milton Tinney, a single man in the neighborhood of 50 years of age, had lived with his mother and father some fifteen to twenty years prior to his father’s death in 1959. He continued to live with his mother after his father died.

Except for the fact that Milton lived with his parents and helped with the farm work, building fences and feeding cattle, there was no evidence that he exercised or sought to exercise any influence over his mother. In fact, the testimony was abundant that Frankie Tinney was a woman of independence and positive action. She and her husband, during the latter part of their married life,' apparently did not get along in perfect harmony. Both were advanced in years at the time they died, Mr. Tinney being about 79 years old and Mrs. Tinney 72 years old. They had been married since about 1906.

When Frankie Tinney made her will in May, 1958, she drove with another woman, a neighbor, to San Saba and engaged an attorney to prepare the instrument. By her instructions, the will, after being typed, was mailed to the neighbor who delivered it in person to Mrs. Tinney. A short time after-wards Mrs. Tinney and the neighbor drove to Llano, where Mrs. Tinney executed the will in the office of a doctor who had attended the family and who treated Mrs. Tinney. There was evidence that the reason Mrs. Tinnney had the typed will mailed to her neighbor was because she wanted to. avoid possibility of interception by her husband.

After her husband’s death in 1959, the-lawyer who had prepared Mrs. Tinney’s will suggested she make a new will which she refused to do. When the neighbor was asked at the trial whether Mrs. Tinney “had a pretty strong mind of her own,” the neighbor said, “She did what she thought was right, I guess, or what she wanted to.”'

The testimony was uncontradicted that Mrs. Tinney continued, after her husband’s death, to manage the affairs of her stock farm and was actively in charge until her last illness prior to her death early in 1961. There was testimony, not disputed, that after Mr. Tinney’s death, if a person wanted to conduct business with the Tinneys, that person talked to Frankie Tinney and not to Milton.

The rule is stated in American Jurisprudence that the law does not infer undue influence from the mere fact that one who is to profit by the will had an opportunity to impress his will upon the mind of the testator. It must appear that undue influence was actually exerted. 57 Am.Jur., Wills, sec. 387, p. 279.

Living as he did with his parents for a number of years, Milton obviously had the opportunity to impress his will upon the the mind of his mother. But there is no evidence that he ever tried to influence his mother. He was not present when instructions for preparation of the will were given and was not present when Mrs. Tinney signed the will. In fact, in so far as the record discloses, it may be assumed that Milton did not know his mother had made a will and knew nothing of its contents.

The trial court correctly refused to submit an issue on undue influence.

Appellants by their last assignment contend the trial court erred in admitting the deposition of Dr. G. L. Gray. We think the deposition was properly admitted and overrule the assignment of error.

Objection to admission of the deposition was made on the ground that proper predicate had not been laid. Appellants rely upon the rule approved by the Supreme Court in Houston Fire and Casualty Ins. Co. v. Brittian, 402 S.W.2d 509 (Tex.1966). In that case the Supreme Court followed the rule of Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, in which it was said that under the settled law in this State the “testimony of a witness given at a former trial of the same case on substantially the same issues, and where there was opportunity for cross examination, may be reproduced where it is shown that the witness is dead * * * become insane, or is physically unable to testify * * *(153 S.W.2d 681, 697, col. 1.) (Emphasis added).

The evidence resisted by appellants was the deposition, by written interrogatories, of Dr. Gray, taken by agreement of the parties while the case was in county court. The deposition was placed in evidence in the trial before the county court without objection.

Under Rule 213, Texas Rules of Civil Procedure, “Depositions may be read in evidence upon the trial of any suit in which they are taken * * *Section 28, Texas Probate Code, provides for appeal to district court by persons aggrieved by actions of the county court. The trial in district court is de novo and is governed by the same rules as in other civil cases. In re Estate of Rosenfield, 371 S.W.2d 95, Tex.Civ.App., Dallas, no writ. Appeal to the district court is not a new suit. It is a continuation of the original contest commenced in county court. The deposition of Dr. Gray, taken and used in county court in this case, was admissible in district court, without the necessity of showing that the witness was physically unable to testify. Gray v. Bird, 380 S.W.2d 908, Tex.Civ.App., Tyler, writ ref., n.r.e.

The judgment of the district court is in all things affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    J. L. MURDOCK, Appellant, v. TEXAS SECURITIES CORPORATION, Appellee.
    No. 7735.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 25, 1967.
    Rehearing Denied Oct. 23, 1967.
    Herbert C. Martin, Amarillo, for appellant.
    Lovell, Lyle & Cobb, R. A. Renfer, Jr., Dumas, for appellee.
   NORTHCUTT, Justice.

Appellee, Texas Securities Corporation, brought this action in the District Court of Lamb County for recovery from appellant, J. L. Murdock, for the sum of $1,838.13, the amount alleged to be due it upon a certificate of special assessment for the consrtuction of the street and sidewalk improvements of Littlefield in Lamb County, Texas, and for foreclosure of a statutory lien on appellant’s property abutting said paving and for interest and attorney’s fees. Appellant answered by general denial and by special plea that the published notice made a basis for the assessment sued upon did not meet the requirements of Article 1105b, Section 9, Vernon’s Ann.Tex.Civ.St, and contravened the due process clause of the State and National Constitutions because neither the statute nor the constitutions authorized the beautification of appellant’s property and assessment of a lien against the same for such beautification.

Appellee filed a motion for summary judgment based on its allegations that appellant’s pleadings had raised no genuine issue as to any material fact. Appellant answered appellee’s motion for summary judgment based upon the theory that the proceedings did not comply with Article 1105b, Section 9, V.T.C.S., and contravened the due process clause of the constitution of the State of Texas and also the United States Constitution. The court granted appellee’s motion for summary judgment and rendered judgment for the amount sued for and foreclosure of appellee’s lien and for attorney’s fees in the sum of $200. From that judgment appellant perfected this appeal.

Appellant presents this appeal upon three points of error all based upon the contention that the proceedings were for beautification but there is nothing in the record to show such levy was made for beautification. In the public meeting when this matter was being discussed, something was mentioned about beautifying the city but the meeting was to explain to the people interested all the matters, proceedings, the estimated costs, etc., concerning the paving, curbing, gutters and sidewalks.

Article 1105b, Section 9 provides that no assessment should be made against any abutting property or its owner until after notice and opportunity for hearing as therein provided. Such notice was published as provided in said article and appellant was notified of such hearing by personal letter, and he attended such hearing and took part therein and was fully advised as to the estimated cost. Although the appellant knew about such proceedings which would establish a lien on his property and did take part in the meeting where such matters were fully discussed, he did not appeal from such assessment by instituting suit in any court as provided for in said Article 1105b that he had the right to do, and he thereby waived every matter which he might have taken advantage of and is thereby barred and estopped from contesting or questioning such assessment, the amount, accuracy, validity, regularity or sufficiency thereof and the proceedings and contract with reference thereto and with reference to such improvements for or on account of any matter whatsoever.

Article 1105b, Section 6, V.T.C.S., provides :

“If any such certificate shall recite substantially that the proceedings with reference to making the improvements therein referred to have been regularly had in compliance with the law and that all prerequisites to the fixing of the assessment lien against the property described in said certificate and the personal liability of the owner or owners thereof have been performed, same shall be prima facie evidence of all the matters recited in said certificate, and no further proof thereof shall be required.”

The certificate here involved provided:

“That all proceedings with reference to making such improvements have been regularly had in compliance with the law and that all prerequisites to the fixing of the assessment lien against the above described property and the personal liability of the owner or owners thereof have been performed, and this certificate shall be prima facie evidence of the matters herein recited, and no further proof thereof shall be required.”

However, in this case the appellant concedes he knew of such matter and took part in such hearing. It is stated in Fonville v. Southern Materials Co., 239 S.W.2d 885 (Tex.Civ.App.-Galveston, 1951, writ ref’d, n r. e.) as follows:

“Further, the courts of this state have uniformly held that a plaintiff suing on a special assessment certificate has made out a prima facie case as to the regularity of the paving proceedings under said Article 1105b, Vernon’s Annotated Civil Statutes, by the introduction in evidence of the certificate reciting the regularity thereof in evidence. Murray v. Reagan, 129 Tex. 206, 102 S.W.2d 202; Evans v. Whicker, 126 Tex. 621, 90 S.W.2d 554; West Texas Construction Company v. Doss, Tex.Civ.App., 59 S.W.2d 866, and Mitchell v. City of Terrell, Tex.Civ.App., 96 S.W.2d 556.”

See also Murray v. Reagan, 129 Tex. 206, 102 S.W.2d 202 (Tex.Comm’n App.-1937, opinion adopted by Supreme Court). We overrule appellant’s assignments of error.

Judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    Marie DAWSON, Appellant, v. FIRST NATIONAL BANK OF TROUP, et al., Appellees.
    No. 332.
    Court of Civil Appeals of Texas. Tyler.
    Oct. 26, 1967.
    Weldon Holcomb, Rex Kirby, Tyler, for appellant.
    Ben Jarvis, Tyler, for appellees.
   SELLERS, Justice.

Mrs. Marie Dawson, individually and as independent executrix, brought this suit against the First National Bank of Troup, Texas, Newell Jarvis, and Ben E. Jarvis, defendants. The suit has for its over-all purpose an accounting between plaintiff and defendants of the business of plaintiff’s husband, Pleas E. Dawson, deceased, of whom plaintiff is the sole heir, and independent executrix of his estate. It appears that Pleas E. Dawson did business with the Troup bank for a number of years before his death. .He owned and operated a number of oil and gas leases in Rusk County as well as some other counties. Plaintiff brought this suit upon receiving a notice from Ben E. Jarvis that he had posted notice that he, as trustee in a certain deed of trust given by Pleas E. Dawson to the First National Bank of Troup to secure a $60,000 note held by the bank, was going to sell the leases covered by said deed of trust, at the courthouse door at Henderson, in Rusk County, Texas. The deed of trust covered a number of Pleas E. Dawson’s leases in Rusk County. The plaintiff, in her verified ■petition, with respect to said $60,000 note and deed of trust sought to be foreclosed, made the following allegations:

“Plaintiff would allege and show to the court that such instrument under which such foreclosure proceedings are purportedly being held is absolutely void under the laws and Constitution of the State of Texas for the following reasons:
“(a) That the alleged Deed of Trust is a forged instrument; that the signature on said instrument is not the signature of Pleas E. Dawson nor the Plaintiff herein nor the signature of anyone authorized by either of them to sign said instrument and said Deed of Trust is void in the hands of the payee or any assignee thereof.
“(b) In the event the signature on the Deed of Trust is found to be that of Pleas E. Dawson then said signature was secured by undue influence at a time when Pleas E. Dawson lacked the mental capacity to execute such instrument in that he had been confined to bed by order of this doctor due to his grave illness.
“(c) That said Deed of Trust is not supported by a debt evidenced by a purported promissory note alleged to have been executed February 6, 1965 in the principal amount of $60,000.00 payable to the order of the FIRST NATIONAL BANK OF TROUP.
“(d) That said Deed of Trust is not supported by any other valid indebtedness and for that reason Defendant BEN E. JARVIS acting as Trustee has no authority to sell the properties involved.
“(e) That said Deed of Trust being in substance a contract was not executed for a valuable consideraiton or if for some consideration then not for sufficient consideration.
“(f) That said alleged note if found to exist was not executed for a valuable consideration or if for some consideration then not for sufficient consideration.
“(g) That said Deed of Trust and the alleged note was secured by fraud perpetrated upon the said Pleas E. Dawson.
“(h) That said alleged collateral indebtedness if found to have existed has become barred by the statutes of limitation and consequently the Trustee’s authority to foreclose on the property involved has expired.
“(i) That said alleged collateral indebtedness if found to have existed has been discharged by payment either in full or in part and therefore the said Trustee has no authority to proceed with said foreclosure.
“(j) That said Trustee being in law a special agent of both Pleas E. Dawson and Defendant FIRST NATIONAL BANK OF TROUP is required to act with absolute impartiality but notwithstanding such legal requirement said Trustee has conspired with Defendant FIRST NATIONAL BANK OF TROUP, and defendant NEWELL JARVIS to procure said Deed of Trust in the first instance and thereafter by threatening Plaintiff with foreclosure to procure said properties for himself individually and as Trustee for Defendant FIRST NATIONAL BANK OF TROUP.
“(k) That the acknowledgment to the said Deed of Trust was not taken in the manner provided by law and the occurrence of same recorded as required by Art. 5955 V.A.C.S. and Art. 363, Texas Penal Code.
“XI
“Plaintiff would further show the Court that immediate and irreparable injury, loss and damage will occur to her before notice can be served upon the Defendants FIRST NATIONAL BANK OF TROUP, NEWELL JARVIS and BEN E. JARVIS and hearing had upon Plaintiff’s application for such restraining order restraining and enjoining the sale of the leasehold estates belonging to Plaintiff, Individually and as Independent Executrix of the Estate of Pleas E. Dawson, and for a restraining order restraining and enjoining Defendant BEN E. JARVIS from destroying, altering, concealing, mutilating or otherwise disposing of any and all papers, documents, files, instruments and any and all other similar items belonging to Plaintiff or the Estate or in anywise affecting any title, right and/or interest to which Plaintiff Individually or as Independent Executrix may have, own, possess or otherwise claim. Plaintiff would further allege and show the Court that she has no adequate remedy at Law and that no harm nor damage will occur to the Defendants if it be finally determined that the Defendant FIRST NATIONAL BANK OF TROUP is owner and holder of a valid lien against the leasehold estates set out in said Deed of Trust. By reason of such facts Plaintiff respectfully prays the court to issue its order directing the Clerk of this Court to issue a restraining order without notice to the Defendants, or either of them, temporarily restraining and enjoining Defendant BEN E. JARVIS from selling such land under the purported Deed of Trust and temporarily restraining and enjoining Defendant BEN E. JARVIS from destroying, altering, concealing, mutilating or otherwise disposing of any and all papers, documents, files, instruments and similar items belonging to or affecting property owned by Plaintiff or the Estate of Pleí E. Dawson until a hearing can be had to determine whether or not such restraining orders should be made into a temporary injunction during the pendency of the suit.”
⅜ ⅝ ⅝ ⅜ ⅜ ⅝
“WHEREFORE, PREMISES CONSIDERED Plaintiff prays that the Defendant be cited to appear and answer herein and that on final hearing Plaintiff have judgment declaring the said Deed of Trust to be null and void, set aside and held for naught; that the court immediately, without notice to the Defendants issue its order directing the Clerk to issue the temporary restraining orders operative until such time as may be set out by the Court for hearing to determine whether such restraining orders should be made permanent during the pendency of this suit and for such other and further orders, general and special, to which Plaintiff may show herself entitled to receive, either at law or in equity.”

This petition having been submitted to the trial court without notice to the Defendants, the Court granted the temporary restraining order restraining the sale by the Trustee under the deed of trust and set hearing for a temporary injunction after notice to the Defendants.

The defendants appeared and filed answer to the Plaintiff’s petition denying the allegations contained therein, and all parties announced ready for trial upon the hearing for the temporary injunction and both sides offered a number of witnesses. At the close of the hearing, the trial court entered the following order:

“On this, the 21st day of June, 1967, there came on to be heard by the Court the application of MARIE DAWSON, Plaintiff, for a Temporary Injunction upon her verified Petition, after due notice to Defendants FIRST NATIONAL BANK OF TROUP, NEWELL JARVIS, and BEN E. JARVIS, pursuant to the order of this Court heretofore entered in this cause on the 5th day of June, 1967, at four o’clock p. m.; and came the Plaintiff, in person and through her Attorney of Record, and came the Defendants, in person and through their Attorney of Record; and said Plaintiff and Defendants having announced ready for trial upon Plaintiff’s application for Temporary Injunction, and the Court having read and considered the Petition of Plaintiff and having heard evidence and argument of Counsel, and it appearing to the Court that Plaintiff is not entitled to a Tem-orary Injunction for the reason that Plaintiff has failed to show probable cause and probable irreparable injury such as to merit a Temporary Injunction pending a final hearing and determination of the issues between the parties;
“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that the Temporary Injunction prayed for by Plaintiff be and the same is hereby in all things denied, to which action of the Court Plaintiff, MARIE DAWSON, did then and there in open Court except and give notice of appeal to the Court of Civil Appeals for the Twelfth Supreme Judicial District of Texas, sitting in Tyler, Texas.”

From this order, the Plaintiff has duly prosecuted an appeal to this Court.

The appeal of Plaintiffs from the trial court’s order denying the temporary injunction is before this Court without briefs of either party and it is therefore the duty of this Court to consider the case on plaintiff’s petition and defendants’ answer, and the evidence offered on the hearing contained in the Statement of Facts. Rule 385(d), Texas Rules of Civil Procedure. The rule is that this Court, in appeals from interlocutory orders in injunction cases, is limited to the sole question of whether the trial court abused its discretion in entering the order appealed from. 31 T.J.2d, Section 224, page 345.

We deem it sufficient here to say that this Court has reviewed the evidence offered on the hearing and believe that it would serve no useful purpose to set out the same herein, but deem it sufficient to state that this Court finds the evidence to be sufficient to support the trial court’s order.

Judgment of the trial court is affirmed.


text:
    Floyde HEATHINGTON, Appellant, v. HEATHINGTON LUMBER COMPANY, Inc., et al., Appellees.
    No. 7729.
    Court of Civil Appeals of Texas. Amarillo.
    July 3, 1967.
    Rehearing Denied Sept. 11, 1967.

      T. R. Odell, Lubbock, for appellant.
    Aldridge, Aldridge & Harding, Sam Al-dridge, Farwell, Pat Bobo, Muleshoe, for appellees.
   NORTHCUTT, Justice.

The pleadings upon which plaintiff, appellant, Floyde Heathington, went to trial sought to establish himself as a partner in the lumber business in Muleshoe, Texas. The business was first named Heathington Cash Lumber Company and later changed to Heathington Lumber Company, Inc. He alleged the partnership was between himself and his older brother, Fairris Heath-ington, with the latter owning ⅜ interest and appellant a ½ interest. The lumber company having been incorporated in June of 1964, the suit was against the corporation, the surviving widow, Mrs. Hattie Faye Heathington, individually and as executrix of the estate of Fairris Heathington, deceased, Glena Heathington, individually and as guardian of minor heirs and other heirs unnecessary to mention. Appellant also sought an accounting of the partnership.

The defendants answered pleading that there was no partnership as alleged by the plaintiff and that there was at one time an executory agreement to become partners which agreement was never fulfilled by the plaintiff. Defendants further pleaded the four-year statute of limitation and that the-joint venture or partnership that did exist had been dissolved and a winding up of the partnership business more than four years prior to the institution of this suit and that any cause that plaintiff might have had was barred by the four-year statute of limitation. Defendants further demanded of the plaintiff to produce in court any facts, evidence of debt or any payments that he had showing or tending to show that he had proving an interest in the subject matter of this suit.

The case was tried to a jury upon special issues. In answer to the special issues the jury found that in the latter part of 1947 Fairris Heathington and Floyde Heathing-ton agreed to associate as partners in the lumber business; that they did as partners open and conduct a lumber business and that they agreed that the plaintiff’s proportionate share was 1/3; that the partnership was dissolved and such dissolution occurred more than four years before October 9, 1964, the date of filing of this suit; that there was a winding up of the partnership and that such winding up occurred more than four years before the filing of this suit; that Fairris Heathington furnished or caused to be furnished to Floyde Heathing-ton a full and final accounting of the partnership affairs and was furnished more than four years before filing of this suit; that Fairris Heathington did not transfer any assets or property of the lumber business to Heathington Lumber Company, Inc. From that judgment plaintiff perfected this appeal. Hereafter the plaintiff will be referred to as appellant and the defendants as appellees.

This case was before this court once before (Heathington v. Heathington Lumber Company, 398 S.W.2d 822 [Tex.Civ.App.-Amarillo, 1966, no writ]). The trial court in the first trial dismissed the jury and rendered a take-nothing judgment against the plaintiff and he appealed and this court held that there were fact issues and the judgment was reversed. Here the jury has passed upon the issues and we think correctly so. There is no contention raised in this appeal as to there being insufficient evidence to sustain the findings of the jury. It is to be noticed that appellees in their answer requested the appellant to show where he ever put any funds of any kind in the partnership. The appellant never attempted to show that he had ever placed any funds in the partnership. The record shows that Fairris and Floyde Heathington planned a partnership to consist of $12,000 on the basis of Fairris contributing ⅜ of that sum and Floyde 1/3.

The record shows that Fairris purchased and paid for all real estate used in the lumber business and the deed was made to him and not to Floyde. About the same time as the partnership was agreed on, January 5, 1948, a loan was secured from the First National Bank of Hale Center in the sum of $4,000. The note was signed by Fairris and Floyde. It was the contention of appellees this $4,000 was to represent Floyde’s 1/3. In January of 1948 there was a credit to Floyde’s capital account of $4,000. On July 16, 1948, Fairris from his own funds paid in full the $4,000 note. On January 1, 1949, Floyde’s capital account was closed out and the $4,000 transferred to Fairris’ capital account as shown by the books of the business, thereby showing the full capital account of the partnership in Fairris. The other capital that was credited to Floyde from his profits of 1948 was closed December 31, 1949, and he was notified and tendered his profits ending on December 31, 1949. It is stated in Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App.-Dallas, 1963, writ ref’d n.r.e.) as follows:

“Rowley on Partnership, § 582 (1960 Ed.) says there are three steps in the termination of a partnership: (1) dissolution, (2) winding up and (3) termination and accounting. See also Jones v. Mitchell, Tex.Civ.App., 47 S.W.2d 371; 40 Am.Jur. 388, 393; 80 A.L.R. 15; 55 A.L.R.2d 1424.”

The jury herein found that all three of those steps were complied with herein.

In May 1949 Floyde moved from Mule-shoe to Lubbock and there is no evidence in this record that Floyde thereafter ever had any connection whatever with the Heath-ington Lumber Company or that he ever made any claim thereto until after Fairris died in August 1964.

Here we have findings of the jury and we think well justified under this, record that the partnership was dissolved more than four years before filing of this suit; that there was a winding up of the affairs of such partnership; that such winding up occurred more than four years before the filing of this suit; that Fairris Heathington furnished or caused to be furnished to Floyde Heathington a full and final accounting of the partnership affairs and that such accounting was furnished more than four years before the filing of this suit. Since none of the assets of the partnership went into the lumber company incorporated the appellant would have no interest in the corporation. Even should it be considered that there was not a dissolution wind up of the partnership affairs and a full and final accounting as found by the jury, there is nothing in this record to indicate the partnership existed after 1949. We are of the opinion, and so hold, that any claim that appellant might have had as pleaded by him is and was barred by the four-year statute of limitation. Article 5527, Subdivision 3, Vernon’s Tex.Civ.St.; Thompson v. Van Howeling, 49 S.W.2d 961 (Tex.Civ.App.-Amarillo, 1932, no writ); Hinkley v. Brewer, 274 S.W. 227 (Tex.Civ.App.-San Antonio, 1925, writ dism’d); Easley v. Clay, 16 S.W.2d 888 (Tex.Civ.App.-Fort Worth, 1929, writ dism’d).

Another interesting matter here is that Heathington Lumber Company, a corporation, was incorporated on June 11, 1964. In answer to Special Issue No. 5 the jury found that Fairris Heathington never transferred any assets or property of the lumber business to Heathington Lumber Company,. Inc. No objection was made to the submission of such issue and the answer thereto is in no way contested here. There is. nothing in this record to indicate or to prove that appellant ever furnished the $4,-000 as pleaded by him that he was to furnish in establishing the original partnership. There is evidence Fairris and Floyde agreed to form a partnership and that Floyde did work for a while in the business and wrote some checks on the business’s bank account, but from this record it is shown that all assets of the business were furnished by Fairris.

We have carefully considered each and all of the appellant’s points of error and overrule all of them. Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    Paul WEGE, Jr., Appellant, v. J. T. HARRIS and Leon Wilhelm, Appellees.
    No. 7741.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 23, 1967.
    Ochsner, Nobles & Baughman, Harold W. Ochsner, Amarillo, for appellant.
    Robinson & Fotheringham, Amarillo; Lair Williams & Cox, Canyon, for appel-lees.
   DENTON, Chief Justice.

Summary judgment was rendered for the defendants below in plaintiff’s suit for damages for the breach of an alleged express warranty arising out of a sale of 269 cows.

From the pleadings, affidavits, depositions and exhibits, it appears that between February 12 and March 1, 1965, appellant Paul Wege, Jr. purchased 269 cows from the appellees, J. T. Harris and Leon Wilhelm. Harris owned sixty of the cows jointly with Wilhelm and Wilhelm owned' the balance of the herd individually. The appellant personally inspected the cattle near Amarillo twice before he decided to purchase them. On the third trip to Amarillo he purchased 184 cows and on the fourth trip he purchased the remaining 85. Wege, who dealt only with Wilhelm, testified he informed Wilhelm he was looking for young cattle to stock a ranch in eastern Oklahoma By deposition he testified Wilhelm represented the cows to be “six years and under with a sprinkling of sevens”. After the sale was consummated the cattle were transported to Wege’s ranch in Oklahoma. He testified they “started going downhill, they started losing weight after they had been over there a while”. An examination of the cattle some two months after the sale revealed approximately 60% or 70% of the cattle had no teeth. Appellant sold the cattle in early June, 1965 and sought the difference in the amount received from such sale and the purchase price. The appellees had purchased the cattle in three different places in New Mexico during the fall preceding the sale to appellant in February and March. Wilhelm testified he did not know the age of the cattle, however for the purposes of this appeal, appellee Wilhelm concedes the statement was made that the cows were “six years and under and a sprinkling of sevens”. Appellant pleaded and asserts here the quoted statement was an express warranty by Wilhelm as to the age of the cows, and they were not suitable for the purposes for which they were purchased. No implied warranty was pleaded and none is asserted here.

In addition to the admitted statement quoted above, Wilhelm testified by deposition they were “running age cows”. This phrase was not explained. All parties conceded the age of cattle was difficult to determine; that “you could tell a two from a five by just ordinary looking”; and that the age of cattle could not be determined with any degree of exactness unless they had been known from birth. Appellant was a rancher and an experienced cattleman and as indicated, he inspected the cattle involved on several occasions prior to the purchase. He had several cows “cut back” because of diseased eyes.

The alleged warranty as to age must be distinguished from warranty of soundness of the animals. There is no contention the cows were not sound in the sense of being diseased or deformed. From the record, we conclude, under the uncon-tradicted facts and circumstances, the statement attributed to Wilhelm can not be considered an express warranty. Whether or not there is a warranty depends upon the intention of the parties. Wood v. Ross (Tex.Civ.App.) 26 S.W. 148. Fulwiler Electric Co. v. Jinks McGee & Co. (Tex.Civ.App.) 211 S.W. 480. The statement under consideration is vague and indefinite. All agreed the age of cows is rather indefinite and difficult to determine, and there is no evidence from which we can speculate with any degree of certainty when cows generally lose their teeth. No attempt was made to show the ages of the cows involved. It was shown that some thirty of them had calves when the sale was consummated and according to appellant’s own pleadings and deposition testimony, approximately 40% of them had teeth when they were checked two months after the sale. As an experienced cattleman, appellant knew cattle; he saw and inspected the cattle at least three times before making the purchases; and he admitted the difficulty in determining the age of cattle. Under this record, the representation by Wilhelm did not amount to an expressed warranty which would survive the delivery of the cattle to appellant. Easton v. Dozier (Tex.Civ.App.) 148 S.W. 603.

In reviewing this record in the light most favorable to appellant, we conclude there is no genuine issue of material fact to be determined. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. We are of the opinion the trial court correctly entered the summary judgment for the defendants below.

The judgment of the trial court is affirmed.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Forrest HACKNEY, Appellant.
    No. 52520.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, James N. Foley, Sp. Asst. Atty. Gen., Macon, for respondent.
    Charles C. Hatley, New Madrid, for appellant.
   BARRETT, Commissioner.

Upon a charge, in the language of the statute, of murder in the first degree (RS Mo 1959, § 559.010, V.A.M.S.) the appellant, Forrest Hackney, was found guilty of manslaughter (RSMo 1959, § 559.070, V.A.M. S.) and his punishment fixed at nine years’ imprisonment. RSMo 1959, § 559.140, V.A. M.S.

On Friday, December 31, 1965, Hackney and Billy Gray were drinking in the taverns near Marston, Hackney paying for the drinks, so he said. He claimed, however, that Gray was picking up and keeping the change, first a five dollar bill and two or three ones. At Howardville Hackney paid for a half pint of whiskey and in Hackney’s pickup Gray jerked a ten dollar bill out of his hand. When Hackney protested Gray “give me the ones back” but he said, “You didn’t have no ten dollar bill.” On the highway, before turning off to Hackney’s home, they had a drink from the half pint but Hackney says that “except for one sup” he didn’t drink any of the whiskey. They proceeded to Hackney’s home and this is his version of how he shot Gray, and as the coroner described it, “the whole top part of his head was blown off.” The appellant, Hackney, said that before going in the house they were already in an argument about the money. “So, I went in and put my coat and cap up and just picked up the shotgun and walked through the bedroom there, and set it here beside the door, the kitchen door and inside the bedroom. And so, I thought I would ask him for it again, and I did. He didn’t have it. And I said, ‘Why don’t you get out and go on home, and get out of the house.’ And we kept talking there and directly I went and got the shotgun and I thought maybe I would bluff him into giving my money back to me, and scare him. So, I put it on him there and covered him, and I told him to give my money, and to get out. He didn’t. I stepped back like this, and looked down, and when I did, why, he hit me in the breast there, and he was standing up there at the table and he jumped and hit me in the breast there. I stepped back a step. I was aiming to go call the Law. So, I gave him a shove, just like that, and when I give him the shove that gun went off, and I didn’t — it went off.” (Incidentally, the coroner found about four dollars in change in Gray’s clothes and folded in his watch pocket a ten dollar bill.) These circumstances, needless to say, constitute substantial evidence of the offense of manslaughter and adequately support the jury’s verdict. State v. Brookshire, Mo., 353 S.W.2d 681, 685-687.

The only point briefed by appellant’s hired counsel is this : “The court committed reversible error in admitting evidence that appellant had previously pleaded guilty to a felony involving a death involved in a car wreck when appellant had been drinking.” The cases cited by appellant’s counsel involved not prior convictions but “separate, disconnected criminal acts of a defendant on trial” (State v. Duncan, Mo., 254 S.W.2d 628, 629) as in State v. Mathis, Mo., 375 S.W.2d 196, the appellant was charged with the burglary and larceny of Rapid Auto Sales at 1210 Truman Road and the state improperly proved that on the same night Texas Traders Auto Sales, 1401 Truman Road, had also been burglarized. Other cases, cited by counsel, illustrating and pointing out the limitations and exceptions to this general rule are State v. Niehoff, Mo., 395 S.W.2d 174, 180; State v. Slaten, Mo., 252 S.W.2d 330, 334. Needless to say, this rule and these cases are inapplicable to this case and its record. As indicated, the appellant Hackney, advisedly no doubt, testified to all the facts and circumstances, there was no attempt to narrow or restrict his cross-examination. RSMo 1959, §§ 491.-070, 546.260, V.A.M.S. His prior felony record did not disqualify him as a witness, but the election to become a witness was his and having done so unqualifiedly RSMo 1959, § 491.050, V.A.M.S. applies: “Any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” Counsel’s assignment of error concedes that the cross-examination related to a prior felony conviction and there was no error in thus attacking his credibility as a witness. State v. Washington, Mo., 383 S.W.2d 518, 523.

Upon this record and assignment there was no prejudicial error and accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner. FINCH, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Raymond Paul PATRICK, Appellant.
    No. 52682.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Sp. Asst. Atty. Gen., Clayton, for respondent.
    Thomas A. Vetter, Jefferson City, for appellant.
   BARRETT, Commissioner.

The appellant, Raymond Patrick, serving a life sentence for murder in 1944 was charged with robbery with a deadly weapon and the taking of Richard Snellen’s automobile on May 31, 1966. Mr. and Mrs. Snellen live on Highway 179, Old Boon-ville Road, 12 miles west of Jefferson City, about 3½ miles from the prison farm, in Cole County. In brief the facts were that about 2 o’clock in the afternoon Patrick appeared at the Snellen home and asked for a drink of water. Mrs. Snellen gave him a glass of water and when she turned around after getting him more water “he stepped in the door and pointed that knife at me.” He first taped her wrists, made her walk to the kitchen and there he got a shotgun and shells and a rifle. When Mr. Snellen came home from work about 5:30 and approached the house Patrick warned him “That’s far enough.” Snellen had been facing the sun but finally he said, “He was standing there, looking down the barrel of the shotgun, and had it right on me.” He forced Mrs. Snellen to tape her husband’s hands and when he got them inside the house said, “I want your automobile.” Mr. Snellen, thinking to get rid of him said, “There it is. The ignition key is in it and it’s full of gas.” But Patrick did not leave, he sat around with the shotgun on his lap, ate some food, and about 10 o’clock began making preparations to leave. He taped both Mr. and Mrs. Snellen and then using a nylon cord, tied their feet and hands, gagged them and tied them to a chair. He took one gun out to the Ford automobile, then the other and then came back and “turned the light on and, * * * that’s the first time I’d seen that knife. * * * He turned the light on and he had the knife in his hand, and holding it up. When I saw the knife, I was really getting leery then. So, he came over and stood in front of me, about two foot, and he had that knife in his hands, and he stood there, I imagine, a half-minute. * * * Then he walked in the back of my chair, and I was sure, then, it was coming. But he stood back there, about a half-minute. He walks back around and goes over and tears the telephone cord out of the wall, and turned the light off and comes out by me and goes out.” He drove away in the Snellen’s automobile and on June 4, 1966, was arrested in Marceline in the automobile. These facts were developed, of course, upon his trial in which he was represented, as he is here, by court-appointed counsel. The jury found Patrick guilty “as charged in the information,” and the court fixed his punishment for this offense at 25 years’ imprisonment.

Upon motion to dismiss the information, in his motion for a new trial and here appellant’s counsel make the only possible meritorious assignment of error, that his state and federal constitutional rights to counsel at a “critical stage,” upon his preliminary hearing, were denied. It is not necessary here to again review the controlling cases in the Supreme Court of the United States; they are all collected and reviewed in the cases cited in this opinion. It should be noted at the outset, however, that while the prosecuting attorney here “formally waive (d) the imposition of the death sentence” (RSMo 1959, § 560.135, V.A.M.S.) Patrick was charged with a capital offense and that in itself is sufficient to distinguish this and many other cases concerned with the denial of counsel. Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; State v. Scott, Mo., 404 S.W.2d 699, 702. Here appellant’s counsel does not rest alone on the bare claim of no counsel upon the preliminary, he assumes that that fact alone is insufficient (State v. Turley, Mo., 416 S.W.2d 75) and so he asserts that in this case “lack of counsel at the preliminary hearing did in fact prejudice Appellant at the hearing.” (Emphasis supplied.)

As developed upon the hearing of his motion to dismiss the information these are the circumstances upon which he relies: Admittedly, Patrick did not have counsel at his preliminary and while the magistrate advised him of his right to a preliminary hearing, he did not advise him of his right to counsel and did not offer to appoint counsel. Patrick says he asked for the appointment of- a lawyer, the magistrate denies that he make such a request and simply “announced ready for trial.” The magistrate said that he “took the stand” and made a statement in his own behalf, but Patrick said, “I did not take the stand” and, of course that version is accepted for the purposes of this opinion. The testimony relied on as establishing prejudice is this:

“Q. After the State presented the witnesses, did you attempt to examine them ?
“A. I did.
* * * * * *
“Q. During your examination of these witnesses, did the Prosecuting Attorney make objections to your questions ?
“A. Not in that sense. I didn’t get a chance to ask the question because he kept cutting in on me.
******

On cross-examination:

“Q. What do you mean, the Prosecuting Attorney kept cutting in on you ?
“A. When I kept asking questions, before they would ever get the questions answered, you would keep asking questions ahead of me.
“Q. Isn’t it a fact I asked you not to make speeches?
“A. No, you didn’t say that.
******
“Q. You were arraigned on the 1st day of August and on the 15th (sic) day of August, at your request, you were given a preliminary hearing, weren’t you ? * * * And you had a chance to cross-examine any of the witnesses you wanted to, didn’t you?
“A. And I kept being cut off, too.”

Thus, as his assignment states, the appellant contends that he was “prejudiced by lack of counsel at the preliminary hearing.” There is no claim here that by reason of the lack of counsel upon his preliminary his right to a fair trial or to any other right upon the principal trial was prejudiced or infringed in any manner or even that it could have been. This is not to say that in no event can a preliminary hearing constitute a “critical stage” in a criminal proceeding, as others have pointed out “Lack of counsel at a preliminary hearing constitutes a denial of due process if under the circumstances of the case the preliminary hearing can be considered a ‘critical’ stage in the criminal proceedings, i. e., a point where the rights of the defendant may he preserved or lost.” United States ex rel. Gary v. Hendrick, D.C., 238 F.Supp. 757, 759; United States ex rel. Lamborn v. Rundle, D.C., 251 F.Supp. 766, 768; United States ex rel. Washington v. Cavell, D.C., 251 F.Supp. 779. Or, as stated in a case, Guthrie v. Boles, D.C., 261 F.Supp. 852, 856, exhaustively considering preliminary hearings and the lack of counsel, “the denial of assistance of counsel at a * * * preliminary hearing is not, per se, a federally cognizable ground for habeas corpus relief.” These rules have been recognized and recently applied in this jurisdiction; in State v. Smith, Mo., 411 S.W.2d 208, 209, speaking of the denial of counsel at a preliminary, “it would not be error to deny it in the absence of some prejudice to defendant. * * * We find nothing in the record (and appellant suggests nothing) that occurred in the Magistrate Court hearing that was prejudicial to appellant in his Circuit Court trial or that was used in the latter court.”

In the trial of this case the appellant did not testify and, for obvious reasons, he offered no testimony. The testimony of the state’s witnesses, all of them, has been narrated and throughout, upon this record, there was no reference to the preliminary hearing or to anything that happened there. The appellant denies that he “took the stand” and there was no attempt to use any incriminating acts or admissions, and so far as the preliminary was concerned “(T)he state here gained nothing and the appellant lost nothing by reason of his having no counsel at the preliminary hearing.” State v. Smith, 411 S.W.2d 1. c. 209. While appellant draws the inference from his testimony on the motion to dismiss that he was “cut off,” or that the prosecutor “kept cutting in on me,” it is not apparent just how this and the lack of counsel prejudiced him “at the preliminary hearing.” It was not alleged in his motion and it is not pointed out here, had he not been “cut off,” just what he could or would have “gained” or established or what he “lost” to the state. Thus this case and its record is distinguishable from the caveat implicit in the recent case (January 1966) of Sigler v. Bird, 354 F.2d 694, United States Court of Appeals Eighth Circuit. There Bird was charged by complaint in the County Court of Furnas County, Nebraska, with assault, felonious breaking and entering a dwelling house and malicious destruction of property. The certificate of the county judge recited that defendant “waived preliminary hearing and entered a plea of ‘guilty’ to the charge.” The County Court “held” Bird for trial in the District Court and upon the prosecutor’s filing an information “Appellee appeared for arraignment, without counsel, on October 6 and entered a plea of guilty to each charge.” Thus, unlike this case, at no stage of the proceedings did Bird have counsel. But as to the right to counsel at the preliminary the United States Court of Appeals Eighth Circuit said, “Rather, the thrust of Powell’s admonition (Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158) that an accused has a right to counsel ‘at every step in the proceedings against him’, as borne out by subsequent decisions, appears to be that, if the effectiveness of legal counsel ultimately furnished an accused is apt, or likely, to be impaired by prior denial of counsel, the time when such denial occurred was a ‘critical stage’ in the judicial process, at which time counsel should have been available to protect the constitutional rights of the accused.” It should be noted that Bird’s “guilty” plea in the county court was not used against him in the district court, nevertheless, the court.said, 354 F.2d 1. c. 698: “In summary, on the facts and circumstances presented, we hold that, since appellee’s plea of guilty at the preliminary hearing could have been introduced into evidence against him at the trial, the failure to afford him counsel at the preliminary hearing constituted a deprivation of his constitutional rights.” (Emphasis here supplied.) But, as indicated, it does not appear upon this record that Patrick made any admissions on the preliminary or that anything that may have occurred there, favorable or unfavorable, was used in his trial in the circuit court, and in these circumstances “the state here gained nothing and the appellant lost nothing by reason of his having no counsel at the preliminary hearing” and so there was no manifest prejudicial error to him in this regard. State v. Smith, supra; Guthrie v. Boles, supra; United States ex rel. Lam-born v. Rundle, supra; United States ex rel. Washington v. Cavell, supra; United States ex rel. Gary v. Hendrick, supra.

In his motion for a new trial and in his brief here appellant’s counsel preserved a second assignment of error that the court erred “in denying defendant’s motion to discharge the jury following improper closing argument by the Prosecuting Attorney.” The argument objected to is this: “I, therefore, gentlemen, ask you to go back in the jury room and consider all you have heard today, and let him take the word back to where he came from, ‘You can’t do that.’ ” The appellant contends that the underscored language was an unfair and improper calling to the “jury’s attention the status of Appellant as a convict in the Missouri State Penitentiary” and, furthermore, “called to the jury’s attention the fact that Appellant must have been convicted of previous crimes which was unduly prejudicial to Appellant in that his character was not in question,” since he did not testify upon the principal trial.

In the first place there were not the usual and proper sequence of objections and after adverse rulings requests for further curative relief on the part of the court. There was no request that the jury be instructed to disregard the statement and there was no request for a reprimand of counsel followed by a request to discharge the jury or for a mistrial in the event counsel thought the court’s action up to that point insufficient to meet his objections or to remove any possible error. The only objection was this: “I object to that. Its prejudicial to the defendant. I move the jury be discharged.” Thus, except for the generality of “It’s prejudicial,” no specific reason was given for the objection which is much broader than the assignment of error in his motion for a new trial and here. In the second place, immediately, upon counsel’s objection, the court said, “The jury will disregard the last statement made by Mr. Kinder.” And after that admonition by the court there was no request for other and further relief.

In the third place the objection and the court’s ruling must be considered in its context. Unless there was something in the appellant’s demeanor as he sat in the courtroom to disclose the fact or unless the jury inferred it from the locale and persons involved, there was nothing in the, trial proper to indicate that Patrick was an inmate of the penitentiary committing this robbery during an escape from the institution. This is not to say that all or any part of such proof was inadmissible, or admissible, it is only to say that the fact was not directly brought to the jury’s attention in any manner. The facts as to his prior convictions and place of confinement were developed on the hearing of his motion to suppress and by stipulation of counsel upon the charge of a prior conviction and the court’s fixing his punishment. And finally in this background, it does not plainly appear .that the prosecuting attorney’s argument refers to any “previous crimes” or that it carries no other connotation than the one that he was “a convict in the Missouri Penitentiary.” The argument was not, therefore, manifestly unfair and prejudicial as was the argument in State v. Mobley, Mo., 369 S.W.2d 576, and in view of the court’s prompt admonition to the jury it may not be said that the court abused its discretion in not sustaining appellant’s motion for a new trial. State v. Madden, Mo., 394 S.W.2d 317; State v. Green, Mo., 292 S.W.2d 283, 288.

For the reasons indicated the appellant is not entitled to a new trial upon his assignments of error here, there is no apparent error “upon the record before it,” the court, Criminal Rule 28.02, V.A.M.R. and, accordingly, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

DONNELLY, J., concurs.

FINCH, P. J., concurs in result in separate concurring opinion filed.

EAGER, J., concurs in result and concurs in separate concurring opinion of FINCH, P. J.

CONCURRING OPINION

FINCH, Presiding Judge.

I concur in the result reached in the principal opinion.

The rule in this state as to whether a preliminary hearing is a critical stage requiring counsel is established in such cases as State v. Turley, Mo., 416 S.W.2d 75, State v. Durham, Mo., 416 S.W.2d 79, State v. Smith, Mo., 411 S.W.2d 208, and State v. Gagallarritti, Mo., 377 S.W.2d 298. The sole purpose of a preliminary hearing by the Magistrate is to determine whether a felony has been committed and whether there is probable cause to believe that the felony was committed by defendant. State v. Smith, supra. That is all that was done here and there is no showing of anything which occurred in the preliminary hearing that was used against defendant in the trial in Circuit Court or that prejudiced defendant in that trial.

In Sigler v. Bird, 8 Cir., 354 F.2d 694, referred to in the principal opinion, the defendant waived a preliminary hearing before the County Judge (before whom preliminary hearings are held in Nebraska) and at that time entered a plea of guilty to the charge. The function of the proceeding before the County Judge is to make a determination similar to that by the Magistrate in Missouri and not to take a plea of guilty. However, the County Judge did take such a plea and entered it in his record. The court in Sigler holds that such plea of guilty could have been used later against defendant at his trial and that this made the preliminary hearing in his particular case a critical stage of the proceedings against defendant Bird, and failure to provide counsel under those circumstances deprived defendant of his constitutional rights. Nothing like that happened here.

I concur in what the principal opinion says with reference to defendant’s second assignment of error.


author: HENLEY, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. William J. HAMEL, Appellant.
    No. 52641.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for respondent.
    John W. Howald, Hillsboro, for appellant.
   HENLEY, Presiding Judge.

On May 13, 1931, appellant, hereinafter referred to as movant, entered a plea of guilty to a charge of robbery in the first degree. Thereafter, on May 22, 1931, judgment was entered sentencing him to imprisonment for his natural life. Sections 4058 and 4061, RSMo 1929.

On September 8, 1965, while in custody serving his sentence, he filed a motion in the trial court pursuant to S.Ct. Rule 27.26, V.A.M.R., to vacate and set aside that judgment and sentence, and on December 9, 1965, he filed an amended motion. Counsel was appointed to represent him; a hearing was held at which he appeared with counsel; the court made findings of fact and conclusions of law and entered an order overruling the motion. Movant appeals from that order. He is represented in this court by the same counsel, who has filed a brief and presented oral argument in his behalf.

Movant briefs three points: (1) that he was not afforded a preliminary hearing on the charge of first degree robbery and that the sentence is excessive; (2) that he was denied effective assistance of counsel; (3) that he was misled by his attorney and the prosecuting attorney and thereby induced by them to plead guilty.

The trial judge hearing the evidence adduced on this motion reasonably could find the facts to he as follows. The movant was charged by a complaint filed by the prosecuting attorney in justice of peace court with robbery in the second degree, and that it was on this charge that he was afforded a preliminary examination; that the information thereafter filed in the Circuit court of Jefferson county charged him, under the Habitual Criminal Act, with robbery in the first degree. On May 11, 1931, he appeared for arraignment, without counsel; he waived formal arraignment and entered a plea of not guilty; the court appointed counsel for him and set the case for trial for May 13. On the latter day he appeared with his counsel, announced ready for trial, a jury was selected and sworn, and the trial proceeded with the state presenting the testimony of two or three witnesses. At this point movant’s counsel, with his permission, withdrew the plea of not guilty and entered a plea of guilty to the crime charged in the information; the jury was discharged, and the cause was passed to May 22 for sentencing. On that date, he again appeared with his counsel, allocution was granted, and he was sentenced to imprisonment for life.

By the time this motion to vacate was heard, E. M. Dearing, the Circuit Judge who accepted movant’s plea of guilty in 1931; the court reporter, Claude Jarvis; the prosecuting attorney, Sam McKay; and movant’s former counsel, R. E. Klein-schmidt, were all dead. The only former court official now living shown to know anything about the facts was Carl Clark,. Sheriff of Jefferson county in 1931, and he, understandably, could recall little more than that movant had signed a written confession to the crime charged; he recalled also that movant’s trial was begun before a jury; that several state’s witnesses were heard; and that the trial was interrupted to permit him to enter a plea of guilty. He remembered Mr. Kleinschmidt as an effective, able lawyer with considerable experience.

Movant does not contend that he is innocent. As a matter of fact, he more or less continues to admit his guilt; he testified : “ * * * I think I have paid a tremendous debt to society for what I have done, and if the Court sees fit I would like to have another chance at life * * He further testified that shortly after his arrest a confession was “typed up,” but that he did not sign it; that he requested the assistance of counsel on May 11, 1931, but counsel was not appointed until the morning of his trial, after the jury was selected; that he had only a few minutes to confer with counsel before the state’s witnesses testified; that wjien he appeared in Circuit court on May 11, Judge Dearing “ * * * read that I was being charged with the crime of robbery, and I don’t remember all the details of it * * *”; that no one ever told him the exact nature of the charge and the punishment which could be imposed; that after the witnesses testified, his attorney said: “It looks pretty bad * * * if you enter a plea of guilty they will let you off for twenty years;” that he told his attorney he would plead guilty if the punishment was only twenty years; that he did enter a plea of guilty, after his attorney had conferred with the Judge and Prosecuting Attorney and reported back to him that “everything is all fixed”; that his attorney was not present on the day he was sentenced and the prosecuting attorney made no recommendation to the judge; that the judge originally sentenced him to death by hanging, but, “First, he asked me if I had anything to say and I told him none other than what transpired in the court room the other day, that I entered a plea with the understanding that my time wouldn’t exceed twenty years, and he said ‘Denied.’ And then he said, ‘I will sentence you the remainder of your natural life.’ ”

His first point is in two parts: (1) that he was not afforded a preliminary examination in justice of peace court on the charge of robbery in the first degree, and (2) that the sentence of life imprisonment is excessive. He bases these contentions on these premises: that the complaint filed in justice of peace court charged robbery in the second degree for which the maximum sentence was five years; that it was on this charge only that he was afforded a preliminary examination, not robbery in the first degree for which he could be sentenced to life imprisonment; that the information charging first degree robbery was unauthorized, because he had not been afforded a preliminary examination on that charge; that the information should be considered as charging second degree robbery only and his plea of guilty should be considered as being to that charge only; therefore, his sentence to life imprisonment is excessive.

There is no merit in this point. By announcing ready and proceeding to trial on the charge of first degree robbery and, after hearing at least a part of the state’s evidence, by entering a plea of guilty to that charge, defendant waived any objection he might have had that he had not been afforded a preliminary examination on robbery in the first degree. State v. Gee, Mo., 408 S.W.2d 1, 2 [2]; State v. Richardson, Mo., 347 S.W.2d 165, 169 [7,8]; State v. Shaw, Mo., 357 S.W.2d 894, 896 [3], The sentence to life imprisonment was authorized by § 4061, RSMo 1929 (now § 560.135, RSMo 1959, V.A.M.S.), and is not excessive.

His next point is that he was denied effective assistance of counsel in that (1) counsel was not appointed until two days before trial date, (2) that he had no opportunity to confer with counsel until the morning of the trial, and (3) his counsel was not present when he was sentenced. The fact that counsel was appointed two days before trial, and the claim, if true, that he had no opportunity to confer with counsel until the morning of trial do not, of themselves, show conclusively that he was thereby deprived of effective assistance of counsel. The time and effort required to prepare for trial varies with the nature of the charge and counsel’s familiarity with the facts and applicable law. The burden of proof is on movant to show that more time for preparation was in fact needed; that it was requested and denied. He does not attempt to prove that more time was needed, nor does he contend that more time was requested and denied. In these circumstances we may assume that had more time been required his counsel would have applied for a continuance and, on a proper showing, that the court would have sustained the application. We may not assume the contrary. Movant is in no position to complain of want of time for preparation where he did not ask for it. State v. McMillian, Mo., 383 S.W.2d 721, 722 [1]; State v. Stucker, 352 Mo. 1056, 180 S.W.2d 719, 720 [4],

His contention that his counsel was not present when he was sentenced is closely allied to and will be discussed in connection with the third and last point in his brief. First, we note that the court record of May 22, 1931, the day of sentencing, shows that movant’s attorney was present representing him when allocution was granted and sentence imposed.

In his last point he contends that he was persuaded to plead guilty by promises and assurance from his attorney (after his attorney had conferred with and secured the agreement of the judge and prosecuting attorney) that if he would do so his sentence would not exceed twenty years’ imprisonment. He asserts the presence of his attorney at sentencing was necessary for the purpose of enforcing this agreement and, if it were not to be honored, for the purpose of protecting his rights by moving to withdraw the plea of guilty.

The burden is on movant to prove the allegations of his motion to set aside the judgment and sentence, State v. Washington, Mo., 399 S.W.2d 109, 112 [7], and the court is not bound to accept as true that which the records in his original case, made more than thirty years ago, show to be erroneous or untrue. State v. Harris, Mo., 382 S.W.2d 642, 643 [1]; State v. Ninemires, Mo., 306 S.W.2d 527, 531 [12]. The trial judge found that movant’s attorney was present when he was sentenced. The judge obviously did not believe mov-ant’s testimony that his attorney was not present when he was sentenced and that he was induced to plead guilty by a promise that his sentence would not exceed twenty years. The judge was not bound to accept his testimony as true; nor are we. He did not meet his burden and the point is denied.

While it is necessary that one convicted of crime in violation of constitutional rights be accorded immediate relief, it is equally necessary for the protection of society against false claims that reasonable diligence be exercised to present claims of violation of such rights. The right to petition for the writ of habeas corpus was available to movant the day he began his sentence; the more simple method provided by S.Ct. Rule 27.26 has been available to him for at least one-third of the time he has spent serving his sentence. During this period of time witnesses have become unavailable and recollections have dimmed; those whom he asserts were parties to the alleged assurance and agreement that his sentence would not exceed twenty years are now dead; their mouths are closed to deny his assertion. Yet he offers no explanation for his inordinate delay in seeking post-conviction relief.

While a motion under Rule 27.26 may be filed at any time and the doctrine of laches is inapplicable, Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, it must be recognized that lapse of time may be considered in determining the good faith and credibility of one seeking post-conviction relief.

We concur fully with the findings of the trial court. Accordingly, the judgment is affirmed.

All concur.