text:
    Santiago Torres HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 38770.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Claude R. Bailey, B. F. Patterson, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Charles T. Conway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is rape; the punishment, 10 years confinement in the penitentiary.

At the time of the offense, the prosecu-trix, Mrs. Elida Velasquez, was a married woman IS years old. On October 17, 1964, she had visited her sister in Bexar County, Texas, and she left her sister’s house about midnight. As she was walking alone about one block from her sister’s house, she saw appellant and a companion standing beside a car with the doors open. She had never before seen either man. As she walked in another direction, going home, the pair got into the car and drove up beside her. Appellant’s companion held his hand over the prosecutrix’s mouth, placed a straight razor at her throat, and said, “You better get in the car or else I am going to cut you up.” Appellant remained in the car during this transaction.

The prosecutrix testified that she was placed between appellant and his companion in the front seat, and that her head was pushed down so that she could not see where they were going. While appellant’s companion drove, appellant fondled the prosecutrix. After driving for approximately 30 minutes, during which the assailants did very little talking, the car stopped in a deserted spot on a dirt road, where appellant forcibly removed the prose-cutrix’s clothes and forced her into the back seat, taking the razor with him. She struggled with appellant and cried, but no one came to her aid. The prosecutrix further testified that, without her consent, appellant completed two acts of intercourse with her and the other man completed three acts of intercourse with her.

Deputy Sheriff Daniel G. Alonzo testified that he was on patrol in Bexar County on the night of October 17-18, 1964, and that he came upon an automobile occupied by appellant, another man, and the prosecutrix; that both men were drunk, and that the prosecutrix was sober. He further stated that while searching the two assailants, a straight razor was found on the ground near appellant’s feet. This razor was identified by the prosecutrix as “like that one” used to induce her to get in the car, and later to submit to appellant and his companion. In the automobile, the deputy found five cases of beer and eleven packages of smoking tobacco. He further testified that, within a few minutes after his arrival at the scene, the prosecutrix related to him the events set out above.

Dr. Ruben Santos, Deputy Medical Examiner of Bexar County, testified that he examined the prosecutrix on October 18, 1964, and that the contents of her vagina demonstrated a large amount of spermatozoa.

We find the evidence sufficient to sustain the jury’s verdict.

There were no objections to the court’s charge and no special instructions were requested.

There are four formal bills of exception brought forth by appellant. Notice of appeal was given on May 7, 1965, and the bills of exception were filed on September 8, 1965. These bills of exception, filed 124 days after notice of appeal was given, are not before this court for review. Article 760d, Vernon’s Ann. C.C.P.; Preble v. State, Tex.Cr.App., 374 S.W.2d 444. The record reflects that an extension of time for filing bills of exception was granted appellant. There is no statutory provision authorizing such an extension. Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838. We do observe, however, that no reversible error is reflected in any of these bills.

An examination of appellant’s informal bills of exception reveals that they are without merit.

The judgment is affirmed.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Wesley Elmo KRUEGER, Appellant, v. The STATE of Texas, Appellee.
    No. 38866.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, ten days in jail and a fine of $200.

The statement of facts accompanying the record has not been approved either by the counsel for the state or by the trial court. The sole approval is by counsel for the appellant. Therefore, the statement of facts cannot be considered by this court. Art. 759a, Vernon’s Ann.C.C.P.; Colburn v. State, Tex.Cr.App., 381 S.W.2d 70.

There being nothing which can be considered in the absence of a statement of facts, the judgment of the trial court is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Margarito CALDERON, Appellant, v. The STATE of Texas, Appellee.
    No. 38825.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    Joseph L. Nanus, Edinburg (Court Appointed Attorney), for appellant.
    R. L. Lattimore, Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is statutory rape; the punishment, five years.

The prosecutrix testified that she became acquainted with appellant and his wife during the cotton picking season -in the summer of 1964, that thereafter she visited in their home, that in December of that year appellant had intercourse with her while his wife was out of the house, that upon her return, appellant’s wife washed and ironed her dress to remove the blood stains which resulted from her first act of intercourse, and that she had further acts with him until her pregnancy was discovered in the following April. She testified that she became 16 years of age one month before her first act of intercourse and that she had never had intercourse with another man.

Her father testified that he never allowed prosecutrix to go out at night except to visit appellant and his wife, who lived nearby and whom he considered safe.

It is unnecessary to recount appellant’s wife’s denial that any act of intercourse had taken place between appellant and prosecutrix in her house, because appellant, testifying in his own behalf, admitted that he had many acts of intercourse with prose-cutrix both in the cotton field and in the alley in back of his home at a time when undisputed evidence shows that she was 15 years old.

The court charged the jury on the defense of prior unchastity and no objections were leveled to such charge.

The jury chose to accept the testimony of the prosecutrix and reject that of appellant, and we overrule his contention that the State’s testimony does not comport with human experience.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.


author: DICE, Commissioner.

text:
    William D. TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 39077.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    No attorney on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Speeding is the offense; the punishment, a fine of $100.

Appellant’s conviction resulted from a trial de novo in County Court at Law No. 1 of Travis County, after an appeal from a conviction in the Corporation Court of the City of Austin.

This court’s jurisdiction in appeals originating in the Corporation Court is limited to convictions where the fine assessed exceeds $100. Art. 53, Vernon’s Ann.C.C.P.; Hoover v. State, Tex.Cr.App., 355 S.W.2d 527; Butler v. State, Tex.Cr.App., 363 S.W.2d 469.

The appeal is dismissed.

Opinion approved by the court.


author: McDONALD, Presiding Judge.

text:
    Annie EALIM and Bennie Clark, Jr., Appellants, v. The STATE of Texas, Appellee.
    No. 38570.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1965.
    On Motion to Reinstate Appeal Dee. 15, 1965.

      J. T. Maroney, Jr., Lufkin; William D. Winston and C. E. Brazil, Lufkin (on appeal), for appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellants were convicted of burglary of a private residence at night with intent to commit theft. The punishment of each was assessed at five years confinement in the Texas Department of Corrections.

The recognizance found in the record is not in compliance with Art. 817, Vernon’s Ann.C.C.P. Among other things, it does not contain a provision that appellants are to abide the judgment of the Court of Criminal Appeals. For this Court to acquire jurisdiction of an appeal from a felony conviction, the bond or recognizance upon which the appellant was enlarged must bind him to abide the judgment of the Court of Criminal Appeals in the case appealed. Salter v. State, 159 Tex.Cr.R. 482, 264 S.W.2d 719 and cases there cited.

The appeal is dismissed.

ON MOTION TO RE-INSTATE APPPEAL

By supplemental transcript, it is shown that appellants have properly entered into a recognizance in compliance with Article 817, V.A.C.C.P., and the record is properly before this Court for review. The appeal is re-instated.

An examination of the statement of facts does not disclose that it was ever filed with the clerk of the trial court as is required by Article 759a, V.A.C.C.P. The statement of facts therefore cannot be considered as a part of the appellate record. Reed v. State, Tex.Cr.App., 373 S.W.2d 687; Salyer v. State, 166 Tex.Cr.R. 532, 316 S.W.2d 420.

No formal bills of exception are contained in the transcript.

As all proceedings appear to be regular, the judgment is affirmed.


text:
    A. C. ELEBY, Appellant, v. The STATE of Texas, Appellee.
    No. 38939.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Clayton Malone, Livingston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon his plea of guilty and waiver of a trial by jury, of the offense of unlawfully hunting wild deer at night with an artificial light and his punishment was assessed at thirty days in jail and a fine of $50.

It is insisted that the judgment is void because it was rendered while the court was in vacation.

The judgment is shown to have been rendered in the cause on October 19, 1964.

The caption found in the transcript recites that the case came on for trial “At a term of the County Court, begun and holden within and for the County of Polk, at Livingston, Texas, on the 1st day of August, A.D. 1964, and which adjourns on the 31st day of October, A.D. 1964 * * ‡ tt

Art. 5, Sec. 29, of Vernon’s Ann.St. Constitution of Texas, provides, in part, that the county courts of this state shall “hold at least four terms for both civil and criminal business annually, as may be provided by the Legislature, or by the Commissioners’ Court of the county under authority of law, and such other terms each year as may be fixed by the Commissioners’ Court; * * * Until otherwise provided, the terms of the County Court shall be held on the first Mondays in February, May, August and November, and may remain in session three weeks.”

Under this constitutional provision, the commissioners’ court is authorized to fix the terms of a county court.

The certified copy appearing in the transcript of an order of the commissioners’ court, dated February 11, 1963, fixing two terms of the county court, to run from January 1 to June 30 and from July 1 to December 31, 1963, is not proof that the court did not subsequently enter an order fixing the term of court as set out in the caption of the transcript. After the expiration of one year the commissioners’ court would be authorized to fix new terms of the county court. Art. 5, Sec. 29, supra; Art. 1961, Vernon’s Ann. Civ.St.

Smith v. State, 147 Tex.Cr.R. 585, 183 S.W.2d 175, cited by appellant, is not here controlling, because in that case it was affirmatively shown that the commissioners’ court had not provided for or fixed terms of the county court.

Under the record, the judgment is not shown to be void.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Daniel JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 38913.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1965.
    No attorney of record on appeal for appellant.
    Stanley C. Kirk, Dist. Atty., Jim Phagan and Thomas F. Keever, Asst. Dist. Attys., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary of a private residence at nighttime; the punishment, five years.

No statement of facts accompanies the record.

There are three formal bills of exception. The complaints in each bill pertain to the admission of evidence, but none of them shows that it contains all of the evidence on the question raised by the bill. Bishop v. State, 160 Tex.Cr.R. 333, 269 S.W.2d 372. In the absence of a statement of facts these bills cannot be considered. Price v. State, Tex.Cr.App., 378 S.W.2d 312.

The judgment is affirmed.

Opinion approved by the Court.


author: DIXON, Chief Justice.

text:
    The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellant, v. James R. McGEE, Appellee.
    No. 16607.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1965.
    Rehearing Denied Nov. 26, 1965.

      Bailey & Williams, Dallas, for appellant.
    Woodruff, Hill, Bader & Kendall, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee James R. McGee brought suit against his employer, The Great Atlantic and Pacific Tea Company, appellant for damages because of personal injuries sustained by appellee in the course of his employment on the employer’s premises and alleged to have been caused by the employer’s negligence.

Appellant, though eligible, was not a subscriber to the Workmen’s Compensation Act of the State of Texas. Therefore, the defenses of contributory negligence and assumed risk are not available to appellant. Art. 8306, Sections 1 and 4, Vernon’s Ann.Civ.St. As employer appellant was obligated to exercise care to provide appellee a reasonably safe place to work. Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238.

A jury returned a verdict finding that the failure of appellant to have sawdust or some other absorbent material on the floor of the cutting room at the entrance to the cooling room in the meat market area was negligence and was a proximate cause of the occurrence in question.

Appellee was employed as a meat cutter. One Saturday morning at about 11:20 o’clock he was working alone in the meat market department. At the time of his injury he was carrying three boxes of chickens, weighing one hundred fifty pounds or more. He was leaving the cooling room on his way to the cutting room, where the chickens were to be cut up, packaged and made ready for display in the counter fronting the meat market department. There is a step-down from the cooling room to the cutting room. As he stepped down from the cooling room floor onto the cutting room floor his right foot went out from under him, his left leg went back under him and he fell to the floor, his hip hitting the wall close to the door facing. The three boxes of chickens fell on him. When he arose bloody water was on his hand.

At the time of the accident there was sawdust over the entire floor of the cooling room except for a small space in front of the doorway leading to the cutting room. There was no sawdust at all on the floor of the cutting room except for a small area around the cutting block and around the saw.

The evidence is undisputed that sawdust does reduce the hazard of slipping and falling in the meat market area where blood, water, suet and other moist substances drip to the floor from the meats. In the cooling room huge parts of beef and other meats hang from a rail which runs across the room. These parts have to be taken from the rack and carried to the cutting block and the saw in the cutting room.

Appellant’s ten points on appeal all center around its contention that there was either no evidence or there was insufficient evidence to support the jury’s findings of negligence and proximate cause. Therefore, according to appellant it was error for the court to overrule appellant’s motion for judgment non obstante veredicto and its motion to disregard the jury’s answers; and error to render judgment on the jury verdict.

We do not agree with appellant. There is ample evidence to support the jury verdict. It is undisputed that there was no sawdust in the cooling room near the door leading to the cutting room. It is undisputed that there was no sawdust in the cutting room except around the cutting block and the saw, which were some distance from the doorway. It is undisputed that the bare floor areas in both rooms near the connecting doorway were slippery.

In others of appellant’s stores in which appellee had worked sawdust had been spread over all parts of both the cooling room and the cutting room. Appellee testified that he was told by the meat department manager that there had been a change of policy in this regard in this particular store on order of the supervisor, and that after the change of policy sawdust was used in the cutting room only around the cutting block and the saw — for one reason, because it was cheaper. The market manager’s testimony in substance corroborates appellee.

Appellant seeks to invoke the “no duty” doctrine as expounded in the opinion of our Supreme Court in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378, and in an article entitled “Assumption of Risk” by Justice Greenhill in 28 Texas Bar Journal No. 1 at page 21, January 22, 1965.

That doctrine is not applicable here. It pertains to open and obvious dangers where the question to be decided is the liability of the occupier of premises for injuries to an invitee. In the Halepeska opinion at page 377 the Supreme Court case of Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238 is cited. In that case it is expressly held that the “no duty” concept is not applicable in a master-servant situation.

Since it was the duty of appellant to provide appellee a reasonably safe place in which to work, and since there was evidence that the use of sawdust was curtailed on order of appellant, we find that there was sufficient evidence to support the jury’s verdict of negligence on the part of appellant which negligence was a proximate cause of the injuries sustained by appellee.

Appellant’s points on appeal are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: BATEMAN, Justice.

text:
    Russell H. SITTON et ux., Appellants, v. AMERICAN TITLE COMPANY OF DALLAS et al., Appellees.
    No. 16594.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1965.
    Rehearing Denied Dec. 3, 1965.

      Phil Burleson, Abney & Burleson, and Charles Ben Howell, Dallas, for appellants.
    Goldberg & Alexander, James A. Baker, June R. Welch, Witts & Ewing, Blair Rugh and Lawrence Vance, Dallas, for appellees.
   BATEMAN, Justice.

The appellants Russell H. Sitton and wife brought this suit for actual and exemplary damages alleging that they were the victims of an unlawful conspiracy between the defendants by which they both suffered extensive emotionally induced physical injuries, including the recurrence to Mr. Sitton of a childhood speech impediment; it being also alleged that among other ill effects Mrs. Sitton on one occasion became so emotionally overwrought by the situation that she fell from a moving automobile and sustained serious injuries. The defendants, who are the appellees here, were American Title Company of Dallas, Katherine H. Brown and husband, Jarvis L. Brown (Mrs. Brown being alleged to have been a notary public and manager, vice-president and alter ego of American Title Company), the American Insurance Company, alleged to have been the surety on the bond given by Mrs. Brown as a notary public; Leonard Cooksey Duckworth, a licensed real estate broker trading as Leonard Duckworth Agency; Trinity Universal Insurance Company, surety on Duckworth’s bond as real estate broker; Harry Clifton Summer, Jr., a licensed real estate broker and vice-president of Duckworth Agency; Lawyers Surety Corporation, surety on Summer’s bond as real estate broker; and Mr. and Mrs. Walter J. Moorman.

The appellants alleged that they agreed to exchange their home at 331 Andover Drive in Mesquite, Texas, on which was a mortgage securing a first lien note in favor of T. J. Bettes Company, insured and guaranteed by the Veterans Administration, for a home owned by Walter J. Moorman; that the transaction was handled by Summer as sales manager of the Duckworth Agency; that pursuant to arrangements made by that agency appellants went to the offices of American Title Company of Dallas, met with its vice-president, Katherine Brown, and executed a deed conveying their home to Moorman, leaving the deed with Mrs. Brown for further handling; that this deed provided that as part of the consideration therefor the grantee assumed and agreed to pay the balance owing on appellants’ mortgage note; that thereafter, in order to defeat Moorman’s liability to assume appellants’ note his name was erased after appellants had executed the deed, and the name of one Trout was substituted therefor. They further alleged that Trout failed to pay the monthly installments on the note and the property was foreclosed, resulting in a substantial deficiency which they were called upon by the Veterans Administration and T. J. Bettes Company to pay; that they, being of limited education, became very frightened and emotionally upset over these developments, the loss of Mr. Sitton’s veteran’s benefits and the numerous demands by mail and telephone that the deficiency be paid, all of which resulted in the physical injuries which, together with the deficiency they were called upon to pay, were made the basis of their claim for damages.

The court sustained American Insurance Company’s motion for summary judgment and this was affirmed in Sitton v. American Insurance Co., Tex.Civ.App., 390 S.W.2d 34.

The case was submitted to the jury on numerous special issues, all of which were answered favorably to appellants, after which the court rendered judgment non ob-stante veredicto that appellants take nothing. In appealing to this court they assign fourteen points of error.

The appellee Moorman has filed a motion to strike and disregard all of appellants’ points of error as being multifarious, too general and insufficient under Rule 418, Vernon’s Texas Rules of Civil Procedure. While this motion points up numerous inadequacies and defects in appellants’ points of error, after reading the statements and arguments thereunder, we are of the opinion that the points do inform the court and opposing counsel of the contentions made by appellants. The motion is therefore overruled. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478; Rule 422, T.R.C.P.

Facts

Appellants pitch their case entirely on their contention that all of the appellees (except the sureties on the notary’s and real estate brokers’ bonds) conspired to effect the alteration of their deed, after they had signed it, in order to deprive them of a valuable right, viz., the assumption by Moor-man of the balance owing on their mortgage indebtedness, to their great loss and damage because, while Moorman was a man of financial means and would have paid the debt, the substitute grantee, Trout, was of such poor financial worth that he did not pay the debt and could not be compelled to do so.

The contract of exchange, signed by Moorman and the appellants, was dated July 14, 1962 and provided that Moorman and wife sold and agreed to convey unto appellants their property known as 2219 Pleasant Drive, Dallas, Texas for a purchase price of $11,500, and that the Moor-mans would take in trade appellants’ home located at 331 Andover Drive, Mesquite, Texas, allowing them credit “for all down payment and closing costs in amount not to exceed $700.00.” This contract did not specify the balance owing by appellants on their property, and it did not provide that Moorman would assume or agree to pay any such balance. This exchange of properties was arranged for by the appellee Summer and another employee of the Duck-worth Agency. Appellants testified that they were assured by these two employees and Mrs. Brown that Moorman would assume the debt.

Appellants went to the American Title Company’s branch office, where they met with the appellee Mrs. Brown, vice-president and manager of the branch office of the title company, and where they signed the deed conveying their property to the appellee Moorman. The deed recited as part of the consideration the assumption of, and the agreement “by the Grantee herein” to pay, the unpaid balance owing on the note given by appellants, in the original principal sum of $10,450, when they purchased the property. This deed was dated September 7, 1962. At some subsequent time the names of Moorman and his wife were erased in the four places where they appeared in the deed and the names W. R. Trout and wife, Joanne Trout, substituted therefor. There is some dispute in the testimony as to whether this erasure and alteration were made prior or subsequent to the signatures by appellants to the deed, but the jury found, and for the purposes of this opinion we shall assume, that it was done subsequently. Moorman called someone at the office of the title company and requested that the names of W. R. Trout and his wife be inserted as the grantees in the deed in lieu of his and his wife’s names. Trout was an employee of Moorman’s plumbing company. This substitution was made by someone in the office of the title company. Trout failed to pay the installment due on appellants’ note on May 1, 1963 and appellants thereafter, beginning in June 1963, began receiving letters from the Veterans Administration demanding payment, threatening foreclosure and telling appellants that unless they made satisfactory arrangements for curing the default they would lose their property and their credit standing in the community would be seriously affected and, in addition, that if the property should sell at foreclosure sale for less than the debt, they might become indebted to the United States Government for the deficiency. The property was foreclosed on in February 1964, and the Veterans Administration notified appellant Sitton by letter dated June 5, 1964 that he owed an indebtedness of $524.95 plus 4% interest because of the foreclosure on the property. This letter also contained this statement:

“You may request a waiver of this debt if you feel this obligation arose out of compelling reason without fault on your part, and collection of the indebtedness would work a severe hardship on you or your family.”

Sitton did not reply to that letter, and about six weeks later received another letter from the Veterans Administration dated July 20, 1964, remarking that no reply had been received to its former letter and that the debt “must be paid,” and stating that:

“Government regulations place a definite limit upon the time during which the Veterans Administration may handle the collection of debts before the matter is referred to the General Accounting Office for action, including referral to the Department of Justice, if required.”

These and other communications from the Veterans Administration and T. J. Bettes Company caused the great emotional upheaval which appellants say caused the physical impairments which form the basis of their demand for damages in this case. Mrs. Sitton first learned of the foreclosure about April 1, 1964, and when she told her husband of it she became “terribly upset” and fell out of the car door and sustained rather serious injuries necessitating heavy medical expenses.

Opinion

Underlying this claim is the supposition by appellants that Moorman had in some way assumed their indebtedness and agreed to pay it, but that the defendants conspired together to nullify that obligation by causing the Moormans’ names to be erased from the deed (it being provided in the deed that the named grantee assumed the debt and agreed to pay it) and substituting therefor the name of Trout, who had a very poor credit rating and who defaulted.

In the first place, we find no evidence in the record, and our attention is directed to none, that any of the appellees conspired with any of the others to do any act having the effect of nullifying any enforceable agreement on the part of Moor-man to assume or pay the balance owing on appellants’ indebtedness. Neither do we find evidence that any two or more of them engaged in concerted action to accomplish any such purpose or agreed to do so. For that reason alone, appellants’ case falls, for they assert liability exclusively on the theory of conspiracy, and no conspiracy is shown to exist in the absence of proof that two or more persons have combined or agreed to accomplish by concerted action some unlawful purpose, or to accomplish some lawful purpose by unlawful means. Great Nat’l Life Insurance Co. v. Chapa, Tex.Sup.Ct., 1964, 377 S.W.2d 632; Kingsbery v. Phillips Petroleum Co., Tex.Civ.App., 315 S.W.2d 561, wr. ref. n. r. e.

When we examine the evidence to determine whether in fact Moorman made any such enforceable agreement, all we find to that effect is the testimony of one McMaster, a loan service representative of the Veterans Administration, who testified on cross-examination that during his investigation in November 1964 Moorman told him that he had assumed the Sittons’ indebtedness in connection with their exchange of houses. While this may have constituted some evidence of the fact as against Moorman, it was clearly hearsay as to the other alleged conspirators.

There is no direct evidence, as distinguished from the foregoing evidence of admissions against interest, that Moorman ever agreed to pay or assume the debt, or that he ever accepted a deed reciting any such obligation on his part. Appellants argue that Mrs. Brown, who was present when they signed the deed, accepted it as Moorman’s agent. However, we find no evidence that Moorman ever authorized Mrs. Brown to act as his agent in that respect, or that he ratified anything she did purporting to act as his agent. In fact, we find no evidence that Moorman ever knew that the deed contained the provision for assumption of the debt by the grantee named therein. The substitution of Trout’s name for his as grantee was done at his request while the deed was still in possession of the title company and before it had been delivered to anyone. Moreover, neither we nor the appellants have a right to assume that if Moorman’s name had remained as grantee in the deed he would have accepted it. The written contract of exchange did not obligate him to do so, and appellants make no effort in this suit to enforce any such obligation. Their suit is strictly one in tort for damages.

Appellees contend that even if there had been a conspiracy between them to do the wrongful act of which they are accused, the emotional disturbances and resulting injuries could not have been anticipated or foreseen by them and are therefore too remote to form the basis of a recovery against them. In reply appellants say that, since this is not a negligence case, it was not necessary for them to prove proximate cause. They contend that this case is similar to, and should be governed by the principles of law announced in, cases like Thompson v. Hodges, Tex.Civ.App., 237 S.W.2d 757, wr. ref. n. r. e., where the plaintiff, a railroad worker, was assaulted by his yard master; and Eastern Texas Electric Co. v. Baker, Tex.Civ.App., 238 S.W. 335, reversed on other grounds Tex.Com.App., 254 S.W. 933, where a colored passenger in a streetcar was kicked by the conductor in a ruction over seating arrangements. It was held in those and other cases that proximate cause is not an issue where the injury or damage is inflicted willfully or intentionally, for in such a case the actor is presumed to have intended the consequences. 40 Tex.Jur.2d, Negligence, § 17, p. 468.

The rule is well stated as follows in 25 C.J.S. Damages § 25b, p. 489:

“In the case of willful torts the wrongdoer is responsible for the direct and immediate consequences regardless of whether they might have been contemplated, foreseen, or expected. Where the act is criminal or unlawful, the wrongdoer is held liable not only for immediate and natural consequences but for all such consequential injuries as might reasonably be anticipated as the probable result of the wrongful act .” (Italics ours.)

But that is not to say that the perpetrator of a willful, wrongful, or even criminal act is liable in damages for every harm, no matter how remote, that might be related to the act complained of. A defendant in such a case cannot be held responsible for remote consequential injuries that could not have been reasonably anticipated as a probable result of his act.

Appellants cite a number of cases, beginning with Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, to establish the now well settled rule that recovery may be had for fright, accompanied by physical injury, caused by the defendant’s deliberate or negligent act; but in each of those cases it was also held that the complainant was under the necessity of showing that the defendant’s act was a proximate cause of the fright and injury and that the injury ought, in the light of all the circumstances, to have been foreseen as a natural and probable consequence thereof. One of the cases relied on by appellants is St. Louis & S. W. Ry. Co. of Texas v. Thompson, 102 Tex. 89, 113 S.W. 144, wherein Thompson sued several defendants as conspirators to recover damages, alleging they wrongfully and maliciously caused him to be expelled from his union, and wherein the Supreme Court held that if he could prove his expulsion was wrongful he would be entitled to recover against the conspirators “all damages which naturally flowed from such expulsion.”

Appellants became interested in Moorman’s house at 2219 Pleasant Drive in the summer of 1962 and the exchange was effected in September 1962. Apparently Trout paid the installments due on the Sit-tons’ mortgage for several months, for the record is clear that the installments due each month until May 1, 1963 were paid. The letters which so upset the Sittons didn’t start coming to them until some time in June 1963, after which four notices of foreclosure sales were posted to take place in October, November and December, 1963, with the foreclosure actually occurring in February 1964. At no time did appellants accept the Veterans Administration’s invitation to request a waiver of the debt on the ground that the obligation for the deficiency arose without fault on their part and that its collection would work a severe hardship on them. Under these circumstances, can the appellants’ injuries properly be said to have “naturally flowed” from the alteration of the deed? Were they “directly or immediately caused by the wrongful act”? We think each of these questions must be answered in the negative.

Appellants’ Points of Error Nos. 1, 2, 3, 5, 6, 7, 8 and 9 assert error of the trial court in making certain “holdings” in the rendition of the judgment. We find no such “holdings” in the transcript; the judgment merely recites that the court is of the opinion that the defendants are entitled to judgment as a matter of law. It is our view that the evidence admits of no judgment other than that rendered, and that it must therefore be affirmed, regardless of the grounds or reasons the trial court may have thought controlling. 4 Tex.Jur.2d, Appeal and Error—Civil, p. 437, § 861; Fant v. Sullivan, Tex.Civ.App., 152 S.W. 515, 522, wr. ref.

Point No. 4 says the court erred in holding that there was no evidence to support any of the jury’s findings that the deed in question was altered as a result of a conspiracy between Summer, Brown and Moor-man, or any of them. This holding is implicit in the judgment rendered, and it should be clear from what we have said above that we agree that there was no such evidence.

The first nine points of error are overruled.

Their tenth point does not comply with Rule 418(b), T.R.C.P., in that it fails to direct our attention to any error relied on for reversal. It merely asserts that appellants are entitled to recover exemplary damages because they were injured by the unauthorized practice of law by the Title Company and Mrs. Brown; and then attacks the constitutionality of Article 9.01, Texas Insurance Code, V.A.T.S., insofar as it provides that title companies may supervise signing of legal, instruments, deliver instruments and “close deals”. By this point appellants attempt for the first time to raise an issue not mentioned in the pleadings or evidence in the trial court. Moreover, we see no merit in the point and overrule it.

By their Points of Error Nos. 11 and 12 appellants complain (11) of the refusal of the trial court to submit their requested Special Issues 18, 19, 19-A and 20 inquiring as to the amount of the deficiency due under the note in question after the foreclosure, and in rejecting Mrs. Sitton’s testimony as to payments thereon, and (12), alternatively, of the failure of the trial court to render judgment for the foreclosure deficiency, the amount thereof being un-controverted. Appellants having relied exclusively on the theory of conspiracy to establish any liability against appellees, and this court having held that there was no evidence of a conspiracy to alter the deed in question, or of alteration of the deed as a result of conspiracy, it follows that there was no reversible error in rejecting either the special issues or the testimony, or in failing to render judgment for appellants for the foreclosure deficiency. Points 11 and 12 are overruled.

Like their tenth point, appellants’ Points of Error 13 and 14 fail to complain of any specific error of the trial court. They merely assert that the judgment non obstante veredicto, having been rendered on grounds other than those specified in the motions therefor, and in the face of evidence of probative force supporting the verdict, was contrary to the laws of procedure and denied appellants due process and the equal protection of law guaranteed to them by Article 1, §§ IS and 19, of the Texas Constitution, Vernon’s Ann.St. and the Seventh and Fourteenth Amendments to the United States Constitution. The argument under these points does no more than trace the evolution of the jury system from its nebulous origins in the hazy mists of antiquity, extol its many virtues and accuse the trial court generally of substituting its fact determination for that of the jury. Our attention is directed to no specific evidence supporting any part of the verdict; nor is it demonstrated how appellants’ said constitutional rights were violated. Our examination of the record discloses to us no such evidence and no such violation. Therefore, we say again that the motions for directed verdict should have been sustained and that the judgment n. o. v. was correct. Rule 301, T.R.C.P.; Bolin v. Pacific Finance Co., Tex.Civ.App., 278 S.W.2d 879, no wr. hist. Points 13 and 14 are overruled.

All of the appellees except Lawyers Surety Corporation have filed numerous cross points which are entitled to, and have received, our careful attention. However, being of the opinion that a recitation of the testimony, special issues and jury argument complained of, together with a full discussion of our views thereon, would add nothing to an understanding of this case or be of “importance to the jurisprudence of the State,” Rule 452, T.R.C.P., we merely indicate below our decision on each of these cross points.

Cross points of appellees American Title Company of Dallas, Katherine and Jarvis Brown:

Nos. 1, 6, 7, 8 and 9 are overruled.
Nos. 2, 3, 4 and 5 are sustained.
No. 10, being submitted conditionally on reversal, is not considered.

Cross points of appellees Duckworth, Summer and Trinity Universal Insurance Company:

Nos. 1, 2, 3, 4, 5, 6, 7 and 8 are overruled.
Nos. 9 and 10, being submitted conditionally on reversal, are not considered.

Cross points of appellee Moorman:

Nos. 1, 2, 3, 4, 7 and 10 are overruled.
Nos. 5, 6, 8 and 9 are sustained.

As we read this record, the trial court gave appellants every reasonable opportunity to make out a case against the appellees. We agree with the trial court that they failed to do so. The judgment is therefore

Affirmed.


author: DAVIS, Justice.

text:
    Carmen HOLDER, a widow, Appellant, v. Howard L. SCOTT, Appellee.
    No. 7670.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 19, 1965.
    On Motion for Rehearing Nov. 23, 1965.
    Rehearing Denied Nov. 23, 1965.

      Wm. V. Brown, Jr., Brown & Brown, Texarkana, for appellant.
    C. M. Kennedy, Texarkana, for appellee.
   DAVIS, Justice.

Plaintiff-appellee, Howard L. Scott, filed suit in the Fifth Judicial District Court of Bowie County, Texas, against defendant-appellant, Carmen Holder, a widow, in the nature of a partition suit involving about five acres of land. The parties will be referred to as in the trial court.

Plaintiff and defendant were formerly husband and wife. They married in Tex-arkana, Arkansas, on March 9, 1930, and lived together until October 22, 1932. On April 28, 1931, they acquired the 5 acre tract of land. They lived in Texarkana, Bowie County, Texas. Plaintiff left defendant and went to Garland County, Arkansas, for the express purpose of getting a divorce, where he filed a suit on or about January 24, 1933. A judgment of divorce was granted to plaintiff, on Citation by Publication, on Feb. 28, 1933.

The defendant filed a suit for divorce and a division of the community property against plaintiff in the 102nd Judicial District Court of Bowie County, Texas, on Feb. 28, 1933. Mr. Scott was served with Citation by Publication. Judgment of divorce was granted to Mrs. Scott on March 23, 1933, and the community property was therein partitioned. According to the judgment as entered in the 102nd Judicial District Court of Bowie County, plaintiff was awarded the five acre tract of land that is involved in this suit as her separate property, free from any rights or claims. The judgment also awarded to Mr. Scott a $2,000.00 diamond ring, a $1400.00 automobile, and a radio of the value of $100.00.

It appears that the plaintiff, in the year 1934, filed a suit in the Fifth Judicial District Court of Bowie County, Texas, to set aside the judgment of divorce and partition of the community property that was entered by the 102nd Judicial District Court of Bowie County, Texas. The attorney who represented the plaintiff in that proceedings made the statement in a letter dated July 23, 1934, that the judgment “ * * * can be set aside by a proceedings brought in the same court in which it was rendered.” Yet, he filed the suit in the Fifth Judicial District Court of Bowie County, Texas, and cited Mrs. Carmen Scott Holder by Citation by Publication.

It seems that Mr. Scott was not a resident of Bowie County, Texas, at any time after his separation from the defendant, but the record shows that he paid taxes on the property that is involved in this suit. The defendant also paid the taxes.

The plaintiff alleged that he and the defendant were the joint owners of the five acre tract of land that was described in his petition, and that each party was entitled to one-half of the same. Plaintiff alleged the value of the property to be $6,000.00. Defendant denied the allegation and alleged that she was the sole owner of said land.

Plaintiff demanded an abstract of title from the defendant which was furnished, showing that she claimed title to the property under the judgment of the 102nd Judicial District Court of Bowie County, Texas. The defendant demanded an abstract of title and the plaintiff furnished one, showing that he claimed title to the property under the divorce decree of the Chancery Court of Garland County, Arkansas; and, under a divorce decree in the 102nd Judicial District Court of Bowie County, Texas, and a judgment of the Fifth Judicial District Court of Bowie County, Texas, setting aside the divorce decree of the 102nd Judicial District Court of Bowie County, Texas. After all the evidence was in, defendant filed a motion for judgment in her favor. The court overruled defendant’s motion and she excepted. The court entered a judgment for the plaintiff. Defendant excepted and gave notice of appeal. She brings forward four points of error.

By her points, defendant says the trial court erred in not granting her motion for judgment; there is no evidence upon which the trial court could find for the plaintiff; in holding the Arkansas Judgment a valid judgment; and in holding that the 102nd Judicial District Court of Bowie County, Texas, was without jurisdiction and could not grant defendant a divorce and partition the community property; and, in holding that the judgment of the Fifth Judicial District Court of Bowie County, Texas, had jurisdiction to set aside and nullify the judgment rendered by the 102nd Judicial District Court of Bowie County, Texas.

In a partition suit, a plaintiff must plead and prove title to the tract of land involved. There is no stipulation or proof of a common source of title, but it was stipulated that the land described in plaintiff’s original petition is the land that is involved in the controversy. The plaintiff, anticipating that the defendant would offer in evidence the judgment of the 102nd Judicial District Court of Bowie County, Texas, offered in evidence a divorce judgment that was rendered by the Chancery Court of Garland County, Arkansas. This judgment was offered for the purpose of attempting to show that the plaintiff still owned an undivided interest in and to the title to the land that he was seeking to partition. There was no objections to the judgment, but the defendant took the position that the judgment was void because it was acquired through fraud. Defendant then offered in evidence a judgment of divorce and partition of the community property of the 102nd Judicial District Court of Bowie County, Texas. The plaintiff offered in evidence a judgment of the Fifth Judicial District Court of Bowie County, Texas, which judgment purportedly set aside the judgment of the 102nd Judicial District Court of Bowie County, Texas.

The plaintiff testified in the case that his wife asked him for a divorce. He then testified that they had an agreement that he would go to Arkansas and establish residence for a divorce and they would “split the sale of that property if and when it sold”. The plaintiff also testified as follows :

“Q. You didn’t let Mrs. Holder know where you were at that time did you?
“A. No.
“Q. I believe you said on cross examination to Mr. Brown that the reason you went to Hot Springs to file this, divorce suit was at the request of your wife.
“A. We had discussed it together and had agreed on it.
“Q. Did you have any agreement about the property you owned?
“A. Yes.
“Q. An oral agreement ?
“A. On community property.
“Q. What agreement did you have with her — oral agreement?
“A. That I would go up and establish for divorce. After she asked me for divorce, I said I would go up and . establish for divorce, and we would split the sale of that property if and when it sold. * * * ”

Yet, in the face of this testimony, defendant filed a suit for divorce and a division of the community property in the 102nd Judicial District Court of Bowie County, Texas. Bearing in mind that the judgment of divorce and partition of the community property was granted in the 102nd Judicial District Court of Bowie County, Texas, on March 23, 1933, the defendant testified that he knew about the suit within two years. He testified as follows:

“Q. You knew Mrs. Scott brought this suit in the 102nd District Court, did you not?
“A. I knew it previous to 1934.”
Hi ‡ ‡ % ‡ sfc
“Q. You learned about this in less than two years after the divorce was granted, did you not ? The divorce was granted on the 27th day of March, 1933, and you learned of it prior to July, 1934, did you not ?
“A. That’s right.”

The plaintiff offered in evidence a letter written to him by an attorney. The letter, dated July 23, 1934, in which the lawyer advised the plaintiff that he would have to take proceedings in the same court in which the judgment was rendered. This seems to be the law. The 102nd Judicial District Court of Bowie County, Texas, had jurisdiction of the parties and the property. If the plaintiff had wanted to take any action to set the judgment aside, he could have filed motion for new trial in the same court in which the judgment was rendered within two years. Citation being by Publication. Such was the law as provided by Art. 2236, Vernon’s Ann.Civ. St., now Rule 329, Vernon’s Texas Rules of Civil Procedure; 34 T.J.2d 25, Sec. 191. The judgment in Cause No. 2003 styled “H. L. Scott v. Mrs. Carmen Holder, et al” in the Fifth Judicial District Court of Bowie County, Texas, is a nullity and was void from the date of entry. A suit, in such a case, to set aside a judgment must be filed in the same court in which the judgment was rendered. If the judgment of the 102nd Judicial District Court of Bowie County, Texas, was voidable, the judgment has become final and could only be set aside by bill of review in the same court in which the judgment was rendered. 33 T.J.2d 694, Sec. 164; 33 T.J.2d 686, Sec. 157; 33 T.J.2d 687, Sec. 158.

The plaintiff takes the position that we must give full faith and credit to the judgment of the Chancery Court of Garland County, Arkansas. He cites in support thereof Williams et al. v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L. Ed. 279, 143 A.L.R. 1273. In that case, the conviction of O. B. Williams and Lillie Shaver Hendrix for bigamous cohabitation was reversed and remanded. Apparently the case was tried again and resulted in another appeal to the U.S. Supreme Court. In that case, a conviction for bigamous cohabitation was affirmed. Williams et al. v. State of North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed 1577, 157 A.L.R. 1366. In the last case the Court said:

“Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domi-cil.”

In Dyer v. Johnson, CCA (1929), 19 S.W.2d 421, wr. dism., the court said:

“We think that the Texas authorities hold that a judgment entered by a sister state, sued on in this state may be set aside for fraud in the obtaining of the judgment.”

The judgment of the Chancery Court of Garland County, Arkansas, was acquired through a fraud that was perpetrated upon the court.

The plaintiff did not plead the judgment of the Chancery Court of Garland County, Arkansas; neither did he plead res adjudicata or estoppel. Neither did he plead the laws of the State of Arkansas or offer them in evidence. In the absence of such pleading and proof of the laws of a sister state, the laws of that state are presumed to be the same as the laws of Texas. Blethen v. Bonner, Tex.Civ.App., 52 S.W. 571, aff’d. 93 Tex. 141, 53 S.W. 1016; Clardy v. Wilson, 24 Tex.Civ.App. 196, 58 S.W. 52; James v. James, 81 Tex. 373, 16 S.W. 1087; Temp el v. Dodge, 89 Tex. 69, 32 S.W. 514, 33 S.W. 222; Armendiaz v. De La Serna, 40 Tex. 291; Bradshaw v. Mayfield, 18 Tex. 21. If such is the case, the plaintiff was not a resident of the State of Arkansas for one full year prior to filing the suit and of the County of Garland for six months prior thereto. Such is the requirement as provided by Art. 4631 V.T.C.S.

If such is not the law, and we are required to examine the laws of the State of Arkansas, it is necessary also to examine the Statement of Facts. According to the laws of Arkansas in 1933, a person must have established a bona fide residence for a period of at least 30 days prior to filing the suit. According to such law, the person must remain there at least 90 days before the decree of divorce can be granted. This is necessary to give the Arkansas court jurisdiction over the plaintiff. The plaintiff testified that he went to Arkansas for the express purpose of getting a divorce. That he had not been in Arkansas for two weeks prior to the time he filed his suit. The suit was filed on January 24, 1933. The divorce was granted on February 28, 1933. This is less than two months. He further testified that he left Arkansas immediately after the divorce was granted. If such was the case, the judgment of divorce as granted in the State of Arkansas is a nullity and is void. Deal v. Deal (1948), 212 Ark. 958, 208 S.W.2d 782; Gilmore v. Gilmore (1942), 204 Ark. 643, 164 S.W.2d 446; Cassen v. Cassen (1947), 211 Ark. 582, 201 S.W.2d 585. The points are sustained.

The judgment of the trial court is reversed and judgment is here rendered that the appellee take nothing.

ON MOTION FOR REHEARING

The appellee has filed a motion for rehearing. He takes the position that it was stipulated in the trial court that the divorce decree that was entered in Arkansas was a valid decree of divorce between the parties. Appellee attached a certificate by the trial judge to his brief in support of the motion for re-hearing. We will note that the statement of facts as filed in the case contains a certificate of the court reporter, an approval of both the attorneys, and a certificate by the district judge. This court is without jurisdiction to go behind the statement of facts. Gist v. Holt (1943 CCA), 173 S.W.2d 216, W.R., W.M.; Johnson v. Brown (1948 CCA), 218 S.W.2d 317, E.R., N.R.E.; Hawkins v. Western National Bank of Hereford (1912 CCA), 145 S.W. 722, Er. Dism’d; Lawyers Surety Corporation v. San Angelo Tank Car Line, Ltd. (1963 CCA), 365 S.W.2d 212, N.W.H.; 3 T.J.2d 647, Sec. 393.

Appellant took the position in the trial court that the judgment of divorce which was entered by the Arkansas court was void. After the judgment was offered in evidence, appellant, in effect, made a collateral attack upon the same and proved that the judgment was acquired through an act of fraud on the Arkansas Court. Appellant is not bound by the void judgment of the State of Arkansas. 34 T.J.2d 393, Sec. 373.

Much has been written on void judgment. A void judgment is just no judgment at all. It is a nullity and has no force or effect whatever. It is not necessary to take any steps to have a void judgment reversed, vacated or set aside. It may be impeached in any action direct or collateral. 2 Speer’s Marital Rights in Texas, Fourth Edition, 580, Sec. 755; 34 T.J.2d 94, Sec. 227; 34 T.J.2d 177, Sec. 262; 49 C.J.S. Judgments § 434, p. 859; 30A Am. J. 197, Sec. 45. A void judgment cannot be cured by subsequent proceeding. 30A Am. J. 199, Sec. 46.

A careful consideration has been given the Motion for Re-hearing, and the same is- respectfully overruled.


author: CLAUDE WILLIAMS, Justice.

text:
    Johnny Preston WILLIAMS, Jr., et al., Appellants, v. Wilbur HILL, Appellee.
    No. 16628.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 19, 1965.

      Ronald R. Waldie and Irwin Massman, Dallas, for appellants.
    Bailey & Williams and G. David West-fall, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This is an appeal from a summary judgment. The suit was originally instituted by Johnny Preston Williams, Jr., Richard Stanley Dickerson and Franklin Dickerson, as plaintiffs, against Wilbur Hill, as defendant, seeking to recover property damage and personal injuries allegedly sustained as a result of an automobile collision. The trial court sustained a summary judgment against Johnny Preston Williams, Jr. and Richard Stanley Dickerson and severed the cause of action of those two plaintiffs from that of Franklin Dickerson. The appeal of Johnny Preston Williams, Jr. and Richard Stanley Dickerson from the summary judgment against them was dismissed by us. Williams v. Hill, Tex.Civ.App., 392 S.W.2d 759.

The trial court then sustained a motion for summary judgment against Franklin Dickerson and he attacks that decree in this appeal, contending in his sole point of error that the evidence considered by the court raised a material fact issue.

In his second amended original answer Wilbur Hill alleged that Franklin Dickerson had released any and all claims incurred. In his motion for summary judgment Hill attaches the release executed by Franklin Dickerson on June 9, 1964 and also an affidavit of Timothy M. Carr, in which he states that Dickerson signed the release in his presence. The release appears to be regular in form and recites that Dickerson acknowledges receipt of the sum of $10, which sum is accepted in full settlement and satisfaction of, and as sole consideration for the full release and discharge of, all claims, actions and demands whatsoever, against Wilbur Hill on account of the injuries and property damage growing out of an accident which occurred on May 16, 1964. By first supplemental petition Dickerson alleged, under oath, “no consideration existed or passed to said plaintiff.” In his answer to the motion for summary judgment Dickerson alleged that there was a genuine fact question relating to the “sufficiency of the consideration” and “that the deposition of Timothy M. Carr, referred to in defendant’s motion for summary judgment contains genuine issues of fact relating to fraud * * *.” In his affidavit attached to his answer to the motion for summary judgment Dickerson states that “no consideration existed or passed to me” and “further that Timothy M. Carr’s deposition, referred to in defendant’s said motion for summary judgment raises inferences of fraud perpetrated'upon me.” •The deposition of Carr does not appear in this record.

We hold that the court’s action in sustaining this motion for summary judgment was correct. We recognize the rule, now well established in our law, that the burden of proving the nonexistence of issuable facts is upon the party moving for summary judgment, and all doubts as to existence of such facts must be resolved against the movant. The law is also well settled that when the moving party presents extrinsic evidence which establishes the absence of issues of fact then the burden is upon the opposing party to come forward with affidavits or other extrinsic evidence to oppose the motion. Such opposing affidavits are insufficient when they are made in the form of a mere general denial, or based on hearsay, or consist of statements that are nothing more than mere conclusions. 45 Tex.Jur.2d § 137, p. 613.

In this case appellee pleaded a written release executed by appellant as a bar to appellant’s cause of action. Appellant did not deny the execution of the release but attempted to avoid the effect of same by contending that it was not supported by consideration. A written instrument reciting a consideration imports one. Miers & Rose v. Trevino, Tex.Civ.App., 213 S.W. 715, err. ref. This rule is applicable to releases as well as other kinds of contracts. Warren v. Gentry, 21 Tex.Civ.App. 151, 50 S.W. 1025; Texas Central Ry. Co. v. Shirley, 62 Tex.Civ.App. 158, 130 S.W. 687. To offset this legal pre sumption of consideration it was incumbent upon appellant to present evidence legally admissible on the question of lack of consideration. This .he attempted to do, not by statements of fact which would be admissible in evidence upon the trial of the case, but by mere conclusions of law. His statements in his affidavit that “no consideration existed or passed to me” and that Carr’s deposition “raises inferences of fraud perpetrated upon me” are clearly recitations of legal conclusions and not statements of fact. What constitutes a consideration for a contract is a question of law. Whether inferences of fraud are available to vitiate a contract amounts to questions of law and not of fact. Since such statements would not be legally admissible on the trial of the case it necessarily follows that they cannot now support the proposition that they created issues of fact. Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Allen v. Western Alliance Ins. Co., 162 Tex. 572, 349 S.W.2d 590; Sparkman v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, wr. ref.; Schepps v. American District Telegraph Co. of Texas, Tex.Civ.App., 286 S.W.2d 684.

Finally, appellant assails the release because the same was not witnessed nor executed before a notary public. No authority has been cited in support of this novel contention. We know of no law which requires a release such as the one revealed by this record to be either witnessed or executed before a notary public.

Finding no reversible error reflected by this record the judgment of the trial court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Edward PRINCE, Jr., et al., Relators, v. Paul G. PEURIFOY, Judge, et al., Respondents.
    No. 16711.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 5, 1965.

      Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for relators.
    Thompson, Knight, Wright & Simmons, Richard E. Gray and Jerry L. Buchmeyer, Dallas, for respondents.
   PER CURIAM.

Relators Edward Prince, Jr., George Cloudy, David R. Steetle, William E. Shell, David L. Brown and Patrick H. Poe have filed an application praying for a writ of mandamus directing Respondent Paul G. Peurifoy, Judge of the 95th District Court of Dallas County, Texas, to enter on the minutes of the court a form of written judgment with a writ of inquiry, which judgment Judge Peurifoy has signed but refuses to have entered on the minutes of the court. Also named as respondents are Texas Instruments Incorporated and Geophysical Service, Inc., both of Dallas County.

The record discloses that on August 6, 1965 Texas Instruments Incorporated and its wholly owned subsidiary, Geophysical Service, Inc., as' plaintiffs, filed suit for injunction and damages against relators, all of whom are former employees of plaintiffs. In their petition plaintiffs allege that they are engaged in the business of geophysical exploration, a highly technical business, in the development of which they acquired various trade secrets and confidential and proprietary business information; that the defendants, relators here, as employees of plaintiffs were in positions of confidence and trust and were instructed and trained in and had access to plaintiffs’ trade secrets and proprietary information; and while in the employment of plaintiffs said defendants conspired to appropriate and did appropriate plaintiffs’ trade secrets and conspired to enter and did later enter into a competitive business — all in violation of their fiduciary relationship with plaintiffs to the latter’s great damage.

On August 16, 1965 relators as defendants in said suit filed their answer and cross-action. Rules 85 and 97, Texas Rules of Civil Procedure. In the latter pleading relators as cross-plaintiffs sought judgment in their own behalf for damages because of plaintiffs’ alleged false and malicious statements as set out in plaintiffs’ petition and otherwise publicized; and because of the willful interference by plaintiffs of the defendants’ business relationship with another company, which relationship defendants had established after their resignations as employees of plaintiffs — all of which constituted unfair competition and caused defendants great damage for which they prayed judgment in their cross-action.

Relators as cross-plaintiffs caused citation to issue on their cross-action and the citation was served on plaintiffs, the return date named being September 13, 1965.

On September 14, 1965 relators as cross-plaintiffs, having ascertained that plaintiffs had not filed a written answer to the cross-action, presented to Judge Peurifoy a written form of default judgment with a writ of inquiry, which Judge Peurifoy signed.

On September 16, 1965 plaintiffs filed a written answer to defendants’ cross-action.

The facts as above stated are undisputed. But the parties are not in agreement as to some of the particulars relative to the signing of the judgment.

In the record is an affidavit by Judge Peurifoy in which he states that on September 14, 1965 the deputy clerk presented him with a stack of judgments to be signed, among them being the form of default judgment with a writ here in controversy; that he inadvertently and accidentally signed the judgment; that he discovered his mistake immediately and laid the signed instrument aside, as he never intended to sign it and he did not deliver it to the clerk to be put on the minutes; that he never at any time announced or rendered default judgment on the cross-action; and that at the request of defendants’ counsel he entered on the docket sheet in his own handwriting the following notation: “9-14-65 ■ — Defendants requested default on cross-action. Held under advisement.”

A photostatic copy of the docket sheet is reproduced in the record and it shows the above notation.

In answer to Judge Peurifoy’s affidavit three affidavits were filed in behalf of defendants — two by attorneys for defendants and one by the attorneys’ secretary. The gist of their affidavits is that when it was learned on September 14, 1965 that plaintiffs had not filed a written answer to the cross-action one of the attorneys, who was in trial in another matter at the court house, dictated the form of judgment over the telephone to the secretary. A second attorney then brought the typed instrument to the court house and presented it to Judge Peurifoy and the judge signed it.

The two attorneys in their affidavits further state that they were not told by Judge Peurifoy that he had signed the judgment inadvertently and by mistake. However, the attorney who presented the typed document to Judge Peurifoy on September 14, 1965 stated in his affidavit that after signing the judgment Judge Peurifoy took the file from the clerk, looked at it and said, “I am going to have to think about this a little bit,” and then took the file and the signed judgment into his office.

Judge Peurifoy in a second affidavit says that he does not question the attorney’s sincerity, but that he, Judge Peurifoy, had given his best recollection as he remembered it. He reiterated that at no time had he pronounced a judgment on the cross-action.

OPINION

We have concluded that the relators’ application for writ of mandamus must be denied.

Relators take the position that in order to prevent a judgment by default with a writ of inquiry in the cross-action it was necessary for respondents as cross-defendants to file a written answer to the cross-action on or before September 13, 1965, the return day named in the citation served on respondents. In this relators are in error.

A formal written answer by respondents to relators’ cross-action was not necessary. Kemp v. Westbrook, Tex.Civ.App., 358 S.W.2d 889, 894; Jones v. Kelley, Tex.Civ.App., 91 S.W.2d 969, 973; Overland Automobile Co. v. Cleveland, Tex.Civ.App., 250 S.W. 453; Taylor v. Ward, Tex.Civ.App., 102 S.W. 465; 52 Tex.Jur.2d 266.

Our Supreme Court has held that a defendant is not authorized to take a default judgment which adjudicates against the plaintiff the merits of the suit; and that a default judgment so taken is not merely voidable, but is void. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 431, 433.

Relators also take the view that since more than thirty days have elapsed since the judgment was signed it has become a final judgment over which Judge Peurifoy no longer has control under Rule 329-b, subd. 5, T.R.C.P. Therefore the judge has no discretionary authority to set aside, alter or amend the judgment, but is required as a ministerial act to see that it is placed on the minutes of the court. Again relators are in error.

Rule 301, T.R.C.P. provides that only one final judgment shall be rendered in any cause except where it is otherwise provided by law. Even in cases where the issues and causes of action are severable separate trials result only in interlocutory judgments, not final judgments, unless there has been a severance of the causes of action. Kirkland v. Martin, Tex.Civ.App., 376 S.W.2d 819; Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200; Harris v. Superior Ins. Co., Tex.Civ.App., 322 S.W.2d 665, 667; McCormack v. Morgan, Tex.Civ.App., 306 S.W.2d 439; Myers v. Smitherman, Tex.Civ.App., 279 S.W.2d 173; Dunn v. Tillman, Tex.Civ.App., 271 S.W.2d 702; Gallaher v. City Transportation Co. of Dallas, Tex.Civ.App., 262 S.W.2d 807 (writ refused). In this case relators do not claim that there has been a severance of the cross-action from the cause asserted by plaintiffs. A judgment solely on a cross-action without disposing of plaintiffs’ cause of action is not a final judgment. Dimerling v. Grodhaus, 152 Tex. 548, 261 S.W.2d 561. The same is true when a judgment is rendered on plaintiff’s cause of action without disposing of a cross-action. Browning v. Gomez et al., Tex.Civ.App., 315 S.W.2d 79, 81-82; Palmer v. Jeter, Tex.Civ.App., 339 S.W.2d 563.

In Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11, 19, our Supreme Court was dealing chiefly with the question of severability of issues and separate trials. But it does state in substance that there can be only one final judgment in a case, and that a separate trial without severance results only in an interlocutory judgment.

Since the judgment on the cross-action is merely an interlocutory judgment, Judge Peurifoy still retains control of it even if it were to be recognized as a valid interlocutory order. He has discretionary authority to change his mind about the order, set it aside, amend it, or refuse to take whatever further steps may be necessary to make it a complete interlocutory order. And this control of the inter locutor}»' judgment may be exercised by the judge at any time before the judgment on the merits of the whole case becomes final, or until the cross-action is properly severed from the rest of the case. Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281; Beard Drilling, Inc. v. Steeger, Tex.Civ.App., 361 S.W.2d 888, 897; Bachman Center Corp. v. Sale, Tex.Civ.App., 359 S.W.2d 290, 292; 33 Tex.Jur.2d 687.

This court is without power to compel a district judge by writ of mandamus to do any act involving or requiring an act which is discretionary on his part. Walker v. Lindsey, Tex.Civ.App., 298 S.W.2d 195; Houston Fire & Casualty Ins. Co. v. Gerhardt, Tex.Civ.App., 281 S.W.2d 176; Panhandle & S. F. Ry. Co. v. Denton, Tex.Civ.App., 280 S.W.2d 941; Texas Employers’ Ins. Ass’n v. Stephenson, Tex.Civ.App., 178 S.W.2d 883; Yantis v. McCallum, Tex.Civ.App., 121 S.W.2d 610; Templeton v. Small, Tex.Civ.App., 37 S.W.2d 262.

The conflicts in the factual statements contained in the affidavits of the judge and those offered in behalf of relators are not as great as they might seem at first glance. The affidavits of the judge and of the attorney who obtained the signature of the judge are in substantial agreement as to this: The judge, immediately after signing the document, took it back from the clerk. The docket sheet annotation recites that the judgment was “Held under advisement.” The attorney’s affidavit quotes the judge as saying that “I will have to think about this a little bit.”

If it be said that these are material conflicts in the affidavits as to the facts we must point out that such conflicts furnish an additional reason for our refusal of the application for mandamus. Ferris v. Carlson, Tex.Civ.App., 314 S.W.2d 295, 298; Brown v. Walker, Tex.Civ.App., 376 S.W.2d 854.

The application for writ of mandamus is denied.

      . We do not pass on the question whether relators’ cause of action in this case is severable, for that question is not before us.


author: SHARPE, Justice.

text:
    NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant, v. Ben H. TOWLER, Jr., et ux., Appellees.
    No. 115.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 4, 1965.

      Robert M. Davant, Jr., Houston, for appellant.
    Lawrence P. Gwin, of Bell, Gwin & Furse, Bay City, for appellees.
   SHARPE, Justice.

This appeal is from a judgment in a condemnation case in which Natural Gas Pipeline Company of America, appellant, condemned a right-of-way easement across a tract in Matagorda County, containing 42.64 acres, belonging to Ben H. Towler, Jr., and wife, appellees, for the purpose of constructing, operating and maintaining a gas pipeline.

Judgment was rendered in favor of ap-pellees for $3,350.00, based upon a jury verdict of four special issues which were answered in substance as follows: (1) the market value of the strip taken for the right-of-way easement (50 by 1500 feet), consisting of 1.74 acres, immediately before the taking on November 24, 1963, was $700.00, (2) the market value of said strip immediately after the taking of said easement was $350.00, (3) the market value of the remaining 40.9 acres of appellees’ tract immediately before the taking of such easement was $20,500.00, and (4) the market value of appellees’ remainder immediately after the taking .of the easement was $17,-500.00. The effect of the verdict was to allow $350.00 for the easement taken across 1.74 acres and $3,000.00 as damages to the remaining 40.9 acres of appellees’ tract.

Appellant urges four points of error in substance as follows: As to special issues 3 and 4, concerning damages to the remainder,^ (1) there is no evidence and (2) the evidence is factually insufficient to raise and support the same, (3) failure to disregard such issues and the answers thereto, and (4) refusal to allow appellant’s value witness to testify as to comparable sales.

The tract here involved is rectangular in shape, fronts approximately 1875 feet on State Highway 35 and is approximately 1400 feet deep. The pipeline easement taken by appellant runs diagonally across the tract for a distance of 1500 feet, entering it at about 350 feet from the southwest corner and leaving at about 900 feet from the northwest corner. About one-third of the tract is west of the pipeline easement and about two-thirds to the east thereof. There is an existing gas pipeline easement to the west of the one in question at varying distances from about 300 to 400 feet. Also, there is an existing crude oil pipeline easement running along the front of the tract next to said State Highway 35. All of such facts are shown by a large plat offered in evidence by the condemnor.

Only two expert witnesses testified concerning values of the remainder before and after the taking of the easement in question. Mr. M. L. Hale, appellant’s value witness, testified that there was no difference in such value. Mr. Burt O’Connell, appellees’ value witness, testified that the value of the remainder was $20,500.00 before and $17,500.00 after the taking.

Appellant’s basic contention under its points one, two and three is that the only testimony which can be looked to in support of the issues and judgment rendered for damages to the remainder is the testimony of Mr. O’Connell. Appellant says that such testimony amounts to no more than a naked, unsupported opinion or conclusion and is insufficient legally and factually to raise and support the issues of damage as to the remainder. We do not agree with such contentions and hold that the judgment should be affirmed.

Mr. O’Connell testified in substance as follows: He is engaged in the real estate business, has an office in Bay City, Texas; that he has been a licensed real estate broker since 1953; that he engaged in such business part-time after 1953 and recently has been devoting full time to it; that he has lived all of his life in the vicinity of Van Vleck and Bay City and knows well the land in such area and that of Sugar Valley, in or near which the tract here involved is situated. He further testified that the elevation of the land in such area varies and the higher areas make desirable home sites; that the land in question is close to Caney creek, is on a higher elevation and rich in quality. He said that he had gone out to the land, had inspected it and knew it well enough to have an opinion as to its market value. He testified that the value of the strip (50 by 1500 feet) for the easement was $740.00 before and $340.-00 after the taking, or a difference in value of $400.00. The jury awarded $350.-00 for such easement. Mr. O’Connell also testified that the remainder of appellees’ tract had a value of $20,500.00 before and $17,500.00 after the taking. The jury findings resulted in an award of $3,000.00 for such remainder. Mr. O’Connell said, in substance, that the highest and best use for the land would be for home sites for which there was a great demand. During his testimony, Mr O’Connell referred to the plat which had been offered in evidence by appellant. O’Connell was not cross-examined by counsel for appellant.

Prior to the testimony of Mr. O’Connell, the condemnor offered the testimony of the witnesses Ellis Pierson, W. B. Bounds, John McCain and M. L. Hale. Pierson was employed by appellant in its land right-of-way departments. He testified that he was familiar with the land in question and the easement acquired; that he had been unable to agree with Mr. Towler as to the price to be paid him; that the line had been installed and was a gathering line used to transmit gas to the main line south of Highway 35. Bounds was district pipeline superintendent for appellant. He testified that the gas line across appellees’ property was an eight inch line; that the pressure on it was between 600 and 700 pounds per square inch, and as to details of the pipe and tests made on it; that the back fill over where the pipe was installed would sink and require some time to settle; that the condem-nor under the easement could go on the land for the purposes of construction, repairing and restoring the line; that such a line can have leaks, most of which occur around a weld; that the lines are frequently inspected in order to discover leaks as soon as possible; that aerial inspection will disclose a brown area over a leak, which usually is discoloration of grass; that some suspected leaks turn out to be vines; there is a difference between a leak and a break; that a break would be apt to develop a fire more than a leak; that the leaks his company had, that he knew about, were not serious; that the pipe installed on the instant tract came from Illinois and was reconditioned ; that the pipe used was a good grade of pipe; that it works within a safety factor of approximately one-third of the bursting factor; that he saw the instant pipe tested at 975 pounds, but didn’t see it tested at a higher figure; that his company did not have breaks; that welds are the most vulnerable part; and that leaks are easily repaired. He had heard of a recent case where there was a break in a gas line and a pretty destructive fire. John McCain was pipe line maintenance foreman for appellant. He testified that he was chief inspector on the Sugar Valley job; that ap-pellees’ land was levelled but the grass had not completely grown back after installation of the pipe; that he crossed Texaco six and eight inch lines running parallel to the road (apparently highway 35); that a Houston Pipeline Company 12-inch line parallels appellant’s line. He identified a large plat showing such lines and testified as to measurements made by him on the ground. He further said that a patrol plane flies over the line every two weeks and if anything wrong is observed a report is made and checked out; that they also ride by and check it about once a month; that Mr. Towler’s house is nearby on another tract. He also testified as to details of installation of the line.

M. L. Hale was the condemnor’s expert value witness. He testified that he had lived in Bay City for about 42 years; that he had been a real estate broker for about 13 years; that he had been engaged in buying and selling of real estate for himself and others during such period of time; that he was generally familiar with land values in the area of Matagorda and surrounding counties; that he was familiar with the property involved in this suit; that he was employed by condemnor to make an appraisal of the property; that he went out to the property and checked it; that it was better than average soil, good rich land and has pecan trees; that the area was generally known as the Sugar Valley area; that the highest and best use for the land in his opinion was for farming and grazing; that there were two crude lines running along the front of the property and a pipe line running along the west of the tract; that the surface of the land, in his opinion, was worth $250.00 per acre; that the strip taken for the easement was worth $435.00 prior to its taking; that after the taking it was worth $217.50, or 50% of its former value; that the value of the remainder before and after the taking of the strip was $250.00 per acre; that the remainder had not been devalued or damaged, in his opinion; that when he looked at the land he had a map (apparently furnished by condemnor); that he located the lines and took some pictures; that the property was a nice clean tract of land with about 1875 feet highway frontage; that some of the land was adaptable for use as home sites.

The witnesses Bounds, McCain, Hale and O’Connell all referred to the large plat offered in evidence by the condemnor which fully showed the lay-out of the tract, the location of pipe lines, roads and distances involved.

O’Connell, appellees’ value witness, was properly qualified as an expert as to real estate values. He was a licensed real estate broker with years of experience in that business and had a knowledge of the general value-standard and of market values of real estate in the vicinity involved. He had made personal observation and examination of the land in question so as to have knowledge of the particular thing to be valued. He testified that he knew the value of the land in question. Under such basic showing he was entitled to express his opinion as to the value of the tract in question. The same was admissible and had probative force. His opinion as to value and damage to the remainder of appellees1' tract was not naked and bare. See Texas Practice, Vol. 2, McCormick & Ray, Evidence, § 1422, pp. 256-262; State v. Scarborough, 383 S.W.2d 839 (Tex.Civ.App., 1965, wr. ref. n. r. e.); Tennessee Gas Transmission Co. v. Dishman, 303 S.W.2d 471 (Tex.Civ.App.1957, wr. ref. n. r. e.); Hubbard v. Harris County Flood Control District, 286 S.W.2d 285 (Tex.Civ.App.1956, wr. ref. n. r. e.).

The condemnor could have attempted on voir dire examination to show O’Connell’s lack of qualifications to express an opinion, but this was not done. Also, condemnor could have attempted on cross-examination to show lack of qualification, knowledge or basis for the expression of opinion by him; but this was not done. Conceivably, his testimony might have been weakened to the extent that a motion to strike could have been urged. But speculation on this score is not helpful, because the condemnor elected not to cross-examine. Further details of the “how and why” of O’Connell’s opinion might have been developed either on direct or cross-examination, but such possibility does not make his testimony inadmissible or factually insufficient. The credibility of O’Connell and the weight to be given his testimony was for the jury.

We agree with appellant’s position that “as a practical matter, the extent of damage to either side of an easement must at some point distant from such easement terminate.” However, on the record presented here, we cannot hold that appellant has brought this case within that rule. We are here dealing with a comparatively small tract and short distances. Appellant places reliance upon the cases of Tennessee Gas Transmission Company v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App.1951, n. w. h.); Texas Electric Service Company v. Vest, 310 S.W.2d 733 (Tex.Civ.App., 1958, wr. ref. n. r. e.); City of Cedar Hill v. Wheeler, 326 S.W.2d 236 (Tex.Civ.App., 1959, wr. ref. n. r. e.); and Texas Electric Service Company v. Campbell, 161 Tex. 77, 336 S.W.2d 742 (1960). These cases and others are discussed by the Texarkana Court of Civil Appeals in the recent case of State v. Scarborough, 383 S.W.2d 839, wr. ref. n. r. e., wherein it was contended that the opinions offered by the landowners had no probative weight because the witnesses did not articulate the nature of the damage, the effect of the damage on the various parts of the residual acreage and the relationship of the damage to market value differences, if any, before and after the acquisition. We believe that State v. Scarborough follows the correct rule and supports appellees’ position that the testimony of their expert witness and the other evidence in the case was sufficient to uphold the findings of the jury. See: State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194 (1936); Texas Pipe Line Co. v. Hunt, 149 Tex. 33, 228 S.W.2d 151 (1950); Coastal Transmission Corp. v. Lennox, 331 S.W.2d 778 (Tex.Civ.App.1960; Tennessee Gas Transmission Co. v. Adamsen, 262 S.W.2d 445 (Tex.Civ.App.1953, n. w. h.)

We hold that there was some evidence of probative force raising the issue of damage to the remainder of appellees’ tract and that such evidence is not so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. The trial court properly refused to disregard the findings on special issues 3 and 4.

Appellant’s points one, two and three are overruled.

By its point four, appellant contends that the trial court erred in refusing to allow Mr. Hale, appellant’s value witness, to testify as to comparable sales. The trial court permitted Hale to testify that his opinion was, at least in part, based upon comparable sales, but refused to allow him to give the details of same. The trial judge was in error in such respect, but there is no showing in the record as to what the excluded evidence would have been and appellant has failed to demonstrate harm. An expert witness may testify as to sales of properties which he considers to be comparable as aiding him in reaching his opinion of the value of the tract in question, the sales prices of which he learned from other sources, where such testimony as to other sales is not offered as proof of the facts of such sales or sales prices, but for the limited purpose of showing a part of the basis for the value opinion of the witness. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207 (1962); State v. Scarborough, 383 S.W.2d 839 (Tex.Civ.App., 1965, wr. ref. n. r. e.). But here, since we have no record of the testimony sought to be offered by appellant, at most, harmless error is presented. South Texas Electric Cooperative, Inc. v. Beutnagel, 388 S.W.2d 447 (Tex.Civ.App., 1965, n. w. h.); Ex parte Taylor, 322 S.W.2d 309 (Tex.Civ.App., 1959, n. w. h.) ; Wheat v. Citizens National Bank at Brownwood, 310 S.W.2d 735 (Tex.Civ. App., 1958, wr. ref. n. r. e.); Rule 434, Texas Rules of Civil Procedure. Appellant’s point four is overruled.

The judgment of the trial court is affirmed.