author: CLAUDE WILLIAMS, Justice.

text:
    DALLAS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 7, Appellant, v. Gayle F. INGRAM, Appellee.
    No. 16597.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 8, 1965.
    Rehearing Denied Nov. 5, 1965.

      Saner, Jack, Sallinger & Nichols, H. Louis Nichols and Tim Kirk, Dallas, for appellant.
    Lyne, Blanchette, Smith & Shelton and George C. Dunlap, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Action for damages for breach of employment contract. Following a period of employment pursuant to verbal agreement Gayle F. Ingram entered into a written contract on April 5, 1962 with Dallas County Water Control and Improvement District No. 7 (hereinafter referred to as Water District) wherein it was agreed that Ingram was to be employed as general manager of the Water District for a definite period of five years. As compensation for his services Ingram was to receive $500 per month for the full time of said contract with the provision that his salary would be reviewed from time to time and could’be increased. In fact, such salary was increased on two different occasions until it reached the sum of $600 per month which was the amount being paid Ingram at the time the contract was terminated.

With reference to termination of the agreement Paragraph 4 of the contract provided :

“4. The term of the agreement is five years from date executed. If the contract is cancelled by the District, claims shall be made and allowed to the Manager for services rendered to the full term of contract. If cancelled by Manager, no claims will be allowed beyond date of notification of intent to cancel.”

On January 30, 1964 the Water District elected to terminate Ingram’s employment and he brought this action to recover the amount which he contended would be due him for the remainder of the five-year term of the contract. By way of answer to Ingram’s suit the Water District asserted two principal defenses. First, it contended that the employment contract was void and unenforceable because (1) it was nudum pactum and lacking in mutuality; and (2) that it had just cause for discharging Ingram in that (a) there were irregularities and shortages in the Water District’s funds, (b) that Ingram failed to properly account for or explain the alleged deficiencies in the accounts as shown by the auditor’s report, (c) that Ingram had received free water service to his individual properties without paying the Water District for same, and (d) that Ingram failed to carry out the policies of the Water District.

Following a jury trial, and in response to special issues submitted to them, the jury found (1) that Ingram did not fail to properly account for the monies of such District; (2) that Ingram did not fail to carry out the policies of the Water District; (3) that Ingram did not fail to pay the Water District for water services furnished to him; and (5) that the sum of $19,000 would reasonably and fairly compensate Ingram for the damages incurred because of the cancellation of his contract of employment. Based upon such verdict judgment was rendered in favor of Ingram for $19,000 from which judgment the Water District has appealed.

By its first and eleventh points of error appellant contends that the trial court erred in refusing to sustain its motion for judgment non obstante veredicto, and that we should reverse and render the judgment, because the contract of employment sued upon is void and unenforceable, being lacking in mutuality of obligations and lacking in consideration. The burden of appellant’s argument is that under the contractual terms appellee had no duty to perform any work nor to continue working for appellant for any period of time, and such failure on his part to perform all or part of his work would not have imposed any legal liability upon him. It says that since appellee had the right to terminate the agreement at his option, without incurring liability, appellant had the corresponding right to terminate the agreement free from liability. Appellant relies upon such cases as East Line & R. R. R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99; St. Louis Southwestern Ry. Co. of Texas v. Griffin, 106 Tex. 477, 171 S.W. 703; Mutual Film Corp. v. Morris & Daniel, Tex.Civ.App., 184 S.W. 1060; and May v. Lee, Tex.Civ.App., 28 S.W.2d 202. The rule of law announced in these cases is undoubtedly sound, but upon careful examination and comparison of the record in this case with the cases cited we find that the authorities relied upon by appellant are not controlling of the instant appeal.

The contract between appellant and appellee was clear and unambiguous. While not expertly nor artfully drawn it does clearly express the agreement of the parties. It appears to have been entered into freely and voluntarily. For a period of twenty-two months the parties complied with the express terms of the contract and recognized the same as a binding and enforceable agreement. No charge is leveled against the agreement as being in contravention of any law nor against public policy. No one claims it contravenes equity or good conscience. It was for a definite period of time and for a definite consideration consisting of mutual promises. Appellant agreed with appellee that if it terminated appellee’s employment under the contract prior to the expiration of five years that it would be obligated to honor appellee’s claim for services for the remaining period of the contract. This, of course, contemplated a discharge by appellant without just cause. The law did not deprive appellant of its right to terminate the contract, and discharging appellee for good cause, such rule being duly recognized by the parties as well as the trial court in the submission of the case to the jury.

Our Texas courts have held that a contract of employment is not void as unilateral because, although the employer is bound for a definite period, the employee may terminate it at pleasure. The real basis for the decisions is the agreement on the part of the employer, implied in law, that he will not unjustly or wrongfully discharge the employee during the period of the contract. Thus in St. Louis, B. & M. Ry. Co. v. Booker, Civ.App., 5 S.W.2d 856, the court was presented with the almost identical situation and appellant relied upon and cited the same cases cited by appellant in this case. The court, in denying the same argument made here said, inter alia:

“But in none of these cases [cited by appellant] was there an express agreement by the employer not to terminate the contract without just cause. * * * As said by Judge Brown [in St. Louis Southwestern Ry. Co. v. Griffin, 106 Tex. 477, 171 S.W. 703] in the opinion above quoted, the liberty to make a contract for a lawful purpose is a natural right, which is beyond the power of government to take from the citizen. An employer and his employees have the right to agree with each other that the employer will not unjustly discharge the employee and will compensate the employee for the time lost by an unjust discharge and such contract is not invalid because of the fact that the employee has not agreed to remain in the service for any definite length of time.”

In Gulf, C. & S. F. Ry. Co. v. Jackson, Tex.Civ.App., 69 S.W. 89, the court considered a similar agreement, and breach thereof by the employer, and answered the same contention as advanced here by saying:

“It was not necessary, in order to make this contract binding upon appellant, that the appellee should have agreed to work for that length of time. It was competent for the parties to make a contract binding upon one of them for a certain length of time, but which the other might terminate whenever he saw fit. Such being, in our opinion, the character of the contract shown by the evidence in this case, the appellant would be liable for all of the damages which were directly caused by its breach of the contract.”

Numerous other Texas authorities assign this principle of law. Moore County Carbon Co. v. Whitten, Civ.App., 140 S.W.2d 880; Harper, et al v. Local Union No. 520, International Brotherhood of Electrical Workers, et al, Tex.Civ.App., 48 S.W.2d 1033; Mansell v. Texas & Pacific Ry. Co., et al, Com.App., 135 Tex. 31, 137 S.W.2d 997; Smith v. Hamilton, Civ.App., Tex.Civ.App., 237 S.W.2d 774; Dixie Glass Co. v. Pollak, Tex.Civ.App., 341 S.W.2d 530, 91 A.L.R.2d 662, affirmed, 162 Tex. 440, 347 S.W.2d 596; 56 C.J.S. Master and Servant § 6, p. 67.

The parties in this case could, and did, by their contract, agree that the same might terminate at the election of one or the other of them and the agreement may be enforced, if fairly made and the same is not contrary to equity or good conscience. Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683; Maddox Motor Co. v. Ford Motor Co., Tex.Com.App., 23 S.W.2d 333; 17A C.J.S. Contracts, § 399, p. 481, et seq. Appellant’s first and eleventh points are overruled.

Appellant’s second, eighth, twelth and thirteenth points of error are “no evidence” points dealing with the answers of the jury to Special Issues Nos. 1, 2 and 3, as summarized above. Appellant contends that such answers have no support in the evidence. We have carefully considered these “no evidence” points within the rule directed by the Supreme Court in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and having done so we find some evidence of probative force to sustain the answer of the jury to each of said issues against which complaint is leveled. As a matter of fact, appellee’s testimony, standing alone, would be sufficient to create an issue of fact on each of said issues. When carefully analyzed, the testimony of witnesses relied upon by appellant, creates issues of fact which would be sufficient to justify the answers of the jury to the issues. Accordingly, appellant’s Points 2, 8, 12 and 13 are overruled.

By its fifth and ninth points of error appellant assails the answer of the jury to Special Issue No. 5, being the damage issue, in the sum of $19,000, saying same is excessive and that there is no evidence as to the present cash value of appellee’s damages. We cannot agree with appellant on either of these contentions. Appellant bases its contention of excessiveness upon the fact that the unexpired thirty-eight month time, when multiplied by $500, equals $19,000, the exact amount found by the jury, and therefore argues that the jury did not take into consideration mitigating evidence of the amount of money made by appellee following his discharge. Appellant overlooks the fact that at the time appellee was discharged he was earning $600 per month which, when multiplied by the thirty-eight months remaining on the contract term, equals $22,800, or $3,800 more than the amount found by the jury. Since the evidence does not reveal an exact figure as to the amount earned by appellee since the discharge we cannot say that the $3,800 difference could not account for the amounts within the instructions given to the jury by the court relating to earnings. Appellant presents no authority, nor have we been able to find any, to the effect that it is required and absolutely essential to introduce expert testimony relating to the present cash value of damages in such a case. Appellant’s fifth and ninth points are overruled.

By its sixth point of error appellant complains of the action of the trial court in refusing to submit to the jury its requested special issue making inquiry whether there was a shortage in the funds of the Water District while Ingram was acting as general manager. In Special Issue No. 1 the court inquired of the jury whether Ingram had failed to properly account for the monies of the Water District, to which the jury answered that he did not so fail. When we consider the charge as a whole we are of the opinion that appellant’s defense was adequately presented to the jury in Special Issue No. 1 and therefore it was not required that another and different phase or shade of the same issue be submitted, as requested by appellant. If, as the jury found, Ingram properly accounted for all of the monies of the District then it follows that there was no shortage. Rule 279, Texas Rules of Civil Procedure. We overrule appellant’s sixth point of error.

By its seventh and tenth points of error appellant complains of the failure of the trial court to submit its requested issue reading as follows:

“Do you find from a preponderance of the evidence that the Board of Directors of the Water District had good cause to discharge Gayle Ingram as general manager of the Water District?”

The appellant, as above related, pled various acts of misconduct and failure to perform duty on the part of appellee as constituting “good cause” for its discharge of Ingram. Appellant requested, and the court submitted for the jury’s consideration, four special issues, each asking questions relating to the specific acts upon which appellant had based its claim of “good cause”. Having submitted appellant’s requested issues on specific acts of omission and commission which went to make up the ultimate question of “good cause” we agree with appellee that appellant was not entitled to the submission of the global issue, completely unconditioned. We know of no rule of law, and have been cited to none, which permits a party to have both specific and general issues submitted. We find that appellant’s defensive position was fairly submitted and not subject to the objection presented.

By its third point of error appellant contends that reversible error was committed by the trial court in admitting into evidence testimony of the witness Marvin Collier regarding a prior felony conviction. To support its alleged defense of justified cause for discharging Ingram the Water District relied principally upon the witness Marvin Collier, a public accountant, who testified that he had been employed to make an audit of the Water District’s books during the time that Ingram was acting as general manager. Based upon such audit made by him he testified that shortages were revealed; that Ingram had failed to properly account for such shortages; and that Ingram had failed to pay for water supplied to him by the District. Following a vigorous cross-examination by appellee’s counsel he was asked: “Have you ever been convicted of a felony, Mr. Collier?” He responded, “I have.” “When was that?”, he was asked, and responded, “In 1936 — manslaughter.” Thereupon counsel for appellant objected that such was too remote and immaterial and irrelevant, and would have no bearing on the issues in this case, and requested the court to instruct the jury to disregard the testimony. The court overruled the objection and permitted the testimony to stand. The witness was then interrogated concerning the details of his conviction in the State of New Mexico in 1936 for manslaughter, relating that he had killed a man while in the act of breaking into his place of business; that he had received a reduction in his sentence and was placed on parole following which he came to Dallas. Later, he was granted a full pardon by the Governor of New Mexico. He testified that he had been a practicing public accountant in Dallas since 1941 and had been honored by being made president of a Texas association of public accountants. No evidence was presented to show that the witness had lived other than an honorable and upright life since coming to Dallas. Appellant contends that the twenty-eight year old conviction for manslaughter was too remote, as a matter of law, to justify its being considered by the jury on the question of the character and reputation of the witness. We agree.

Much has been said and written relating to the question of the remoteness of a felony conviction and its tendency to discredit a witness, but there seems to have been no definite rule established as to when to admit and when to reject the testimony of a witness who has been previously convicted of a felony that involves moral turpitude. From a review of both civil and criminal cases it would appear that civil courts have generally held that such a matter depends upon circumstances presented and that the question should usually be left to the discretion of the trial judge. In exercising his discretion the trial judge has an opportunity to consider and weigh all of the facts and circumstances in that particular case. Only for the abuse of discretion is it held that such testimony may call for a reversal. Carr v. De Witt, Tex.Civ.App., 171 S.W.2d 388; York v. Glenn, Tex.Civ.App., 242 S.W.2d 653; Adams v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 750; Dillard v. State, Tex.Cr.App., 218 S.W.2d 476; Vaughn v. State, Tex.Cr.App., 157 S.W.2d 894. Our courts have never fixed any arbitrary number of years as being too remote to offer a prior felony conviction for the purpose of affecting one’s credibility. The following authorities, under the circumstances presented, have held the prior convictions to be too remote: Ten years or more—Carr v. De Witt, supra; York v. Glenn, supra; Transport Ins. Co. v. Cossaboon, Civ.App., 291 S.W.2d 746. Fourteen years—Bernard’s, Inc. v. Austin, Tex.Civ.App., 300 S.W. 256. Thirty years—Miller v. Brand, Tex.Civ.App., 32 S.W.2d 874. Twenty years— Texas Employers Insurance Ass’n v. Yother, Tex.Civ.App., 306 S.W.2d 730. Nine years—Travelers Insurance Co. v. Dunn, Tex.Civ.App., 383 S.W.2d 197. Twenty years—Pool v. Sneed, Tex.Civ.App., 173 S.W.2d 768. Ten years—Adams v. State Board of Insurance, supra. In Bunch v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 209 S.W.2d 657, it was held that :

“There are few cases, if any, in this state which hold that evidence of a conviction fourteen years or more in the past is admissible for the purpose of impeaching a witness in the absence of some facts or circumstances which would render such evidence admissible. Most of the cases that deal with this point are to the effect that a conviction for a felony twelve or fourteen years in the past is too remote, and those convictions that have been held to be admissible are from eight to ten years and down. In the absence of subsequent convictions for theft, or other circumstances that might render the testimony in question admissible, we are of the opinion that this particular conviction fourteen years prior to the trial of this suit was too remote in order to be admissible for impeaching purposes.”

The rule of law relating to the inadmissibility of remote convictions for offenses involving moral turpitude is a sound one. The law, in its wisdom, presumes that after the lapse of many years the rehabilitation of the individual has been successful—that he has paid his debt to society. This presumption may, of course, be rebutted. The record in this case is devoid of any evidence which would rebut the presumption that the witness Collier has completely rehabilitated himself over the period of twenty-eight years which has elapsed since the time of his conviction in 1936. To the contrary, all of the evidence points to the fact that he has led an exemplary life since coming to Texas. We think the conviction is too remote, under the circumstances of this case, and that the trial court abused its discretion in admitting the testimony. Transport Ins. Co. v. Cossaboon, Tex.Civ.App., 291 S.W.2d 746; General Insurance Corp. v. Handy, Tex.Civ.App., 267 S.W.2d 622; Bernard’s, Inc. v. Austin, Tex.Civ.App., 300 S.W. 256; Texas Employers Insurance Ass’n v. Yother, Tex.Civ.App., 306 S.W.2d 730.

Appellee argues that if the admission of the prior conviction was error then it was harmless error under Rule 434, T.R.C.P., in that Collier’s testimony was allegedly impeached on several other grounds aside from the matter of the prior conviction. We cannot agree. After a careful reading of the entire record in this case we are convinced that the court’s action in permitting the jury to consider the prior conviction of Collier was not only error but reversible error. Collier was the only expert accountant produced by appellant and it was his audit of Ingram’s records that appellant relied upon to support its defenses of irregularities and misconduct on the part of Ingram which justified his dismissal. The improper evidence of Collier’s prior felony conviction struck at the very heart of his entire testimony and credibility as a witness. We cannot say that the jury disregarded or minimized this testimony because of other alleged impeachment. It is evident from the record that the jury refused to accept Collier’s testimony and the improperly admitted prior felony conviction looms as a probable reason for such rejection. In our opinion the admission of the improper evidence probably resulted in the rendition of an improper verdict and judgment. Rule 434, T.R.C.P. Appellant’s third point of error is sustained.

We likewise agree with appellant that its Point 4 must be sustained. While the witness W. A. Douthit, president of the Water District, was on the witness stand he was asked whether or not an audit had been made for the year 1963 by the accounting firm of Smith, Baines & Griffith. He acknowledged that such audit had been made and prepared for the Board of Directors of appellant Water District whereupon he was then asked whether or not the audit showed any shortages. Thereupon objection was made that the audit would be the best evidence of its contents. The court overruled such objection and Douthit was permitted to testify that no shortages appeared, as reflected by the audit. We think the court’s action in overruling the objection made constituted error.

The rule is clearly established in Texas that if the original writing is not produced or its nonproduction accounted for, evidence of its contents is not admissible. 2 McCormick & Ray, Texas Law of Evidence, § 1563, Page 402; Panhandle & Santa Fe RR. Co. v. McDonald, Tex.Civ.App., 227 S.W.2d 601; 23 Tex.Jur.2d, §§ 234, 235, pp. 355-356. As pointed out in McCormick & Ray, Texas Law of Evidence, Vol. 2, § 1566, p. 409:

“The rule requiring the production of original writings applies only where the purpose of the evidence offered is to prove the contents of the document, .for it is only in such cases that the principal danger, that of inaccurate transmission of the terms of the writing, exists.”

Appellee counters this contention of error by appellant by claiming that since the firm of Smith, Baines & Griffith prepared the audit at the request of the Board of Directors of appellant Water District, of which Douthit was a member of the Board and president, that such best evidence rule is not applicable since Mr. Douthit’s answer to the question constituted an admission by party to the suit of the contents of a written instrument being under the control of the appellant. We cannot agree. It must be observed that the appellant in this case is a public corporation and the officers and directors thereof are public officials or agents. In such a case the law imposes a stricter rule than that which would be applicable in the case of a private corporation because the officers of public corporations are regarded as public officials rather than mere agents. Statements of a public officer, in the absence of express authority, are not competent against the government or agency thereof. Statements of such officer will not be admitted if not made within the scope of the declarant’s official duties and authority and in the reasonable discharge thereof. 31A C.J.S. Evidence § 359, pp. 867-869.

As to the availability of the audit itself appellee made no effort to avail himself of the rule relating to production of instruments in the possession of the opposite party either before or during the trial. Since the question of the accuracy of the audit made by some outside firm was of great importance to the issues involved we think it quite apparent that the court committed error in not sustaining the best evidence rule objection in this case.

The error becomes more apparent when the actual financial audit was introduced upon a hearing of motion for new trial, and such document demonstrating a deficit in the Water District funds. This was contrary to the opinion of the witness Douthit who was not shown to be an accountant or one qualified to interpret a statement of this kind. It is our opinion that the error of the trial court was of such a nature as to probably cause the rendition of an improper verdict. Rule 434, T.R.C.P.

For the reasons stated herein the judgment of the trial court is reversed and remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: DENTON, Chief Justice.

license: Public Domain

text:
    E. P. MADISON, Appellant, v. John L. HARPER, Appellee.
    No. 7523.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1965.

      Barber & Barber, Colorado City, for appellant.
    Witherspoon, Aikin, Thomas & Langley, Hereford, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order overruling the defendant’s plea of privilege. John L. Harper filed suit against E. P. Madison in Deaf Smith County, Texas, for damages for alleged fraud in connection with the sale of land by Madison to Harper. Madison filed a plea of privilege to be sued in Martin County, Texas, his legal residence. Harper’s controverting affidavit seeks to maintain the suit in Deaf Smith County under Subsection 7, Article 1995, Vernon’s Ann.Civ.St., the subsection which provides that suit may be brought in the county where the fraud was committed. The trial was before the court without a jury. No findings or conclusions were requested or filed.

Appellee brought suit for damages for alleged misrepresentations by appellant concerning the available irrigation water supply under the 400 acre farm sold by appellant to appellee. The land was located in Castro County, but it is alleged the misrepresentations took place in Deaf Smith County, the county where suit was filed. In substance, appellee’s cause of action is based on allegations that the value of the land was materially reduced when it was discovered the representations by appellant that an adequate and sufficient supply of irrigation water under the land was available was in fact untrue.

It is well settled that in order to maintain venue under Subsection 7 of Article 1995, the burden is on appellee to allege and prove the following material elements of fraud: a false representation made by the defendant; the reliance thereon by the plaintiff; action in reliance on such representation by the plaintiff; and damages resulting to the plaintiff from such representation. Trinity Universal Ins. Co. v. Soliz (Tex.Civ.App.), 241 S.W.2d 625; Traders & General Ins. Co. v. Smith (Tex.Civ.App.), 369 S.W.2d 847. Contrary to appellant’s contention, the necessary elements of fraud were properly alleged by appellee.

Appellant, by the first six points of error, contends there is no evidence to support the trial court’s implied findings on each of the elements constituting fraud. In passing upon the law question of no evidence to support the implied findings of the trial court, we are required to follow the well-established rule that if discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Davis v. Davis (Tex.Civ.App.), 314 S.W.2d 866.

We will therefore review the evidence in accordance with this rule. Madison listed his farm for sale with Virgil Justice, a real estate agent of Hereford, Texas. Justice testified Madison informed him that there were two eight-inch and two six-inch wells on the farm; that they were good wells; that the farm was not in a fringe area; “that this was absolutely good water and I had nothing to fear.” Justice testified that these representations were made to him by Madison in Deaf Smith County, and that he passed this information on to Harper. Harper confirmed this, and testified further that Madison had agreed with Oliver Streu, employee of Justice, that the four wells would pump at least 2100 gallons of water per minute. There was further testimony to the effect that Madison had represented that there was adequate water to irrigate the crops permitted to be planted under the farm’s government allotments. There was testimony Madison told Harper that one of the wells had been worked on prior to their negotiations, but did not reveal that the work consisted of replacing the well’s pump, which reduced its output from 1000 gallons per minute to 350 gallons per minute. Several witnesses testified that the wells were inadequate to properly water the crops during the summer of 1963, the first growing season after Harper purchased the farm on February 9, 1963. Harper testified that after the initial “drawdown” in the summer of 1963, the four wells would only supply sufficient water for sixteen two-inch tubes to distribute water; whereas, one good eight-inch well would normally support fifty two-inch irrigation tubes. Justice, who observed the wells in operation in the summer of 1963, corroborated this testimony. Harper drilled two additional wells subsequent to a purchase of the farm, but they proved to be unsatisfactory. He positively testified he relied upon the representations made by Madison and would not have purchased the farm if there had been any question concerning the adequacy of the water. It is undisputed Harper purchased the 400 acre farm for $375 per acre. Evidence was presented which placed the value of the land at this figure had there been a water supply as it was represented. A qualified witness testified the market value of the land at the time of the purchase would have been between $200 and $225 per acre if the water supply at that time had been as he found it to be in the summer of 1963.

After reviewing the evidence in the light most favorable to the appellee and disregarding all adverse evidence, we conclude there was evidence to support the implied findings of the trial court, for venue purposes, that the necessary elements of fraud were properly alleged and proved.

Appellant’s last point complains of the failure of the trial court to disqualify appellee’s attorney. By brief appellant urges the proposition that since one of the appellee’s attorneys of record prepared the written contract of sale and deed consummating the sale out of which this case arose, all members of that firm are disqualified to represent appellee in this cause. The hearing on appellant’s plea of privilege was heard by the trial court on November 19, 1964. The trial court took the matter under advisement and signed and entered its order overruling the plea of privilege on February 9, 1965. Appellant’s written motion to disqualify appellee’s attorneys was signed and sworn to by appellant on February 5, 1965. It was filed on February 10, 1965. This record does not reflect appellant’s motion was ruled on by the trial court nor even presented to the court for a ruling. Under such a state of the record nothing is presented for review. Imle v. Brill (Tex.Civ.App.), 234 S.W.2d 288; Garcia v. Tubbs (Tex.Civ.App.), 300 S.W.2d 736, (Refused, NRE).

The judgment of the trial court is affirmed.


text:
    Doyle Mark DOBBINS et al., Appellants, v. Frederick C. KLINKE, II, Appellee.
    No. 7517.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 27, 1965.
    Wayne B. Barfield, Amarillo, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   DENTON, Chief Justice.

Curtis A. Dobbins brought suit individually and as next friend of Doyle Mark Dobbins, a minor, against Frederick C. Klinke, II, for personal injuries received by the minor when struck by the defendant’s automobile. The jury found the defendant was not negligent in any respect; and that the accident was an unavoidable accident. Upon these jury findings the trial court entered judgment for the defendant.

Doyle Mark Dobbins, the four year old son of Curtis A. Dobbins, was injured when he was struck by appellee’s automobile as he attempted to cross a city street in the middle of the block. Upon the entry of the take-nothing judgment, the appellants filed a motion for new trial based, among other things, on jury misconduct. A hearing was had on this motion at which time five jurors testified. Three of the jurors were called by appellants and two by the appellee. The motion was overruled but no express findings of fact or conclusions of law were filed. Appellants’ sole point of error complains of this alleged jury misconduct.

Appellants allege the jury was guilty of misconduct in the following particulars: They discussed and considered personal experiences related by one or more of the jurors concerning similar occurrences to the one under consideration; personal knowledge of the scene of the accident; whether or not the minor plaintiff’s father had hospitalization insurance; and whether or not liability insurance covers pain and mental anguish.

Where there are no findings of fact and conclusions of law, it is presumed on appeal that the trial court found all controverted facts in support of its judgment overruling the motion for new trial and that no misconduct occurred. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493; Monkey Grip Rubber Co. v. Walton, 122 Tex. 185, 53 S.W.2d 770; Brawley v. Bowen, Tex., 387 S.W.2d 383. It is also a settled rule of law that if the evidence offered at the hearing on the motion for new trial is conflicting on the issue of jury misconduct, the decision of the trial court on the question is binding on appeal. State v. Wair, 163 Tex. 69, 351 S.W.2d 878; Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62.

During the hearing on the motion for new trial juror McCracken testified in substance that one of the women jurors told of an experience she and her husband had when a small child ran in front of their automobile; that the child was not struck, but that her husband had to drive off the road in order to avoid hitting the child; that another juror told of a similar experience when a dog “run out in the street”; and he further testified “We just discussed how quick little boys could run out in the street, or something like that.” He also testified one juror mentioned that Mr. Dobbins, the plaintiff, must have insurance with Sears, his employer; and that another juror said that he was sure Mr. Klinke, the defendant, had insurance; he acknowledged that “two or three of them [jurors] said that [insurance] doesn’t matter, we were not supposed to bring that in.” Juror Carring-ton testified she told of the experience she and her husband had when a child ran across a road in front of their car; that a juror asked if they were arrested, and she answered “No, it wasn’t necessary for them to come, because we didn’t have an accident.” She also remembered a juror telling of the dog crossing in front of his car; and that insurance for medical expenses was discussed. Juror Rutherford testified to the incident related by Juror Carrington and the experience of the unnamed juror concerning the dog; and that some jurors stated Dobbins probably had insurance at Sears. Juror Ford, the foreman, testified a woman juror mentioned her experience of almost hitting a child, but there was no discussion of it; and he admonished the jury, “It don’t have anything to do with the case.” He further testified there was no discussion of the dog incident; that insurance was brought up twice in the three-hour deliberation, but on each occasion he admonished the jury that they should not consider it. Juror Collingsworth testified she did not remember a juror mentioning the fact that they had almost hit a child; but she did remember one of the jurors mentioning their experience about the dog; that the foreman stopped a discussion of the incident; as to the discussion of insurance, she testified, “I don’t believe there was, until right after the very last, when someone wondered if he had insurance, and no one knew * * * we had already signed the papers and everything, getting ready to leave.”

There are obvious conflicts on the grounds of jury misconduct asserted by appellants in their motion for new trial. We therefore conclude the trial court’s implied findings that there was no jury misconduct is binding on this court.

Furthermore, it has been held that a mere casual mention of insurance, without discussion, followed by a prompt rebuke from a fellow juror, does not constitute such misconduct as would require a reversal of the judgment. Putman v. Lazarus, Supra; Dallas Transit Co. v. Newman (Tex.Civ.App.), 380 S.W.2d 818 (Dismissed). We are of the opinion the discussion had by the jurors in this case is governed by this rule.

We are of the further opinion, after reviewing the record as a whole, that the alleged jury misconduct complained of was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment and did not constitute reversible error. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is accordingly affirmed.


author: MOORE, Justice.

text:
    Robert L. LUSK et ux., Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 168.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 4, 1965.

      James W. Falvey, Jr., Longview, for appellants.
    Henry Atkinson, Atkinson & Price, Long-view, for appellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Appellants, Robert L. Lusk and wife, Virginia Lusk, purchased a Chevrolet automobile from Tom Price Motor Company. As a part of the purchase price, they traded a Dodge automobile. Robert L. Lusk duly executed a conditional sales contract agreeing to pay for the Chevrolet automobile in 36 monthly installments. Virginia Lusk, although with knowledge of the transaction, did not sign the conditional sales contract. The conditional sales contract was immediately assigned to the appellee, General Motors Acceptance Corporation, hereinafter referred to as GMAC. Upon the request of Virginia Lusk and her husband, the certificate of title was issued in her name, but reflected the lien retained by GMAC. After appellants had paid four monthly installments, GMAC by mistake, signed and stamped a release of the certificate of title lien on the original title and forwarded same by mail to Virginia Lusk. Appellants thereafter made no further payments and GMAC instituted this suit against Robert L. Lusk seeking to foreclose the chattel mortgage lien and ancillary thereto secured custody of the automobile under a writ of sequestration. GMAC also secured a temporary restraining order, restraining the Department of Public Safety from transferring the certificate of title pending outcome of the original suit. Eight days thereafter, the appellants replevied the automobile.

Appellants answered and filed a motion to dissolve the temporary restraining order and at the same time filed a cross action for damages, alleging that the automobile was the separate property of Virginia Lusk and by reason thereof, she was a necessary party to the suit; hence, the sequestration of the automobile without notice to her was wrongful for which she was entitled to actual as well as exemplary damages.

Prior to the hearing on the motion for summary judgment, GMAC filed an amended petition in which Virginia Lusk was made a party to the suit. After a hearing, the court rendered a summary judgment for GMAC foreclosing the lien and appellants perfected this appeal.

Basically, appellants’ Points of Error contend that (1) the Dodge automobile traded in as a part of the purchase price for the Chevrolet was the separate property of Virginia Lusk, thus requiring that she be made a necessary party to the suit, and the sequestration without notice to her was wrongful, thus creating an issue of fact as to damages, and (2) the certificate of title being in her name when GMAC, by mistake released the lien, she owned a clear title to the automobile as her separate property and appellee was thereby relegated to its remedy to reform the instrument; hence they contend that causing a writ of sequestration to issue prior to a reformation was wrongful and therefore the question of damages became a fact issue.

If the automobile was the separate property of Mrs. Lusk, cr if such an issue was raised by the pleadings, affidavits and other evidence, a summary judgment would be improper because appellants would then be entitled to a trial, not only on the issue of ownership, but also on the question of damages. On the other hand, if the pleadings, affidavits and other evidence did not raise any fact issue with regard to her separate ownership of the automobile, there would, of course, be no question of fact on that issue and the question of damages would become immaterial.

It is without dispute that the appellants are husband and wife and had lived together for over ten years prior to the time they acquired the automobile. We are therefore met at the outset with the legal proposition that all property acquired during marriage is presumptively community property. Article 4619, V.A.T.S.; Hardee v. Vincent, 136 Tex. 99, 147 S.W.2d 1072; Mason v. Crump (Tex.Civ.App.), 254 S.W.2d 831. While the presumption is not conclusive, it suffices to make a prima facie case. In order to overcome the presumption, the burden of proof rested on appellants to prove that the purchase price of the automobile, or at least a part thereof, came from the separate estate of Virginia Lusk. Rhodes v. Alexander, 19 Tex.Civ.App. 552, 47 S.W. 754; Byrn v. Kleas, 15 Tex.Civ.App. 205, 39 S.W. 980. The only evidence offered in opposition to the presumption which we have been able to find is contained in the affidavit filed by the appellants wherein they state:

“ * * * At the time we were married I (Virginia Lusk) owned as my separate property one new 1953 Red and White 4 door Oldsmobile Super 88 Sedan of the approximate value of $3,000.00. * * * Every car which my husband Robert L. Lusk and I have owned since our marriage has been licensed and the certificate of title issued in my name. * * * ”

By deposition, Mr. Lusk testified that the car was a family car and that both he and his wife were the owners. Mrs. Lusk testified in her deposition that although she licensed the automobile in her name, her husband gave her that privilege and that she knew it belonged as much to Mr. Lusk as to her. We have concluded that this evidence is not sufficient to overcome the presumption of community property because where, as in this instance, the property has not been preserved in specie or in kind, but has undergone mutations or change, it is indispensable to maintain its separate character that it be clearly and undisputedly traced and identified. Mason v. Crump, supra; Citing Chapman v. Allen, 15 Tex. 278; Lindemood v. Evans (Tex.Civ.App.), 166 S.W.2d 774.

No attempt was made to trace the separate funds contributed by her through the successive purchases of other automobiles during the ten-year period of their marriage. Evidence of the mere possession of separate funds prior to the purchase of the property in question is not sufficient to rebut the community presumption. Finley v. Pafford (Tex.Civ.App.), 104 S.W.2d 163.

The evidence presented by appellants not only falls short of overcoming the presumption, but is also insufficient to raise a fact issue on the question of whether or not the automobile was her separate property. Hence, the presumption of community must prevail. Her separate interest in the automobile not having been traced and identified, she would have no rights to be protected and the claim for damages based thereon would be without foundation. The controversy resolves itself into a dispute over community property and under such circumstances, it is elementary that the wife is not a necessary party to the suit. Silas v. Butler (Tex.Civ.App.), 285 S.W.2d 266, err. ref.

We turn now to the question raised in connection with the certificate of title. The mere fact that Mrs. Lusk was designated as the owner in the certificate of title does not necessarily mean that she owned the automobile as her separate property. Appellants, nevertheless, take the position that when GMAC released the lien, she became the sole owner and that her title was good as against the world, regardless of the chattel mortgage executed by her husband. They therefore contend that GMAC had no right to sequestrate the automobile without first bringing suit for a reformation of the instrument, and hence the sequestration was wrongful.

In Pioneer Mut. Compensation Co. v. Diaz (Tex.Civ.App.), 178 S.W.2d 121, the court held:

“ * * * The Certificate of Title Act, Art. 1436-1, Vernon’s Penal Code, declares the legislative purpose and intent, Sec. 1, to be to lessen and prevent theft, the importation and traffic in stolen motor vehicles, and to enforce a disclosure of all liens and encumbrances. The act does not prohibit the registration of a motor vehicle in the name of one other than the true owner, nor render the title invalid or prohibit the passing of title in such event. It merely provides, after the first sale the title shall pass and vest only by a transfer of the certificate of title, Sec. 33, hy the owner designated in the certificate of title. ‘Owner designated,’ indicates an owner may be different from the true owner.” (Emphasis supplied.)

In Birdwell v. Pacific Finance Corp. (Tex.Civ.App.), 259 S.W.2d 957, the court pointed out that:

“ * * * Secs. 42 and 44 of Art. 1436-1, Penal Code, declaring unen-forceability of liens on motor vehicles, are with reference to third parties. Such a lien is good as between vendor and vendee in the initial mortgage transaction, even though not noted on the certificate of title. * * * ”

Where, as here, the rights of third parties have not intervened, the foregoing provisions of the act do not apply. Birdwell v. Pacific Finance Corp., supra; Ward v. Hasty (Tex.Civ.App.), 295 S.W.2d 433; Coffield v. International Harvester Company (Tex.Civ.App.), 359 S.W.2d 211.

We recognize the “administrative presumption” that the person named in the certificate is deemed to be the owner. Pioneer Mut. Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202. Such presumption, however, is a mere “administrative presumption” and standing alone would not constitute evidence sufficient to overcome the legal presumption of community.

Appellants admit that they were in arrears in their payments. Absent proof showing her separate ownership, which is the state of record, the presumption of the law that property acquired by either husband or wife during marriage belongs to the community estate of the husband and wife, controls in this case. Merely showing that she was designated as the owner in the certificate of title would not, without further proof, be sufficient to overcome the presumption of community and therefore the basis of the wrong complained of by her in the cross action is without foundation. No issue of fact having been raised on the question of her separate ownership, the question of damages becomes immaterial and therefore the summary judgment was proper.

By the remaining point, appellants suggest that the judgment should be reformed because it allows interest at the rate of six per cent of the unpaid balance due and owing on the automobile in the amount of $2,911.66. The argument is that the conditional sales contract shows on its face that the sum of $561.10 was included in the conditional sales contract as interest and to allow appellee to recover six per cent interest on the judgment until paid would be to allow appellee “interest on interest.”

The conditional sales contract reveals that the appellants agreed to purchase the automobile on what is known as a time credit or deferred price rather than at the cash price. Appellants had the option of paying cash price or accepting the time credit price, but accepted the latter. The credit price was $2,897.28 which included the sum of $561.10, which contrary to appellants’ contention, was designated not as interest, but only as “finance charges.” These charges were properly specified on the conditional sales contract as required by the provisions of Article 5074a, V.A.T.S.

Appellants make no attack upon the conditional sales contract nor do they contend that the appellee failed to comply with the statute allowing time prices to be charged for motor vehicles under the provisions of 5074a, supra.

Section 1 of Article 5074a recites that it is now recognized as a part of the jurisprudence of this state that a seller may have a cash price for his commodities and may also have a different and higher time credit price for the same commodity, and that such differential in said prices does not constitute interest for the forbearance, use or detention of money or credit. Lamb v. Ed Maher, Inc. (Tex.Civ.App.), 368 S.W.2d 255.

If the price differential does not therefore constitute interest on the debt, we fail to find any merit in the contention that the provision for interest on the judgment would allow appellee “interest on interest.” The point is therefore overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: NORTHCUTT, Justice.

text:
    Robert COX et ux., Appellants, v. KTM DRILLING, INC., Appellee.
    No. 7525.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1965.
    Rehearing Denied Nov. 15, 1965.

      Lemon, Close & Atkinson, Perryton, for appellants.
    Linn & Helms, Spearman, for appellee.
   NORTHCUTT, Justice.

This is a suit brought by KTM Drilling, Inc., a corporation, hereinafter referred to as appellee, against Robert Cox and wife, hereinafter referred to as appellants, to recover upon an oral contract to drill an irrigation water well and to foreclose a mechanic’s and materialman’s lien upon Section 9, Block 2, S.A. & M.G.R.R. Co. Survey, Hansford County, Texas. Appellants are owners of the land upon which the well was drilled. The appellee agreed to drill an irrigation well that was straight and sand free for $12.00 per foot. Appellee was to furnish casing and appellants were to furnish bailing gravel and their pump. Appellee drilled the well and placed the casing therein. The well was producing sand and appellee bailed the well for some time to remove the sand. Appellants’ pump was placed in the well and was operated for several days as appellants were needing the water but continued to pump some sand. The pump was pulled and the bailing was started again by appellee. After rebailing for several hours, Mr. Holton, who was doing the bailing, informed Mr. Cox the well was ready and to place the pump back in the well. Thereafter Mr. Cox refused to permit the pump to be used any further. Appellee moved from the premises and brought this action to recover for the value of the gravel and for drilling the well.

The case was submitted to a jury upon special issues. The jury found that at the time the well had been rebailed it could reasonably be expected to be completed a sand-free well; that under the circumstances and conditions then existing, appellants should have permitted the use of their pump in an effort to complete the well after the rebailing operation; and that ap-pellee was prevented by appellants from completing the well by appellants’ refusal to allow their pump to be used in such completion after the rebailing operation. Upon the findings of the jury, judgment was granted in favor of appellee for $6,530.00, being the amount due for the gravel and drilling of the well. From that judgment appellants perfected this appeal.

In considering this case it will be noticed that there were no requested issues submitted by either party to the suit. By appellants’ first two points of error it is contended the court erred in failing to submit an issue as to whether or not the appellee had performed its contract or was ready, willing and able to perform his contract to drill and complete a sand-free irrigation well, and in assuming the appel-lee was ready, willing and able to perform its contract. Appellants’ Points 3 and 4 are that there was insufficient evidence to support the submission of Special Issue No. 1 and that the answer of the jury to Special Issue No. 1 was against the overwhelming weight and preponderance of the evidence.

Special Issue No. 1 was as follows: “Do you find from a preponderance of the evidence that at the time the well in question had been rebailed such well could reasonably be expected to be completed as a sand-free well?” The jury answered, “Yes.”

It is undisputed that appellee drilled the well in question to the depth agreed upon and placed the casing therein. It is also agreed that appellants were to furnish the pump. The pump was to be used after the bailing to clear up the water. After the well was drilled and the casing placed therein, the appellee bailed for sometime. The pump was used for several days and produced some sand. It is undisputed that the appellee than bailed the well for some time and informed appellants the well was ready to be pumped but appellants refused to permit their pump to be used. It is undisputed that appellee was doing everything possible to complete a sand-free irrigation well. We think the ultimate question here involved is (after drilling the well and doing the things that had been done) whether appellee could have produced a sand-free well. The undisputed record shows he was ready and willing to proceed in performing the contract to drill and complete a sand-free well. Then the sole question would be would appellee have been able to produce a sand-free well by proceeding according to the contract.

Special Issue No. 2 is as follows: “Do you find from a preponderance of the evidence that under the circumstances and conditions then existing Defendants should have permitted the use of their pump in an effort to complete said well after the-rebailing operation?”

Special Issue No. 3 is as follows: “Do you find from a preponderance of the evidence that Plaintiff, KTM Drilling, Inc., was prevented by Defendants from completing said well by Defendants’ refusal to allow their pump to be used in such completion after the rebailing operation?”

The jury answered “Yes” to both Special Issues Nos. 2 and 3. Appellants agree they were to furnish the pump and refused to permit the pump to be used by appellee after the bailing. There was no other way to complete the irrigation sand-free well under the terms of the contract than to drill the well, place the casing in the well, use the bailing gravel and after proper bailing, to pump the water to make it sand free. We think under the undisputed record as found by the jury in answer to Special Issues Nos. 2 and 3 that appellants, by refusing to furnish the pump after the rebailing, prohibited appellee from proceeding with his contract to produce a sand-free well.

It is elementary that where a contract has been substantially performed and an attempt to complete performance is refused the refusal excuses any further attempts on the part of the party offering performance. Atomic Fuel Extraction Corporation v. Slick’s Estate, Tex.Civ.App., 386 S.W.2d 180 (N.R.E.); Hoffman v. Overton Refining Co., Tex.Civ.App., 110 S.W.2d 93; Miller v. Hodges, Tex.Com.App., 260 S.W. 168; Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744; Dodds & Wedegartner v. Reed, Tex.Civ.App., 69 S.W.2d 165 (writ dismissed).

The undisputed evidence herein is that appellee was not in any manner in default but was doing everything possible to complete a sand-free well as contracted. Appellee had rebailed the well to where he thought by the use of the pump (as contracted) the pumping would clear the well of sand. Appellants requested further bailing. The appellee complied with that request but appellants still refused the use of their pump as they had contracted to do. We are of the opinion, and so hold, that when appellants refused further use of their pump, that excused any further attempts on the part of appellee offering performance. We have reviewed all of appellants’ assignments and finding no error, they are expressly overruled.

Judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    MURTEX OIL COMPANY et al., Appellants, v. Q. C. MURPHY et al., Appellees.
    No. 7674.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 26, 1965.
    Rehearing Denied Nov. 16, 1965.

      Harry M. Harrington, Jr., Harrington & Harrington, Longview, for appellants.
    Marcus Vascocu, Longview, for appel-lees.
   CHADICK, Chief Justice.

This is a venue case. The judgment of the trial court is affirmed.

The appellants, as plaintiffs, filed suit in the 124th Judicial District Court of Gregg County, where the defendants reside, to partition an oil, gas and mineral leasehold estate in land located in Rusk County. Besides the partition count their petition states an action for damages attributable to the defendants’ alleged delaying tactics and for receivership to: (aj prevent the defendants’ tactics from causing the property to be permanently and irreparably lost or destroyed; and (b) to prevent oil drainage by offset wells. Prayer was for certain specified relief and such other as the plaintiffs might show themselves entitled to. The appellees, defendants below, in their plea of privilege alleged expiration prior to suit of the oil, gas and mineral lease creating the leasehold estate made the subject of partition.

The following excerpt from the appellants’ brief tenders the controlling issue the appellants request this court to decide with such economy of words and precision of expression that it is adopted for all purposes:

“The Appellants filed this cause in Gregg County, Texas pursuant to the provisions of Subdivision 13 of Article 1995 [Vernon’s Ann.], Tex.Rev.Civ.St., which provides:

“ ‘Partition. — Suits for the partition of land or other property may be brought in the county where such land or other property, or a part thereof, may be, or in the county in which one or more of the defendants reside, or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover the title to the same. Nothing herein shall be construed to fix venue of a suit to recover the title to land.’

This Sub-division fixes venue in Gregg County, unless the case comes within the terms of Sub-division 14.

“The Appellees contend, and the trial court ruled, that the cause is governed by Subdivision 14 of Article 1995, Tex.Rev. Civ.St., which provides:

“ ‘Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to lands, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.’

“There is no real conflict between these two subdivisions of our venue statute. The problem is determining when Subdivision 14 is applicable. If the instant case is one coming within the terms of Subdivision 14, it is mandatory and the cause must be transferred for trial to Rusk County; whereas, by the terms of Subdivision 13, if this cause does not come under the provisions of Subdivision 14, venue is established in Gregg County. The question of law to be determined in the instant case is therefore, whether this is a suit ‘for the recovery of lands or damages thereto or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands ?’ ”

The allegation in the plea of privilege that the lease had previously expired constituted a denial that the plaintiffs owned title or interest in the subject leasehold estate. Thus a title issue materializes and is injected into the partition suit. In order to maintain the partition suit in Gregg County over the objection of the defendants the plaintiffs were obligated to demonstrate that there was no controversy as to title. Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223; Herrington v. McDonald, 141 Tex. 441, 174 S.W.2d 307; 1 Texas Civil Practice (McDonald), Sec. 4.21, p. 373. This they were unable to do.

In addition, it is worthy of notice that the plaintiffs’ petition, in the part addressed to the necessity for a receivership, shows on its face that the suit is one to prevent and stay waste to land. It is alleged that a receivership is necessary to prevent drainage of oil from the leased land by offset wells. The judgment of the trial court is affirmed.

      . The author of this treatise after commenting upon Pena v. Sling supra, and other cases following in its wake makes this enlightening observation on the effect of Art. 1995, Subsections 13 and 14:
      “Under this interpretation, a plaintiff can no longer know in advance of suit whether he can maintain his partition action, involving land located in county A, in a court of county B where a defendant resides. Since he must, if the defendant questions the venue, prove that there is no controversy as to title, it is insufficient for him to establish by a preponderance of the evidence that he is entitled to the interest he asserts, or that the defendant has no valid claim to a greater share than plaintiff has conceded in his petition.
      Although it is immaterial to decision, there is evidence of record tending to show the mineral lease had expired by its own terms. Thus the record here contains both pleading and evidence raising the question of title.


author: WERLEIN, Justice.

text:
    M. W. PLUMMER et al., Appellants, v. Selma B. BRADFORD et al., Appellees.
    No. 14657.
    Court of Civil Appeals of Texas. Houston.
    Oct. 14, 1965.

      Harry E. Groves, and M. W. Plummer, Houston, pro se.
    Red, Kemp & Wyckoff, Rayburn Berry, Houston, for appellees Selma and Burton Bradford.
   WERLEIN, Justice.

This suit was brought on September 23, 1960, by appellant, M. W. Plummer, who in his third amended original petition joined Alfred D, Butler as nominal plaintiff, against appellee, Selma B. Bradford, and others, for partition of Lots 1 to 6, inclusive, in Block 2, of The Holman 45 Addition, an addition in Houston, Harris County, Texas, and to set apart to plaintiffs their interest in said property in kind, and, in the alternative, praying that the court order the property sold and the proceeds partitioned among the plaintiffs and defendants according to their respective interests therein.

At the conclusion of appellant’s evidence, the court, upon motion of appellees, Selma Bradford and husband, Burton Bradford, instructed the jury to bring in a verdict in favor of the defendants, which was done. The court then proceeded to partition the property in accordance with the stipulation made in open court by “all the parties having an interest remaining in this litigation.”

As having an important bearing upon the question as to whether the trial court erred in granting the instructed verdict against appellant Plummer, we must first determine whether the relation of attorney and client existed between Mr. Plummer and Margaret Butler Alexander, appellee Selma B. Bradford’s predecessor in title, when the written contract and conveyance under which appellant Plummer claims was executed. In his amended petition appellant Plummer alleged that on or about August 26, 1953, Margaret Butler Alexander, a widow, employed him as her attorney, and pursuant to such employment sought consultation and advice. He also alleged that Mrs. Alexander on or about August 15, 1953, consulted him in connection with certain legal problems and that he advised her as to her rights and what remedies were available to her, and that for such services he was due and entitled to a fee. He further alleged that said Mrs. Alexander sought additional services, for which she was unable to pay, and it was agreed between appellant and Mrs. Alexander that he would render such services for an assignment of one-third of her interest in the above described property, such agreement being evidenced by “a contract and such assignment and conveyance” executed on September 3, 1953, and recorded September 11, 1953, in the Deed Records of Harris County, Texas. Appellant further alleged:

“ * * * That subsequent to the execution of the hereinbefore mentioned contract of conveyance, Plaintiff Plummer further advised Mrs. Alexander; conferences were held; Plaintiff Plummer investigated the facts and circumstances surrounding the matter under consultation, and subsequently filed a lawsuit for and in behalf of Mrs. Alexander on or about the 20th day of November, 1953, such suit being styled Margaret B. Alexander vs. Nettie R. Butler, and numbered 428,884, in the 80th District Court of Harris County, Texas, and that each and all of such labor, costs and services were done in consideration of such conveyance.”

Appellant also alleged that on September 3, 1953, Mrs. Alexander was the owner of an undivided 458%i520 of the property in question, and that by virtue of such assignment and conveyance he became the owner of and was entitled to a 6%it interest therein and that the defendants are owners of the remaining undivided interests.

During the trial it was stipulated by appellant and appellees, among other things, that appellee, Selma B. Bradford, owned as her separate property an undivided 14/m interest in the property hereinabove described, and that of such 14Ai interest an %i interest in the above described property was inherited by her from Margaret Butler Alexander, such %i or one-third interest in said property being the portion of the property in which appellant was claiming an undivided one-third interest. The stipulation also set out the interests in the property owned by the other parties in the suit.

The evidence shows that Mr. Plummer was a licensed attorney at the time he was employed by Mrs. Alexander. Appellant’s witness, W. H. Holland, testified that he was present and witnessed the signing of the written contract, which reads as follows :

STATE OF TEXAS COUNTY OF HARRIS KNOW ALL MEN BY THESE PRESENTS:

That I, Margaret Butler Alexander, a widow, of Houston, Harris County, Texas, have made, constituted and appointed, and by these presents do make, constitute and appoint M. W. Plummer, of Houston, Harris County, Texas, my true and lawful attorney to represent me and prosecute to settlement or judgment my suit for accounting and partitioning all my interest in property left me by my natural parent MONROE BUTLER and RACHAEL BUTLER, and by their son RICHARD BUTLER my brother through his last will and testament; for that property more particularly described as lots 1 to 6 in Block 2 in the 45 James Holman Survey, Houston, Harris County, Texas.

I hereby fully authorize and empower my said attorney to bring suit on said cause, if necessary and to prosecute the same to final judgment, and to compromise and settle, with or with out suit, in any manner that he may deem best or advisable, and to sign my name to any and all papers that may be necessary to be executed for the purpose of settling such estate. For and in consideration of the services rendered for me by my said attorney, M. W. Plummer, and the further services to be rendered herein by him for me, I hereby agree and obligate my self to give and allow him as his compensation herein one-third of all my interest in the aforementioned estate, whether in money or kind, by suit compromise or otherwise, and I hereby sell, transfer, assign and convey to my said attorney, M. W. Plummer, a one-third of my undivided interest in the said Butler Estate, whether the same is settled with or without suit, and to any judgment or judgments that I may obtain in this suit or in any other suits that may here after be brought on said claim, to have and to hold the same as his own property unconditionally.

In witness thereof I have here unto set my hand this 3rd day of September, 1953, A.D.

(Signed) Margaret Alexander

(Single acknowledgment)

We are of the opinion that the relation of attorney and client existed between appellant Plummer and Margaret Alexander at the time and prior to the date the foregoing power of attorney and conveyance was executed. Indeed, appellant Plummer in his amended petition alleged that he had been consulted by Mrs. Alexander as early as August 15, 1953, and that on August 26, 1953, she employed him as her attorney. He further alleged that for the services rendered Mrs. Alexander he was due and entitled to a fee. Thereafter, and while such relation existed, said contract and conveyance was executed, since Mrs. Alexander sought additional services, for which she was unable to pay, and appellant agreed he would render such services for an assignment of one-third of Mrs. Alexander’s interest in the above described property. Thus appellant judicially admitted that the relation of attorney and client did exist at the time of the execution of the contract and conveyance on September 3, 1953. Moreover, in the contract and conveyance it is recited that the consideration therefor consisted of services rendered Mrs. Alexander by her attorney and the further services to be rendered by him, thus showing that the relation of attorney and client existed prior to the execution of such instrument.

Appellant’s claimed interest in the property in question and his right to have such property partitioned depended upon the power of attorney and conveyance executed by his client, Mrs. Alexander, at a time when the relation of attorney and client existed. Appellees in their amended pleading specially denied the various allegations contained in appellant’s pleading and alleged there was no consideration, and, in the alternative, there was a failure of consideration, for such purported conveyance in that appellant had only two office conferences with Mrs. Alexander and filed a lawsuit which was dismissed for want of prosecution. There is nothing in the record, however, to show that appellant had only two office conferences with Mrs. Alexander or that the lawsuit which he had filed was dismissed for want of prosecution.

For the purpose of showing what he did subsequent to the execution of the contract and conveyance, appellant introduced in evidence the original petition for partition filed by him in Cause No. 428,884 in the 80th District Court of Harris County, styled “Margaret Butler Alexander vs. Nettie R. Butler” and the citation which was issued in such case. Appellant testified in the present suit that he thought the property in question could be partitioned without serious loss of value, and that he thought the property was reasonably worth $45,000.00. This is about the extent of the evidence, except for the testimony concerning rents that had been collected from such property by the Bradfords. There is nothing in the record to show what else was done by appellant in connection with the suit he filed for Mrs. Alexander against Nettie R. Butler, nor is there anything to show whatever became of the suit. The record is silent as to such matters and there are no findings of fact or conclusions of law by the trial court.

The motion filed by appellees for an instructed verdict did state, among other things, that there was no evidence that the contingent fee of one-third was a fair and reasonable fee, and that the allowance of such fee would shock the conscience of the court, and that there was no evidence of substantial compliance or performance of the contract by appellant, and that because of the confidential relationship, there is a presumption of unfairness and invalidity attached to the contract placing the burden of showing its fairness and reasonableness upon appellant who failed to discharge such burden. As hereinabove stated, the trial court granted such motion, but without comment other than reciting, “after considering the same, on the 1st day of December, 1964, the Court instructed the jury to render a verdict * *

There is no allegation in appellees’ amended answer of fraud or imputation of fraud on the part of appellant, nor is there any allegation to the effect that the contract and conveyance was unfair, inequitable or unjust, or that the allowance of the one-third interest in the property as fee to appellant was unreasonable or that it would shock the conscience of the court. Appel-lees have not sought to have the instrument in question cancelled or rescinded. There is no evidence in the record of any fraud, unfair dealing, duress, undue influence or improper conduct of any kind on the part of appellant. Appellees contend, however, that without pleading fraud or wrongdoing on the part of appellant Plummer in connection with the execution of the instrument, their pleading of no consideration and failure of consideration, in view of the confidential relation existing between appellant and Mrs. Alexander, placed upon appellant the burden of establishing that such instrument was fair, and freely and voluntarily executed by Mrs. Alexander with full understanding of its import, and that the contingent fee of a one-third interest in the Alexander undivided interest in the property was fair and reasonable.

In Archer v. Griffith, Tex.Sup.1964, 390 S.W.2d 735, the plaintiff brought suit to cancel and set aside a deed which she had executed conveying to her attorney as a fee a one-fourth of her undivided interest in certain property. The case was tried by the court without a jury, and the court rendered judgment for the plaintiff. The plaintiff pleaded fraud, but there was no evidence of fraud. The plaintiff, however, specifically pleaded that the fee was so exorbitant and unreasonable as to require that the deed be cancelled and set aside. The Supreme Court held that the record would support the conclusion that the contingent contract was so exorbitant and unreasonable as to require that the conveyance be set aside. In the Archer case evidence was adduced as to the vahxe of the property, the services rendered by the attorney, and what a reasonable attorney’s fee would be. In the instant case there is no such pleading or evidence, with the exception of appellant’s testimony as to the value of the property and the filing of the suit against Nettie R. Butler, and the issuance of citation.

The evidence shows that the instrument in question was not without some consideration since it was given in part for services already rendered. The evidence also shows that after the execution of the instrument additional services were rendered by appellant. Hence there was neither an entire want of consideration nor a complete failure of consideration as affirmatively pleaded by appellees. There is no admissible evidence in the record that appellant did not perform all that was required of him under the contract. Unless under these circumstances the relation of attorney and client between appellant and Mrs. Alexander placed the burden upon appellant to show that the contract and conveyance was not unfair, unjust or inequitable even though there was no claim or pleading to such effect, it was error on the part of the trial court to instruct a verdict against appellant.

In the following cases cited with approval by the court in Archer v. Griffith, supra, there was a pleading of fraud or inequitable or improper conduct on the part of the attorney. In Cooper v. Lee, Tex.1889, 75 Tex. 114, 12 S.W. 483, the plaintiff pleaded fully the confidential relation existing between him and the defendant and the defendant’s fraudulent design and representations. In Holland v. Brown, Tex.Civ.App., 66 S.W.2d 1095, writ ref., there were allegations of fraud on the part of the defendant sufficient to support the introduction of parol testimony in explanation of the written contract and its legal effect as understood by the plaintiff. In Bell v. Ramirez, Tex.Civ.App., 299 S.W. 655, writ ref., a suit was brought by the plaintiffs to cancel a deed conveying to Bell plaintiffs’ homestead, the plaintiffs relying upon two propositions: (1) that the deed was in fact a mortgage to secure Bell in his fees and expenses as attorney for the plaintiffs, and (2) that the relation of attorney and client existed when the deed was executed, which fact raised the question of constructive fraud and cast upon Bell the burden of showing utmost good faith, a full and fair price, absence of pressure or influence by virtue of the confidential relation, and that no advantage was taken of his client.

See also Tippett v. Brooks, 28 Tex.Civ.App. 107, 67 S.W. 512, writ den., in which the court said:

“A conveyance made by a client to an attorney, in the absence of unfairness or undue influence on the part of the attorney, will not be set aside simply for the reason that such a relation existed. The rule governing contracts between parties holding fiduciary relations is fully discussed by Finley, C. J., in Goar v. Thompson ([19] Tex.Civ.App. [330]) 47 S.W. 61. There it is held that where ‘fiduciary relation exists between parties to a transaction, and the person occupying the position of influence or trust obtains an advantage thereby in the dealing had between them, the burden rests upon him to show its fairness when it is attacked for fraud by the other party. Under such conditions, equity indulges the presumption of unfairness, and requires proof at the hands of the party claiming the validity and benefits of the contract that it is fair and reasonable.’ ” (Emphasis supplied.)

Since there is no evidence in the record showing that appellant has not performed fully and faithfully his contract, and there is no allegation or claim in appellees’ pleading that appellant has been guilty of any fraudulent, unfair, unjust or improper conduct which would place upon him the burden of proving that the contract and conveyance in question was fair, just and equitable, we are of the opinion that it was error on the part of the trial court to instruct a verdict against appellant. It is our view that without some pleading or claim raising the proposition of unfairness or inequitable conduct on the part of an attorney, no presumption thereof arises. An attorney should not be required to defend a conveyance to him by his client and to establish that such conveyance was fair, just and equitable when no claim of unfairness is asserted or involved. Appellees failed to show that there was a failure of consideration for the conveyance, but even if there was a failure of consideration, it would not necessarily establish that there was any fraud or unfairness or wrongdoing in connection with the inception and execution of the contract and conveyance. Fraud or unfairness in the inception and execution of a contract and failure of consideration are two different things.

In Lesikar v. Lesikar, Tex.Civ.App., 251 S.W.2d 555, writ ref., n. r. e., it was stated that the deed from Lesikar to his attorney was not void, but at most voidable. It made out a prima facie case so that “the burden then passed to appellant to introduce at least some evidence to show that the deed from Lesikar Sr. to his attorney was executed under domination which the law is very willing to believe upon small proof that an attorney has over his client.” The court in its opinion in Archer v. Griffith, supra, distinguishes such case from Lesikar v. Lesikar, supra, Coen v. Stout, Tex.Civ.App., 245 S.W.2d 971, no writ, and Kull v. Brown, Tex.Civ.App., 165 S.W.2d 1011, no writ, on the ground that they “are not in point, because they did not involve a claim that the transaction was unfair to the client.” The instant case is also distinguishable from Archer v. Griffith, supra, in that the instant case does not involve a claim that the execution of the contract and conveyance was unfair to the client.

Reversed and remanded.


text:
    Thora PARKINS et al., Appellants, v. N. Finley MARTIN, Administrator, et al., Appellees.
    No. 7520.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 11, 1965.
    Rehearing Denied Nov. 8, 1965.

      Stone & Stone, Amarillo, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, Gibson, Ochsner, Harlan, Kinney & Morris, Miller, Sanders & Baker, Amarillo, for appellees.
   DENTON, Chief Justice.

Appellants, Thora Parkins, Mary Arnold, Drummond Whaley, and C. Wayne Gooch, brought this suit against N. Finley Martin, Administrator, National Surety Corporation, Charles H. and C. A. “Chet” Holding, heirs and legal representatives of Glenn T. Holding, deceased, by way of bill of review to revise and correct certain orders and judgment in the administration of the Glenn T. Holding Estate. Both the probate court and district court in a trial de novo sustained the defendants’ special exception which raised a plea of limitations. Upon appellants’ refusal to amend their application, the trial courts granted judgment for appellees.

Glenn T. Holding died intestate on May 5, 1960. On August 11, 1960, appellee N. Finley Martin made application for Letters of Administration, which was granted by the probate court judge on August 22, 1960. The administrator filed his oath on the same date. On September 22, 1960, the administrator’s bond was filed and approved. An Inventory and Appraisement and additional inventories were duly filed and approved. Thereafter, on August 30, 1961, the administrator filed his petition for distribution, at which time citation by publication was issued. It was published on August 31, 1961. The citation was addressed to “Charles H. Holding and C. A. “Chet” Holding, and to all persons and parties and each of the persons and parties interested in the Estate of Glenn T. Holding, Deceased, and the heirs of Glenn T. Holding, Deceased, whose names and addresses are unknown.” On appearance day, September 11, 1961, the County Judge entered a Decree for Partition which found Charles H. Holding and C. A. “Chet” Holding were the sole and only surviving heirs of Glenn T. Holding; found each were entitled to one-half of the estate; and directed the administrator to pay and deliver to each of said named heirs one-half of the Estate of Glenn T. Holding, Deceased. On November 6, 1961, the Probate Court entered its “Order Approving Final Account and Ordering the Distribution of the Remaining Property and Discharge of Administrator.” On November 1, 1963, appellants filed their petition for bill of review in the probate court. It is this application which forms the basis of this suit. Appellees’ special exception was leveled to the bill of review and raises the question of limitations.

The ultimate question to be determined is whether the two-year period of limitation applies to the probate court’s order of September 11, 1961, or the order of November 6, 1961. Section 31, Probate Code, V.A. T.S., provides:

“§ 31. Bill of Review
“Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment. Persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to apply for a bill of review.”

Obviously appellants’ petition for bill of review which was filed November 1, 1963, was within the two-year period after the entry of the order of November 6, 1961, but more than two years after the entry of the September 11, 1961, order. Thus, the question is which order of the probate court governs the limitation period which applies to appellees’ application for bill of review under the provisions of Section 31 of the Probate Code.

Appellants take the position that due to the fact the various inventories filed by the administrator reflect the estate consisted of some real estate, the probate court’s decree for partition on September 11, 1961, which stated the estate on hand consisted solely of money and debts due the estate, was in conflict with the record facts. It is thus their argument the court’s order of September 11 is void or of no effect. If this be so appellants’ bill of review was timely filed. Appellants further contend that due to the fact the estate did consist of real estate, a partition of the estate must comply with Sections 380 and 381 of the Probate Code rather than Section 379.

It is undisputed the probate court did not comply with Sections 380 and 381 in partitioning or distributing the estate. Appellants contend the fact the partition decree of September 11 was entered without a partition by a Commission as prescribed by Section 380 renders the decree a nullity. In support of this position appellants cite Section 37 of the Probate Code for the proposition that when one dies intestate his estate vests immediately in his heirs at law, and that a conveyance of the estate or a part thereof grants to the assignee only such right as the heir might have when the administration is closed. In support of this contention appellants also cite Rutherford v. Stamper, 60 Tex. 447; Blinn v. McDonald, 92 Tex. 604, 46 S.W. 787; Littlefield v. Ungren (Tex.Civ.App.), 206 S.W.2d 152. The contention is made that such a conveyance, if there was in fact a conveyance, does not remove the property from the jurisdiction of the probate court and that, therefore, the partition decree of September 11 granted no final and irrevocable right to the estate to Charles H. and C. A. “Chet” Holding.

It is undisputed the Probate Court of Potter County had exclusive original jurisdiction over the estate of the deceased. The administration of an estate is an in rem proceeding; and once its jurisdiction attaches, the court’s orders are not void upon its failure to appoint commissioners to partition the real estate. Hirshfeld v. Brown, Tex.Civ.App., 30 S.W. 962; Heath v. Layne, 62 Tex. 686. Assuming, arguendo, the order of September 11 was incorrect when it stated the estate consisted “solely of money and debts due the estate”, this finding does not render the order void. It may have been erroneous, but not void. We conclude the order of September 11 can not be declared void simply because the statutory requirement of appointing a commission to partition the estate had not been followed. Rye v. J. M. Guffey Petroleum Company, 42 Tex.Civ.App. 185, 95 S.W. 622. As stated in Heath v. Layne, Supra:

“the doctrine has become firmly established in this state that the court has jurisdiction of the estate, and that orders of sale of real property without the notice prescribed are not void, but are irregular and voidable. And that such orders may be vacated and set aside by those interested in the estate, by direct proceeding for that purpose instituted in the tribunal and within the time prescribed by law.”

Being of the opinion the order of September 11 is not void, but voidable, we must now determine whether this order governs the running of the limitation period as it relates to the appellants’ petition for bill of review. The Decree of Partition, after determining the whole Holding estate was susceptible of fair and equal partition and distribution, made a determination of heirship and ordered distribution of the estate to the two named heirs. The controverted issue in this case is whether or not Charles H. and C. A. “Chet” Holding are the sole and only surviving heirs of Glenn T. Holding, Deceased. This issue was adjudicated by the Decree for Partition of September 11, 1961. The court’s order of November 6, which ordered distribution of the remaining property and discharged the administrator, made no determination of heirship. It referred to the order of September 11 which had made the heirship determination and recognized that simultaneously with the entry of the November 6 order, the administrator “had delivered all of said estate remaining in his hand * * * one-half (Yz) to Charles H. Holding; and one-half (Yz) to C. A. ‘Chet’ Holding; and that none of such estate remains in the hands of this representative.”

In discussing the right of appeal under Section 28 of the Probate Code, the Supreme Court in Fischer v. Williams, 160 Tex. 342, 331 S.W.2d 210, held:

“Under Section 28 of the Probate Code, formerly Article 3698, Revised Civil Statutes of Texas, in order to authorize an appeal in a probate matter, it must be an appeal from a decision, order, decree, or judgment which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. See Halbert v. Alford, 82 Tex. 297, 17 S.W. 595. We interpret Section 28, supra, to mean that it has application only to such decisions, orders, or judgments as at the end of a term would be held to have conclusively adjudicated some controverted question or right, unless set aside by some proper appellate or revisory procedure.”

As stated the September 11 order disposed of the issue of heirship and disposition of the estate in question. That is the basis of the present controversy. It is the order which precludes appellants’ interest, if any, in the estate. As the petition for bill of review was filed November 1, 1963, more than two years after the entry of the September 11, 1961 order, it was not timely filed under the provisions of Section 31 of the Probate Code.

Appellants next contend the estate was prematurely partitioned and distributed in that it was so ordered less than twelve months after the original grant of Letters of Administration. Section 373(a) of the Probate Code specifically makes this requirement; but the record does not reflect the orders of the probate court did violence to this section. Application for Letters of Administration was filed by Martin on August 11, 1960. Following proper citation the probate court granted the application for Letters of Administration on August 22, 1960. Martin’s bond was executed, filed, and approved on September 22 of that same year. It is appellants’ position that since the administrator’s bond was not filed and approved until September 22, 1960, the decree for partition of September 11, 1961, was prior to the expiration of twelve months after the “original grant of Letters” and was therefore void. That is to say, appellants urge that the twelve-month requirement should be measured from the date of the qualification of the administrator which would be September 22, 1960. Such an interpretation would be contrary to the very language of Section 373(a). That section reads:

“(a) Who May Apply. At any time after the expiration of twelve months after the original grant of letters testamentary or of administration, the executor or administrator, or the heirs, devisees, or legatees of the estate, or any of them, may, by written application filed in the court in which the estate is pending, request the partition and distribution of the estate.”

The probate court grants letters of administration or testamentary. The clerk of that court issues the letters. See Sections 181 and 182 of the Probate Code. Martin’s petition for distribution, filed August 30, 1961, was clearly more than twelve months after the original grant of Letters of Administration by the probate court on August 22, 1960, and was in compliance with the provisions of the Probate Code.

Appellants next contend the failure of the probate court to appoint an attorney ad litem to represent the unknown heirs of the deceased pursuant to Section 376 of the Probate Code renders the court’s Decree of Partition of September 11 void, and that such failure violates the Texas Constitution and the Fourteenth Amendment of the United States Constitution. Section 376 provides for the appointment of a guardian ad litem for minors or persons of unsound mind and the appointment of “an attorney to represent non-residents and unknown parties having an interest in the estate, if there be any.” It is undisputed that the court below did not appoint an attorney for the unknown parties. We think our ruling relative to appellants’ contention that the Decree of Partition of September 11 was void because of the court’s failure to appoint commissions to partition the estate is applicable to the contention made here. The proceeding was one in rem and the probate court’s jurisdiction had attached. It is well settled that the failure of a court in the exercise of a valid judicial power to observe a direction of a statute, which has to do with the exercise of the power, not the power itself, may render the order or decree voidable, but will not render it void. Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66; Hirshfeld v. Brown, Supra; Heath v. Layne, Supra; and Montgomery v. Carlton, 56 Tex. 361. Neither the Texas Constitution nor the Fourteenth Amendment of the United States Constitution, which guarantees that no State shall deprive a person of life, liberty and property without due process of law, deprives our courts of jurisdiction to determine the property rights of persons within their respective jurisdictions in a case properly before it. Tracy v. Ginzberg, 205 U.S. 170, 27 S.Ct. 461, 51 L.Ed. 755.

The judgment of the trial court is affirmed.