author: HUNTER, Judge.

text:
    Ricky Lee REED, a Minor, by Norma Reed, Next Friend, Plaintiff-Respondent, v. Samuel Owen BURKS et al., Defendants-Appellants.
    No. 24101.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Motion for Rehearing or Transfer to Supreme Court Denied July 15, 1965.
    Terence C. Porter, Columbia, for defendants-appellants.
    Granville E. Collins, Fulton, T. E. Lauer, Columbia, for plaintiff-respondent.
   HUNTER, Judge.

This is an action for damages brought by Ricky Lee Reed, a minor, by Norma Reed, his next friend against Samuel Owen Burks and Ruby Fay Mirts, administratrix of the estate of Francis Leon Robison, deceased. The case as to Burks was submitted on a lookout instruction hypothesizing a duty on Burks to turn his car to his right to avoid the collision without requiring any finding as to which side of the road the Burks car was on or that Burks could turn with safety to himself and the occupants of his vehicle. Plaintiff obtained a jury verdict and judgment for $11,590.00 against both Burks and Mirts. Only defendant Burks has appealed.

The collision on which this action is based took place on July 9, 1962, at approximately 7:45 p. m. on Callaway County Route “N” about five-tenths mile north of the intersections of County Route “N” and “B” where a northbound Chevrolet driven by Francis Leon Robison, collided with a southbound 1955 Pontiac driven by Samuel Owen Burks. The collision occurred at or about the crest of a hill described as being sharp and which obstructed the view of each driver until certain specific points were reached. Other than a few inches in width of gravel, there were no shoulders on either side of the blacktop paved portion of the road which was 17 feet in width. The road had no marked center line. There was a ditch of unstated depth on the west side of the roadway.

Immediately prior to the collision, plaintiff, then age 11, was riding in the middle of the front seat of the Chevrolet automobile being driven by Robison. George Byrd was sitting at plaintiff’s right and there was another passenger in the rear. Burks was accompanied in his automobile by his two small children. The driver and one passenger in the Robison vehicle were killed.

There was divergent testimony as to how the collision occurred. Evidence on behalf of defendant Burks was that prior to the collision his Pontiac automobile was traveling about 45 to 50 miles an hour. It was being operated entirely on the right hand side of the roadway, twelve inches from the west edge of the blacktop. Its headlights were not burning.

The northbound Robison Chevrolet was being operated at a speed stated variously as “65”, “65 to 70” and “70” miles per hour. Its headlights were burning. According to Burks, the Chevrolet when he first saw it was positioned on the road so that its left front wheel was in the front center of Burks’ Pontiac (and, hence, the Chevrolet inferentially was well over onto its wrong side of the road).

However, according to witness George Byrd, the Chevrolet was being operated “mostly on his side” * * * “His left front wheel was right about the center of the road.” * * * “Q. Now, then, when you sighted Burks car, was it on its own side of the road? A. No. Q. Where was it? A. The left front wheel was over the middle.” * * * “His front wheel was over the center line.” * * * “You know when you saw it coming, it was on the wrong side of the road? A. Yes, sir.” Byrd didn’t see the Pontiac until it was “right in front” of him, and he stated Robison cut his car to the right and hit his brakes before the collision. According to Byrd the impact occurred about 40 feet (south) from the top of the hill.

Defendant Burks testified he was looking ahead at the road as he drove along but didn’t see the approaching Chevrolet until it was “two or three car lengths” from him. At that point, according to Burks, he was still about 40 feet away from the crest of the hill. “I just seen he was direct in front of me and I knew we was going to hit.” He instantly applied his car brakes. “I cut my car to the right and threw my arm in front of the children.” Then the impact occurred.

Highway Patrolman Fischbeck, who arrived at the scene shortly thereafter placed the collision at the crest of the hill, “where the tire marks begin”. Fischbeck stated the left front tire mark (from braking) of the Burks car started 7 feet east of the west edge of the roadway. At that same point the left tire marks of the Chevrolet were found to be one foot east of those of the Pontiac or 8 feet east of the west edge of the pavement. The Pontiac after the collision traveled about 267 feet south, stopping at a culvert which was approximately 347 feet south of the crest of the hill. The Pontiac’s skid marks continued 51 feet on the pavement gradually leaving the road on its right side, and on down the ditch line about 216 feet. The Chevrolet tire marks went 24 feet down the road, then left the roadway, went another 126 feet north and then got hack on the road. At that point the Chevrolet turned over and went on for another 156 feet.

Trooper Fischbeck testified that in his opinion the two cars “collided where the tire marks begin”. He stated if there had been a center line on the road none of the tire marks on the Pontiac would have been on the left (or wrong) side of the center line, and that the Pontiac must have been completely on its side of the road at the impact point.

The damage to the Burks Pontiac from the collision was on the left side, beginning at the left headlight, and extended along the left side. The damage to the Robison Chevrolet was at the left side, beginning about the left front door. There was damage to the front headlight which may have occurred when the car rolled over.

On this appeal appellant Burks makes four contentions of trial error. The first is that plaintiff did not make a submissible case of primary negligence against Burks because there was no evidence from which the jury could have found that Burks could have avoided the collision by swerving his automobile to the right.

The rule is that in determining the submissibility of a plaintiff’s case, plaintiff is entitled to have the evidence reviewed from a standpoint favorable to plaintiff, giving him the benefit of any of defendant’s evidence favorable to plaintiff, plus the benefit of all reasonable inferences from all the evidence, and defendant’s evidence unfavorable to plaintiff is disregarded.

So viewed, as the two cars approached near the crest of the hill, Burks’ car was partly on its wrong side of the 17-foot road and the Robison car was mostly on its proper side of the road with its left front wheel right about the center of the road. The pictures in evidence support an inference the two cars did not meet directly head-on but rather to some extent “sideswiped”.

Byrd testified the impact occurred 40 feet south of the crest of the hill. Nelson West, the county engineer, testified that from a point 65 feet north of the hill crest a southbound driver has a clear view of the road for 368 feet ahead of him. Under this version of the evidence, when the Burks vehicle was 65 feet north of the hillcrest and thus was 105 feet (65 plus 40) from the point of impact of the vehicles he could see the approaching Chevrolet. Viewing the evidence most favorable to plaintiff, the Burks car was traveling 45 miles per hour which, according to the testimony, is 66 feet per second. Accordingly, after Burks could have seen the approaching Chevrolet he had approximately 1.6 seconds in which to turn before the impact occurred.

According to some testimony, the Robison Chevrolet was going 60 miles an hour which is 88 feet per second; hence, in 1.6 seconds it traveled 140 feet from the point where Burks could have seen it to the point of impact. Thus, the two automobiles, under this version of the evidence, were 245 feet apart when Burks first could have seen the approaching Chevrolet. There was testimony that the average reaction time involved is three-fourths of a second. As stated in Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, 788, “The courts will take judicial notice that when a situation demanding some action arises some appreciable time is required for a motor driver, a motorman or an engineer to react to the appearance of danger to begin to avoid the situation. Unless a longer time affirmatively appears in the proof the courts recognize that such reaction time is three-quarters of a second.”

Allowing three-fourths of a second for reaction time, Burks had 1.60 seconds less 0.75 seconds average reaction time in which to endeavor to avoid impact between the vehicles. Mathematically, he had 0.85 of a second in which to avoid impact after allowing for average reaction time. In so saying, we have trepidations, for the particular circumstances presented — near dusk, a narrow blacktop road, no shoulders, a ditch on Burks’ side of the road, and no marked middle line on the road make it logical that even more than average reaction time was required. See Stimeling v. Goodman, 202 Va. 111, 115 S.E.2d 923(2).

We have reached the conclusion that the stated facts do not present a submissible jury case on failure to keep a careful lookout. The jury in order to find Burks negligent by reason of failure to keep a careful lookout on the facts before it would have to engage in variable surmises and speculation as to what evasive action Burks could take in 0.85 of a second or less. When a single second is dissected into a fraction and there is no showing as to how far Burks must turn to his right to avoid impact of the vehicles in that flash of time, it leaves the question of Burks’ negligence to conjecture and speculation. To have a submissible case more is required than a showing of a purely speculative possibility that a collision might have been avoided if a careful lookout had been maintained. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495.

Having reached the conclusion just announced, it is unnecessary to examine other contentions of error presented by appellant. This case, if retried, will be subject to the new pattern instructions effective as of January 1, 1965.

It is the rule that the furtherance of justice requires a case should not be reversed without remanding unless the appellate court is convinced the facts are such that a recovery cannot be had. Reece v. Reed, Mo.Sup., 326 S.W.2d 67. Since there was evidence (if credible) that Burks was proceeding to some extent on the wrong side of the road the case should be remanded for a new trial.

The judgment is reversed and the cause is remanded.

All concur.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    Willie MORRIS et al., Appellants, v. E. Boswell PORTER, Appellee.
    No. 14462.
    Court of Civil Appeals of Texas. Houston.
    April 8, 1965.
    Rehearing Denied May 6, 1965.
    On Rehearing June 24, 1965.
    Rehearing Denied Sept. 9, 1965.

      J. Leonard Gotsdiner, Ranseler O. Wyatt, Houston, for appellants.
    Joe H. Reynolds, Stanley B. Binion, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee (on motion for rehearing).
   COLEMAN, Justice.

This is a suit to set aside a deed by which Ed Morris conveyed his undivided interest in a 55 acre tract of land located in Burle-son County, Texas, to E. Boswell Porter. This suit was brought by Willie Morris, the surviving wife of Ed Morris, and his heirs at law, on the ground that Willie Morris did not join in the conveyance and that the property conveyed was the homestead of Ed and Willie Morris. Based on a jury verdict a judgment was entered for the defendant. Appellee has filed no brief.

Ed Morris inherited an undivided 1/3 interest in a 55 acre tract of land, being a portion of a 100 acre tract conveyed by the Gabriel Jackson Estate to Ferrell Morris by deed recorded in Vol. Y, pages 472-473, Deed Records of Burleson County, Texas, and described by metes and bounds in the deed from Ed Morris to E. Boswell Porter recorded in Vol. 129, pages 578-579 of the Deed Records of Burleson County.

Ed Morris and Willie Morris were married in 1923, and made their residence on this tract of land. Ed Morris lived in the same house until his death in March of 1958. He died intestate and without issue. In 1943 Ed Morris borrowed $761.37 from H. H. Womble and executed a note bearing interest at the rate of 10% per annum, and, to secure the note, executed a deed of trust to the land in question. In 1948 Womble sold the note to Porter for $175.00, and Porter received and recorded an assignment of the note and deed of trust. Morris made no payments on the note. In 1952 Morris executed a renewal and extension agreement. At the time these instruments were executed all parties concerned knew that Ed and Willie Morris were living on the property. In 1957 Ed Morris, without the joinder of his wife, deeded the property to Porter in satisfaction of the pre-existing indebtedness. According to the testimony of Mrs. Morris she was living with her husband in the home at that time. Other witnesses testified that prior to the death of her husband Mrs. Morris moved out of the house into a vacant house owned by her daughter about two miles from the property in question. None of these witnesses were sure about the date. Two witnesses testified that Willie told them she had left Ed and that she didn’t intend to live there any more. All of them testified Ed visited her frequently and that she went to see him at the home. Appellee testified that after Willie began staying in her daughter’s house, Ed “went to see her all the time,” and that Ed was living on the land at the time he signed the deed. All of the witnesses testified that Ed and Willie got along together well and none of them knew of any misconduct on the part of either.

Mrs. Morris testified that she moved into her daughter’s house because her daughter was working in Houston and the insurance policy required someone to live in the house. She said she left temporarily and just took some clothing. There was some furniture in the house. She testified that her husband came to the daughter’s house to have his meals with her and that she went back to the home to look after him. She testified that she left with his permission and got a little girl to stay with her at nights. She testified that she didn’t move there, but that she was staying there. After her husband died she moved into the home of another daughter, but went back to the home to look after her chickens. About six months after her husband died she became ill and has not since been able to care for herself.

The trial court submitted only one issue to the jury: “Do you find from a preponderance of the credible evidence that at the time Willie Morris removed from the premises in controversy, she did not intend to return to the same or to use the same as a homestead?” To this issue the jury answered, “Yes”.

There is authority that a voluntary deed purporting to convey a homestead, executed by the husband alone as the culmination of a plan to mortgage a homestead, and beginning with a void deed of trust, is void. Burkhardt v. Lieberman, 138 Tex. 409, 159 S.W.2d 847, opinion adopted. However, there being in the record some testimony tending to show that the deed was executed without pressure being exerted on Ed Morris, fuller consideration of the questions presented by this appeal is desirable.

Sinee it is uncontroverted that the premises had been devoted to use as a homestead, the burden of proof on the issue of abandonment was upon appellee. Tyler v. Thomas, Tex.Civ.App., 297 S.W. 609, aff’d on this point, Tex.Com.App., 6 S.W.2d 350.

The time Willie Morris moved from the premises is not definitely established except by her own testimony. There is a question of fact as to whether she was living in the home at the time the deed in question was executed. It is clear that under the constitution and laws of Texas a deed to premises being used as a homestead is invalid as to the interest of the wife when executed by the husband alone. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35; Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2; Schulz v. L. E. Whitham, 119 Tex. 211, 27 S.W.2d 1093.

Since the land in question had been dedicated to use as a homestead prior to the execution of the deed, Willie Morris had a vested interest in it of which she could not be divested except by abandonment or a voluntary conveyance in the manner prescribed by law. Paddock v. Siemoneit, 147 Tex. 571, 218 S.W.2d 428, 7 A.L.R 2d 1062.

Obviously if she were living in the house at the time the deed was executed, it was invalid insofar as her homestead rights were concerned. The issue on abandonment, as answered, cannot be construed as a finding that Mrs. Morris abandoned her homestead rights prior to the execution of the deed since there is a question as to when she left the home.

There is no testimony that after the death of her husband Mrs. Morris removed her personal property from the house. She testified without contradiction that she returned to the premises to care for her chickens. The testimony establishes use for homestead purposes. It is well settled that while occupancy or qse continues, the homestead rights cannot be lost by intention alone. Schulz v. L. F. Whitham, supra; Jefferson County Investment & Building Ass’n v. Gaddy, Tex.Civ.App., 90 S.W.2d 295, error ref.

In Gouhenant v. Cockrell, 20 Tex. 96, the Supreme Court said: “ * * * in the absence of a new home, the old ought not to be held subject to the claims of creditors, unless the proof of ‘total abandonment with an intention not to return’ be undeniably clear, and beyond almost the shadow, at least all reasonable ground, of dispute.”

In Milliken v. Coker, Tex.Civ.App., 90 S.W.2d 902, reversed in part, 132 Tex. 23, 115 S.W.2d 620, the court held that “Certain and conclusive evidence of abandonment, with no intention to return and claim the exemption”, is required before a homestead, once occupied as such, can be subjected to forced sale.

The evidence in this case does not meet this test. Since the property involved was the separate property of Ed Morris, Mrs. Morris, as the surviving wife, should have recovered a judgment establishing her homestead right in the entire undivided interest of her deceased husband in this property. Her homestead right is in the nature of, and equivalent to, a life estate. Sparks v. Robertson, Tex.Civ.App., 203 S.W.2d 622; Woods v. Alvarado State Bank, supra.

The deed of trust, previously described, constituted an attempted encumbrance on the homestead. Its validity is determined by conditions existing as of the date of the execution. Since it was not executed by Mrs. Morris, it was void, as was the extension and renewal instrument. Hays v. Hays, 66 Tex. 606, 1 S.W. 895; J. P. Wooten Motor Co. v. First Nat. Bank of Swenson (Com.App.), 281 S.W. 196.

A case with essentially the same facts as this, Rogers v. Renshaw, 37 Tex. 625, held that a deed to the homestead, executed by the husband, without joinder of his wife, was a nullity and conveyed no rights whatsoever. The husband had no children and the wife brought the suit after the death of the husband. This case was followed by the Supreme Court in Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2, in which the Court said:

“What is prohibited by law is as clearly invalid as if it had been declared void. The alienation of the homestead by a married man without the consent of the wife, evidenced in the manner required by law, being prohibited, his attempted conveyance without her joining in the deed is void, in so far as it in any manner affects her interests. The mere privilege of possession and enjoyment is not the measure of her right in the homestead. With the concurrence of her husband, she may exchange it for another. She may consent to a sale with a view to the investment of the proceeds in a new homestead, or in view of her husband’s receiving such consideration as she may deem an adequate compensation for the alienation of the shelter for the family. It is clear that the judgment in this case does not secure to her these rights. It is not practicable to carve out her interest in the property, and it is our opinion that the framers of the constitution never intended that this should be done.”

The Court cited Goff v. Jones, 70 Tex. 572, 8 S.W. 525; Irion v. Mills, 41 Tex. 310, and Marler v. Handy, 88 Tex. 421, 31 S.W. 636, in which a husband’s deed to the homestead was given effect, and distinguished each of them. Commenting on Marler v. Handy, supra, the Court said:

“The wife having ceased to have any interest in the former homestead as such, no reason was seen to exist why the deed should not take effect. It is said in that case that the deed is not void; but it was not meant that it was valid as to the wife, or that it could in the slightest manner effect her rights before a new homestead was acquired. The fact that it was held in those cases that the deed was not so far void as to prevent it from operating by way of estoppel against the husband, when the wife’s interests may cease, does not justify the conclusion that it was to have any operation whatever so long as the right of homestead in the property should continue to exist.”

This case has been cited as authority by the Supreme Court and the Courts of Civil Appeals in many subsequent cases. In Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, the court cited Stallings v. Hullum, supra, and Cole v. Bammel, 62 Tex. 108, as authority for the proposition that an instrument changing or modifying the limitation imposed by the wife in an oil lease was an encumbrance diminishing the value of the homestead property, and then held the instrument void as to the wife.

In Cleveland v. Milner, 141 Tex. 120, 170 S.W.2d 472, opinion adopted, in a case where there was an attempt to partition three lots by mutual deeds, but where there was no joint ownership of one of the lots, the Court, opinion by Justice Smedley, held the transaction to be an attempted sale, and said:

“Since Cleveland’s wife did not give consent, in the manner provided by Article 4618 of the Revised Civil Statutes of 1925, to the sale or exchange of the property in which she had a homestead right, she and her husband are entitled to recover the interest in Lots One and Two that the husband’s deeds undertook to convey. Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2.”

In Logan v. Aiken, Tex.Civ.App., 123 S.W.2d 401, error dism., judgment correct, the trial court found that a deed by the husband attempting to convey his separate property without the joinder of his wife was void as a conveyance insofar as it affected the homestead character and use by the husband and wife, but that it was not wholly void and should the homestead character and use of the premises be terminated by abandonment or otherwise, the owner of the remainder interest would become owner of the full title and entitled to the immediate use and possession of the premises. The Court of Civil Appeals reversed that part of the judgment upholding the deed and decreeing a foreclosure of liens created by the grantee therein, and reformed the judgment so as to allow the homestead claim of the wife in the premises free and clear of all liens. In the opinion the court stated that the case was ruled by Stallings v. Hullum.

In Cates v. Greene, Tex.Civ.App., 114 S.W.2d 592, the court held:

“The property being community, it could be sold by the husband alone, subject to the homestead rights of the wife. Such homestead rights constituted an estate in the property. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35. _ Neither this estate nor any of its incidents could be alienated by the husband alone, nor by the husband and wife jointly, unless the wife should acknowledge the conveyance in the manner prescribed by law.
“The proposition that the lease was effectual as to the husband and would become operative whenever the homestead right terminated, and that therefore the trial court committed error in canceling the lease, is not tenable. This point was expressly ruled in Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2.

We think it well established that during the lifetime of the husband and while the homestead use continues, a deed attempting to convey the homestead, executed by the husband alone, can be set aside in its entirety by suit in which the wife asserts her homestead rights.

It is also established that the homestead right of the wife survives the death of her husband even though there are no children or other constituent members of the family. Woods v. Alvarado State Bank, supra.

Nor do we think her inability to reside on the premises because of her physical condition as a matter of law deprived her of the homestead right. We cannot say that her absence from the home is permanent. West Texas State Bank of Snyder v. Helms, Tex.Civ.App., 326 S.W.2d 47.

Appellants did not file a motion for judgment notwithstanding the verdict. They filed a motion for instructed verdict. If material questions of fact are raised by the record, therefore, it is our duty to remand the case for a new trial. We think, however, that the trial court erred in refusing to instruct a verdict in favor of appellants. There is no more than a scintilla of evidence to show that Willie Morris voluntarily and without cause permanently abandoned her husband. Since he remained on the premises and continued to use the property as his home until his death, the homestead could not have been conveyed by him alone in the absence of such conduct on her part. Duke v. Reed, 64 Tex. 705; Earle’s Executors v. Earle, 9 Tex. 630; Heidenheimer v. Thomas, 63 Tex. 287; Schulz v. L. E. Whitham, 119 Tex. 211, 27 S.W.2d 1093; Murphy v. Lewis, Tex.Civ.App., 198 S.W. 1059; Smith v. McBryde, Tex.Civ.App., 173 S.W. 234; Priddy v. Tabor, Tex.Civ.App., 189 S.W. 111, error ref.

Since Willie Morris has exercised her right to set aside the deed to the family homestead executed by her husband alone, the deed is ineffective for any purpose. Ed Morris died intestate without issue. Willie Morris as his surviving wife inherited an undivided one-half of his separate real estate, and Vance Morris and Mittie Morris, two of the six children of Ferrell Morris, Jr., a brother, each inherited an undivided %2th of his said real estate, the remainder having been inherited by other children and grandchildren of Ferrell Morris, Jr., not parties to this suit. Probate Code, §§ 38 and 43.

The judgment of the trial court is reversed and judgment is here rendered that the deed from Ed Morris to E. Boswell Porter, hereinbefore described, be can-celled; that the lien created by the deed of trust from Ed Morris to H. H. Womble recorded in Volume Z, pages 546-548, Deed of Trust Records of Burleson County, Texas, as well as all renewals and extensions thereof, be cancelled and annulled; and Willie Morris is adjudged to be owner in fee of an undivided one-sixth of the 55 acre tract of land described in the deed from Ed Morris to E. Boswell Porter and the possessor of a homestead estate in the entire interest in that tract of land owned by Ed Morris prior to his death. Judgment is further rendered that Vance Morris and Mittie Morris each own in fee an undivided one-twelfth of the undivided one-third interest in the 55 acre tract of land which was owned by Ed Morris prior to his death. All costs are adjudged against appellee.

Reversed and rendered.

On Motion for Rehearing

After reexamining the evidence on the issue of whether Willie Morris permanently separated from her husband prior to the execution of the deed in question, we have concluded that the testimony concerning the declarations against interests made by Willie Morris are sufficient, considered alone, to raise an issue for the jury.

The issue submitted should have been so wofded as to establish the existence or nonexistence of the homestead right at the time the alleged deed from Ed Morris to appellee was executed. This was the ultimate defensive issue. This defect was brought to the attention of the court in the objections to the court’s charge made by appellant. Therefore findings of fact cannot be implied to support the judgment. Rule 279, Texas Rules of Civil Procedure. Since the issue submitted will not support the judgment entered without a finding of fact establishing that the homestead right was abandoned at the time of the execution of the deed, the trial court should have entered judgment for appellants. This Court has properly entered such a judgment.

The motion for rehearing is overruled.

On Second Motion for Rehearing

In his second motion for rehearing appellee points out that the instrument included in the transcript denominated “Plaintiffs’ Objections and Exceptions to The Court’s Charge” bears no notation showing that it was presented to the trial judge and no ruling is endorsed thereon and signed by the judge, as required by Rule 272, T.R.C.P. The purported objections to the court’s charge cannot be considered by us. Ramsey v. Polk County, Tex.Civ.App., 256 S.W.2d 425; Gowan v. Reimers, Tex.Civ.App., 220 S.W.2d 331, ref., n. r. e.

In the absence of a sufficient showing that appellants pointed out to the court the necessity of securing a jury finding that Willie Morris separated from her husband prior to the execution of the deed in question and that the charge to the jury was objected to on that ground, it will be presumed that appellants waived their right to a jury trial on that issue. Rule 274, T.R.C.P. Since there is sufficient evidence to support a finding that Willie Morris left the home of her husband prior to the date on which he executed the deed in question, it will be presumed in support of the judgment rendered that the trial court so found. Rule 279, T.R.C.P.; Panhandle & S. F. Ry. v. Friend, Tex.Civ.App., 91 S.W.2d 922.

Appellants have urged that the verdict of the jury is “contrary to the evidence.” We take this to be an assignment that the verdict is so contrary to the great weight and preponderance of the evidence as to be clearly wrong, rather than an assignment that the verdict is supported by no evidence. We sustain this assignment.

Appellee’s second motion for rehearing is granted. This Court’s former judgment is vacated, set aside and annulled; and the trial court’s judgment is now reversed and the cause remanded for a new trial.


author: DENTON, Chief Justice.

text:
    Edward D. SAWYER et al., Appellants, v. BOARD OF REGENTS OF CLAREDON JUNIOR COLLEGE et al., Appellees.
    No. 7512.
    Court of Civil Appeals of Texas. Amarillo.
    July 6, 1965.
    Rehearing Denied Sept. 7, 1965.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, Knorpp & Slavin, Clarendon, for appellees.
   DENTON, Chief Justice.

This is an election contest. This appeal is from a judgment entered after the consolidation of two cases filed in the trial court. In Cause No. 3139 appellant, Edward D. Sawyer, filed suit against the Board of Regents of Clarendon Junior College and the County Attorney contesting an election held on January 28, 1964, which the Board had called for the purpose of determining whether the Board should have the power to levy and collect an ad valorem tax on taxable property in the junior college district for the maintenance of the college at a rate not to exceed 85 ^ on the $100.00 valuation. Cause No. 3164 was filed by appellant Sawyer and other resident taxpayers against the Board of Regents and junior college district contesting the same election and seeking an injunction to prohibit the defendants from giving effect to such election by levying, assessing, or collecting taxes authorized by such election. The election resulted in authorizing the Board of Regents to levy and collect the proposed ad valorem tax by 535 votes for to 319 votes against. The trial court, without a jury, entered judgment denying the election contest and the injunctive relief sought and declared the election valid.

Appellants’ first contention is that the election of January 28, 1964, is invalid for the reason it was called and held at a time when litigation involving two previous elections were pending in the courts. The previous elections were held on December 21 and on December 27, 1962. The election of December 21, called by the County School Trustees of Donley County, was to determine whether or not the territory in the Clarendon Consolidated Independent School District should be annexed and included in the junior college district for junior college purposes only. The December 27 election, called by the Junior College Board of Trustees, was to determine the power of the junior college district to levy and collect ad valorem taxes on taxable property within the district. Both elections carried and were subsequently contested by three suits which were later consolidated. The trial court’s judgment declaring these elections valid was appealed to this court. On December 23, 1963, this court reversed the trial court and rendered judgment that the two elections were void and of no effect. See Derrick v. County Board of Education of Donley County, 374 S.W.2d 259. Appellee’s motion for rehearing was denied January 20, 1964, and on March 25, 1964, the Supreme Court dismissed appellee’s application for writ of error, and this court issued its mandate on May 15, 1964. The election under consideration here was called by the Junior College Board of Regents on January 3, 1964. This election was called after the decision of this court was announced in the prior case and before the motion for rehearing was acted upon. That decision did not become final until the Supreme Court dismissed appellee’s application for writ of error.

As we understand it, appellants take the position the pending litigation deprived ap-pellees of the power and jurisdiction to call and hold the election on January 28, 1964. The argument is that jurisdiction of this court had attached and pending a final judicial determination of the validity of the first elections, which result would determine the boundaries of the junior college district, the appellees had no authority to call and hold the election involved here.

In support of this contention appellants cite State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; Lynn County School Board v. Garlynn Common County Line School District (Tex.Civ.App.) 118 S.W.2d 1070, (Error Refused); Wichita Common School District No. 11 v. Dickens Independent School District (Tex.Civ.App.) 206 S.W.2d 885 (Error Refused); Singleton v. Smithers (Tex.Civ.App.) 359 S.W.2d 152 (Refused, NRE); among others. In the Baker case the County Judge of Hidalgo County had ordered an election to determine whether a certain common school district should be incorporated as an independent school district. After the election had been ordered and before it was held, the County Board of Trustees of that county ordered a redistricting of the common school district so as to place a portion of that district into two other adjacent common school districts. In holding the Board of Trustees’ order invalid, the Supreme Court enunciated the general rule as follows :

“It is the rule of this state and practically the universal rule that, where co-ordinate jurisdiction over a particular subject-matter is vested in two distinct tribunals, the tribunal first acquiring jurisdiction has the right to retain jurisdiction until it has completely disposed of all matters and issues so presented to it, and no co-ordinate tribunal has any right to interfere with the tribunal first acquiring jurisdiction.”

This same rule was followed in the cases cited above in which conflicting actions were, taken by various officials or school boards. It is appellants’ position this rule is applicable here and that such rule of law makes the election of January 28 invalid. We are unable to agree. The cases are distinguishable on the facts and the issues involved. In the first place the election of December 21, 1962, was an election to determine whether the Junior College District was to he expanded. No such question was presented in the election here under consideration. The election of December 27, 1962, was to determine the power of the Junior College District to levy and collect ad valorem taxes within the expanded area; whereas the election here dealt with the power of the Junior College District to levy and collect ad valorem taxes on property lying within the old Junior College District or that area constituting the district before the 1962 election was called and held. The 1962 election was for the purpose of setting the rate of tax as not to exceed 605! per $100.00 valuation; and the 1964 election authorized a rate not to exceed 85{5 per $100.00 valuation. The subject matter of the 1962 elections and the 1964 election was related but not identical.

We specifically held in the Derrick case that the elections of 1962 were void and of no effect. There were no conflicting actions taken by the Junior College Board of Regents and the Donley County Board of Education. The elections of December 21 and 27 being void are subject to collateral attack. Mesquite Independent School District v. Gross, 123 Tex. 49, 67 S.W.2d 242. In view of the facts and circumstances of this case, we are of the opinion this question is determined by the reasoning and holding in Stephens v. Dodds (Tex.Civ.App.) 243 S.W. 710. There the Royston Independent School District, upon petition, called an election on June 22, 1921, to be held on July 14 to determine whether or not there should be a tax levied not to exceed $1.00 on the $100.00 valuation of taxable property to supplement the state school fund. The election was held and the votes were canvassed on July 16, and it was declared that the election carried. An election contest was filed on August 3. The Board of Trustees, after notice of the contest and while it was still pending, passed an order that the election was illegal and void; and after procuring another petition, called for another election on the same subject to be held September 3, 1921. This election also resulted in the proposition being carried. On September 5 the District Court held the July 14 election illegal and void. The contestants petitioned the court to declare the second election void on the ground the Board of Trustees had no authority to declare the election void and that such Board had no authority to call another election until the previous election had been declared void by the courts. The Court of Civil Appeals agreed that it was the exclusive authority of the courts to declare an election void and that the Board’s order calling the first election, if not authorized by law, “was simply a nullity, and no tax could be levied or collected by virtue thereof. This would be true whether the election was ever contested or not. It was subject to collateral attack any and every where. The trustees were not bound by it more than any other person, and could ignore the void order and under proper petition order an election for the purpose which the law specifically empowered them to order.” The fact that the Clarendon Junior College Board of Regents did not recognize the illegality of the former elections would not nullify the effect of the holding of the Stephens case. In the Derrick case, supra, we held the County School Trustees “were wholly without authority to act in the calling of the election or in canvassing the returns thereof and their acts were void and of no effect.” As stated in Stephens v. Dodds, supra, “An order for an election which is void for want of power to make cannot be valid for any purpose even as a shield protecting owners of property in a district from a valid order lawfully entered. That which is void can never be valid.” We therefore conclude the election of January 28, 1964, was not void because of the pending litigation involving the two previous elections.

Appellants next challenge the January 28 election because Article 2790, Vernon’s Ann.Civ.St, prohibits another election to authorize the levying and collecting of ad valorem taxes to be held until the expiration of two years from December 22, 1962. The appellees were authorized to conduct elections for maintenance taxes under the provisions of Articles 2815h, Section 7, and 2815h-3b, V.A.C.S. These statutes provide that such elections should be in accordance with the provisions of the general law for elections in independent school districts. The pertinent part of Article 2790 provides:

“Where a maintenance tax has been voted, no election to revoke, modify or increase the same shall be held until two (2) years from the date of the election authorizing such maintenance tax; * *

It is appellants’ contention this provision makes the election of January 28, 1964, invalid and of no effect. We overrule this contention. The two-year limitation relates to a previous election where a maintenance tax “has been voted.” This court has judicially determined the elections of December, 1962, were void and of no effect. Thus, no tax had been “voted” within a two-year period prior to the election under consideration. Since a void election can not effect a maintenance tax, the two-year provision of Article 2790 does not come into play and does not invalidate this election.

The election under attack sought authorization for a maintenance tax of 850 on a $100.00 valuation. Appellants take the position this is unauthorized because the tax rate exceeds the statutory limitation of such taxes. They assert that the tax limitation is imposed by either Article 2815h, Section 7, or Article 2815h-3b, in that neither of these statutes permits a tax rate to the extent of 85^ on the $100.00 valuation. Section 7 of Article 2815h provides:

“[T]he total amount of tax levied for Junior College purposes shall never exceed twenty (20) cents on the One Hundred Dollars of property valuation.”

Section 1 of Article 2815h-3b, after authorizing junior college boards “to levy and collect taxes for the support and maintenance of such Junior Colleges,” provides, “[T]he total amount of tax levied for the Junior College purposes should never exceed One Dollar ($1) on the One Hundred Dollars ($100) valuation of property.” Section 2a of Article 2815h-3b, reads:

“Sec. 2a. The Governing Board of Junior Colleges, in addition to the levying and collecting of the annual ad valorem tax not to exceed One Dollar ($1) on the One Hundred Dollars ($100) valuation of taxable property within the district for the maintenance of schools therein, shall have the power to levy a tax not to exceed Fifty cents (50^) on the One Hundred Dollars ($100) valuation of taxable property within the district for the construction and equipment of school buildings and the acquisition of sites therefor within the limits of the district, when authorized by an election as aforesaid; provided, however, that the amount of maintenance tax together with the amount of bond tax of the district shall never exceed One Dollar ($1) on the One Hundred Dollars ($100) valuation of taxable property.”

The argument is made that in the event Section 7 of Article 2815h is not applicable, Section 2a of 2815h-3b limits the maintenance tax rate to 500 on the $100.00 valuation. This argument presumes the appellee junior college district has in fact levied a tax of 500 on the $100.00 valuation for the construction and equipment of school buildings. The record does not bear out this presumption, and there is no evidence in this record to indicate appellees have levied any tax for construction or equipment. Appellants cite Sheppherd v. San Jacinto Junior College District, 363 S.W.2d 742 (Supreme Court, 1962), in support of their contention. In our opinion this decision gives no comfort to appellants. There the sole question was whether or not that portion of Article 2815h, Section 7, which provides that a junior college district may levy and collect a local ad valorem tax for the support and maintenance of the junior college was constitutional. That question is not before us. The fact it is constitutional does not mean, and the Supreme Court did not hold, it was the only statute authorizing and limiting a maintenance tax for junior colleges. To so hold would completely nullify the effect of the language referred to above in Article 2815h-3b. One of the cardinal rules of statutory construction is to ascertain the legislative intent and to give effect to every expressed declaration thereof. Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929; Shanken v. Lee Wolfman, Inc. (Tex.Civ.App.) 370 S.W.2d 197 (Refused, NRE).

We think an uncodified section of 2815h-3b sheds some light on this question. Section 8, Chapter 70, H.B. No. 35, at Page 103, General and Special Laws, Texas Fifth Legislative Regular Session, 1947, contains the following language:

“The fact that Junior Colleges covered by this Act are in need of additional revenues, which, under present law, they are unable to obtain, the importance of this legislation, and the crowded condition of the calendar, create an emergency and an imperative public necessity.”

It is clear the legislative intent was to allow junior college districts to secure additional revenues by permitting them to increase the tax rate to $1.00 on $100.00 valuation. This increased limitation also conforms to the constitutional limitation set by Article 7, Section 3 of the Texas Constitution, Vernon’s Ann.St. We conclude the tax rate of 850 on $100.00 valuation was not in excess of the statutory limitation.

Appellants next contend the Board of Regents of the junior college was not legally created and that it was appointed by the Board of Trustees from Clarendon Consolidated School District rather than elected as required by law. Although we are of the opinion this point of error was not properly raised in the trial court, we do not think it has merit. We are of the opinion the appointment of the 9 member Junior College Board by the independent School District Trustees on May 9, 1963, was in accordance with Article 2815o-1. Section 2 of that article specifically provides the alternative procedure of appointment of junior college Board of Regents by the independent school district trustees who wish to relinquish control of junior colleges. Contrary to appellants’ contention there is no requirement under Article 2815o-1 that the territories of the two districts have common boundaries. It is uncontradicted the Junior College was under the management, control, and operation of the Clarendon Consolidated Independent School District prior to the time of the appointments. We therefore conclude the Board of Regents was lawfully constituted and had the authority to call and conduct the election.

Appellants next assert that if the Junior College Board was legally constituted, the meeting of January 3, 1964, at which time the Board called the election, was not a legally constituted one. They contend the meeting was not a regular meeting; that it was not legally called; and was not attended by all members of the Board. By other points on this subject the contention is made there is no evidence and insufficient evidence to support the trial court’s findings that every board member was notified of the meeting of January 3 and that no member was absent from the meeting because of a lack of usual notice. There is no statutory requirement that elections must be called at regular meetings of the Boards or that every member attend. The January 3 meeting was attended by all members of the Board except Quinn Aten. Therefore appellants’ points challenging the notice given of the meeting have to do with the notice given Mr. Aten and the fact that he was absent. Appellants cite Singleton v. Smithers, supra; Webster v. Texas & Pac. Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75; Palmer v. District Trustees of District No. 21 (Tex.Civ.App.) 289 S.W.2d 344 (Refused, NRE), for the proposition that a special meeting of school trustees at which one member of the board was not present and not notified was not a legal meeting. We think these decisions, under their proof and applicable statutes, were correct. However in each of these cases the fact that a member of a particular board received no notice of the meeting was either clearly established or not controverted. In determining the issue here we must review the evidence in accordance with the rules announced in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. The board members were notified by telephone by Mrs. Naomi Phelan, an employee of the college. In response to a question whether or not he had any notice of the January 3 meeting, Mr. Aten testified:

“I don’t remember. I sure don’t.”

Another answer of Mr. Aten to the same question was:

“I don’t remember of a meeting that I wasn’t notified on.”

He further testified:

“I thought and still think I was notified on every called meeting or every special meeting or regular meeting.”

Mrs. Phelan testified she notified the board members of the regular meetings by mail and special meetings by telephone. She explained her procedure of notice of special meetings:

“A special meeting I call them by telephone and talk to them, either individually or leave word with their wives or someone at their home or business.”

She testified she notified the board members of the January 3 meeting by telephone but couldn’t specifically remember who she talked to. There is no evidence from Mr. Aten or any other witnesses that he was not notified. Unless the record shows to the contrary every reasonable presumption will be indulged in favor of the findings and judgment of the trial court. Greenway Parks Home Owners Ass’n v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235; Collins v. Tucker (Tex.Civ.App.) 333 S.W.2d 218. We therefore are of the opinion there was evidence to support the trial court’s findings relating to notice and conclude the meeting of January 3, 1964, was a legal meeting.

The contention is next made that the purported petition for election, order calling the election, and notice of election were illegal on the grounds that they did not define or set out the boundaries of the Junior College District. This identical question was decided adversely to appellants’ contention in Jordan v. Overstreet (Tex.Civ.App.) 352 S.W.2d 296. That case involved a contest of an election to decide whether two school districts should consolidate. The court held that a metes and bounds description is not required to be given in these instances. Whether it be stated the election was held under Article 2815h, Section 7, or 2815h-3b, there is nothing in either article which requires a metes and bounds description in any of the instruments essential to the conduct of an election of the nature heard here. A review of this record reveals no showing of any confusion which prevented any qualified voter from casting his vote.

The contention is next made that there was certain irregularities in the posting of the notices of the election. The posting of such notices of elections of the type involved here is regulated by Article 2785, V.A.C.S. The pertinent part of that «article reads:

“On presentation of said petition, said officer or officers shall order an election for such purpose, and order the sheriff to post notices thereof in three (3) places in the district for ten (10) days prior thereto, or if for an independent district, the secretary of said board of trustees shall post such notices.”

The proof shows M. L. Todd, secretary of the Board of Regents, signed the notices, but they were actually posted by Mrs. Naomi Phelan, the same college employee already referred to. The notices were posted at the County Courthouse in Clarendon, the Clarendon City Hall, and the Clarendon School Administration Building. The rule is well settled that statutes regulating the matter of holding an election are merely directory and a departure from their provisions will not, ordinarily, invalidate an election, unless such departure or such irregularity has affected or changed the result of the election. Hill v. Smithville Independent School District (Tex.Comm.App.) 251 S.W. 209 (Opinion Adopted); Sykes v. Pandora Independent School District (Tex.Civ.App.) 14 S.W.2d 124 (Writ Refused); Waters v. Gunn (Tex.Civ.App.) 218 S.W.2d 235 (Refused, NRE). There is no evidence the posting irregularity deprived any voter of notice of the election or that any voter failed to vote because of such irregularity. We think the trial court correctly found the irregularities complained of were not fatal to the election.

Appellants next complain of irregularities in that employees of the Junioi College, including the chairman of the Board of Regents, assisted in holding the election. The trial court found and, we think correctly so, that these people were disqualified to act as election judges and clerks. Article 3.04, Texas Election Code, V.A.C.S. However the trial court found there was no evidence these disqualified persons attempted to exercise any influence on any voter, or that there was any unfairness or fraud in the conduct of the election. We think the record fully supports the trial court’s finding under such a record. It has repeatedly been held such irregularities are not sufficient to void an election. Guerra v. Ramirez (Tex.Civ.App.) 351 S.W.2d 272 (Writ Dismissed); Stafford v. Stegle (TexCiv.App.) 271 S.W.2d 833; Miller v. Tucker (Tex.Civ.App.) 119 S.W.2d 92.

The next question presented has to do with such irregularities as permitting persons to vote without establishing their right to vote as required by the election code. The irregularities alleged include permitting some to vote without establishing they had paid a poll tax or were entitled to an exemption; a violation of Article 8.11 of the Election Code dealing with the handling and the numbering of the ballots; and the violation of the requirement the two election judges shall assist a physically handicapped person to vote as provided for in Articles 8.13 and 8.28 of the Election Code. The record shows there “were quite a few people” who voted who did not present a poll tax receipt to the election officials. In such cases they were required to sign a sheet of paper stating they had paid their poll taxes or were over the age of sixty years and, thus were entitled to an exemption. Of the 854 votes cast and counted appellees admitted some 285 persons voted without having a poll tax receipt. There is no evidence these voters had not in fact purchased a poll tax or were not eligible for an exemption. No one administered the oath to those stating they were over sixty years of age or those stating they had paid their poll tax but did not have it in their possession. Approximately 20 ballots were taken outside the polling place by one election official to disabled persons sitting in automobiles. The record further shows some 10 persons were denied the right to vote, and 9 others were allowed to vote but who had their vote disallowed by the election judge who later determined they resided outside the Junior College district. Obviously there were irregularities in the holding of the election; but the evidence does not support appellants’ contention they were sufficient to void the election. The irregularities complained of involved statutory provisions which are directory. The tendency to construe election code provisions as directory rather than mandatory is salutory because it leads to the true expression of the will of the voters. Stafford v. Stegle, supra; Wooley v. Sterrett (Tex.Civ.App.) 387 S.W.2d 734. We find no evidence of fraud or misconduct on the part of the election officials. Neither do we find any evidence that the irregularities complained of affected the result of the election. Under such facts and circumstances we are of the opinion, and so hold, the irregularities were not sufficient to invalidate the election.

Appellants’ points of error thirty-four through forty-four raise substantially the same objections to the election that were raised in points of error discussed up to this point. Several of these points, particularly thirty-four, thirty-five and thirty-six, are multifarious. These three points contend, in addition to the reiterating of previous contentions, that the composite or cumulative effect of the irregularities renders the election invalid. Having held these irregularities complained of did not constitute error, we do not think the composite of such irregularities would enhance the error. In order not to unduly extend this opinion, we think it is sufficient to say that what has been said relative to the previous points is sufficient to dispose of this group of points.

Points of error forty-five, forty-six, and fifty-three question the legality of the petition for election. The contention is made the petition was not signed by the number of required qualified voters, and that the Board did not determine that the petition was signed by the required number. The record shows the petition contained 308 signatures. The Minutes of the Board of Regents recites that the “petition signed by 308 persons” was considered, and the Minutes continued:

“It appearing to the satisfaction of the Board of Regents that said petition is signed by at least 250 resident, qualified, property taxpaying voters of said College District, who own taxable property in said district, and who have duly rendered the same for taxation, and is otherwise in conformance with law, the Board is of the opinion that said petition should be granted, and said election as prayed for should be ordered.”

The formal “Order for Tax Election” was a printed form which recited that the petition, was signed by at least “20 resident, qualified, property taxpaying voters.” Although this latter recital is in conflict with the finding of the Board as evidenced by its Minutes, this is not a fatal defect. Article 2815h-3b provides that “ * * * upon petition signed by two hundred and fifty (250), or a majority, of the qualified property taxpaying voters residing in such district * * *. It shall be the duty of such board to order such election * * Thus, the article simply requires 250 qualified voters to sign the petition. The Board’s Minutes and the exhibit introduced into evidence reflect this was done. The Board’s Minutes and the first paragraph of the election order show the petition was actually signed by 308 persons. Appellants have failed to show by brief or reference to the record that less than 250 qualified voters signed the petition for election.

The appellee Board of Regents held a special meeting on February 3, 1964, for the purpose of canvassing the returns of the election and declaring the results thereof. Appellants challenge the legality of this meeting on substantially the same grounds as they have the January 3 meeting, previously disposed of. We think this contention should be overruled for the same reasons. In addition the meeting of February 3 was called to perform an administrative function as distinguished from a policy making function. Admittedly, three board members were absent from the February 3 meeting; but there is a total absence' of evidence of fraud or any other irregularity on the part of the Board in canvassing the returns of the election. Appellants’ contention is without merit.

It is next alleged the election of January 28 authorizing the Junior College District to levy and collect taxes for the year of 1964 was an illegal retroactive tax. The argument is that taxes accrue on the first of each year, and for a tax to be levied after that time could not revert back to the first of that year. No authority is cited for this contention. We have not found nor been cited to any case directly in point. However the reasoning of several cases, including one by the Supreme Court, supports the action of the Board of Regents. In Cadena v. State (Tex.Civ.App.) 185 S.W. 367 (Error Refused), the question arose whether a school district created on June 19, 1915, could levy a tax in September of 1915 for the year 1915. The court there held the school district had authority to do so. The Commission of Appeals in Blewitt v. Megargel County Line Independent School District, 285 S.W. 271 (Opinion Adopted), referred to the Cadena case in the following language:

“The decision in the case of Cadena v. State (Tex.Civ.App.) 185 S.W. 367, is authority for the proposition that, when an independent school district is created after the 1st of January of a given year, all property within such newly created district, which was owned by the taxpayer on January 1st of that year, ‘is subject to any tax authorized by law, whether such taxes have been authorized theretofore or may be authorized during the year, and can be levied by the body given the power to levy at any time during the year.’ The Supreme Court denied a writ of error.
“We consider the proposition sound.”

We note this significant language in the Cadena case:

“Laws naming the time for the levy of taxes are merely directory, and legal taxes can be levied whenever the necessity arises. Laws authorizing taxes are not retrospective so far as the year in which they are authorized is concerned.”

We conclude the reasoning of these cases supports the action of appellee in levying and collecting ad valorem taxes for the year 1964.

A careful examination of this lengthy record convinces us no reversible error is shown by appellants’ points of error. As stated, there were irregularities committed in the process of calling, ordering, and conducting the election of January 28, 1964. However, such irregularities were not of such a nature to cause the election to be set aside. There is no evidence of fraud or misconduct on the part of any person involved. The result is, as impliedly found by the trial court, the election was a true expression of the will of the voters.

The judgment of the trial court is affirmed.


author: NORTHCUTT, Justice.

text:
    SANFORD INDEPENDENT SCHOOL DISTRICT, Appellant, v. H. B. ZACHRY COMPANY, Appellee.
    No. 7511.
    Court of Civil Appeals of Texas. Amarillo.
    June 28, 1965.
    Rehearing Denied Sept. 7, 1965.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellant.
    Johnson, Hite, Callender & Gregorie, San Antonio, Gassaway, Allen & Norman, Bor-ger, for appellee.
   NORTHCUTT, Justice.

This is a suit for delinquent ad valorem personal property taxes. Sanford Independent School District brought this action against H. B. Zachry Company in Hutchinson County for the collection of delinquent taxes assessed on certain machinery, tools, and equipment situated within the boundaries of the Sanford Independent School District on January 1, 1963. The original petition alleged an amount of taxes, penalty, and interest due of $10,-321.82. The appellee, H. B. Zachry Company, contested the suit on the grounds that said machinery, tools, and equipment had not acquired a taxable situs within said plaintiff school district. After both appellant and appellee had moved for summary judgment, and a hearing had been set thereon, it was agreed by and between the parties that such hearing would also constitute a trial of the case on its merits for all purposes. After said hearing, the court without the aid of a jury, entered a take-nothing judgment for defendant, appellee, on the 23rd day of November, 1964. The appellant gave notice of appeal that same day, and it was incorporated in the judgment.

At the request of Sanford Independent School District the trial court made and filed the following findings of fact and conclusions of law as follows:

FINDINGS OF FACT
“1. Sanford Independent School District is a duly organized and incorporated governmental subdivision existing in Hutchinson County, Texas.
2. All conditions precedent to Sanford Independent School District’s right to levy and access ad valorem taxes have been complied with according to law.
3. H. B. Zachary Company did not appear before the board of equalization sitting in the Sanford Independent School District for the year 1963.
4. H. B. Zachry Company is a Delaware Corporation with its principal office located in San Antonio, Bexar County, Texas; and is operating in this state under a license to do business issued by the Secretary of State.
5. In March, 1962, H. B. Zachry Company began moving tangible personal property into the Sanford Independent School District to construct the Sanford Dam on the Canadian River. Said project of construction is scheduled to be completed by H. B. Zachry Company in June, 1965. H. B. Zachry Company, Defendant, will have a relatively small amount of its tangible personal property, including a general heavy equipment maintenance shop and office facilities, located within the boundaries of the Sanford Independent School District during the entire forty month period of construction. The remainder of its personal property within the Plaintiff district may be described as various types of rolling stock, earth-moving equipment and wheeled or tracked construction machinery. This type of equipment has been moved in and out of the Plaintiff district, to and from other construction jobs, as the Defendant’s needs upon such jobs required. The Defendant has, during the construction of the Sanford Dam project, maintained a fluctuating inventory of equipment in the Plaintiff district, based upon the need for such types and amounts of equipment during various phases of the construction project. The personal property here sought to be taxed is but a portion of the Defendant’s general pool of construction equipment which is moved from job to job as required by the phase of construction at each job.
6. The property here sought to be taxed is not permanently located within the Plaintiff school district.
7. All of such property, including the small amount which will have remained in the Plaintiff district during the entire construction period, will be removed upon completion of the project.
8. All demands for payment of the accessed taxes as required by law wer.e given by the Sanford Independent School District and received by H. B. Zachry Company.
9. The taxes here sought to be collected are unpaid.
10. The total amount of taxes here sought to be collected is $10,021.18, plus penalty and interest.
CONCLUSIONS OF LAW
1. H. B. Zachry Company, Defendant herein, owes no taxes to plaintiff.
2. The property here sought to be taxed by Plaintiff did not acquire a situs within the Plaintiff district.
3. The property here sought to be taxed by Plaintiff had a situs for taxation in San Antonio, Texas.”

The appellant presents this appeal upon five points of error contending the court erred in holding that appellee had successfully rebutted appellant’s prima facie case; in finding as a conclusion of law that appellee owes no taxes to appellant; in finding as a conclusion of law that the property sought to be taxed by appellant did not acquire a tax situs within said district ; and in finding as a conclusion of law that the property sought to be taxed by appellant had a tax situs in San Antonio, Texas.

It is undisputed that H. B. Zachry is the president of appellee. H. B. Zachry Company is a Delaware corporation doing business under proper permits issued by the Secretary of the State of Texas. The registered office and actual principal office or home office of the company is in San Antonio, Bexar County, Texas. Appellee made and entered into a contract to construct the Sanford Dam on the Canadian River. The dam is located in the Sanford Independent School District in Hutchinson County, Texas. In March 1962 H. B. Zachry Company began moving tangible personal property onto the dam site to start construction of the dam. The dam was to be completed in June 1965. We do not believe there is any question as to appellee not having considerable property on the job on January 1, 1963. Neither is there any question as to appellee bringing onto the job much machinery and also removing some from the job to other locations outside of Hutchinson County, Texas.

We are of the opinion, and so hold, that appellant proved by prima facie evidence the true and correct amount of taxes due, if any, as provided for under Article 7326 and Article 7336f, Section 2, Subdivision h, Vernon’s Ann.Tex.Civ.St. Then we must determine if that prima facie evidence was rebutted in this case. Article 8, Section 11 of the Constitution provides:

“All property, whether owned by persons or corporations shall be assessed for taxation, and the taxes paid in the county where situated *

Article 7153, V.A.T.S., provides as to where rendered as follows:

“All property, real and personal, except such as is required to be listed and assessed otherwise, shall be listed and assessed in the county where it is situated; and all personal property, subject to taxation and temporarily removed from the State or county, shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.”

It is stated in the case of Chemical Express v. City of Roscoe, Tex.Civ.App., 310 S.W.2d 694 at 696 (writ refused) as follows :

“It is undisputed that the motor trucks here involved were the property of the defendant corporations whose domiciles and principal offices were in Dallas County; that such corporations were engaged in transporting property of others for hire, and operated said trucks over the western part of Texas and part of New Mexico, with terminals at Maryneal, El Paso and San Antonio, Texas; that no particular number of vehicles were assigned to any particular terminal but the assignment of the vehicles to a terminal was temporary and based upon the amount of business available. These trucks were taxed in Dallas County. These trucks of the defendant corporations, so temporarily assigned and stationed in Nolan County were not taxable in Nolan County. Their situs for the purpose of taxation was in Dallas County, the location of the domiciles and principal offices of the defendant corporations.
“The facts of the instant case in our opinion come squarely under the holdings in the above cited cases and the terms of Article 7153, supra, to the effect that ‘personal property * * * temporarily removed from the * * county shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.’ ”

The property here involved was transferred to the dam site to be used in completing the dam and was then to be transferred to another job. Some of the property was used on the dam and then moved to other places and other articles of equipment moved in to do certain kinds of work. In considering the terms “situated” and “temporarily,” we must consider the facts of this particular case. If we were to give a literal meaning to those terms there would be no question about certain property being situated in the appellant’s district on January 1, 1963; but to give the terms such literal meaning would be saying that while the property was being moved to the dam site, it was left for a few days in Carson County and was there on January 1, 1963, it would be subject to taxation in Carson County.

We think the term “temporarily” means lasting for a time only. Under this record the property here in question was to be at the dam site only until the completion of the dam. Black’s Law Dictionary defines “temporarily” as that which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration. It is undisputed in this case that as soon as the dam was completed or a certain piece of property was no longer needed at the dam it was to be transferred to another job. It is stated in 110 A.L.R. at p. 717 as follows:

“The courts are all agreed that before tangible personal property may be taxed in a state other than its owner’s domicil, it must acquire there a location more or less permanent. It is difficult to define the idea of permanency that this rule connotes. It is clear that ‘permanency,’ as used in this connection, does not convey the idea of the characteristics of the permanency of real estate. It merely involves the concept of being associated with the general mass of property in the state, as contrasted with a transient status— viz., likelihood of being in one state today and in another tomorrow.”

See also City of Amarillo v. Carter, Tex.Civ.App., 380 S.W.2d 177, where it is stated:

“The second clause of our present Article 7153 provides ‘ * * * all personal property, subject to taxation and temporarily removed from the State or county, shall be listed and assessed in the county of the residence of the owner thereof, or in the county where the principal office of such owner is situated.’
“Clearly the property sought to be taxed here is movable property temporarily out of the county and state such as contemplated in the second clause of Article 7510, Revised Statutes, 1911 and its successor article, 7153.
“Since our Supreme Court in the Great Southern Life Insurance Co. case above cited held the constitutional provision is to be construed according to common law principles, leaving the field open for reasonable legislative action, let us now consider the second clause of Article 7153.
“We believe it fair to say that the weight of authority indicates that transient movable property under the common law has a tax situs at the domicile of the owner. As stated in the Great Southern Life case: ‘This is still the basie principle upon which the taxation of personal property rests.’ See also City of Fort Worth v. Southland Greyhound Lines, supra [123 Tex. 13, 67 S.W.2d 354, 361]; Commonwealth v. Union Refrigerator Transit Co., 118 Ky. 131, 80 S.W. 490, 81 S.W. 268; Chemical Express Company v. City of Roscoe, Tex.Civ.App., 310 S.W.2d 694 (writ refused).”

The Supreme Court in the case of Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 held that the constitutional provision declaring the property shall be taxed in the county where situated does no more than declare the common law. The court then held that under the common law personal property of every description was taxable only at the domicile of its owner regardless of its actual location and that this was still the basic principle on which the taxation of personal property rests.

We are of the opinion, and so hold, that the property here involved was situated temporarily in the Sanford Independent School District and that the situs of the personal property here involved for the purpose of taxation was in San Antonio, Bexar County, Texas. We overrule all of appellant’s assignments of error.

Judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    FIREMEN’S AND POLICEMEN’S CIVIL SERVICE COMMISSION OF the CITY OF PORT ARTHUR, Texas, et al., Appellants, v. Glenn F. HAMMAN, Appellee.
    No. 6797.
    Court of Civil Appeals of Texas. Beaumont.
    July 8, 1965.
    Rehearing Denied Sept. 8, 1965.

      Cary Young, Port Arthur, H. P. Robi-chau, Jr., Beaumont, for appellants.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a case involving the suspension of a policeman under Article 1269m, Vernon’s Ann.Civ.St., Glenn Hamman was indefinitely suspended by the Director of Police of Port Arthur, Texas, May 13, 1964. An appeal to the Firemen’s and Policemen’s Civil Service Commission, hereinafter called “Commission”, resulted in an order of June IS, 1964, that the suspension be reduced to six months without pay. Ham-man appealed to the District Court on June 22, 1964. On June 24, 1964, Hamman was indefinitely suspended a second time by the Director of Police, which order was upheld by the Commission August 28, 1964. Hamman appealed from this second order to the District Court. Both appeals were included in an amended petition and tried together before the court. Judgment was rendered upholding the six month suspension under the first suspension, but setting aside the indefinite suspension under the second suspension. Both the Commission and Hamman have appealed.

We consider first the first suspension. Hamman contends he was denied due process because the Commission was illegally constituted in that Commissioner LeBlanc also acted as a witness and a prosecutor. It is also contended Commissioner LeBlanc and Draughon were not qualified to serve. LeBlanc had previously served as a member of the Port Commission and Draughon had served as a member of the Charter Change Commission. Neither of these were “Public Offices” as prohibited by Article 1269m, V.A.C.S., and did not disqualify these men to serve in their present capacities. Article 1269m, sec. Sa, V.A.C.S., provides for the Commission to make investigation, which was done in this instance. Such investigation did not disqualify LeBlanc to sit on the Commission in the Harnman Hearing. These points are overruled.

Hamman filed a motion in the trial court that this cause be heard “de novo” with a trial by jury, which motion was denied. The record shows the case was tried “de novo” and the judgment demonstrated that the “substantial evidence” rule was applied by the court. Hamman was not entitled to a trial by jury in this case. “Trial de novo” in these cases means “a trial to determine only the issues of whether the agency’s ruling is free of the taint of illegality and is reasonably supported by substantial evidence.” Fire Dept. of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664.

Hamman also contends there was not substantial evidence to support the charges against him, especially as to the date of the alleged primary offense. We conclude from a study of the record before us that there was substantial evidence. The point is overruled.

As to the second suspension, the primary question for this court to determine is whether or not the Director of Police had the authority to . suspend Hamman a second time, while Hamman was under the six months suspension, for acts occurring prior to the date of the first suspension. It has been made clear by the Supreme Court in Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284, that the charges filed in the first suspension could not have been amended to include the charges set out in the second suspension. This is as provided by Sec. 16 of Article 1269m, V.A.C.S.

We are of the opinion that the Director of Police was limited to his original charges and that a new set of charges for acts occurring prior to the date of the first suspension could not be filed later even though such filing is within six months from the date of the occurrence of the alleged offense. We point out, as the Supreme Court did in the Bichsel v. Carver case, supra, that the wisdom of sec. 16 of Article 1269m, V.A.C.S., is a legislative matter, and where it is unambiguous and its validity is not attacked, it is our duty to follow it.

Judgment affirmed.


text:
    Edward Donalson WEBB, Appellant, v. Elwyn Melba WEBB, Appellee.
    No. 14600.
    Court of Civil Appeals of Texas. Houston.
    June 24, 1965.
    Rehearing Denied Sept. 9, 1965.
    Ted Musick,' Houston, for appellant.
    Thompson, Hippard, Gibson, Korioth & Tita, David A. Gibson, Houston, for ap-pellee.
   COLEMAN, Justice.

This is a suit for divorce brought by the husband. The trial court denied the divorce and awarded $750.00 attorney’s fees to the wife and her lawyers.

This appeal is based on the point that the trial court erred in awarding attorney’s fees “in that there was no showing of good faith and probable cause or necessity” and in that the awarding of attorney’s fees amounted to a division of the community property after a denial of the divorce.

This case is before us without a statement of facts. Appellant’s first point is a “no evidence” point which we cannot determine in the absence of a statement of facts. The judgment reflects that evidence was heard. We must presume that it was sufficient to support the judgment rendered. City of Houston v. Adams, Tex.Civ.App., 326 S.W.2d 627, ref., n. r. e.; Thomas v. International Harvester Co., Tex.Civ.App., 325 S.W.2d 832, ref., n. r. e.

In the absence of a statement of facts or findings of fact and conclusions of law, the other point presents the question of whether attorney’s fees may properly be awarded where the court denies the husband’s petition for divorce. That this can be done in a proper case is no longer an open question in this State. Roberts v. Roberts, 144 Tex. 603, 192 S.W.2d 774.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    GALA HOMES, INC., Appellant, v. E. P. FRITZ, Appellee.
    No. 4382.
    Court of Civil Appeals of Texas. Waco.
    Aug. 19, 1965.
    Rehearing Denied Sept. 9, 1965.

      J. V. Hammett, Lampasas, for appellant.
    Robert F. Salter, Byron L. McClellan, Gatesville, for appellee.
   WILSON, Justice.

Appellant’s suit was to require appellee’s specific performance of an alleged contract of sale of realty, or the alternative refund of a down payment. A take-nothing judgment was rendered on the theory the agreement is an option contract, and it was decreed that title was vested in appellee. In our opinion the contract is one of sale of realty, and we reverse.

The written contract recites that appellee Fritz “agrees to convey” and appellant Gala Homes, Inc. “agrees to purchase” 31 city lots described. It provides that “the consideration of said lots is $34,100”, of which appellant paid $2585 “as part payment, which sum shall be applied toward the total consideration.” It is specified that “the balance of the purchase price is to be due and payable on or before June 30, 1964.” Appellee agreed to convey any of the described lots free and clear of encumbrances upon payment of $1100 per lot.

Paragraph IV of the contract provides: “The $2585 down payment shall be construed as liquidated damages in the event Gala Homes fails or refuses to complete this contract on or before its date of maturity and that in any event such sum shall only be applied as part payment for the total contract price and not on any lesser portion. Should Gala Homes fail to purchase all 31 lots under the terms of this contract, then E. P. Fritz shall be entitled to receive $1100 for each lot purchased by Gala Homes and in addition thereto E. P. Fritz shall be entitled to retain the $2585 as additional consideration and damages for the failure of Gala Homes to purchase all 31 lots.”

The trial court concluded, as appellee contends, that this was an option contract, and not a contract of sale as appellant urges. It was found that at various times from the execution of the contract in August, 1963 to April, 1964 Gala Homes tendered to Fritz the purchase price of $1100 per lot for 25 of the 31 lots, for each of which Fritz delivered a warranty deed; that Gala Homes failed to tender the purchase price for the remaining six lots here in controversy by June 30, 1964, and that the right to purchase terminated on the latter date, when the option expired. It was concluded that time was of the essence of the agreement because it was an option contract. On July 10,1964, Gala Homes demanded conveyance of the remaining six lots, tendering $4007.85 in payment therefor. Fritz declined to convey.

Appellee relies on the subsequent conduct of the parties as evidencing their interpretation of the agreement as an option contract. “Where the terms of the contract are plain and unambiguous the construction given it by the contracting parties is ordinarily immaterial.” Richardson v. Hart, 143 Tex. 392, 185 S.W.2d 563, 564. Acts of the parties cannot furnish an interpretation contrary to the plain meaning of the contract. Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282, 39 S.W.2d 11, 84 A.L.R. 1269, cert. den. 284 U.S. 675, 52 S.Ct. 130, 76 L.Ed. 571; Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504.

In the present case the question of whether the parties concluded a contract of sale or an option turns largely upon the contractual status of the $2585 down payment, and the consequent rights of the parties thereto upon failure of Gala Homes to purchase all 31 lots. The agreement is clearly a contract of sale except for the provisions concerning this payment. “Its language throughout,” as said in Paramount Fire Ins. Co. v. Aetna Casualty & Surety Co., 163 Tex. 250, 353 S.W.2d 841, 843, “is of sale and purchase.”

The test for determining the effect of the provisions relating to the down payment as liquidated damages is whether the seller is “bound” to accept the sum “for such damages as may be suffered by reason of the nonperformance of the contract” on the purchaser’s part, said Chief Justice Gaines in Moss & Raley v. Wren, 102 Tex. 567, 120 S.W. 847. Otherwise he can enforce the contract by requiring specific performance. There, the contract provided that if the purchaser failed to perform by the date specified the initial payment “shall be accepted” by the seller as liquidated damages for the seller’s injury. Originally the Supreme Court held, 113 S.W. 739, that the agreement was a contract of sale and specific performance could be enforced. On rehearing, 120 S.W. 847, it was held that it was a contract that the “purchaser should have until a future day to pay the price and accept a conveyance, yet, should he decline for any reason to pay the price and to accept the land,” payment of the liquidated damages absolved him from further suit, and specific performance was not available. The vendor was “bound” to accept the payment as liquidated damages for nonperformance.

Whether the seller has the mandatory obligation to accept the sum stipulated to be liquidated damages in lieu of the purchaser’s further liability, thereby relieving the purchaser of obligation to pay the purchase price, is the established test in Texas for determining the nature of the contract as constituting, or not, an absolute agreement of sale and purchase.

It was said in Texlouana Producing & Refining Co. v. Wall, Tex.Com.App., 257 S.W. 875, 878, that the cases are correct which hold the contract is a mere option if there is an express or implied agreement on the part of the vendor to accept liquidated damages in lieu of purchaser’s performance. There it was provided the sum paid “shall be forfeited,” and it was held there was no provision thereby for liquidated damages required to be accepted, the provision was to secure performance, and specific performance could be required.

The determinant criterion is best and most recently summarized in Paramount Fire Ins. Co. v. Aetna Casualty & Surety Co., 163 Tex. 250, 353 S.W.2d 841, 843: whether there is a provision that the vendor “must” accept the stipulated fund “in full settlement of the buyer’s liabilities for default.” In the absence of such provision, the nature of a contract as one of sale is not altered.

The present contract clearly does not obligate or require Fritz to accept the down payment of $2585 (which is to be “construed as liquidated damages in the event Gala Homes fails or refuses to complete this contract”) in settlement of the purchaser’s liabilities. Fritz is afforded a discretionary choice and election. He is “entitled” to retain the sum as liquidated damages, but he is not required to do so. The language bears no implication that he is bound to, or “must” accept such sum in satisfaction of the buyer’s liabilities. See Redwine v. Hudman, 104 Tex. 21, 133 S.W. 426, 428; Carter v. Smith, Tex.Civ.App., 184 S.W. 244, 246, writ ref. The agreement is a contract of sale; not an option.

In an ordinary contract for the conveyance of land in which the purchase money is to be paid at a future day, the general rule is that time is not of the essence of the contract. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, 598; Shields v. Dunlap, Tex.Civ.App., 174 S.W.2d 642; Copeland v. Bennett, Tex.Civ.App., 243 S.W.2d 264; Herber v. Sanders, Tex.Civ.App., 336 S.W.2d 783. We find nothing in the record to take this case out of that general rule. In our opinion appellant is entitled to specific performance.

The judgment is reversed and the cause remanded to the trial court for rendition of judgment consistent herewith.


text:
    Lavena Ruth CLAPP, Appellant, v. Ray M. CLAPP, Appellee.
    No. 7475.
    Court of Civil Appeals of Texas. Amarillo.
    June 21, 1965.
    Rehearing Denied Sept. 7, 1965.
    Kiser & Hook, Levelland, for appellant.
    McWhorter, Cobb, Johnson & Cobb, Lubbock, for appellee.
   NORTHCUTT, Justice.

The judgment from which this appeal was taken is based on the Enforcement of Support Act of Texas, Articles 2328b-1, 2328b-2, and 2328b-3, Vernon’s Ann.Tex.Civ.St.

The parties herein will hereafter be referred to as they were in the trial court. Lavena Ruth Clapp, as plaintiff, brought this suit against Ray M. Clapp, as defendant, seeking to have the defendant held in contempt of court for failure to make child support payments as required under the judgment entered in Cause No. 37747-e, Circuit Court of Equity at Mobile, Alabama. In the alternative plaintiff sought judgment against defendant for the amount of the delinquent child support payments.

The defendant answered and filed his plea of privilege and his plea to the jurisdiction of the court which were overruled. The defendant answered further and filed his cross-action pleading because of changed conditions in his financial ability that the monthly payments provided for in the Alabama judgment should be changed in accordance with his financial ability and income and his ability to support his two minor daughters.

In Cause No. 37747-e of the Alabama court the plaintiff, Lavena Ruth Clapp, secured a divorce from the defendant, Ray M. Clapp, on September 10, 1953, and was granted custody of their two children and granted $250 per month for support of the two children. The judgment further provided that the court retain jurisdiction of the cause for the purpose of making such other and further orders or decrees as may be necessary as to carrying out said agreement of the parties.

The case here in this state was submitted to the court without a jury. The court found that there was no evidence to support the fact that the amount claimed to be due and payable under the Alabama decree was actually a final decree of the Alabama court; further that both plaintiff and defendant had for several years been citizens and residents of the State of Texas and as such were entitled to have all controversies between them determined by Texas courts; and lastly, that the ability of the defendant to pay child support payments taking into consideration the needs of the children justified that such payments be lowered and entered judgment that the defendant be required thereafter to pay the sum of $75.00 per child per month until further ordered by the court. From that judgment the plaintiff perfected this appeal. Plaintiff contends the court erred in holding it had jurisdiction, power and authority to forgive and cancel the child support payments which had accrued under the Alabama divorce decree. The plaintiff did not plead nor prove the laws of Alabama and did not prove any modification had not been made in the judgment entered in Alabama. The trial court held there was no evidence to support the fact that the amount claimed be due and payable under the Alabama decree was actually a final decree of the Alabama court. The trial court did not hold it had jurisdiction to cancel the child support payments which had accrued under the Alabama divorce decree but held the plaintiff had not proved the amount claimed to be now due and payable under the Alabama decree. The plaintiff did not at that time nor in this appeal complain by any point or exception to that holding. In the Alabama case a decree was rendered for child support and made payable in future monthly installments. The right to such installments became absolute and vested upon becoming due; and if plaintiff had properly pled and proved such accrued installments, she would have been entitled to a judgment for all past-due accrued installments. Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618. It is stated in Rumpf v. Rumpf, 150 Tex. 475, 242 S.W.2d 416, as follows:

“This court in a recent decision, after finding that under the holding of the Supreme Court of Idaho [Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345] the power to modify installments of alimony and child support is prospective and not retroactive, held that the right to matured installments awarded by an Idaho court is protected by the full faith and credit clause, and that judgment should be rendered in the suit in this state on the original Idaho judgment for the amount of the matured and unpaid installments. Gard v. Gard [150] Tex.Sup. [347], 241 S.W.2d 618. In so holding we followed and applied the general rule thus stated in Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 686, 54 L.Ed. 905, 910-911:
‘Generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instal-ments, since * * * “alimony decree to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.’ It may be observed that in Gard v. Gard there had been no judgment of the court of the foreign state, as in the instant case, converting accrued installments into a judgment for a definite sum presently payable. The decision was as to the finality of the original Idaho judgment with respect to accrued installments.” .

Under this record we do not believe the trial court erred in failing to grant judgment for some speculative matured sum as being vested in the plaintiff.

It is stated in Quinn v. Quinn, Tex.Civ.App., 216 S.W.2d 1001 at 1003 (N.R.E.) as follows:

“Such foreign decree for alimony may be given effect under the full faith and credit clause only if the decree under the law of the state in which it was rendered had become absolute and vested. See Criteser v. Gaffey, supra [Tex.Com.App., 222 S.W. 193, aff’d., Tex.Civ.App., 195 S.W. 1166]; and the burden falls on the plaintiff to establish by pleading and proof that under the law of the foreign state such judgment so rendered therein is a final judgment.
“A sister state in construing whether or not a foreign judgment has become final shall consider the decisions of the highest court of the state wherein the judgment was rendered and such decisions of such highest court is binding upon the court of the state which is undertaking to construe the finality of said judgment. See Criteser v. Gaffey, supra.

The Supreme Court of Alabama in the case of Scott v. Scott, 265 Ala. 208, 90 So.2d 813 has held the trial courts of the state of Alabama have the right to modify a judgment for child support as changed conditions might justify. See also Hudson v. Hudson, 36 N.J. 549, 178 A.2d 202. It is clear that the state of forum has at least as much leeway to disregard the judgment to qualify it or to depart from it as does the state where it was rendered. State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133. See the many cases there cited. Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635.

Under Section 1 of Article 4639a, V.T.C.S., the courts of this state have the power and authority to alter or change such judgment or suspend the same covering the question of child support in a divorce suit. Since the plaintiff and defendant both have continued to reside in the State of Texas, we believe that the laws of Texas as responding state are to be applied in this case and especially since the courts of Alabama had the right to modify the judgment. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758 (petition for writ of certiorari to the Supreme Court of Texas was denied by the United States Supreme Court, State of California Dept. of Mental Hygiene v. Copus, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074); Freeland v. Freeland, Tex.Civ.App., 313 S.W.2d 943; Rosenberg v. Rosenberg, 152 Me. 161, 125 A.2d 863; Daly v. Daly, 21 N.J. 599, 123 A.2d 3.

We have carefully considered all of appellant’s assignments of error and overrule all of them.

Judgment of the trial court is affirmed.