author: McDONALD, Chief Justice.

text:
    Fred SIMMONS, d/b/a the Simmons Company, Appellant, v. Frank E. MOSLEY, Appellee.
    No. 4638.
    Court of Civil Appeals of Texas. Waco.
    Nov. 30, 1967.
    Rehearing Denied Dec. 28, 1967.

      Edwards & Faulkner, Waco, for appellant.
    Don Baker, Waco, for appellee.
   McDONALD, Chief Justice.

OPINION

This is an appeal by defendant from a judgment in a negligence case.

Plaintiff Mosley sued defendant Simmons for damages to his home and furnishings caused by negligent acts of defendant or his employees in connection with the installation by defendant of an air conditioning unit in plaintiff’s attic.

Plaintiff’s suit was filed on November 28, 1966. On December 27, 1966 plaintiff’s attorney wrote to the judge of the County Court at Law as follows:

“Please set (Mosley v. Simmons) for jury trial March 6, 1967 at 9 o’clock A.M. * * * ” and confirm with counsel.

The trial judge made notation on the bottom of the letter:

“This case is set for trial on March 6, 1967 and is # 1 on the docket.”

A copy of the letter with notation was mailed to attorneys for plaintiff and defendant.

Defendant’s attorney commenced another trial in District Court the week prior to March 6, which trial was still in progress on March 6. Plaintiff’s attorney, on March 6th, caused the Judge of the County Court at Law to reset the instant case to March 8 without consent of defendant’s attorney.

Defendant’s attorney finished the trial in District Court on March 7, and learned that a witness who was available on March 6 would not be available on March 8. Defendant then filed First Motion for Continuance on account of the absence of the witness. The trial court heard and overruled such motion on March 7.

When defendant appeared for trial on March 8, he learned that a jury was not present. Defendant paid a jury fee and renewed his motion for continuance on the ground of his absent witness; and asserted the additional ground that no jury was present. Defendant agreed to go to trial on March 15 in the event the case should be postponed. The trial court overruled this motion. The case proceeded to trial before the court without a jury, which rendered judgment for plaintiff for $750.

Defendant filed Motion for New Trial, which was overruled.

Defendant appeals, contending:

1) The trial court erred in refusing defendant’s first and renewed first Motion for Continuance.
2) The trial court erred in forcing trial without a jury.
3) There is no evidence, or insufficient evidence, of defendant's negligence.

We revert to contention 1. The case was set for trial for Monday, March 6th at 9:00 o’clock. Defendant’s attorney had agreed to the setting; had his witness Frederickson available; and would have gone to trial but for the trial in District Court, commenced the previous week, which was not concluded. When defendant’s attorney finished the District Court trial on March 7, he learned the instant case had been reset for March 8; and learned his witness Frederickson had been called by his company to fly to New York for a few days. Defendant then filed first Motion for Continuance, which was heard and overruled by the trial court on March 7.

Defendant’s attorney appeared on March 8 for trial, and learned a jury was not present. He then renewed the Motion for Continuance on the ground of the absent witness, and on the additional ground that he thought the case was on the jury docket.

Defendant’s attorney relied on plaintiff’s attorney’s letter of December 27, requesting the court to set the case for “jury trial.” Neither plaintiff nor defendant had paid a jury fee until defendant paid such on March 8.

At the hearing of the Motion for Continuance on March 8, defendant stated his witness would be available on March IS, and asked for postponement of trial to such date. The trial court overruled this motion and the case proceeded to trial without a jury.

It is true defendant had not subpoenaed the witness (who lived in Dallas), and had not taken his deposition. However the witness was factory representative of the air conditioning manufacturer represented by defendant; had agreed to be present; and was available on March 6. He was unexpectedly called to New York on March 7, but was available for March 15. The failure of the case to go to trial on March 6, was not the fault of defendant or his attorney. Such was in the nature of an unavoidable occurrence, as the unexpected sickness of the trial judge or counsel would have been.

The Motion for Continuance on March 7 was in compliance with Rule 252, Texas Rules of Civil Procedure; was properly verified, and was not controverted. The absent witness was an engineer in the employ of the manufacturer of the air conditioning unit involved, and was to testify as to the proper installation of the unit in keeping with custom, practice and manufacturer’s specifications.

Under the facts we think the trial court should have granted the first Motion or renewed Motion for Continuance (or postponed the trial). Moreover, the ends of justice will be better subserved if the judgment is reversed and the cause remanded. See: Piedmont Fire Ins. Co. v. Dunlap, Tex.Civ.App., (nre), 193 S.W.2d 853; Automatic Radio Mfg. Co. of Tex. v. Brandimarte, Tex.Civ.App. (nre), 389 S.W.2d 738; Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688.

This case is distinguishable on its facts from Fritsch v. J. M. English Trk. Line, 151 Tex. 168, 246 S.W.2d 856, urged by plaintiff as controlling.

Other points are not discussed as they will probably not arise on another trial.

Reversed and remanded.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    TEXAS TOOL TRADERS, INC., et al., Appellants, v. MOSLEY MACHINERY COMPANY, Inc., Appellee.
    No. 4655.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1967.
    Rehearing Denied Dec. 28, 1967.

      Eades & Eades, Dallas, for appellants.
    Leonard L. Gorin, Waco, for appellee.
   OPINION

WILSON, Justice.

Appellee-plaintiff sued appellants for damages resulting from conversion of machinery which they had borrowed, and resulting from their failure to deliver other equipment which plaintiff had bought and paid for. Plaintiff recovered in a non-jury trial. Findings and conclusions were filed.

Defendants admit the conversion, and concede liability for damages. They attack only the findings as to amount and the measure adopted by the trial court. They assert also that there is insufficient evidence, or none, to support findings as to value of loss of use of the equipment not delivered. They say the record does not support the judgment against them for exemplary damages.

Plaintiff operates a factory in which machinery for the metal industry is manufactured. The business grosses about two million dollars annually and has about 100 employees. The most important machine tools in the plant are 12 metal lathes. Appellants are engaged in the business of buying, selling and rebuilding lathes and other machine tools.

In 1965 appellee purchased from another supplier a rebuilt Niles lathe at a cost of $13,500. In June, 1965 it bought from appellants a rebuilt Axelson lathe, which included a chuck and a traverse, paying appellants $14,500 cash plus sales tax therefor. While installing the latter equipment in appellee’s plant appellants borrowed the gear box from the Niles lathe, stating they desired to use it as a model or pattern from which to construct another in their plant. Such gear boxes are scarce or unavailable.

Defendants never returned the borrowed Niles lathe gear box, though frequently promising to do so. Instead, they installed it on another machine without plaintiff’s knowledge or consent. The latter machine, with plaintiff’s gear box made a part of it, defendants sold to a Louisiana customer.

The chuck, which was a component of the Axelson lathe purchased for cash from defendants on June 4, 1965, was not delivered to plaintiff until April 11, 1966. Defendants delayed delivery of the traverse until May, 1966. The evidence shows the chuck is the fixture which holds metal in the lathe while it is being turned, threaded or drilled; and that the Axelson lathe purchased from defendants was rendered practically useless without it and the traverse.

The court found defendants agreed to deliver and sent plaintiff an invoice showing shipment of chuck and traverse on June 4, 1965, but failed to deliver or ship them until April and May, 1966; that they wrongfully withheld delivery and deprived plaintiff of the use thereof during the delay; that the reasonable and fair value of the use of the chuck lost during this period was $450; and of the traverse, $750. Judgment for loss of use was for these amounts.

Defendants say there is no evidence, or insufficient evidence, to support the findings as to damages for loss of use. These points are overruled. It is undisputed that appellee was deprived of the use of the equipment for over ten months. There was evidence that the reasonable rental value of equipment of the type of the traverse and chuck was five per cent per month of its reasonable market value; that the reasonable market value of the chuck was between $600 and $1,000; and of the traverse, $1500; that the reasonable rental value of the lathe if complete with its components was $500 per month. It is true that there was contrary and inconsistent evidence from interested witnesses, but the trial court was authorized to accept or reject all or parts of the opinion testimony. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561; Muro v. Houston Fire & Casualty Insurance Co., Tex.Civ.App., 329 S.W.2d 326, 331, writ ref. n. r. e., and cases cited.

In determining the value of loss of use of personalty as a measure of damage, it is not essential that the value be shown with absolute certainty. Latitude is allowed in determining damages where there is no precise measurement. The object is to award the owner actual pecuniary compensation for his loss. International-Great Northern R. Co. v. Casey, Tex.Com. App., 46 S.W.2d 669; Pridgin v. Strickland, per Lipscomb, J., 8 Tex. 427.

In ascertaining the value of loss of use resulting from detention of personalty, as in the case of loss of use while it is undergoing repair from damage, its reasonable rental value is a factor which it is proper to consider. Brown v. Guaranty-Securities Co., (Tex.Com.App., 1924) 265 S.W. 547, 550; Craddock v. Goodwin, 54 Tex. 578, 588; Universal Credit Co. v. O’Neal, Tex.Civ.App., 140 S.W.2d 596, 600; Stalker v. Williams, Tex.Civ.App., 3 S.W.2d 534, 535; Montgomery v. Gallas, Tex.Civ.App., 225 S.W. 557, 560; Baldwin v. G. M. Davidson & Co., Tex.Civ.App., 127 S.W. 562, 564. Here appellee did not attempt to recover or offer evidence on loss of profits during the period of lost use, notwithstanding proof that the entire lathe, for which appellants had received $14,500 from appellee, was practically useless for ten months. The evidence was adequate to sustain the findings.

It is next urged that the evidence is legally and factually insufficient to support the court’s finding that the converted Niles lathe gear box was of the reasonable cash market value of $10,000, and that there is no supporting pleading. There was also a finding that the reasonable cost of making a Niles gear box is $10,000. Appellants assail the latter finding on grounds of lack of pleading and evidence, and because it does not constitute a proper measure of damage.

The judgment does not fix the measure of damage applied by the trial court, and does not restrict recovery to either of the bases challenged by these points. Plaintiff’s pleading alleged it had been damaged $13,500 by the conversion of the gear box and failure of defendants to return it, and prayed for judgment in this amount. They did allege they were damaged by reason of the lathe being rendered useless. They did not allege market value of the gear box.

In a tort action it is not required that the measure of damage be alleged. It is only necessary to allege facts constituting a cause of action. The measure of damage is a matter of law for the court under the evidence. Phillips v. Cook, Tex.Civ.App., 282 S.W.2d 294, 296, writ ref. n. r. e.; McMahan v. Musgrave, Tex.Civ.App., 229 S.W.2d 894, 897, writ dism.; Lloyds America v. Payne, Tex.Civ.App., 85 S.W.2d 794, 795; Beeson v. Marshall, Tex.Civ.App., 353 S.W.2d 234, 237, writ ref. n. r. e.; 17 Tex.Jur.2d, Damages, Sec. 197, p. 263. We find no objection to evidence introduced on the issue of damages on the ground that it was not raised by the pleading. Issues supporting the judgment were tried by implied consent under Rule 67, Texas Rules of Civil Procedure.

The evidence on this portion of the damages supports the judgment.

Exemplary damages of $5,000 were awarded on the court’s finding that defendants “knowingly, wilfully, intentionally, fraudulently and with malice” converted the lathe gear box. Defendants apparently attack the determination because there is no finding the conversion was accompanied by any “wilful act of violence, malicious or oppressive conduct” in the language of a case they cite. In this case the quoted elements not included in the findings were not necessary. Those which were found by the court are sufficient as a basis for recovery of. exemplary damages. Connor v. Sewell, 90 Tex. 275, 38 S.W. 35; Lane v. Security Title & Trust Co., Tex.Civ.App., 382 S.W.2d 326, writ ref. n. r. e.; Burmarsal Co. v. Lake, Tex.Civ.App., 272 S.W. 582, writ dism.

Appellants’ points have all been fully considered and are overruled. Affirmed.


author: PEDEN, Associate Justice.

text:
    Jack CUNNINGHAM, Appellant, v. GULF COAST COLLECTION AGENCY COMPANY, Appellee.
    No. 15146.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Dec. 7, 1967.
    Houchins & Tasker, Kenyon Houchins, Houston, for appellant.
    Solito, Vetrano & Murr, Edward G. Murr, Houston, for appellee.
   PEDEN, Associate Justice.

Plaintiff’s petition alleged that the defendant company uttered and published a libel in the form of a letter (part of which is set out in the petition) and that it was circulated.

The plaintiff filed this appeal after the trial court granted the defendant’s motion for an instructed verdict.

The plaintiff testified that his foreman, Mr. Ken Winters, had handed him a letter purporting to be from the defendant company and that he had called the telephone number indicated on the letter. The operator first connected him with the defendant company and then with a Mr. McDaniel, and Mr. McDaniel admitted that “they sent a letter” concerning a delinquent account.

Plaintiff’s attorney then asked his client many questions about the telephone conversation with Mr. McDaniel, seeking to prove what Mr. McDaniel (who is not a party to the suit) had said to the plaintiff as to (1) the information in the letter. (2)whether he had sent it, and (3) whether he was connected with the defendant company. Defendant’s objections of hearsay were sustained. The letter was not in evidence and had not yet been offered in evidence.

Plaintiff’s first point on appeal asserts in general terms that the testimony concerning his . telephone conversation with Mr. McDaniel, who responded to the telephone call placed to the offices of the defendant company, should have been admitted.

One of plaintiff’s basic problems is the lack of proof in the record that Mr. McDaniel was an agent of defendant company and was acting within the scope of his authority at the time he transmitted the letter in question, if he did. In the absence of such proof, what Mr. McDaniel later said to plaintiff in a telephone conversation would be hearsay as to his principal. As pointed out in the case of Edwards v. Montgomery Ward & Company, Tex.Civ.App., 270 S.W.2d 432, ref., n. r. e., “This showing of employee status was not sufficient from which to infer his authority to make assertions on behalf of his principal affecting the latter’s rights or liabilities in regard to the subject matter of this suit.”

The agent may testify as to facts showing his agency, but to have others relate his declarations on the subject constitutes hearsay. Humble Oil & Refining Company v. Hamer, Tex.Civ.App., 167 S.W.2d 272, n. w. h.

Further, the record in this case is silent as to what the plaintiff’s testimony would have been if he had been permitted to testify as to such conversation, so we are unable to determine whether he has been harmed by its exclusion.

Plaintiff further contends that by reason of Rule 93(h), Texas Rule of Civil Procedure, the allegedly libelous letter, which was marked as Plaintiff’s Exhibit 4, should have been accepted into evidence as fully proved. It is true that the defendant company did not under oath deny its execution, but plaintiff’s pleadings do not entitle him to require such denial because plaintiff did not allege that such letter was executed by the defendant company or by its authority. Sance v. Burnett, Tex.Civ.App., 316 S.W.2d 761, n. w. h., was also a libel case. The trial court had admitted the letters in evidence over objection, without proof of authenticity or execution. On appeal, the judgment of the trial court was reversed, the appellate court stating:

“Under these circumstances we are of the opinion, and so hold, that prima facie proof of necessary elements of an action for libel was wanting in this instance. There is no proof that the defendant published the defamatory matter unless the letter-copies themselves be properly treated as evidence that he executed them.
“The plaintiffs recognize the problem and insist that since non est factum was not plead under oath, in accord with the provisions of Texas Rules of Civil Procedure, rule 93(h), the libelous letters (letter-copies) proved themselves as having been ‘executed’ by the defendant. But there was no allegation by plaintiffs that such letters were ‘executed’, — rather the allegation was that they were caused to be ‘published’ by the defendant. The exact allegation is that ‘ * * * the defendant caused to be published by United States mail and postal delivery * * the communication evident by plaintiffs’ exhibit “A” * * * and * * * the defamatory communication evident by plaintiffs’ exhibit “B”.’ Under the circumstances of this case the term ‘published’ or the term ‘caused to be published’ certainly does not embrace the term ‘executed’. Neither would the terms be synonymous. It necessarily follows that defendant was not obliged to plead non est factum under oath in order to make an issue. Plaintiffs were not relieved of any burden through the defendant’s election not to do so.”

For the reasons stated neither of appellant’s points presents error. The judgment of the Trial Court is in all things affirmed.


text:
    H. P. McLEOD, Appellant, v. Vivian HINTON et al., Appellee.
    No. 4680.
    Court of Civil Appeals of Texas. Waco.
    Nov. 30, 1967.

      Moses & Truett, McKinney, for appellant.
    Abernathy & Orr, McKinney, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from a take-nothing judgment in a suit for injunction to open an asserted roadway, and for damages.

Plaintiff McLeod, owner of 60 acres, filed this suit against defendants Hinton, owners of 200 acres to plaintiff’s north, alleging defendants had blocked an asserted roadway easement lying partially on defendants’ property and partially on the property of landowners to defendants’ south, and running from plaintiff’s property westward to a public road; that the roadway was an easement used in excess of SO years by all owners of adjacent lands, and is the only reasonable access way of plaintiff to his property. Plaintiff prayed for injunction ordering defendants to remove posts placed in the asserted roadway, and for damages.

Trial was before the court without a jury, which, after hearing, entered judgment that plaintiff take nothing.

The trial court .filed Findings and Conclusions as follows:

FINDINGS OF FACT
1)The road or way in question is not now nor has it ever been used by the general public.
2) The use by plaintiff McLeod of the road or way in question, was first commenced while plaintiff was a tenant of defendant.
3) Plaintiff remained a tenant of defendant until 1966.
4) Plaintiff has other ways of access to his farm property.
5) The act of defendant in fencing her property does not deny plaintiff the use of the road or way in question, as there is still sufficient room along said way to accommodate the plaintiff.
6) There is no evidence plaintiff sustained any damage by reason of the acts of defendant.
CONCLUSIONS OF LAW
1) Plaintiff was not granted a right-of-way across defendants’ property by defendants.
2) Plaintiff has not acquired a right-of-way across defendants’ property by estoppel.
3) Plaintiff has not acquired a right-of-way across defendants’ property by prescription.
4) Plaintiff has not acquired a right-of-way across defendants’ property by necessity.
5) Plaintiff has the same access to his farm now that he had when he acquired it.
Plaintiff appeals on 9 points, contending :
1) The trial court erred in making Findings of Fact 1, 4, 5 and 6.
2) The trial court erred in making Conclusions of Law 2, 3, 4 and 5.
3) The trial court erred in not granting relief to plaintiff for damages and opening the road.

Defendant purchased her property from A. G. Taylor in 1935; plaintiff purchased his property from the Travelers Insurance Company in 1938. There is no further showing as to the prior title or ownership of either tract. Plaintiff was tenant of defendants from 1935 until 1966, and used the field road on the southern side of defendants’ property as tenant of defendants. Prior to the instant case, defendant had her property surveyed and erected a fence on her south line. Such fence enclosed about half of a field roadway.

Plaintiff complains of the trial court’s findings 1, 4, 5 and 6.

As noted, the trial court found that the roadway had never been a public road; that plaintiff has other ways of access to his property; that there is still room for plaintiff to use the roadway; and that there is no evidence that plaintiff has been damaged. The defendant and the witness McDonald testified the roadway was not and had never been a public road. The witnesses Kinamon and Cook testified that plaintiff had a way out to the South. The witness Hinton testified and the photographic evidence reflects, plaintiff can still use the roadway in spite of defendants’ fence; and there is no evidence of damage to plaintiff. We think the evidence ample to sustain the trial court’s findings 1, 4, 5 and 6.

Plaintiff’s 2nd contention is that the trial court erred in Conclusions 2, 3, 4 and 5.

Throughout all the years that plaintiff used the roadway on defendants’ property, plaintiff was tenant on the property. The record does not reflect that defendant ever- conveyed any right to plaintiff to use the roadway, or that plaintiff ever expended any money on such roadway. No estop-pel was plead by plaintiff, and there is no evidence that plaintiff has right to use the way by estoppel.

The trial court found plaintiff had not acquired a right-of-way by prescription. To establish such an easement it must be shown that the use was open, notorious, hostile, adverse, uninterrupted, exclusive, and continuous for a period of 10 years. A failure to prove any one of the essential elements is fatal. Mere use alone will not create an easement. The user here was permissive, as plaintiff was tenant of the defendant. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878; Rust v. Engledow, Tex.Civ.App. (nre) 368 S.W.2d 635.

The trial court found plaintiff had not acquired a right-of-way across defendants’ land by necessity.

The 3 requisites for a way of necessity are: 1) unity of ownership; 2) that the roadway is a necessity; 3) that the necessity existed at the time of the severance of the 2 estates. Waggoner Estate v. Gleghorn, S.Ct., 378 S.W.2d 47; Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622.

There is no evidence that plaintiff’s and defendants’ property was ever under common ownership; and the evidence reflects at the time plaintiff purchased his property he had some 3 ways to the public road; and has at least one at the present time.

All plaintiff’s points and contentions are overruled.

Affirmed.


author: HIGHTOWER, Chief Justice.

text:
    MABRY FOUNDRY AND MACHINE COMPANY et al., Appellants, v. HOWARD MOTOR COMPANY, Inc., Appellee.
    No. 6899.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 14, 1967.
    Keith, Mehaffy & Weber, Beaumont, for appellants.
    Wheat, Wheat & Stafford, Woodville, for appellee.
   HIGHTOWER, Chief Justice.

This is an appeal by defendants from a summary judgment in favor of plaintiff.

Plaintiff’s petition alleged in substance that defendant, Walter Overstreet, acting within the scope of his employment, parked a truck which he had been driving, belonging to Mabry Foundry and Machine Company, approximately 100 feet north of the Tall Pine Inn in Woodville, Texas. While Overstreet was inside the Inn drinking coffee, he left the truck unattended without properly setting the brakes, without chocking the wheels and without turning the right wheel thereof toward the right hand side of the highway, although said vehicle was parked on a grade, all of which was a violation of the laws of the State of Texas. While such vehicle was so parked unattended, it began to roll and move down said grade until it crashed into three automobiles and two pick-up trucks belonging to plaintiff and parked upon plaintiff’s car lot, Inflicting severe damage, each and all of the foregoing acts of omission and commission being negligence and a proximate cause of the damages.

In answer to plaintiff’s claim, defendants filed a general denial, a plea of unavoidable accident, and further pled that the accident was due solely and proximately to the negligence of some third person not a party to the law suit.

In answer to requested admissions of fact, defendants denied that Overstreet failed to set the brakes and turn the wheels of his truck as alleged by plaintiff. They admitted that Overstreet left the truck unattended and failed to chock the wheels thereof as alleged.

Plaintiff filed a supporting affidavit signed by Hugh Howard as President of plaintiff, Howard Motor Company, Inc., in which he assessed the amount of damages sustained by the company’s vehicles and stated that said damage had not occurred to them prior to the collision and were not the result of any cause other than the crash of the truck belonging to defendant, Mabry Foundry and Machine Company. On the strength of this affidavit, the pleadings and the admissions of fact, the trial court entered summary judgment in plaintiff’s favor as aforesaid.

We hold the judgment to have been erroneously granted. The allegations of plaintiff’s pleadings regarding negligence and proximate cause were not verified and could not be considered as affidavits. They were mere conclusions of law and hearsay. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317. Plaintiff’s motion for summary judgment was not verified and cannot be considered as an affidavit, although it did no more than incorporate the plaintiff’s pleadings and set the amount of damages incurred by plaintiff. The admissions made by defendants were not evidence of negligence and proximate cause of the collision, nor was the affidavit made by Hugh Howard.

Questions of negligence and proximate cause are usually issues of fact which cannot be determined on motion for summary judgment. Fuller v. Southwestern Greyhound Lines, Inc., Tex.Civ.App., 331 S.W.2d 455; Sullivan v. Sisters of St. Francis of Texas, Tex.Civ.App., 374 S.W.2d 294. When defendants filed their general denial and special pleas in answer to plaintiff’s petition, issues of fact were joined on every essential allegation made by plaintiff. Thereafter, it became plaintiff’s burden to dispel such issues of fact by sworn motion, by affidavits and admissions of fact in this case. As above stated, none of the aforesaid instruments met the necessary requirements of proof. Accordingly, the judgment is reversed and the cause remanded to the trial court.

Reversed and remanded.


author: HUGHES, Justice.

text:
    Chester A. OEHLER, Appellant, v. Carl A. OEHLER, Appellee.
    No. 11555.
    Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1967.
    Rehearing Denied Jan. 3, 1968.
    Chester A. Oehler, Dallas, James R. Lindley, Killeen, for appellant.
    Tom A. Carlile, Killeen, Arthur O’Conner, Belton, Cofer, Cofer & Hearne, Hume Cofer, Thomas H. Nation, Austin, for ap-pellee.
   HUGHES, Justice.

This appeal is from a judgment dismissing a suit brought by Chester A. Oeh-ler, appellant, against Carl A. Oehler for want of prosecution. The suit was filed October 4, 1960.

The statement of facts in this case reflects that this case was called for trial on March 27, 1967, and appellant announced that he was ready based on his motion for continuance filed the same day and handed to the trial judge with the statement by counsel for appellant that he would be ready for trial in the morning and requested the court to select a jury, read the pleadings and recess until March 28.

Counsel for appellee orally objected to the continuance on the ground that his client and witnesses were present ready for trial; that the case had been dismissed for want of prosecution in 1965, and that the present setting for trial was made in January and appellant had ample opportunity to be prepared for trial.

Appellant thereupon made a motion for judgment in his favor on the pleadings since they were in the form of a sworn account and no sworn denial had been filed. The following proceedings immediately transpired:

“THE COURT: The plaintiff’s motion for verdict is denied on the ground that no motion for summary judgment has been filed.
Among other reasons, plaintiff’s motion for continuance is denied for the reason that this case has been set — has been filed since October 4th, 1960, and has been given preferential settings before, and plaintiff has never been ready.
Further, this suit was dismissed on September 1st, 1965, for lack of prosecution and was later reinstated on motion of the plaintiff.
Motion for continuance is further overruled for the further reason that this case was given a preferred setting in January, 1967—
MR. LINDLEY: The defendant wasn’t ready that time, Your Honor.
THE COURT: —pre-trial has been had, the defendant and jury panel are present in court and all defense witnesses are present.
Plaintiff’s motion for continuance, filed in this case today, states merely that there is a substantial probability that the plaintiff will be in court on March 28, but gives no assurance— * * *
THE COURT: That plaintiff’s motion is, therefore, denied; and this case, being Chester A. Oehler versus Carl A. Oeh-ler, Number 39,021-B, in the 146th District Court of Bell County, Texas, is hereby dismissed for lack of prosecution.”

We quote the following from appellant’s motion for continuance which was filed March 27, 1967, and which the trial court denied:

“NOW COMES Chester A. Oehler, plaintiff in the above entitled and numbered cause, and makes this his first application for a continuance, and being duly sworn, says that he cannot go to trial on account of his absence and is a witness therein on his own behalf as and for the plaintiff of substantially all of plaintiff’s pleadings which are here referred to and included herein for all purposes as fully as if herein copied; that plaintiff is an Attorney at Law and has for more than one (1) month been engaged in various phases of a land dispute case in Denton County, Texas, being Conway vs. Irick, No. 66-852 in the 16th Judicial Court of Denton County, Texas; wherein on March 23, 1967 the Judge of said Court by order illegally imprisoned Affiant’s clients and it is absolutely necessary that Affiant, as their attorney, be in attendance in the Court of Civil Appeals in Fort Worth, Texas on March 27, 1967 to present a Writ of Prohibition Application and Application for a Writ of Habeas Corpus to obtain the release of said Con-ways, and that there is a substantial probability that such matter which has been in continuous progress upon institution since February 2, 1967 cannot be concluded on March 27,1967, but if it can be concluded on March 27, 1967, Affiant as plaintiff in the above entitled and numbered cause will make every effort to be here on March 28, 1967, if the Court doesn’t grant a continuance of this case to another special setting or the next term of court. In this connection Affiant further says that such case in Denton County, Texas, has resulted in a severe mental and physical strain upon Affiant and has resulted in many other cases on his docket as being passed and resulted in a general pile up of work; and Affiant has been advised by his doctor repeatedly during the last week that he should take a complete rest or suffer a possible breakdown; and that this continuance is not sought for delay only, but that justice should be done.
WHEREFORE, plaintiff prays the court to continue this cause to the next term of court.”

We also quote the following' from a motion to dismiss for want of prosecution dated March 27, 1967, sworn to by appellee on April 6, 1967, and filed April 7, 1967:

“The Defendant makes this motion that the above entitled and numbered cause be dismissed for want of prosecution for the following reasons, to-wit:
(1) That said case has been pending in this Court since the year 1960;
(2) That said case was dismissed once for want of prosecution and was reinstated by the Plaintiff in the year 1965;
(3) That each time Plaintiff asked for a setting in this case, he insisted on a preferential setting, and said case was set for trial in January, 1967, for March 27, 1967, with a preferential setting;
(4) That Defendant was present in Court with his witnesses prepared to testify and the jurors had been duly summoned and were present in the Court Room, and that the Defendant had announced ready on the date of the preferential setting on March 27, 1967.”

The judgment of dismissal was entered May 12, 1967, from which we quote:

“ON THIS 27th day of March, 1967 came on to be heard the above entitled and numbered cause. Plaintiff appeared through his attorney of record, James R. Lindley, and the Defendant appeared in person with his attorneys of record, Tom A. Carlile and Arthur O’Connor. The Court asked the Plaintiff if he was ready. The Plaintiff’s attorney submitted a sworn statement for a motion for continuance stating that the Plaintiff was engaged in a writ of prohibition in the Court of Civil Appeals in Fort Wor.h, Texas, and asking that the case be continued to a later date or to the next term of Court.
The Court then asked the Defendant if he was ready and the Defendant through his attorney, Tom A. Carlile, stated that the Defendant was ready. The Defendant opposed the motion for continuance, stating that said case had been pending since the year 1960, and had had a preferential setting since January, 1967. The Defendant’s attorney further pointed out to the Court that said cause had been dismissed once before for want of prosecution, and that the Defendant was present in Court with his witnesses and prepared to testify. The Defendant further stated that the jury was present in the Court Room.
The Court having considered the motion and Defendant’s objections to the motion, is of the opinion that Plaintiff’s motion for a continuance should be denied, and that said case should be dismissed for want of prosecution for the following reasons, to-wit:
(1) That said case has been pending in this Court since the year 1960;
(2) That said case was dismissed once for want of prosecution and was reinstated by the Plaintiff in the year 1965;
(3) That each time Plaintiff asked for a setting in this case, he insisted on a preferential setting, and said case was set for trial in January, 1967, for March 27, 1967, with a preferential setting;
(4) That Defendant was present in Court with his witnesses prepared to testify and the jurors had been duly summoned and were present in the Court Room;
(5) That Plaintiff’s motion for a continuance alleging that Plaintiff was unable to attend because of illness was not supported by a doctor’s affidavit;
(6) That Plaintiff’s attorney requested that the jury be retained and the trial begin the next morning. The Court noted that the written motion for continuance merely stated that there was only a good probability that Plaintiff would be able to be in Court the following day.
The Court after duly considering said motion is of the opinion that said motion for a continuance should be denied and that said case should be dismissed for want of prosecution at Plaintiff’s costs.
It is therefore ORDERED, ADJUDGED AND DECREED that the above entitled and numbered cause be dismissed for want of prosecution at Plaintiff’s costs, and it is so ORDERED.
The attorney for the Plaintiff then submitted a motion that judgment be entered for Plaintiff because said suit was a suit on sworn account for attorney’s fees and had not been denied under oath by the Defendant as required by the Rules of Civil Procedure.
The Court having duly considered said motion is of the opinion that it should be overruled and denied for the following reasons:
(1) That Plaintiff never at any time announced that he was ready prior to making the motion for judgment;
(2) That the last pleading of the Defendants was sworn to by the Defendant, Carl A. Oehler, according to law.
It is therefore ORDERED, ADJUDGED AND DECREED that Plaintiff’s motion be over-ruled.”

On May 22, 1967, appellant filed a motion to reinstate his suit and on June 9, 1967 filed his affidavit in support of such motion.

The record does not disclose that any hearing was conducted on this motion to reinstate.

Appellant has two points to the effect that the trial court erred in not postponing or continuing the case.

We cannot consider these points for the reason that they are not supported by assignments of error in the motion for a new trial. (Motion to reinstate is so considered) Rule 325, Texas Rules of Civil Procedure.

Appellant has two points the effect of which is that the trial court erred in summarily dismissing his suit for want of prosecution without giving him an opportunity to announce ready for trial and in refusing to set his motion to reinstate for a hearing.

Accompanying the motion to reinstate was the following letter from appellant’s attorney, dated May 20, 1967, addressed to the District Clerk of the court below, copies of which were shown to have been sent to the District Judge and the attorneys for appellee.

“Dear Mr. Taggart:

Enclosed please find Plaintiff’s Motion to Reinstate which I would appreciate your filing in the papers of this cause on the date that it is received.
I would then appreciate your discussing this with the Honorable W. A. Messer, and having a hearing set on this motion at his earliest convenience.
Copies of this order have been mailed to Mr. Tom A. Carlile, and Mr. Arthur O’Connor, attorneys for the defendant.”

It is our opinion that these points should be sustained. The rule we rely upon is found in Callahan v. Staples, 139 Tex. 8, 161 S.W.2d 489, from which we quote:

“Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, and a discontinuance results. However, since the discontinuance must be based on a factual situation involving lack of due diligence, same does not and cannot become effective until the basic facts are adjudicated by the court. Whenever the hearing for such adjudication is had, the plaintiff has the right to be heard to explain, if he can, his delay in prosecuting his suit.”

See also Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85.

The record discloses that in one and the same sentence appellant’s motion for continuance was denied and the' suit dismissed for want of prosecution without any opportunity being afforded appellant to explain the delay in bringing the suit to trial. That appellant does have an explanation is reflected by the lengthy affidavit filed in support of his motion to reinstate. We will not comment upon the substance of this affidavit except to say that if it is established, the facts proved along with other relevant facts which may be proved should “be adjudicated by the Court.”

For the error thus committed, this cause must be reversed and remanded.

We digress to say that when a motion for continuance is denied the trial court should, nevertheless, proceed to call the case for trial in the usual manner. See Rule 247, T.R.C.P.

Appellant’s two remaining points are, in substance, that the trial court erred in not granting him judgment on the pleadings.

These points are overruled. The only petition filed by appellant which was in the form of a suit on a sworn account was his second amended original petition filed March 20, 1967.

It does not appear that this petition was filed with leave of court. Rule 63, T.R.C.P. provides, in part, that any amended pleading offered for filing “within seven days of the date of trial” shall be filed only after leave of the judge is obtained. We construe the words “within seven days” to mean “seven days before” and that Rule 4, T.R.C.P., requires that the date of trial be included in computing this period, although the date the amendment is offered for filing shall not be included. See Glenn v. Garrett, 84 S.W.2d 515, Tex.Civ.App. Amarillo, n. w. h., 52 Am.Jur., p. 351.

Thus the sworn account pleading was not properly before the Court for consideration. Medina v. Sherrod, 391 S.W.2d 66, Tex.Civ.App., San Antonio, n. w. h.

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

Reversed and remanded.


author: COLEMAN, Justice.

text:
    BANKERS MULTIPLE LINE INSURANCE COMPANY, Appellant, v. A. J. GORDON, Individually and d/b/a Gordon & Company, Appellee.
    No. 15124.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Dec. 7, 1967.

      Bryan & Patton, Chilton Bryan, J. H. Westmoreland, Houston, for appellant.
    Charles O. Melder, Houston, for appellee.
   COLEMAN, Justice.

This is a suit on a debt. The principal questions involved are whether it is reversible error to require the plaintiff to proceed to trial before the court without a jury in a case where a demand for a jury was made and the jury fee paid more than ten days prior to the day on which the case was set for trial, there being no waiver of the right to jury trial, but where the court directed a verdict for the defendant, and whether it is error to refuse to admit an unsigned deposition into evidence on objection during trial there being no compliance with Rule 212, Texas Rules of Civil Procedure.

The case was set for December 5, 1966. Twelve days prior to this date plaintiff paid the jury fee as required by Rule 216, Texas Rules of Civil Procedure. The case was called for trial on December 6, 1966, at which time plaintiff filed a sworn motion to have the case transferred to the jury docket, which alleged that the jury fee was paid on November 23, 1966, and that this fact was called to the attention of the Presiding Judge at the call of the docket on December 2, 1966. The motion was denied.

The case went to trial before the court. The plaintiff offered in evidence the deposition of E. M. Goodman, and the defendant objected to the deposition in its entirety because it was not signed by the witness. The objection was sustained. The notice of intention to take depositions recited the name of the witness to be G. M. Goodman, but the interrogatories show that the name of the witness answering the interrogatories was Eugene M. Goodman, assistant treasurer of plaintiff company. An affidavit to the sworn account attached to plaintiff’s petition and to the deposition was signed by G. M. Goodman, Ass’t Treasurer.

The plaintiff next offered the deposition of William A. Laing. The first five questions inquired about the name and employment of Wm. A. Laing. Question No. Six was objected to on the ground that it was leading and assumed facts not in evidence. This objection was sustained. The Question No. Seven was objected to because it was based upon a positive answer to Question No. Six, and was hearsay. This objection was sustained. Thereafter objections were sustained to the remaining questions and answers on the basis that the questions assumed facts not in evidence and were based on questions not answered.

Plaintiff next offered in evidence interrogatories directed to Eugene M. Goodman together with the answers and exhibits attached thereto. This testimony was refused on the objection that the deposition was not signed by the witness. The envelope offered by plaintiff on his Bill of Exceptions shows that this deposition was received by the District Clerk and filed on December 6, 1966. After offering some requests for admissions of facts and the defendant’s answer denying same, the plaintiff rested and the trial court promptly-announced that judgment would be rendered for the defendant.

Since plaintiff had seasonably demanded a jury and had paid the jury fee, he was entitled to a trial before a jury. There is no evidence to support an implied finding that he waived his right to a jury trial. The action of the trial court in proceeding to trial without a jury was error. The mere denial of this right raises an inference of probable harm. Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958); Mason v. Tobin, 408 S.W.2d 243 (Tex.Civ.App., Houston 1966, n. w. h.); Meyer v. Henery, 400 S.W.2d 933 (Tex.Civ.App., Austin 1966, n. w. h.); Barker v. Kidd, 357 S.W.2d 490 (Tex.Civ.App., Austin 1962, n. w. h.).

The deposition of E. M. Goodman first offered in evidence by the plaintiff had been on file in the office of the District Clerk of Harris County, Texas, since July 15, 1966. Defendant filed no motion to suppress this deposition, but was content to wait until it was offered into evidence and then objected to its admission on the ground that it was not signed by the witness. Ap-pellee contends that the trial court’s action in sustaining this objection is supported by Thompson v. Haile, 12 Tex. 139 (1854); Bush v. Barron, 78 Tex. 5, 14 S.W. 238 (1890); Emberson v. McKenna, 16 S.W. 419 (Tex.Civ.App.1890); Missouri, K. & T. Railway Co. of Texas v. Graves, 57 Tex.Civ.App. 395, 122 S.W. 458 (1909); McFaddin v. Sims, 43 Tex.Civ.App. 598, 97 S.W. 335 (1906); and Tian v. Warren, 271 S.W.2d 453 (Tex.Civ.App., San Antonio 1954, writ ref., n. r. e.).

Rule 212, Texas Rules of Civil Procedure, provides:

“When a deposition shall have been filed in the court at least one entire day before the day on which the case is called for trial, no objection to the form thereof, or to the manner of taking the same, shall be heard, unless such objections are in writing and notice thereof is given to the opposite counsel before the trial commences.”

This rule was taken verbatim from Article 3765, Revised Civil Statutes of 1925, except that the last sentence of this article has been omitted. This sentence reads: “Such objection shall be made and determined at the first term of the court after the deposition has been filed, and not thereafter.” This statute was first enacted in 1846, the quoted sentence having been added by amendment in 1893. Mayton v. Sonnefield, 48 S.W. 608 (Texas Civil Appeals 1898).

It is clear that objections to the manner and form of taking of depositions must be made in writing in advance of the trial if the deposition has been on file for one entire day before the day of the trial. Houston & T. C. R. Co. v. Haberlin, 104 Tex. 50, 133 S.W. 873 (1911); Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939). The cases cited by appellee establish the proposition that a failure of the witness to sign the deposition, in the absence of an agreement to waive the requirement, is a good ground for a motion to quash the deposition. None of the cases, insofar as can be determined from the opinion, deal with the situation covered by Rule 212, i. e., an oral objection, or motion to suppress, the deposition presented during the trial despite the fact that the deposition was filed months before the trial. The question to be determined is whether the signature of the witness comes within the meaning of the words “form thereof, or to the manner of taking the same” as used in Rule 212. In Ellis v. Lewis, 45 Tex.Civ.App. 248, 100 S.W. 189 (1907), opinion by-Justice Pleasants, the court said:

“It seems to be settled that any objection to a deposition based on a failure to comply with the statutory requirements in the filing of interrogatories, the issuance of commission and the taking and return of the answers of the witness, or upon the form of the questions or the failure of the witness to answer interrogatories, is an objection to the form and manner of taking as that term is used in the statute above mentioned. Sheegog v. James, 26 Tex. 501; Galveston, H. & S. A. Railway Co. v. Briggs, 4 Tex.Civ.App. 515, 517, 23 S.W. 503; Garner v. Cutler, 28 Tex. 175; Jones v. Ford, 60 Tex. 127; Lee v. Stone, 57 Tex. 444. From the authorities cited we deduce the general rule that all objections to the position of a witness, except such as challenge the admissibility of the testimony because of its intrinsic character or on account of the incompetency of the witness, must be made in accordance with the provisions of the article of the statute before cited. * * * The requirement of the statute that objection to the form and manner of taking depositions must be made before the trial of the case begins, and must be passed upon at the first term of the court after the deposition is filed is a just and reasonable requirement and one which should be strictly enforced. If the offered testimony is admissible and material, and the witness competent, the party benefited thereby is entitled to have a reasonable opportunity to procure it, and this is not afforded unless technical objections to the form and manner of the witness are promptly made as required by the statute, so that, if sustained, the party offering the testimony may by continuance of the cause have time to retake the deposition.”

See also Irons v. Bias, 92 W.Va. 236, 114 S.E. 566 (1922).

McCrary v. Greer, 242 S.W.2d 652 (Tex.Civ.App., San Antonio 1951, n. w. h.), opinion by Justice Norvell, -while not directly in point, appears to be persuasive. There a deposition was taken in accordance with a stipulation providing that after the stenographer taking the deposition had transcribed the questions and answers, “the said deposition may be carefully read over by said witness and by him subscribed and sworn to before any officer authorized to administer oaths.” The witness signed a statement saying that he had read the questions and answers contained in the deposition and that the same were true and correct and swore to the statement before a notary public. The trial court ruled that the provisions of the stipulation were substantially complied with. The Court of Civil Appeals held that this ruling was correct, and, further, stated: “ * * * the obj ections raised by defendant went to matters of form, and objections based upon such grounds should have been made before the trial commenced, as required by Rule 212, Texas Rules of Civil Procedure; Page v. Hancock, Tex.Civ.App., 200 S.W.2d 421, 425.”

This question was directly presented to the United States Court of Appeals, Ninth Circuit, in Valdez v. United States of America, 326 F.2d 598 (1963). In this case error was assigned by reason of the admission into evidence of an unsigned deposition. Rule 30(e), Federal Rules of Civil Procedure, is quite comparable to Rule 209, T.R.C.P., requiring a witness to read and sign his deposition. Rule 32(d), F.R.C.P., is comparable to Rule 212, T.R.C.P. In this case the appellant knew that the deposition had not been signed, but he failed to make a motion to suppress until after two days of trial. The court held:

“In our judgment this did not comply with the requirement of Rule 32(d) that to avoid waiver of such irregularities in a deposition an objecting party must move to suppress the deposition ‘with reasonable promptness after such defect is, or with due diligence might have been, ascertained.’ ”

The St. Louis Court of Appeals, Missouri, held that the deponent’s signature to his deposition is a matter primarily of form. Will Doctor Meat Co. v. Hotel Kingsway, 232 S.W.2d 821 (1950).

Hoyberg v. Henske, 153 Mo. 63, 55 S.W. 83 (1899), holds that signatures of the witnesses, notice of talcing of deposition, and authentication by the notary are matters of form which are waived in the absence of a timely motion to suppress.

Appellee contends that in any event the court’s action in refusing to admit this deposition is not error because of the variance in first initial of the name of the witness as found in the notice and affidavit of the notary from that of his first name as found in his testimony. An objection on such ground, had it been made at the trial, should not have been sustained, since this obj ection, also, goes to the manner and form of taking and returning the deposition into court. Jones v. Ford, 60 Tex. 127, 131 (1883); Missouri Pac. Ry. Co. v. Smith, 84 Tex. 348, 19 S.W. 509 (1892). In the later case the Supreme Court said:

“It is also complained that the court erred in excluding the deposition of one E. T. Van Vorhis, offered in evidence by the defendant. The notice of the filing of the interrogatories and the commission to take the deposition gave the name of the witness as ‘E. T. Van Horn.’ The answers were signed, ‘E. T. Van Vorhis.’ The objection was based upon this discrepancy. The deposition had been on file several months when the case was called for trial. That an objection of this character is to ‘the manner and form’ of taking the deposition, was, in effect, decided in the case Jones v. Ford, 60 Tex. 127. After the trial had begun it came too late, and it should have been overruled. The object of the statute which requires an objection to the manner of taking a deposition, which has been on file one day before the trial, to be made in writing before the trial commences, (Rev.St. art. 2235,) was to relieve parties from the necessity of suppressing depositions taken in their own behalf, and to enable them to go to trial relying upon their admissibility, unless notified that they were objected to by the opposite party. The rule prevents surprise by enabling a party whose depositions have been quashed to move for a continuance before announcing ready.”

The trial court erred in excluding the deposition. The trial court also erred in excluding the deposition testimony of the witness Laing for the reason that the objections were to matters of form rather than to the intrinsic character of the testimony. Houston & T. C. R. Co. v. Haberlin, 104 Tex. 50, 133 S.W. 873 (1911); National Life & Acc. Ins. Co. v. Hanna, 195 S.W.2d 733 (Tex.Civ.App., Dallas 1946, writ ref., n. r. e.); Texas & P. Ry. Co. v. Mix, 193 S.W.2d 542 (Tex.Civ.App., El Paso 1946, n. w. h.).

The errors of the Trial Court in denying appellant a jury trial and in suppressing the depositions require that this case be reversed and remanded for a new trial.

Reversed and remanded.

PEDEN, J., not participating.


author: SHARPE, Justice.

text:
    Guadalupe Garza ZAMORA et al., Appellants, v. Miguel SALINAS et al., Appellees.
    No. 349.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1967.
    Rehearing Denied Dec. 28, 1967.
    J. E. Wilkins, of Wilkins & Wilkins, Mc-Allen, for appellants.
    H. H. Rankin, Jr.,° of Rankin, Kern & Martinez, McAllen, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a judgment rendered and entered nunc pro tunc on March 14, 1967 as of the 8th day of October 1965, the date of the original judgment herein.

This suit was brought by appellees, plaintiffs below, against appellant Zamora and other defendants for partition of two tracts of land situated in Hidalgo County, Texas. The issue of title was also involved.

The original judgment of October 8, 1965 recited in the first paragraph in substance that the plaintiffs announced in open court that they no longer desired to pursue the case against the defendants and desired'to dismiss the cause “without prejudice” to their rights. However, the judgment in the second paragraph thereof ordered that plaintiffs cause against the defendants be dismissed “with prejudice” to plaintiffs and taxed the costs against them. The written judgment signed by the trial judge was precisely recorded in the minutes.

Thereafter on November 21, 1966, more than thirteen months after entry of the original judgment, the plaintiffs filed a motion for judgment nunc pro tunc alleging in substance that the first paragraph of the original order of dismissal correctly reflected the announcement and motion of the attorneys for plaintiffs, and that the court had announced that it would grant plaintiffs’ motion to dismiss “without prejudice” ; that through a clerical error or mistake the last paragraph of the original order of dismissal signed by the court read that the cause was dismissed “with'prejudice” instead of “without prejudice” and that the judgment as filed did not accurately reflect the ruling of the court. Plaintiffs further alleged that the attorney for plaintiff had only learned of such clerical error or mistake during the then current term of court. Plaintiffs prayed that the court enter a judgment, the form of which was attached to their motion, finding that the clerical error or mistake had been made and ordering by nunc pro tunc judgment that the case be dismissed “without prejudice” to plaintiffs.

The trial court set a hearing on plaintiffs’ motion for judgment nunc pro tunc and ordered notice of same be given to the defendants. The transcript contains a certificate of service of notice on the defendants or their attorneys. Appellant Zamora filed written opposition to plaintiffs’ motion for judgment nunc pro tunc generally raising the question involved in this appeal. None of the other defendants in the court helow opposed plaintiffs’ motion.

The trial court conducted a hearing on the matter on January 5, 1967 and took the case under advisement until March 14, 1967, on which date plaintiffs’ motion was granted and a judgment nunc pro tunc of dismissal “without prejudice” was rendered and entered. Among other things that judgment recited the following:

“ * * * that through clerical error or mistake, the Judgment as signed and filed dismisses the cause with prejudice and further appearing no third parties rights have been affected or changed in the period intervening the signing of that order and the present time and further that Plaintiffs’ Motion for Judgment Nunc Pro Tunc should be granted and that Plaintiffs’ request for an Order of Dismissal without prejudice should be granted nunc pro tunc.”

The evidence at the hearing of January 5, 1967 consisted of testimony of the attorney for appellees, the testimony of the attorney for Zamora, that of Zamora, and two exhibits. Zamora’s testimony was not helpful and that of his attorney related to events occurring after the original judgment. In substance, the attorney for Zamora testified that he had explained to Zamora that the original judgment dismissed the case with prejudice and foreclosed plaintiffs’ rights; that Zamora was further advised he could cut a certain fence on the property involved and after Zamora did so a criminal complaint was filed against him; that Zamora was arrested and required to post an appearance bond of $750.00, which bond was admitted into evidence; that Zamora had told his attorney he had depended on the original judgment. The stipulated testimony of the attorney for appellees was as follows:

“ * * * that on October 8th, 1965, during a call docket at which time the Court had asked for an announcement of some sort on this case, that Stonewall Van Wie did announce that he had with him an order for dismissal without prejudice and would present it to the Court after the call of the docket in his Chambers; thereafter, Stonewall Van Wie went to the Chambers of the Court, presented him with a document which he represented to be an order of dismissal without prejudice, and which document was signed and entered by the Court on that day, which is the order of dismissal which is in question this morning on this Motion for Judgment Nunc Pro Tunc.”

There was also admitted into evidence a letter dated October 11, 1965, three days after entry of the original judgment, written by the attorney for appellees to the attorney for Zamora, the body of which reads, “I am enclosing herewith a copy of an order dismissing the above entitled and numbered cause without prejudice.” The record shows that all of the action taken in connection with entry of the original judgment, including the drafting of it, was on the part of counsel for appellees, and there is nothing to show that appellant or the other defendants in the trial court or their attorneys had anything to do with the same. The record does not show any cross-actions were filed nor that there was any agreement for rendition of a judgment of dismissal “with prejudice” to plaintiffs. There is nothing in the record to show a proper basis for the trial court to originally enter a dismissal “with prejudice” when the plaintiffs had moved for dismissal “without prejudice.”

Under his first three points appellant contends that the trial court was without authority or jurisdiction to entertain plaintiffs’ motion or to enter a judgment nunc pro tunc more than a year after entry of the original judgment, which was copied in the minutes precisely as signed by the judge, because any error committed was a judicial error. Appellees say by their first three reply points that the trial court had authority and jurisdiction to entertain their motion for and to enter a judgment nunc pro tunc, and that it properly rendered the same because the original judgment as entered upon the minutes was not the same as pronounced by the court, and that the purpose of the judgment nunc pro tunc was to correct a clerical error so as to make the judgment speak the truth and correctly reflect the ruling of the trial court.

It thus appears that the basic difference between the parties is whether a judicial error or a clerical error is involved. If the trial court herein was endeavoring to correct a judicial error and render a different judgment from the one actually rendered originally, it was without the authority and jurisdiction to do so because the original judgment had become final by operation of law and (in the absence of a timely filed bill of review) the court had no further control over it. Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961); Stonedale v. Stonedale, 401 S.W.2d 725 (Tex.Civ.App., Corpus Christi 1966, n. w. h.); Rule 329b, par. 5, Texas Rules of Civil Procedure. On the other hand, if the court was merely correcting its records so as to make them accurately reflect the judgment it in fact rendered on October 8, 1965 it was empowered to do so because it had continuing jurisdiction over its records. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Rule 316, T.R.C.P.

Upon consideration of the entire record we have concluded that the findings expressly made by the trial court in the nunc pro tunc judgment and those which may properly be implied in support of it are legally and factually sufficient to establish that the trial judge on October 8, 1965 pronounced and rendered a judgment of dismissal “without prejudice” but that the written judgment signed by him and entered on the minutes dismissing the case “with prejudice” did not correctly evidence the action actually taken by the trial court. Thus clerical error or mistake is presented; not judicial error. The trial court had authority and jurisdiction to entertain plaintiffs’ motion and to enter a judgment nunc pro tunc upon a proper showing such as that made here. See Duncan v. Marlin Motor Co., 41 S.W.2d 740 (Tex.Civ.App., Waco 1931, wr. ref.) ; Truelove v. Truelove, 266 S.W.2d 491 (Tex.Civ.App., Amarillo 1953, wr. ref.); Veal v. Jaggers, 13 S.W.2d 745 (Tex.Civ.App., Amarillo 1929, wr. dism.).

Appellants’ fourth point is to the effect that the nunc pro tunc judgment was erroneous because it changed the status of the parties. Such is not the case. The status of the parties was fixed by the judgment pronounced and rendered by the trial court on October 8, 1965, which was a dismissal “without prejudice”. The judgment nunc pro tunc simply corrected the record of the court to make it speak the truth concerning what had actually been adjudicated.

On oral argument of this case counsel for appellant stated to the court that he would not insist upon his fifth point concerning the alleged error in permitting ap-pellees’ attorney to give oral testimony. The point is therefore waived and will not be considered.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    J. B. HOWLE, Appellant, v. Chloe HOWLE, Appellee.
    No. 302.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 30, 1967.

      Ramey, Ramey & Neal, Jack G. Neal, Sulphur Springs, for appellant.
    Woodrow H. Edwards, Mount Vernon, Smith, Johnson & McDowell, Coy Johnson, Sulphur Springs, for appellee.
   DUNAGAN, Chief Justice.

Appellee, Chloe Howie, was granted a divorce from appellant, J. B. Howie, on August 28, 1964, and custody of the minor child was given to appellee.- In the divorce decree, a brick veneer dwelling and other improvements situated on a two-acre tract of land, being the same property here involved, were held to be community property. The judgment made no specific finding concerning the two-acre tract of land upon which the dwelling was situated. The brick veneer dwelling house and the other improvements situated on the two-acre tract of land were set aside for the use and benefit of appellee and the minor child, Debbie Sue Howie, until said minor child became 21 years of age or married, or until appellee remarried.

Appellee first filed her petition in the case at bar on August 1, 1966, alleging that the property in question (land and the dwelling thereon) was the community property of appellant and appellee, and further alleging that such property was not susceptible of partition and sought to have the court dispose of such property by sale and to divide the proceeds equally between appellant and appellee. Thereafter, appellee filed her first amended original petition alleging in the alternative in the event the subject property was not community property that she be reimbursed for her interest in the improvements placed thereon. Subsequently appellee, by her first supplemental petition, waived any rights acquired under the 1964 judgment to the use and occupancy of the subject property.

The trial court entered judgment on January 5, 1967, finding therein that the brick veneer dwelling and other improvements in question were undisposed of in the divorce decree of 1964;" that appellee waived any rights to use or occupy the dwelling and other improvements; and that the dwelling and improvements, in accordance with the stipulation entered into between the parties, were of the value of $9,700.00. The trial court awarded appellee judgment for $4,850.00 as reimbursement for her community interest in said property, and decreed a lien in favor of appellee in said amount on the two-acre tract of land. From this judgment appellant has appealed to this court.

The case was tried to the court without a jury. No separate findings of fact or conclusions of law were filed and none requested.

The statement of facts in this case consists only of the stipulation between the parties and the judgment of divorce of August 28, 1964. The portion of the divorce decree of August 28, 1964, concerning the property here involved, reads as follows :

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the brick veneer dwelling house and other improvements situated on a 2-acre tract of land in the E. Esparsa Survey be and the same is hereby set aside for the use and benefit of plaintiff and the minor child, Debbie Sue Howie, until said minor child shall reach the age of 21 years or married. When said minor child reaches 21 years of age, plaintiff shall vacate said premises and same shall be disposed of by sale or otherwise by order of this court, provided, however, that should plaintiff remarry before the said minor reaches the age of 21 years then and in that event plaintiff shall vacate said premises, and same shall be disposed of by sale or otherwise as herein provided. No sale of said land and premises shall be valid until proper order has been entered by this court approving said sale.”

It was stipulated between the parties on the trial of this cause that: the two-acre tract of land here involved is the separate property of the appellant, J. B. Howie; the value of the brick veneer dwelling house and other improvements situated on said tract of land is $9,700.00; Debbie Sue Howie, the daughter of the parties, is below the age of 21 years and is unmarried; and the appellee, Chloe Howie, has not remarried since the date of the judgment. It was further stipulated that: Chloe Howie waives any right of the use and benefit of the said improvements and property and desires to vacate the property; she further desires that the said property be sold and the proceeds divided equally between the parties hereto.

Appellant bases his appeal on three points of error:

(1) “The District Court erred in rendering judgment that the brick veneer dwelling house and other improvements situated on appellant’s real property was community property.”

(2) “The District Court erred in rendering its judgment in favor of appellee in that a prior judgment had heretofore been rendered which barred the relief granted by res adjudicata or estoppel by judgment.”

(3) “The District Court erred in rendering its judgment in favor of appellee in that the effect of such judgment set aside the previous judgment of the court rendered on August 28, 1964, which judgment could only be set aside by a bill of review filed for sufficient cause within the time allowed by law.”

It has been held “Where funds belonging to one spouse are used for placing permanent improvements upon the separate property of the other spouse, such improvements become ‘attached to the soil, and cannot, in the nature of things, be divisible in specie when one of the joint owners has no interest in the land upon which they have been erected. Hence results the rule that the community estate must be reimbursed for the cost of the buildings erected by * * * funds upon the separate property of one of the spouses, and, in effect, this vests the improvement in that spouse, and entitled the other to one-half of the cost.’ * * * ” Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935). Also in Dakan v. Dakan, supra, the rule is set forth that “ * * * where a spouse improves his or her separate property with the funds belonging to the community estate, the other spouse, or his or her heirs, would be entitled to reimbursement out of his or her separate property, to the extent of their share of the community funds so used, and that their claim for such reimbursement is in the nature of a charge upon the property so improved. * * * ” It also further held, that “ * * * the principles of reimbursement in accounting between estates apply, without distinction, to both separate and community estates. * * * ” See United States Fidelity And Guaranty Company v. Milk Producers Association of San Antonio, 383 S.W.2d 181 (Tex.Civ.App., 1964, San Antonio, writ ref., n. r. e.).

The Supreme Court of this state has held that “The charge or equity which one estate has against the opposite estate for reimbursement of all funds spent in enhancing the value of such opposite estate is only a claim for money and return of funds and not a right, title or interest in the land. * * * ” Burton v. Bell, 380 S.W.2d 561, 564. Improvements upon real estate ordinarily partake of the estate improved, and belong to the owner of the fee. Speer’s Marital Rights in Texas, Vol. 1, page 615, Sec. 414.

The trial court in the judgment in this case erroneously referred to the community property as consisting of a brick veneer dwelling house and other improvements situated on the two-acre tract. It is well settled, however, that an appellate court will sustain the judgment if it is correct on any theory of law applicable to the record, regardless of whether or not the trial court gives the correct legal reason for its judgment or whether or not any reason at all is given. Maher v. Gonzalez, 380 S.W.2d 764 (Tex.Civ.App., San Antonio, 1964, n. w. h.); Holland v. Gibbs, 388 S.W. 2d 295, 300 (Tex.Civ.App., Austin, 1965, writ ref., n. r. e.); Southwestern Associated Tel. Co. v. City of Dalhart, 254 S.W.2d 819, 823 (Tex.Civ.App., Amarillo, 1952, writ ref., n. r. e.).

By the stipulation entered into between the parties, it is apparent that appellee abandoned her original plea that the property was community property and relied solely on her alternative plea as to the character or status of the property. It is also apparent from a reading of the judgment before us for review that the court granted the relief sought by appellee in the alternative plea.

As reflected by the record in this case, there can be no doubt that this case was tried and disposed of solely on the theory that the property was the separate property of the appellant. The judgment supports this theory. Appellant’s first point is overruled.

Next, we dispose of appellant’s contentions under his Points 2 and 3.

In the instant case, appellee is seeking to be reimbursed for improvements erected on the separate property of appellant and paid for out of their community estate. To determine if this question was distinctly put in issue in the suit for divorce filed and adjudicated in 1964, consideration must be given to the pleadings in testing what was involved and determined in said suit. Jones v. Jones, 221 S.W.2d 291 (Tex.Civ.App., Austin, 1949, n, w. h.). In James v. James, 81 Tex. 373, 380, 16 S.W. 1087, 1089, it is said that: “ * * * It is a general rule, having its foundation in sound reason, that the former judgment or litigation relied on as having adjudicated the matter, and as a bar to further proceedings, should have involved and determined the same vital issue, or that such issue, or question, should have been fairly within the scope of the pleadings. * * * ” See Jones v. Jones, supra, and First Nat. Bank of Bryan v. White, 91 S.W.2d 1120 (Tex.Civ.App., Waco, 1936, writ dism.).

We have carefully examined the pleadings in the former case as shown in this record. The issues in controversy in the prior action are not the issues in controversy in this case.

Moreover, it seems to be a well established rule of law in this state that a decree of divorce which does not purport to make a partition of the property between the husband and wife, or to settle their rights to property claimed by either, does not preclude a suit by either party for such partition, or for the establishment of such rights as either spouse may have. Gray v. Thomas, 83 Tex. 246, 18 S.W. 721 (1892); Whetstone v. Coffey, 48 Tex. 269; Gilleland v. Meadows, 329 S.W.2d 485 (Tex.Civ.App., Waco, 1959, n. w. h.).

The appellant argues that the right of appellee to use and occupy the brick veneer dwelling, having been fixed by the 1964 judgment, can be terminated only on the occurrence of one of the conditions specified therein, neither of which had occurred at the time of the judgment in the instant case, or by a bill of review. There can be no doubt that the right of appellee and of the minor child to use and occupy the property will terminate upon the occurrence of any one of the conditions specified in the prior judgment. Gilleland v. Meadows, supra.

As we view the record, the main question in this appeal is whether a wife, after a divorce decree awarding her the use and benefit of the homestead, can in a subsequent suit waive her homestead rights and be awarded her interest or equitable division therein. We hold she can. Coleman v. Banks, 349 S.W.2d 737 (Tex.Civ.App., Dallas, 1961, writ ref., n. r. e.) and 60 Tex.Jur.2d, page 193, Sec. 10.

In the case of Coleman v. Banks, supra, the court said: “ * * * The terms and provisions of the property settlement agreement between the parties, and by virtue of which appellant resided in the property following the divorce, did not agree to a legal life estate but merely granted to her the privilege and right to use and occupy the premises under certain designated conditions. * * * Nor is there any merit in appellant’s contention that her use of the property in question cannot be abandoned. * * * Appellant having nothing more than the right or privilege of use and occupancy of the premises in question and not a legal life estate, her right therein is subject to abandonment. * * * ” Points 2 and 3 are overruled.

After a careful review of the record in this case, we do not think that the trial court committed error in awarding to ap-pellee a recovery from the appellant in the sum of $4,850.00 as reimbursement for her community interest in said property and placing a lien on the property to secure the money recovery of the appellee. Milligan v. Milligan, 282 S.W.2d 127 (Tex.Civ.App., San Antonio, 1955, n. w. h.); Smith v. Smith, 187 S.W.2d 116 (Tex.Civ.App., Fort Worth, 1945, n. w. h.); Hursey v. Hursey, 165 S.W.2d 761 (Tex.Civ.App., Dallas, 1942, writ dism.); Cone v. Cone, 153 Tex. 149, 266 S.W.2d 860 (1954); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App., Fort Worth, 1963, writ dism.).

Judgment affirmed.


author: PEDEN, Justice.

text:
    Raymond Earl PEARSON, Appellant, v. Edgar HENDERSON, Appellee.
    No. 15138.
    Court of Civil Appeals of Texas. Houston (1st Dist.)
    Dec. 7, 1967.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Dan L. Matthews, Houston, for appellant.
    Tynes, Turk, Michalek & Filer, Paul D. Filer, Jr., Houston, for appellee.
   PEDEN, Justice.

This is a suit for personal injuries arising out of an automobile collision which occurred on May 8, 1963 between an automobile driven by appellant, Raymond Earl Pearson, and owned by Traders Oil Company of Houston, and an automobile in which Mrs. Lucy Bee Henderson was riding as a passenger. Prior to the trial of this cause, Plaintiffs’ First Amended Original Petition was filed naming as plaintiffs Lucy Bee Henderson, “joined pro forma by her husband, Edgar Henderson,” Amanda Miles and Arvelia Butler. This case was called for trial on November 14, 1966 and the court sitting without a jury found in favor of all plaintiffs against appellant, Raymond Earl Pearson. Judgment was rendered in favor of Traders Oil Company of Houston against all plaintiffs.

This appeal is taken from only so much of the judgment as awards damages in favor of Edgar Henderson and wife, Lucy Bee Henderson, against the appellant, Raymond Earl Pearson.

At the conclusion of the evidence, plaintiffs, Edgar Henderson and Lucy Bee Henderson, through their attorney requested leave to file a trial amendment in order that Plaintiffs’ First Amended Original Petition should be amended to begin; “Now comes Edgar Henderson maintaining this cause of action for personal injuries sustained by his wife, Lucy Bee Henderson.” Said trial amendment was granted by the trial court.

Appellant objected to the trial amendment of the plaintiff on the ground that limitation had barred any cause of action not asserted in the original suit. The trial court granted appellant leave to file a trial amendment raising the statute of limitations.

Thereafter the trial court entered judgment in this cause in favor of Edgar Henderson as manager of the community estate of himself and his wife, Lucy Bee Henderson, in the sum of $2,250.00 against defendant, Raymond Earl Pearson.

The first amended original petition, filed in February, 1965, began: “Now comes Lucy Bee Henderson, joined pro forma by her husband, Edgar Henderson,” etc., and in paragraph I it alleged: “Your Plaintiffs are resident citizens of Cass County, Texas. At all times material hereto, Plaintiffs, Lucy Bee Henderson and Edgar Hender son, were and are husband and wife, with your Plaintiff Edgar Henderson maintaining this cause of action for personal injuries sustained by his wife, Lucy Bee Henderson,” etc. Paragraph IV states: “Your Plaintiffs, Lucy Bee Henderson and Edgar Henderson would show that the collision made the basis of this suit was the proximate cause of injuries and damages to your Plaintiff, Lucy Bee Henderson, in the just and reasonable sum of $27,500.00, for which sum they here now sue,” etc. The prayer asks: “Plaintiffs have judgment against Defendants in the just and reasonable sum of $27,500.00, as to and for the injuries sustained by Plaintiff, Lucy Bee Henderson.”

Neither findings of fact nor conclusions of law were requested and none were filed. Appellant asserts that the court erred in permitting Plaintiff, Edgar Henderson, to amend his pleadings, thus changing the capacity in which he sued, more than two years after the accident in question, and that appellant’s plea of limitations should have been sustained.

Although plaintiffs’ first amended original petition (which was filed less than two years after the accident) states that Edgar Henderson is joined pro forma, we hold that the subsequent recitals (set out above) in such petition as to the role of Edgar Henderson show that he was a real party plaintiff and not just a pro forma plaintiff. A markedly similar problem was presented by the pleadings in Texas and Pacific Railway Co. v. Leatherman, 351 S.W.2d 633, Tex.Civ.App. (ref., n. r. e.), and the court after considering the pleadings as a whole decided that appellee (husband) was a real party plaintiff.

Appellant relies on Roberts v. Magnolia Petroleum Co., 142 S.W.2d 315, Tex.Civ.App. (writ ref., 135 Tex. 289, 143 S.W.2d 79), but in that case the husband had previously executed a release and his limited joinder as a party plaintiff in his wife’s suit was accurately and consistently labeled as “pro forma”.

In the case of Pacific Greyhound Lines, Inc. v. Tuck, 217 S.W.2d 699, Tex.Civ.App. (ref., n. r. e.), the appellee (husband) was joined only as a pro forma plaintiff until after the statute of limitations had run. He then filed an amended pleading to bring suit as a real party plaintiff for his wife’s personal injuries on behalf of the community estate. The court held that “where the husband is joined pro forma in the petition by his wife to recover community property he is the real party in interest, and the filing of the suit interrupts the running of limitations against his cause of action,” citing Gulf, C. & S. F. Ry. Co. v. Jones, 3 Wilson Civ.Cas., Ct.App., § 21, p. 39.

It is pointed out at 35 A.L.R.2d 1238 that although the husband is the proper party to bring an action for personal injuries to a married woman in Texas, “not every infraction of this role necessitates a reversal of a judgment which, in itself, properly represents the rights of and protects all the parties litigant, including the husband and wife, and effectually settles the litigation.”

For the reasons stated, neither of appellant’s points presents error.

The judgment of the Trial Court is affirmed.


author: CHADICK, Chief Justice.

text:
    Mary Sue THOMPSON et al., Appellants, v. Ann KIRKLAND, Appellee.
    No. 7862.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 5, 1967.

      F. L. Garrison, Gilmer, for appellants.
    W. D. Brown, Quitman, for appellee.
   CHADICK, Chief Justice.

This is an appeal in a will contest action. A summary judgment entered in the District Court is reformed to order dismissal of the proceeding and as reformed the judgment is affirmed.

On December 8, 1964, Mary Sue Thompson and Joe Kirkland filed a pleading in the County Court of Wood County to set aside a certain probate order of that court on the ground that an instrument previously admitted to probate, by order of such County Court dated September 14, 1964, as J. M. Kirkland’s will was not Kirkland’s will but was the product of undue influence upon J. M. Kirkland, and that he lacked testamentary capacity to make a will at the time the instrument was made and published.

The will contest case was regularly set for hearing on the 8th day of September, 1965, in the county court. The judgment entered in the case on the same date contains the following recital, to-wit:

“ * * * came the contestants by and through their attorney * * * and came the proponent in person and by her attorneys, and announced ready for trial; whereupon, the contestants by and through their attorney announced that they did not desire to offer any evidence, and the Court, after considering the pleadings and it appearing therefrom that this suit by the contestants seeks to set aside the probate of the will of J. M-Kirkland, deceased, which was admitted to probate by this Court by judgment and' order entered on the 11th day of September, 1964, and suit herein to set aside said judgment heretofore rendered is, as shown by the petition filed herein by contestants, upon the grounds of (1) lack of testimentary capacity and (2) undue influence; and it appearing to the Court that the relief sought by said contestants should be denied. * * * ”

The quoted recital is followed by a decree denying all relief sought.

An appeal was perfected to the District Court of Wood County from the County Court judgment in the will contest proceeding. In District Court Mrs. Ann Kirkland, the appellee here, moved for summary judgment; Mary Sue Thompson and Joe Kirkland, the appellants here, answered the motion for summary judgment by filing their attorney’s sworn affidavit, which averred “to the best of his knowledge, information and belief,” that counsel for the parties:

“ * * * agreed * * * that it would not be necessary for contestants to offer evidence in support of their contest in the County Court and that such action would in no way prejudice the rights of the contestants to their appeal, and state that such action was in truth and in fact taken at that time and in such manner as an accommodation to and for the benefit of contestee.”

The trial court sustained the motion for summary judgment and decreed “that the plaintiffs or contestants do have and recover nothing of and from the defendant or proponent herein; that the relief prayed for in Defendant’s or Proponent’s Motion for Summary Judgment is herein granted, and that the said defendant or proponent go hence without day with her cost, * * *

The foregoing recitation indicates and the record clearly shows that the contestants Sue Thompson and Joe Kirkland offered no evidence in the County Court to support their action to set aside the County Court order admitting J. M. Kirkland’s will to probate. Failure or refusal to tender evidence in support of such action in the County Court constitutes an abandonment of the will contest suit as a matter of law. Sorrell v. Stone, 60 Tex.Civ.App. 51, 127 S.W. 300, writ refused; Cannon v. Willis, Tex.Civ.App., 130 S.W.2d 920, writ refused; Scheetz v. Bader, Tex.Civ.App., 251 S.W.2d 427, writ refused; Turner v. Jackson, Tex.Civ.App., 256 S.W.2d 127, writ refused; Crane v. Pierce, Tex.Civ.App., 257 S.W.2d 510, writ refused, and Bell v. Bell, Tex.Civ.App., 245 S.W.2d 767, no writ history, on second appeal, 248 S.W.2d 978, wrrit refused, N.R.E. See also Cullinan v. Cullinan, 275 S.W.2d 472 (Sup.Ct.1955); Crane v. Pierce, 257 S.W.2d 510 (Ct.Civ.App.Dallas 1953), writ refused.

Appellants assert, however, that abandonment is not shown in this instance either as a matter of law or fact because counsel for the parties, “as an accommodation to and for the benefit of the con-testees,” agreed before judgment was entered in the county court that the contestants’ omission of a tender of evidence in support of their contest pleadings in county court “would in no way prejudice the rights of the contestants to their appeal.”

Without examining other possible defects in the affidavit on file, a part of which has been heretofore quoted, and considering the content as stated therein, the affidavit does not show an enforceable agreement. To be binding upon the trial court, agreements made between opposing counsel must be preserved and evidenced in conformity with Tex.R.Civ.P. 11. The agreement set out in the affidavit filed in reply to the motion for summary judgment was not shown to be in writing, signed and filed with the papers as a part of the record, nor was it shown to have been made in open court and entered of record.

In this instance the proper judgment in the District Court would have been an order of dismissal. Cullinan v. Cullinan, supra. The j'udgment entered was on the merits of the case. The judgment of the trial court will be reformed to order dismissal and as reformed the judgment is affirmed.

       “Agreements to Be in Writing.' No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”


author: MOORE, Justice.

text:
    H.J. COOPER, Appellant, v. E. J. HOUSE et al., Appellees.
    No. 310.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 30, 1967.
    Rehearing Denied Dec. 28, 1967.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, John Cely, Ralph M. Zeleskey, Lufkin, of counsel, for appellant.
    Gordon Wellborn & Rex Houston, Ken McConnico, Henderson, for appellees.
   MOORE, Justice.

This is an appeal from an order overruling a plea of privilege. Plaintiffs, E. J.House, Don H. Irby and Peggy Jo Barker, acting individually and as next friends of their minor children, brought this suit against H. J. Cooper in Rusk County, Texas, for damages for personal injuries sustained by their minor children as the result of an automobile accident occurring within said county. Plaintiffs alleged in their petition that the collision and resulting injuries were proximately caused by the negligent acts and omissions of the defendant in (1) failing a keep a proper lookout; (2) failing to continue to drive his automobile upon the paved surface of the highway; (3) failing to yield the right-of-way; (4) failing to make the proper application of his brakes; (5) failing to turn his automobile; and (6) operating his automobile at an excessive rate of speed.

Defendant Cooper filed a plea of privilege asserting venue in Jefferson County, Texas, the place of his residence. Plaintiffs answered by filing a controverting plea, seeking to hold venue in Rusk County under the provisions of Subd. 9a, Art. 1995, Vernon’s Ann.Tex.Civ.Stat.

The judgment is assailed by 39 points of error asserting that there is no evidence to support the trial court’s implied findings and that such findings are contrary to the overwhelming weight and preponderance of the evidence.

Under the provisions of Subd. 9a of Art. 1995, supra, in order for the plaintiffs to sustain venue in Rusk County, plaintiffs were required to prove that defendant was guilty of an act or omission of negligence in said county, which proximately caused plaintiffs’ injuries. McDonald, Texas Civil Practice, Vol. 1, Sec. 4.17.5; Campos v. Smith (Tex.Civ.App.), 386 S.W. 2d 823.

In passing on appellant’s points that there is no evidence, or, in the alternative, insufficient evidence, to support certain implied findings of the trial court, we must consider only the evidence most favorable to the judgment and disregard entirely that which is to the contrary. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Stogner v. Geis (Tex.Civ.App.), 397 S.W.2d 494.

When viewed in a light most favorable to the judgment, the evidence shows that the accident occurred on Saturday, October 22, 1966, at approximately 3:20 P.M. on Highway 84, approximately five or six miles west of the City of Mt. Enterprise, within Rusk County, Texas. The highway at the point of the collision runs generally in an east and west direction. The evidence further shows that Rex Lynn House, age 18, son of the plaintiff, E. J. House, earlier on the date of the accident had driven several of the plaintiffs’ minor children to a birthday party, and at the time of the accident was in the process of returning the children to their homes. In returning the children to their respective homes, Rex Lynn House, who was not made a party to this suit, was driving a Rambler automobile owned by his father. Shortly before the accident, he had driven east on Highway 84 until he came to the home of plaintiff, Don H. Irby, which was situated on the south side, or right-hand side of the highway. He then headed his automobile into the driveway and drove approximately ten or eleven yards where he stopped and let some of the children out. Directly across the highway from the Irby driveway was the driveway of another home where House was intending to deliver other children. Rather than turn around, House decided to back his automobile in a northerly direction across the highway and back into the driveway on the other side of the highway. He testified that when he had backed to a point near the pavement, he stopped and looked in both directions; not seeing another vehicle, he backed upon the highway; that at about the time his back tires were in the center of the highway, he heard one of the other children say “Here comes another car.” Upon seeing the defendant’s automobile approaching from his right, he testified that he immediately accelerated his speed backward to ten or eleven miles per hour in order to get out of the path of the oncoming vehicle and continued backing in a northerly direction until he was approximately eighteen to twenty feet off the traveled portion of the highway, at which time defendant’s automobile collided with the right rear side of his automobile.

Defendant, H. J. Cooper, testified that he first saw plaintiff’s Rambler automobile when it was approximately fifteen feet south of the highway and backing toward the highway. He testified that he recognized at that time that the automobile might back into the highway. He says that at that time he was approximately 100 feet west of the plaintiff’s automobile and was traveling at a speed of approximately fifty to fifty-five miles an hour; that at this point, he sounded his horn and applied his brakes, but did not put them on too tight, thinking the Rambler automobile would stop. Upon realizing that the automobile was going to proceed across the highway, he testified that he veered to his left and applied his brakes but was unable to stop prior to the collision. In tracing the path of his automobile after he first sighted the plaintiff’s automobile, he testified that he traveled roughly twenty-five to forty feet on the paved surface of the highway and twenty to twenty-five feet on the gravel shoulder on the left-hand side of the highway and another eighteen to twenty feet on the unpaved shoulder to the point of the impact.

While we have set out only a part of the evidence, we have reviewed all of the evidence and have concluded that there was sufficient evidence to support the judgment of the trial court. Although there was evidence from which the trial court might have been justified in finding to the contrary, the evidence was conflicting. It is well settled that where the evidence is conflicting and there exists in the record evidence of sufficient probative force to support the judgment of the trial court, then the judgment should not be disturbed on appeal. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97; Jess Edwards, Inc. v. Foley (Tex.Civ.App.), 321 S.W.2d 328; Triangle Truck Line, Inc. v. Kelley (Tex.Civ.App.), 344 S.W.2d 520. Appellant’s no evidence points are overruled.

After considering and weighing all the evidence in the record, both that which is favorable to appellant as well as that which is unfavorable, we have concluded that the judgment is not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The judgment of the trial court is affirmed.