text:
    Johnny H. HARRISON, Appellant, v. STATE HIGHWAY DEPARTMENT of Texas, Appellee.
    No. 3895.
    Court of Civil Appeals of Texas. Eastland.
    June 5, 1964.
    Rehearing Denied June 26, 1964.

      Fanning, Billings, Harper, Pierce & Gil-ley, Dallas, for appellant.
    Waggoner Carr, Atty. Gen., Austin, for appellee.
   COLLINGS, Justice.

This suit was brought by Johnny H. Harrison claiming benefits under Article 6674s, Vernon’s Ann.Tex.Civ.St., the Workmen’s Compensation Act establishing coverage for employees of the State Highway Department of Texas. Harrison alleged that he was injured while driving a tractor-mower, mowing the right of way on Highway 19 in Canton, Texas, as an employee of the State Highway Department. The motion of the State Highway Department for summary judgment was granted by the court which found, as a matter of law, that plaintiff was not an employee of the department at the time of his injury. Harrison has appealed.

It is undisputed that at the time of appellant’s accidental injury he was mowing grass on the State Highway right of way under the direct supervision and control of R. S. Peel. The controversy concerns the question of whether or not appellant was an employee of the State Highway Department and entitled to Workmen’s Compensation benefits.

Appellant urges points of error contending that the court erred in entering the summary judgment for appellee, and in failing to hold that there was a question of fact as to whether or not he was an employee of the highway department, in holding as a matter of law that he was not such an employee, and in failing to hold that R. S. Peel was an employee of the highway department. Appellant also contends that the court erred in failing to hold (a) that, by not requiring him to have a physical examination, the department waived its right to have him take a physical examination, (b) that, by placing his name on the payroll and failing to obtain a physical examination for him, the highway department was estopped from denying that he was an employee because he had not taken a physical examination, (c) that Article 6674s, Sec. 14a which states that absence of a physical examination shall not be a bar to recovery precludes a judgment against appellant on the ground of failure to have a physical examination, (d) erred in failing to interpret any ambiguity between Article 6674s, Section 14a and Article 6674s, Section (2), in favor of appellant, and (e) in failing to hold that under the facts and circumstances of the case appellee was wrongfully attempting to contract its mowing work in such a manner as to divest itself of liability to its employees.

Appellant’s points all bear upon the question of whether a fact issue exists concerning whether he was an employee of the State Highway Department at the time of his accidental injury. Article 6674s, which provides for Workmen’s Compensation insurance for highway department employees under which appellant claims, defines in Section (2) the term “employee” as follows :

“ ‘Employee’ shall mean every person in the service of the State Highway Department under any appointment or expressed contract of hire, oral or written, whose name appears upon the pay roll of the State Highway Department, * * *. No person in the service of the State Highway Department who is paid on a piecework basis, or on any basis other than by the hour, day, week, month, or year, shall be considered an employee and entitled to compensation under the terms and provisions of this Act. Provided further, that no person shall be classified as an ‘employee’ nor be eligible to any compensation benefits under the terms and provisions of this Act until he shall have submitted himself first to a physical examination by a regularly licensed physician or surgeon designated by the State Highway Department to make such examination and thereafter been certified by the State Highway Department to be placed on the pay roll of the State Highway Department.”

Section 12 of Article 6674s provides:

“If the Department sublets the whole or any part of the work to be performed or done to any subcontractor, then in the event any employee of such subcontractor, whose name does not appear on the pay roll of the Department, sustains an injury in the course of his employment, he shall be deemed and taken for all purposes of this law not to be an employee as defined in this law.”

The record, including deposition of Jack Sides, a maintenance foreman for the State Highway Department, and of R. S. Peel, shows that the department through Jack Sides made an oral agreement with Mr. Peel to mow and have mowed certain grass areas on the State Highway right of way which areas were designated by the department daily or weekly, as necessary, and that Peel was paid $2,75 an hour for each mower and operator. To do this work Mr. Peel, with the knowledge and consent of the highway department, employed several men to operate his tractors in the mowing of grass. One of these workers was appellant Johnny H. Harrison. Appellant contends that the State Highway Department had and exercised such right of control over him as to make him an employee of the department. The State Highway Department contends that appellant Harrison was not an employee of the department; that the question of who is an employee of the department is determined by the provisions of Article 6674s, supra, requiring such employees (1) to have their names on the payroll, and (2) to submit to a physical examination and be certified by an examining physician to be physically fit. Appellee contends that the court correctly found that Harrison was not an employee of the department because the undisputed facts show that he had met neither of these tests.

We cannot agree with appellee’s contention that Harrison was precluded from being an employee because of his failure to have a physical examination and to be certified as physically fit. Section 14a of Article 6674s provides “that absence of a physical examination shall not be a bar to recovery.” However, we do agree with appellee’s contention that the question of who is an employee of the State Highway Department as contemplated by Article 6674s, is determined by the provisions of that statute. Applying this test we have concluded that the record conclusively shows that appellant was not an employee of the department. The record shows that the department sublet a part of the mowing work to be performed to a subcontractor, to-wit, R. S. Peel. It is undisputed that under the oral agreement with the Highway Department Peel was to mow grass on highways in Van Zandt County at times and places designated by the maintenance foreman; that Peel was to furnish tractor-mowers and operators to do the job and was to be paid $2.75 per hour for each mower and operator. We overrule appellant’s contention that Peel himself was an employee and not a subcontractor.

The record shows that Peel as a subcontractor employed appellant to operate one of his tractor-mowers and paid him by the hour for his work. It shows that appellant’s name does not appear on the payroll of the department. The record does show that appellant’s name appeared on a document designated as “maintenance salary and labor pay roll”, but his name does not appear as a person who was paid or was to be paid by the State. Appellant was paid by Peel. The record shows that the “maintenance salary and labor pay roll” was simply a field report and that no one was issued a State warrant on the basis of such field report alone; that the payroll of the State Highway Department is prepared in Austin and submitted to the State Comptroller and that the name of every employee of the State Highway Department appears on such payroll; that appellant’s name never appeared on such payroll and he was never issued and never received a warrant from the State. As already stated appellant was paid by Peel. The Highway Department paid Peel an agreed amount for each of his tractor-mowers including an operator but had no 'record of what appellant was paid by Peel. The Highway Department did not have appellant’s Social Security Number and kept no withholding records on him. The only record they had of appellant was his name showing that he was an operator of one of Peel’s tractor-mowers and the hours of operation. This was material information in a determination of what Peel was entitled to be paid under the contract. The provisions of Section 12, supra, specifically indicate that such a person, that is, an employee of a subcontractor, whose name does not appear on the payroll of the department “shall be deemed and taken for all purposes of this law not to be an employee as defined in this law.” The court did not err in holding that, as a matter of law, appellant Harrison was not an employee of the State Highway Department and in entering summary judgment against appellant. Appellant’s points are all overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Walter C. POWELL, Appellant, v. ASSOCIATES INVESTMENT COMPANY, Appellee.
    No. 3878.
    Court of Civil Appeals, Eastland.
    May 15, 1964.

      Ben Henderson, Dallas, for appellant.
    Robert R. Cole, Dallas, for appellee.
   WALTER, Justice.

Associates Investment Company filed suit against Walter C. Powell for $18,131.66, alleged to be the balance due on twenty notes originally executed by Powell to Associates Discount Corporation and secured by chattel mortgages on automobiles. Powell filed a general denial and alleged that during the year 1959, he borrowed some money from Associates secured by chattel mortgages on automobiles which he purchased; that on or about September 1960, Associates seized fifteen of his automobiles without notice and refused to account to him for them. Powell filed a cross action against Associates and alleged that it seized eleven of his automobiles and disposed of them “in fraud of cross plaintiff’s rights” to his damage in the sum of $13,950.00. He also sought damages for slander of himself and his wife.

Plaintiff’s motion for summary judgment was granted and the defendant has appealed.

In support of its motion for summary judgment Associates’ branch manager made an affidavit substantially as follows: that as branch manager he had control of the company’s records and was acquainted with their business activities; that he was well acquainted with the defendant Walter C. Powell who was an automobile dealer in Durant, Oklahoma, and that Powell formerly borrowed money from Associates; that Powell was delinquent on twenty-four notes secured by chattel mortgages on automobiles in the amount of $27,965.00; that on September 26, 1960, he went to Durant and talked with Powell and found fifteen mortgaged cars in Powell’s possession; that he repossessed the fifteen automobiles; that four of the fifteen were sold by Powell with his permission and the checks in payment therefor were endorsed to his company; that he promised Powell that he would be notified of the time and place of sale of the remaining eleven automobiles and Powell would “certainly be given an opportunity to buy the cars at their market value”; that under his “direct and continuous supervision notice of sale was mailed to Powell.” The notice of sale was attached to Baker’s affidavit and reads in part as follows: “You are hereby notified that on the 12 day of October, 1960, at 3 :00 o'clock P. m., the undersigned will sell at public auction to the highest bidder for cash, each of the motor vehicles described on the list attached here1 to * * * that said sale will be held at 115 North Katy Avenue, The city of Durant, State of Oklahoma.” “On October 12, 1960, Mr. Malear held the sale which was attended by Walter C. Powell. Associates Investment Company bought the automobiles at the sale and brought them to Deni-son, Texas, where they were repaired at an expense of Eight Hundred Fifty Two and 82/100 dollars ($852.82) and sold * *

Also, in support of its motion for summary judgment, Associates attached the affidavit of D. H. Malear, which is substantially, as follows: He was a representative of Associates; that he worked under the supervision of Mr. R. A. Baker, branch manager; that on September 29, 1960, Baker instructed him to foreclose on the automobiles; that on said date he posted notices of sale “as required by law in Oklahoma” and mailed notices to Powell; that by means of these notices “we notified Mr. Powell and the general public that the eleven (11) automobiles listed in the notices and stored in the warehouse would be sold on October 12, 1960, at 3:00 p. m.”; that on said date he offered the automobiles for sale at auction; that Mr. Powell was present but did not make an offer to purchase the cars but “instead walked away from the place of the sale”; that, there being no other bidders present, and “no offers being made at the time of the sale, the automobiles were struck down and sold to Associates Investment Company for One Hundred and no/100 dollars ($100.00) each.”

Powell had pleaded that the eleven automobiles that were fraudulently and forcefully seized from him had a combined value of $13,950.00 in Durant, Oklahoma. Powell and his wife filed an affidavit in opposition to plaintiff’s motion for summary judgment. Mr. Powell’s affidavit is substantially as follows: that he had borrowed some money from Associates and had executed to it notes and chattel mortgages on some of his automobiles; that in September, 1960, a Mr. Baker came to his place of business and repossessed eleven cars and sold four others without giving him an opportunity to secure a better price for them; that Baker informed him that he was going to foreclose on the eleven cars and that he would be notified in writing of the date, time and place of sale; that he received notices and appeared at the place of sale accompanied by Mr. Dan Russell of the Russell Used Cars and Mr. Stanley Charl-ton, of the 1st Street Motor Sales, Mr. Paul Evans and Mr. Paul Hartón, of 1st Street Motor Sales; that all of said automobile men had informed him that they were ready, willing, and able to bid on the cars; that one Malear, who represented himself to be an agent for Associates, was at said warehouse where the automobiles were stored; that Malear then and there told him that because there were not enough bidders present he had decided not to hold the sale as announced and the sale was postponed to a later date; that Malear assured him that he would be properly notified in writing of the subsequent sale. After receiving this information from Malear, he and the other automobile dealers walked out of the warehouse; that he was never advised of any subsequent sale.

Mrs. Powell’s affidavit was, in part, as follows: that after the announced sale of the eleven automobiles was cancelled and postponed neither she nor her husband were ever notified of any subsequent sale; that she learned from an automobile dealer in Durant, Mr. Dan Russell, of the Russell Used Cars, that the eleven automobiles had been taken away from Durant to an unknown place and there sold to unknown parties.

Attached to plaintiff’s original petition are copies of chattel mortgages and chattel mortgage notes executed by Powell to Associates. One of the chattel mortgages designated as plaintiff’s exhibit A contains a provision that if default be made in payment of said note, or if the mortgagee shall feel insecure, or if there be a breach of any other covenant, then the note shall at the option of the mortgagee, without notice, become due and payable and it further provides “and the mortgagee shall thereupon have the right to enter any of the premises of said mortgagor, with or without force or process of law, and take possession of, remove and sell chattels at public auction or private sale with or without notice, at which sale said mortgagee may become the purchaser * * *

It is appellee’s contention that at such public sale there were no bidders present and that appellee bought all of the automobiles for $100.00 each. Appellee’s contention is that it bid all of the eleven cars in at the public sale at $100.00 each and then at a later date sold the automobiles at private sale and has credited the appellant’s notes with the amount realized from the private sale. It contends that its sale of the eleven automobiles at private sale was in accordance with its rights under the mortgage.

It is true that the courts of Texas since Singer Sewing Machine Co. v. Rios, 96 Tex. 174, 71 S.W. 275, 60 L.R.A. 143, have recognized such foreclosure provisions in chattel mortgages to be valid and binding upon the mortgagor. The appellees exercised their power under the mortgage and repossessed the automobiles and had a right under said mortgage to “sell said chattels at public auction or private sale with or without notice.” As shown by the affidavit of Baker and Malear, it elected to sell the automobiles at public auction with notice. Before it made such an election, it had the right under the mortgage to sell them at private sale without notice. Appellee’s affidavits conclusively demonstrate that, a sale was made at public auction and it became the purchaser of the automobiles.

In Associates Investment Company v. Lenz, Tex.Civ.App., 288 S.W.2d 857, (No Writ History), the court said:

“The provision that the repossessed car could be sold without notice was waived by appellant in that notice was given that sale would not be made before January 30, 1953. The sale having been made before the expiration of such time an irregularity in the foreclosure proceedings is shown which coupled with the misrepresentation made to George as to the car being sold for its market value and the grossly inadequate price for which the car was sold constitute a sufficient basis for attacking the bona fides of the sale.”

“On the hearing of a motion for a summary judgment the court must determine whether there is any issue of fact to be tried. The court cannot weigh the evidence, determine the credibility of the witnesses and try the case on affidavits. All doubts as to the existence of a genuine issue as to a material fact must be decided against the party moving for a summary judgment. The court must accept as true all evidence of the party opposing such a motion which tends to support his contention and must give him the benefit of every reasonable inference which may be drawn therefrom. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Box v. Bates, [162 Tex. 184] (Sup.Ct.), 346 S.W.2d 317.” Trinity Universal Insurance Company v. Horton, Tex.Civ.App., 363 S.W.2d 376, 378 (No Writ History).

The appellee did not conclusively establish a valid foreclosure, therefore a material fact issue was raised.

The judgment is reversed and the cause is remanded.


author: CHAPMAN, Justice.

text:
    Franklin C. MORING, Appellant, v. Ira DODD, Jr., Appellee.
    No. 7368.
    Court of Civil Appeals of Texas. Amarillo.
    June 8, 1964.
    Rehearing Denied June 29, 1964.

      Clayton, Martin & Harris, Amarillo, for appellant.
    Ochsner & Nobles, Amarillo, for appel-lee.
   CHAPMAN, Justice.

The subject matter of this suit constitutes an appeal by Franklin C. Moring, natural father of the two minor children involved from a judgment of the Court of Domestic Relations of Potter County awarding ap-pellee, Ira Dodd, Jr., the husband of the mother of said children, a judgment of adoption.

The first point questions the jurisdiction of the court for failure of the pleadings to specify statutory exceptions eliminating the necessity for the consent of appellant to the adoption. The point is without merit.

No exceptions were leveled at the pleadings. Appellant was personally served with citation, appeared in court with his attorney of record, and announced ready for trial. Additionally, both grounds of exceptions to the requirement of consent of the natural father under Article 46a, Sec. 6 of Vernon’s Tex.Civ.St. were alleged with sufficient particularity absent special exceptions. Rule 90, Vernon’s Ann.Tex.Rules; Weisenberger v. Lone Star Gas Co., Tex.Civ.App.1953, 257 S.W.2d 331. It was sufficient to show that he had failed to contribute to the support of the children commensurate with his ability to do so for two years, without showing he had abandoned the children. Patella v. Jones, Tex.Civ.App.1957, 303 S.W.2d 490.

Point two contends that the judgment was unauthorized because appellee did not allege the natural father “failed to support his children for a period of two years commensurate with his financial ability.” He alleged such parent was employed as a high school teacher in Portageville, Missouri, that in the divorce decree he was required to contribute $40 per month to each child and that for more than two years he had contributed nothing. Such pleadings would certainly be sufficient to allege he did not contribute commensurate with his financial ability in the absence of a special exception. No such exception is shown in the record.

Points three through seven have to do with the abandonment exception in Article 46a, Sec. 6 V.A.C.S. In view of our holding on the other exception it is unnecessary to write on these points since pleading and proof of either of the exceptions is sufficient reason for not requiring the consent of the natural father. Patella v. Jones, supra.

Point eight contends the judgment is void because it was rendered without the written consent of the judge of the juvenile court of the county of the children’s residence sought to be adopted. The Court of Domestic Relations in Potter County is also given all jurisdiction placed in the district and county courts under the juvenile-child welfare laws of the State of Texas. Article 2338-3 V.T.C.S. Judge Periman of the Court of Domestic Relations of Potter County signed a consent to the adoption and also tried the adoption case. The children sought to be adopted reside in Potter County, so the point is clearly without merit.

Point nine contends the mother of the children suggested that their father cease contributing to their support; therefore, the court improperly found he did not contribute commensurate with his ability during the two-year period. The court in his Findings of Fact found no contribution since December 1960, more than two years before the filing of the adoption petition. The evidence is sufficient to support such finding. The court found that the plaintiff did not enter into any agreement with defendant whereby child support payments would no longer be paid for the support of such minor children and that appellant never made any attempt to modify or change the original support order made by the court granting divorce and custody of the children. Additionally, there is no record of appellant having objected to such findings or having made request for further findings. In such absence his point based on such findings by the trial court is without merit. Rule 298 V.A.T.R.; McKinney v. White, Tex.Civ.App.1954, 278 S.W.2d 553 (writ granted on other grounds). Furthermore, the testimony in the case was such that the court could have interpreted it in accordance with such findings.

The last point urges error of the court in failing to accord appellant his legal right as a natural parent.

“Since the early case of State ex rel. Wood v. Deaton, 93 Tex. 243, 54 S.W. 901, it has been the consistent holding of the Courts of this State that the natural parents have a paramount right to the custody of their children, unless a positive disqualification has been shown.” Hull v. Hull, Tex.Civ.App.1960, 332 S.W.2d 758. (Italics added). In the instant case a positive disqualification was found by the trial court. As we have heretofore suggested, the evidence is sufficient to support such finding.

Accordingly, the judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    Ellouise COSTELLO et vir, Appellants, v. HILLCREST STATE BANK OF UNIVERSITY PARK et al., Appellees.
    No. 16415.
    Court of Civil Appeals of Texas. Dallas.
    June 12, 1964.
    Muse, Currie & Kohen and R. Douglas Coffin, Dallas, for appellants.
    Brady, Drake & Wilson, Dallas, for ap-pellees.
   DIXON, Chief Justice.

Ellouise Costello and her husband, Jim Costello, have appealed from an order denying their application for a temporary injunction to restrain Hillcrest State Bank from attempting to foreclose a deed of trust lien against property which they allege is their homestead.

The material facts are undisputed. Title to the property was acquired by warranty deed dated December 3, 1962. The grantee named in the deed is “Jim Costello, Trustee.” The instrument was filed for record on January 4, 1963.

In his deposition Jim Costello says that there was not at any time any trust in existence of which he was trustee. The reason he took title to the property as “Jim Costello, Trustee” was that he believed that by doing so he would deprive several judgment creditors of any possibility of seizing the property in satisfaction of their judgments. He says he did not see any need to tell his wife about the way he took title because he “knew that as soon as he satisfied the judgments the whole thing would take care of itself.” Costello and his wife moved into the property in February 1963 and have continuously since that time occupied, used and claimed it as their home.

On May 10, 1963 Jim Costello borrowed $42,400 from Hillcrest State Bank, and signed a note and executed a deed of trust to the property in question as security for the loan. At the time he also signed a statement that the property was no part of his homestead.

Before making the loan the Bank’s president and another official went out to the property and inspected it to appraise it and to see its condition and location. The president of the Bank testified that while he and the other bank official were inspecting the property Costello told them that he and his wife lived there.

Ellouise Costello in an affidavit attached to her petition says that she and Jim Costello were married in 19S3. The property in controversy was acquired free and clear of liens or encumbrances with funds they had accumulated during their marriage. They have been using it as their home since February 6, 1963. They neither have nor claim any other home.

Recently she learned for the first time that her husband on May 10, 1963 had executed a deed of trust on their home to secure a loan of approximately $40,000, that the loan was in default and the trustee in the deed of trust had advertised the property to be sold on February 4, 1964 in satisfaction of the debt.

Ellouise Costello further states that at the time she and her husband bought the property and at the time they moved into it she knew nothing about the title being in the name of “Jim Costello, Trustee.” She does know that it was not trust property.

OPINION

In two points on appeal appellants assert that the trial court erred in refusing to grant a temporary injunction to prohibit the sale of their homestead (1) it being an abuse of discretion to fail or refuse to apply the law to the undisputed or established facts; and (2) there is no abuse of discretion in preserving the status quo if there exists a probable injury and a probable right of recovery, where the pleadings state a cause for relief and the evidence tends to support it. We sustain both points.

Though a trial court may ordinarily exercise a broad discretion in granting or refusing a temporary injunction the failure or refusal of the court to apply the law to undisputed or established facts constitutes an abuse of discretion. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722; City of Waco v. Marstaller, Tex.Civ.App., 271 S.W.2d 722; Falkner v. Memorial Gardens Ass’n, Tex.Civ.App., 298 S.W.2d 934; City of Houston v. Memorial Bend Utility Co., Tex.Civ.App., 331 S.W.2d 418; John L. Bramlet & Co. v. Hunt, Tex.Civ.App., 371 S.W.2d 787. Under the undisputed facts of this case we have concluded that appellants are entitled to the temporary injunction they seek.

An applicant for a temporary injunction seeking to preserve the status quo needs only to show the existence of a probable injury and a probable right of recovery. He is not required to establish that he will finally prevail in the litigation. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549.

Art. 16, Sec. 50 of our State Constitution, Vernon’s Ann.St., is very plain with respect to a forced sale of a homestead or any attempt to burden it with a mortgage. We quote part of Section 50:

“The homestead of a family shall be, and is hereby protected from forced sale,-for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or. for work and material used in constructing- improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead; * * *. No mortgage, trust deed, or other lien on the homestead shall ever he valid, except for the purchase money therefor, or improvements made thereon, as herein-before provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; * * (Emphasis ours.)

It is not claimed that the loan in this case was for the purpose of purchasing the property or for improvements thereon. Ellouise Costello, the wife, did not sign the note or deed of trust in' question. There are no allegátions or evidence; of' any action or condúct oh 'her part which might even suggest that she was in any way connected with the' representations made to the Bank by her husband' in order, to obtain the loan from the Bank. Pappas v. Gounaris, 158 Tex. 355, 311 S.W.2d 644. The Bank officials visited the property and were told that Ellouise Costello and her husband lived there.

Appellee Bank relies on Art. 7425b-8 Vernon’s Ann.Civ.St. of the Texas Trust Act to support its contention that the deed to “Jim Costello, Trustee,” the beneficiaries not being disclosed, does not convey a title upon which homestead rights may be impressed. We quote part of the statute:

“Where a trust is created, but is not contained or declared in the conveyance to the trustee, or - when a conveyance or transfer is made to a trustee without disclosing the names of the beneficiary, or beneficiaries, the trustee shall be held to have the power to con-. ■vey- or transfer or encumber the title and whenever-he.shall execute and deliver a conveyance or transfer or encumbrance of such property, as trustee, such conveyance or transfer or encumbrance shall not thereafter be questioned by any one claiming as a beneficiary under such trust or by any one claiming by, through, or under an undisclosed beneficiary, * *

Appellee argues that when the deed to Jim Costello, Trustee was given an express trust was created by the very use of the term “Trustee”. We do not agree with appellee. The mere use of the word “Trustee” does not of itself create a trust. 19 Tex.Jur.2d 333;, 26A C.J.S. p. 859; 137 A.L.R. 460-465. Art. 7425b-7 V.A.C.S. of Texas Trust Act sets forth the means or methods by which an express trust may be created. None of the means or methods named in the statute come within the undisputed facts of this case. Only express trusts are covered by the Act. Art. 7425b-2 V.A.C.S.

The statute relied on by appellee contemplates that there should be a trust in existence and that there should actually be a trustee. Its language so indicates. It begins with the clause, “Where a trust is created * * *.” Here-the trust was never created. We are convinced that when the Legislature enacted the statute, using the words “a trust” and “trustee” it intended to refer to realities, not to fictitious trusts, or fictitious trustees.

To hold as appellee would have us hold would open the door to fraud whereby an unscrupulous husband could deprive an innocent wife, of her homestead rights notwithstanding the provision of our State Constitution as quoted above.

Appellants admit that the note and debt are valid. They seek only to have the alleged lien declared void and for the Bank to be enjoined from selling the property under foreclosure. ,

The undisputed evidence unquestionably shows a probable right of recovery on the part of appellants and a probable injury if appellee is not temporarily enjoined from proceeding with the foreclosure sale. The temporary injunction is necessary to maintain the status quo. Under the circumstances the trial court was not free to exercise the discretion with which it is ordinarily clothed in deciding applications for temporary injunctions.

In so holding we do not undertake to determine the case on its merits. What we hold here pertains only to the temporary injunction and is without prejudice to the rights of the parties to assert their claims and offer evidence in a trial on the merits.

The judgment of the trial court is reversed and the cause is remanded to the trial court with instructions to grant the temporary injunction upon execution by appellants of an injunction bond in an amount to be set by the court.

Reversed and remanded.


author: COLLINGS, Justice.

text:
    William Leon GADDY, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 3886.
    Court of Civil Appeals of Texas. Eastland.
    May 15, 1964.

      Jay S. Fichtner, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, for ap-pellee.
   COLLINGS, Justice.

William Leon Gaddy, Jr., brought this suit in the County Court against the Texas Department of Public Safety to vacate, set aside and abate the suspension of his license to operate a motor vehicle upon a public highway. The Department of Public Safety answered and filed a cross action seeking to have the order of suspension upheld under the provisions of Article 6687b, Vernon’s Ann.Tex.Civ.St., pursuant to an administrative hearing before the Justice Court Precinct 3 of Dallas County, in which it was found that Gaddy had committed a driving offense authorizing such suspension. The County Court granted the motion of the department for a summary judgment and William Leon Gaddy, Jr., has appealed.

Appellant Gaddy presents points contending that the court erred in granting ap-pellee’s motion for summary judgment because appellant contends that his pleadings and supporting affidavit in answer to appel-lee’s motion for summary judgment raised an issue of fact as to whether appellee Department of Public Safety had waived its right and is estopped to claim or to cause a further suspension of appellant’s operators license. Appellant also urges that a plea of guilty is not a conviction within the meaning of Section 22, Article 6687b, V.A.T.C.S. unless it is shown that the requirements of Article 518 C.C.P. dealing with pleas of guilty in misdemeanor cases have been met, and that it was error to suspend his license in the absence of a showing by the department that appellant, while his driving privileges were suspended was convicted of committing an offense which requires automatic suspension of driver’s license upon a conviction within the meaning of Section 22 of Article 6687b, supra.

The order of suspension in question was issued on June 14, 1963. It suspended the driving privileges and Texas operator’s license of appellant William Leon Gaddy, Jr., for a period of six months effective June 17, 1963. The suspension order was pursuant to an administrative hearing before the Justice Court, Precinct 3, Dallas County, Texas, on May 29, 1963. Appellant had been notified of the hearing and was present. At that hearing an affirmative finding was made that appellant had committed an offense for which automatic suspension of license is provided for upon conviction under the provision of Subdivision (b) 1, Section 22, Article 6687b, V.A.T.C.S., to-wit: Driving while license was suspended. On July 9, 1963, appellant timely filed this suit in the County Court seeking to set aside the order suspending his operator’s license.

In the trial of the case in the County Court the Texas Department of Public Safety sought to uphold the order of suspension contending that appellant’s driving privileges were automatically suspended for a period of six months from June 11, 1962, by reason of a conviction for the offense of driving while intoxicated; that appellant while his driving privileges were suspended as aforesaid was convicted of an offense for which automatic suspension of his driver’s license was required upon conviction, in that, on October 30, 1962, during the period of the suspension of his operator’s license appellant was convicted of committing a no operator’s license offense on October 9th, 1962, in Dallas County. Because of the original suspension of appellant’s license in the driving while intoxicated case and the further fact that appellant was thereafter convicted of driving without a license, while his license was suspended, the department prayed that the order of suspension should be upheld. The allegations in appellee’s motion for summary judgment were substantially the same as set out above, and in support thereof there was attached as an exhibit a certificate of the entries appearing in the operating records concerning appellant on file with the Department of Public Safety and a notice of conviction from the Corporation Court of the City of Dallas, certified to by the clerk of that court. Appellant Gaddy urged in his pleadings and answer to appellee’s motion for summary judgment the matters of waiver and estoppel, and in support thereof appellant attached his affidavit admitting the suspension of his driver’s license on July 11, 1962, but stated that in October, 1962, the department had sent to him a request for money to pay for renewal of his operator’s license; that in response to this request appellant sent to the department a money order in the sum of $3.00, and when the department notified appellant that such money order was insufficient and that an additional $2.00 was required appellant complied with such request and paid the additional amount. Appellant alleged and urged that by reason of these transactions he was led to believe that the suspension of June 11, 1962, had been lifted and that his right to operate a motor vehicle in Texas had been reinstated; that the department thereby waived the suspension of June 11, 1962, and was estopped to assert that the suspension was in effect on October 9, 1963, when appellant was charged with driving a motor vehicle without an operator’s license in Dallas, Texas, and that the department was therefore estopped to order the suspension of June 17, 1963.

The pleadings in the County Court at Law and the affidavits in support of and in opposition to the motion for summary judgment show the following: It is undisputed that appellant Gaddy was convicted of the offense of driving while intoxicated in June, 1962, as shown by a certified copy of appellant’s driving record in the Department of Public Safety. This conviction carried an automatic suspension of appellant’s operator’s license for a period of six months extending until December 1962. Article 6687b, Section 24, Subdivision (a)2, V.A.T.C.S. The suspension in such a case is effective upon conviction by operation of law. The suspension is not within the discretion of a court or jury and is operative without regard to whether the suspension is specifically provided for in the judgment. Nor, is it conditioned upon a surrender of the operator’s license of an offender. Davison v. State of Texas, 166 Tex.Cr.R. 376, 313 S.W.2d 883; Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167; Hays v. Department of Public Safety, Tex.Civ.App., 301 S.W.2d 276.

It is undisputed that appellant operated a motor vehicle upon a public road in Dallas County on October 9, 1962, within the six months period of automatic suspension resulting from his conviction of driving while intoxicated and while he did not have a valid operator’s license; that appellant was convicted in the Corporation Court of the City of Dallas of the offense of operating a motor vehicle without a valid operator’s license on October 30, 1962, as shown by the notice of conviction certified to by the clerk of that court. This conviction also carried an automatic suspension of appellant’s operator’s license. Article 6687b, Section 4, Subdivision 2, V.A.T.C.S.

The undisputed facts as above set out together with the hearing in the Justice Court supported the action of the Department of Public Safety in suspending appellant’s operator’s license and required the summary judgment entered by the County Court at Law. Department of Public Safety v. Austin, Tex.Civ.App., 359 S.W.2d 958; Texas Department of Public Safety v. Gil, Tex.Civ.App., 292 S.W.2d 832; Zachary v. Department of Public Safety, Tex.Civ.App., 351 S.W.2d 943; McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138. Appellant’s contention concerning waiver and estoppel on the part of The Department of Public Safety is not well taken and is overruled. In the case of Milam v. Texas Department of Public Safety, Tex.Civ.App., 359 S.W.2d 623, which was a suit to set aside the suspension of a driver’s license it was held that the suit was not rendered moot by the fact that the license which had been suspended expired by its own terms during the pendency of the suit and that a new license had been issued, inasmuch as the new license was nothing more than an extension of privilege granted, and the right of the department to suspend the new license was withheld by the plaintiff’s action in bringing the matter for determination by the courts. Also see Article 6687b, Section 4, Subdivision 4, V.A.T.C.S.

We also overrule appellant’s point contending in effect that it was error to suspend his license in the absence of a showing by the department that appellant, while his license was suspended, was convicted of committing an offense which requires automatic suspension of driver’s license upon a conviction within the meaning of Section 22 of Article 6687b, supra. Appellant urges that there was no evidence or indication that the purported plea of guilty was made in open court by the accused or his counsel in compliance with Article S18, T.C.C.P. The statute authorizes the department to suspend the license of an operator upon determining after proper hearing that such operator “has committed an offense for which automatic suspension of license is made upon conviction”. The undisputed facts show that commission of such an offense, and the record is undisputed that appellant was convicted of the offense. Appellant has not denied the conviction but contends only that the Department of Public Safety has not shown that his plea of guilty was made in open court either by appellant or by his attorney. Appellee did not have this burden. The presumption is that the conviction was valid, and appellant has made no showing to the contrary. There is no showing in the record that the requirements of Article 518, supra, were not complied with. No issue of fact on the question of the validity of the plea of guilty is presented. The point is overruled.

The judgment is in all things affirmed.


author: WILSON, Justice.

text:
    Garland Augusta WEST, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 4208.
    Court of Civil Appeals of Texas. Waco.
    June 11, 1964.

      'Guy'H; McNeely, Wichita Falls, for appellant.
    Stanley C. Kirk, Wichita Falls, for ap-pellee.
   WILSON, Justice.

The summary judgment appealed from denied appellant’s petition under Sec. 22, Art. 6687b, Vernon’s Ann.Tex.Civ.St., which sought to vacate the order of the Department of Public Safety suspending his operator’s license upon an affirmative finding by a justice of the peace that he was an habitual violator of the traffic law. Jurisdiction of the district court was asserted under Art. 1970-166b, V.A.T.S. No constitutional question is raised.

The motion for summary judgment of ap-pellee was based on the pleadings and an affidavit of the Deputy Custodian of Driver and Vehicle Records, Division of the Department of Public Safety. The affidavit recites that the operating record of appellant shows five separate listed convictions for speeding on specified dates in 1960 in five named counties, all of which are evidenced by notices of conviction certified to the Department by the convicting courts, in accordance with law. Attached to the motion as exhibits are copies of five notices of conviction signed by the Justices of the Peace in the same five counties, and bearing the same dates recited in the affidavit. These1 documents, as exhibited, are not certified copies. Appellant filed a verified special denial that he had been legally convicted four or more times as alleged. He also pleaded his license should not be suspended because it had been previously suspended for a year in 1962-1963.

Appellant does not here attack the sufficiency of the motion, affidavit or exhibits. He did not present any special exception to the trial court for action. He now says only that the judgment was improper in the face of his unpresented special exceptions and his verified special denial that he had been “legally” convicted four times. As to applicability of summary judgment procedure generally, see Texas Dept. of Public Safety v. King, Tex.Sup., 366 S.W.2d 215, 219.

In Youngstown Sheet & Tube Co. v. Penn, Tex.Sup., 363 S.W.2d 230, 234, it was held that although the exhibit attached to an affidavit in a motion for summary judgment was not a sworn or certified copy, if this matter was not raised by special exception in the trial court, it could not be first raised on appeal, where it fairly appeared no genuine issue of fact existed.

Appellant’s pleading denying that he was “legally” convicted four or more times, though verified, was merely the assertion of a legal conclusion which did not present a fact issue. Wichita County Water Impr. Dist. v. Curlee, 120 Tex. 103, 35 S.W.2d 671, 673; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, 319; 45 Tex.Jur.2d, Sec. 28, p. 408. Affirmed.


text:
    Mary BROWN, Appellant, v. Alton MAY et al., Appellees.
    No. 4247.
    Court of Civil Appeals of Texas. Waco.
    June 18, 1964.
    Rehearing Denied July 2, 1964.

      R. A. Kilpatrick, Cleburne, for appellant.
    Cureton & Cureton, J. P. Word, Meridian, for appellees.
   WILSON, Justice.

Appellant sought a mandatory injunction requiring appellees to remove a fence they constructed in front of her lots. The court withdrew the case from the jury and rendered a take-nothing judgment. We affirm.

In 1924 the owner of the Oakdale Park Addition recorded a plat subdividing his tract by numbered lots in three blocks. A state highway bounded the addition on the south; public streets were the boundaries on other sides. Between the blocks the plat indicated two “open places” 40 feet wide extending from north to south the length of the tract, corresponding to street spaces, but not so designated. The plat recited : “Streets not dedicated.”

The original subdivider sold only the exterior or perimeter lots which abutted on the public streets. The remaining interior portion of the tract he converted into a private commercial park containing a swimming pool, bath house, skating rink, cabins and tables, for use of which facilities charges were made. He and his wife owned and operated this park from 1924 to 1952, when it was sold. Across each end of both platted “streets” or open spaces fences extended at all times, except that sometime before trial appellant, as she testified, “made me a place to get in the back and to get out” by taking down the fence, and she “tried to get in the back, but it was too narrow.” The skating rink was built 30 years ago to extend over and occupy 18 feet of one of the platted open spaces. Utility poles, trees and stumps were situated on it to time of trial. Upon the other open space or platted “street” were groves of trees, a stone wall, utility poles, barbecue pit, tables, a stone walk-way and a cabin.

The original subdivider constructed an arched stone entrance gateway and made a graveied drive from one of the public boundary streets into the park, encircling the swimming pool. Extending from this circular drive were two irregularly curved “cut-across" dirt ways which merged and led to cabins. The merged way did not coincide with, but lay partially upon, and traversed part of the width of one of the platted “streets” for a portion of its length, in front of appellant’s lots. It then curved into another drive which encircled cabins in the park. A similar condition existed on the other “street” (near which appellant owned no land), except that the drive there was graveled. Appellant also owned lots adj acent to which there was no platted open space, but a part of the park drive around the park cabins was situated on platted lots immediately adjoining hers.

Appellant asserts rights in the private park lands in front of all her lots. She says appellees’ fence was unlawfully erected, cuts her property off from the park, and she is entitled to keep the “streets and passageways open.” Although the petition alleges the streets and passageways were of a public, or quasi-public character, the brief states appellant does not contend the streets in Oakdale Addition are dedicated to public use. It is asserted her claim is bottomed on a “private dedication,” brought about by sale of lots according- to streets shown on a plat under rules stated in such cases as Lamar County v. Clements, 49 Tex. 347, 357; State v. Clark, 161 Tex. 10, 336 S.W.2d 612, 618, and City of Forth Worth v. Taylor, 162 Tex. 341, 346 S.W.2d 792, 794.

Appellant’s claim of a “private dedication” is untenable. There is admittedly no written or oral declaration which can constitute an express dedication, reservation or grant of any category. In Drye v. Eagle Rock Ranch, Inc., Tex.Sup., 364 S.W.2d 196, 204, the Supreme Court quoted recognized text writers to the effect that “there is no such thing as the dedication of property to a private use.” Justice Greenhill said, “May there be a dedication to a limited number of persons ? May there be a private dedication? We think the answer, at least as applicable here is, ‘No.’ ”

Lamar County v. Clements above, and the other cases relied on by appellant involved estoppel predicated on what is in effect a representation by the seller relied on by the purchaser that an easement exists as shown by the plat, where the sale is by reference to a plat on which streets are shown as such. Here, there was no such representation. There is no showing appellant’s deed referred to the plat or that sale was made with reference thereto. The plat showed no easement. It announced simply: “Streets not dedicated.” The statement in Lamar County v. Clements on which appellant insists her whole case is bottomed is qualified by the prerequisite there announced that the owner shall have indicated “by map or by other unequivocal acts or delarations” that an area is to be reserved or applied to a specific use of quasi-public character. That condition does not exist here. Drye v. Eagle Rock Ranch, Inc., Tex.Sup., 364 S.W.2d 196, 209-211; Greenway Parks Home Owners Ass’n. v. City of Dallas, 159 Tex. 46, 312 S.W.2d 235, 241, 316 S.W.2d 74. See generally, Anderson v. Tall Timbers Corp., Tex.Sup., 378 S.W.2d 16.

Affirmed.


author: PER CURIAM.

text:
    E. F. THOMAS, Appellant, v. PEOPLES NATIONAL BANK, Appellee.
    No. 16576.
    Court of Civil Appeals of Texas. Fort Worth.
    June 19, 1964.
    Rehearing Denied July 10, 1964.
    Chester A. Oehler, Dallas, for appellant.
    Allred & London, and Renne Allred, Jr., Bowie, for appellee.
   PER CURIAM.

The record in this case reached this court bearing the trial court number and style as: No. 14,443 in the District Court of Montague County, Texas, E. F. Thomas v. Peoples National Bank. The case so numbered and styled is shown by the face of the record to be presently pending for trial in the District Court of Montague County. By such case Thomas is suing the bank on the theory that the latter is guilty of conversion in respect to a truck and an automobile as to which the former claims title. There is a cross-action by the Bank in which it seeks judgment on notes alleged to be the obligation of Thomas. Issues therein appear to be ripe for trial. They could not be the proper subject of an appeal in this court until a judgment has been entered below.

The Peoples National Bank filed a motion for an order barring Chester A. Oehler, Thomas’ attorney, from participating in the case on the ground of conflict of interest. An order of the trial court was entered, under date of March 10, 1964, removing Oehler from the cause as an attorney and barring him from (further) participation therein. Oehler was not a party to the. suit in the court below.

From this order Thomas perfected a purported appeal. The appeal bond bears his name as the only principal. Oehler did not sign the bond, although recitations thereof state that he, as well as Thomas, has “taken” an appeal therefrom to this court.

All the points in appellant’s brief complain of Oehler’s removal and the manner of its accomplishment. The Bank, as appellee, has filed a motion to dismiss the appeal. Premise of the motion is that the order, from which the appeal was brought to this court, was interlocutory and not appealable. The motion is well taken.

In so far as the appellate courts of Texas are concerned, an interlocutory judgment or order is one of which no jurisdiction may be acquired on an appeal therefrom (unless or until there has been a final judgment rendered in the same case), except in instances specifically provided by legislative enactment. Examples are where appeals are taken from: orders granting or dissolving temporary injunctions (Vernon’s-Ann.Tex.Civ.St. Art. 2251); orders appointing a receiver or trustee and orders overruling a motion to vacate a previous order of that nature (V.A.T.S. Art. 2250) ; and judgments sustaining or overruling pleas of privilege (V.A.T.S. Art. 2008). The subject matter of the instant appeal has not been included among the appealable interlocutory orders and judgments. Therefore we have acquired no jurisdiction.

Two cases of analogy support our decision herein, the first one being wherein a plaintiff’s attorney was denied right to further represent his client, and the other being one wherein a plaintiff’s attorney was sustained in his right to further represent his client over protest of the opposite party. The aggrieved party attempted an appeal in each instance. Each appellate court held the order of the trial court to be interlocutory and not appealable. The cases are State v. Wischkaemper, 186 S.W.2d 370 (Amarillo Civ.App., 1945, no writ history) ; and Knox v. Long, 228 S.W.2d 367 (Texarkana Civ.App., 1950, error refused).

The appeal is dismissed.


author: MASSEY, Chief Justice.

text:
    Michael V. MIDDLESWORTH, Appellant, v. Eileen MIDDLESWORTH, Appellee.
    No. 16550.
    Court of Civil Appeals of Texas. Fort Worth.
    June 12, 1964.

      Anderson & Connell, and Henry J. Anderson, Wichita Falls, for appellant.
    Spence, Martin & Richie and Gene Richie, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

In this case the only evidence before the trial court relative to the occasion for divorce bore upon the matter of the cruel treatment received by the wife, as plaintiff, at the hands of the husband, as defendant. There is no question but that in so far as the decree awarded a divorce to the wife it would be improper to disturb it.

As is not uncommon, however, there was dispute between the parties upon the matter of the community property and its distribution, and upon the matter of the amount proper to be decreed as the father’s child support obligation.

There were two minor children. The order of the court awarded custody of both to the plaintiff, with defendant ordered to pay “the sum of $75.00 on the 5th day of January, 1964, and a like sum on the 19th day of January, 1964, and a like sum of $75.00 on the 5th and 19th days of each month thereafter until such minor children have reached the age of 18 years or until further ordered by the Court.”

Plaintiff was awarded an automobile, all the household fixtures and furnishings, and “as her separate property and estate in fee simple absolute the home of the parties * * (legal description included); subj ect, however, to the payment by the plaintiff of any indebtedness that might exist against such property and further subject to a lien in favor of the defendant in the sum of One Thousand Five Hundred and No/100- ($1,-500.00) Dollars. This lien shall not be enforceable by the defendant against such property until such property is sold by the plaintiff and at which time the defendant shall be entitled * * * from the proceeds of the sale of such property.”

The defendant here complains that the award in connection with the support of his two minor children under the age of eighteen years was made without regard to his financial ability and was excessive. We overrule the contention. The evidence was to the effect that the needs of the two children amounted to $250.00 per month, there was an ability of the defendant to earn approximately $6,000.00 per year, and that his was a considerably greater ability than that of the plaintiff. The discretion vested in the trial court was not abused in the amount decreed. Should the condition of relative ability and responsibility of the parties in relation to the support and maintenance of their children change in the future the courthouse doors will be open for any appropriate relief.

The defendant also, as a part of a broader complaint, points at the matter of the $1,-500.00 equitable lien given him upon the real property awarded the plaintiff, which lien was specified as unenforceable until such time as the plaintiff divested herself of title. We have found rather interesting the question of propriety of the judgment decree in such respect, with enforceability of defendant’s lien suspended as to such time, and so conditioned that the plaintiff held him at her mercy with respect thereto.

We have concluded that the order in this respect is not contrary to public policy, and that to so suspend and condition the enforceability of the lien on the property granted to the husband pursuant to the decree of divorce was within the authority of the trial court and not, of itself, demonstrative of any abuse of discretion in this case. 20 Tex.Jur.2d 542, “Divorce and Separation”, § 205; Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Gilleland v. Meadows, 329 S.W.2d 485 (Waco Civ.App., 1959, no writ), and cases cited.

The broader complaint of the defendant was that the trial court abused its discretion in the division and award of the parties’ community estate so that substantially all of it was given to the wife, though the evidence before the court did not support such, wherefore the court’s action was unfair, unjust and arbitrary.

The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Vernon’s Ann.Tex. St., “Divorce”, Art. 4638, “Division of property”. Thereunder our appellate courts have held that a trial court is vested with wide discretion and that on appeal a judgment dividing community property should be sustained except when it clearly appears that there has been an abuse of discretion.

In connection with the matters a trial court has been held authorized to consider in such determination are included: (1) cause of the parties’ inability to live together as husband and wife, or the conduct that contributed to the divorce; (2) the benefits that the spouse not at fault in the breakup of the marriage would have derived from the estate of the other through a continuance of the marriage; (3) disparity in earning powers of the parties, their business opportunities, capacities and abilities; and (4) relative conditions of the parties, their obligations, ages, and size of their separate and community estates. See the more recent cases in 15 Tex. Digest, Divorce,

Division of property.

In our review of the evidence in the case, the foregoing borne in mind, we have readily concluded that there was no abuse of discretion by the trial court in respect to the property division made pursuant to the divorce decree.

We affirm the judgment of the trial court.


author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Freddie Lee GRANT, alias Freddie Lee King, Appellant.
    No. 50406.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.

      Thomas F. Eagleton, Atty, Gen., Jefferson City, John H. Denman, Asst. Atty. Gen., for respondent.
    Rosenblum & Goldenhersh and Merle L. Silverstein, Clayton, for appellant.
   STORCKMAN, Presiding Judge.

This is an appeal from an order and judgment overruling a motion under S.Ct. Rule 27.26, V.A.M.R. to vacate a conviction of forcible rape. In accordance with the habitual criminal act, the court assessed the punishment and fixed it at imprisonment for 99 years. The contentions raised are that the sentence and judgment were entered immediately after the verdict was returned thereby preventing the defendant from filing a valid motion for new trial and precluding him from preserving assignments of errors for review on appeal in violation of his rights under the constitutions of the United States and the State of Missouri, that he was not afforded allocution, and that entering judgment and sentence immediately after verdict deprived the appellant of the effective assistance of counsel in violation of his constitutional rights. The entire proceedings of the original trial are included in the transcript of the record on this appeal.

On November 3, 1960, Mrs. Hazel Christine Burton lived with her husband and two children, a seven-year-old boy and a one and one-half-year-old girl, in the country about a mile and a half south of Morehouse in New Madrid County. On that day Mr. Burton was away from home working and the boy was in school. About 11:30 a. m. a Negro man, later identified as the defendant, came to Mrs. Burton’s home, asked where someone lived and when she could not supply the information he asked for a drink of water. Mrs. Burton got a glass of water from the house which the defendant drank and when she started back into the house with the glass he followed her and forced his way into the home. She escaped from him and ran outside calling for help. Mrs. Fred Williams, the closest neighbor, lived about a quarter of a mile away. The defendant caught her, grabbed her around the neck and dragged her back into the living room. He choked her until she lost consciousness momentarily and when she came to she was on a couch. He had removed his clothes and had torn hers off. He cursed and threatened her while he had sexual intercourse with her; he tried to keep a cloth over her face but she would pull it off. When he had finished the act, he demanded money. She refused to give him any and ran into the room where her daughter was and closed the door. The defendant took three dollars off the television set and left. She watched him go across a field and when he was gone she hurried over to the Williams home where there was a telephone. Police officers in Sikeston and Morehouse were promptly-called and notified of the assault.

The defendant was captured in a drainage ditch about a mile and a half from the Burton home about 45 minutes after the assault and was taken to the Williams home where Mrs. Burton identified him as her assailant but stated that he was wearing a striped coat when he was at her house. One of the officers asked about the coat and the defendant said he had thrown it away. The officers took him to the place he designated and the coat was recovered in a field in the vicinity of the drainage ditch where he was arrested. A couple of days later, Mrs. Burton again identified the defendant in a lineup of several Negroes in Sikeston, and at the trial further identified the defendant as the man who committed the assault on her.

Police officers and Mrs. Williams also testified on behalf of the state. The defendant, 25 years of age, testified in his own behalf. He admitted that he passed through the neighborhood where the Burtons lived on November 3, 1960, but denied that he went to the house and assaulted Mrs. Burton.

Since the defendant was charged as a habitual criminal, the state at the beginning of the trial, out of the presence of the jury, introduced evidence of four convictions. The first in 1955 was for burglary and larceny in New Madrid County for which the defendant was sentenced to two years in the penitentiary. The other three were in the City of St. Louis in 1957 of which two were for burglary and larceny and the other was for stealing $50 and over. The sentences for these three offenses totaled four and one-half years. The defendant was released from the Missouri penitentiary April 23, 1960. At the close of the state’s case, the court announced his finding that the defendant had been convicted of the prior felonies as charged. On cross-examination the defendant admitted the prior felonies and an additional conviction for stealing an automobile for which he served a term in a federal prison.

The jury returned a verdict finding the defendant guilty as charged in the information. After the jury was discharged, the defendant was granted thirty days to file a motion for new trial. The court then announced that he would take up the matter of sentencing the defendant and stated he would like to hear from the state’s attorney and the defendant’s attorney “as to what the punishment should be”. Both counsel stated their views; the state asked for the death penalty. At the conclusion of the arguments, the court announced: “It will be the judgment of this Court that you be sentenced to ninety nine years in the Department of Correction.” This occurrence will be discussed in further detail later. On July 11, 1962, within the thirty days allowed, the defendant by his trial counsel filed a motion for a new trial which the parties concede was never ruled on.

The next record entry in point of time is the filing of the motion to vacate on August 27, 1963, by the defendant’s present counsel. On September 10, 1963, the motion to vacate was heard, submitted, and overruled by the court from which order and judgment the defendant filed his notice of appeal on September 13, 1963.

Two of the points presented by the defendant on this appeal are based on the proposition that the “sentence and judgment were entered immediately after the verdict was returned”; the other is that the “sentence and judgment were unlawful in that they were pronounced without affording appellant allocution.” Therefore, it behooves us to determine at the outset the nature and legal effect of what occurred immediately after the verdict was returned and the jury discharged.

Section 556.280, RSMo 1959, V.A. M.S., known as the Habitual Criminal Act, deals - with the assessment of the punishment in a case where the defendant has committed a prior felony; it provides in such case that the punishment shall be determined by the court rather than the jury. The statute, as amended in 1959, requires that evidence pertaining to the prior conviction shall be heard and determined by the trial judge out of the hearing of the jury prior to the submission of the case to the jury and that the court shall enter his findings thereon. In compliance with this provision, the judge, at the close of the state’s case, announced his finding that the defendant had been convicted of prior felonies. Section 556.280 further provides that if the accused is found to have been convicted of ■ a prior felony he “shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.” The determination of the punishment must be made after the conviction and should be made before the motion for a new trial is prepared and filed in order to give defendant’s counsel an opportunity to assign error with respect thereto in the motion. It was therefore in order for the court to determine the punishment after the jury had returned its verdict and been discharged.

After the judge had granted defendant’s counsel thirty days in which to file a motion for new trial, he stated: “Now Gentlemen, I would like to hear from the State’s Attorney and as well as the Defendant’s Attorney as to what the punishment should be in this case, and very frankly, it is a tremendous responsibility on me. I don’t know whether I am prepared to do it today or not, but very frankly I have in mind is the death penalty. This has got to stop someday.. Mr. Hunter, what are your recommendations?” Mr..Hunter, the prosecuting attorney, argued .in favor of the death penalty. The court then called on Mr. Garner, counsel for the defendant, who spoke against the death penalty in general and as applied to his client in particular. He also argued mitigating circumstances and in conclusion stated in effect that he would not have a thing to say- against life imprisonment. The court responded and concluded the hearing in this fashion:

“The Court: My objection to that is, that he would be out of there soon. The only thing that can be said on behalf of your client is that he didn’t kill anyone, and he probably could have. Do you have anything to say, King? Do you have anything to say?
“Defendant King: No, sir.
"The Court: Stand up. You have nothing to say?
“Defendant King: No, sir.
“The Court: Very well. It will be the judgment of this Court that you be sentenced to ninety nine years in the Department of Correction. Court is adjourned.”

It appears that the court was undertaking to follow the requirements of the habitual criminal act. He started the discourse with a statement that he would like to hear from the attorneys as to “what the punishment should be in this case” and asked for recommendations. Inquiring if the defendant had anything to say and asking him to stand is the 'only thing savoring of allocution, but it is not sufficient to constitute a compliance with S.Ct. Rules 27.09 and 27.10, V.A.M.R., in that the defendant was not asked if he had any legal cause to show why judgment^ and sentence should not be pronounced against him, nor was the defendant heard on his motion for new trial. Sections 546.-570 and 546.580, RSMo 1959, V.A.M.S.;. State v. Hendrix, Mo., 310 S.W.2d 852, 856-857 [10-12]; State v. Turpin, 332 Mo. 1012, 61 S.W.2d 945, 949 [17-19], The court in concluding the hearing spoke in the future tense and not the present. He said that it “will be the judgment of this Court”, The proceedings were consistent with a-determination of the punishment as required by the habitual criminal act, but entirely at variance and inconsistent with the rendition of judgment on the jury’s verdict and the imposition of sentence. The legal effect of the hearing is limited to a determination by the court of the punishment to be imposed as required by § SS6.280.

Apart from the question of allocution, there is error apparent on the face of the record in that judgment purports to have been rendered and sentence imposed on the day the verdict was returned in spite of the fact that the defendant had the legal right under S.Ct. Rule 27.20 to file a motion for new trial within ten days after the return of the verdict, which time as shown by the same record had been extended to thirty days. A judgment so rendered would be illegal and ineffective to obstruct the defendant’s right to file a valid motion for new trial or to appeal from the ruling thereon and a judgment duly rendered. State v. Withers, Mo., 347 S.W.2d 146, 148 [2]; State v. West, Mo., 270 S.W. 279, 281 [2]; State v. Keller, 304 Mo. 63, 263 S.W. 171, 173 [4]; State v. Taylor, 301 Mo. 432, 256 S.W. 1059, 1062 [6].

The motion for new trial, filed on July 11, 1962, is valid because it was properly filed within the time provided by law and the order of the court. Since the motion was not passed on within ninety days after it was filed, it is deemed denied by operation of law on October 9, 1962. S.Ct. Rule 27.20. The court did not thereafter render formal judgment and impose sentence; however, it did not lose its jurisdiction to do so. State v. Schierhoff, 103 Mo. 47, 15 S.W. 151, 152 [1]; State v. Turpin, 332 Mo. 1012, 61 S.W.2d 945, 948 [12].

The situation then is that it is incumbent on the trial court to pronounce formal judgment as provided by law and sentence the defendant in accordance with the determination made by the court pursuant to the habitual criminal act. In doing so, the defendant should be given credit for such time spent in jail and prison as may be just and proper under § 546.615. “After the rendition of final judgment”, the defendant will have the right to take an appeal “not later than ten days after the judgment or order appealed from becomes final.” S.Ct. Rules 28.03 and 82.04; § 547.070; State v. Bledsoe, Mo., 249 S.W.2d 457, 458 [2].

In connection with his first and third points, the defendant says that the purported entry of judgment immediately after the verdict was returned prevented the defendant from filing a valid motion for new trial, precluded him from preserving any errors for appeal, and deprived him of the effective assistance of counsel in violation of his constitutional rights. The defendant’s complaint regarding the invalidity of the motion for new trial is disposed of by our holding that it is valid. Also we have held that in due course he will have an opportunity to appeal.

But the defendant says that the entire case should be remanded for a new trial because the record shows reversible errors violating his constitutional rights. In his briefs, the defendant refers on several occasions to the facf that the trial lasted only one day and intimates there was something sinister about.it for that reason. The time of beginning and finishing are not shown, but it does appear' from the record that only forty-five minutes were taken for lunch. There was a total of eight witnesses on the merits and the issues were limited. Counsel stayed with the issues and there was hardly any occasion for objection. No one seemed harried or hurried. There is no virtue ipso facto in a long trial or vice in a short one. The offense is alleged to have occurred on November 3, 1960; Mr. Silas E. Garner, trial counsel for the defendant, entered his appearance in the case on April 28, 1961, and the case was tried on June 13, 1962. So it may not be said that the defendant was rushed into a trial without sufficient opportunity to prepare. Many of counsel’s assertions and conclusions are not supported by the record. It has not been demonstrated that any of defendant’s constitutional rights relating to a fair and impartial trial or due process of law have been violated.

Further the defendant contends if the cause is remanded he should be given leave to file a motion for new trial before a judgment is rendered because he was taken immediately to the penitentiary thereby hindering and impeding contact and consultation between the defendant and his counsel in the preparation of the motion filed. The defendant’s trial counsel is known to the court to be an able and experienced attorney. He was appointed by this court as a special commissioner to hear testimony and report his findings of fact and conclusions of law in Pearcy v. Page, 356 Mo. 192, 201 S.W.2d 403. Mr. Garner resides and has his office in the City of St. Louis. Jefferson City is considerably closer and more accessible to a person living in the City of St. Louis than the county seat of New Madrid County where the defendant was in jail prior to trial. We also know that prison officials are quite cooperative in arranging interviews between attorneys and clients. The defendant’s argument is entirely unsound. The contents of the motion filed, the manner in which the trial was conducted and the result indicate the defendant had the effective assistance of counsel. The evidence of defendant’s guilt is quite convincing and it is apparent from the transcript that the trial court was inclined to assess the death penalty as he had the right to do. See State v. Wolfe, Mo., 343 S.W.2d 10, cert. den. 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246, cert. den. 368 U.S. 907, 82 S.Ct. 188, 7 L.Ed.2d 101; Wolfe v. Nash, D.C., 205 F.Supp. 219. The contention that the defendant should be given the opportunity to file another motion for new trial is without merit.

Accordingly the judgment and order herein appealed from is reversed and the cause is remanded with directions to the trial court to set aside the record or minute entry purporting to show the imposition of sentence and the rendition of judgment on June 13, 1962, as such entry appears from the last eleven lines on page five and the first fourteen lines on page six of the transcript of the record, and cause the defendant to be brought before the court (S.Ct. Rule 27.08 and § 546.560), and grant him allocution (S.Ct. Rule 27.09 and § 546.570), and, if no legal cause be shown, pronounce sentence in accordance with the verdict of the jury and the punishment determined and assessed by the court and render final judgment in the cause; and for such other and further proceedings as may be necessary and proper not inconsistent with this opinion.

All of the Judges concur.


author: CLAY, Commissioner.

text:
    INTERSTATE ACCEPTANCE CORPORATION, Appellant, v. Jewell Louise LOVINS et al., Appellees.
    Court of Appeals of Kentucky.
    June 5, 1964.

      Smith, Reed, Yessin & Davis, Frankfort, for appellant
    Chas. A. Williams, Williams & Rivers, Paducah, for appellees.
   CLAY, Commissioner.

This suit was brought by appellant, a creditor, to set aside as fraudulent under KRS 378.010 certain conveyances made to appellee purchasers. The trial court found (1) the grantors (hereafter referred to as “the Lovinses”) were not shown to have a fraudulent intent, (2) appellees were bona fide purchasers for value without notice, and (3) appellant was estopped to assert this claim.

The Lovinses conducted a used car business in Paducah. In August, 1960 they were indebted to appellant, who financed the business on a floor plan. The amount of this indebtedness was not liquidated at the time and fluctuated substantially from month to month.

In the latter part of August, 1960 appellant was advised that the Lovinses planned to dispose of their business and property and move to Detroit. At that time they owned three valuable pieces of urban real estate.

At or about the time appellant was advised of the Lovinses’ plans, they placed all of their real estate on the market for sale and it was advertised both in newspapers and by radio. As of about a month later, September 30, 1960, no acceptable offer had been received for any of these properties.

. On September 23 appellant employed an attorney, Mr. Boyl, to represent its interests in connection with the Lovinses’ indebtedness to it. Appellant was apparently anxious to seek some sort of security in view of the Lovinses’ plan to go out of business and dispose of their property. On that same day this attorney called Mr. Cole, a substantial business man in Paducah who later became a purchaser, to inquire about the value of the Lovinses’ property and outstanding liens against it. The attorney testified he advised Mr. Cole that he represented a creditor of the Lovinses and that they were indebted to his client in a sum in excess of $40,000. Mr. Cole advised the attorney that the properties had a value of $90,000.

On September 29, attorney Boyd talked with Mr. Lovins on the telephone. The former testified the latter advised that the Lovinses were changing their plans, were not leaving Paducah, and would give appellant a second mortgage on some or all of their property. A meeting was agreed upon for October 3. Within the next twenty-four hours the Lovinses made a cash sale of all of their real estate to appellee purchasers for $80,500, the deeds being recorded on October 1. What became of the net proceeds of this sale does not appear, but the Lovinses did not leave town for about a week thereafter. They may have paid some of their debts but they did not pay appellant The judgment in this proceeding allowed appellant a recovery of approximately $70,000 against Jewell Lov-ins. (A substantial part of this debt apparently accrued or matured subsequent to the transactions above related.)

One other transaction should be noted. On August 23, the Lovinses had mortgaged a portion of the business property to their daughter, with the recited consideration of a pre-existing debt of $13,000. This appears to have been a fraudulent arrangement. However, the daughter joined in the conveyance of this property to the appellee purchasers on October 1. The consideration was paid by appellees to the Lovinses and consequently after the conveyance the daughter had no property or funds which could be subjected to the claims of their creditors.

As before mentioned, the Chancellor found no fraudulent intent on the part of the Lovinses in selling their property. This finding was apparently based on the fact that they had openly advertised their intention to go out of business, had put their property on the market for sale, and had received a fair price for it. If there was an intention to defraud, it may have had its inception after the sale. On the other hand, as contended by appellant, the mortgage to the daughter is substantial evidence of a fraudulent intent, as is likewise the immediacy of the sale after Mr. Lovins had made misrepresentations to attorney Boyd.

We believe it unnecessary to decide whether the Chancellor’s finding on this issue was erroneous. Assuming appellant had forged this one link in the chain which would authorize the setting aside of these conveyances under ICRS 378.010, we are unable to discover error in the finding of the Chancellor that appellees were good faith purchasers for value without notice of the fraudulent intent (assuming it to have existed) .

KRS 378.010 provides in part:

“This section shall not affect the title of a purchaser for a valuable consideration, unless it appears that he had notice of the fraudulent intent of his immediate grantor * *

Appellant’s claim that appellee purchasers participated in a fraudulent design of the Lovinses is based on inferences drawn from the circumstances. Appellant apparently places great significance on the conversation attorney Boyd had with ap-pellee Cole on September 23, 1960. At most, however, this conversation gave notice to Cole (and those he represented) that a creditor was interested in the Lovinses’ affairs and was particularly interested in the value of their real estate and the outstanding indebtedness against it. Even if Cole was made aware the Lovinses were indebted to appellant in the amount of $40,000, he estimated the value of the real estate at more than twice that figure. Certainly Cole was not advised, nor had he any knowledge, that the Lovinses were insolvent, or that they did not intend to pay their debts. No notice of an intent to defraud can be drawn from this telephone conversation.

Appellant next urges that the failure of appellees to employ attorney Boyd to examine the title to the property prior to the execution and recording of the deeds, in view of the fact that Boyd had theretofore represented some of the appellees, was an unusual and suspicious circumstance. We have difficulty attaching significance to this development. It is apparent all of the parties to the sale were interested in expediting the matter. Appellees had a perfect right to rely upon their own knowledge of this property (which was quite substantial) and another attorney who was involved in the transaction. Boyd’s services were in no sense essential.

Appellant contends that on the basis of a conversation between attorney Boyd and another appellee, Nagel, after the conveyances were made, it appears the purchasers had no title examination made at all. Assuming this to be true, the taking of this risk by the purchasers has no bearing on the issue of notice of a fraudulent intent.

Appellant also emphasizes the speed of the sale transactions as showing such an unusual method of dealing as to indicate a nefarious purpose. While it is true the sales were consummated rather quickly, a reasonable explanation is- apparent. The Lovinses were anxious to quit and sell out. The buyers, knowing this property well, had no reason to hesitate in grasping a bargain. A joint intent to defraud creditors cannot reasonably be inferred simply because the owner of property is willing to sell at a sacrifice and the buyer wishes to close the transaction before a good thing gets away. At least the Chancellor could properly decline to draw such an inference.

It is contended the consideration for the conveyances was inadequate, thereby indicating' the purchasers were parties to some fraudulent design. Inadequacy is a relative term. On the question before us the consideration must be so disproportionate to the real value of the property as to raise a presumption (or a fair inference) of fraud. Carter v. Braswell, 186 Ky. 760, 217 S.W. 1019. No such disparity between the sale price and the market value of the real estate is here shown. There was a conflict of evidence as to whether the market value exceeded the price paid, and there was ample evidentiary support for the Chancellor’s finding that it did not. Even assuming appellees purchased this property for $10,000 less than its market value ■(though no one else had offered as much), in view of the very substantial cash consideration paid it would be difficult indeed to infer that this circumstance made the purchasers a party to a plan to defraud the seller’s creditors. Certainly the contrary finding of the Chancellor was not clearly erroneous.

Appellant insists the combination of circumstances was sufficient to put the purchasers on inquiry, citing Carter v. Richardson, 22 K.L.R. 1204, 60 S.W. 397; Campbell v. First National Bank of Barbourville, 234 Ky. 697, 27 S.W.2d 975, and other cases. Inquiry about what? That the Lovinses had creditors? Any going business has creditors. Knowledge that a proposed grantor is in debt does not charge a purchaser with notice that the former is selling to defraud his creditors. Isaacs’ Adm’x v. Hignite, 265 Ky. 57, 95 S.W.2d 1116. Inquiry about the amount of indebtedness to appellant? The facts do not justify the imposition of such a duty on appellees. Had such inquiry been made it would have disclosed a sharply fluctuating creditor-debtor relationship which had apparently been satisfactory to appellant over a long period of years. Inquiry about the intentions of the Lovinses with respect to their plans to liquidate their obligations? We know of no rule of law or reason to require such a course of action and obviously a debtor would not disclose anything inimical to his interests.

The statute was designed to protect purchasers as well as creditors. Ballard v. Security Bank, 219 Ky. 468, 293 S.W. 950. The buyer is not the guardian of the seller’s creditors. Where valuable consideration is exchanged for property, unless the circumstances indicate more than is shown in this case, the purchasers cannot be held to have participated actively or constructively in a fraud upon the seller’s creditors. See Hickman Bank & Trust Co. v. Pickard & Mayberry, 207 Ky. 772, 270 S.W. 30. On this issue we are unable to find in this record sufficiently substantial evidence to establish that the Chancellor committed error in his finding’s of fact or conclusions of law.

It is finally contended by appellant that even if appellees were innocent purchasers for value, the Chancellor should have subjected to appellant’s claim the difference between the consideration paid by the transferees and the market value of the property conveyed. As we have heretofore observed, there was sharp issue as to whether such difference existed.

Assuming, however that appellees paid for the property less than its market value, the principle appellant seeks to invoke does not apply. It is only after a conveyance has been set aside as fraudulent that the question arises concerning the respective equities of the creditors and the transferees in the property or its proceeds. The rule appellant relies on is that if a conveyance is set aside, and if the purchaser had been guilty only of constructive fraud (being charged with notice), the purchaser may be entitled to reimbursement for the consideration paid and the creditor entitled to the excess of value over such consideration. 24 Am.Jur., Fraudulent Conveyances, section 124 (page 271); Wood v. Goff’s Curator, 70 Ky. (7 Bush) 59; J. B. Colt Co. v. Brown, 242 Ky. 523, 46 S.W.2d 1074. The case of Security Bank v. Zimlich’s Ex’x, 261 Ky. S60, 88 S.W.2d 286, which appellant cites as controlling, does no more than recognize this rule. (In that case the court intimated that the conveyance should not have been set aside by the Chancellor, but since the transferee had not appealed from that decision, the only question was whether the transferee was entitled to the return of the consideration paid by him.)

In the present case the Chancellor determined, and we have in this opinion accepted such determination as correct, that appellees, the transferees, cannot be charged with either actual or constructive fraud in the acceptance of the conveyances. Therefore there is no proper ground on which to set them aside. Consequently we do not reach the question of the division of the property or its proceeds under the rule stated.

It is unnecessary to consider the question of estoppel asserted against appellant.

The judgment is affirmed.