author: CALVERT, Chief Justice.

text:
    W. Floyd DEACON et al., Petitioners, v. CITY OF EULESS, Texas, Respondent.
    No. A-11263.
    Supreme Court of Texas.
    July 6, 1966.
    Rehearing Denied July 27, 1966.

      Shirley W. Peters, Denton, for petitioners.
    Bondurant & Cribbs, Arlington, H. P. Kucera, Dallas, for respondent.
   CALVERT, Chief Justice.

By their suit petitioners, W. Floyd Deacon, Priest Baze and C. O. Crumbley, plaintiffs in the trial court, sought judgment declaring City of Euless annexation ordinances Nos. 189, 190 and 192 void, and enjoining the City and its officers from levying taxes against their lands and otherwise attempting to exercise municipal jurisdiction over the same. The City of Euless answered the suit by plea in abatement and general denial. Both parties moved for summary judgment. The trial court denied plaintiffs’ motion, granted the City’s-motion, and rendered judgment declaring the ordinances valid. The Court of Civil Appeals affirmed. 397 S.W.2d 935. We reverse the judgments of the courts below and remand the cause to the trial court for further proceedings.

The ordinances under attack were pending before the City Council of the City of Euless on March 15, 1963, and were passed on final reading and approved on June 25, 1963. Each ordinance purported to annex certain additional territory to the City of Euless. The principal attack made on the validity of the ordinances is that power to enact them was precluded by Sec. 7, Art. 970a, Vernon’s Texas Civil Statutes (Acts 1963, 58th Leg., p. 447, ch. 160), the Municipal Annexation Act.

The provisions of the statute relevant to the question before us are as follows:

“Sec. 7. A. * * *
“B. A city may annex in any one calendar year only territory equivalent in size to ten per cent (10%) of the total corporate area of such city as of the first day of that calendar year. In computing the total amount of territory which may be annexed in any one (1) calendar year, there shall be excluded from such ten per cent (10%) the following: (1) territory caused to be annexed by a request of a majority of the qualified resident voters in the territory and the owners of fifty per cent (50%) or more of the land in the territory, (2) territory annexed which is owned by the city, the county, the State, or the Federal Government which is used for a public purpose, (3) territory annexed at the request of a majority of the voters residing in such territory, and (4) territory annexed at the request of the owner or owners thereof.
«Q * * *
“D. All annexation proceedings by cities which are pending on or instituted after March 15, 1963, shall be subject to the limitations as to size and extent of area imposed by this Act and shall be brought to completion within ninety (90) days after the effective date of this Act or be null and void. * * * ”

Plaintiffs alleged in their trial court petition that each of the ordinances purported to annex an area which, together with the other areas annexed during the calendar year 1963, included territory in excess of ten (10%) per cent of the total corporate area of the City of Euless on the 1st day of January, 1963. The City’s plea in abatement asserted that a challenge of the validity of the ordinances could only be made in the name of the State of Texas in a quo warranto proceeding in accordance with the provisions of Art. 6253. The trial court did not rule on the plea in abatement. Instead, the trial court heard and considered the respective motions of the parties for summary judgment and, as heretofore indicated, granted the City’s motion and declared the ordinances valid. Our primary concern is whether the judgment is erroneous.

It is petitioners’ position that the limitations on area which can be annexed by a city, imposed by paragraph B of Sec. 7, Art. 970a, are by paragraph D expressly made applicable to annexation ordinances pending on March 15, 1963, and that ordinances then pending and thereafter enacted purporting to annex territory in violation of the limitations are null and void. It is the position of the City of Euless that Art. 970a, which was enacted by the Legislature on May 14, 1963, did not become effective until August 23, 1963, and that it cannot or should not be given retroactive effect. The Court of Civil Appeals held only that the statute should not be given retroactive effect. 397 S.W.2d 936-937.

While we agree with the Court of Civil Appeals’ statement that “retrospective laws are commonly regarded with disfavor,” the controlling circumstance in interpreting a law as having retrospective or only prospective effect is intention of the Legislature. This is made clear by the Court’s quotation from 53 Tex.Jur.2d 52-53, § 28, that “a statute is generally held to operate prospectively unless a contrary construction is required by the terms or by the nature and object of the law.” In Cox v. Robison, 105 Tex. 426, 150 S.W. 1149, 1156 (1912), we said: “We recognize the rule that in general Constitutions and statutes operate prospectively; but the exception is as well established as the rule that they may operate retrospectively when it is apparent that such was the intention, provided no impairment of vested rights results.”

The terms of paragraph D, Sec. 7, Art. 970a, expressly make the limitations contained in paragraph B applicable to annexation proceedings pending on March 15th. The act so providing was passed by the Legislature on May 14th. The Legislature well knew, therefore, that unless the act was given retrospective effect the provision applying the limitations to proceedings pending on March 15th was utterly meaningless. The provisions of paragraph B are so plainly made applicable to annexation proceedings pending on March 15th that there can be no doubt of legislative intent that they should be retroactive.

But City argues that to give retroactive effect to the provisions of Sec. 7 of Art. 970a violates Section 16, Art. 1, and Section 5, Art. 11, of the Constitution of Texas, Vernon’s Ann.St. Section 16, Art. 1, provides: “No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” Section 5, Art. 11, is the Home Rule Amendment to the Constitution. It both grants and limits the powers of home rule cities. One of the limitations on the grant of powers is that “no charter or any ordinance passed under said charter shall contain any provision inconsistent with * * * the general laws enacted by the Legislature of this State.”

Section 16, Art. 1, prohibits the making of retroactive laws in so far as they destroy or impair vested rights. The Legislature cannot by retroactive legislation applicable to municipal corporations destroy or impair vested rights which persons have acquired in their relationships with the municipal corporations. Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716 (1950); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887); but Municipal Corporations do not acquire vested rights against the State. Blessing v. City of Galveston, 42 Tex. 641, 657-658 (1875); Dallas County Water Control, etc. v. City of Dallas, 149 Tex. 362, 233 S.W.2d 291, 294 (1950). In Blessing this Court declared:

“No principle of law is more clearly or firmly settled than that public or municipal corporations, established for public purposes, such as the administration of local or civil government, are not in the nature of contracts between the State and the corporation, and that their charters may be annulled and revoked at the will and pleasure of the Legislature, as it deems the public good may require * * Such corporations are the creatures of the State, made for a specific purpose, to exercise, within a prescribed limit, powers conferred upon them.
“The State may withdraw these local powers of government at pleasure, and may, through its Legislature, or other appointed channels, govern the local territory as it governs the State at large. It may enlarge or contract its powers or destroy its existence * * *.”

We hold that Section 16, Art. 1 of the Constitution did not prohibit the Legislature from making the relevant provisions of Art. 970a retroactive to annexation proceedings pending on March 15, 1963. It is immaterial that the City may have begun proceedings for annexation of the territory in controversy when there was no general law limitation on the size of areas which could be annexed; it acquired no vested right against the State to complete them. Cases cited by the City dealing with priority of territorial jurisdictional rights between municipal corporations are inap-posite.

Neither, we hold, does Section 5, Art. 11, interdict retroactive legislation affecting the power of home rule cities to annex territory. The Home Rule Amendment carefully preserved the priority of general laws enacted by the Legislature over ordinances passed by home rule cities. We find nothing in the amendment which curbs the power of the Legislature to limit the annexation powers of home rule cities; and nothing, where private rights are not involved, which curbs the power of the Legislature to impose retroactive limitations. Under the general rule quoted above from Blessing, the Legislature would have the power by general law, private rights not being involved, to detach from home rule cities all territory annexed since any given time or event; and if it may do that, it certainly had the power to provide that annexation proceedings pending on March 15, 1963, should conform to the limitations imposed by Section 7, par. B of Art. 970a. We gave effect to the time limitation imposed by Section 7, par. D by unqualifiedly refusing writ of error in Red Bird Village v. State, Tex.Civ.App., 385 S.W.2d 548 (1965), and there is no less reason for giving effect to the size limitation. No case cited by the City requires a different holding.

The principal authorities relied on by the City to support their argument that the Home Rule Amendment precludes legislative action interfering with the right of home rule cities to annex territory are Vincent v. State, Tex.Com.App., 235 S.W. 1084 (1921) and Eastham v. Steinhagen, 111 Tex. 597, 243 S.W. 457 (1922). Neither supports the argument. In Vincent this Court held only that following adoption of the Home Rule Amendment, the Legislature had no power by special law passed in violation of Sec. 56, Art. 3 of the Constitution to nullify a charter adopted by the people of Plainview pursuant to power granted by the Amendment and to grant a charter in lieu thereof by legislative act. In Eastham it was held that “The home rule amendment and the enabling act” transferred to home rule cities and their qualified voters “the same power which the Legislature had theretofore possessed to change territorial boundaries * * *; ” it was not held that the Legislature had no power to change the enabling act or to make the change retroactive.

Finally, citing Missouri, K. & T. Ry. Co. of Texas v. State, 100 Tex. 420, 100 S.W. 766 (1907) and Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716 (1950), the City contends that Art. 970a cannot be held retroactive to June 14th because the City cannot be charged with notice of its provisions until it became effective on August 23rd. To answer the argument we need only call attention to the fact that both of the cited cases dealt with private rights.

We have called attention to the fact that the trial court did not rule on the City’s plea in abatement. In due and logical order the plea should have been disposed of before the motions for summary judgment on the merits of the case were considered and heard. For, if the plaintiffs had no right to prosecute the suit, the merits of the case should never have been reached. The City asserted in its motion as a separate ground for summary judgment that the suit could only be maintained in the name of the State in a quo warranto proceeding. The trial court did not grant the motion on that ground; if it had, it would have rendered judgment abating or dismissing the suit. Nevertheless, the Court of Civil Appeals considered the question and held that the plea in abatement was good. Paradoxically, instead of reversing the judgment of the trial court and ordering the case dismissed, the Court of Civil Appeals affirmed the judgment of the trial court.

From what we have held, it is obvious that the judgments of the Court of Civil Appeals and trial court must be reversed. The next question to be decided is whether under the rule of Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), we can here grant the motion for summary judgment of the plaintiffs and render judgment declaring the ordinances invalid. On the record before us, we hold that we cannot do so.

Plaintiffs pleaded that each of the ordinances purported to annex an area which, together with other areas annexed during the calendar year 1963, included territory in excess of ten (10) percent of the total corporate area of the City of Euless on the 1st day of January, 1963, but they tendered no summary judgment evidence of any kind to prove the allegation. Copies of the ordinances, properly certified, were attached to the City’s motion, but the copies do not show the area of the territory sought to be annexed, by acreage or otherwise. If we could use the field notes in the ordinances to determine the area encompassed thereby, there is no summary judgment evidence that the area does not contain territory which must be excluded under paragraph B. Finally, there is no summary judgment evidence of the total corporate area of the City of Euless on January 1, 1963; and even if we could determine the extent of the areas sought to be annexed, we could not determine whether the percentage formula of paragraph B was violated. Because of the absence of necessary summary judgment proofs, the trial court would not have been authorized to render judgment for the plaintiffs, and neither is this Court. Accordingly, we have no alternative but to remand the cause to the trial court for further proceedings.

Since the cause must be remanded to the trial court, it seems imperative for the guidance of the trial court that we consider the holding of the Court of Civil Appeals that the plaintiffs have no right to maintain and prosecute their suit. We disagree with that Court’s holding. If the territory sought to be annexed exceeds the limits prescribed by the Legislature, the ordinances are in direct violation of Art. 970a. and are declared null and void by the very terms of that statute. A taxpayer may maintain a suit challenging the validity of ordinances which are utterly void because not authorized by law or color of law. Parks v. West, 102 Tex. 11, 111 S.W. 726 (1908). And see, City of Irving v. Callaway, Tex.Civ.App., 363 S.W.2d 832 (1962), writ refused, n. r. e.

The judgments of the courts below are reversed and the cause is remanded to the trial court for further proceedings in accordance with this opinion.

      . Emphasis ours unless otherwise indicated.


source: Caselaw Access Project

author: POPE, Justice.

license: Public Domain

text:
    The GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Petitioner, v. Wilbur Jack SCOTT, Respondent.
    No. A-11246.
    Supreme Court of Texas.
    June 29, 1966.
    Rehearing Denied July 20, 1966.
    Locke, Purnell, Boren, Laney & Neely, Larry M. Lesh, with above firm, Dallas, for petitioner.
    Earl Luna, Dallas, for respondent.
   POPE, Justice.

The question presented by this appeal is whether the Devereaux Foundation of Victoria, Texas, is a hospital as that term is defined in a major medical expense policy issued to plaintiff, Wilbur Jack Scott, by The Guardian Life Insurance Company of America. Guardian moved for a summary judgment because the Foundation was not a hospital, within the policy definition; and the trial court granted the motion. The Court of Civil Appeals reversed that judgment and remanded the case for trial. 397 S.W.2d 463. We reverse the judgment of the intermediate court and affirm the judgment of the trial court.

Guardian issued a major medical expense policy to Wilbur Jack Scott in February 1955. In September 1962, Scott’s fourteen-year-old son was confined as a patient at the Devereaux Foundation of Victoria for treatment of a nervous disorder and is still a patient at that institution. The Foundation has made a monthly charge of $450.00 for its services and treatment. Guardian urged in its motion for summary judgment that the Devereaux Foundation did not fall within the policy requirement that the patient must be confined in a hospital as that term was defined in the policy. The pertinent policy provisions are:

“Charges Not Covered. * * * The Company will not pay any benefits for any of the following charges, nor may they be applied to the satisfaction of the applicable deductible amount. * * * 4. Charges for the care or treatment of mental or nervous disorders, except such charges incurred while the covered person on whose behalf they are incurred is confined in a hospital. * * * ”
“General Definitions. * * * HOSPITAL means a legally constituted and operated institution which has organized facilities for the care and treatment of sick and injured people on an in-patient basis, including facilities for diagnosis and major surgery, twenty-four hour nursing service, and medical supervision. ‡ * * »

The policy defines a hospital as an institution which, among other requirements, “has facilities * * * including facilities for diagnosis and major surgery.” There was no dispute in the showing at the summary judgment hearing that there are no facilities for X-ray, laboratory work, or major surgery at the Devereaux Foundation. The policy states that charges for care and treatment of mental or nervous disorders are not covered except while the covered persons are confined in a hospital, which must have those diagnostic and surgical facilities. The Foundation’s administrator stated in his deposition that the Foundation had access to the facilities of one or more Victoria hospitals with which the Foundation’s doctors were associated. That does not satisfy the policy definition for a hospital.

The Devereaux Foundation under the policy is the institution which must provide the in-patient care and treatment and have the facilities described. Terms used in an insurance contract are given their ordinary and generally accepted meaning unless the policy shows the words were meant in a technical or different sense. Western Reserve Life Insurance Company v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953). A policy which provides coverage only if it “has” stated facilities does not mean that there is coverage if it “has access” to such facilities in another institution at a different place. The word “have,” or “has”) which is the third person singular present indicative of the same word, means to hold in possession or control, to hold, to own. Black, Law Dictionary (4th ed. 1951); 39 C.J.S. p. 781; Webster, Third New International Dictionary (1961); 19 Words and Phrases 82.

Plaintiff Scott relies upon Travelers Insurance Company v. Esposito, 171 So.2d 177, (Fla.Ct.App.1965). That case also concerned a claim for medical expenses incurred by a patient of the Devereaux Foundation of Victoria. The court held that the Foundation was a hospital within the meaning of the term as defined by the policy. The opinion is fully quoted in the opinion of the Court of Civil Appeals, cited above. The term “hospital” as used in the Florida policy was defined differently and less strictly than in Guardian’s policy. It is our opinion that the policy in this case is unambiguous; and the undisputed facts show that the Foundation does not fall within the term, “hospital,” as defined by the policy.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    TRANSAMERICA INSURANCE COMPANY, Appellant, v. TEXAS WARRANT COMPANY, Appellee.
    No. 11421.
    Court of Civil Appeals of Texas. Austin.
    June 22, 1966.
    Rehearing Denied July 13, 1966.
    Wiley & Thornton, Dayton G. Wiley, P. Sam Gross, Jr., Allen Lewin Plunkett, San Antonio, for appellant.
    Kuykendall & Kuykendall, A. T. Mullins, Austin, for appellee.
   ARCHER, Chief Justice.

This suit was filed by Transamerica Insurance Company, as surety for Jack Collins Construction Company, to recover the balance of the contract price on a State construction project it bonded. The contract balance which it seeks to recover was allegedly paid to Texas Warrant Company, an assignee of such bonded contractor, instead of to said contractor’s surety. Facts were developed by stipulations and affidavits, and both parties moved for a summary judgment. The trial court rendered judgment for Texas Warrant Company and Transamerica Insurance duly perfected this appeal.

The appeal is based on three points and are that the court erred in granting the summary judgment because the subrogation rights of a contractor’s surety on a performance bond are superior to those of an assignee of the contractor, because when a contractor defaults, his surety has an independent right to have the contract monies applied toward payment of debts incurred, as such monies are trust funds dedicated to the completion of the contract and the payment of labor and material bills, and the assignment to appellee fails to comply with the provisions of Article 260-1, Vernon’s Ann.Civ.St, and the appellant had a protected assignment under Article 260-1, V. A.C.S.

On March 18, 1963, Jack Collins Construction Company, Inc., entered into a contract for the improvement of Inks Lake State Park, Buccanan, Burnet County, Texas. American Surety Company, the predecessor in interest of Transamerica Insurance Company, was surety on the performance and payment bonds executed by the contractor in the penal sum of $66,-632.00. By July 31,1963, the contractor had defaulted in the payment of a number of labor and material bills, and as early as August 7, 1963 a claimant who had furnished labor and material to the project, notified the contractor, the surety, and the State of the default of the contractor in the payment of his statement for such labor and material. The ultimate direct loss on the payment bond and the performance bond was stipulated to amount to $23,530.22.

On December 26, 1962, as an inducement to the surety to execute said bonds the contractor executed and delivered to the surety an indemnity agreement assigning the contract monies, and said surety in reliance upon said assignment and its rights in and to said contract monies executed the bonds upon which it was subsequently required to expend at least the sum of $23,-530.22. Thereafter, on August 16, 1963 the contractor also assigned the amount of $9,135.00 out of the $9,750.61 balance then “due” said contractor on the Inks Lake State Park Project to appellee. That assignment was filed with the County Clerk of Travis County on August 28, 1963, with the County Clerk of Burnet County on August 30, 1963, and with the County Clerk of McLennan County on September 6, 1963.

On August 30, 1963 the contractor executed another assignment to its said surety by which it again assigned all then existing accounts receivable due or to become due the contractor, which assignment gave a. legal description of the land as required by Article 260-1, V.A.C.S., and recorded same with the County Clerk of Travis. County on September 3, 1963, with the County Clerk of Burnet County on September 5, 1963, and the County Clerk of Mc-Lennan County on September 5, 1965.

On August 30, 1963, the contractor wrote a letter of direction by which it directed the State of Texas to pay all remaining contract monies to its surety.

The State of Texas on or about September 10, 1963, paid the sum of $9,750.61 to-Texas Warrant Company, although Texas. Warrant Company’s assignment was for only $9,135.00. The excess of $615.61 was; subsequently paid by Texas Warrant Company to the Internal Revenue Service.

Appellee takes the position that the judgment granting its motion for summary judgment was correct, because the subrogation, rights of a contractor’s surety are inferior to the holder of its assignment under the provisions of Article 260-1, V.A.C.S., and that its assignment complied with Article 260-1, V.A.C.S. and was recorded as required in the several counties, and its assignment is superior to that of appellant.

We believe that the judgment of the trial court was proper tinder the provisions of Article 260-1.

Article 260-1 was originally enacted in 1945 and has been amended on occasions and finally in 1957 the Legislature, Acts 1957, 55th Leg., p. 818, ch. 348, amended Section 1(1) of Article 260-1.

The caption of the 1957 Act reads:

“An act * * * so as to change the definition of ‘account’ or ‘account receivable’ by deleting provisions excluding sums accruing to a contractor who has furnished a surety bond; and declaring an emergency.”

The emergency clause of the 1957 Act recites:

“The fact that the present definition of ‘account’ or ‘account receivable’ prevents contractors from obtaining interim financing by pledging accounts receivable, resulting in serious impediment to the financing of construction projects creates an emergency * *

It appears that the amended Act shows that the intent of the Legislature was to encourage interim financing by eliminating the preference held by ⅛⅛ surety companies under the 1955 amendment.

The assignment to appellee is in substantial compliance with the provisions of Article 260-1 in the description as to the name, mailing address, residence, principal office of assignor and assignee, etc. The description of the land is sufficient in this instance where the assignment in part is: “ * * * does hereby SELL, ASSIGN and TRANSFER to the said Texas Warrant Company the sum of Nine Thousand Seven Hundred Fifty and Sixty-one/100 ($9,750.61) Dollars, now due to said Jack Collins Construction Company, Inc. from the State of Texas for work performed on State Project No. 63-037, Inks Lake State Park, payable out of Fund No. 1, Appropriation No. 312288, * * *»

The assignment gives fair notice to the public.

Tezel and Cotter et al. v. Roark, Tex.Civ.App., 301 S.W.2d 179, error ref.

The judgment of the trial court is affirmed.

Affirmed.


author: BARROW, Justice.

text:
    TEXAS OIL & GAS CORPORATION et al., Appellants, v. Juan M. VELA et al., Appellees.
    No. 14479.
    Court of Civil Appeals of Texas. San Antonio.
    June 8, 1966.
    Rehearing Denied July 20, 1966.

      Geary, Brice & Lewis, W. S. Barron, Jr., Turner, Atwood, Meer & Francis, Dean Carlton, Dallas, G. C. Mann, Laredo, Robert R. Barton, Kerrville, Walter B. Morgan, Houston, for appellants.
    Bobbitt, Brite, Bobbitt & Allen, San Antonio, Mann, Cronfel &. Mann, Fansler & Fansler, Laredo, for appellees.
   BARROW, Justice.

This suit was brought by appellees Juan M. Vela and three others as lessors, hereinafter referred to as appellees Vela, under an oil and gas lease, against four groups of owners of the working interest in such lease, to recover alleged deficiencies in royalty payments, as well as additional relief on the theory that the lease premises were being drained and had not been properly developed. Appellees L. A. Nordan and Hannah D. Gaines intervened and asserted that they were owners of part of the royalty interest, and sought to recover if appellees Vela recovered.

A judgment was entered, following a non-jury trial, that: (1) appellees recover from the various owners of the working interest specified sums totaling $52,789.55 as unpaid royalties and interest, during the period each respective appellant was working the lease; (2) appellant Texas Oil & Gas Corporation drill certain protection and development wells on the lease premises or suffer cancellation of the leasehold estate beneath the Upper Queen City sand; and (3) that future royalties be paid at the market price.

On April 1, 1933, appellees Vela executed an oil and gas lease to Thor Warner and C. E. Jamison, covering 1500 acres of land in Zapata County, located in what is known as the Lopeno Field. The original lessees assigned specific portions of this acreage to various parties who have since drilled and completed six producing gas wells in the Upper Queen City sand (located at a depth of 2025 feet to 2510 feet). Appellees admit their claim is controlled by the four-year statute of limitations, and that the relevant period of ownership under consideration is from February 1, 1960, through January 31, 1964. The owners of the working interest during that period were: (1) The American-Texas Group, in which ap-pellee Hannah M. Gaines had a 25% interest, and Nordan & Co., a partnership of Claudia R. Eaves and appellee L. A. Nor-dan’s two daughters and sons-in-law, had a 25% interest; (2) the “Venture Group” comprised of the Venture Petroleum Corporation and several individuals; (3) Delhi-Taylor Oil Corporation; and (4) Texas Oil & Gas Corp. (formerly known as Tex-Star Oil & Gas Corp.). While the case was pending Texas Oil & Gas Corp. acquired all working interest of this leasehold estate down to 4,000 feet.

The six wells and the working interest of the respective owners during the relevant period are as follows:

Well and Location
San Juana Vela No. 1 and No. 2 (now Lopeno No. 20 and Lopeno No. 17), in the northwest half of Block 6
San Juana Vela — Venture No. 1 (now Lopeno No. 14) in Block No. 5, Porcion 20
San Juana Vela — Venture and American-Texas No. 2 (now Lopeno No. 15) in Block 1, Porcion 20
San Juana Vela — American-Texas Group (now Lopeno No. 16) in the southwest half of Block 6, Porcion 20
Lopeno No. 25 in Block 2, Porcion 21
Ownership from February 1, 1960 through January 31, 1964
Owned by Delhi-Taylor Oil Corporation from 2-1-60 to 4-1-63, and by Texas Oil & Gas Corp. from 4 — 1—63 to 2-1-64
Owned by Venture Petroleum Corp. from 2-1-60 to 6-1-63, and by Texas Oil & Gas Corp. from 6-1-63 to 2-1-64
Owned (4 by Venture Petroleum Corp. and 1/2 by American-Texas Group from 2-1-60 to 6-1-63, and ½ by American-Texas Group from 6-1-63 to 2-1-64
Owned by American-Texas Group from 2-1-60 to 2-1-64
Completed on or about 9-1-63 and owned since such time to 2-1-64 by Texas Oil & Gas Corp.

The royalty provision of the Vela lease in question provides: “In consideration of the premises the said lessee covenants and agrees: * * * 2nd. To pay to lessor, as royalty for gas from each well where gas only is found, while the same is being sold or used off of the premises, one-eighth of the market price at the wells of the amount so sold or used, * *

The crucial issue in this case is the determination of the “market price at the wells.” The appellants had paid 2.3(S per mcf, as provided under a gas purchase contract entered into in 1935, to continue for the “life of the lease,” The trial court found the market price to be 16.047(1, less a compression charge of 3(⅞ per mcf. Judgment was accordingly entered against the respective owners of the working interest for the difference between the market price of 13.047(1 and 2.3(1, for all gas sold from each Vela well during the relevant •period, with interest at the rate of 6% per annum from the dates the gas was sold. After the trial, but before the judgment was entered, a compromise settlement was entered into between all appellees and the “Venture Group” and no appeal has been perfected in their behalf.

Appellants urge that there is no evidence to support the finding of market price of 16.047(1 per mcf, or, in any event, this finding is against the overwhelming weight and great preponderance of the evidence. Briefed with these points are other points complaining of testimony relative to prices paid under other gas contracts in the Lo-peno Field, and urging that there is no evidence, or insufficient evidence, of demand for gas produced from the Vela lease at this price.

At the time gas was first discovered on the leased premises in 1934, there was no pipeline into the Lopeno Field. Nordan & Morris, a partnership composed of appellee L. A. Nordan and John Morris, deceased husband of appellee Mrs. Gaines, as Seller, entered into a contract with the United Gas Public Service Company as Buyer, dated November 20, 1934, whereby United agreed to construct a pipeline to the Lopeno Field. Such contract gave United the exclusive right to purchase on a ratable basis all gas produced from the lands in the Lopeno Field in which Nordan & Morris had the gas rights for the life of the lease. The contract price is 3½0 per mcf, which was reduced to 2.3‡ with the adoption of the Standard Gas Measurement Law, Art. 6066b, Vernon’s Ann.Civ.St., in 1949. Nor-dan & Morris subsequently entered into several gas purchase contracts with various lease owners and operators in the Lopeno Field, under similar terms, including contracts with the lessees of appellees Vela, which were entered into in 1935 and 1937.

Since 1935, royalties on all gas sold on the leased premises, as well as other leases owned by appellants and covered by Nordan & Morris gas purchase contracts, have been paid pursuant to the terms of this contract. The rights of the Buyer under these contracts have been transferred by mesne assignments to Delhi Gas Pipeline Corp., a wholly owned subsidiary of appellant Texas Oil & Gas Corp.

Prior to 1960 the only pipeline into the Lopeno Field was the one constructed by United, and it took gas only from the Queen City sands. In 1950 Wilcox production was discovered in this field at depths below 6500 feet. In December, 1960, Tennessee Gas Transmission Co. started taking deliveries by a line constructed by it, and in January, 1962, Alamo Gas Supply Co. commenced taking deliveries through a line it constructed. The Tennessee and Alamo gas purchase contracts provide for prices ranging from 13^ to 17.24{⅝ per mcf.

The royalty to be paid for gas presents a most difficult problem because of the nature of the gas sales, and has been the subject of much litigation. The Courts have recognized, and the undisputed evidence in this case confirms, that the practicalities of the gas industry require that gas be sold under long-term contracts because the pipelines must have a committed source of supply sufficient to justify financing, construction and operation. Therefore, the rules of daily sales and daily quotations have no application. Foster v. Atlantic Refining Co., 5 Cir., 329 F.2d 485; Phillips Pet. Co. v. Bynum, 5 Cir., 155 F.2d 196; Gex v. Texas Co., Tex.Civ.App., 337 S.W.2d 820, no wr. hist.

We have been cited to no Texas case and have found none, setting forth the proper rule for determination of “market price” of gas sold under a long-term contract. The Fifth Circuit Court of Appeals in Foster v. Atlantic Refining Co., supra, recently considered the complexities presented by such a controversy and passed upon many of the points presented by this appeal. It was held in Foster that since the lessors were not parties to the gas sales contract, the terms of the contract did not change the lessee’s obligation under the lease to pay the “market price.” This obligation was fixed and unambiguous, and lessee was required to carry out same, however troublesome to ascertain or financially burdensome. This authority, although not controlling in its interpretation of Texas law, is persuasive as being the only precedent on this point. The evidence of actual market price was not controverted in Foster, and that Court did not set forth a rule for determining same.

It is elemental contract law that since the lessor is not a party to the gas purchase contract entered into between lessee and a third party, he is not bound by the terms of same, if they are in conflict with lessee’s obligations under the lease. However, we must not overlook the fact that gas is only sold under long-term contracts, and that a reasonably prudent operator, in the exercise of good faith, might be required to enter into such a contract. Le Cuno Oil Co. v. Smith, Tex.Civ.App., 306 S.W.2d 190, wr. ref. n. r. e.; Siefkin, Rights of Lessor and Lessee with Respect to Sale of Gas, S. W. Legal Foundation, Fourth Institute on Oil & Gas, 181-191.

In our opinion the proper rule is that the price paid under a gas purchase contract entered into between lessee and a third party is not necessarily the “market price” as provided for in the lease. However, this price, together with the circumstances of such contract, should be considered along with' evidence of comparable sales to determine the market price.

The trial court found that the Nordan & Morris gas purchase contracts were entered into in good faith and there was no other market for the gas during the early years of the Lopeno Field. In 1957 the Fifth Circuit Court of Appeals upheld the validity of one of these contracts in a suit between the assignee of the Seller and the Buyer under such a contract. See Standard Oil Co. of Texas v. Lopeno Gas Co., 5 Cir., 240 F.2d 504. Appellees Vela were not parties to the Nordan & Morris gas purchase contracts. Further, they did not execute a division order authorizing payment in accordance with the contract price. Cf. Phillips Petroleum Co. v. Williams, 5 Cir., 158 F.2d 723; Summers, Oil & Gas, § 589.

Under the undisputed evidence, the 1935 contract price is substantially below the price being paid for gas during the years in controversy. The Alamo and Tennessee contracts executed in 1959-1962, called for a price from 130 to 17.240 per mcf. Appellants’ witness Faucett, an officer of the corporation owning the Alamo line, testified that most contracts during this period called for a price of 120 per mcf, less compression costs. The president of appellant Texas Oil & Gas Corporation admitted that, unless the contract price controlled, the market price of the Vela gas was 80 per mcf. There is no evidence that appellants were bound to sell the Vela gas for the price asserted in the purchase contracts. The trial court did not err in entering judgment for a price in excess of the contract price under the record in this case.

All parties agree that comparable sales of gas are those comparable in time, quantity, quality, and availability of marketing outlets. Phillips Petroleum Co. v. Bynum, supra. The disagreement on this appeal is whether the appellees offered sufficient evidence within this test.

Appellees’ case is based upon the testimony of their expert witness, Jack K. Baumel, whose testimony covers some 200 pages in the statement of facts. Baumel is a consultant petroleum and natural gas engineer and was formerly senior engineer of the Oil & Gas division of the Railroad Commission of Texas. He testified that he had been familiar with the Lopeno Field for many years. He had been on a retainer for a subsidiary corporation which gathered gas for the Alamo line and, in fact, testified in its behalf at a hearing before the Railroad Commission in 1963 when the Queen City sand was divided into two reservoirs. In preparation for testifying in this case, he made a study based on production of gas and sales from the Upper Queen City sand, the 2700-foot sand, and the Wilcox sand in the Lopeno Field. This study was largely based upon the State Comptroller’s records of sales.

Mr. Baumel determined the amounts of gas sold from each well in the Lopeno Field during the pertinent period, and the value received for same. By division of these sums, he arrived at an “average price” received for all gas sold during this period and testified this was the “market price.” In arriving at this “average price,” he disregarded all gas sold under the Nordan & Morris Gas Purchase Contracts, because he said they were too far out of line. The prices on the twelve wells he considered ranged from 130 to 17.240 per mcf, and the average price was 16.0470 per mcf. Since the gas from the Upper Queen City sand was of low pressure, he deducted a compression charge of 30 per mcf, and testified that 13.0470 per mcf was the market price of the Vela gas.

Appellants urge that this testimony is without weight in that the Tennessee and Alamo contracts involve vastly different factors and circumstances and do not meet the comparable test requirements. The Lopeno Field wells which are under contract to either Tennessee or Alamo, are part of “package deals” involving large gas reserves. The Tennessee contracts are under regulation of the Federal Power Commission, and Alamo involves a long-term contract with the City of San Antonio. The dedicated reserves of each amount to nearly 300 billion cubic feet. Nearly all the wells used in determining the “average price” are producers from the Wilcox formation, which produces a high pressure gas of sufficient pressure to enter a 1000-pound line without compression. Appellants point out that Baumel made no study of the Wilcox wells and the Queen City wells from the standpoint of quality of the gas. They urge that, in any event, there is no evidence of demand for the Vela gas at this price, since there is evidence Tennessee did not want it, and Alamo would only take Vela gas at a price of 10$S per mcf.

These differences were fully developed by appellants in their cross-examination of Baumel. He testified that although the Queen City sands are two-thirds depleted, there still remain estimated reserves of 50 to 60 billion cubic feet of gas, and this is sufficient to justify a market. He denied there is any difference in the quality of the Queen City and Wilcox gas, and that after allowing 30 for the expense of compression, the difference in pressure is immaterial. The record shows that appellants’ gas is committed to a contract with Central Power & Light Co., at Laredo, and the terms of this contract with appellants’ subsidiary corporation were not introduced in evidence.

The trial court did not err in considering the sales under the Tennessee and Alamo contracts. Few, if any, sales will be based upon identical facts. As long as the sales are substantially the same in time, quantity, quality and availability of marketing outlets and the differences are shown, they are admissible. The testimony of Baumel met this test.

The “average price” method used by Baumel in determining “market price” can not be the final answer to the difficult problem of determining market price of gas despite its simple application. For example, in this field it would lead to the result that none of the lessees of the twelve wells considered by Baumel are paying the market price. Royalty from all but three is in excess of this price. Further, if the technique of disregarding the prices paid under the contract then under consideration is followed, this would result in a different “average price” for each contract in the field. However, Baumel’s average price of 13.047^ was corroborated, in that sales from two Upper Queen City wells were based on prices of 14.0780 and 13.000. It was his testimony that these prices were net and included all gathering and compression .charges.

To contradict this evidence, testimony was offered by appellants as to the prices paid for gas from Queen City wells in Zapata and Starr Counties located in fields near the Lopeno Field. The production from the sixteen wells so considered was sold at prices ranging from 6.75$ per mcf to 12$ per mcf, with an average price of 9.44$ per mcf.

It is our opinion that the testimony of Baumel, when weighed under the no evidence test, is evidence more than a scintilla that the market price of the Vela gas during the pertinent period was 13.047$ per mcf. Furthermore, after an examination of the entire record, it is seen that although the market price of this gas is near the maximum price paid for any Queen City sand production, it is within the range of comparable sales during the pertinent period. Therefore, we cannot say that the trial court abused its discretion, as the trier of facts in this case, in finding the market price of 13.047⅜⅜ per mcf.

Appellants urge that appellees ratified the acts of appellants in selling the gas under the gas purchase contracts by accepting and retaining without complaint their royalties paid for many years on that basis. A similar contention, insofar as appellees Vela are concerned, was rejected in Foster v. Atlantic Refining Co., supra. The reasons given for this holding are valid and are applicable to the appellees Vela. Ap-pellees Vela did not ratify the act of appellants in selling the royalty gas for less than the prevailing market price by accepting the sums paid by appellants.

A more difficult question is presented as to appellees Nordan and Mrs. Gaines. Nor-dan & Morris entered into the Gas Purchase Contracts as Buyers with lessees, under the terms of which the Vela gas had been purchased for 2.3$ per mcf. Portions of the Vela lease premises were formerly owned by the American Texas Oil Co., which entered into a gas purchase contract with Nordan & Morris dated January 17, 1935. In 1941, this corporation was dissolved and the properties were conveyed to the individual stockholders in proportion to their interests. Such conveyances are shown by assignments executed by appellee Nordan as surviving President and Director of the Company, and by Mrs. John G. Morris (now appellee Hannah D. Gaines) as surviving Director and as Liquidating Trustee thereof. All assignments expressly ratified and confirmed the gas purchase contract.

Mrs. Gaines thereby received a 25% interest in the American-Texas Group. By virtue of these circumstances, Mrs. Gaines is placed in the position of being both plaintiff and defendant and of taking a judgment against herself. Nordan Company, composed in part of the children of L. A. Nordan, received a 25% interest. Mr. Nor-dan, although not shown to own any interest in Nordan Company, apparently remained in an executive capacity with same, in that all correspondence to this company is addressed to him. Nordan & Morris retained the rights of Buyer under the gas purchase contracts with the lease operators until the year 1950, when they sold their rights thereunder to Joe C. Palmer. These rights were subsequently acquired by Delhi-Taylor Pipeline Corp. in 1963.

Neither Nordan nor Mrs. Gaines indicated any dissatisfaction with the royalty being paid under the terms of the gas purchase contract made by them or their predecessors in title, until their intervention on August 28, 1964. They are equitably estopped from tying the hands of the lease operators by entering into a contract with them and committing all gas produced from the lease premises to be sold for 2.3$ per mcf, and then, after accepting the benefits of this contract, turning around and claiming as non-participating royalty owners that they are entitled to be paid on the basis of 13.047$ per mcf. Theriot v. Smith, Tex.Civ.App., 263 S.W.2d 181; 31 C.J.S. Estoppel § 108; 22 Tex.Jur.2d, Estoppel, § 11.

The trial court erred in entering judgment for appelleés Nordan and Mrs. Gaines for any sums accruing prior to their complaint to appellants of their payment for gas in accordance with the original purchase contracts. Appellants’ points complaining of lack of pleadings and evidence to support a judgment for appellees Nordan and Mrs. Gaines are therefore immaterial and will not he discussed.

The trial court properly awarded appel-lees Vela judgment for the difference between the royalties paid for the gas sold and the amount owed when the royalties are computed under the “market price,” together with interest on said sum from their respective dates of sale. Appellees concede that the four-year statute of limitations applies to this claim. Appellees Vela, as well as appellees Nordan and Mrs. Gaines, have filed a remittitur in this Court, in which they agree that appellant Delhi-Taylor’s points that the judgment includes some items barred by limitations are well taken. The judgment must be reformed to reflect this remittitur filed by appellees Vela.

Insofar as the judgment against the American-Texas group is concerned, complaint is made that the judgment is taken against all parties jointly and severally, whereas each of the parties thereto owns an undivided interest in the leasehold interest formerly owned by the American-Texas Oil Company. These interests vary from the 25% interest owned by Mrs. Gaines and Nordan & Company, to a 5% interest owned by C. A. Reiter. Appellants urge that the judgment against these parties should be taken severally in accordance with the interest of each.

Appellees say the judgment is proper, in that the parties operated as a mining partnership. There were no pleadings of a mining partnership and no finding of same by the trial court. The record does not establish a mining partnership as a matter of law. The record shows only that the parties had a joint ownership of this leasehold interest. There are no facts in the record to show how the leasehold was operated.

In Rucks v. Burch, 138 Tex. 79, 156 S.W.2d 975 (1941), the applicable rule is set forth: “It is settled as a law of this State that in order to constitute a mining partnership arising by operation of law there must not be only joint interest in the mining property but joint operation thereof as well. Joint ownership without joint operation merely constitutes cotenancy. To constitute a mining partnership it is essential that there be an actual working of the mine by the partnership.” See also Templeton v. Wolverton, 142 Tex. 422, 179 S.W. 2d 252 (1944). The judgment insofar as the American-Texas Group is concerned must be reformed to provide for several liability of each of the parties thereto in accordance with- the respective interest of each during the pertinent period.

Appellees Vela prayed for and were granted a declaratory judgment that all gas taken would be paid for at the prevailing market price rather than at the contract price. An adjudication was not sought or granted as to what value would be paid for the gas. This declaration was proper in view of what has been heretofore said relative to “market price.” The trial court improperly granted said adjudication from date of filing of suit in lieu of date of judgment, in that there is no evidence as to market price of gas between February, 1964, when suit was filed, and November, 1965, the date of judgment. All such evidence was kept out by repeated objections of ap-pellees Vela. This declaratory judgment must be reformed to provide that appellees shall be paid by appellants for all gas sold after date of judgment at the prevailing market price.

The Queen City formation in the Lopeno Field consists of a series of sands located at depths from approximately. 2,000 to 2,700 feet. Prior to December, 1963, all of these sands were treated and produced as one reservoir. At this time the Railroad Commission on application of appellant Texas Oil & Gas Corp., established as separate reservoirs the Upper Queen City sand, encountered at depths of 2,025 to 2,510 feet, and the Queen City 2,700-foot sand encountered at depths of 2680 to 2753 feet. It is undisputed that there are 524.5 productive acres of 2,700-foot sand underlying the Vela leasehold, containing substantial gas reserves. Three wells have been drilled and completed in this sand, although two were plugged by Texas Oil & Gas Corp. in 1963. The other, owned by appellant Texas Oil & Gas Corp., the Lopeno 19, is a direct offset to the Vela acreage, and it is undisputed that drainage has occurred in the 2,700-foot sand from beneath the Vela lands.

In their second amended petition filed on February 12, 1965, appellees sought to recover damages for drainage of the 2,700-foot sand under the leasehold premises, and further sought a conditional decree requiring appellants to develop and produce these sands to their full extent, or that the lease be cancelled as to all depths below present producing sands. The trial court denied any recovery of damages based on drainage because of appellees’ failure to give written notice of such breach, as provided by the terms of said lease. It found, however, that a reasonably prudent operator would have drilled and completed protection wells on appellees’ lands in this known producing reservoir. A conditional decree was entered requiring appellant Texas Oil & Gas Corp. to protect appellees’ lands from future drainage, and for reasonable development to drill two wells in accordance with certain timetables set forth in the judgment. In the event of appellants’ failure to perform or obey these conditions within 150 days from date of judgment, it was provided that the lease would be cancelled and terminated as to all depths beneath the Upper Queen City sand. Appellees concede that this judgment should be reformed to provide for cancellation beneath the Queen City sands and above 4,000 feet, in that these appellants do not own below this depth.

The lessee in an oil and gas lease assumes a number of implied obligations to the lessor with reference to the operation and development of the leasehold premises, in the absence of express provisions relieving the lessee of these obligations, including the covenants to develop the premises with reasonable diligence and to protect the premises against drainage by using reasonable diligence in drilling offset wells. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 79 A.L.R.2d 774 (1964); Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929); Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 60 A.L.R. 936 (1928); Walker, Property Interests Created by Lease, 11 Tex.Law Rev. 399.

Appellants urge that there has been no drainage in that the two reservoirs have been in communication with each other, and that the gas from one reservoir can migrate to the other reservoir by means of an open well completion. This was denied by appellees’ witness Baumel, and his testimony was corroborated by the physical fact the the pressures in the two reservoirs are different. Baumel testified that appel-lees had been damaged by drainage up to the time of trial in the amount of $8,797.94.

Appellants complain of the relief granted appellees for this breach of lessee’s implied covenants to properly develop the 2,700-foot sand and to protect lessor from drainage. By cross-point, appellees complain of the trial court’s denying them any recovery of damages for past drainage. The lease contains a clause which provides, in essence, that as a condition precedent to any action lessor is required to notify lessee in writing, setting out specifically in what respects lessee had not complied with its express and implied obligations, and that no suit shall be brought until the lapse of sixty days after such notice. There was evidence of numerous complaints of failure to protect against drainage from the Upper Queen City sands, but the first complaint as to the 2,700-foot sand was made in the amended petition which was filed in February, 1965.

The trial court properly denied recovery for the drainage which occurred prior to this complaint as required under the express terms of the lease. Kinnear v. Scurlock Oil Co., Tex.Civ.App., 334 S.W.2d 521, wr. ref. n. r. e.; Andretta v. West, Tex.Civ.App., 318 S.W.2d 768, wr. ref. n. r. e.; Burnett v. R. Lacy, Inc., Tex.Civ.App., 293 S.W.2d 674, wr. ref. n. r. e. See also, Billeaud Planters, Inc. v. Union Oil Co. of California, 245 F.2d 14 (5th Cir.). In General Crude Oil Co. v. Harris, Tex.Civ.App., 101 S.W.2d 1098, wr. dism., which was an opinion by the same Court which later decided Andretta and Burnett, it is said that failure to give notice in accordance with the terms of the lease applies only to suits for cancellation and does not apply to suits for damages. It is seen, however, that the Court further found that the notice given by lessors to lessee was a substantial compliance with the provisions in the lease for notice, except that it was not in writing.

Under the clear and unambiguous terms of the lease, appellees were required as a prerequisite to the recovery for breach of implied covenants “to notify lessee in writing, setting out specifically in what respects lessee has breached this contract.” The trial court found that they did not give this notice and denied recovery of damages. Appellees’ cross-point is overruled.

The trial court found that appellees should be protected from future drainage and failure to develop the 2,700-foot sand reservoir, and entered a conditional decree requiring appellants to drill an offset well to the Lopeno No. 19, which was draining the Vela leasehold, and an additional well within the limits of this reservoir. Appellants urge the trial court' erred in entering this conditional decree in that appellees may be adequately compensated by an award of damages.

The landmark case of Waggoner Estate v. Sigler Oil Co., supra, established the applicable rule: “The usual remedy for breach of the lessee’s implied covenant for reasonable development of oil and gas is an action for damages, though, under extraordinary circumstances—where there can be no other adequate relief—a court of equity will entertain an action to cancel the lease in whole or in part.” This holding has been consistently followed by the courts of this State. See Henshaw v. Texas Natural Resources Foundation, 147 Tex. 436, 216 S.W.2d 566 (1949); Christie, Mitchell & Mitchell Co. v. Howell, Tex.Civ.App., 359 S.W.2d 658, wr. ref. n. r. e.; Ft. Worth Nat. Bank v. McLean, Tex.Civ.App., 245 S.W.2d 309, wr. ref. n. r. e.; Hart, Damages & Relief for Breach of Covenants, S.W. Legal Foundation, Seventh Oil & Gas Inst., 47; Brown, Implied Covenants, 13 S.W.L.J. 151, 171.

In Perkins v. Mitchell, 153 Tex. 368, 268 S.W.2d 907 (1954), the Supreme Court affirmed a judgment providing that a well be drilled within ninety days, with termination of the lease for failure to so perform. The jury there found that damages were impossible of ascertainment and no complaint was made of this finding. The opinion of the Supreme Court is largely devoted to the question of the uncertainty of the jury’s answers and the applicability of this type of relief is not considered.

The pleadings of appellees sought by alternative counts to recover either a conditional decree or damages of compensatory royalty for appellants’ breach of their implied covenants to prevent drainage and to develop. There was no finding by the trial court that damages could not be ascertained and we cannot say that such a finding is established as a matter of law. Very little gas is now being taken from the 2,700-foot sand in that appellants are apparently able to supply all the demand for their gas from the Upper Queen City sand, including their wells on the Vela leasehold. This record does not demonstrate “extraordinary circumstances” as a matter of law to justify the court to enter the conditional decree in lieu of damages. Since there is no finding of the amount of damages, the cause must be remanded to the trial court for determination of this sum.

Appellant Delhi-Taylor Corp. has filed a separate brief and, in addition to joining in the errors asserted by the other appellants, urges that the trial court erred in denying a jury trial although a request, together with the jury fee, was filed on April 2, before the April 12, 1965, trial, by the attorneys then representing the Jami-son Estate interest (assignees of 22½% of the interest formerly owned by American Texas Oil Co.). This interest was acquired by appellant Texas Oil & Gas Corp., shortly before the case proceeded to trial, and its attorneys represented the Jamison Estate interest at the trial. Texas Oil & Gas Corp. expressly waived a jury.

A pre-trial hearing was had on April 9, 1965, and at the conclusion of that hearing an order was entered denying the Jamison Estate request for a jury. The trial court found the parties composing the Jamison Estate interest had waived their right to a jury trial, and, further, that their application for a jury was not timely filed in accordance with Rule 216, Texas Rules of Civil Procedure, since it was not filed on appearence day, or a reasonable time thereafter, before the date set for trial. The attorney representing Delhi-Taylor was not present at this pre-trial hearing although duly notified of same. On April 12, 1965, the case was called for trial pursuant to the agreed setting made on February 23, 1965, and at this time Delhi-Taylor’s attorney announced that it was ready for trial, but did not waive the request for jury.

On February 23, 1965, this case was regularly called for trial. A jury was available at that time. A motion for continuance was filed by the Jamison Estate interests and after a full discussion, all parties present agreed to a postponement of the case until a special setting on April 12 and 13, 1965. The trial court found that all parties present agreed to this setting at a special two-day non-jury term of the court. Delhi-Taylor’s attorney admitted agreeing to the date, but could not recall agreeing to a non-jury trial. All other attorneys, including the attorney for Texas Oil & Gas Corp., recalled such an agreement. The jury for the term was then discharged and none was available on April 12. The attorney representing the Jamison Estate interests was not present at the February 23rd hearing, but the attorney representing Texas Oil & Gas Corp., announced that it was in the process of acquiring the Jamison Estate interests. The trial court further found in its order of April 9, that a jury was unavailable on the 12th, and that to grant a jury trial would interfere with and impede the handling of the court’s heavy docket, and would delay the case at least until the September term of court.

The Constitution of Texas guarantees that “[t]he right of trial by jury shall remain inviolate,” and grants to all litigants the right to a jury trial in suits of an equitable nature. Art. 1, § 15. However, a litigant must take affirmative action to avoid a waiver of his right to a jury trial. Art. 5, § 10, Vernon’s Ann.Tex. Const. Rule 216, T.R.C.P., provides the instructions for timely demand of a jury. This rule allows the demand, if not made on or before appearance day, to be made “a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance.” We have found n<? case directly in point, however, the language of this rule clearly indicates that a demand made ten days or more in advance of the trial is not necessarily within a reasonable time. McDonald, Texas Civil Practice, § 11.03.

It is seen that the jury for the term was discharged after the agreement to the non-jury trial. The trial court found that it would delay the trial until the September term in order to secure a jury after the demand was made. The 49th Judicial District is composed of three counties in addition to Zapata, and has a heavy trial docket. It is our opinion that these facts support the trial court’s conclusion that the demand was not made a reasonable time in advance of the setting. In any event, Delhi-Taylor waived its right to a jury trial at the hearing on February 23, 1965, and cannot now complain.

The judgment of the trial court is affirmed, insofar as appellees Juan M. Vela, Ernestina Vela, Carlos Vela and Emma Vela de Garcia, jointly, recover of and from Texas Oil & Gas Corp. for royalties due and unpaid; their judgment against Delhi-Taylor Oil Corporation for royalties due and unpaid is reformed to provide that they shall recover jointly the sum of $2,-853.14; their judgment against the American-Texas Group is reformed to provide that plaintiffs recover judgment severally against Hannah D. Gaines for 25%; Nor-dan & Company for 25%; Mrs. Leo G. Moss for 22i/¡% \ C. T. Jamison Estate for 22½%, and C. A. Reiter for 5% of the sum of $12,684 owed for royalties due and unpaid.

The declaratory judgment is reformed to provide that all royalties paid from date of final judgment shall be paid for on the basis of the market price.

The conditional decree provisions of the judgment are reversed, and appellees’ claim for protection for future drainage and proper development is severed, and remanded for determination of the amount of damages for breach of these implied covenants by Texas Oil & Gas Corp.

Cross-appellees L. A. Nordan and Hannah D. Gaines’ judgment against appellants Delhi-Taylor Oil Corporation, the American-Texas Group, and Texas Oil and Gas Corp., is reversed and here rendered that said parties take nothing.

The costs of this appeal are taxed one-third against appellees Vela et al., one-third against appellees Nordan and Gaines, jointly, and one-third against appellants Texas Oil & Gas Corp., Delhi-Taylor Oil Corp., and the five parties comprising the American-Texas Group.

      . Phillips Petroleum Co. v. Ochsner, 6 Cir., 146 F.2d 138 (1944); Phillips Petroleum Co. v. Record, 5 Cir., 146 F.2d 485 (1944); Phillips Petroleum Co. v. Johnson, 5 Cir., 155 F.2d 185 (1946); Phillips Petroleum Co. v. Bynum, 5 Cir., 155 F.2d 196 (1946), cert. denied, 329 U.S. 714, 67 S.Ct. 44, 91 L.Ed. 620; Shamrock Oil & Gas Corporation v. Coffee, 5 Cir., 140 F.2d 409 (1944), cert. denied, 323 U.S. 737, 65 S.Ct. 42, 89 L.Ed. 591; Phillips Petroleum Co. v. Williams, 5 Cir., 158 F.2d 723 (1946); Arkansas Natural Gas Co. v. Sartor, 5 Cir., 78 F.2d 924 (1935); Sartor v. United Gas Public Service Co., 5 Cir., 84 F.2d 436 (1936); Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967.

      . Phillips Petroleum Co. v. Bynum, 5 Cir., 155 F.2d 196 (1946).


author: STEPHENSON, Justice.

text:
    TENNESSEE GAS TRANSMISSION COMPANY, Appellant, v. Albert B. MOORHEAD et al., Appellees.
    No. 6822.
    Court of Civil Appeals of Texas. Beaumont.
    June 2, 1966.

      J. Robert Liles, Conroe, for appellant.
    McClain & Harrell, Conroe, for appellees.
   STEPHENSON, Justice.

This is an action for damages to plaintiffs’ land because of the diversion of the West San Jacinto River by defendant from plaintiffs’ land. Trial was by jury and judgment was rendered for plaintiffs upon such jury issues. The parties will be designated here as they were in the trial court.

Plaintiffs alleged that in 1961 and 1962 defendant permanently diverted the flow of the West San Jacinto River from their 1206.32 acres tract of land by constructing an artificial channel and dam, without consent of the plaintiffs. Plaintiffs alleged this deprived plaintiffs of their riparian rights to such water causing them to lose 2361.54 feet of river frontage leaving them with no land abutting the river. Plaintiffs sought both actual and exemplary damages.

Defendant alleged that the channel was dug and dam constructed with consent from plaintiffs by written instrument dated September 10, 1949 and denied plaintiffs have been damaged.

The jury found that plaintiffs’ land had been damaged permanently in the amount of $40,000.00; that defendant did not act in good faith, honestly believing the instrument dated September 10, 1949 granted defendant the right to construct such channel and dam; that defendant acted wil-fully and with malice by the construction of the channel and dam; that defendant should pay plaintiffs $30,000.00 exemplary damages.

The pertinent portions of the written agreement dated September 10, 1949, relied upon by defendant, with defendant referred to as “First Party” and plaintiffs as “Second Party” are set out as follows :

“For and in consideration of the sum of One Hundred Twenty-Five Dollars ($125.00) Dollars, paid by First Party to Second Party, the receipt of which is hereby acknowledged, Second Party by these presents grants to First Party the right, privilege and permission to enter upon their interest in the property of Second Party hereinafter described, and at First Party’s entire expense, to open the channel of the present High Water Course of the West San Jacinto River, said High Water Course being located near the southerly end of an island made by the present channel and the old channel of said River, said Island being located North of “First Party’s” existing 24-inch pipe line, and to divert the water of said River from its existing most westerly channel to the High Water Course so opened by “First Party” on said property, which proposed channel shall be located at a distance not to exceed one hundred (100' feet east of the low water line of the present channel of the West San Jacinto River, which property is described as follows:
[Description of land omitted]
“For the same consideration Second Party agrees that First Party may, in the opening of said High Water Course, stop the flow of water in said River for such period as is necessary to open the channel of said High Water Course on Second Party’s property hereinabove described and referred to. Second Party further agrees that First Party may have the right of ingress to and egress from the land hereinabove described over and across the interest of the undersigned in and to adjoining lands of Second Party and may clear and remove all trees, un-dergrowths and other obstructions which, in the judgment of First Party, are necessary to be cleared and removed in order to open said High Water Course.
“And for the same consideration First Party agrees further that all dirt removed from channel of High Water Course in the opening thereof will be moved to the old channel which is to be changed and altered under the terms of this Agreement.
“First Party further agrees that same consideration covers all damage to timber cut or destroyed during the construction of the above mentioned channel on the above described property.”

Defendant urges first that the trial court erred in overruling its motion for in- ' structed verdict because the instrument mentioned gave defendant the right as a matter of law to construct the channel and dam. From a review of the evidence and a study of such instrument we have concluded the trial court placed the proper construction upon such instrument. This instrument clearly states that the proposed channel to be constructed should be located at a distance not to exceed 100 feet east of the low water line of the present channel. The evidence locates the present channel and also shows that after such instrument was executed in 1949 defendant performed the work provided for by cutting or widening the channel as it, existed a distance of 200 feet in an easterly direction and paid plaintiffs an additional $200.00 for moving 200 feet instead of 100 feet as provided in the instrument. The evidence also shows it was 12 years later and after a new study had been made, that defendant dug the new channel 650 feet west of the channel as it existed in 1949. From a study of the instrument in question as a whole, we have concluded it was not the intention of the parties that the river be diverted so that it would no longer abut the plaintiffs’ land. Defendant was not given written permission to cut the channel and construct the dam as the work was performed in 1961-1962. The point is overruled.

Defendant contends the trial court erred in its ruling in reference to the admissibility as evidence of the agreement dated September 10, 1949. The record shows such agreement was admitted in evidence when first offered, for the limited purpose of showing good faith on defendant’s part. Later the agreement was admitted in evidence for all purposes. At the close of all the evidence the trial court instructed the jury that such agreement could be considered only for the limited purpose of showing defendant acted in good faith. Such agreement having been plead as a defense and having been properly identified was admissible as evidence. Whether such agreement constituted a defense to plaintiffs’ cause of action was a question of law for the court to determine. The only issues submitted to the jury upon which this evidence could have any bearing were those concerning exemplary damages. The jury was permitted to consider such agreement in connection with the exemplary damages issues. We find that no harm could have been done defendant because of the court’s action in limiting the evidence. Rule 434, Texas Rules of Civil Procedure.

The trial court admitted in evidence a large rough map prepared by one of the plaintiffs showing the area generally including Conroe, Humble, Interstate 45, Highway 59, the International Airport and some subdivision along the San Jacinto River and elsewhere in the area. Defendant objected on the ground that it was hearsay inasmuch as the testimony showed the witness used some maps of the area not prepared by him. However, the witness testified that he was familiar with the information shown on the map and the size and location of the objects shown were correct and further that he had verified the distances on the ground with the speedometer on his car. This is not a boundary suit and the map in question was not used to locate specific corners of the plaintiffs’ land. No material discrepancies have been pointed out to this court which could have influenced the jury in the answers made to the special issues submitted to them. The point is overruled.

Defendant next complains of the action of the trial court in permitting a witness to testify as to comparable sales and as to the market value of plaintiffs’ land. Defendant quotes this testimony given by such witness:

“I have found many sales in the area. I have had them in my files but I have two sales that I think are good tools in arriving at a value estimate and that do have a degree of comparability, a big degree of comparability.”

There was no error on the part of the trial court to permit the witness to testify as to comparable sales even though such evidence might be hearsay, as long as the testimony of the witness shows the comparable sales are shown not for the purpose of showing the value of such other land nor the facts of such other sales, but as showing the witness used such information in arriving at the value of the plaintiffs’ land. The qualifications of the witness as an expert are not challenged and the comparability of the sales to which he testified are not challenged. The testimony was admissible to show the basis of the opinion value stated by this witness. State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L. R.2d 1207. The testimony being admissible for a specific purpose, defendant cannot complain of the failure of the trial court to limit the testimony to such specific purpose in the absence of a request by defendant for such instruction to the jury. Massie v. Hutchison, 110 Tex. 558, 222 S.W. 962. The points are overruled.

Defendant contends it was error for the trial court to refuse to submit requested special issues inquiring whether or not only a portion of plaintiffs’ land was damaged. Defendant alleged that if plaintiffs’ land had been damaged, only a small portion had been damaged, and urged that it was entitled to have its affirmative defense submitted to the jury. The plaintiffs’ pleadings treat the property involved as one tract of land and damages are alleged and sought on the entire tract of land. The evidence shows the land in question was acquired as a single tract, under one enclosure, and used by plaintiffs for grazing and growing timber as a single unit. The measure of damages in this case was properly submitted to the jury by the issues inquiring as to the difference between the market value of the entire tract of land immediately before and immediately after the construction of the channel and dam. This method of submission permitted the jury to determine whether or not only a part of plaintiffs’ land had been damaged.

Defendant’s last four points of error concern exemplary damages. It is first urged that plaintiffs’ pleadings are not sufficient. Plaintiffs alleged:

“On or about December 1961 and in to January and February, 1962, the Defendant, through its officers, employees, servants, agents and representatives, unlawfully and wrongfully, and without the consent of Plaintiffs and in violation of Plaintiffs’ rights to the use of the waters of the San Jacinto River, did change the natural and accustomed course, channel and bed of the San Jacinto River, and diverted and turned away the natural and ordinary flow of said river from the aforesaid lands owned by Plaintiffs, by construction of an artificial channel and dam. * * *
“Defendant, by its wilful and deliberate acts of creating such artificial channel and dam has diverted the entire natural flow of the San Jacinto River through the artificial channel and said waters are now flowing through the artificial channel leaving the natural watercourse and channel that abuts the above described land of Plaintiffs without a flow of surface water.
“Plaintiffs further represent to the Court and Jury that while in the process of diverting the course and flow of said river, Plaintiffs requested the Defendant to desist therefrom. Notwithstanding such request, Defendant by and through its agents, servants and employees, continued to pursue its wrongful, wanton and wilful acts * * * and by reason thereof Defendant is additionally liable to Plaintiffs in the sum of $100,000.00 for exemplary damages. * * * ”

There was no exception filed by defendant to plaintiffs’ pleading as to exemplary damages. The pleadings show defendant did the acts complained of “unlawfully and wrongfully”, also “by its wilful and deliberate acts” and “continued to pursue its wrongful, wanton and wilful acts”. Such pleadings were sufficient to raise an issue for the jury.

Special Issue No. 6-A submitted to the jury read as follows:

“Do you find from a preponderance of the evidence that the Defendant through its agents, servants, and employees acted willfully and with malice towards Plaintiffs by the construction of the dam and channel ?”

The pleadings set forth above justified the trial court in the submission of this special issue.

It is also contended that there is no evidence and insufficient evidence to support the findings of the jury as to exemplary damages and that such findings are against the great weight and preponderance of the evidence. Defendant points out that this is not a gross negligence case, and argues that there must be evidence of evil intent in a case involving an intentional doing of an act complained of, to support findings of exemplary damages. Defendant further argues that in actions involving trespass to land, that there must be both malice and evil intent to warrant the imposition of exemplary damages.

We hold the law in this state to be to the contrary, and that it is not necessary to prove an evil intent in order to recover exemplary damages. A defendant may be compelled to respond in exemplary damages if the act causing actual damages is a wrongful act done intentionally in violation of the rights of the plaintiff. Aetna Life Ins. Co. v. Love, Tex.Civ.App., 149 S.W.2d 1071. It has been said recently that exemplary damages may be awarded in addition to compensatory damages where a defendant is shown to have acted wilfully or fraudulently. Punitive damages are allowed by law by way of punishment and as an example for the good of the public. Pan American Petroleum Corp. v. Hardy, Tex.Civ.App., 370 S.W.2d 904. The jury found in this case that defendant acted wil-fully and with malice towards plaintiff. Assuming that a plaintiff must show malice to recover exemplary damages, the cases hold that it is not necessary to prove affirmative malice or ill will, as malice can be inferred from the acts and conduct of the wrongdoer. Schütz v. Morris, Tex. Civ.App., 201 S.W.2d 144.

Applying this law to the facts of this case, and in passing upon the “no evidence” points, we consider only the evidence favorable to the findings of the jury. The evidence shows that even though defendant entered into an agreement with plaintiffs in 1949 to alter the course of the West San Jacinto River, that the alteration was intended to move the channel East and that the river would still abut plaintiffs’ land. This work was actually performed following the execution of such 1949 agreement. In 1961 and 1962 with no further agreements with plaintiffs and without consent of plaintiffs, defendant determined that it was to its best interest to once again alter the course of the river. However, this time the new channel moved the course of the river away from plaintiffs’ land completely and a dam was constructed so that the river no longer could flow by plaintiffs’ land. Even though defendant contended throughout the trial that such move was made in good faith under an honest belief the instrument of 1949 gave defendant such right, the jury found to the contrary. This finding of the jury is not complained of in this court. The evidence supports the findings of the jury. Passing upon the insufficiency of the evidence points and the points contending the findings of the jury were contrary to the weight and preponderance of the evidence, we consider the entire record. We do not-conclude that such findings were manifestly wrong or unjust. All of such points are overruled.

Affirmed.


author: CADENA, Justice.

text:
    Otto A. VOGEL, Appellant, v. Martha E. VOGEL, Appellee.
    No. 14487.
    Court of Civil Appeals of Texas. San Antonio.
    June 22, 1966.

      Evans & Marshall, San Antonio, for appellant.
    Waitz, Bretz & Collins, San Antonio, for appellee.
   CADENA, Justice.

Appellant, Otto A. Vogel, seeks review, by writ of error, of a judgment rendered against him in a bill of review proceeding instituted by his former wife, Martha E. Vogel, appellee. The judgment complained of, set aside a prior judgment awarding Mr. Vogel custody of the three minor children of the parties, -and restored their custody to Mrs. Vogel.

The parties, since their divorce in June, 1960, have been involved in several suits in Texas, California and Maryland, involving the custody of the children. In December, 1964, appellee, who was then living in El Paso, had custody of the minors under the provisions of a decree rendered in one of these cases. On December 29, 1964, appellant filed cause No. F-167,374, in the 166th District Court of Bexar County, alleging changed conditions and praying that custody of the children be awarded to him. Mrs. Vogel was served with citation in El Paso.

On February 5, 1965, the Hon. Robert R. Murray, Judge of the 45th District Court of Bexar County, rendered judgment acting as Judge of the 166th District Court, in cause No. F-167,374, awarding custody of the children to appellant. This judgment recited that although Mrs. Vogel had been duly served, she had failed to appear or answer.

On March 10, 1965, after the time during which appellee could have filed a motion for new trial in cause No. F-167,374 had expired, appellant took the children.

On March 15, 1965, appellee filed her application for bill of review, cause No. F-169,133, in the 166th District Court of Bexar County, the court in which the prior judgment had been rendered. On March 17, 1965, appellant was personally served with out-of-state notice in Ohio. He filed no answer in that case, and on June 29, 1965, the Hon. Peter Michael Curry, Judge of the 166th District Court, entered judgment in favor of Mrs. Vogel in this case. This judgment set aside the judgment rendered on February 5, 1965, in cause No. F-167,374, denied Mr. Vogel’s prayer for a change of custody, and awarded custody to Mrs. Vogel. Appellant timely filed his petition for writ of error, with the required bond.

Appellant first assails the judgment below on the ground that the trial court lacked jurisdiction to entertain the bill of review, since appellee’s verified petition shows that neither appellant nor the children were residents of the State of Texas at the time of the proceedings.

The petition makes no reference to the whereabouts of appellant. However, the return of citation shows that he was served personally in Ohio. The petition does state that the children have been removed from the State of Texas.

The petition does not show that appellant was a non-resident of Texas. It, therefore, does not show on its face a lack of jurisdiction in the Texas court over the person of Mr. Vogel. If Mr. Vogel was a resident of Texas, personal service upon him without the State would be sufficient to confer jurisdiction upon the Texas court. Fernandez v. Casey, 77 Tex. 452, 14 S.W. 149 (1890); Horst v. Lightfoot, 103 Tex. 643, 132 S.W. 761; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278.

In like manner, the petition is silent concerning the domicil of the three minor children. The statement in appellee’s petition that appellant had removed the children from Texas is not an admission that such children are domiciled elsewhere. If the children were, in fact, domiciled in Texas, their temporary absence from the State would not defeat the power of a Texas court to determine matters relating to their custody. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946).

The judgment of the trial court in this case recites that it was entered after the court had heard evidence. Assuming, but not deciding, that the jurisdiction of the court below depended on findings concerning the domicil of appellant and the children, we have a situation where the jurisdiction of the court depended on the existence of certain facts. In the absence of a statement of facts, we must presume that the trial court found that the necessary jurisdictional facts existed and that such findings were supported by the evidence which the judgment recited was heard by the trial court. Nothing which could have been cured by legal evidence in the trial court can be assigned as error where the case is before us without the statement of facts. Dewees v. Hudgeons, 1 Tex. 192 (1847); Allison v. Baird Development Co., Tex.Civ.App., 292 S.W. 956, no writ.

By affidavits attached to his petition for writ of error appellant alleges that at the time appellee filed her petition for bill of review he and the children were residents of the State of Maryland. While we may consider affidavits relating to facts which affect the jurisdiction of this Court, Fitts v. Grand Lodge, Brotherhood of Railway Trainmen, Tex.Civ.App., 66 S.W.2d 434, wr.dism., we cannot consider affidavits which tend to show lack of jurisdiction in the trial court. Bingham v. Graham, Tex. Civ.App., 220 S.W. 105, no writ; Pipe Line Park Properties, Inc. v. Fraser, Tex.Civ. App., 398 S.W.2d 154, no writ.

Appellant next contends that appellee’s petition for bill of review failed to allege the necessary facts to entitle her to relief.

Appellee’s petition alleged the following facts: (1) On January 26, 1965, after she was served with citation in cause No. F-167,374, she mailed a letter, via air mail, to the 166th District Court of Be^ar County. (2) This letter, which constituted her answer to appellant’s cause of action in that suit, stated a meritorious defense and was received by the 166th District Court on or before appearance date, February 1, 1965. (3) Through accident or mistake, and without fault or negligence on the part of appellee, this letter was not filed among the papers of the case until February 16, 1965. (4) On February 5, 1965, the Honorable Robert Murray, Judge of the 45th District Court of Bexar County, Texas, acting as Judge of the 166th District Court, entered judgment in favor of appellant in cause No F-167,374. (5) This judgment which recited that appellee had failed to appear or file an answer in that proceeding, awarded custody of the children to appellant. (6) Appellee had no notice of the setting of the case for a hearing, nor did she have notice of the rendition of the judgment against her until March 10, 1965, when appellant, acting under authority of the judgment, took the children. (7) The time for filing a motion for new trial in cause No. F-167,374 expired prior to March 10, 1965. (8) Appellee’s failure to learn that the case was set for trial, or that a judgment had been rendered against her, was not due to her fault or neglect.

Appellant, relying on Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), argues that the petition is deficient because it does not allege that appellee had a meritorious defense to appellant’s suit which she was prevented from presenting by the “fraud, accident or wrongful act of the opposing party.”

Appellee does not allege that appellant was guilty of fraud or of any other wrongful act. The “mistake” or “accident” on which she relies for relief, and which the court below found to have occurred, consisted in the inadvertent misplacing of her answer by the personnel of the 166th District Court, and the resulting failure to file such answer until after judgment had been rendered against her. Her pleadings, and the recitals in the judgment of which she complains, make it apparent that Judge Murray, the judge of another court, entered judgment under the mistaken belief that no answer had been filed.

It is true that many of the decisions in this State, including Hagedorn, contain language indicating that the accident or mistake on which the complainant in bill of review proceedings relies must have resulted from the act, wrongful or innocent, of the opposing party. However, the decision by the Supreme Court in Hanks v. Rosser, 378 S.W.2d 31 (1964), makes it clear that relief is available even where there is no fraud or wrongful act of the opposing party. Here, as in Hanks,'appel-lee’s predicament is due to the acts of an official of the court in which the suit was pending in matters pertaining to his duties. If all of the other elements of a bill of review are present, a complainant is entitled to relief where the error of a court official has prevented complainant from presenting his defense. Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App., 358 S.W.2d 636, wr.ref., n.r.e.; Restatement, Judgments, § 120(b) and accompanying comment. See also 4 McDonald, Texas Civil Practice, § 18.27, p. 1495.

Nor is appellee barred by the fact that she did not seek relief by writ of error. Proof of her right to relief required the introduction of extrinsic evidence, since the bases for her claim were not reflected in the record of cause No. F-167,374. Under these circumstances, appellate review of the judgment by writ of error would have been inadequate, and her bill of review was properly entertained by the court below even though it was filed before the time for filing a petition for writ of error had expired. Gutierrez v. Cuellar, Tex.Civ.App., 236 S.W. 497, no writ.

In the absence of a statement of facts, we do not consider appellant’s points relating to insufficiency of the evidence.

The judgment of the trial court is affirmed.