author: STONE, Judge.

text:
    Clarence MITCHELL, a minor, by his father and next friend, James Mitchell, Plaintiff-Appellant, v. Carl MOSHER, Oscar O. Groff and Andrew M. Munro, Defendants-Respondents.
    No. 8006.
    Springfield Court of Appeals. Missouri.
    Jan. 30, 1962.
    James F. Koester, St. Louis, for plaintiff-appellant.
    Dearing, Richeson & Weier, Hillsboro, for defendant-respondent Carl Mosher.
    James A. Cole, Union, for defendant-respondent Oscar O. Groff.
    Breuer, Northern & Crow, Rolla, for defendant-respondent Andrew M. Munro.
   STONE, Judge.

Shortly after midnight on May 3, 1959, plaintiff was riding in a 1953 Mercury automobile then being driven by defendant Mosher in a northerly direction on Missouri State Highway No. 19 in Gasconade County, Missouri. As Mosher was passing an automobile owned by defendant Groff, also headed north but then standing partially on the right-hand or east shoulder and partially on the east edge of the paved roadway, the Mosher automobile was involved in a head-on collision with a southbound 1957 Chevrolet station wagon driven by defendant Munro. For personal injuries alleged to have been sustained in that accident, plaintiff instituted this action by the filing of, and subsequently proceeded to trial upon, his petition in which he prayed judgment against the three defendants in the sum of $75,000. At the close of all of the evidence, the court sustained defendant Groff’s separate motion for a directed verdict [Rule 72.01; Sec. 510.280]; and thereafter the jury returned a verdict for defendant Groff pursuant to the court’s direction and, upon submission as to the other defendants, a verdict in favor of plaintiff and against defendants Mosher and Munro in the sum of $2,500. Judgment having been entered in accordance with the jury’s verdict on March 13, 1961, plaintiff thereafter sought, by timely motion, a new trial on all issues as to defendant Groff and only on the issue of damages as to defendants Mosher and Munro. Rule 78.01; Sec. 510.-330. After the overruling of his motion for new trial on April 25, 1961, plaintiff in due time [Rule 82.04; Sec. 512.050] filed his notice of appeal “to the Springfield Court of Appeals from the judgment entered in behalf of the plaintiff in the Circuit Court of Crawford County entered in this action on the 25th day of April, 1961.” (All emphasis herein is ours.) We note parenthetically that, as our appellate courts have pointed out from time to time over a period of more than fifteen years, an appeal such as this necessarily is from the judgment and not from the overruling of the motion for new trial [Sec. 512.020; Terrell v. Missouri-Kansas-Texas R. Co., Mo., 303 S.W.2d 641, 649], so plaintiff must have intended to appeal from the judgment entered on March 13, 1961. Stroup v. Radican, Mo.App., 341 S.W.2d 333, 334.

Following the suggestion of plaintiff’s counsel by letter dated January 19, 1962 (without, however, any citation of authority), “that this case more than likely is erroneously lodged” in this court, we have addressed ourselves to the question of our appellate jurisdiction. As disclosed and established by plaintiff’s motion for new trial, his appeal “from the judgment entered in behalf of the plaintiff,” i. e., from the judgment against defendants Mosher and Munro in the sum of $2,500, is predicated on the contention that the verdict against those defendants was grossly inadequate. In these circumstances, it has been declared repeatedly that the general rule is that “the amount in dispute, exclusive of costs” [Art. 5, Sec. 3, Const. of 1945] is the difference between the amount prayed for and the amount of the judgment in the trial court. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 725(1); Davidson v. Schneider, Mo., 349 S.W.2d 908, 909(1); Rossomanno v. Laclede Cab Co., Mo. (banc), 328 S.W.2d 677, 679(1); Glore v. Bone, Mo., 324 S.W.2d 633, 634(1, 2) ; Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22, 24(1); Thompson v. Healzer Cartage Co., Mo., 287, S.W.2d 791, 792(1) ; Combs v. Combs, Mo., 284 S.W.2d 423, 424(1); Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, 470(1); Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 482(1). With instant plaintiff praying for $75,000 and having been awarded $2,500, the amount in dispute is $72,500, far in excess of our expanded jurisdictional limit [Sec. 477.040], and we must transfer this cause to the Supreme Court unless the general rule is inapplicable by reason of “exceptional circumstances” [Glore v. Bone, supra, 324 S.W.2d loc. cit. 634; Combs v. Combs, supra, 284 S.W.2d loc. cit. 424], such as (a)' where the record reveals that, regardless of the ad damnum in the petition, the difference between plaintiff’s recovery (if any) in the trial court and the maximum amount actually sought or recoverable under his trial theory is still within our monetary' jurisdiction [Beasle 158, 277 S.W.2d 538; Mitchell v. Southwestern Bell Tel. Co., Mo.App., 298 S.W.2d 520, 522(2); Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 151(2); Sharp Bros. Contracting Co. v. Commercial Restoration, Inc., Mo.App., 334 S.W.2d 248, 249-250(1)], or (b) where the prayer of plaintiff’s petition “is so frivolous as not to afford (the Supreme Court) any ground for jurisdiction” [Strothkamp v. St. John’s Community Bank, Inc., Mo., 329 S.W.2d 718, 720], or (c) where there is a vexing-problem involving a counterclaim. Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507, 58 A.L.R.2d 80.

In ascertaining whether there are such “exceptional circumstances,” the inquiring court is not restricted to the pleadings and the judgment [Mitchell v. Southwestern Bell Tel. Co., supra, 298 S.W.2d loc. cit. 522(1) ; Daly v. Schaefer, supra, 331 S.W.2d loc. cit. 151(1)] but, as our Supreme Court frequently has done, should pierce the shell of the pleadings, proof, record and judgment sufficiently far to determine that the proper jurisdiction of that tribunal is not infringed upon and that improper jurisdiction is not foisted upon it by design, inadvertence, or mere colorable amounts. Johnson v. Duensing, Mo. (banc), 332 S.W.2d 950, 953; Vannorsdel v. Thompson, Mo., 315 S.W.2d 121, 122; Baer v. Baer, 364 Mo. 1214, 274 S.W.2d 298, 303 (5); Lemonds v. Holmes, 360 Mo. 626, 229 S.W.2d 691, 693(6); Simmons v. Friday, 359 Mo. 812, 224 S.W.2d 90, 94(6). For, “(p)arties do not have the unbridled whimsical power to control appellate jurisdiction by a mere stroke of the pen in their pleadings.” Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539; Strothkamp v. St. John!s Community Bank, Inc., supra, 329 S.W.2d loc. cit. 720.

Recognizing that, even as our Supreme Court is fearless and faithful in decrying and shunning usurpation of power by unwarranted assumption of jurisdiction [Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539(4) ; Strothkamp v. St. John’s Community Bank, Inc., supra, 329 S.W.2d loc. cit. 721], we should be cautious and conscientious in eschewing impetuous renunciation, hasty denial or unjustified disclaimer of jurisdiction, the transcript on appeal in this case has been read in its entirety and considered carefully. As in Vogrin v. Forum Cafeterias of America, Mo.App., 301 S.W.2d 406, 409 [Id., Mo., 308 S.W.2d 617], there has been no admission or indication that plaintiff would regard as adequate or reasonable a judgment not in excess of $17,500 (i. e., no more than $15,000 in excess of the $2,500 judgment obtained against defendants Mosher and Munro). Contrast Beasley v. Athens, supra, 277 S.W.2d loc. cit. 539, and Daly v. Schaefer, supra, 331 S.W.2d loc. cit. 151. Of course, plaintiff’s counsel might, by some such concession in his appellate brief or oral argument, ticket himself and his client for another ride on the jurisdictional merry-go-round and another stop on our stoop. Compare Davis v. Ball, Mo.App., 271 S.W.2d 605; Heuer v. Ulmer, Mo., 273 S.W.2d 169; Haley v. Horwitz, Mo., 286 S.W.2d 796, 797(1). However, in the present posture of the case, we find no “exceptional circumstances” which would enable us to escape the conclusion that, for appellate jurisdictional purposes, the amount in dispute is $72,500 (i. e., the difference between $75,000, the amount prayed for, and $2,500, the amount of the judgment from which plaintiff appeals) ; and, in this situation, we have neither right nor reason to borrow trouble and delay for the litigants by anticipating that their appellate briefs or arguments might permit a contrary conclusion.

In our review of the case, we have not overlooked defendant Groff’s motion to dismiss the appeal as to him and plaintiff’s consent to the sustention of that motion because he “did not intend to appeal” from the judgment entered on the directed verdict for Groff and the latter’s “name was carried in the notice of appeal by error.” If, by his notice of appeal, plaintiff took an appeal as to Groff (which we doubt but should not and do not decide), the amount in dispute between plaintiff and defendant Groff is $75,000, the sum for which plaintiff sued, and the Supreme Court likewise has exclusive appellate jurisdiction of that matter. Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756, 757-758(1); Scaggs v. Uetrecht, Mo., 244 S.W.2d 17, 18(1). In any event, it is appropriate that disposition of defendant Groff’s motion to dismiss be reserved for the Supreme Court. See Taney County v. Addington, Mo., 304 S.W.2d 842(2).

The clerk of this court is directed to transfer this cause forthwith [Sec. 477.080], together with a copy of this order, to the clerk of the Supreme Court of Missouri.

RUARK, P. J., and McDOWELL, J., concur.

      . All references to rules are to Supreme Court Rules, V.A.M.R., and all refer-enees to statutes are to RSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: CULVER, Justice.

license: Public Domain

text:
    The UNIVERSITY OF TEXAS et al., Petitioners, v. Chester R. MORRIS, Respondent.
    No. A-8624.
    Supreme Court of Texas.
    Jan. 10, 1962.
    Rehearing Denied Feb. 14, 1962.
    Will Wilson, Atty. Gen., Lawrence Har-grove and Pat Bailey, Asst. Attys. Gen., Taylor & Taylor, Austin, for petitioner.
    Chester R. Morris, pro se.
   CULVER, Justice.

Respondent, Morris, brought this suit in damages for false imprisonment, deprivation of liberty without due process of law, libel and conspiracy against The State of Texas, The University of Texas and certain officials and employees of the Universit}'. The suit grew out of a temporary commitment of Morris to the Austin State Hospital and certain alleged related occurrences. The trial court rendered summary judgment in favor of the petitioners. The Court of Civil Appeals reformed the judgment of the trial court in one particular and affirmed it as reformed. 348 S.W.2d 644.

The petitioners assert that the Court of Civil Appeals erred in refusing to dismiss the appeal for want of jurisdiction for the reason that the same was not timely perfected.

Petitioners’ motion for summary judgment was heard before Judge Gardner of the 53rd District Court of Travis County on the 22nd day of December, 1960. He entered judgment granting the motion on the 29th day of December. It contained the recitation that Morris excepted and gave notice of appeal. On December 30th Morris filed a motion for new trial which was overruled by Judge Gardner on the same day. The motion for new trial was verified by Morris on the 27th day of December, 1960, evidencing the fact that the judge indicated in open court his decision to grant the motion for summary judgment prior to the actual entry of the judgment.

Judge Gardner’s term of office ended on the 1st day of January, 1961, and on that date he was succeeded by the Honorable Herman Jones. On the 16th day of January, 1961, Judge Jones, evidently at the request of Morris, set for hearing Morris’ motion for new trial for the 27th day of January. On the 27th day of January Morris filed a motion to set aside the order of December 30th, 1960, entered by Judge Gardner overruling respondent’s motion for new trial.

On that date, namely, the 27th day of January, 1961, Judge Jones entered the following order:

“On this 27th day of January, 1961 came on to be heard the Motion of Plaintiff Chester R. Morris, styled ‘Motion to Set Aside Purported Final Judgment’, to set aside the Court’s Order of December 30, 1960 entered by The Honorable J. Harris Gardner, Judge, which Order overruled Plaintiff’s Motion for New Trial. It appearing to the Court that such Order is entirely regular on its face, it is accordingly
“ORDERED that Plaintiff’s Motion to set aside said Order is in all things overruled and that the Court’s Order of January 16, 1961, setting a date for hearing on Plaintiff’s Motion for New Trial, is hereby set aside and held for naught, such Motion for New Trial having been overruled before Plaintiff’s request for hearing on such Motion was presented to the Court.”

Respondent then filed his affidavit in lieu of appeal bond on February 2, 1961.

Petitioners’ motion to dismiss was based on the failure of Morris to file his affidavit within 20 days after the order overruling the motion for a new trial as provided by Rule 356, Rules of Civil Procedure.

The Court of Civil Appeals held that the order of December 30, 1960, overruling Morris’ motion for new trial was arbitrary and is null and void and accordingly overruled the motion to dismiss the appeal for want of jurisdiction. We hold that the order was not null and void. Therefore, the affidavit in lieu of cost bond was not timely filed and the appeal should have been dismissed.

The Court of Civil Appeals takes the position that the action of the court in overruling the motion was arbitrary and void because the respondent was deprived of an opportunity to present his motion to the court and bases its decision on its interpretation of Rule 329b, § 4, which provides that “It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed.” The rule further provides:

“In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the [district] judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date.”

The Court of Civil Appeals holds that the rule places upon the movant for a new trial the duty “to present the same to the Court” and by the same token places the duty upon the trial judge to afford the movant an opportunity to perform that duty. As we understand this holding it would follow that a trial court must allow the movant to present his motion and is otherwise without jurisdiction to act even though as in this case nothing could be asserted in the mo-tion other than an error of law and on "which presumably all parties had been heard fully before the entry of the judgment.

Actually Morris’ complaint is predicated not on the fact that he was not afforded ■ an opportunity to present his motion, but that it was acted upon and overruled without his knowledge so that he failed to perfect his appeal by not having filed his • affidavit of inability to pay the cost within the 20 days after the motion was overruled •and this notwithstanding the fact that the deputy clerk told him on the 16th day of January that she “thought” the motion had been overruled. If he had proceeded with diligence then, he still had ample time within which to file his affidavit. There is no rule that requires that the movant be given notice of the court’s action on the ■motion for new trial.

Furthermore, in our opinion the term “to present the same to the court” does not mean that a formal presentation and hearing are required. Certainly it would not be error for the court to refuse to hold a hearing on a motion for a new trial except where it would be necessary to hear evidence upon a matter such as jury misconduct. Suppose in this case Morris had filed his affidavit on the 16th day of January when he first had reason to believe that the motion had been overruled. It could hardly be contended then that the order entered on the 30th day of December was void because Morris had not been afforded an opportunity to present his motion to the Court. On appeal he could not be heard to complain of the failure of the court to afford him an opportunity to “present” the motion or of the refusal of the court to hear him again respecting the matters of law that had been previously argued.

In our opinion the proper meaning of the word “present” as used in Rule 329b is no more than that the movant must call the motion to the court’s attention and ask for a ruling upon the same or face the possibility that the court will not act and allow the motion to be overruled by operation of law. As to whether the court will hear the movant on his motion is a matter within the discretion of the trial court when it presents solely a question of law. In this respect we approve the statement found in Texas Livestock Marketing Ass’n v. Rogers, Tex.Civ.App., 1951, wr. ref. n. r. e., 244 S.W.2d 859, 861, as follows :

“ * * ⅜ When an attorney for the party appealing files his motion or amended motion for a new trial and calls it to the attention of the trial court, and informs him that he is ready to present it for the court’s action, he has done about all that he can do. As to just when and how the motion is heard by the court is a matter addressed to the discretion of the court and one which the litigant can not control. It is true that the litigant must present the motion to the court without qualification or reservation, and if the court immediately passes on the motion he is not in a position to complain.”

To be sure the course taken by Judge Gardner in overruling the motion on the same day it was filed was unusual, yet so was the situation confronting Judge Gardner unusual. He had completed the hearing on this case during the last few days of his term of office. The judgment was entered on the 29th day of December. The case had been pending for a considerable length of time. This is the second appeal. The pleadings in this case were many and lengthy. Numerous motions were filed, including one for bill of discovery, one for change of venue, and one to consolidate causes of action. Several motions for summary judgment appear in the record, together with affidavits in support of same, the transcript comprising over 250 pages.

Before the incoming judge could pass intelligently upon the motion for a new trial he would necessarily have to review the entire record and familiarize himself with the pleadings and affidavits. Thus there would be imposed upon him an unnecessary burden of work and a repetition of the judicial functions already performed and discharged by his predecessor.

The judgment of the Court of Civil Appeals is reversed and the appeal is hereby dismissed.


author: WALKER, Justice.

text:
    SKELLY OIL COMPANY, Petitioner, v. Matthew HARRIS et ux., Respondents.
    No. A-8224.
    Supreme Court of Texas.
    Jan. 3, 1962.
    Rehearing Denied Feb. 14, 1962.
    C. E. Blodget, Tulsa, Old., Ramey, Brels-ford, Hull & Flock, Tyler, for petitioner..
    LeRoy LaSalle and Crawford Parker, Jr.,. Carthage, for respondents.
   WALKER, Justice.

In Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267, it was held that an oil and gas lease had terminated where there was no production or tender of shut-in royalty for a period of thirty-two days following the capping of a well begun before and completed after the end of the primary term. Under somewhat similar facts but different lease provisions, we hold that the lease in the present case was kept in force by production which began forty-one days after completion of a well beyond the primary term on land with which part of the leased premises was pooled.

The cause was submitted to the trial court, on an agreed statement of facts. On October 21, 1943, Matthew Harris and wife, respondents, executed and delivered to W. H. Oberthier an oil and gas lease covering-nine tracts, aggregating 550.52 acres, in Panola County. A few months later the-lease was assigned to Skelly Oil Company, petitioner. The instrument provides for a. primary term of ten years and authorizes . the lessee to pool the land described therein or any part thereof with other lands or leases in the immediate vicinity. All provisions necessary to an understanding of the contentions made by the parties are quoted in the margin with the third sentence of Paragraph 6, hereinafter referred to as the 60-day clause, set out in italics. The emphasis there and elsewhere in this opinion is supplied.

A written declaration pooling 59.59 acres covered by the lease with other land in the vicinity to constitute a 640-acre unit, designated as the Shivers-Hamilton Unit, for the production of gas, distillate and condensate was filed for record on October 5, 1953. On that date petitioner also commenced operations for drilling a well at a location in the Shivers-Hamilton Unit but not on any of the land described in the Harris lease. After clearing the drilling site, erecting a derrick, and setting up a drilling rig, petitioner began actual drilling of the well on October 17, 1953. All of the foregoing events occurred during the primary term, which expired on October 21, 1953.

The drilling operations were prosecuted continuously until November 24, 1953, when the well was completed and capped. It was then capable of producing gas- and condensate in paying quantities, but no shut-in gas royalty was ever paid or tendered. Petitioner requested and obtained an allowable from the Railroad Commission, arranged for Carthage Corporation to extend its gas gathering lines to the well, installed the necessary meters and meter stations, and negotiated a contract with Arkansas-Louisiana Gas Company for sale of the gas from this and other wells in the area. Production of gas from the well began on January 4, 1954, and has continued without interruption from that date to the present time. Sundry additional wells which were later drilled on other units that included different parts of the land covered by the lease have no bearing on the question presented for decision.

The trial court concluded that the lease had terminated on November 24, 1953, by reason of petitioner’s failure to pay shut-in royalties or otherwise maintain the lease in force on or after that date. Judgment was accordingly entered in favor of respondents, and the Court of Civil Appeals affirmed on the authority of the Reid case. 341 S.W.2d 693. As indicated above, the facts of the Reid case are similar in many respects to those here involved, but the provisions of the two leases are materially different. One of the clauses which Gulf there sought to invoke became operative upon cessation of production after expiration of the primary term. The other provided that in the event no mineral was being produced but the lessee was engaged in drilling or reworking operations at the end of the primary term, the lease would not terminate if the lessee did not allow more than the sixty days to elapse between abandonment of one well and the commencement of drilling or reworking operations on another until production was obtained. We pointed out that neither of such clauses could extend the term of the lease, because there had been no cessation of production and the well was never abandoned.

Paragraph 6 of the lease in the present case does not deal merely with cessation of production or the completion of a dry hole after expiration of the primary term. The third sentence comes into play when there is no production at the end of the primary term but drilling or reworking operations are then in progress. It stipulates that in such event the lease shall remain in force if the operations are prosecuted and result in production as therein provided. The purpose of this provision is to enable the lessee to maintain the lease by obtaining production as a result of diligent prosecution of the very operations which were in progress at the expiration of the primary term, and a precise yet quite liberal standard of diligence is prescribed. See Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311; Stanolind Oil & Gas Co. v. Newman Bros. Drilling Co., 157 Tex. 489, 305 S.W.2d 169.

Respondents contend that the 60-day clause has no further application after the lessee has completed a well capable of producing in commercial quantities. They insist that its only purpose is to prevent termination of the lease during any brief periods that may be required by the lessee to make tests, decisions and alterations in equipment in an attempt to complete the well as a producer. We are urged to say that when the operations in progress at the end of the primary term have resulted in the discovery of oil or gas in paying quantities and a well capable of commercial production has been completed, the lease can thereafter be kept in force only by actual or constructive production. Respondents recognize that the clause will maintain the lease during temporary periods of inactivity to enable the lessee to continue good faith efforts to complete either a producer or a dry hole, but they argue that when the same is read in connection with the shut-in royalty clause, it does not allow a period of sixty days after final completion of drilling operations within which to pay shut-in royalty or begin production from the well.

We do not think the lease provisions are subject to the construction urged by respondents. Under the terms of the shut-in royalty clause, the lessee may pay the stipulated amount per well per year and if such payment is made it will be considered that gas is being produced within the meaning of Paragraph 2. This does not suggest that the lessee is under a duty to make such payment, or that the shut-in royalty clause provides an exclusive method for maintaining the lease in force, when a well capable of producing in commercial quantities has been completed and capped.

As pointed out in Stanolind Oil & Gas Co. v. Newman Bros. Drilling Co., supra, the habendum clause is required by its own terms to yield to any and all other provisions which affect the duration of the lease. One of these provisions states that under the circumstances which existed at the end of the primary term in this case, the lease shall remain in force so long as operations are prosecuted with no cessation of more than sixty consecutive days. The parties also provided, in effect, that if such operations result in production, the lease shall continue in effect as long thereafter as oil, gas or other mineral is produced from the leased premises or acreage pooled therewith. Although discovery of oil or gas is mentioned several times in the first two sentences of Paragraph 6, the 60-day clause does not stipulate that the lease shall be maintained by production after the operations result in discovery of minerals or the completion of a well capable of producing.

“Cessation” is defined by Webster as “a temporary or final ceasing or discontinuance (as of action).” Webster’s Third New International Dictionary. There is nothing to indicate that the term was used in anj other sense, or that the parties were referring to a cessation occurring at any particular period in the well’s history. When the language of the 60-day clause is given its ordinary and commonly accepted meaning, it contemplates and permits either a temporary interruption or a final discontinuance of the operations in progress at the end of the primary term. If such operations result in production at a time when there has been no cessation of more than sixty consecutive days, the lease remains in force so long thereafter as production continues. The 60-day clause thus allows the lessee that period after completion of a well capable of producing within which to begin either actual or constructive production. If the work in progress at the end of the primary term results in a dry hole prior to discovery of oil, gas or other mineral, the first sentence in Paragraph 6 specifically grants the lessee sixty days within which to commence additional drilling or reworking operations. See Stanolind Oil & Gas Co. v. Newman Bros. Drilling Co., supra.

Respondents also contend that under the facts of this case the lease has terminated even though the lessee would ordinarily have sixty days after completion of a well beyond the primary term within which to begin production. Since the well was not drilled on the land described in the lease but on acreage pooled therewith, they insist that the 60-day clause has no application and that the lessee must look to and comply with the requirements of the habendum and pooling clauses if the lease is to remain in force after expiration of the primary term. In support of this argument, respondents point out that the pooling clause declares that production from pooled acreage shall be treated as if production is had from the lease hut does not state in so many words that drilling operations on pooled acreage shall have the same effect as operations conducted on land described in the lease. They also direct our attention to the commas which set off the phrase “or on acreage pooled therewith” in the 60-day clause and to the absence of such punctuation where the same phrase appears in the first sentence of Paragraph 6, and contend that the word “thereon” as used in the former refers only to the land described in the lease. We do not agree.

The second sentence of Paragraph 4 states plainly and unequivocally that except with respect to the payment of royalties on production, the entire acreage pooled into a unit shall be treated for all purposes as if it were included in the lease. Having excepted the matter of royalty payments on production from this sweeping declaration, the parties then dealt specifically with the legal consequences of production from a pooled unit and the royalties which the lessor would be entitled to receive therefrom. It seems clear to us that these provisions were not intended to limit the scope and effect of the second sentence in the paragraph as contended by respondents. From a consideration of the entire lease, the terms of the 60-day clause, and the other provisions of Paragraph 6, it is our opinion that drilling in progress at the end of the primary term on pooled acreage has the same legal effect as similar operations conducted on land described in the lease.

No mineral was being produced from the land described in the Harris lease or from acreage pooled therewith at the end of the primary term. The lessee was then engaged in drilling operations on the Shivers-Hamilton 'Unit. Such operations were prosecuted with no cessation of more than sixty consecutive days until they resulted in production, which has continued to the present time. The requirements of the 60-day clause have thus been satisfied in every particular, and under its provisions the lease is and will remain in full force and effect so long as oil, gas or other mineral is produced from the leased premises or acreage pooled therewith.

The judgments of the courts below are reversed and the cause is remanded to the district court with instructions to render judgment for petitioner.

      . “2. Subject to the other provisions herein contained, this lease shall be for a term of ten years from this date (called ‘primary term’) and as long thereafter as oil, gas or other mineral is produced from said land or land with which said land is pooled hereunder.
      “3. The royalties to be paid by Lessee are: * * * where gas from a gas well is not sold or used, Lessee may pay as Royalty $100.00 per well per year and if such payment is made it will be considered that gas is being produced within the meaning of Paragraph 2 hereof; * * *

      “4. Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease or any portion thereof with other land, lease or leases in the immediate vicinity thereof, when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said premises in compliance with the spacing rules of tiie Railroad Commission of Texas or other lawful authority, or when to do so would, in the judgment of Lessee promote the conservation of the oil and gas in and under and that may be produced from said premises. Lessee shall execute in writing an instrument identifying and describing the pooled acreage. The entire acreage so pooled into a tract or unit shall be treated, for all purposes except the payment of royalties on production from the pooled unit, as if it were included in this lease. If production is found on the pooled acreage, it shall be treated as if production is had from this lease, whether the well or wells be located on the premises covered by this lease or not. In lieu of the royalties elsewhere herein specified, lessor shall receive on production from a unit so pooled only such portion of the royalty stipulated herein as the amount of his acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.
      *****
      “6. If prior to discovery of oil, gas or other mineral on said land or on acreage pooled therewith Lessee should drill a dry hole or holes thereon, or if after discovery of oil, gas or other mineral, the production thereof should cease from any cause, this lease shall not terminate if Lessee commences additional drilling or reworking operations within 60 days thereafter or if it be within the primary term, commences or resumes the payment or tender of rentals or commences operations for drilling or reworking on or before the rental paying date next ensuing after the expiration of 60 days from date of completion of dry hole or cessation of production. If at any time subsequent to sixty (60) days prior to the beginning of the last year of the primary term and prior to the discovery of oil, gas or other mineral on said land, or on acreage pooled therewith, Lessee should drill a dry hole thereon, no rental payment or operations are necessary in order to keep the lease in force during the remainder of the primary term. If at the expiration of the primary term, oil, gas or other mineral is not being produced on said land, or on acreage pooled therewith, but Lessee is then engaged in drilling or reworking operations thereon or shall have completed a dry hole thereon loithin sixty (60) days prior to the end of the primary term, the lease shall remain in force so long as operations are prosecuted with no cessation of more than sixty (60) consecutive days, and if they result in the production of oil, gas or other mineral, so long thereafter as oil, gas or other mineral is produced from said land or acreage pooled therewith. In the event a well or wells producing oil or gas in paying quantities should be brought in on adjacent land and within one hundred fifty (150) feet of and draining the leased premises, or acreage pooled therewith, Lessee agrees to drill such offset wells as a reasonable prudent operator would drill under the same or similar circumstances.”


author: McDonald, judge.

text:
    Willie HINZE, Appellant, v. The STATE of Texas, Appellee.
    No. 33975.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Russell F. Wolters, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H„ Robertson, Jr., Asst. Dist. Atty., Houston, and Leon B. Douglas, Austin, for the State.
   McDonald, judge.

The offense is aggravated assault; the punishment, 90 days in jail.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

Counsel is to be commended for his sincere efforts in appellant’s behalf by his oral argument. As much as we would welcome the opportunity of reviewing the case, in line with the consistent holdings of this Court, we have nothing for review in the absence of a statement of facts or bills of exception. Weaver v. State, 158 Tex.Cr.R. 228, 254 S.W.2d 390, and Hankins v. State, Tex.Cr.App., 294 S.W.2d 850.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Sabino AYALA, Appellant, v. The STATE of Texas, Appellee.
    No. 34075.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    J. P. Moseley, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Gene Ater, H. D. Nicholson, Corsicana, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated ; the punishment, 6 months in jail and a fine of $50.

The evidence was undisputed that on the night in question, the appellant while operating his automobile upon McKinney Avenue, a public street in Dallas County, drove into the rear of an automobile parked on the right side of the street and caused it to in turn collide with the rear of another vehicle parked in front. Three officers, who came to the scene of the accident and observed appellant, testified that at such time he was unsteady on his feet; his speech was incoherent; that they could smell a strong odor of intoxicants coming from him and expressed their opinion that at such time he was intoxicated.

Testifying as a witness in his own behalf, appellant admitted driving his automobile on the occasion in question and stated that the cause of the collision was when the steering wheel “came loose.” Appellant testified that he had drunk no alcohol that day and denied that he was intoxicated. Appellant’s wife, upon being called as a witness, corroborated his testimony that he had not been drinking prior to the time he left home.

The jury resolved the disputed issue of intoxication against appellant and we find the evidence sufficient to sustain their verdict.

Appellant’s sole claim of error on appeal relates to certain questions propounded to him on cross-examination by State’s counsel.

On his cross-examination, appellant was asked: “In other words, the officers were mistaken when they say that you had a strong odor of intoxicating beverage coming from your mouth?” Appellant objected to the question on the ground that it was asking him to compare his testimony to that of another witness and placed him under the obligation to call “somebody a liar.” After the objection was by the court overruled, appellant answered: “Yes sir, they were mistaken.”

Thereupon counsel for the State asked: “They were mistaken when they talked about your speech being incoherent and the fact that—

Appellant again objected which objection was by the court overruled, however the record does not reflect that the question was answered by appellant.

While it is the rule, that the opinion of a witness as to the truth or falsity of other testimony may not be asked for, we do not feel that the questions propounded to appellant call for a reversal of the conviction.

There was a sharp conflict in the testimony with reference to the odor of alcohol on appellant’s breath. Appellant denied that he had been drinking. The officers testified that he had the odor of alcohol. His testimony that they were mistaken could not, under the conflicting testimony, have injured him before the jury.

In Creech v. State, Tex.Cr.App., 329 S.W.2d 290, a question propounded to an accused under similar conflicting testimony, as to whether he would say an officer was lying, was held not to be prejudicial to him.

The judgment is affirmed.

Opinion approved by the Court.


author: ARCHER, Chief Justice.

text:
    J. P. SPARR et ux., Appellants, v. Angie LONGAKER et vir, Appellees.
    No. 10920.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1962.
    Burnett & Burnett, Sinton, for appellants.
    William E. Nicholas, Sinton, for appel-lees.
   ARCHER, Chief Justice.

This is a trespass to try title suit brought by appellees as plaintiffs to a small tract of land in Portland, Texas, against appellants as defendants, and upon trial before the Court with a jury, judgment was entered for plaintiffs and it is from this judgment that the appeal is taken.

The appeal is based on eleven points and are directed to the lack of evidence to support the Court’s finding that there was no peaceable and adverse possession by defendant for any ten-year period between 1947 and the time the suit was filed, and no evidence to support the Court’s findings that the defendants failed to prove peaceable and adverse possession, occupancy, use or enjoyment of the land under the ten-year statute of limitation, or under any statute of limitation, because unsupported by the evidence ; that the findings of no adverse possession or use for any ten-year period between 1947 and the time the suit was filed because such finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust; that the finding that the defendants’ admitted failure to use and enjoy all of the land and their failure to identify the portion of the land claimed is unsupported by the evidence, and contrary to the great weight and preponderance of the evidence.

This suit involves a small tract of land that was once a part of Houston Street in Portland, San Patricio County, Texas. Prior to the incorporation of Portland the Commissioners’ Court closed a part of Houston Street on June 9, 1947.

The Court made findings of facts and conclusions of law and we believe that such findings are reasonably supported in the record.

The only contested issue in the Trial Court was the defensive claim of title by limitation under the ten-year statute.

The defendants answered by a plea of not guilty and on allegation that the plaintiffs’ cause of action, if any they had, accrued more than ten years before the commencement of the suit, but defendants did not allege any adverse possession, use and occupancy. Plaintiffs take the position that such pleading is insufficient to constitute an assertion of title under the statute and objected to the introduction of any testimony and the Court found that appellants failed to prove a limitation title and rendered judgment for the appellees. We believe the Court was justified in finding as it did in this case.

There was testimony as to appellants beginning to clear the property immediately after acquiring it from O’Daniel. Appellants did not acquire the property from anyone but did get a bill of sale from O’Daniel for a frame six-room house and outbuildings adjacent to the right of way of the S. A. Railroad.

The improvements were built almost entirely on Lots 13 and 14, Block B-7, and extended only 3 feet from the east line of Houston Street into the street. The west one half of Houston Street is the property involved in the suit. Houston Street is 80 feet wide and no improvements were ever placed on the west one half of the street.

In order to establish limitation title under the 10-year statute, the appellants’ possession must be added to a period of possession by Holmes, who did not testify that he was making any claim to the property.

As was held by the Supreme Court in Nona Mills Co. v. Wright et al., 101 Tex. 14, 102 S.W. 1118:

“To constitute adverse possession, the party occupying the land must in some way appropriate the land for some purpose to which it is adapted. Mere occupancy of land without any evidence of an intention to appropriate it will not support the statute of limitation. * * The possession to be adverse must be of that character which would notify the owner of the intention of the occupant of the land to appropriate it to his own use.”

Heard et al v. State et al, 146 Tex. 139, 204 S.W.2d 344.

The testimony of appellant J. P. Sparr as to the use, claim and possession of the property does not meet the test as set out in the cases.

The Trial Court saw the witnesses and heard the testimony and resolved the fact issues against appellant and was, we believe, justified in doing so, and we believe that the finding on disputed issues of fact are binding on a reviewing Court.

Padilla v. Texas Employers’ Insurance Association, Tex.Civ.App., 343 S.W.2d 473.

The appellants failed to identify the portion of the property which they claimed with reasonable certainty.

19 Tex.Jur.2d 422, Page v. S. J. Kelley Construction Co., Tex.Civ.App., 256 S.W.2d 595, error ref., N.R.E.; James v. Butler, Tex.Civ.App., 350 S.W.2d 376.

The judgment of the Trial Court is affirmed.

Affirmed.


author: BOYD, Justice.

text:
    Claude Henry SMITH, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 16275.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 5, 1962.
    Coleman & Whitten, and Earl L. Coleman, Denton, for appellant.
    John Lawhon, Denton, for appellee.
   BOYD, Justice.

Pursuant to the provisions of Sec. 22, sub. (b), par. 4, Article 6687b, Vernon’s Ann.Civ.St.Tex., the Texas Department of Public Safety suspended the driver’s license of Claude Henry Smith after an administrative hearing before a Justice of the Peace and a finding that Smith was an habitual violator of the traffic laws, having been convicted of five moving traffic violations in a consecutive period of 12 months. Smith appealed to the county court, which court sustained a motion for summary judgment filed by the Department, and he appeals to this court.

It was stipulated that the evidence offered on the hearing for summary judgment consisted of appellee’s motion, to which was attached what purport to be five notices of conviction of appellant for traffic violations. The trial court found that the notices attached to the motion for summary judgment were “ * * * five certified notices of conviction of moving traffic violations * * * ” by appellant, which occurred within a twelve-month period of time.

Appellant contends that since he specifically denied all of the affirmative findings made at the administrative hearing, an issue of fact was raised as to whether he was convicted of a moving traffic violation, and therefore the summary judgment was erroneous; and that the evidence was insufficient to show that he was ever convicted of a moving violation of the traffic laws.

The offenses listed in the notices of conviction were: three for “speeding”; one for “failed to stop for school bus”; and one for “traffic light”. Appellant says that neither of these transactions constitutes a violation of the law. The same contention appears to have been presented and rejected in Simmons v. Texas Department of Public Safety, Tex.Civ.App., 350 S.W.2d 212.

Another point is that since the notices of conviction were not authenticated by the Department of Public Safety, and not identified by any person, such notices were insufficient to justify the rendition of a summary judgment.

All of the notices of conviction except that for “traffic light” were certified by a Justice of the Peace. The “traffic light” notice was certified by a clerk of a corporation court. If we disregard the notice of conviction for “traffic light”, since, as was said by the court in Simmons v. Texas Department of Public Safety, supra, the failure to observe a traffic light could be committed by a pedestrian, there are four others, convictions for which would furnish support for a finding that appellant was an habitual violator in that he had been convicted of four moving traffic violations. Sec. 22, sub. (b), par. 4, Article 6687b.

The sworn motion for summary judgment stated that the offenses shown by the attached notices were moving traffic violations. Appellant’s reply to the motion was not verified and “Failure to controvert this sworn testimony in a manner recognized by Rule 166-A forestalls legitimate complaint at this time.” Simmons v. Texas Department of Public Safety, supra.

Notices of conviction have been held to be proper evidence and will support a motion for summary judgment. McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138; Whittington v. Texas Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374; Cooley v. Texas Department of Public Safety, Tex.Civ.App., 348 S.W.2d 267; Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167; Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577.

We believe that under the authorities cited the summary judgment was proper.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Leon HAYES, Appellant, v. The STATE of Texas, Appellee.
    No. 34031.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Robert E. Delany, Assts. Dist. Atty., Houston, and Leon B. Douglas, .State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is assault with intent to murder without malice; the punishment, enhanced under Art. 63 P.C. by two previous convictions for felonies less than capital, life.

The prior convictions, one for burglary and the other for assault with intent to murder without malice, were proved by certified copies of the prison records, including the judgment and sentence and fingerprints, and the indictments in said causes; and known fingerprints taken by the expert witness who compared them with the other prints offered in evidence and testified that they were prints of the same person, namely, the appellant.

Laura Davis, who lived with her mother and had been going with appellant, testified that he came to her mother’s house about 10 P.M. drunk; demanded that she return $10 which he said he gave her that morning; and said “I came to kill you.” She offered him $2.00, saying that was all he had given her, and he said “he didn’t want the $2.00 * * * he wanted $10.” Appellant jerked a pistol from his belt and fired, and she grabbed at and “throwed the gun up and I ran out the door.”

Appellant shot again as she reached the gate and she heard the bullet hit the gate. She continued running until she reached a neighbor’s house where she remained until the officers arrived.

Martha Tennison, the mother of Laura, testified that appellant told her daughter he had come to kill her and shortly thereafter pulled a pistol out of his belt and shot three times. She testified that one shot struck her in the thigh.

Other evidence showed the gunshot injury inflicted upon Martha Tennison. A statement of Laura, who was not hit, when she arrived at her neighbor’s back door in an excited condition, “Leon is trying to kill me” was admitted as res gestae.

Appellant did not testify and offered no evidence in his behalf. No brief has been filed by his counsel.

The indictment alleged an assault upon Martha Tennison with intent to kill her.

The evidence relied on by the state is sufficient to show that appellant fired the pistol with the intent to kill Laura Davis and that one of the bullets struck Martha Tennison.

The court, in his charge, instructed the jury regarding the provisions of Art. 42 P.C. and authorized a conviction upon a finding by the jury that appellant intended to kill Laura Davis by shooting her with a pistol and, in the act of preparing for or executing the same he, through mistake or accident, assaulted Martha Tennison by shooting her with a pistol.

The court did not err in overruling appellant’s objection to such submission of the case to the jury. Hodges v. State, 160 Tex.Cr.R. 579, 272 S.W.2d 902; 1 Branch’s Ann.P.C.2d 65, Sec. 70.

The informal bills of exception shown in the statement of facts have been examined and no error appears which would warrant reversal.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Christine T. HARTSFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 34112.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The State’s evidence shows that the appellant was stopped and arrested by Officers Glen A. Crews and Harry G. Moore around 2:30 P.M., while driving her automobile in the wrong lane of traffic on Broadway Street in the City of Lubbock. Both officers testified that after appellant got out of the automobile, she staggered when she walked; that she had the odor of alcohol on her breath and expressed their opinion that at such time she was drunk. Officer Miller, who went to the scene, corroborated their testimony in his description of appellant’s actions and appearance and expressed his opinion that she was intoxicated.

Testifying as a witness in her own behalf, appellant admitted driving her automobile on the occasion in question and admitted having had two drinks of vodka at 10:00 A.M., that morning. Appellant further testified that she had taken three equanil tablets during the day, two in the morning and one in the afternoon for a nervous condition. Appellant called her husband as a witness, who testified that she had a nervous condition for which she took equanil. She also called as a witness, Dr. C. B. Batson, who testified that he had treated appellant for a nervous condition. The doctor further testified that the taking of three equanil tablets between the hours stated by appellant was an overdose and might produce muscular relaxation to a degree where it might simulate alcoholism.

The jury resolved the issue of intoxication against appellant and we find the evidence sufficient to sustain their verdict.

The record contains no formal bills of exception and no brief has been filed in behalf of appellant.

The evidence offered by appellant that on the day of her arrest, she was taking medicine known as equanil, was not proof of such an independent fact as would, if accepted by the jury as true, entitle her to an acquittal and the court was not required to submit such matter to the jury as an affirmative defense. Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432 and Roescher v. State, 162 Tex.Cr.R. 335, 284 S.W.2d 908.

The court did, however, in submitting the issue of intoxication to the jury instruct them that if they believed from the evidence that appellant was under the influence of such medicine and not under the influence of intoxicating liquor or if they had a reasonable doubt thereof, to acquit her.

We find no merit in appellant’s objection to the court’s instruction on the ground that it was a comment upon the weight of the evidence and an assumption by the court that she was under the influence of intoxicating liquor.

No reversible error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Andrew NELSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34130.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.

      L. A. Bedford, Jr., Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Frank W. Watts, Harold Adams, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is unlawfully carrying a pistol; the punishment, 90 days in jail.

Officers Harper and Kirkpatrick of the Dallas police testified that they were on routine patrol on the night in question, that they stopped an automobile for making an unusually loud noise, that appellant was the driver, that they asked to see his driver’s license, that as appellant was fumbling through a folder in search of the driver’s license they asked him to step out of the automobile, that they searched appellant and found he was carrying a .38 caliber pistol in his waistband and a blackjack in his hip pocket.

Appellant, testifying in his own behalf, stated that he was employed as a cook by Wyatt cafeterias, that he worked four or five nights a week as a dance hall supervisor, that he was also employed by the Stone Rock Detective Agency, that on the night of his arrest he had been working at a dance hall and also investigating a divorce case, and that he did not know he was violating the law and had no intention of violating the law.

George Dowdy, captain of police, called by the State in rebuttal, testified that he was in charge of the Dallas Police Department identification bureau, that his bureau was in charge of licensing private detective agencies, that the Stone Rock Detective Agency was not a validly licensed detective agency at the time appellant was arrested, that his department did not authorize employees of validly licensed private detective agencies to carry pistols except on special occasions.

C. D. Asbill, a Dallas police officer, called by the State on rebuttal, testified that he was assigned to the special service bureau of the police department, that his department approved applications of dance hall supervisors but that such approval does not give the applicant any police power or authority to carry firearms.

We will discuss the contentions advanced by appellant in his brief.

The sole questions presented on appeal are the refusal of the court to permit appellant to testify that upon being employed by the detective agency the assistant supervisor told him he could carry firearms in “the'line of work” and the refusal of the court to instruct the jury that if appellant believed he had a right to carry the pistol to acquit.

Reliance is had, among other cases, upon Barnett v. State, 89 Tex.Cr.R. 45, 229 S.W. 519; Reynolds v. State, 132 Tex.Cr.R. 204, 104 S.W.2d 17; and Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573.

We have examined the authorities cited, and it is apparent from the opinion in each of them that the person who made the attempted appointment which led the accused to believe he had authority to act was in fact a de jure officer. In such cases, the accused became a de facto officer because his appointment was defective for some reason. Not so in the case at bar. The assistant supervisor, so far as this record discloses, had no authority to carry a pistol and had no authority to deputize appellant so as to authorize him to do so. Judge Henderson in Clopton v. State, Tex.Cr.App., 44 S.W. 173, said, “If the law did not give him authority to carry it, the advice of other persons that he could would not justify defendant.” In Love v. State, 32 Tex.Cr.R. 85, 22 S.W. 140, wherein the accused was acting upon the advice of a justice of the peace, this Court said he “cannot plead the opinion of the justice of the peace as a defense.” In McCallister v. State, 55 Tex.Cr.R. 392, 116 S.W. 1154, this Court said, “His belief, however honest or sincere, cannot excuse him.”

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.

WOODLEY, Presiding Judge

(concurring).

Art. 484, P.C., does not except from Art. 483, P.C., an employee of a detective agency, hence the advice of the assistant supervisor to appellant that he could lawfully carry a pistol was not a defense. 2 Branch’s Ann.P.C.2d 471, Sec. 979.

I concur in the affirmance of the conviction.


text:
    Ex parte Margaret DAVIS.
    No. 34318.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.

      Fulbright, Crooker, Freeman, Bates and Jaworski, by John H. Crooker, Houston, for relator.
    Joe H. Reynolds, Clyde W. Woody, Houston, for respondent.
   McDonald, judge.

This is an original Application for Writ of Habeas Corpus brought by relator, Margaret Davis, asking her release from the custody of C. V. (Buster) Kern, Sheriff of Harris County, respondent.

The relator alleges in her petition that she is held in confinement and restraint not by virtue of any valid warrant, writ, commitment or other process of any court, but that her confinement is based solely and alone on a purported Judgment and Order of the County Criminal Court at Law No. 2 in Harris County, wherein the judge thereof, the Honorable Billy Ragan, on December 11, 1961, held relator in contempt of court.

Relator attached to her petition as Exhibit “A” a copy of the Judgment and Order of the court holding her in contempt. Judge Ragan’s Order is fully set forth herein so that we may properly view and discuss it later on in this opinion. The Order reads as follows:

“WHEREAS, on this the 11th day of December, A. D., 1961 in Open Court in the presence of the Judge thereof, and while Court was engaged in regular business, hearing and determining causes pending before it, one Margaret Davis was guilty of disobeying an Order of the Court in the immediate view and presence of said Court as follows, to-wit:
“In that Margaret Davis has heretofore on or about the 21st day of November, A. D., 1961 was Ordered to remain outside of the rail, which area is reserved for Officers of the Court and parties of interest to pending causes, which Order was issued because of your previous and continued conduct of entering into the trial area when triaZ were in progress and going up to the table where the Attorneys sat and leafed through and inspected their files and asking questions of Attorneys within the immediate view and hearing of Juries at a time when questions were being propounded to the witnesses for the Juries’ consideration, for exhibiting within the view of Juries Offense Reports and other Reports, which had not been admitted into evidence, all of which Acts and Conduct were detrimental to the proper administration of the Court and obstructive of Justice and prejudicial to the rights of litigants involved in the trial, and BE IT REMEMBERED that on this the 11th day of December, A. D., 1961 and in the presence of the Court while the Court was in the process of conducting its business that you, Margaret Davis, did violate the Court’s Order as heretofore recited entered on the 21st day of November, 1961 by entering into that area within the rail which you had heretofore been Ordered to refrain from entering, and such act was a willful, intentional and direct disobedience of the order of this Court and constitutes a Contempt of this Court.
“NOW, THEREFORE, the said Margaret Davis now being present in Court, it is ORDERED AND ADJUDGED by this COURT that the said Margaret Davis, by reason of said act, was and is guilty of Contempt of the authority of this Court, committed in its presence on this the 11th day of December, A. D., 1961, and is ORDERED that a fine of One Hundred Dollars ($100.00) be assessed against Margaret Davis as punishment, and all costs of this proceeding, for which execution may issue, and the Clerk of this Court shall issue a Writ Commanding the Sheriff or any Constable of this Court to take the said Margaret Davis into his custody and place her in Jail in this County, and there safely keep her in Jail until said fine and costs are fully paid thereby purging herself of this contempt.
“Entered this 11th day of December, 1961.”

Relator contends that the real cause for the Order of November 21, 1961, was personal resentment toward her because of her article published a few hours earlier in the Houston Press questioning the propriety of the judge’s actions concerning his affidavit that he devoted half of his time to his insurance business.

Respondent contends:

(1) That relator was confined and restrained by virtue of an Order and Judgment, and adjudged to be in contempt of court for the reasons stated in the Order.

(2) That the Order of said County Judge dated November 21, 1961, was issued as to the relator solely because relator was the only person who had done the acts complained of and recited in said Order.

Very able counsel for both the relator and the respondent have supplied us with excellent briefs. In addition, we have had filed Amicus Curiae briefs.

By brief and oral argument, relator contends that the court’s action in holding her in contempt was based upon a void and invalid Order which is of no force and effect, that the action of the court resulted in “never-ending” term of punishment, imposed, and that the Order and Judgment were both arbitrary and capricious, and beyond the court’s power and jurisdiction; that relator was unjustly and illegally discriminated against by denying rights and privileges to her alone while freely extending such rights and privileges to all other persons of her class similarly situated. Relator further contends that undue, unreasonable and illegal restrictions on freedom of speech and of the people to have news disseminated to them as guaranteed by the Federal Constitution has resulted from the court’s action. Relator further says that the court’s Order was vague and uncertain in meaning, and utterly failed to set forth with reasonable clarity any acts done by relator constituting contempt of court.

By brief and oral argument, respondent contends, first, that this Court does not have jurisdiction for writ of habeas corpus for the reason that the relator has not alleged facts sufficient to justify this Court to exercise its jurisdiction in granting a writ of habeas corpus under a contempt decree, as she has made no showing that the civil courts have declined to pass on the legality of the confinement in question and that, under the circumstances, she is estopped to question the contempt decree. Respondent next contends that the relator has not entered into a sufficient bond, nor has she shown that she is restrained or under custody. Respondent further says that the application for the writ of habeas corpus was presented to the Court prior to the time when the relator was in custody and was therefore a premature application to this Court for the writ and that it should be dismissed.

With this statement of the nature of the proceedings and the contentions of the parties, we shall now direct our attention to the issues presented, in order to make a correct disposition of the case.

We entertain no doubt that this Court has ample authority to issue the writ of habeas corpus in almost any conceivable case. Ex parte Degener, 30 Tex.App. 566, 17 S.W. 1111. The only original jurisdiction possessed by the Court of Criminal Appeals is the issuance of the writ of habeas corpus. Ex parte McKenzie, 115 Tex.Cr.R. 315, 29 S.W.2d 771; the Constitution of Texas, Article V, Sec. 5, Vernon’s Ann.St.; Ex parte Alderete, 83 Tex.Cr.R. 358, 203 S.W. 763. Habeas corpus in a given case is entirely within this Court’s discretion. Ex parte Gould, 60 Tex.Cr.R. 442, 132 S.W. 364, 31 L.R.A., N.S., 835, and Ex parte Kemper, 86 Tex.Cr.R. 251, 216 S.W. 172.

We recognize the various holdings of our Supreme Court wherein they state that their jurisdiction in habeas corpus proceedings is limited to cases arising from contempt imposed as a result of a violation of some order, judgment or decree in a civil case. Ex parte Morris, Tex., 349 S.W.2d 99. However, in the case at bar, we have before us a habeas corpus proceeding based upon a contempt imposed by a County Criminal Court at Law, not by virtue of any violation that would come within the purview of the doctrine announced by the Supreme Court, but for a violation of a verbal order of a criminal court judge.

Respondent contends in his brief that this Court acquires jurisdiction only after there has been a proper bond executed in the court below, or if the relator is in custody. He refers to Exhibit “A”, attached to respondent’s brief, which is a part of the record in this case, and says that this Court did not acquire jurisdiction by virtue of this alleged bond. It is clear to us from the numerous authorities cited by respondent in his brief that he is complaining of the bond in the case at bar as being insufficient to support an appeal, and that he is relying upon the provisions of Articles 817 and 818, Vernon’s Ann.C.C.P. We agree with respondent that where there is an appeal, the provisions of the two aforementioned statutes governing appeal bonds would apply; his position would be well taken and the application for the writ should be dismissed for want of jurisdiction, in the absence of a recognizance or bond, substantially in the form prescribed by statute. We think, however, that in cases of this kind, where an original application is made for the writ of habeas corpus, the provisions of Article 144, V.A.C.C.P., control. This article states that when the return of the writ has been made, and the applicant brought before the court, he is no longer detained on the original warrant or process, but wider the authority of the habeas corpus. The safekeeping of the prisoner, pending the examination or hearing, is entirely under the direction and authority of the judge or court issuing the writ, or to which the return is made. He may be bailed from day to day or be remanded to the same jail whence he came, or to any other place of safekeeping under the control of the judge or court, until the case is finally determined. We think in the case at bar, where the record shows that the Presiding Judge of this Court made the application returnable before this Court on January 3, 1962, at 9:30 A.M. and set the bond at $200.00, the bond herein is controlled by the provisions of Article 144, supra. We further think that the record in this cause, in viewing the officer’s return, amply reflects that the relator was in custody until this Court granted the application and set the bond. Respondent’s contention as to the insufficiency of the bond, and his contention that the relator has not shown that she was restrained or under custody, are both overruled.

After carefully reviewing the entire record, we find that the Order entered by the trial judge on November 21, 1961, and upon which he gave reliance by subsequently holding relator in contempt on December 12, 1961, for violating it, is void. If, as relator contends, the Order directing the relator to remain outside the rail was in fact made because of personal resentment toward her, because of the article published that day concerning his affidavit that he devoted half his time to the insurance business, a judgment of contempt based upon the violation of such Order could not be upheld. But assuming that the recitals in the contempt decree are true and are not overcome by the affidavits before us, it is clearly evident to us that the Order is too vague and too general in its terms to be effective. It recites that relator was ordered on November 21, 1961, tO‘ remain outside of the rail, and that the Order was issued “because of your previous and continued conduct of entering into the trial area when trial were (sic) in progress and going up to the table where the attorneys sat.” And then it continues and recites that “all of which acts and conduct were detrimental to the proper administration of the Court and obstruction of justice.” When relator exhibited within the view of a jury an offense report which had not been introduced in evidence, as recited in the judgment, he might then have taken disciplinary measures or held her in contempt. He may not, however, overlook such conduct, wait until a later day, and then bar such person from coming within the rail because of such prior misconduct. The Order recites no dates as to any alleged previous misconduct, nor does it say how long the alleged misconduct continued, nor does it allege any act of misconduct to have been committed on the date of the entry of the Order. It clearly seems to have been an effort to punish relator for alleged past acts of misconduct, in very general terms, without in any manner apprising her of any specific act of misconduct committed on her part at any stated time. The rule is that the recitals in a judgment for contempt are presumed to be true, and the burden is upon relator to overcome such presumption. Ex parte Brewer, 156 Tex.Cr.R. 369, 242 S.W.2d 430. In order for such rule to be equitable and operative, the judgment must of necessity be so definite and specific that one held in contempt might feasibly overcome such presumption by proof. We observe that a contempt order should be almost, if not as definite and certain, in its terms, as an information or an indictment. We are not here concerned with the commission of any act or acts on the part of this relator anterior to the entry of the Order upon which the contempt was based. We do not deny the trial court the right to punish for contempt a reporter for conduct in the presence of the court which interferes with orderly proceedings in the administration of justice. We also recognize his authority to enter an order excluding all newspaper reporters and all other reporters from inside the rail of his courtroom and reserve that particular area solely for the attorneys, litigants and witnesses and court officials. We do not think, however, that a trial judge has the authority to exclude one particular individual from coming inside the rail of his courtroom and continue to allow other individuals similarly situated to come within the area encompassed by the rail. We can see no difference if a judge were to enter such an order, as was done here, excluding a member of the bar from coming inside the rail. We do think that if the order entered by respondent were allowed to stand it would constitute a deprivation of relator’s rights, that it would infringe upon due process as we understand it, as set forth in both the State and Federal Constitutions, and that it would be highly discriminatory in nature.

While freedom of speech and freedom of the press are alleged to have been impaired by the trial court’s Order in this case, we do not think that they are before us for review, except inferentially.

We voice the further opinion that the Order in question would still be void on its face without considering any of the other matters in the record in this case.

The three Judges and two Commissioners of this Court are all former District Judges of this State, and we are certainly aware of the necessity for a judge of a court to preserve order and decorum, demand respect and enforce its mandates and decrees. There can be no doubt that the judge has the right to punish for contempt, and yet this right is not given for the private advantage of the judge but to preserve that respect in regard to which the court cannot be deprived and maintain its usefulness. This protective power resides in the courts, and may be exercised when necessary to the due safeguarding of their honor and integrity; yet its exercise is in some sense the trial of a case in which the judge personally is interested, and extreme caution is required that the judge in redressing a public wrong does not also find revenge for his private grievances. It was stated in Ex parte West, 60 Tex.Cr.R. 485, 132 S.W. 339,

“No claim or privilege can be admitted for a Judge except as pertains to his official acts. * * * [Such] acts are the acts of the people imposed by them upon him, and it is their duty to defend against them or give the Judge power as an officer to do so for them.”

It is ordered that relator be released from the custody or restraint under such judgment of contempt and that same be held void.


text:
    S. M. GAINES, Appellant, v. The STATE of Texas, Appellee.
    No. 34107.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    John B. McDonald, Palestine, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

This is an appeal from the County Court where appellant was assessed a punishment of six months’ confinement in jail and a fine of $500.00 for transporting an alcoholic beverage in a dry area.

Both the appellant and the State point out to us that this appeal must be dismissed as no final judgment was ever entered of record by the County Court.

An examination of the record discloses that it does not contain a judgment of conviction.

In the absence of a judgment entered of record in the minutes of the court, the appeal must be'dismissed. Article-766, Vernon’s Ann.C.C.P.; Moore v. State, 156 Tex.Cr.R. 615, 245 S.W.2d 491. Where no judgment of conviction was found in the record, the Court of Criminal Appeals had no jurisdiction of the appeal. Fletcher v. State, 154 Tex.Cr.R. 518, 229 S.W.2d 74.

The appeal is dismissed.


text:
    Lawrence RYMER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 34021.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery with firearms; the punishment, five years in the penitentiary.

The State’s testimony reflects that Billy Joe Tyree had a knife and Venoy Willis had a gun; that they went to a grocery store in Texarkana that was operated by Mrs. A. H. Jones; that they robbed the store of some eight hundred dollars at approximately 7:30 P.M.; that appellant had at various times, as a truck driver, delivered groceries for Kimble Grocery, to the Jones store.

Frank Taylor testified that he saw two boys running from the store; that one was holding a sack and they got into a cream colored Oldsmobile that had green fender skirts; that he got part of the license number ; that he saw at least two people in the car; that both entered from the right side and the car started instantly; that, in his opinion, they did not have time to get under the wheel.

The car was stopped in Texarkana, on the Miller County, Arkansas, side of the state line, at approximately 7:45 P.M.; that appellant was driving; that the knife fell from under Tyree’s shirt; and that a pistol and the money were in the middle part of the front seat.

Billy Joe Tyree and Venoy Willis testified that they, with appellant, discussed robbing, the store; that they went to Venoy’s house and got a pistol and were in a cream colored Oldsmobile with green fender skirts; that appellant was driving; that Willis and Tyree told them in the store that it was a stickup, to put the money in a paper sack; that the appellant drove away; and that appellant surveyed the job before the robbery.

Appellant testified that he was 24 years of age, that he had nothing to do with the robbery of the Jones store, that he picked up Willis and Tyree around 7:45, that he knew one of them was the only reason he picked them up, and that he did not plan the robbery and did not help commit it.

Other witnesses, including relatives of the appellant, testified as to his alibi.

The jury answered the disputed facts against the appellant, and we find the evidence sufficient to sustain the jury’s verdict.

Appellant has not favored us with a brief.

Appellant presents three formal and several informal bills of exception.

By his first formal bill of exception, appellant complains that the trial court erred in overruling his motion for instructed verdict because there was a variance in the allegation and proof in that the proof showed the property belonged to A. H. Jones instead of Mrs. A. H. Jones; that no fear caused the delivery of the money.

The proof shows that the money was taken from Mrs. A. H. Jones; that she was operating the store in the absence of her husband; that a knife and gun were exhibited; that she was scared for her life.

Appellant further contends that the evidence is insufficient to corroborate that of the accomplices Willis and Tyree. The testimony shows that a car fitting the description of appellant’s picked up Willis and Tyree, that money was found in the car, that Willis, Tyree and appellant were in the car fifteen minutes after the robbery.

In Greer v. State, 168 Tex.Cr.R. 485, 329 S.W.2d 885, the appellant was the driver of the getaway car seen shortly after the robbery. This Court held that the evidence was sufficient to support the conviction.

Appellant, by his next formal bill of exception, complains that the trial court erred in overruling his objection to page 2 of the court’s charge on the ground that it was a comment on the weight of the evidence and an invasion of the province of the jury.

The objection that a certain paragraph was “on the weight of the evidence” is too general under Article 658, Vernon’s Ann.C.C.P., to point out any error. Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364, and Gill v. State, 84 Tex.Cr.R. 531, 208 S.W. 926.

Lastly, appellant complains, by his third bill of exception, that the trial court erred after the jury requested an answer to the question:

“Your Honor
“Can the jury assess the penalty of Five (5) years and recommend any leniency possible?
/s/ Lawrence Arrington, Foreman.” The court instructed the jury:
“Gentlemen of the jury: The question of leniency is not before you for consideration.”

Appellant’s counsel objected that “it is equivalent to a summary statement and is coercive of a verdict of guilty.”

In Heald v. State, 130 Tex.Cr.R. 178, 92 S.W.2d 1042, the jury sent a written interrogatory to the court as to whether the case would carry a suspended sentence; the trial court replied “No.” It was held that no error was shown because the inquiry and reply had no bearing on any issue in the case, and the fact that the jury was not brought into open court was not reversible error.

In the present case, the question and answer were to the same effect.

We have also carefully reviewed all of appellant’s informal bills. None of them reflects reversible error.

The judgment is affirmed.


author: PER CURIAM. McDonald, judge. WOODLEY, Presiding Judge

text:
    Tom Fred CUNNINGHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 33871.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1961.
    Rehearing Denied Jan. 3, 1962.
    Ben Henderson, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., James H. Miller, Gene Ater, Phil Burleson, Assts. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

Driving while intoxicated is the offense; the punishment, a fine of $100 and 5 days in in jail.

The record is before us without a statement of facts or bills of exception. Nothing is presented for review.

The judgment is affirmed.

ON MOTION FOR REHEARING

McDonald, judge.

Upon original submission, this case was affirmed in a Per Curiam opinion delivered November 1, 1961, the record being before us without a statement of facts or bills of exception, and nothing having been presented us for review.

A statement of facts signed by the trial judge on November 9, 1961, and filed in the trial court on November 9,1961, was filed in this Court on November 15, 1961.

Appellant states in his motion for rehearing that there was “error in the preparation of the transcript on appeal for the reason that there was no statement of facts of said proceedings included therein; that upon receiving said opinion of the affirmance of said judgment, appellant immediately filed his motion with the trial court, and good cause shown, same was so ordered.” Appellant states that a different result will probably obtain if this Court considers the statement of facts now on file with this Court.

We observe that the verdict of the jury was rendered on February 22, 1961; notice of appeal to this Court was given on April 3, 1961; the case was submitted originally to this Court on October 25, 1961; and, as above stated, our opinion was handed down on November 1,1961.

The State challenges the late filing of this statement of facts and its consideration by this Court.

We are aware of the provisions of Section 4 of Article 759a, Vernon’s Ann.C.C.P., allowing a filing after the 90 days provided when the trial judge signs same. However, here, the statement of facts was filed 220 days after notice of appeal was given, or 130 days beyond the normal 90-day period in which to file. We further observe that the statement of facts filed in this Court was signed by the trial court judge some 8 days after the deliverance of the original opinion.

While this Court, has, on occasion, withdrawn its original per curiam opinion and allowed the statement of facts to be filed and considered by this Court, it has only done so in cases where the statement of facts had been filed with the trial court prior to original submission of the case before this Court.

In the recent opinion of Selvidge v. State, Tex.Cr.App., 345 S.W.2d 523, 527, on rehearing, this Court had an occasion to consider and decide a very similar fact situation. There, after the original submission, a statement of facts was filed and signed by the trial court judge, some 8 days after the deliverance of the original opinion. This Court, in refusing to consider the late filed statement of facts, in construing the legislative intent behind Section 4, Article 759a, supra, said:

“It is our conclusion that to hold otherwise would prohibit us from ever being able to effectively terminate appeals to this court.”

We think the Selvidge case controls the disposition of this case.

Appellant’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(dissenting on Appellant’s Motion for Rehearing).

A' statement of facts, approved by the trial judge since the affirmance of the judgment by per curiam opinion on November 1, 1961, has been filed and forwarded to this Court. The state challenges the late filing of such statement of facts, and cites Selvidge v. State, Tex.Cr.App., 345 S.W.2d 523.

Prior to the amendment of Art. 759a, Sec. 4, V.A.C.C.P. in 1959 (Acts 56th Legislature, 1st C.S. p. 20) said section read: “The defendant shall file said statement of facts in duplicate, with the clerk of the trial court within ninety (90) days after the date of giving notice of appeal.” There was no authority elsewhere in the Code whereby the trial judge could extend the time for filing the statement of facts.

The 56th Legislature amended Section 4 of Art. 759a by adding thereto :

“and for good cause shown, the judge trying the cause may further extend the time in which to file the statement of facts, and shall have the power, in term time or vacation, upon application for good cause to extend for as many times as deemed necessary the time for preparation and filing of statement of facts, and the approval of the statement of facts after the expiration of the ninety (90) day period shall be sufficient proof that the time for filing was properly extended.”

The state’s brief presents strong argument why there should be some limitation upon the time which the trial court may allow by extension. The Legislature, however, has fixed no such limitation.

The Legislature having provided that the trial judge may extend the time for filing the statement of facts for good cause shown, without reference to whether the transcript has been forwarded or whether the case has been submitted, this Court is without authority to do other than comply with the statute. Whether there should be a limitation upon extensions by the trial court is for the Legislature.

If Selvidge v. State, supra, supports the state’s position it should be overruled.

I respectfully dissent.


author: MORRISON, Judge.

text:
    Edward J. BENDER, Appellant, v. The STATE of Texas, Appellee.
    No. 34132.
    Court of Criminal Appeals of Texas.
    Jan. 17, 1962.
    Sam L. Harrison, San Antonio, for appellant.
    . Léon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $100.00.

Appellant waived his right to a jury trial and plead not guilty before the court.

An examination of the complaint shows that it was not signed by the affiant as is required by Article 222, Vernon’s Ann. C.C.P.A valid complaint is a prerequisite to a valid information. Article 415, V.A.C.C.P.; Byrom v. State, 158 Tex.Cr.R. 427, 256 S.W.2d 853.

Because of the fatal defect in the complaint, the judgment is reversed and the cause remanded.


author: RENFRO, Justice.

text:
    T. H. CALLAHAM, Appellant, v. Mayme Colleen CALLAHAM, Appellee.
    No. 16280.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 12, 1962.

      Brantley Pringle, Fort Worth, for appellant in lower court.
    McGown, Godfrey, Logan & Decker, Fort Worth, for appellee in lower court.
   RENFRO, Justice.

This is an appeal by T. H. Callaham from a judgment rendered against him in a district court of Tarrant County.

Appellant did not file a brief.

The appeal is dismissed for want of prosecution. Rule 415, Texas Rules of Civil Procedure; Schkade v. Independent-Eastern Torpedo Co., Tex.Civ.App., 168 S.W.2d 281; State v. Rydel, Tex.Civ.App., 336 S.W.2d 631.

Appeal dismissed.


author: WILSON, Justice.

text:
    Ralph B. PATRICK, Appellant, v. Michael CALLAN, Appellee.
    No. 3965.
    Court of Civil Appeals of Texas. Waco.
    Nov. 22, 1961.
    Rehearing Denied Feb. 1, 1962.
    Beard, Kultgen & Beard, Waco, for appellant.
    Riley, Jones, Boyd & Lovelace, Waco, for appellee.
   WILSON, Justice.

The trial court dismissed plaintiff’s action on defendant’s plea of limitation, the judgment reciting all matters of law and fact had been submitted to the court. The parties stipulated: plaintiff’s attorney was employed by an insurance company to institute a subrogation action arising out of an automobile collision occurring March 2, 1959; suit was filed April 4, 1960 by mailing the petition to the clerk with a cost deposit; no copy of the petition was enclosed in the transmittal letter, which requested only that the instrument mailed be filed. The clerk mailed a receipt for the cost deposit. Since no copy of the petition was furnished the clerk did not issue citation when suit was filed. It was not issued until March 16, 1961.

No findings or conclusions were filed or requested. Plaintiff’s attorney testified failure to send a copy of the petition to the clerk was inadvertent; that he intended that citation be issued, and did not discover it had not been issued until about March 16; that his failure to make the discovery resulted from his reliance on reminders which he received from the insurance company for which he handled a number of such suits, and the fact that he had not received a reminder about this case until the time he discovered citation had not been issued. The petition alleged defendant’s address.

In order to toll the statute of limitation by the filing of a suit there must be not only a bona fide intention that process be issued and served, but diligence as well. Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, 872; Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 631, syl. 4; City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93, 95 ; First State Bank & Trust Co. of Rio Grande City v. Ramirez, 133 Tex. 178, 126 S.W.2d 16.

The evidence is sufficient to support the implied finding of the trial court, who was also justified in concluding that although the attorney’s failure to have process issued was understandable, in the press of business, he properly relied on a reminder which was not sent to him with diligence. Affirmed.