author: WALTER, Justice.

text:
    Addie Bouldin ALBRIGHT et al., Appellants, v. Ray BOULDIN, Appellee.
    No. 3986.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 17, 1965.
    Rehearing Denied Oct. 15, 1965.

      Ruth A. Lindley and J. G. Lindley, Dallas, for appellants.
    Holloway & Slagle, R. R. Holloway, Brownwood, for appellee.
   WALTER, Justice.

This is a suit to declare heirship. J. E. Bouldin died intestate in Brown County in 1960. His sisters and brothers and the sons and daughters of a deceased brother and sister filed suit in the County Court to determine heirship. Ray Bouldin was named as the defendant. Judgment was rendered against Ray Bouldin and he appealed to the District Court. Based on a verdict, judgment was rendered declaring Ray Bouldin the adopted son and sole heir of J. E. Boul-din, deceased.

The plaintiffs have appealed contending the court erred in overruling their motions for an instructed verdict and for judgment non obstante veredicto; in admitting some testimony and excluding other testimony and in overruling their objections to the charge.

Ray Bouldin pleaded that he was the adopted son of J. E. Bouldin, deceased; that on or about August IS, 1930, when he was about twelve years of age, J. E. Boul-din and his wife, Callie, agreed with Hal Buckner, a person standing in loco parentis, that Bouldin and his wife would adopt him; that pursuant to said agreement and promise Bouldin and his wife on or about August IS, 1930, took Ray into their home and reared him and cared for him as their own child until his maturity; that Mr. and Mrs. Bouldin treated Ray as their own son and always recognized him as their own son and cared for him as they would have cared for their natural child; that Ray conducted himself as a child of Mr. and Mrs. Bouldin, rendering to them the affections and obedience of a child and by reason of all the foregoing facts he became the adopted son of Mr. and Mrs. Bouldin under the doctrine of adoption by estoppel.

The rule is well settled that the judgment of the trial court will not be set aside if there is any evidence of probative force to support it and that a Court of Civil Appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the court’s findings. Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232.

Ray Bouldin testified substantially as follows : My natural parents were William H. and Mollie Ricketts. My mother died when I was four years old. My father was an invalid and paralyzed. He died in April, 1931. On or about 1929 my father took me to Dallas where he talked to Hal Buckner about making some kind of provision for me. Following this meeting with Mr. Buckner I came to Brownwood and was met by Mr. and Mrs. Bouldin. Sometimes I referred to Mr. and Mrs. Bouldin as Uncle Jim and Aunt Callie and sometimes I referred to them as Mama Callie and Papa Jim. I referred to them as Uncle Jim and Aunt Callie in the “earlier years.”

Ray introduced in evidence the flyleaf of a Bible which revealed that it was a spiritual gift to Ray Bouldin from his mother and father, giving their residence as 1500 Cog-gin Avenue, Brownwood, Texas, where the record shows Mr. and Mrs. Bouldin had lived for many years. He also introduced a gift card which accompanied a chest of silver given to him and his wife by Mr. and Mrs. Bouldin on the occasion of Ray’s wedding which was signed “Mother and Dad.” He also introduced a census record from the Woodland Heights School concerning Ray Bouldin and signed by Mrs. J. E. Bouldin in March, 1934. It recited that Jim Bouldin was the father of Ray Bouldin and that Callie Bouldin was the mother of Ray. Another family census record in 1935 signed by Mrs. J. E. Bouldin revealed the same information.

Melvin Storm testified substantially as follows: I was working for the Davis-Morris Funeral Home in Brownwood at the time of Mrs. Bouldin’s death. We make a record of the funeral and keep it in the file at the funeral home. This file reveals that the information was furnished by J. E. Bouldin and Mrs. H. L. Evans. This record listed Ray Bouldin of Fort Worth, Texas, as a son of the deceased Mrs. Bouldin.

Travis Gilmore testified substantially as follows: I have been a partner with Mr. J. E. Bouldin for about 20 years. Mr. Boul-din told me that he had gone to Buckner’s Orphans Home to see about getting a child. He later told me he had talked to Hal Buckner and that through Hal Buckner, Ray was placed with him and Mrs. Bouldin. From the beginning the boy was always known as Ray Bouldin. Mr. and Mrs. Bouldin treated Ray as their child. He lived in their home and they sent him through high school and Howard Payne College and reared and supported him and treated him as any parent would treat their own child. He observed that Ray rendered to Mr. and Mrs. Bouldin the affection and obedience of a child and this relationship continued until Ray was grown and went into the service.

Mrs. Henry L. Evans testified substantially as follows: My husband was a brother to Mrs. Callie Bouldin. We visited in the Bouldin home and they visited in our home. Mr. and Mrs. Bouldin had no children of their own. They loved children and talked about adopting a child. Mr. Bouldin made a trip to Buckner’s Orphans Home. Sometime thereafter Mrs. Bouldin telephoned me and said “Well, we have gotten a boy.” A few days thereafter Mrs. Bouldin brought Ray over to our house. That was sometime in 1930 and Ray was about 12 years of age. From then on the boy assumed the name of Ray Bouldin and was known as such in school, in church and in college. Mr. and Mrs. Bouldin introduced him as their son and this continued until the time he enlisted in the service. They appeared to be fond of the boy and the boy’s attitude toward Mr. and Mrs. Bouldin appeared to be that of any child toward his natural parents. He was obedient and treated them as his own father and mother. When Mrs. Bouldin died Mr. Bouldin came to our home and we were discussing the survivors and we asked Mr. Bouldin about Ray and he said that Ray was his son. Mr. Evans asked him if he had adopted the boy and Mr. Boul-din said “Yes.” Ray was listed in the paper as a son.

Henry L. Evans testified substantially as follows: Mr. Bouldin came to our house following the death of his wife and we helped him prepare a statement for the paper and the funeral home and I said, “Jim, what about Ray? Is he where — was he ever adopted?” He said, “Yes”. I said, “Well, I just wanted to know whether to call him a son or what, whether you considered him a son or not.” He said, “Yes”. So I just put, inserted in there, “Ray Bouldin, a son.”

The record also contains an exhibit introduced by Ray of a newspaper clipping from the Brownwood Bulletin. This news item gave an account of Staff Sergeant Ray Bouldin’s visit with his parents Mr. and Mrs. J. E. Bouldin. Mrs. J. E. Bouldin gave the clipping to Mrs. Ray Bouldin and told her that she had inserted it in the paper. Other witnesses testified to the family relationship existing between the parties. The parties stipulated that Mr. Hal Buckner was deceased.

It was incumbent upon Ray Boul-din to plead and prove that J. E. Bouldin agreed with Ray or with his parents or with Hal Buckner (a person in loco parentis) that he would adopt Ray. Such agreement could be established either by direct or circumstantial evidence or both. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972. We consider the acts, conduct and admissions of Mr. and Mrs. Bouldin as strong circumstantial evidence of the existence of an agreement on their part to adopt Ray. Also, the other relevant facts and circumstances in evidence constitute some evidence of probative force to support the jury’s verdict and the judgment of the court that Ray Bouldin was the adopted son of J. E. Bouldin under the doctrine of equitable estoppel. Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72; Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.

Appellants’ 3rd point is as follows: “The court erred in admitting testimony regarding statements made by J. E. Bouldin to witnesses on or about February 25, 1960, the time of death of Callie Bouldin.” Appellants cite us to pages 8 and 9 of the Statement of Facts for their objection. They say further “Other witnesses also testified as to statements made by J. E. Bouldin at the time of his wife’s death.” No reference to the Statement of Facts is given to the testimony of the other witnesses who so testified. Appellants do not contend that they objected to such other witnesses’ testimony. Mrs. Henry L. Evans, Sr. was asked if Mr. Bouldin came to her home in February 1960 after the death of his wife. Appellants lodged the following objection to such question:

“MR. BINDLEY: We hardly see a conversation thirty years after his— how it is going to effect the issue here of adoption by — since it is some thirty years after the young man came to live with Mr. and Mrs. Bouldin.”

The objection was overruled and Mrs. Evans testified as follows:

“Well, we were discussing the survivors so we could have a little notice in the paper, and we asked Mr. Bouldin about Ray, how he is ‘your son’, and he said ‘Yes’. And then Mr. Evans said, ‘You have adopted him,’ and he said, ‘Yes’. So we listed that in the paper as his son.”

Mrs. Evans’ testimony was admissible. Cubley v. Barbee, 123 Tex. 411, 73 S.W.2d 72.

The appellants offered in evidence the affidavit of J. E. Bouldin dated March 23, 1960, which purported to be a proof of heirship of Callie Bouldin, deceased. This instrument was filed for record with the County Clerk of Brown County on the 25th day of March, 1960. The affidavit contained the following:

“Of the marriage of affiant and the said Callie E. Bouldin, there were no children born and neither the said Callie E. Bouldin or affiant herein ever adopted any children.”

The effect of this instrument was that J. E. Bouldin inherited Callie Bouldin’s interest in the community property of the affiant and the deceased and was therefore a self-serving declaration. This case was tried on November 4th and 5th, 1964.

“As a general rule, self-serving declarations are inadmissible in civil cases on behalf of the party making them or others claiming under him. This rule is not affected by the fact that the declarations are in writing or that the party who made them is dead.” 24 Tex.Jur.2d 160.

We find no merit in appellants’ contention that the court erred in failing to admit such affidavit in evidence.

Appellants’ 5th and last point is as follows:

“The court erred in overruling appellants’ objections in connection with the submission of special issue number 4 which read ‘Do you find from a preponderance of the evidence that Ray Bouldin rendered to J. E. Bouldin and Callie Bouldin the affections and duties of a child, from about August, 1930 until the maturity of Ray Bouldin, as if he had been their own child P ’ This issue was improperly submitted in that it did not require the finding of an essential element that defendant, Ray Ricketts Bouldin rendered the affections and duties of a child to J. E. Bouldin because of a reliance that he had been led to believe by J. E. Boul-din that J. E. Bouldin had adopted him.”

The jury found that J. E. Bouldin agreed with Hal Buckner that he and his wife would adopt Ray; that Hal Buckner was authorized by and was acting for Ray’s father in making such agreement; that Mr. and Mrs. Bouldin reared and cared for Ray from about August, 1930, until his maturity as if he had been their own child; and that Ray rendered to Mr. and Mrs. Bouldin the affections and duties of a child from about August, 1930, until his maturity as if he had been their own child. The authorities cited by appellants do not support their contention that the court erred in overruling their objection to said special issue.

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    AMERICAN CASUALTY AND LIFE INSURANCE COMPANY, Appellant, v. Jack T. BOYD, Appellee.
    No. 127.
    Court of Civil Appeals of Texas. Tyler.
    Sept. 16, 1965.
    Rehearing Denied Oct. 7, 1965.

      John F. Maxfield, Stigall & Maxfield, Dallas, Tracy Crawford, Ramey, Brelsford, Flock & Devereux, Tyler, for appellant.
    Robert S. Boulter, Boulter, Fowler & Tunnell, Tyler, for appellee.
   DUNAGAN, Chief Justice.

The judgment heretofore entered on July 8, 1965, is set aside and the original opinion is withdrawn. This opinion is substituted for the original.

This suit was filed on the 17th day of July, 1963, in the County Court of Smith County, Texas, by appellee, Jack T. Boyd, against appellant, American Casualty and Life Insurance Company, to recover from said company the amount of premiums collected by appellant for insurance coverage on appellee’s former wife, Opal I. Boyd, and paid by him to appellant after he allegedly requested appellant to remove said former wife, Opal I. Boyd, from said policy of insurance, which policy of insurance was purchased from appellant during the marriage of Jack T. Boyd and Opal I. Boyd to each other. In addition, appellee sought recovery for an alleged loss under the policy of insurance.

The matter was submitted to the court without the aid of a jury and judgment was rendered for appellee on the 16th day of November, 1964, for $345.00, for the premium payments collected by appellant for insurance coverage on Opal I. Boyd since January, 1959.

The record reflects the following course of procedure in the trial court:

(1) September 25, 1964, pursuant to defendant’s motion requesting that the plaintiff be required to give additional security for costs, the trial court ordered and directed plaintiff to give additional security for costs in the sum of $100.00.

(2) November 24, 1964, appellant filed with the clerk of the trial court its notice of appeal to this court from the judgment of November 16, 1964.

(3) December 16, 1964, appellant filed its supersedeas and appeal bond.

(4) Pursuant to defendant’s motion seeking dismissal of the cause of action alleging therein that the plaintiff had not complied with the court’s order requiring additional security, the following order was entered from which no appeal was taken:

“NO. 12,456
ORDER OF DISMISSAL
Came on to be heard the motion of the defendant, American Casualty and Life Insurance Company, to dismiss this cause for failure of the plaintiff, Jack T. Boyd, to comply with a previous order of this Court requiring additional security for costs, and the Court, being of the opinion that such motion is well taken and that the previous order of the Court entered the 16th day of November, 1964, should be set aside and held for naught.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the previous Order of the Court entered on the 16th day of November, 1964, be vacated, rescinded, cancelled, set aside and held for naught.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this cause be dismissed at plaintiff’s cost, for which let execution issue.
SIGNED this 14th day of December, 1964.
Motion Denied.
/S/ R. M. Hutchins
Judge Presiding”

The difficulty with this order is that it contains a provision granting the motion for dismissal and setting aside the judgment of November 16, 1964, and also a provision denying said motion. It is obvious on the face of the purported order that these provisions are wholly uncertain and contradictory.

In 49 C.J.S. Judgments § 72, page 191, is found this statement:

“A judgment must be definite and certain in itself, or capable of being made so by proper construction. It must fix clearly the rights and liabilities of the respective parties to the cause, and be such as defendant may readily understand and be capable of performing, * * *. Where the record entry is wholly uncertain, repugnant, or contradictory, the judgment is at least erroneous, and it may be void. * *

The following Texas cases are cited in support of this statement: Hatton v. Burgess, 167 S.W.2d 260, (Tex.Civ.App.) 1942, writ refused, w. m.; Burrage v. Hunt Production Co., 114 S.W.2d 1228, (Tex.Civ.App.) 1938, writ dismissed; McCombs v. Red, 86 S.W.2d 648, (Tex.Civ.App.) 1935, writ dismissed.

It is stated in 33 Tex.Jur.2d, page 529, Sec. 34 that:

“A judgment must be sufficiently definite and certain to define and protect the rights of all litigants or it must provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without the ascertainment of facts not therein stated.” Also see Steed v. State, 143 Tex. 82, 183 S.W.2d 458, 1944.

It is held by our courts that the very object of a suit is to have the court adjudicate and clearly determine and declare the respective rights of the parties, to the end that the ministerial officers can with certainty carry into execution the judgment of the court without ascertainment and determination of facts not stated in the judgment. Hendryx v. W. L. Moody Cotton Co., 257 S.W. 305, (Tex.Civ.App.) 1923, n. w. h.; Spiva v. Williams, 20 Tex. 442.

A purported judgment which leaves undecided a question or issue essential to the determination of the controversy between the parties is bad for vagueness and uncertainty. Fort Worth Acid Works v. City of Fort Worth, 248 S.W. 822, (Tex.Civ.App.) 1923, affirmed 259 S.W. 919; Arno Co-Operative Irr. Co. v. Pugh, 177 S.W. 991, (Tex.Civ.App.) 1915, affirmed in part and reversed in part on other grounds, Tex.Com.App., 212 S.W. 470.

This purported order is utterly unintelligible on its face; Wells v. Stonerock, 120 Tex. 287, 37 S.W.2d 712, 1931, and we hold that it is a nullity and it has no legal force and effect.

We will next consider appellant’s complaints lodged to the judgment of November 16, 1964, disposing of the controversy between the parties, upon which this appeal is predicated.

Appellant submits a number of propositions, but the view we take of the case we need consider only one question complained of and that is the refunding of premiums voluntarily paid to appellant by appellee, Jack T. Boyd, for insurance coverage by appellant on Opal I. Boyd, where it has not been alleged or proven to have been paid under protest, coercion, duress, fraud, compulsion, or mistake of fact.

The evidence presented in the trial court shows that sometime prior to the 24th. day of January, 1963, the appellant issued a policy of insurance to Jack T. Boyd and Opal I. Boyd, his wife, upon their application. It was further shown that on about the 24th day of January, 1953, that another policy was issued to Jack T. Boyd and Opal I. Boyd, at their request, in lieu of the original policy. Apparently appellee lost the original policy and this duplicate policy was issued on the 1st day of May, 1958, which date of issue was subsequent to the dissolution of their marriage by a divorce decree on the 10th day of February, 1958. It was admitted upon the trial of this cause that neither the property settlement nor the Judgment of divorce mentioned the policy of insurance issued by appellant, which is in issue.

During all the time subsequent to the divorce and up to the time of trial, appellee Jack T. Boyd paid monthly the premiums on the insurance policy covering himself and his former wife, Opal I. Boyd. There is no evidence that he ever paid under protest, coercion, duress, fraud, compulsion, or mistake of fact; only that on two or three occasions over a five-year period he or his representatives would ask appellant to delete his former wife, Opal I. Boyd, from the policy, which appellant explained could not be done without the permission of Opal I. Boyd. Sherrill Little, who was called as a witness for plaintiff, and who also was an agent for the appellant in Tyler, Texas, from sometime in 1946 until April, 1960, testified that on or about the 7th day of November, 1958, he wrote a memorandum to appellant, his then employer, stating that appellee, Jack T. Boyd, had requested that separate policies be issued on Jack T. Boyd and Opal I. Boyd. On the 21st day of November, 1958, the appellant wrote appellee in answer to such inquiry that it wished to advise that they no longer issued the particular policy desired, but suggested other policies in lieu thereof. Little further testified that on December 16, 1958, he wrote a memorandum which he sent to appellant, the material part being as follows:

“To: C. Waterbury Date: December 6th, 1958
“From: Tyler — Little Subject: Jack T. Boyd
Policy no. 108;016;588
“The above named insured was in our office this morning and paid his premium on the above numbered policy. Mr. Boyd states that he will keep the above numbered policy on both he and his wife * * *.
“Thanks
“Sherrill Little”

The policy referred to in this memorandum is the one now in controversy. Nothing further was received from appellee until the 16th day of August, 1961, when appellee requested that Opal I. Boyd be taken from the policy of insurance in issue, and that his present wife be added to it. Nor is there any evidence that any judicial relief was sought before the 17th day of July, 1963, the date this suit was filed, although the appellant’s position was well-known to ap-pellee long prior thereto.

Appellee has not filed a brief and did not avail himself of oral argument. He has not challenged in any manner the statements in appellant’s brief relative to the facts and the record. The Court of Civil Appeals must assume as true all facts stated by appellant in its brief and render judgment in conformity therewith. Rule 419, Texas Rules of Civil Procedure; Traweek v. Shields, Tex.Civ.App., 380 S.W.2d 131, 1964, no writ history; Gonzales v. Gonzales, 224 S.W.2d 520, (Tex.Civ.App.) 1949, writ refused; Coates v. Coates, 355 S.W.2d 260, (Tex.Civ.App.) 1962, n. w. h.; Rancher v. Franks, 269 S.W.2d 926, (Tex.Civ.App.) 1954, n. w. h.; Hartford Fire Insurance Co. v. Owen, 272 S.W. 611, (Tex.Civ.App.) 1925, writ refused. However, we have checked the references in appellant’s brief and find them to be correct.

It has been well established in this state that money voluntarily paid, with full knowledge of all the facts, and without fraud, deception, duress, or coercion, cannot be received back, although it was paid upon a void or illegal demand, or upon a claim which had no foundation in fact, and was paid without consideration. Gibson v. General American Life Insurance Company, 89 S.W.2d 1070, (Tex.Civ.App.) 1936, writ dismissed; Collins v. Kelsey, 97 S.W. 122, (Tex.Civ.App.) 1906, n. w. h.; Ward v. Tadlock, Tex.Civ.App., 183 S.W.2d 739, n. w. h.; Pennell v. United Insurance Company, 150 Tex. 541, 243 S.W.2d 572, 1951; Burnett v. Masonic Grand Chapter of the Order of Eastern Star, 369 S.W.2d 513, (Tex.Civ.App.) 1963, n. w. h.; 44 Tex.Jur.2d, p. 740, Sec. 72.

Appellee did not plead or prove that his payments were made because of any fraud, deception, duress, coercion or compulsion on the part of appellant and the burden to do so is on him. The evidence shows that appel-lee was familiar with all the facts.

Therefore, since appellee does not allege, nor has he proven, that he paid any of the premiums which he seeks to recover because of any mistake of fact, or because of any fraud, deception, duress or coercion, then it is apparent that he made the payments solely as a volunteer and he cannot recover any such payments from appellant.

For the reasons herein stated, judgment of the trial court is reversed and rendered for the appellant.

ON MOTION FOR REHEARING

Appellee has filed his Motion for Rehearing in which he complains of this court’s holding that he could not recover insurance premiums theretofore paid, since he had voluntarily paid the excess premiums. He asserts that the point was raised for the first time by appellant on appeal and therefore should not be considered by this court.

In the trial court, appellant vigorously contested the right of appellee to recover the premium payments sued for. The trial court rejected appellant’s contentions and rendered judgment allowing appellee to recover for the alleged excess premium payments.

From this judgment appellant timely gave its notice of appeal to this court, which appeal was duly perfected. By perfecting its appeal and presenting its Points of Error, appellant availed itself of the right to have this court review the judgment rendered by the trial court.

Appellee instituted this suit in part to recover premium payments which he claims were in excess of what he should have paid. He alleged that the original policy he obtained covered his former wife, Opal I. Boyd, and that after he and Opal I. Boyd obtained a divorce, he requested the company to remove the name of Opal I. Boyd from the policy, that the company refused to remove her name, and that he continued to pay $6.50 monthly for her coverage which he should now be entitled to recover.

Even though the trial court based his judgment on the finding that appellee did request and direct the appellant to drop his former wife as insured from said policy of insurance and that appellant should have complied with such request, nevertheless the appellee continued to pay the full premium payment voluntarily with full knowledge of all the facts, and without fraud, deception, duress or coercion; and having done so such payments cannot be received back, although it was paid upon a valid or a legal demand or upon a claim which had no foundation in fact, and was paid without consideration. Gibson v. General American Life Ins. Co., 89 S.W.2d 1070, (Tex.Civ.App.) 1936, writ dismissed; Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, (Tex.Civ.App.) 1965, no writ history.

We adhere to our original holding that the evidence having shown voluntary payments upon appellee’s part that the money paid cannot be recovered except upon aver-ments of mistake of fact, or because of fraud, deception, duress or coercion and the burden of proving the existence of any such ground is upon the person seeking to recover the money. Collins v. Kelsey, 97 S.W. 122, (Tex.Civ.App.) 1906, n. w. h. The appellant did neither in this case.

Moreover, it has been held that matters presented for the first time in a Motion for Rehearing cannot he considered. W. T. Burton Company, Inc. v. Keown Contracting Company, et al., 353 S.W.2d 909, (Tex.Civ.App.) 1961, writ refused, n. r. e.; O. E. Metcalfe v. McCarty, 301 S.W.2d 263, (Tex.Civ.App.) 1957, n. w. h. Appellee’s contention is presented for the first time in his Motion for Rehearing. As pointed out in our original opinion, appellee did not file a brief in this case.

Motion for rehearing overruled.


author: CLAYTON, Justice.

text:
    Arlene JANKE et al., Appellants, v. William C. KASTRIN, Appellee.
    No. 5738.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 15, 1965.
    Rehearing Denied Oct. 6, 1965.
    Gerald B. Shifrin, El Paso, James R. Warncke, San Antonio, for appellants.
    Peticolas, Luscombe & Stephens, Hardie, Grambling, Sims & Galatzan, El Paso, for appellee.
   CLAYTON, Justice.

This is a will contest. Appellee filed an application to probate the will of Alexander F. Janke, Sr., which will was admitted to probate. Appellants filed a contest to the probate in the El Paso County Court at Law, in Probate, in Cause No. 16734, alleging' that the deceased lacked testamentary capacity to make a will, was acting under undue influence and that the proffered will was not executed in the manner and with the solemnity required by law for the execution of wills. A trial was held in this cause, both parties appearing by attorneys, and the County Court at Law, on May 21, 1962, passed upon the issues by judgment of that date, finding that the testator Janke, at the time of execution of the will, was of sound mind and was not subjected to undue influence, and that the will was executed with the formalities and solemnities and under the circumstances required by law to make it a valid will, admitted the will to probate and appointed the proponent-appellee Independent Executor of the estate.

Appeal from this judgment was taken to the District Court of El Paso County and docketed as Cause No. 103309. Thereafter, and before any decision was rendered in the appeal, contestants moved for non-suit, which was granted by the court on January 10, 1964 and the suit was dismissed “without prejudice at Contestant’s costs”. A certified copy of this order of dismissal was filed in County Clerk’s office.

Subsequently, appellants filed another suit in the County Court at Law under Cause No. 74-1 seeking to vacate, revoke and set aside the order of May 21, 1962 in Cause No. 16734 which admitted the will to probate, again pleading lack of testamentary capacity, undue influence and lack of formality required for execution of wills. Ap-pellee answered by general denial and specially pleaded the former proceedings set out above as in bar of the relief asked for in this suit, and alleged that the effect of the dismissal entered in Cause No. 103309 in the District Court was to reinstate the judgment of May 21, 1962; that all matters that were or could have been presented to the County Court, with reference to the validity of the will, were determined, adjudged and decreed against contestants by such judgment of May 21, 1962; that the parties to the prior suit were identical to the parties in the new suit, such judgment was res judicata between the parties, and constituted estoppel against attacking the validity of the will. Appellee then moved for summary judgment, which was granted, and on appeal therefrom the District Court, in Cause No. 110480, likewise sustained ap-pellee’s motion for summary judgment against appellants; hence the appeal before us.

Appellants advance three points of error: First, that the County Court and District Court erred in holding that the first appeal, in which appellants’ non-suit was granted, “without prejudice”, amounted to res judi-cata and estoppel, and erred in granting summary judgment against appellants without ever hearing the case on its merits or granting a trial de novo; second, that the County and District Courts erred in holding that the will was legally admitted to probate without any new order having been entered in either County or District Court, admitting the will to probate; and third, that the County and District Court erred in holding that Rule 339, Texas Rules of Civil Procedure, was applicable where appeal is perfected to District Court, in which court jurisdiction attached, thus abrogating the judgment of the County Court, under circumstances where voluntary non-suit was taken and the appeal dismissed without prejudice, instead of holding that Rule 339 was applicable only to cases wherein the District Court acquired no jurisdiction of the appeal.

Rule 339, T.R.C.P., as amended in 1962, provides: “Where the judgment of the district court is one of dismissal of the appeal and a certified copy of such judgment of dismissal is entered of record on the minutes of the county court, the decision, order, decree or judgment of the county court appealed from shall stand as if no appeal had been taken. As amended by order of April 12, 1962, effective Sept. 1, 1962.” The historical background of the rule is given in the footnote in V.A.C.S., as follows:

“Note: Rule 339 formerly dealt with the appeal bond in guardianship proceedings. Its source was Art 4323. By amendments effective September 1, 1962, Rules 332 to 339, inclusive, are rewritten and rearranged to establish uniform procedures applicable to appeals in both estate and guardianship proceedings. The provisions of Rule 339 are adapted from former Rule 343. * *

Rule 339 was in effect when the non-suit was taken and the order of dismissal entered in Cause No. 103309 on January 10, 1964. We hold that it was applicable here without such limitation as assigned to it by appellants in their third point; i. e., that Rule 339 was applicable only to cases wherein the District Court acquired no jurisdiction of the appeal. The opinions and authorities relied on by appellants were written prior to the effective date of Rule 339 and thus have no application here. We feel that although the District Court, in Cause No. 103309, used the wording “without prejudice” in its order dismissing the cause on appeal, such wording in no way altered the effectiveness of the provisions of Rule 339. We further hold that reinstatement of the County Court at Law judgment of May 21, 1962 in Cause No. 16734 occurred automatically as if no appeal had been taken and without the necessity of any new order admitting the testator’s will to probate, contrary to appellants’ contention in their second point. See Ehrhardt v. Ehrhardt, 364 S.W.2d 471, 473, syl. 4 (Tex.Civ.App., 1963, n. w. h.). To hold otherwise would be to eneourage a litigant, facing an adverse judgment in the county court, to effectively avoid it by perfecting a frivolous appeal to the district court and later to procure its dismissal, thus obtaining a second chance at securing a favorable county court judgment.

We believe that the Texas Supreme Court case of Ogletree v. Crates, 363 S.W.2d 431, 435, syl. 6 (1963), cited to us by appellee in his brief, which recites: “The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried”, effectively disposes of appellants’ contention in their first point regarding res judicata. See also City of Dallas v. Dixon, 365 S.W.2d 919, 926, syl. 11 (Tex.S.Ct.1963). A rehearing on the case on its merits in the district court in the first appeal, as provided for in Rule 337, T.R.C.P., was precluded by appellants’ own act in taking a non-suit and procuring dismissal of the appeal. The first point, as well as the other points of error discussed above, are overruled.

Having examined all points of error and having overruled the same, judgment of the court below is affirmed.


author: SHARPE, Justice.

text:
    H. M. FORD, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 123.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 23, 1965.
    Rehearing Denied Oct. 21, 1965.

      Bruce Waitz, San Antonio, Robert L. Joseph, of Burnett, Burnett & Joseph, Sinton, for appellant.
    Frank Nesbitt, of Fischer, Wood, Burney & Nesbitt, Corpus Christi, for appellee.
   SHARPE, Justice.

This is an appeal from a summary judgment for Aetna Insurance Company, appel-lee, plaintiff below, against H. M. Ford, Julian Priour and Kenneth Griffin, defendants below, in the amount of $138,097.-10, based upon a general contract of indemnity, from which only Ford has appealed. We affirm the judgment of the trial court.

By five points, appellant contends that the summary judgment was improperly granted and that the trial court erred, in substance, as follows: (1) because genuine issues of material fact were presented, (2) in permitting appellee, after having partially granted its motion for summary judgment, to dismiss its cause of action for attorney’s fees without prejudice, thus permitting appellee to split its cause of action, (3) in entering final summary .judgment after permitting and taking such action as to attorney’s fees, (4) there was no evidence of the amount of appellee’s loss and expense, and (5) there was a fatal variance between appellee’s allegations and proof. Appellee has replied to such contentions by five counterpoints in support of the summary judgment.

The material summary judgment evidence may be briefly summarized as follows: In 1959, appellant Ford owned substantially all of the shares of stock in Sinton Plumbing and Supply Co., Inc., and he contracted to sell his corporate stock to Griffin and Priour for $60,500.00, payable in installments amounting to 10% annually of the purchase price, plus 6% on the unpaid balance so that Griffin and Priour would each own 49% of the stock and Ford would retain 2% of same. Priour became President, Ford, Vice President and Griffin, Secretary-Treasurer of the corporation. Aetna executed performance and payment bonds for Sinton Plumbing and Supply Co., Inc., in favor of the general contractors on three construction projects, as follows: (1) William E. Goetz Construction Company, San Antonio, Texas, April 13, 1961, for $75,400.00, in connection with the remodeling and erection of an addition to the Post Office at Beeville, Texas; (2) Martin Brothers General Contractors, San Antonio, Texas, for $206,117.00, October 17, 1961, in connection with the Hilltop Village Home for the aged at Kerrville, Texas; and (3) Mid-States Construction Company, San Antonio, Texas, for $7,751.00, December 4, 1961, in connection with a project at Fort Hood, Texas. Sinton Plumbing and Supply Company, Inc., was in a bankrupt condition as of February 17,1962, or earlier, and was actually adjudged bankrupt in United States District Court on or about March 1, 1962. Aetna claims to have paid $138,097.10 in connection with completion of the three construction projects on which Sinton defaulted. The general contract of indemnity dated April 8, 1961, was executed by Sinton Plumbing and Supply Co., Inc., a Texas Corporation, and individually by Ford, Priour and Griffin. Pertinent portions of it are set out in the footnote.

Under his point one, appellant contends, among other things, that the 4th, 6th, 7th, 8th, 11th and 12th clauses of the contract of indemnity are contrary to public policy, and, therefore, void and unenforceable. However, appellant concedes that even if his contentions in such, respect should be upheld, the entire contract of indemnity is not void, and that sufficient provisions would remain to impose a common law liability upon him; and appellant further takes the position in such event that he was and is obligated to show that appellee failed to make out a case of common law liability against him. Appellant also agrees that if his contentions concerning invalidity of certain portions of the contract of indemnity are not well taken and if all of its provisions are enforceable, then that the contract will support the judgment in the absence of bad faith on the part of Aetna, regardless of Aetna’s legal liability to the payees of the performance and payment bonds which Aetna executed as surety on the three projects hereinabove mentioned, assuming the sufficiency of the other summary judgment evidence.

Appellant’s argument that certain provisions of the contract of indemnity are contrary to public policy is, in substance, that because the Fourth Clause gives to the Company (Aetna) the exclusive power to make conclusive determination of claims and demands to be paid; and the Sixth Clause makes vouchers or affidavits prima facie evidence of any loss paid by the Company; and the Seventh Clause gives the Company the power to alter and modify instruments and execute new obligations which fix the indemnitor’s liability without notice to them; and the Eighth Clause eliminates the requirement of notice to in-demnitors concerning certain other matters; and the Eleventh Clause gives the Company the power to obtain releases from liability and charge indemnitors with the expense thereof; and the Twelfth Clause gives to indemnitors the right to terminate the contract upon notice to the Company which shall not be effective until expiration of ten days after receipt thereof, without modifying or discharging obligations of the indemnitors under the contract prior to the effective date of such notice; that the effect of such provisions is to endow the Company with the powers of a Judge (without using the term) to conclusively determine the indemnitor’s liability to the Company; all of which appellant says is contrary to various provisions of law, and particularly the following: Article V, § 11, Texas Constitution Vernon’s Ann.St. (providing that no Judge shall sit in any case wherein he may be interested); Articles 224 — 238, V.A.C.S. (relating to arbitration of disputes between parties) ; Article 2224, V.A.C.S. (prohibiting acceptance of service, waiver of process, entry of appearance, or confession of judgment by contract or writing executed prior to institution of suit); and Rule 184, T.R.C.P. (adopting common law rules of evidence where not inconsistent with Texas Statutes or Rules of Procedure).

We do not agree with appellant that such provisions of the contract of indemnity are void and unenforceable because contrary to public policy. The provisions complained of by appellant have been passed upon either in exact wording or in substance and have been upheld. See English v. Century Indemnity Co., 342 S.W.2d 366 (Tex.Civ.App.1961, n. w. h.) and cases therein cited, which include Central Surety & Ins. Corp. v. Martin, Tex.Civ.App., 224 S.W.2d 773; Fidelity & Casualty Co. of New York v. Harrison, Tex.Civ.App., 274 S.W. 1002; United States Fidelity & Guaranty Co. v. Jones, 5 Cir., 87 F.2d 346. See also Lander v. Phoenix Indemnity Company, 329 S.W.2d 951 (Tex.Civ.App., 1959, n. w. h.).

In English v. Century Indemnity Company, supra, wherein the same form of indemnity agreement appears to have been involved, the Court said:

“We are not here dealing with the common law principle to reimburse the surety for any amount paid upon the debt in which the liability of the principal is controlling, but with liability under the express terms of an agreement of indemnity entered into by appellant and appellee. Such a contract is not against public policy, and ‘as the parties bind themselves, so shall they be bound.’” 342 S.W.2d 369.

Under the above-cited cases, the provisions of the contract of indemnity herein are not against public policy, but, on the other hand are valid and enforceable. Those cases also stand for applicable rules as follows: Common law principles concerning a surety who claims reimbursement for amounts paid out by it do not apply to indemnity contracts such as the one here involved. Whether the surety or his principal are or are not liable on the bond which was paid by the surety is immaterial. In this case recovery of the amounts paid by Aetna in connection with the performance and payment bonds is not dependent upon whether it is legally liable on the same. The fact and extent of appellant’s liability to Aetna under the contract of indemnity may be prima facie established by vouchers or affidavits. Bad faith on the part of Aetna may be urged by appellant as a defense, but where a genuine issue of material fact in such respect is not raised by the summary judgment evidence, appellant’s reliance on such defense would be ineffective.

This brings us to a consideration of appellant’s contention that a genuine issue of material fact was presented as to whether Aetna acted in good faith in paying out various sums of money under the performance and payment bonds issued by it. Appellant concedes that lack of diligence or negligence is not the equivalent of bad faith; and that even gross negligence is not the same as bad faith, but may be evidence tending to show it. Citizens Bridge Co. et al. v. Guerra, 152 Tex. 361, 258 S.W. 2d 64, 69 (1953). Appellant’s principal reliance is upon the proposition announced in the last-cited case that wilful ignorance is the equivalent of bad faith, and bad faith may be shown by a wilful disregard of and refusal to learn the facts when available and at hand. Appellant contends that the summary judgment evidence herein is sufficient to raise a genuine issue of material fact concerning wilful ignorance on the part of Aetna in this case. A review of the evidence relied upon by appellant to show wilful ignorance on the part of Aetna leads to the conclusion that it is legally insufficient to raise the issue. At most, it could be argued that negligent ignorance might be shown, and that is not sufficient to raise the issue of bad faith. Improper motive is an essential element of bad faith. King v. Swanson, 291 S.W.2d 773 (Tex.Civ.App.1956, n. w. h.). The evidence is wholly insufficient to raise an issue that Aetna can be charged with improper motive in connection with discharging liability on the performance and payment bonds. Sinton Plumbing & Supply Co., Inc., as sub-contractor, defaulted on each of the three construction projects hereinbefore mentioned and ultimately became bankrupt. The summary judgment evidence supports the view that Aetna did the best it could under the circumstances to work such matters out in good faith. The purpose of the general contract of indemnity was to protect Aetna in such event. One of the cases relied on by appellant is Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959). That case involved a different type of indemnity agreement which did not contain some of the clauses before us in this case. However, much of what is said by Justice Griffin speaking for the Court, concerning the summary judgment phase of the case, supports appellee’s position here that there was no material issue of fact presented on the question of bad faith on the part of appellee.

Appellant’s point one is overruled.

Appellant’s points two and three, which complain of the trial court’s action, in permitting appellee, after it partially granted appellee’s motion for summary judgment to dismiss its cause of action for attorney’s fees, and in thereafter dismissing the same without prejudice, which allegedly permitted appellee to split its cause of action, do not present reversible error. If the action of the trial court was erroneous in such respect, which we expressly do not decide, no harm resulted to appellant. If, as contended by appellant, the cause of action asserted by appellee was indivisible and improperly split by dismissing that portion relating to attorney’s fees, the doctrine of res judicata will apply and the judgment entered by the trial court will be a bar to future recovery by appellee. Cole v. Wadsworth, 376 S.W.2d 13 (Tex.Civ.App.1964, wr. ref. n. r. e.); 34 Tex.Jur.2d Judgments, § 516, p. 592. The judgment in this case does not allow a recovery against appellant for any portion of the $13,809.71 originally claimed by appellee as reasonable attorney’s fees in this case. Whether it can be recovered in a future suit involves a question which is not now before us. Any error of the trial court concerning dismissal of ap-pellee’s cause of action for attorney’s fees would, in any event, be harmless under Rule 434, T.R.C.P.

Appellant’s points two and three are overruled.

Appellant by his fourth point contends that there was no evidence of the amount of appellee’s loss and expense. Appellant’s basic argument under this point is that photocopies of cancelled cheeks issued by Aetna are not vouchers within the terms of the contract of indemnity, and, even if they are, that they were proved only by deposition testimony of Aetna’s employee; therefore, a fact issue as to credibility was presented. Such argument is not well taken. The checks involved are not ordinary checks but are voucher-form checks which meet the requirements of a voucher in the sense used in the contract of indemnity. In Robertsons’ Guardian v. Fidelity & Casualty Co. of New York, 227 Ky. 114, 12 S.W.2d 298 (Court of Appeals, Kentucky, 1928), the Court said: “A voucher means, when used in connection with the disbursement of money, a written or printed instrument, in the nature of a bill of particulars, account, receipt, or acquittance, that shows on its face the fact, authority, and purpose of the disbursement. 40 Cyc. 228; People v. Swigert, 107 Ill. 494, 495; State v. Moore, 36 Neb. 579, 54 N.W. 866. * * * a canceled check is undoubtedly a sufficient voucher, when it is properly endorsed and shows that it was an expenditure which the guardian was entitled to make.” Admissibility of such vouchers was established under Art. 3737e, V.A.C.S., known as the “Business Records Act.” That article recognizes an exception to the hearsay rule and has been upheld. See Travis Life Ins. Co. v. Rodriguez, 326 S.W.2d 256 (Tex.Civ.App.1959, writ refused, n. r. e. by per curiam opinion of the Supreme Court in 160 Tex. 182, 328 S.W.2d 434), specifically approving the construction of the Statute by the Austin Court of Civil Appeals. Article 3731b, V.A. C.S. provides for the use of photo copies as evidence when proved in accordance with the Business Records Act. The Sixth paragraph of the contract of indemnity herein provides in part that “the Indemnitor (s) agree to accept vouchers or affidavits — as prima facie evidence against Indemnitor(s) of the fact and extent of the Indemnitor(s) liability to the Company.” The photostatic copies of the vouchers here involved were attached to the deposition of E. D. McGee, bond counsel for Aetna, speak for themselves and were thus presented to appellant. McGee’s deposition in the form of answers to written interrogatories was an affidavit. See Sudv. 18, Article 23, V.A.C.S.; Shelton v. Berry, 19 Tex. 154 (1857). It appears from the record in this case that the contract of indemnity, and particularly the Sixth paragraph thereof, was complied with when Aetna furnished to appellant both the vouchers and an affidavit showing the amount of its loss and expense. It thus appears that the credibility of McGee was not involved because of such facts. Further, one exception to the rule that testimony of an interested witness merely raises a fact issue for determination by the trier thereof is that where such testimony is direct and positive and of such a nature that it can be readily contradicted if untrue and it is not so contradicted, facts may be conclusively established thereby. See Nagelson v. Fair Park National Bank, 351 S.W.2d 925 (Tex.Civ.App.1961, wr. ref. n. r. e.), which is a summary judgment case. Here the vouchers supported by affidavit fully disclosed the details and purpose for which issued and if incorrect were readily con-tradictable. The summary judgment evidence did not raise a genuine issue of material fact as to the amount of Aetna’s loss and expense under the contract of indemnity. On the record presented here, the fact and extent of appellant’s liability were established by vouchers and by affidavit.

Appellant’s point four is overruled.

Appellant contends by his fifth point that the summary judgment was improper because there was a fatal variance between the allegations of appellee’s trial petition and its proof. Appellant points to several claimed variations as to dates and names between appellee’s pleading and the summary judgment evidence concerning the performance and payment bonds on the Bee-ville and Kerrville projects. Although we do not believe that such claimed variances actually exist, even if they did, under the broad allegations of appellee’s pleading the same would not be fatal on an ordinary trial. But here we are dealing with a motion for summary judgment under Rule 166-A, T.R.C.P., which “pierces the pleadings.” Statham v. City of Tyler, 257 S.W.2d 742, 745 (Tex.Civ.App., 1953, wr. ref. n. r. e.). The summary judgment evidence fully set out all of the bonds executed by Aetna as Surety on the three construction projects mentioned, as well as the contract of indemnity signed by appellant and others. All of the dates, names and places were therein fully disclosed to appellant who did not raise fact issues as to the contentions now urged as to such bonds or that any other bonds were involved. In any event, Aetna’s cause of action was basically upon the contract of indemnity, about which appellant does not complain under his fifth point. The other bonds and instruments were evidentiary as to the main cause of action. It was conclusively established that the performance and payment bonds on the various construction projects were issued pursuant to the contract of indemnity and that Aetna suffered losses and paid out money on account thereof. Appellant’s point five is overruled.

The judgment of the trial court is affirmed.

      . “FIRST: That they will at all times indemnify and keep indemnified the Company, and hold and save it harmless from and against any and all damages, loss, cost, charges and expenses of whatsoever kind or nature, including counsel and attorney fees, whether incurred under retainer or salary or otherwise, which it shall or may at any time sustain or incur by reason or in consequence of its surety-ship or procurement of suretyship, or which it may sustain or incur in connection with any litigation, investigation, collection of premiums, or other matter connected with such suretyship, including any suit instituted to enforce the obligations of this agreement of indemnity; and the Indemnitor (s) will pay over to the Company, its successors and assigns, all sums of money which it or its representative shall pay or cause to be paid, or become liable to pay on account of such suretyship, and on account of any damages, costs, charges, and expenses of whatsoever kind or nature in connection therewith as aforesaid, such payment to be made to the Company as soon as it shall have become liable therefor, whether it shall have paid out such sum or any part thereof or not, and said Company is hereby authorized to prove such expenses, costs and attorney fees, in any action or proceeding and to include the same in any judgment.
      FOURTH: That the Company shall have the exclusive right for itself, and for the Indemnitor (s), to decide and determine whether any claim, demand, liability, suit, action, order, judgment or adjudication made or brought against the Company and/or principal on any bond, jointly or severally, shall or shall not be defended, tried or appealed, and its decision shall be final, conclusive and binding upon the Indemnitor (s), and any order, judgment or adjudication made, entered or affirmed, as a result thereof, or any loss, cost, charge, expense or liability thereby incurred, sustained or paid, including attorneys’ fees, shall be borne by the Indemnitor(s), and the Indemnitor(s) especially consent thereto.
      SIXTH: The Indemnitor(s) agree to accept vouchers or. affidavits of any loss paid by the Company by reason of such suretyship, together with vouchers or affidavits of payment of all costs and expenses whatever, incurred by the Company in adjusting such loss, or in completing any contract, as prima facie evidence against the Indemnitor (s) of the fact and extent of the Indemnitor (s’) liability to the Company.
      EIGHTH: That it shall not be necessary for the Company to give the Indemni-tors), or any one or more of them, notice of any act, fact, or information, coming to the notice or knowledge of the Company concerning or affecting its rights or liability under any such instruments executed by it, or the rights or liability of the Indemnitor(s) hereunder, notice of all such being hereby expressly waived.
      ELEVENTH: The Company may at any time hereafter take such steps as it may deem necessary or proper to obtain its release from any and all liability under any of the above mentioned obligations, or under any other instruments within the meaning of Section Seventh hereof, and secure and further indemnify itself against loss, and all damages and expenses which the Company may sustain or incur, or he put to, in obtaining such release, or in further securing itself against loss, shall be borne and paid by the Indemnitor(s).
      TWELFTH: Any of the Indemnitor(s) may by written notice to the Home Office of the Company at Hartford, Connecticut, terminate their liability as to bonds, undertakings and other obligations in the nature of a bond executed by the Company subsequent to ten days after the receipt of such notice by the Company. It being understood and agreed that such notice of termination shall in no way modify, bar or discharge any obligations of the Indemnitor (s) to be performed under this agreement in connection with bonds executed by the Company prior to the effective date of the said notice of termination. It is further understood and agreed that in the event any of the Indemnitor (s) avail themselves of the privileges extended under this paragraph it shall be without prejudice to any right, claim, demand or cause of action which the Company has or may have against the other Indemnitor(s) under or by virtue of this agreement.”


author: BELL, Chief Justice.

text:
    Jerry SHAW, Appellant, v. A. L. (Curly) MILLER et al., Appellees.
    No. 14751.
    Court of Civil Appeals of Texas. Houston.
    Oct. 28, 1965.

      Robert H. Cowie, Houston, for appellant.
    Sears & Burns, Robert L. Burns, Houston, for appellee A. L. (Curly) Miller.
   BELL, Chief Justice.

This is an appeal from a judgment of the trial court dismissing appellant’s petition for a writ of injunction, it being of the view that it was without jurisdiction.

Appellant filed his petition against Mrs. M. H. Westerman, City Secretary of the City of Houston, and A. L. (Curly) Miller. In his petition he alleges that he has filed as a candidate for the office of Councilman, District B, of the City of Houston in the general election to be held November 20, 1965. The only other person who filed as a candidate for such office is Mr. Miller. It is then alleged that Mr. Miller is not entitled to have his name placed on the ballot because he was an opposed candidate for the same position at the general election held by the City of Houston November 16 and December 10, 1963, and that he wholly failed to comply with Articles 14.08(b) and 14.08 (f), V.A.T.S., as amended, which were in effect on the dates of said 1963 elections and which are in effect now. Section 14.08(b) requires such a candidate to file a sworn statement of all loans, gifts, etc., received by him in behalf of his candidacy. One shall be filed at a specified time before the election and another one must be filed within 10 days after the election. Article 14.08 (f) prescribes the form of the supporting affidavit and provides with what officers it shall be filed. It is then alleged that since Mr. Miller wholly failed to comply with these articles he thereby forfeited his right to have his name placed on the ballot as a candidate in the election to be held November 20, 1965, by reason of the provisions of Article 14.08(h), V.A.T.S. This latter section reads as follows: “Any candidate failing to file such sworn statement at the time provided or swearing falsely therein shall forfeit his right to have his name placed upon the ballot at any subsequent primary, special, or general election.” Prayer is for an injunction enjoining Mrs. Westerman from including Mr. Miller’s name in the drawing of candidates for positions on the ballot and from in any way causing Miller’s name to be placed on the ballot. Mr. Shaw prayed that Mr. Miller be enjoined from doing any act, except through court action, attempting to have his name placed on the ballot.

In the trial court and here appellees assert the district court has no jurisdiction to grant injunctive relief but the only remedy available to prevent Mr. Miller’s name from being placed on the ballot is through quo warranto brought by the State of Texas through its attorney general, or the proper District or County Attorney. The basis of this contention is the language of Article 14.09, V.A.T.S. This article in substance provides that proceedings by quo warranto to determine the right of any candidate alleged to have violated any provisions of Chapter Fourteen to have his name placed on the primary or general election ballot may be instituted in the district court by any citizen who may be entitled to vote for or against any candidate charged in such proceeding with any such violation. Appel-lees say this is the exclusive remedy.

Appellant contends this is not the exclusive remedy, but Article 1.07, V.A.T.S., authorizes him as an interested party, that is, as a candidate for the same office, to maintain this suit for injunctive relief in the district court. Too, he asserts Article V, Section 8 of the Constitution, Vernon’s Ann.St. and Article 4642, Vernon’s Ann.Tex.Civ.St., give the district court jurisdiction.

The trial court sustained appellees’ position and dismissed the case. We are of the view that the trial court correctly dismissed the case.

We must assume that 14.08(h) is applicable to the situation before us since the case comes to us purely on the question of whether the trial court was correct in holding it had no jurisdiction to try that issue in a suit brought only by appellant. We should not be understood as expressing an opinion as to whether it is applicable.

It is well established that a quo warranto proceeding under 14.09 cannot be maintained by an individual alone but must be brought by the State through its proper official. Staples v. State, 112 Tex. 61, 245 S.W. 639; State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253. Therefore, appellant could not alone maintain this suit under Article 14.09.

Appellant urges he may, however, sue alone as an interested party under Article 1.07. We are unable to agree. That article authorizes injunctive relief to enforce the provisions of Articles 1.05 and 1.06, V.A.T.S. These two articles deal with the eligibility of a candidate to hold office, and provide in substance that one who is ineligible to hold office shall not be entitled to have his name placed on the ballot or have his vote counted. There is no contention here that Mr. Miller is not eligible to hold office. It is merely contended he is not entitled to have his name listed on the ballot. Article 14.08(h) does not provide that a person violating the provisions of Article 14.08 with regard to filing accounts shall be ineligible to hold office. It merely provides he forfeits his right to have his name appear on the ballot. We feel we are supported in such construction by the case of Thorp v. Murchison, 259 S.W.2d 614 (Tex.Civ.App.), no writ hist. Therefore, appellant’s right to maintain suit under 1.07 is restricted to keeping the name of a proposed candidate off of the ballot when such person is ineligible to hold the office he seeks.

Article 14.09 is the statute to be employed where a violation of the provisions of Chapter Fourteen are charged in the suit. This chapter deals with the giving and reporting of campaign funds and their expenditure. This article has been held to provide the exclusive remedy for enforcing Article 14.08(h). Owen v. Longuemare et al., 268 S.W.2d 701 (Tex.Civ.App.). We are in agreement with that holding.

We deem Article 4642, V.A.T.S., and Article V, Section 8 of the Constitution inapplicable.

There is yet another reason why the case should have been dismissed, though such was not urged below. It is urged here as a reason we should affirm the judgment of dismissal. The cause was moot because it could not be disposed of prior to the time for the printing of ballots and the commencement of absentee voting. The suit was filed October 25, 1965. The election is to be held November 20, 1965. The time to begin absentee voting is November 1, 1965. Ballots must be printed in time to be available on that date. The trial and appellate process made available to the parties cannot be exhausted before that time. The cause is, therefore, moot and dismissal of the cause is proper. Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632; State ex rel. Cline v. Norris, 33 S.W.2d 850 (Tex.Civ.App.); State ex rel. Johnson v. Otter, 379 S.W.2d 100 (Tex.Civ.App.), no writ hist.

Article 14.09 provides that a proceeding such as this shall be advanced and summarily heard and disposed of by the trial and appellate courts. While appellant proceeded improperly by injunction, we think this part of Article 14.09 applicable to any proceeding seeking to keep the name of a person off the ballot for allegedly violating Article 14.08(h). This gives us authority to refuse the filing of a motion for rehearing. Therefore, no motion for rehearing will be entertained. State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253.

Affirmed.


text:
    Earnest S. BOREN, Appellant, v. George S. BOREN et al., Appellees.
    No. 5731.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 15, 1965.
    Rehearing Denied Oct. 13, 1965.

      A. R. Archer, Jr., Monahans, for appellant.
    Howze & Howze and T. H. Neel Mon-ahans, for appellees.
   CLAYTON, Justice.

This is a will contest. The purported will of O. K. Boren was offered for probate by appellee G. S. Boren, a surviving brother of the deceased, who was named therein as a devisee and Independent Executor. In the contest, this will was introduced by both parties and was copied in the record, but was not sent up to us in original form as an exhibit. As it appears in the record, the will occupied one sheet of paper to which was subscribed the signature of the testator under the date line, which appears as “this the- day of June, A. D. 1959”. No attesting witnesses’ signatures appear on this sheet, nor are there any lines for such signatures. On a separate and accompanying sheet of paper appears the affidavit required to make such will self-proved, and while the names of the witnesses are not filled in in the body of the affidavit, their signatures are subscribed below that of the testator at the end of the affidavit, and the same is properly acknowledged and sworn to before one T. H. Neel, an attorney who drew the will and affidavit, acting as notary public, dated the 10th day of June, A. D., 1959. The body of the affidavit recites that there appeared before the notary “the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities * * *” and upon request of the testator, each witness “upon their oaths * * * stated further that they did sign the same as witnesses in the presence of said testator and at his request * * *”

The will was admitted to probate and G. S. Boren was appointed Independent Executor by order of the County Court of Ward County, Texas. Thereafter, another surviving brother, Earnest S. Boren, appellant, filed in the County Court his petition to set aside the order admitting the will to probate and praying that such instrument be declared null and void and of no force and effect as a will, alleging that the purported will was not executed in the manner provided by law in that there were no witnesses to said will. Named as defendants in said petition were G. S. Boren and another surviving brother and sister of the deceased, also beneficiaries under the will. An answer in the form of a general denial was filed by the proponent, G. S. Boren, and Earnest S. Boren filed his motion for summary judgment. Defendants, appellees here, filed an amended answer alleging that the proffered will was executed in substantial compliance with the law and properly admitted to probate. They also answered appellant’s motion for summary judgment alleging there were substantial, genuine issues as to material facts existent in the case. Attached to the answer to the motion for summary judgment were identically worded affidavits of the,, purported witnesses to the will stating that on or about June 10, 1959, at the request of the testator, each had gone to the office of the attorney, Mr. Neel, and signed as witnesses the will .of testator, and each swore that the instrument admitted to probate was the will that each had witnessed. Also attached was the affidavit of attorney Neel, who swore that he had prepared for the testator the will which was admitted to probate, and that at the time it was executed all requirements of law were complied with and the witnesses were present at the execution of the will and properly witnessed it at the request of the testator and in his presence and in the presence of each other. He further swore that the witnesses had signed a separate sheet witnessing the will and also appeared before him as notary public, along with the testator, and executed the affidavit which was attached to the will offered for probate, but that the separate “witnessing sheet” was somehow misplaced or lost.

Judgment was entered by the County Court which recites that “all matters of fact as well as of law were submitted to the Court,” and that “plaintiff introduced evidence on each and every ground of his contest of the order probating said will”; and, finding such order regular and that it should not be disturbed the court denied the relief prayed for by plaintiff, from which judgment plaintiff-appellant appealed to the District Court of Ward County.

In the district court appellant again moved for summary judgment, to which appellees again replied as before. The motion was denied and the cause was heard by the court without a jury. The court entered judgment for appellees and found that the instrument offered for probate was in substantial compliance with law and was properly admitted to probate, affirming the judgment of the County Court. The appeal before us was then perfected.

Appellant’s two points of error charge that the district court erred in refusing to set aside the proffered will because the same was not subscribed by two or more disinterested witnesses as required by section 59 of the Probate Code, V.A.T.S. and in holding that said will substantially complied with the law.

Section 59 of the Probate Code reads as follows:

“§ 59. Requisites of a will
“Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two (2) or more credible witnesses above the age of fourteen (14) years who shall subscribe their names thereto in their own handwriting in the presence of the testator * * * ”

Appellant correctly states that the purpose of this requirement is to- guard against undue imposition on the testator and to prevent the fraudulent substitution of instruments. 61 Tex.Jur.2d 160, § 58. Appellant also cites Fowler v. Stagner, 55 Tex. 393 (Com.App., 1881). That case holds: “It was not material, we think, in what part of the instrument they signed their names as witnesses, if that were done after the subscription and acknowledgment of it by the testator, and with the purpose of attesting it as subscribing witnesses.” See also 61 Tex.Jur.2d 161, § 60: “The validity of an attestation is not deemed to be affected by the location on the instrument of a witness’s signature, regardless of the reference in the applicable provision to witnesses who shall subscribe their names to the instrument.” Sec. 59, Probate Code.

In the case before us, both witnesses to the will appeared in court and testified, as well as having signed and sworn to the properly worded affidavit to make the will self-proving. They could not positively identify the testamentary page of the instrument, and were not aware of its contents. But the lawyer, Neel, who'prepared the will, also testified to the facts stated in the affidavit, as outlined above, which satisfactorily tied in the witnesses to the will he had prepared and which was admitted to probate. The trial court, as trier of the facts, had the right to believe his testimony or to reject it. The court apparently gave due credence to the above part of the lawyer’s testimony, although he rejected that part relative to a lost “witnessing sheet” of the instrument (not the self-proving affidavit), and made a finding to that effect. The burden of establishing the invalidity of the will or its probate was upon appellant and every presumption will be indulged in favor of the court’s judgment. Fowler v. Stagner, supra; Ludwick v. Fowler, 193 S.W.2d 692 (Tex.Civ.App., 1946; ref. n. r. e.). We are of the opinion and hold that the burden upon appellant has not been met, and appellant’s points of error are overruled.

Finding no error, the judgment of the trial court is in all things affirmed.


author: RENFRO, Justice.

text:
    FAIR WEST BUILDING CORPORATION, Appellant, v. TRICE FLOOR COVERINGS, INC., Appellee.
    No. 16664.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 24, 1965.
    Max E. Clark and G. V. Morton Minton, Fort Worth, for appellant.
    Dalton, Moore, Forde & Joiner, T. M. Dalton, Jr., and Dan W. Stansbury, Dallas, for appellee.
   RENFRO, Justice.

A lease contract was executed by Trice Floor Coverings, Inc., and Fair West Building Corporation for a ten year period beginning February 1, 1955, with a five year option. Trice, the tenant, at the expiration of the ten year period, exercised its option and is occupying the described premises.

Plaintiff, lessee, desires to sublet a portion of the premises for the use and occupancy by a subtenant for purposes which are not in violation of law or the zoning ordinances applicable to the premises, but for a purpose other and different from those normally found in a floor covering store and not performed by Trice Floor Coverings, Inc.

Under declaratory proceedings the trial court decreed that plaintiff has the right under the indenture of lease between the parties to sublet all or any part of the premises described in said lease to subtenants for their use and occupancy for any purpose or purposes not in violation of law or the zoning ordinances applicable, and to make such changes and additions to the interior of the premises as shall be reasonably necessary for convenient use of the premises by plaintiff and its subtenants which do not affect the structural quality of the building.

Defendant contends the court erred because: the use of the building is restricted to the operation of a unit of Trice Floor Coverings, Inc.; subletting by the tenant is subject to all other provisions of the lease; and plaintiff has no right to make changes to the interior of the premises without the consent of the landlord.

In paragraph 4 “The Landlord and Tenant agree that said premises, during the continuance of this lease, may be used and occupied by tenant only for: Operating a unit of Trice Floor Coverings, Inc. and for no other purpose.”

Paragraph 5 prohibits the tenant from making any structural changes in the premises.

Paragraph 7 requires the landlord’s consent for changes to the exterior, but does not require consent for alterations, improvements, etc., inside the premises.

Paragraph 12 provides: “The Tenant may assign or transfer this lease or Tenant may at any time or from time to time sublet all or any part of the premises to sub-lessees, concessionaires, or independent contractors, provided, however, that no such assignment or sub-letting shall in any wise release Tenant from its obligation to pay the minimum guaranteed and percentage rentals herein stipulated. However, no assignment of the lease by the Tenant shall be effective as to the Landlord until the Landlord has been furnished with a true copy of the instrument of assignment, including the post office address of the as-signee and said assignment shall not release the Tenant from any obligations under this lease.”

Defendant relies for reversal upon Young v. De La Garza, Tex.Civ.App., 368 S.W.2d 667, and Grossmann v. Barney, Tex.Civ.App., 359 S.W.2d 475.

In the Young case the lease itself contained an express prohibition of reassigning without written consent of the landlord. In the Grossmann case the lease provided that no alteration would be made without the landlord’s written consent.

In the instant case the tenant proposes to make alteration in the interior of the building only, and the lease does not require consent of or notice to the landlord for such changes as contemplated.

Although Article 5237, Vernon’s Ann.Civ.St.Tex., provides that a person renting land or tenements shall not rent or lease the same during the term of the lease to any other person without consent of the landlord, such provision is for the sole benefit of the landlord'and he may waive said provision. 36 Tex.Jur.2d, p. 63, § 224.

Paragraph 12 gives the tenant the right to sublet. The only requirements of the tenant are that it remain liable for the rent, and that if the lease is assigned to another a copy of the assignment be delivered to the landlord. The sublease provision does not refer to any other part of the contract, except as to rent liability, and does not by reference or otherwise expressly make the sublease provision subject to any other provision of the lease agreement.

By unqualified words the parties in paragraph 12 said that the tenant might sublet all or any part of the premises to subles-sees, concessionaires or independent contractors. The provision does not confine such subtenants to any particular usage of the premises, and does riot restrict the lessee’s right to sublet to any class of persons or businesses.

If in fact there arc conflicts between paragraphs 4 and 12, such conflicts must be reconciled and harmonized, if possible, by reasonable interpretation, and the contract as a whole given effect. To uphold defendant’s contention that the premises may be used only for operating a unit of Trice Floor Coverings, Inc., would render paragraph 12 meaningless and of no effect. We are bound by the meaning of what the parties said in the lease. 19 Tex.Jur.2d, p. 401, § 111. Considering the instrument from its four corners, it is reasonably susceptible to the construction given by the trial court.

We think the court was correct in decreeing the plaintiff had the right to make reasonably necessary interior changes for two reasons, first, the lease does not require the consent of the landlord for such alteration, but in fact assumes that the tenant will from time to time make interior alterations; and, second, as held by this Court in Mayer v. Texas Tire & Rubber Co., 223 S.W. 874 (Fort Worth Civ.App., 1920, no writ hist.), the stipulation in the contract according the lessee the right to sublet the premises, in part or in whole, carries with it the right of the lessee to make such changes and additions in the building as are reasonably necessary to the lease of the building by such tenants, provided such changes do not constitute a substantial change in the structural quality of the building, and where the additions can be removed at the expiration of the lease without injury to the building.

Affirmed.


text:
    Wilma A. WEAVER, a Feme Sole, et al., Appellants, v. Joseph B. BRANDIN et ux., Appellees.
    No. 14613.
    Court of Civil Appeals of Texas. Houston.
    Sept. 23, 1965.
    Rehearing Denied Oct. 28, 1965.

      Ted Musick, Houston, for appellants.
    Simmons & Williams, Roy Simmons, Jr., Houston, for appellees.
   BELL, Chief Justice.

Appellees sued appellants to cancel a deed of trust executed by Joseph B. Brand-in to Wilma A. Weaver and also to cancel a deed to the described property given to Wilma A. Weaver after foreclosure by the substitute trustee. Appellees also sought in the suit $10,000.00 actual and punitive damages for the wrongful acts of Wilma A. Weaver in obtaining the deed of trust and the subsequent foreclosure.

Appellant, Wilma A. Weaver, by way of action over against appellees sought recovery of damages of unspecified amounts because of monies allegedly belonging to her that were allegedly wrongfully appropriated by Joseph Brandin. Too, she sought reasonable attorney’s fees. The appellant who was the substitute trustee sought recovery of a reasonable attorney’s fee and reimbursement for expenses.

Appellees filed their motion for summary judgment, supported by affidavits, asserting there was no genuine issue of material facts, except as to the amount of damages, if any, and asked that judgment be rendered cancelling the deed of trust and substitute trustee’s deed.

Appellants answered the motion and the answer was supported by an alleged affidavit.

The court’s judgment recites the motion for summary judgment came on to he heard and from a consideration of the motion, the exhibits and affidavits the court was of the view there was no genuine issue of any material fact “except as to the amount of damages, if any.” The judgment then proceeds to cancel the deed of trust and substitute trustee’s deed. There is then an adjudication “that all other affirmative relief sought by the respective parties is hereby denied.” In view of this last quoted recital and the absence of any complaint of it by point of error or cross-point, we consider the judgment a final one resulting from the trial court having disposed of the issue of the validity of the deed of trust and trustee’s deed on motion for summary judgment and the issues with regard to damages and attorney’s fees having been determined on the facts and law after trial by the court.

The pleadings and properly drawn affidavits of appellees, the affidavits having attached certified copies of the material instruments, establish the following facts:

On May 11, 1962, Wilma A. Weaver, by general warranty deed, conveyed to Joseph B. Brandin Lot 22, Block 16, South Park Addition in Houston. The property was subject to a lien of $9,250.00 in favor of Holland Mortgage & Investment Corporation. The conveyance was made to Brandin in satisfaction of real estate commissions owed to him by Wilma A. Weaver. Bran-din neither then nor thereafter owed any money to Wilma A. Weaver. A few days after this deed was executed and delivered, Mr. and Mrs. Brandin moved into the property and began occupying it as their homestead. They have continued to so occupy it and claim it. After the commencement of occupancy and on or about December 14, 1962, Wilma A. Weaver requested Mr. Brandin to execute the deed of trust “so that she could use same for tax purposes.” The note for $500.00 recited in the deed of trust but not set out therein never existed and Brandin was not indebted to Weaver. Brandin never appeared before a notary public and never acknowledged the deed of trust. Mrs. Brandin did not execute the deed of trust nor was she asked to. The deed of trust was back-dated to May 11, 1962, but was actually signed in December, 1962 and was filed for record December 14, 1962. Sale by the substitute trustee was made without any notice to the Brandins. Their first knowledge of the sale was in July, 1964, when they received a copy of the substitute trustee’s deed to Wilma A. Weaver.

The above facts, if not properly controverted, support the trial court’s judgment, rendered on motion for summary judgment. We have concluded there is no proper affidavit refuting the above facts supported by affidavit of appellees.

There is an alleged affidavit of Wilma A. Weaver. Nowhere in it is there a statement that she was personally familiar with the facts stated, and there is nothing otherwise reflecting that she is personally familiar with the facts. She recites she was one of the owners and managers of “Classic Realty Company at the time in question.” Since she states she was one of the owners of the Realty Company and fails to state she handled the transaction personally, the affidavit fails to show she was personally acquainted with the facts so she could testify to the facts. Then follow statements that Brandin signed the deed of trust on May 11, 1962, before a notary public, that he did not sign the note for tax purposes but as a part of the consideration for the conveyance; that he refused to pay and she foreclosed through regular foreclosure proceedings. This is a pure conclusion that there was a regular foreclosure. Nowhere does a copy of any note appear.

To be sufficient the affidavit must in some way affirmatively show the affiant is personally familiar with the facts so she could testify as a witness. In this the affidavit fails. Too, the matters sworn to must he facts that would be admissible in evidence. Wilma Weaver’s affidavit is insufficient in this regard. Rule 166-A, Sec. (e), Texas Rules of Civil Procedure; Richards v. Smith, 239 S.W.2d 724 (Tex.Civ.App.), ref. n. r. e.; Hunt v. Southern Materials Co., 240 S.W.2d 400 (Tex.Civ.App.), refused; Edwards v. Williams, 291 S.W.2d 783 (Tex.Civ.App.); Mugrage v. Texas Emp. Ins. Ass’n, 304 S.W.2d 189 (Tex.Civ.App.), error dism.; Quarles v. State Bar of Texas, 316 S.W.2d 797 (Tex.Civ.App.), no writ hist.; Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274.

The judgment of the trial court is affirmed.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Noah HAYES et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Robert Matthews, Frankfort, William A. Lamkin, Jr., Frankfort, Charles W. Huddle-ston, Bowling Green, L. A. Faurest, Eliza-bethtown, for appellant.
    Carmol D. Cook, Hartford, for appellees.
   HILL, Judge.

This is an appeal from a judgment for $11,750 awarded appellees by a jury for thirty-four acres taken by appellant out of appellee’s farm for use in construction of the Western Kentucky Turnpike, a toll road. The farm contained 124.5 acres before the taking.

Appellant complains of the ruling of the trial court on the admission and rejection of evidence and contends the judgment is excessive.

Before getting into the evidence complained of, the following pertinent facts may be uesful in bringing the situation into focus. The farm is located on a gravel road known as the Liberty Church Road about three miles from Beaver Dam. The road is paved to within a short distance of the farm. About 100 acres of the farm are cleared and in cultivation. Eight acres at the north are in woodland. A 5.3 acre tract of timber is cut off from the farm by the construction of the road; however, this small tract has access to a country road. The right-of-way is taken from the south end of the farm.

First, appellant argues that Commonwealth witness Lewman was required to testify on cross-examination relative to the value of a pond located on the tract taken. This was not improper cross-examination. The appellees had a right to inquire of this witness as to how he arrived at his valuation. This conclusion is in accord with Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963), and Commonwealth, Department of Highways v. Stamper, Ky., 345 S.W.2d 640 (1961).

The next objection is made to ap-pellee Hayes’ evidence in regard to the nature of his farming operations, and his testimony that he could not make a living on the reduced acreage after the taking, and in which he fixed the value of his farm equipment. We conclude all this evidence is incompetent; and since this case is being reversed for other reasons, it should not be admitted on a second trial of this case.

Appellees’ witness Tim Barnes was allowed on direct examination to testify in detail regarding the different valuations placed by him on various parts of the farm, as well as elements that he considered in arriving at the after valuation. Such evidence was not improper.

Appellant further contends the trial court erred in refusing to strike the testimony of appellees’ witness McDowell, on the ground that this witness admitted he considered the existence of a barn on the property in fixing his valuation when, in fact, the barn had burned. This witness resided within four miles of the property in question and formerly owned land adjoining it. He was familiar with the farm, the water supply, and the general topography of the farm. He passed it often. In overruling appellant’s motion to strike all the evidence of this witness, the court said:

“Ladies and gentlemen of the jury, you will take into consideration the fact that Mr. McDowell was considering the barn there when he set the value of $300 an acre, when in fact the evidence shows that there was not a bam, and naturally that would make the value less than that fixed by Mr. McDowell.”

We think this admonition cured any prejudicial effect of the testimony of this witness. The court properly overruled the motion to strike the testimony of this witness.

Finally, appellant attacks the verdict as excessive. The amount of the verdict represents a valuation of $345 per acre for the 34 acres taken.

Appellant’s witnesses used five comparable sales ranging from $55 per acre to $167 per acre for an average of $123 per acre. Based on these comparisons the 34 acres taken amount to $4,182. The three witnesses for appellant testified the difference in before and after value ranged between $6,100 and $6,613.

Appellee Hayes used five witnesses in addition to testifying himself. According to this testimony, the difference in the before and after value ranged from $14,000 to $18,800. These witnesses did not use comparable sales or give reasons for the difference in before and after value of the remaining land. However, some of the witnesses placed a higher value on the land taken because of a pond located thereon. These witnesses all admitted that the Black farm, immediately across the road from the farm in question, sold for $167 an acre in March preceding the trial of this case in September. This tract, as the farm involved in the present case, was without improvements. Except for the Rest Home Farm and Stevens Farm to which we later refer, appellees’ witnesses do not give comparable sales. Neither do they give plausible reasons for the differences in their values before and after the taking. Appel-lee Hayes testified that he sold the remaining land for $15,100, which included lumber valued at $1,100 on the farm at the time of sale which he intended to use in the construction of a barn. So, he sold the remainder of this farm at the rate of less than $165 per acre.

The Rest Home Farm and the tract sold by Stevens to Ferguson were near the town of Beaver Dam. It is universally known that land near a town is usually more valuable than that farther out.

We conclude the verdict and judgment is grossly excessive and hence reverse the judgment with direction for a new trial.


text:
    Marshall DAVENPORT, Clerk, Pulaski County Court, Appellant, v. Vernon REDMON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 8, 1965.
    Joseph A. Montgomery, Somerset, for appellant.
    No attorney for appellees.
   HILL, Judge.

This is an appeal from a judgment upholding the action of the Pulaski County Republican Executive Committee in naming five Republican nominees for magistrate and five nominees for constable for five new magisterial districts. Appellant prosecutes this appeal seeking a declaration of the rights of all parties herein.

On September 30, 1964, the Pulaski County Court entered a judgment reapportioning Pulaski County into five in lieu of eight magisterial districts. The Pulaski Circuit Court on February 17, 1965, adjudged the order void. On August 24, 1965, this Court reversed the judgment of the circuit court and adjudged the order of the county court valid. In the time provided by law, numerous persons qualified as candidates for the offices of magistrate and constable in the eight districts existing before the county court reapportioning. After the August 24 judgment of this Court those nominated in the May 1965 primary found themselves in varied situations. In some instances more than one nominee resided in the same newly created district. Others did not reside in the new district in which they were nominated. There were eight Republicans nominated for magistrate and only five new districts. There were three Democrats nominated for magistrate, but two of them reside in one of the new districts. Eight Republicans and four Democrats were nominated for the office of constable.

On September 24, 1965, the Pulaski County Republican Executive Committee met and nominated two persons for each of the five new districts, one for magistrate and the other for constable. It is contended by appellees this action was authorized by KRS 119.020 and 118.090, even though on their face the statute provides only for finding a vacancy after the primary. The material part of Section 119.020 as amended in 1964 is as follows:

“(3) If a vacancy occurs in the nomination of an unopposed candidate or in a nomination made by the primary before the ballots are printed for the regular election, the governing authority of the party may provide for filling the vacancy. * * * ”

Section 118.090 provides:

“(4) In case of death, resignation or removal of any such candidate subsequent to nomination and before the ballots are printed, the chairman of the state, county or city district committee shall fill the vacancy * *

In connection with the last quoted statute, it should be noted that the Chairman of the Pulaski Republican Executive Committee was present and participated in the nomination in question.

True, KRS 119.020 intended to require nominations to be made by the two political parties instead of by conventions. In the instant case, a good faith effort was made to nominate according to statute. It is not a case in which the party did not nominate at all. It was a selection of nominees under a mistake of law. In fact, a forceful argument may be made for the proposition that the nominations made in the May primary were valid; however, the established rule of this Court is that on a reversal finding the order of the county court valid, it is considered a valid order from the beginning. In any event, we think the statutes quoted above should have a liberal meaning in such a situation as we have here. Certainly, the legislature intended to write a law allowing the filling of vacancies in this manner. This conclusion does not violate the spirit of the statute.

We conclude the judgment appealed from is correct, and it is affirmed.