author: BELCHER, Judge.

text:
    Raymond Lee JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 40519.
    Court of Criminal Appeals of Texas.
    July 19, 1967.

      B. F. Patterson, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales and Charles T. Conaway, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order revoking probation.

Upon his plea of guilty before the court on January 13, 1964, the appellant was found guilty of felony theft and his punishment was assessed at a term of three years.

The imposition of sentence was suspended and the appellant was placed on probation.

Among the twelve conditions of his probation were that he report in person to the Adult Probation Officer; that he make certain restitution payments; and that he commit no offense against the laws of this state.

Following the granting of probation the Criminal District Attorney filed a motion to revoke probation alleging that appellant had failed and refused to report to the Adult Probation Officer; that he failed and refused to make restitution; that he was found intoxicated in a public place; that he had committed a breach of the peace; that he had been convicted of disturbing the peace; and each being in violation of the conditions of his probation.

On the hearing, evidence was introduced which supported the allegations of the motion to revoke as above enumerated.

While testifying, the appellant stated that he had read the amended motion to revoke probation and that each and all the allegations in it were true.

At the conclusion of the hearing the court entered its order finding that the appellant had violated each of the conditions of probation as above set out.

The evidence is sufficient to support the court’s order revoking probation and no abuse of discretion being shown, the judgment is affirmed.

ONION, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Stiles Tuttle DeFOY.
    No. 40498.
    Court of Criminal Appeals of Texas.
    July 12, 1967.

      Tom Diamond, El Paso, for appellant.
    Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding the appellant to custody for extradition to the State of New York.

The executive warrant issued by the Governor of Texas, which appears regular on its face, was introduced in evidence. It is recited in the warrant that the appellant stands charged by indictment, which is accompanied by warrant, and supporting papers, with the crime of sodomy in the first degree and assault in the second degree. The warrant made out a prima facie case authorizing the remand of the appellant to custody for extradition. Ex parte Favor, Tex.Cr.App., 406 S.W.2d 434.

Error is urged on the ground that the appellant did not commit an act in New York which would constitute a crime in Texas, there being no proof offered of the law of New York.

A duly authenticated copy of a portion of the Penal Law of the State of New York is included in the record.

From a consideration of said penal law it appears that the indictment substantially charges the appellant with a crime and was sufficient upon which to base a demand for extradition. No error is shown.

Appellant seeks his discharge on the ground that he was arrested and detained by the F. B. I., who took him before the Commissioner of the Federal Court, where he expected a hearing but never got one, and later a U. S. Marshal transferred him to the county jail.

While testifying, the appellant admitted knowing of the charges against him, and stated that he fled for the reason he was not guilty; that the Federal Commissioner advised him of his right not to make a statement and of his right to counsel.

From a consideration of the record, nothing appears which warrants the discharge of the appellant.

The trial court was authorized to conclude as he did and remand the appellant for extradition.

The judgment is affirmed.


author: ONION, Judge.

text:
    Ex parte Otto THOMPSON.
    No. 40573.
    Court of Criminal Appeals of Texas.
    July 12, 1967.

      Davis, Davis & Hornbuckle, by Wm. E. Hornbuckle III, Huntsville, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from a habeas corpus proceeding. Relator challenges the legality of his custody by virtue of a warrant based upon a complaint charging him with being a fugitive from justice.

On May 10, 1967, relator was arrested by virtue of such warrant. On the same date the Governor of Texas issued an extradition warrant ordering the relator extradited to the State of New Mexico. Such extradition warrant was withdrawn by the Governor on June 2, 1967, prior to the conclusion of the habeas corpus hearing on June 9, 1967.

It has now been made to appear that the Governor of Texas issued another extradition warrant for this relator on June 26, 1967, and that the same has been executed as to this relator. Since relator’s present custody is by virtue of the extradition warrant dated June 26, 1967, and not by virtue of the “fugitive” warrant, this appeal is rendered moot.

The appeal is dismissed.


author:
DICE, Judge.
      ONION, Judge. MORRISON, Judge

text:
    Charles HARDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 40315.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Rehearing Denied July 26, 1967.

      John R. Lee, Kermit, for appellant.
    A. R. Archer, Jr., Dist. Atty., Monahans, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

Arson is the offense; the punishment, four years.

The indictment, drawn under Art. 1304 of the Vernon’s Ann.Penal Code, alleged that on or about the 31st day of May, 1965, the appellant did “unlawfully and wilfully burn a house * * * occupied by and in the possession of Tom Fletcher * *

At the trial, Fletcher, the prosecuting witness, testified that on the date alleged he operated a Kent service station in Ward County on the Grandfalls highway; that he maintained living quarters on the premises in an eight-by-fifty-foot trailer which, although equipped with wheels and tires on the hubs, was leveled and sitting on blocks. The trailer, consisting of a kitchen, living room, bath, and bedroom, was connected with sewer, water, and lights and had been occupied by the witness for seven months as a residence. The witness testified that on the night in question the appellant and Gene Summers came to his trailer house around 3 a. m. and wanted to buy some beer. He refused, and they left. Later they returned and “hollered about some more beer.” He started to the door and was fired at twice by appellant with a pistol. Summers was heard to say to appellant: “Why don’t you burn him out ? ” A noise was then heard at the gasoline pump and fifteen minutes later a bottle of gasoline with a rag burning therein was thrown into a window, setting the trailer house on fire and burning it “down.” Appellant’s car was then driven away.

The witness Eugene Summers, who the court instructed the jury was an accomplice, testified that on the night in question he and appellant went to the service station, at which time appellant asked the prosecuting witness, Fletcher, if his wife was there and that when Fletcher replied. “no” appellant accused him of lying and they “started shooting at each other.” The witness swore that he did not throw the bottle of gasoline in the trailer, but stated “I guess it was Charles. I didn’t see him throw it in but I reckon it was [sic].”

Appellant did not testify or call any witnesses.

The issue of appellant’s guilt or innocence was first submitted to the jury, and upon return of the jury’s verdict of guilty appellant elected to have the same jury assess the punishment. Thereupon, a hearing was had on the question of punishment as provided by Art. 37.07, subd. 2 of the 1965 Code of Criminal Procedure.

Nineteen grounds of error are urged by appellant in his brief filed with the clerk of the trial court.

In his first nine grounds, appellant urges that the evidence is insufficient to support the conviction.

He first insists that there was a fatal variance between the pleading and the proof because the indictment charged the burning of a house, as defined in Art. 1305, V.A.P.C., of the general arson statutes, and the proof showed the burning of a “motor vehicle, or vehicle or trailer,” as denounced by Art. 1318 of the Penal Code. It is insisted that since the two statutes define separate offenses and prescribe different penalties the conviction cannot stand because of such variance. In support of his contention, appellant cites the opinion of this court in Loftis v. State, 157 Tex.Cr.R. 569, 251 S.W.2d 411, wherein it was pointed out that the decision in Luce v. State, 128 Tex.Cr.R. 287, 81 S.W.2d 93 — holding that a cabin mounted upon an automobile and used as a place of residence constituted a house within the meaning of the burglary statute — had been rendered ineffective by the enactment of Art. 1404b, V.A.P.C., creating the separate offense of burglary of a motor vehicle and affixing punishment less than and different from that prescribed to the offense of ordinary burglary.

We do not construe the Luce decision as authority for holding that a trailer house mounted on blocks, such as the one in the instant case, is not a house within the meaning of the arson statutes. We hold that the trailer house in question, which was being used by the prosecuting witness as a residence, was a house within the meaning of Art. 1305, supra, and not a motor vehicle or trailer within the purview of Art. 1318, supra.

Nor do we agree with appellant’s contention that the state’s proof failed to show that the trailer house in question was a “house” within the definition of Art. 1305, supra, because it did not show that the structure was “enclosed with walls and covered.” While the state did not specifically inquire whether the structure was enclosed with walls and covered, the proof did show that the trailer house had been used by the prosecuting witness for seven months as a residence and that it had a door and windows. We deem the proof sufficient to show that the structure was enclosed with walls and covered. To assume otherwise would be unrealistic.

In his grounds of error # 10 and #11, appellant insists that the state failed to prove venue.

The prosecuting witness testified that he operated the Kent service station located “in Ward County, Texas,” and that he maintained living quarters in the trailer on the premises. When asked where the service station was located with reference to Mona-hans, Texas (the county seat), the witness replied that it was on “Grandfalls Highway. * * * I think it’s considered the 1700 block.”

Venue need not be proved beyond a reasonable doubt but may be proved by circumstantial as well as direct evidence. It is held that venue is sufficiently proved if from the evidence the jury may conclude that the offense was committed in the county alleged. Rippee v. State, Tex.Cr. App., 384 S.W.2d 717. The evidence adduced was sufficient to warrant the jury's conclusion that the offense was committed in Ward County.

We overrule appellant’s grounds of error #12 and #13, wherein he contends that his conviction cannot stand because the testimony of the accomplice witness, Summers, was not sufficiently corroborated.

The testimony of the prosecuting witness was corroborative of the accomplice’s testimony and tended to connect appellant with the offense charged.

We also overrule appellant’s grounds of error #14, #15, and #16, wherein he contends that the evidence fails to show that he set fire to the building. The testimony of the prosecuting witness and the accomplice, Summers, is sufficient to warrant the conclusion that he did. In this connection it should be noted that the court submitted the issue of appellant’s guilt to the jury upon a charge on principals.

In his ground of error #17, appellant insists that the court erred in permitting the prosecuting witness to testify that he (appellant) fired the two shots at him because it constituted proof of an extraneous offense.

We perceive no error. Such testimony was admissible to establish appellant’s ill-will toward the prosecuting witness, whose house was burned. 6 Tex.Jur.2d 218, Sec. 23.

Grounds of error #18 and #19 pertain to the court’s instruction to the jury on the issue of punishment. It is first insisted that the court erred in refusing to grant a mistrial because the court, in informing the jury that appellant had elected that it assess the punishment, read to the jury that portion of Art. 37.07, subd. 2(b) of the 1965 Code of Criminal Procedure which reads as follows:

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”

Appellant insists that by such action he was not given an opportunity to object or request additional charges.

We perceive no injury to appellant, as evidence was then introduced on the issue of punishment and a written charge given to the jury to which appellant was given an opportunity to object.

Error is also urged on the ground that the court misdirected the jury in instructing it to assess punishment in accordance with Art. 1314 of the Penal Code rather than the punishment prescribed in Art. 1318 of the Code.

No error is presented, as under the allegation in the indictment and the proof the prosecution was for arson by wilfully burning a house, as defined in Art. 1304, V.A. P.C., with punishment prescribed in Art. 1314, and not for arson under Art. 1318 by wilfully burning a motor vehicle or vehicle or trailer which was the property of another.

The judgment is affirmed.

OPINION ON REHEARING

ONION, Judge.

In his motion for re-hearing, appellant vigorously attacks our conclusion that the evidence shows that the trailer house in question was mounted on blocks and leveled, and that the proof was sufficient to show that such structure was enclosed with walls and covered.

Appellant points out that the testimony of the witness Fletcher to the effect that the trailer house was mounted on blocks and leveled was given outside the presence of the jury. He is correct. Nevertheless, we observe that in the presence of the jury, Fletcher identified State’s Exhibit No. One as appearing to be a photograph of his burned out trailer house. Thereafter, the statement of facts reveal the following:

“Q (By Mr. Archer) Now, assuming this is your trailer house, now, can you tell us, can you show the Jury where the bedroom would be f
A Yes, sir. Assuming this is my trailer house, it would be right past that partition there.
Q What partition ?
A The one you can see in the picture there. This is the living room and dining area and there was a bedroom, bathroom and another bedroom.
Q All right, can you state, Tommy, where the fire was * * * It shows to be burned out, is that correct, right there?
A Yes, sir.
Q Where would the window have been ?
A This deal, there is two plate glass windows inside these frames. The second one down toward the back was the one that it came through.
Q All right. What came through?
A A beer bottle full of gas with a rag stuck in it.”

In absence of a timely objection, the display of the photograph before the jury and the elicitation of testimony concerning its features was tantamount to the introduction of the photograph and it could be properly considered as part of the evidence. Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199.

It is obvious from the above quoted portion of the record that the testimony relating to the photograph was elicited without objection, and it constituted evidence from which the jury could have concluded that the trailer house was a structure enclosed with walls and covered at the time of the offense.

It appears that the photograph, marked for identification as State’s Exhibit No. One, was never formally offered and introduced into evidence nor brought forward in the record. It, however, has now been made available to this Court upon our request. Such photograph discloses that the trailer house in question was mounted on blocks and leveled and was enclosed with walls and covered. Appellant’s contention is overruled.

Appellant still vigorously contends the evidence is insufficient for the jury to have concluded that the offense was committed in Ward County, Texas. In addition to what we said on original submission, we observe the evidence reflects that the Kent Service Station located in Ward County was situated one hundred yards south of the Interstate 20 bypass on the west side of the Grandfalls Highway, and that trailer house was “right behind” the said service station, and used the same meter for water and lights as the service station. We remained convinced of the correctness of our original ruling.

We further adhere to our holdings that the trailer house in question was a house within the meaning of Article 1307, V.A. P.C., and not a motor vehicle or trailer within the purview of Article 1318, V.A.P. C., and that the extraneous offense shown was admissible.

Appellant’s motion for re-hearing is overruled.

OPINION

MORRISON, Judge

(dissenting in part).

I must, to be consistent with what I have said in the past, dissent to that portion of my Brother Onion’s opinion in which he considers the picture which has never been filed or introduced in evidence in the trial court. Reference is made to the following cases: Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37; Hill v. State, Tex.Cr.App., 375 S.W.2d 306; Ex parte Seffens, Tex.Cr.App., 376 S.W.2d 348; Luna v. State, Tex.Cr.App., 387 S.W. 2d 660; McDonald v. State, Tex.Cr.App., 385 S.W.2d 253; and Culbert v. State, Tex.Cr.App., 415 S.W.2d 646.

White v. State, Tex.Cr.App., 410 S.W.2d 440, can have no application to the case at bar, as it is limited only to those questions of constitutional dimensions.

I respectfully dissent to the above portion of the opinion.


author: MORRISON, Judge.

text:
    Ex parte Charlie HANCE.
    No. 40577.
    Court of Criminal Appeals of Texas.
    July 12, 1967.
    Charlie Hance, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is a habeas corpus proceeding attacking the validity of a life sentence wherein two prior convictions were used to enhance the punishment.

Petitioner alleges that the punishment in his primary conviction for burglary was enhanced to life imprisonment by the use of a void 1950 conviction for theft of an automobile. He contends that the conviction for theft was void because he was not represented by counsel at the time he plead guilty and waived the jury as is required by Article 1.13, Vernon’s Ann.C.C.P., 1965, (Article 10a V.A.C.C.P. 1925). The records before the Court at this time substantiate petitioner’s allegation. The 1950 conviction is void. Wilson v. State, 157 Tex. Cr.R. 642, 252 S.W.2d 197, and Ex parte Rawlins, 158 Tex.Cr.R. 346, 255' S.W.2d 877. Under recent opinions by the Supreme Court of the United States, Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, and by this Court in Ex parte Hammonds, Tex.Cr.App. 407 S.W.2d 779, and Ex parte Greer, Tex.Cr.App. 408 S.W.2d 711, such a conviction cannot be used to enhance punishment.

The provisions of Article 62, Vernon’s Ann.P.C. were applicable and the prior conviction for robbery by assault in 1938 authorized a punishment of twelve years. Article 1397, V.A.P.C.

The record reflects that petitioner has served in excess of the twelve years and is entitled to be released from further confinement under the life sentence in Cause JSTo. 6553 from Lavaca County.

It is so ordered.


text:
    Richard VOJEL, Appellant, v. The STATE of Texas, Appellee.
    No. 40502.
    Court of Criminal Appeals of Texas.
    July 19, 1967.
    Thorne & Reardon, by T. M. Reardon, and Sue Walker, Houston (on appeal only), for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is the possession of heroin; the punishment, 20 years.

Two grounds of error are presented for review. Appellant first asserts that none of the officers who executed the search warrant had authority to do so, in that the search of appellant’s residence took place in Harris County, but outside the corporate limits of the City of Houston. The search warrant was secured by Officers Chavez and Dunlap of the Narcotic Division of the Houston Police. With them when the search warrant was executed were seven other Houston Police Officers and a Narcotic Agent of the Department of Public Safety. The issuance and execution of the search warrant was clearly authorized by Sections (14) (16) and (22) of Article 725b, Vernon’s Ann.P.C.

His second ground of error is that the affidavit made by Chavez and Officer Dunlap was insufficient to demonstrate that they had sufficient information to authorize the magistrate to issue the same. The affidavit in the case at bar has all the requisites which have been approved by this Court in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435 (cert, denied, 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982).

In his second ground of error he also contends that the affidavit for the issuance of the search warrant did not show that the act or event upon which probable cause is based occurred within a reasonable time prior to the making of the affidavit. The event set forth in the affidavit was alleged to have occurred on December 7. The warrant was secured on December 8, and executed on December 10. These facts differentiate this case from Hall v. State, 171 Tex.Cr.R. 227, 347 S.W.2d 262, wherein it was not shown that the act or event upon which probable cause was based occurred within a reasonable time prior to the making of the affidavit.

Finding no reversible error, the judgment is affirmed.


text:
    Ex parte Jeff DRENNAN.
    No. 40542.
    Court of Criminal Appeals of Texas.
    July 19, 1967.

      C. O. McMillan, Stephenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding relator to the custody of Lon Evans, Sheriff of Tarrant County, for extradition to the State of Washington to answer a charge “by information” of first degree forgery.

There is no evidence in the record indicating that the offense of “first degree forgery” may be prosecuted in Washington upon an information. In absence of proof that the law of Washington in this regard differs from that of Texas, it is assumed that prosecution for such offense upon an information is not authorized by Washington law. Ex parte Parker, Tex.Cr.App., 390 S.W.2d 774; Ex parte Doyal, 167 Tex. Cr.R. 83, 318 S.W.2d 642; Ex parte Goodwin, Tex.Cr.App.,' 384 S.W.2d 874; Ex parte Gardner, 159 Tex.Cr.R. 365, 264 S.W. 2d 125; Ex parte Cooper, 163 Tex.Cr.R. 642, 295 S.W.2d 906; on second appeal, Tex.Cr.App., 308 S.W.2d 22.

We observe further that the information is not supported by affidavit or complaint, and the supporting affidavit of the prosecuting attorney is to the effect that he only “believes the same to be true”. Ex parte Parker, supra.

The order remanding relator to custody for extradition is reversed.


author: ONION, Judge. WOODLEY, Presiding Judge.

text:
    Roger Dale HODGES, Appellant, v. The STATE of Texas, Appellee.
    No. 40460.
    Court of Criminal Appeals of Texas.
    June 14, 1967.
    On Motion to Reinstate Appeal July 26, 1967.

      Clyde & Hines, by A1 Clyde, Fort Worth, for appellant.
    Frank Coffey, Dist. Atty., Bill Dee Mills and Wayne Roberts, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Negligent Homicide in the Second Degree; the punishment, one (1) year and one (1) day in the County Jail.

The record on appeal does not include a sentence pronounced by the Court, as required by Article 40.09, Section 1, Vernon’s Ann.C.C.P.

Since the effective date of the 1965 Code of Criminal Procedure, a sentence must be pronounced in every felony case and in every misdemeanor case except where the maximum possible is by fine only. Article 42.02, V.A.C.C.P. Further, Article 42.04, V.A.C.C.P., requires that the sentence in a case like that at bar shall be pronounced before the appeal is taken.

We observe that both the docket sheet and the order overruling the motion for new trial refer to the fact that appellant was sentenced, but such notations are not sufficient to meet the statutory requirement that the sentence itself must be “entered of record”. Article 42.02, supra; Terry v. State, 149 Tex.Cr.App. 110, 191 S.W.2d 736.

The appeal is dismissed.

OPINION ■

ON MOTION TO REINSTATE APPEAL

WOODLEY, Presiding Judge.

The record on appeal has been supplemented to include the sentence pronounced on October 31, 1966. The appeal is reinstated.

The record on appeal was approved by the trial judge and filed with the clerk of the trial court on April 24, 1967. (The transcript of the court reporter’s notes was approved by the trial judge and ordered filed the same day.)

The grounds of error which appellant relies upon for reversal are not set forth by appellate brief filed with the clerk of the trial court “[wjithin thirty days after approval of the record by the court” or during any additional period which the •court authorized. Art. 40.09(9), V.A.C.C.P.

The “statement of points on appeal to the trial court” upon which appellant must rely as his appellate brief required by Sec. 9 of Art. 40.09, supra, was filed in. the trial court on March 6, 1967, some 7 weeks before the record on appeal was approved.

The grounds for reversal relied on are not such as this court considers as unassigned error.

Appellant’s failure to comply with the requirements of Sec. 9 of Art. 40.09, V.A. •C.C.P., deprived the trial court of the opportunity to pass upon his points of error and his claims of error argued before this court in light of the completed record and •determine whether he should be granted a new trial.

Such failure also deprives the appellant of the right to have this court review the claimed errors. Yarbrough v. State, Tex. Cr.App., 408 S.W.2d 230; Melick v. State, Tex.Cr.App., 409 S.W.2d 412; Dewitt v. State, Tex.Cr.App., 409 S.W.2d 852.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Dr. L. SCHECTER, Appellant, v. Robert S. FOLSOM, Appellee.
    No. 16907.
    Court of Civil Appeals of Texas. Dallas.
    May 12, 1967.
    Rehearing Denied June 23, 1967.

      Wade Starr and Barnett M. Goodstein, Goodstein, Erlanger & Starr, Dallas, for appellant.
    Mike Schmidt, of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
   DIXON, Chief Justice.

Dr. L. Schecter has appealed from a judgment against him in favor of Robert S. Folsom for the sum of $540 principal for rentals alleged to be due plus $350 attorney’s fees under the terms of a written lease contract.

In April 1965 appellant and appellee signed a written lease agreement for a term of 25 months beginning July 1, 1965 at a monthly rental of $172.50. The lease covered premises in Dallas West Shopping Center for use by Dr. Schecter as his office in the practice of optometry. Under circumstances which are in dispute appellant moved into the premises on May 3, 1965, prior to the date named in the lease contract, but he paid no rent for the months of May and June 1965.

On November 5, 1965 appellant notified appellee that he would vacate the premises on November 10, 1965. He had paid his rent up to December 1, 1965. Appellant’s testimony is that he did vacate the premises on November 10, 1965.

On December 9, 1965 appellee’s agent sent a letter by certified mail to appellant in regard to the latter’s failure to make his rental payment due December 1st. This letter as we view the matter is the focal point of this controversy. The letter threatened a forcible entry and detainer suit by appellee, but no such action was ever filed.

Some time in March 1966 or soon thereafter appellee filed this suit seeking recovery of rentals for the months of December 1965, and January and February 1966. The premises had been relet thereafter and no claim is made for subsequent rent.

Appellant filed an answer and a counterclaim in which latter pleading he alleged actual damages of $500 and exemplary damages of $1,000 as a result of appellee’s failure to carry out the terms of the lease agreement and for recovery of $172.50 for advance rental paid appellee.

In his first and second points on appeal appellant asserts that the court erred (1) in holding that appellee’s letter of December 9, 1965 was not an exercise of appellee’s option to terminate the lease; and (2) in finding that appellee exercised his option in accordance with the second section of paragraph 16 of the lease.

The trial court made findings among others to the effect that appellant failed to perform the terms of the lease contract and was in default for the months of December 1965, and January and February of 1966; that plaintiff-appellee exercised his option in accordance with the second section of paragraph 16 of the contract and relet the premises for the account of appellant-defendant; that the letter of December 9, 1965 was not a declaration by appellee-lessor to declare the lease forfeited and did not evidence such intent; and that there was no intention on the part of appellee-plaintiff that appellant-defendant should no longer enjoy the leased premises and no circumstances presented to the court from which such intention might be inferred. In our opinion the evidence supports the above findings.

Appellant relies on the holding in Rohrt v. Kelley Mfg. Co., 162 Tex. 534, 349 S.W.2d 95 (1961) to support his first two points on appeal. In the Rohrt case the lease contract contained provisions similar to those of paragraph 16 in the lease contract now before us. The lessor had written a letter to the defaulted lessee giving him “official notice of such default and the intention of the lessor to declare the lease forfeited.” It was held that the effect of the above letter, coupled with the failure of lessee to cure his default within ten days, resulted in a forfeiture of the lease; and it is stated in the opinion the lessor “did forfeit.” As a result lessee was relieved of liability for future rentals.

In the letter which we are considering in this case the lessor did not say that it was his intention to forfeit the lease. He said it was his intention to “institute Court action for forcible entry and detainer.” However, appellee-lessor did not institute court action for forcible entry and detainer.

Appellant takes the position that appel-lee’s statement in his letter of his intention to file a forcible entry and detainer suit is equivalent to the statement of the lessor in the Rohrt case that he intended to declare the lease forfeited. This is so, says appellant, since a prerequisite to a court action for forcible detainer is a termination of the lease agreement, either by expiration of term or forfeiture by lessor. Therefore appellant argues that the instant case comes squarely within the holding in the Rohrt case and precludes appellee from recovering any rentals after ten days from December 9, 1965.

Appellee vigorously disputes appellant’s argument. He says that his announcement of his intention to file a forcible entry and detainer suit if lessee’s default was not cured was nothing more than a “conditional warning or notice” that this mode of enforcing the lease agreement would be pursued if necessary. Appellee argues that it it apparent that the defaulting appellant would have to be completely out of the premises before appellee could relet for appellant’s account under the terms of the lease. Such was the purpose of the letter according to appellee. Since appellant did completely vacate the premises the forcible detainer suit became unnecessary. In the Rohrt case it was said that the landlord not only gave notice of his intention to forfeit: he did forfeit.

In further support of his contention ap-pellee cites Johnson v. Golden Triangle Corp., 404 S.W.2d 44 (Tex.Civ.App., Waco 1966, no writ) where a letter threatening forfeiture was held to be only “a conditional notice or warning” that lessor intended to declare a forfeiture and did not end the lessee’s liability. In so holding the Rohrt case was cited.

We agree with appellee. We do not consider that his threat to file a forcible entry and detainer suit which was never filed, constituted notice of forfeiture as contemplated in paragraph 16 of the lease agreement. Appellant’s first two points are overruled.

In his third, fifth, sixth and seventh points appellant asserts the court erred in (3) finding that there was no constructive eviction of appellant by appellee; (5) finding that appellee was the owner of Dallas West Shopping Center; (6) finding that appellant did not elect to terminate the lease under provision 30 of the lease agreement; and (7) failing to consider evidence to substantiate appellant’s allegations that appellee breached the lease agreement by failing to repair the leaking roof and by failing properly to clean and maintain the common area of the shopping center.

Appellant cites the case of Richker v. Georgandis, 323 S.W.2d 90, 95 (Tex.Civ. App., Houston 1959, writ ref’d n. r. e.), wherein the four elements of constructive eviction are set out. The testimony in this case is at best conflicting in regard to the four elements necessary to show a constructive eviction. There is ample evidence to support the court’s finding.

It is undisputed that the relationship of landlord and tenant existed between appellee and appellant. That being so appellant will not be heard to deny the landlord’s title to the leased premises. In a suit for rentals it is not necessary for a landlord to prove ownership of the premises. See 35 Tex.Jur.2d 514, 519 and cases there cited.

Provision 30 of the lease gave lessee the right to cancel the lease in the event of death or total disability. The evidence supports the court’s finding that the facts did not entitle appellant to exercise this right. After leaving the leased premises appellant was out of work one week. Then he went to work for another optometrist and has been making $15,000 per year ever since.

The evidence in regard to the leaking roof and the alleged failure to maintain the area of the shopping center is conflicting. The court’s implied finding against appellant is binding on us.

Appellant’s third, fifth, sixth and seventh points are overruled.

Appellant’s fourth point we must sustain. There was no evidence offered to show that the $350 attorney’s fee was reasonable. Appellee says that in a nonjury trial the court may take judicial notice of what would be a reasonable attorney’s fee, citing Franklin Life Ins. Co. v. Woodyard, 206 S.W.2d 93 (Tex.Civ.App., Galveston 1947, no writ) and other cases.

Our Supreme Court in Great American Reserve Ins. Co. v. Britton, 406 S.W.2d 901, 907 held that a court does not have authority to adjudicate the reasonableness of an attorney’s fee on judicial knowledge without the benefit of evidence. Though the Supreme Court was considering an insurance case involving Art. 3.62 of the Texas Insurance Code, V.A.T.S. we think the holding there must control our holding here. See also Reynolds Research & Mfg. Co. v. Scamardo, 412 S.W.2d 941 (Tex.Civ.App., Waco 1967). Appellant’s fourth point is sustained.

The Supreme Court in the Great American Reserve case held that the judgment for attorney’s fees is severable from the rest of the judgment. Accordingly the claim for attorney’s fees was severed and the judgment reversed as to attorney’s fees only. We shall do the same in this case.

The judgment in favor of appellee for $540 for rentals is affirmed as is the judgment denying appellant any recovery on his counterclaim. The judgment for $350 attorney’s fees is reversed and remanded for another trial.

Costs will be taxed 75 per cent against appellant and 25 per cent against appellee.

Affirmed in part and reversed and remanded in part.

      I. The letter is as follows: “I have been advised by our accounting department that you have failed to pay your rent for December, 1965. Your attention is directed to the clause entitled ‘Default’ in the Lease which you executed on April 6, 1965, in the Dallas West Shopping Center. This clause places you in default for failure to pay said rent in accordance with the terms of the Lease. “We hereby place you on notice that unless said default is cured by you within ten (10) days of your receipt of this notice, we will then institute Court action for forcible entry and detainer.”

      . In the event appellant defaulted in performance of his base contract paragraph 16 gave appellee two alternative options:
      1. “ * * * LESSOR may enforce the performance of this lease by any modes provided by law, and/or this lease may be forfeited at LESSOR’S discretion if such default continues for a period of ten days after LESSOR notifies said LESSEE of such default and his intention to declare the lease forfeited * * ⅜; and thereupon (unless the LESSEE shall have completely removed or cured said default) this lease shall cease and come to an end * ⅜
      2. “or LESSOR * * * may resume possession of the premises and re-let the same for the remainder of the term * * * for account of LESSEE * * * ft

      The two sections are not numbered -in the lease contract. The numbers have been added for convenience as was done in appellant’s brief.


author: HUGHES, Justice.

text:
    ROYAL INDEMNITY COMPANY OF NEW YORK, Appellant, v. Elizabeth M. TRIGG et vir, Appellees.
    No. 11506.
    Court of Civil Appeals of Texas. Austin.
    May 31, 1967.
    Rehearing Denied June 28, 1967.

      House, Mercer, House & Brock, John C. Wilson, Austin, for appellant.
    No brief filed by appellees.
   HUGHES, Justice.

This suit was instituted by Elizabeth M. Trigg and husband A. T. Trigg against James L. Nutt, Sheriff of Bastrop County and the surety on his official bond, Royal Indemnity Company of New York, appellant, and others not necessary to name, for damages for alleged wrongful eviction from real property occupied by appellees, Mrs. Trigg owning a life estate therein. Trial was to a jury. Upon its verdict, judgment was rendered, January 28, 1966, in favor of appellees for $1650.00 against all defendants.

J. L. Nutt, Sheriff, and defendant George Blakemore, timely filed motions for a new trial. Appellant filed a motion for new trial February 10, 1966.

On April 8, 1966, the trial court entered an order granting the motions for a new trial filed by Sheriff Nutt and Mr. Blake-more but overruling the motion filed by appellant, the court reciting in its order that the motion of appellant was not filed within ten days after entry of judgment and that more than thirty days from entry of judgment had then elapsed and that “this Court has lost jurisdiction as to said Defendant.”

Appellant made no effort to appeal from the judgment entered in January, 1966, and it made no effort to appeal from the order entered April 8, denying its motion for a new trial.

On May 2, 1966, appellant filed a motion in the court below to vacate the judgment rendered against it on January 28, 1966, on the ground that it was void. This motion was overruled by an order entered September 1, 1966. The court filed findings of fact consistent with the facts herein stated and legally concluded that, “The judgment in question is not void, and the relief sought by the defendant Indemnity Company through its Motion to Vacate is therefore not available to it.”

It is from the order overruling the motion to vacate the judgment that appellant appeals.

There is no brief for appellees.

It is our opinion that the trial court correctly overruled appellant’s motion to vacate the judgment.

Rule 329b, Sec. 5, T.R.C.P., provides, in part, that, “Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for a new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law.”

This provision of Rule 329b was thoroughly considered in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706. It was contended there that the default judgment from which relief was sought was void and that it could be vacated on motion at anytime. The court, however, held that if the judgment complained of was a judgment which the court rendering it had jurisdictional power to render then, time for appeal or writ of error proceedings, if applicable, having expired, relief could be had only by a bill of review as stated in the Rule.

The suit filed by appellees was certainly a suit which the trial court had power to determine. It was within the class of cases of which that court had jurisdiction. It was a suit for damages in excess of $500.00. Art. 1906, Vernon’s Ann.Tex.Civ.St.

We, therefore, hold that the exclusive method of obtaining relief from the judgment rendered against appellant is by bill of review.

There is no contention made here that the motion to vacate meets the requirements for a bill of review. Nor could such contention be successfully made since the motion affirmatively pleads appellant’s lack of diligence in seeking a new trial. In McEwen, supra, the Court stated that if a defendant negligently permits a judgment rendered against him by a Court having jurisdictional power to render it “to become final, he should not be heard to say that the judgment is void.”

The order of the trial court from which this appeal is taken is affirmed.

ON MOTION FOR REHEARING.

We cannot agree with appellant that a judgment rendered against a surety alone and despite the provisions of Arts. 1986, 1987, 2088, V.T.C.S. and Rules 31 and 163, T.R.C.P. is void. There are circumstances under which a judgment may be rendered against a surety without judgment being taken against the principal. Art. 2088, supra, Reed v. Buck, 370 S.W.2d 867, Tex. Sup.

Lack of jurisdiction and improper exercise of jurisdiction are vitally different concepts. A court having jurisdiction has the power to determine a cause rightfully or wrongfully. 15 Tex.Jur.2d, Courts, Sec. 50, p. 475.

We are disturbed here because the record clearly establishes that no final judgment has been rendered in this case. A judgment to be appealable must dispose of all issues and parties. North East Independent School District v. Aldridge, 400 S.W.2d 893, Tex.Sup.Ct. Only when a final judgment has been rendered and properly appealed will this Court be authorized to review it.

We were careful to note in our original opinion that we only affirmed the order of the trial court refusing to set aside the judgment against appellant. This ruling applies only to the method employed by appellant to attack such judgment. We did not intend to preclude appellant from interposing any defense it may have in this suit or to complain after a final judgment has been rendered.

The motion is overruled.

      I. See Trigg v. Blakemore, 387 S.W.2d 465, Tex.Civ.App., Austin, writ ref., n.r.e.


author: SELLERS, Justice.

text:
    SKELLY OIL COMPANY, Appellant, v. L. Lee KIDD et al., Appellees.
    No. 282.
    Court of Civil Appeals of Texas. Tyler.
    June 8, 1967.
    Rehearing Denied June 29, 1967.
    Second Rehearing Denied July 13, 1967.

      Ramey, Brelsford, Flock & Devereux, Tom B. Ramey, Jr., and Michael A. Hatchell, Tyler, for appellant.
    Spruiell, Lowry, Potter, Lasater & Guinn, Charles F. Potter, Tyler, Elliott & Elliott, Canton, for appellees.
   SELLERS, Justice.

L. Lee Kidd brought this suit for declaratory judgment for the purpose of establishing that a certain Oil and Gas Lease claimed by the appellant, Skelly Oil Company, had terminated for the failure of Skelly Oil Company to pay the annual May 15, 1964 rental due under the terms of the lease. Lessors in the lease, E. E. Wycough and wife, intervened in the suit alleging that Skelly Oil Company was estopped to assert that the lease had not been terminated. Appellant made tender of the delay rentals in its answer.

The case was tried to a jury and the Court, after receiving the jury’s verdict, disregarded the jury’s answer to Special Issue No. 2 and entered judgment for appel-lees that the lease terminated for failure to pay the annual rentals involved; and the appellant, Skelly Oil Company, has duly prosecuted this appeal.

The lease involved was executed on May 15, 1958, and was, under the undisputed evidence, in full force and effect until the 1964 delay rentals became due. The Oil and Gas Lease provides as follows:

“If operations for drilling are not commenced on said land or on acreage pooled therewith as above provided on or before one year from this date the lease shall then terminate as to both parties, unless on or before such anniversary date Lessee shall pay or tender to Lessor or to the credit of Lessor in Security State Bank at Mabank, Texas, (which bank and its successors are Lessor’s agent and shall continue as the depository for all rentals payable hereunder regardless of changes in ownership of said land or the rentals) the sum of One Hundred Sixty and No/100 Dollars ($160.00), (herein called rental), which shall cover the privilege of deferring commencement of drilling operations for a period of twelve (12) months. In like manner and upon like payments or tenders annually the commencement of drilling operations may be further deferred for successive periods of twelve (12) months each during the primary term. The payment or tender of rental may be made by the check or draft of Lessee mailed or delivered to Lessor or to said bank on or before such date of payment.”

This controversy arose by the lessors writing the following letter to Skelly Oil Company, seeking to change the depository bank mentioned in the lease, which was the “Security State Bank of Mabank, Texas,” to the “First State Bank at Eustace, Texas”:

This request was granted and Skelly Oil Company prepared and forwarded to lessors in Van Zandt County, Texas, an instrument for their execution to bring about the change in the depository bank named in the original lease. This instrument was executed by lessors before a Notary Public and returned to Skelly Oil Company by lessors. This instrument contained the following:

“Now, Therefore, in consideration of the premises, First Party hereby designates The First State Bank of Eustace, Texas, in lieu of the depository named in said lease, as the depository for all delay rentals hereafter payable to First Party under the terms of said lease. Said delay rentals, if paid, may be paid by Second Party’s check mailed at the post office in Tulsa, Oklahoma, postage prepaid, on or before the day such rental is due, either to First Party at the address given below, or to said depository for the credit of First Party, and the mailing of such check shall be such tender as will prevent a forfeiture of said lease.”

It will be observed that the instrument prepared by Skelly Oil Company and executed by the lessors before a Notary Public; spelled “Eustace” as follows: “E-u-st-a-g-e,” and this whole controversy grows out of that mistake.

The appellant, Skelly Oil Company, in Tulsa, Oklahoma, on April 8, 1964, drew its check in favor of the lessors in the proper amount and duly mailed the same to the depository bank at “Eustage, Texas.” This envelope contained the check for said payment and had Skelly Oil Company’s return address on same. The letter containing said check was not returned to Skelly Oil Company in Tulsa, Oklahoma, but for some reason it was delivered by the mail authorities to the First State Bank of Carthage, Texas. The Carthage Bank accepted the check and placed the rentals to the credit of lessors in its bank. This was done several days before the rentals were due but, because of the custom of the bank that required a verification of lessor’s address, the bank did not notify lessors of the payment until a few days after the rentals were due, at which time the lessors had called at the Mabank and Eustace banks to see if the rentals had been paid and were advised that they had not. Lessors executed to the appellees Kidd another lease on the same land. Lessors in their intervention attached considerable importance to the fact that the check received by the Carthage bank had a receipt attached to same which was stamped by the bank and returned to the Skelly Oil Company with a statement by the bank for a fifty-cent charge for its services. These instruments were received by Skelly Oil Company’s secretary before the rental payment was due, and lessors assert in their intervention that Skelly Oil Company is estopped to assert that the rentals were paid for the reason it had ample time after receiving such notice of the payment to the wrong bank to have made another tender which they did not do.

The question of these instruments as notice to Skelly Oil Company was submitted to the jury in Issues Nos. 2 and 3, as follows:

“Special Issue No. 2:
“Do you find from a preponderance of the evidence that the Defendant Skelly Oil Company discovered, on or about April 27, 1964, that the rental check in question had been received by the First State Bank & Trust Company of Carthage, Texas?
“Answer ‘It did so discover’.
or ‘It did not so discover’.
“Answer: It did not so discover.
“If you have answered Special Issue No. 2 ‘It did not so discover’, then and in that event only answer the following Issue:
“Special Issue No. 3:
“Do you find from a preponderance of the evidence that the defendant Skelly Oil Company, by the exercise of ordinary care should have discovered on or about April 27, 1964, that the rental check in question had been received by the First
State Bank & Trust Company of Carthage, Texas?
“Answer ‘It should have so discovered’ or ‘It should not have so discovered’
“Answer: It should have so discovered.”

The trial court disregarded the jury’s answer to Special Issue No. 2 and followed the jury’s answer to Special Issue No. 3 that Skelly should have known by due diligence that the rentals were paid to the wrong bank and charged Skelly Oil Company with failure to pay to the lessors the rentals after receiving such notice, and canceled the lease.

This ruling of the trial court is challenged on this appeal by a number of assignments. This judgment of the trial court was entered on June 2, 1966 and at that time there was authority for the view that a lessee not only had to mail the rentals to the proper bank but was charged with the duty of seeing that the bank received the same on or before the date the rentals were due.

In October 1966, the question of the payment of delay rentals by a lessee to the lessor under the terms of a lease, the same as the one under consideration, by lessee’s check properly mailed to the depository bank in ample time for delivery in due course of the mails to the bank was all that was required by the lessee, and the payment of the rentals was upheld, and the forfeiture of the lease was denied. Corley et ux. v. Olympic Petroleum Corp., Tex. Civ.App., 403 S.W.2d 537. The opinion was by Justice Fanning of the Texarkana Court of Civil Appeals, concurred in by Chief Justice Chadick. Justice Davis, however, dissented and wrote a lengthy opinion against the view of the majority. Application to the Supreme Court in this case resulted in the Court refusing a Writ of Error. In that case, the check of the lessee was lost in the mail and was never found. In our case, the mail carried the check to the wrong bank where it was accepted by the bank and the lessors given credit for the same although the lessors did not secure the notice of such payment until after the rental payment date had passed. Under this authority, and the cases cited therein, we are of the opinion that the rental payment complained of was timely paid.

Lessors’ plea of estoppel will be denied. By this plea, lessors seek to charge Skelly Oil Company with a failure to make a second tender after they were charged with knowledge of the original check going to the wrong bank. The jury found that Skelly Oil Company did not have such actual knowledge, but should have known from the facts at hand that the wrong bank had received the rentals.

The lease involved makes no provision for a forfeiture for such failure to make a second tender of payment of the delay rentals. The forfeiture of a valuable leasehold right should be found in the plain provision of the lease and being none in this lease for a second tender of payment, lessors plea of estoppel is overruled.

Justice Phillips of the Supreme Court expressed this Court’s view when he said in the case of Decker v. Kirlicks et al., 110 Tex. 90,216 S.W. 385:

“ * * * Forfeitures are harsh and
punitive in their operation. They are not favored by the law, and ought not to be. The authority to forfeit a vested right or estate should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is plain and clear, whose unequivocal character may render its exercise fair and rightful.”
The judgment of the trial court is reversed and here rendered that Plaintiff and intervenors take nothing by their suit and pay all costs in this case.

ON MOTION FOR REHEARING

It has been called to the attention of the Court in Appellee’s Motion for Rehearing that the Court in its opinion and judgment heretofore entered failed to dispose of appellee, L. Lee Kidd’s, alternative plea, which plea is as follows:

“In the event Plaintiff is denied the relief prayed for in his Original Petition, Plaintiff alleges that the Intervener, Eldred E. Wycough, is indebted to Plaintiff in the amount of Thirteen Thousand, One Hundred Eleven Dollars ($13,111.00) with interest thereon from May 28, 1964 until paid, at the rate of six percent (6%) per annum, by virtue of the covenant of warranty of title contained in Plaintiff’s lease.”

It is the opinion of this Court that said plea should be sustained and judgment is here rendered in favor of L. Lee Kidd against Eldred E. Wycough for the sum of $13,111.00, with interest thereon at the rate of six percent (6%) per annum from May 28, 1964, and the judgment heretofore entered will be withdrawn and judgment entered denying the Plaintiff’s recovery of the leasehold estate as in the original opinion, and granting the alternative plea of L. Lee Kidd.

In all other respects, the Motion for Rehearing is overruled.


author: PER CURIAM.

text:
    Mrs. J. A. STUBBLEFIELD, Appellant, v. The STATE of Texas et al., Appellees.
    No. 315.
    Court of Civil Appeals of Texas. Tyler.
    June 29, 1967.
    Adams, Granberry & Hines, Chester Hines, Crockett, for appellant.
    Nat Patton, Jr., County Atty. of Houston County, Crockett, for appellees.
   PER CURIAM.

Appellant timely filed the transcript in this Court on May 22, 1967.

On June 15, 1967, appellee, County of Houston, filed Motion No. 699 to strike appellant’s appeal bond and dismiss appeal.

On June 20, 1967, appellant filed Motion No. 703 for permission to amend appeal bond.

The motion to strike the bond is based upon the fact that the sureties thereon are also the attorneys for appellant. Rule 142, Texas Rules of Civil Procedure, provides in part: “No attorney or other officer of the court shall be surety in any cause pending in the court, except under special leave of court.” The attorneys were not given special leave of the Court to become such sureties upon this bond, and therefore the bond is defective. Even though the bond is defective, it does not require a dismissal of the appeal since any defect “of substance or form,” upon timely request, can be cured by amendment. Rule 430, T.R.C.P.; Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141 (1943); United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada v. Borden, 160 Tex. 203, 328 S.W.2d 739, 741 (1959). Appellant will be given ten days to file with the Clerk of this Court a bond in the sum of $300.00 as a cost bond, with two good and sufficient sureties to be approved by the Clerk of this Court. If such bond is not filed within ten days, then this appeal will be in all things dismissed.

Appellee’s motion to strike the appeal bond is overruled, provided a proper bond is tendered here within ten days; otherwise, the bond will be stricken and the appeal dismissed.


author: TITUS, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Kirby E. HART et al., on Exceptions of Kirby E. Hart and Georgia B. Hart, Defendants-Appellants.
    No. 8626.
    Springfield Court of Appeals. Missouri.
    July 6, 1967.

      William E. Gladden, Houston, for defendants-appellants.
    Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for plaintiff-respondent.
   TITUS, Judge.

Kirby Hart and his wife appeal from a judgment entered on a verdict returned in favor of plaintiff-respondent, the State Highway Commission of Missouri. The condemnation suit concerned partial relocation and improvement of Supplementary State Highway Z in Texas County where it traversed the twenty or twenty-five acres belonging to the Harts. 1.45 acres of appellants’ land were taken for highway purposes and a river channel control easement was acquired in 1.82 acres. Damages of $2,500 to $5,000 were shown by appellants’ witnesses, whereas “experts” testifying for respondent said the “before and after” values of the property were the same or the value of the remainder had been enhanced as much as $2,400 by the “improvements.” Viewed with appellants’ contentions as to their alleged damages, the amount in dispute on appeal gives us jurisdiction. V.A.M.S. Const, art. 5, §§ 3 and 13; V.A.M.S. § 477.040.

Before the instant acquisition, Highway Z crossed appellants’ property so as to leave about a 4-acre tract east of the road and the remainder west of the highway. The estate was subject to a channel control easement. No access roads to either tract had ever been constructed, although appellants claimed it would have presented no problem to do so. The entire acreage consisted of unimproved, undeveloped ridge land lying south and west of Piney River that was unsuited for cultivation and had never been fenced. The timber had no commercial value and the land consisted of steep bluffs where it abutted the river. “West of the road, over where the Narrows is,” a natural phenomenon known as “the balance rock” is situate. Access to this site by vehicle was gained by first traversing neighboring property not owned by appellants. Many visitors, curiosity seekers and fishermen were attracted to “the Narrows” and “the balance rock.” Ingress was obtained without charge and by virtue of appellants’ sufferance. One witness, in describing the property, opined “its pretty to look at and that’s about the main value to it.” The Harts have owned the land “close to twenty-four years” and according to Mr. Hart, “I just owned it for development and [to] let the public use it.”

“Old” Highway Z ran fairly straight but the new road curves to the east for northbound traffic. Some of the old road and right of way (exact amount not shown) was abandoned when the new construction was completed and respondent built a driveway that “hooks back” onto appellants’ west tract affording vehicular access to that parcel “up to the timber line.” The grade of the new road is considerably lower than that of the old and appellants contend this renders access to their property more difficult than before. The Harts also claim the driveway constructed by respondent is so steep as to be of little or no benefit.

The first trial error claimed by appellants relates to the admission of the testimony of Vern Altis “because there was not a showing that this witness was qualified as an expert and there was not a proper foundation made by plaintiff as to the qualifications of this witness.” The one and only objection made to the testimony appears in the transcript as follows:

“Q. [By respondent’s counsel] Now, I’ll ask you, Mr. Altis, for your opinion of the value of the property owned by Mr. Hart called the Narrows. A. You mean the dollars?
“Q. Yes, sir. A. Before the road?
“Q. Yes, sir. A. Well, I would say—
[By appellants’ counsel] “Your Hon- or, I — Your Honor, I object to that. He’s not shown proper qualifications.
“The Court: Well, immediately before the taking on January 4, 1965.
“Q. [By respondent’s counsel] '65. Yes, sir. Immediately before the taking of January 4, ’65*
“A. January 4,’65?
“Q. Yes, sir. A. Well, I would say a thousand dollars.”

Subsequently, Mr. Altis gave his unob-jected-to opinion, “the value of the property * * * immediately after [the taking] * * * would be worth just as much, if not more.” At no time did appellants request or demand the trial court to rule on their lone objection; neither did they move to strike his testimony nor ask for an instruction that it be disregarded by the jury.

“If when inadmissible evidence is offered the party against whom such evidence is offered * * * fails * * * to insist upon a ruling on -an objection to the introduction of such evidence * * * he is considered to have waived whatever objection he may have had thereto, and the evidence is in the record for consideration the same as other evidence.” 53 Am.Jur. Trial, § 143, pp. 127-128. This authority requires a holding that appellants waived any objections to the testimony of Mr. Al-tis by failing to obtain a ruling on the single objection made. Nevertheless, we will briefly consider the matter along the same approach made by the parties.

Mr. Altis, whose age was not asked, is a farmer and a life-long resident of Texas County. He has occupied his present farm, located “just off Route Z,” for thirty years. The witness has known appellants’ property since he “was just a young man” and has “been off and on there, been there lots of times.” He is “interested in” and keeps “abreast of property values generally in Texas County,” and knew what some of “the farms and other properties” in Texas County would “sell for.” Mr. Altis “discussed with other people in Texas County and the Houston community values and the price property is bringing when its sold” and knew of several sales “of tracts of land along the rivers that are not sold for farm land but that are sold for other purposes.” The witness had not gone onto appellants’ land before the new highway was built with “the idea in mind of appraising” what damage might result from the construction, but did go there “and looked at the situation after I found out I was subpoenaed” and after the new roadwáy and bridge were completed.

The myriad factors considered in qualifying a witness an “expert” on land values were meticulously narrated and documented by the late Ruark, J., of this court in State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., Mo.App., 381 S.W.2d 20, 23-25(1-6). These were expressly approved and endorsed by our Supreme Court in State ex rel. State Highway Commission v. Barron, Mo., 400 S.W. 2d 33, 36-37 (3-13). Without reiterating what was there so ably penned, we simply note the peculiar acquaintanceship Mr. Altis possessed of the concerned property, coupled with his information and knowledge of land values in the area both as to “farms and other properties * * * along the rivers that are not sold for farm lands,” would endow him with erudition of the subject superior to that of the ordinary juror and thus render his opinion permissible evidence. Any shortcomings beyond this would not detract from his qualifications but only from the weight to be afforded his testimony. His opinion was not isolated but merely cumulative of like expressions related by three other “experts.” The qualifications necessary of a witness to testify as an “expert” is primarily for determination by the trial judge and his discretion in the matter will not be disturbed on appeal “unless abused or exercised in clear error of law.” State v. Bloomfield Tractor Sales, Inc., supra, 381 S.W.2d at 25(6), and cases there cited. Had appellants insisted upon a ruling on their objection and had the trial court overruled it, which was not done, we would be of the opinion no error or abuse of discretion had been committed. Union Electric Company of Missouri v. Simpson, Mo.App., 371 S.W.2d 673, 677(1); Union Electric Company v. Mount, Mo.App., 385 S.W.2d 126, 132(6); State ex rel. Kansas City Power & Light Co. v. Gauld, 360 Mo. 795, 230 S.W.2d 850, 852(1, 2).

Item Two under “Points Relied On” in appellants’ brief declares “the Court erred in permitting Plaintiff’s attorney in his closing argument, over the objection of the Defendants, to make statements that were immaterial to the case and which tended to prejudice the jury against the defendants. Overruling the objection of defendants to this argument was prejudicial to the defendants.” This abstract recitation clearly violates the requirements of Civil Rules 83.05(a) (3) and 83.05(c), V.A.M.R., and we would be justified in disregarding this point as preserving nothing for consideration on appeal. Appellants do not advise what statements, claimed prejudicial, were made by respondent’s lawyer or why the trial court’s ruling was erroneous. Cf., Hays v. Proctor, Mo.App., 404 S.W.2d 756, 761(6). In lenity, however, we turn to appellants’ argument and motion for new trial to ascertain what specifics they may have had in mind.

The motion for new trial alludes to “the statements of plaintiffs’ attorney referring to the benefit of the road for the general public, the damages due or given to other persons, the giving of right-a-way (sic) and the moving of fences by other persons.” Appellants’ argument indicates concern for the following portion of respondent’s closing argument:

“ * * * I think all of you agree with me that this property is worth as much, if not more, but all of you also say, ‘Well, they took a little.’ Should we pay Kirby Hart because they took a little even though he’s not damaged? * * * the instructions say you can’t give him a verdict unless you believe the defendants have been damaged * * * it’s not fair to give Kirby Hart a dime unless it’s caused by the damage. It’s not fair to pay Kirby Hart because he came here, if his property is worth as much. It’s not that you’re being unfair to me, because that doesn’t make any difference. You’re being unfair to everybody else in this County and State. Those people that have been damaged and have been paid for what they’re damaged and that’s all. It’s not fair to people that move the fences on roads like this—
[Appellant’s counsel] “Your Honor, I object to that. That’s not competent argument, as to whether this man should be allowed damages as to what somebody else has given or done or moved fences or anything else.
[Respondent’s counsel] “I haven’t said anything about giving.
“The Court: Overruled.
[Respondent’s counsel]: “I’ve only stated — all I mean by that is that other people received not one penny over what they are damaged, not one penny over the actual difference in the market value, and I say it’s not fair to pay Kirby Hart when he’s not damaged. It’s not fair to anybody.”

If there was prejudicial error in this argument, then we share fault with the learned and experienced trial judge who apparently detected none either when the argument was made or when the court reflected upon the matter prior to overruling the motion for new trial. The argument nowhere, as appellants contend, enjoined the jury to charge the Hart property with the value of general benefits, i.e., benefits common to all other landowners in the vicinity of the highway. See Thomson v. Kansas City, Mo.App., 379 S.W.2d 194, 198— 199 (affirmed 384 S.W.2d 518); State ex rel. State Highway Commission v. McCann, Mo.App., 248 S.W.2d 17, 22-23 (3-5). We observe nothing referable to any “right-away” being given by any landowner, and if claim was intended to be made some owners had moved fences without demanding compensation, this was not stated due to the interruption occasioned by the objection. “But the ultimate issue here lies deeper than a mere determination of error. Civil Rule 83.13(b), V.A.M.R., forbids a reversal except for error ‘materially affecting the merits of the action.’ In deciding the effect of improper argument we must consider the trial court’s superior vantage point in determining materiality. We are ‘inclined to defer to the trial court’s opinion in these matters, unless upon a full examination of the record it appears that the improper argument was so prejudicial, inflammatory and outside the record as to affect the result on the merits.’ ” Lindsey v. P. J. Hamill Transfer Company, Mo.App., 404 S.W.2d 397, 400. Where the trial court does not consider instances of alleged improper conduct sufficient to require a new trial, an appellate court will defer to the trial court’s opinion unless the error materially affects the merits. Collins v. Cow-ger, Mo., 283 S.W.2d 554, 561(9). Even assuming there was error, we decipher nothing in the argument that would have affected the result of the cause on the merits.

The last “Point Relied On” by appellants is “the verdict is so grossly inadequate as to show bias and prejudice of the jury against the Defendants.” Neither of the two cases cited under this point (State ex rel. Kansas City Power & Light Co. v. Gauld, supra, 360 Mo. 795, 230 S.W.2d 850, and Missouri Power & Light Co. v. John Hancock Mut. Life Ins. Co., Mo.App., 58 S.W.2d 321) was concerned with inadequate damages. Appellants’ argument is not confined to its brief assertion, but expands into a sweeping assignment “the combination of the closing argument of plaintiff’s attorney * * * the admission of opinion evidence without any proper foundation * * * and the weight of the evidence herein is such as to infer prejudice and show bias on the part of the jury against defendants.” We have heretofore ruled two of these points against appellants.

The issue tried to the jury was simply that of damages (Civil Rule 86.08 V.A.M.R.; V.A.M.S. § 523.050, subd. 2; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65, 69[5]) and the burden of proof was on appellants to establish their damages. City of St. Louis v. Kisling, Mo., 318 S.W.2d 221, 224(5), and cases cited. The measure of appellants’ damages was the difference between the fair market value of the whole property immediately before the taking and- the value of the remaining property after the taking (State ex rel. State Highway Commission v. McMurtry, Mo.App., 292 S.W.2d 947, 953(10), Mo., 300 S.W.2d 521; 29A C.J.S. Eminent Domain § 139, pp. 573-589) and the jury was so instructed in the form required by MAI No. 9.02. How the condemnation affected the property and damaged it was for the jury to say. 22 Am. Jur.2d, Damages § 338, p. 440.

The jury had before it as an exhibit a plat of the property in question showing the boundaries of the old and the new rights-of-way and easements. It could surmise, as we have done, there was little difference in the quantum of the newly' acquired acreage as compared to that abandoned by respondent to appellants. "Experts” for appellants testified to damages in amounts varying from $2,500 to $5,000, whereas “experts” for respondent were just as certain there had been no damage or the undertaking was an improvement which had bettered the value of appellants’ remaining property. “In the pending case, after determining the relative weight of the conflicting evidence in ruling on the motion for new trial, the trial court refused to grant a new trial. Our task in this circumstance is to determine whether the trial court abused its discretion, and in doing so * * * we determine whether there is substantial evidence to sustain the trial court’s view * * * A judgment in a condemnation proceeding should not be disturbed ‘because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another,’ City of St. Louis v. Ger-hart Realty Co., 328 Mo. 103, 40 S.W.2d 661, 665(12); and it has been held specifically that the opinion of one qualified witness as to the extent of damage ‘would constitute substantial evidence’ * * * It is true that in this case there was a substantial disparity between the evidence offered by appellants and by respondent on the issue of damages resulting from the taking of a portion of appellants’ property. It may be that if the trial court after determining the relative weight of the conflicting evidence, had concluded that the verdict was against the weight of the evidence and had granted a new trial, we as an appellate court would affirm the exercise of that discretion * * * But, while ‘The trial court may pass upon the weight of the evidence; we cannot’ * * * Therefore, ‘We determine only whether the trial court abused its discretion in overruling [appellants’] motion for new trial on the ground of inadequacy of verdict.’ Roush v. Alkire Truck Lines, Inc., Mo., 245 S.W.2d 8, 10 * * * There is no question but that * * * three [of the] expert witnesses who testified for respondent were qualified, and that their testimony was properly admitted. We necessarily must hold that their testimony constituted substantial evidence supporting the verdict * * * It was the prerogative of the jury from all the evidence in the case to determine * * * [the damages, if any], and when the trial court had denied a motion for new trial after the exercise of its authority to determine the relative weight of the conflicting evidence, and the jury’s determination is supported by substantial evidence, as it was in this case, appellate courts may not interfere with that determination.” State ex rel. State Highway Commission v. Eilers, Mo., 406 S.W.2d 567, 574 — 575 (15-19). See also State ex rel. State Highway Commission v. Galeener, Mo., 402 S.W.2d 336, 344. Aside from the unsupported conclusion made, appellants have not demonstrated bias or prejudice on the part of the jury.

The judgment is affirmed.

STONE, P. J., and HOGAN, J., concur.

      I. Also: State ex rel. State Highway Commission v. Schade, Mo.App., 271 S.W. 2d 196, 198(6) (transferred 266 S.W.2d 383); Bloecher v. Duerbeck, 338 Mo. 535, 92 S.W.2d 681, 690(13); Prichard v. Kitchen (Ky.), 242 S.W.2d 988, 992-993(13); Wilson v. Dalton’s Adm’r., 311 Ky. 285, 223 S.W.2d 978, 981(4); Webb v. Mitchell, Tex.Civ.App., 371 S.W.2d 754, 760(4); Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 107 N.W.2d 85, 93(14); United States v. McCoy, 193 U.S. 593, 598-599, 24 S.Ct. 528, 48 L. Ed. 805; 88 C.J.S. Trial § 145, p. 288, n. 42; 4 C.J.S. Appeal and Error § 321c, pp. 1024-1026.

      . “Granting a new trial because the verdict is inadequate is equivalent to saying the verdict is contrary to the weight of the evidence.” State ex rel. State Highway Commission v. Flynn, Mo.App., 263 S.W.2d 854, 856(1), and cases cited.


author: HOGAN, Judge.

text:
    J., Plaintiff-Appellant, v. E., Defendant-Respondent.
    No. 8610.
    Springfield Court of Appeals. Missouri.
    June 29, 1967.

      Leland C. Bussell, David W. Bernhardt, Bussell, Hough & Greene, Springfield, for plaintiff-appellant.
    No appearance for defendant-respondent.
   HOGAN, Judge.

This appeal is taken from an order modifying the custody provisions of a divorce decree. J., who was the plaintiff in the divorce action, is the mother of the children involved, and E., the original defendant, is their father. The parties are the parents of three children, a boy fourteen, another boy twelve, and a little girl eight. When the divorce was granted, the father defaulted in appearance, and the court awarded custody of the children to the mother. Subsequently, the custodial order was modified to give the father custody of the children from July 1 to August 15 each year, and during the Christmas vacation on alternate years.

In January 1966, the defendant instituted this action, seeking a further modification of the custodial order. The substance of the defendant’s motion was that a change in conditions had occurred, in that the defendant had remarried and had established a home in Colorado Springs, Colorado; that the plaintiff was neglecting the children in several respects, which were set out at some length; that the plaintiff had become “socially involved with married men,” and had associated with them in the children’s presence. The defendant asked that full custody of the children be awarded to him. The plaintiff filed a responsive pleading, admitting the defendant’s remarriage, alleging further that the defendant had attempted to create a feeling of disrespect for the plaintiff in the children’s minds by representing that the divorce was all the plaintiff’s fault; that defendant had never made his child support payments regularly, and that because of the pressure of inflation the amount originally allowed as child support was insufficient. The plaintiff’s pleading concluded with a prayer for an increased amount of alimony and support, and for absolute custody of the children.

The trial court heard the parties’ evidence and resolved the controversy by (1) placing G., the elder son, in his father’s custody, except for a two-week period during the summer and a period of one week during the Christmas vacation on alternate years; (2) leaving the younger two children with their mother, except for a six-week period during the summer and for one week during the Christmas vacation on alternate years; and (3) increasing the amount of child support to $20.00 per week per child. The plaintiff has appealed from that part of the order placing G. in his father’s custody.

Preliminarily, we may consider and dispose of the reciprocal charges of misconduct made by the parents. G., the elder son, seems to have instigated the proceedings by correspondence or by direct communication with his father. When it became apparent that G. was the source of the information contained in his father’s motion for custody, the trial court interrogated the child in chambers, with counsel’s permission. G. was asked directly, for example, about the allegation that his mother had become “socially involved” with married men and had “gone out with them” in the presence of the children. G.’s answer was: “Now, I don’t know where they got the ‘presence of the children.’ I have not seen her, and I know [the younger two children] have not seen her. We have suspected it lots of times. [The younger son] has mentioned it once or twice. At night he will be laying in bed, after she goes out, he will say, T wonder if she is out with some— where she is at tonight; I wonder if she is with some married man. Don’t you think that would be horrible if she was?’ And he suspected and I suspected — I don’t know whether [the daughter] does or not. * * I remember — I am positive I remember her telling somebody — I am not sure who it was or when it was — that she had gone with somebody — I think it was [a local businessman], I am not positive — and she had gone to such remote places they couldn’t get in any way but by boat. And I know it is true; they had a cabin and she — one week end she had to break the car window to get the keys.” G. was then asked about the allegation in his father’s motion that his mother put the safety of her children in danger by driving recklessly, and he answered, in part: “ * * * And she will be following this car, oh, going about thirty or forty miles an hour, and instead of going thirty or forty miles an hour she will drop back about fifteen or twenty feet, and then she will gun it up, race it up to the back of the car and then slow down, drop back and race up. * * * I have noticed that, and whether she thinks I am right or not, there is no need for lying. I particularly watched that, I knew we were going to have the trial this week. * * * and I knew [the hearing] was coming up, and Monday afternoon she told me it was going to be this morning. * * * I particularly watched her driving. I knew she wouldn’t be dumb enough to go out with a man between then and now. * * * I may sound a little bit like my father. I want to live with my father, that’s all.” (Our emphasis.) The trial court pursued the matter somewhat further, and asked if G. had discussed the father’s pleading with his mother. G. answered: “Oh, I read it, and she kept saying ‘Don’t you know I love you?’ and all that. I know she loves me and I know she wantí to keep me. And I really — I kinda want to stay with her, but I want to go live with Dad a lot more than I want to stay. I don’t know why — I can hardly explain it. A lot of people have asked me this * * *. I always say my father. I can’t ever tell them why * * *. Because I love him more, I have been with him more, and I have confidence and trust in him. * * * ”

These quotations fairly typify the substance and tenor of the father’s proof that the mother was unfit to have custody of the children. Aside from G.’s testimony, and the innuendo of counsel’s questions when the plaintiff was cross-examined, there is nothing of substance in the record to indicate that the plaintiff is in any sense an unfit parent. The plaintiff’s associates in business testified that she was a diligent and attentive worker. The plaintiff’s former “next-door neighbor” testified that the children were clean, healthy and well cared for during the two years she observed them. The children’s teachers stated that they were intelligent students making norma! progress in school. The mother categorically denied that she had ever “dated” or had a married man in her house.

The plaintiff mother’s complaint about her former husband was that he had attempted to alienate the children’s affection and inspire disrespect for her, and that he had failed to contribute to the children’s support as he should. The substance of her testimony was that she had had a very difficult time, financially, because the father had only been “caught up” three times in his child support payments. She had been obliged to live solely on her earnings, and had been forced to obtain short-term loans to make ends meet. She produced a witness, formerly associated in business with the father, who stated she had heard the defendant tell the mother, “I will see you in hell before I give you any money,” and that the father had repeatedly said if he refused to provide her with money “he would see J. come crawling back * * * because she would have to.” The father admitted that he had fallen behind in his support payments, “at one time * * * between four and five hundred dollars,” but said that he had refused to pay because he had been denied permission to visit his children. E. testified at the hearing that “I have a check in my pocket for sixty dollars,” and that payment of that sum would “pay up until tomorrow.” The plaintiff frankly stated that on occasion she had refused the father permission to visit the children, because she “certainly wasn’t going to let him have them unless he was current.”

As to his present situation, the father testified that he had remarried and had established a home in Black Forest, a rural community of about 900 “families” near Colorado Springs. He was employed as a “carpenter-contractor,” had obtained a contractor’s license, and was beginning to contract. He earned a “salary of four dollars an hour.” His present wife had been married before, and he had adopted the four children of her former marriage. There are three boys and one girl, ranging in age from thirteen to seven, in his adoptive family.

The father, his present wife and their four children, live on a 58-acre tract in a three-bedroom house which the father described as being “modern,” and his present wife described as being average. E. was, at the time of hearing, adding to the house and said that when the addition was completed it would have five bedrooms and four baths. He described the community in which he lived as a relatively new one accessible to schools, colleges and churches. Both the father and his present wife testified that the father’s adoptive children got along well with his natural children during their summer visits, and neither believed that any problems would be created if the two families lived together. The father’s present wife is willing to have his natural children come to her home, and stated that “I feel towards them like I do my own children.” E. and his present wife regularly attend church “in town” and he intended to see that his children also attended church on a regular basis.

The plaintiff is employed as a secretary by a real estate firm in Springfield, Missouri. She had been employed there “almost three years.” At the time of this hearing, the plaintiff lived “about a block outside” the city of Springfield, Missouri, in a “pretty new” house in which she had acquired “an equity.” The house consisted of three bedrooms, two baths, a living room, “family room,” a garage, and “just an ordinary lot.” The mother’s home is about a mile and a half from a modern, well-equipped elementary school to which the children are transported by bus. She has experienced no unusual difficulties with her children, they have done well in school, and she has taken or sent them to church regularly. As we have indicated, the plaintiff’s neighbors and the children’s teachers indicate that they are healthy and well cared for.

The appellant’s argument here is that the evidence presents no change in circumstances or altered conditions which warrant a modification of the custodial order. Expanding on this, she maintains that since there is no substantial evidence that she is unable or unfit to care for her children, and no showing has been made that the children are being mistreated or poorly cared for, there is no reason to separate the family by awarding the custody of one child to the father while the others remain with her.

We have largely discounted the mutual and reciprocal charges of personal misconduct and unfitness which the parties have made. It is obvious that they look upon each other with hostility and suspicion ; each is inclined to magnify the other’s faults. It may be granted that the defendant has not always been as conscientious and prompt as he should have been in remitting his child support payments, and that he seems somewhat over-confident of his ability to rear two families simultaneously upon the means and resources available to him. It may be further granted that the plaintiff emerges from this transcript as a rather flighty and unstable woman, overly imposed upon by circumstances to which she herself has contributed. Neverthelesss, the defendant seems genuinely interested in his children and concerned for their future welfare. The charges of personal misconduct and immorality made against the plaintiff are tenuous and insubstantial, and she seems to have done rather well in caring for her children. The law does not expect parents to be perfect, I. v. B., Mo. App., 305 S.W.2d 713, 718, and the comparative merits of the two parents and their respective homes are not substantial factors in our' consideration of this case. The real and substantive question is whether the trial court’s award of custody best serves the interests of the children themselves.

Child custody cases cannot be decided according to fixed rules, but in view of the appellant’s earnest and serious arguments, it may be well in this case to recall some of the general principles involved. As the appellant maintains, the custodial order made in connection with a divorce decree is conclusive as to all matters then adjudicated, and cannot be altered except upon proof of new facts or altered conditions showing that a modification of the order is in the best interest of the child or children involved. But even though the court may not thresh over old straw, Derringer v. Derringer, Mo.App., 377 S.W.2d 513, 515 [3], it is entitled to inquire very broadly to determine whether the original award best serves the interests of the children in the light of actual experience and subsequent developments. 24 Am.Jur. 2d Divorce & Separation, § 820 at 931. Upon a motion to modify, the court must determine what disposition of custody best serves the children at the time the motion is heard, and the children’s happiness, their emotional attachments, and their own preferences, provided they are mature enough to make a discriminating choice, are matters as much entitled to consideration as changes in their environment, their parents’ misconduct, or any other “changes of condition.” We further agree with the appellant that usually, when there are no exceptional circumstances, the children of divorced parents should not be separated by splitting or dividing them between the parents, but it is clearly within the discretionary power of the trial court to make such a division if it is in the best interest of the child or children to do so. And, as the appellant maintains, there are a good many cases holding that it is against the policy of the law to permit a child’s removal from the state. I. v. B., supra, 305 S.W.2d at 719, and cases cited n. 7. All the same, the obstacle of nonresidence is not insuperable, and our courts have readily permitted the removal of children to another state when that has appeared to be in their best interest. Good v. Good, Mo.App., 384 S.W.2d 98, 99-100; Lane v. Lane, Mo.App., 186 S.W.2d 47, 50 [2], [3]. As we view the case, the law involved is flexible enough to permit the award of custody made in this instance, if the subjective circumstances justify it.

Though we think the trial court might justifiably have denied a modification of the custodial order, we are not inclined to reverse or modify the judgment which was entered. The trial court made no absolute award of custody to either parent; all three chilldren will continue to have the benefit of association with both parents and, as we have said, the obstacle of non-residence is not insuperable. It is quite true that neither the passage of time nor the remarriage and establishment of a home by the father are in themselves such changes of condition as require a modification of the custodial order, Thomas v. Thomas, Mo. App., 357 S.W.2d 208, 210-211 [1, 2], but there are other circumstances to be considered here. At this writing, G. is fifteen years old. He is now at an age when the guidance and discipline of a father is most important, and the record plainly shows that he is profoundly dissatisfied with his present home and custodian. We do not, of course, know the real source of his antipathy toward his mother, nor the extent to which it is justified. Nevertheless, he is of sufficient age to have a will and express a preference. The weight to be accorded his views depends upon his maturity of mind and capacity to judge, and if the trial court was satisfied that G. was capable of judging what would best promote his own welfare, it might properly have considered his wishes persuasive. We do not say that the modification of a custody order should turn upon the temporary whims or desires of a child; the contrary is true. Kimble v. Kimble, supra, 399 S.W.2d at 634 [4]. Nevertheless, both parents are fit and suitable custodians, and both have good and salutary homes in which the children might live. G.’s desire to live with his father is deep-seated and of long standing. It would only exacerbate an already unfortunate situation to require him to remain with the plaintiff, particularly when we have no doubt he will shortly choose for himself the parent with whom he will live, regardless of what is said.

The findings of the trial court are not binding upon us, but they are nevertheless not to be lightly regarded and should be deferred to by us unless we are firmly convinced that the welfare of the children requires some . other disposition. Davis v. Davis, Mo.App., 354 S.W.2d 526, 532 [7]. We cannot say, upon this record, that the interests of the children would be best served by a different disposition of their custody, and the judgment is therefore affirmed.

STONE, P. J., and TITUS, J., concur.

      . State ex rel. Shoemaker v. Hall, Mo., 257 S.W. 1047, 1053 [7]; P. D. v. C. S., Mo.App., 394 S.W.2d 437, 439 [1]; Wood v. Wood, Mo.App., 378 S.W.2d 237, 239 [1-4] ; Hurley v. Hurley, Mo.App., 284 S.W.2d 72, 73 [1, 2],

      . Cook v. Cook, 77 U.S.App.D.C. 388, 135 F.2d 945, 947; Vilas v. Vilas, 184 Ark. 352, 42 S.W.2d 379, 381-382 [1] [2]; du-Pont v. duPont, Del., 216 A.2d 674, 680-681 [21, 22]; Hepler v. Hepler, 195 Va. 611, 79 S.E.2d 652, 658-659 [12] [13]; 2 Nelson, Divorce and Annulment, § 15.19 at 260-263; 1 Schouler, Marriage, Divorce, Separation and Domestic Relations, § 745, and cases cited n. 37 (6th ed. 1921).

      .Kimble v. Kimble, Mo.App., 399 S.W.2d 630, 634 [5-7]; Davis v. Davis, Mo.App., 354 S.W.2d 526, 531-532; Poor v. Poor, 237 Mo.App. 744, 755-756, 167 S.W.2d 471, 477-478 [8] ; Fisher v. Fisher, Mo. App., 207 S.W. 261, 262-263 [1] ; Anno., 98 A.Ii.R.2d 926, § 2 at 928 (1964).

      . Anno., 98 A.L.R.2d 926, § 3 [a] at 928-929 ; 2 Nelson, supra, § 15.18 at 258-259; 27B C.J.S. Divorce § 308e at pp. 448-449.