text:
    Mary Brewer LITTLE and Reed Little, Appellants, v. Henry H. CARTER and Alma J. Carter, Appellees.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      John C. Fogle, Bryan & Fogle, Mt. Sterling, for appellants.
    William A. Young, Frankfort, for ap-pellees.
   STEWART, Judge.

This appeal is from a judgment of the Morgan Circuit Court which declared limestone is not a mineral, within the meaning of a reservation contained in a series of deeds, beginning with a conveyance of 450 acres on March 5, 1925, from Mitchell Brewer and Lizzie Brewer, his wife, to Jerry Brewer.

The deed to Jerry Brewer was executed and delivered subject to a reservation of ¾6 of the oil and gas, ½ of the fire clay, “and a % interest in all other minerals on the land conveyed.” Mary Brewer Little, the daughter of Mitchell Brewer and Lizzie Brewer, both of whom are deceased, either by inheritance or by purchase has succeeded to all the interest her father and mother reserved in the land involved in this appeal.

Henry H. Carter and his wife, Alma J. Carter, through mesne conveyances, acquired title to the land on September 22, 1951. On November 23, 1959, the Carters leased all of the limestone deposits on and under the land to one Glenn Clevenger, and on December 12, 1959, Clevenger assigned all his rights in the lease to the Morgan County Limestone Corporation. Under the terms of the lease the Carters were to be paid a royalty of five cents per ton for all limestone taken from the leased property.

A controversy having developed concerning ownership rights to the limestone, the Carters brought a declaratory judgment action, asking that they be adjudged to receive and retain all the proceeds derived from the sale of the limestone quarried under the lease made by them; Mary Brewer Little, joined by her husband, counterclaimed, seeking to establish a one-half interest in the limestone deposits. She also claims she is entitled to an accounting for one half of the royalties heretofore paid to the Carters. The trial court found for the Carters, and this appeal followed.

The crucial question raised before us is whether the reservation of minerals in the deed from Mitchell Brewer and his wife, Lizzie Brewer, to Jerry Brewer, and contained in the deeds down to the Carters, includes limestone.

In Rudd v. Hayden, 265 Ky. 495, 97 S.W.2d 35, this court laid down the principles of law that are controlling in the case at bar. We quote this relevant language from that opinion:

“In seeking to determine what substances are included in a deed or lease of minerals, the ordinary rules of construction are applied, and the grant is construed most strongly against the grantor. McKinney’s Heirs v. Central Kentucky Natural Gas Co., 134 Ky. 239, 120 S.W. 314, 20 Ann.Cas. 934. All matter may be classed as animal, vegetable, or mineral, but the mere fact that a substance is inorganic does not bring it within the category of a mineral as that term is used in a deed or lease. Hudson & Collins v. McGuire, 188 Ky. 712, 223 S.W. 1101, 17 A.L.R. 148. The question is, after all, purely one of intention, to be decided upon the language of the grant or reservation, unless the grant or reservation is so ambiguous as to leave the mind in doubt as to its proper construction, in which event extrinsic evidence may be resorted to as an aid in determining the true meaning of the instrument. The authorities agree that the word ‘minerals’ as used, in a deed, does not ordinarily include limestone. Campbell v. Tennessee Coal, Iron & R. Co., 150 Tenn. 423, 265 S.W. 674; Brady v. Smith, 181 N.Y. 178, 73 N.E. 963, 106 Am.St.Rep. 531, 2 Ann. Cas. 636; Beury v. Shelton, 151 Va. 28, 144 S.E. 629, 632.” (Emphasis added.)

One primary reason for the rule that “the word ‘minerals’ * * * does not ordinarily include limestone” is well stated in Beury v. Shelton, 151 Va. 28, 144 S.E. 629, 632, where the land involved was in a limestone region, just as the land in the case at bar lies in a similar area. That court said, and the statement was approved in the Rudd case: “It is a well-known fact, and known of course to the parties to the deed here involved, that the section where this deed was to operate was a limestone country, where the land is everywhere underlain with limestone, and where it crops out on practically every tract of land that is not bottom land, and where it makes its appearance in manner varying from huge cliffs, as in the case here, to small outcroppings on various parts of the land. It is on the land everywhere, either breaking through it, or lying under it at different depths. In this country it is a part of the soil, and a conveyance that reserves the limestone with the right to remove it would reserve practically everything and grant nothing.”

It was pointed out in a Texas case, Atwood v. Rodman, Tex.Civ.App., 355 S.W.2d 206, that limestone is not legally cognizable as a mineral, because it is usually found in “a natural surface situation that warrants its consideration as a part of the surface rather than as a part of the mineral estate.” In another Texas case, Heinatz v. Allen, 147 Tex. 512, 217 S.W.2d 994, it was held: “In our opinion substances such as sand, gravel and limestone are not minerals within the ordinary and natural meaning of the word unless they are rare and exceptional in character or possess a peculiar property giving them special value, as for example sand that is valuable for making glass and limestone of such quality that it may profitably be manufactured into cement. Such substances, when they are useful only for building and road-making purposes, are not regarded as minerals in the ordinary and generally accepted meaning of the word.”

Appellants rely heavily upon Kalberer v. Grassham, 282 Ky. 430, 138 S.W.2d 940, to uphold their position. The question of whether limestone is a mineral was not an issue in that case. On the other hand that case quoted with approval the language we have cited above from Beury v. Shelton, supra.

We conclude that under the plain language of Rudd v. Hayden, supra, the use of the term “minerals,” without more, would not show an intention to include limestone within the reservation under consideration.

Wherefore, the judgment is affirmed.

MONTGOMERY, J., not sitting.


source: Caselaw Access Project

author: PALMORE, Chief Justice.

license: Public Domain

text:
    Arlo E. MASSINGILLE, Appellant, v. Campbell C. MERIDITH, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1966.

      John G. Crutchfield, Jones, Ewen & Mac-Kenzie, Louisville, for appellant.
    Edward M. Post, Taustine & Post, Louisville, for appellee.
   PALMORE, Chief Justice.

This is an automobile accident case in which the only question on appeal is whether the trial court was wrong in directing a verdict for the plaintiff.

The plaintiff, Meridith, was in the process of entering the northbound portion of the North-South Expressway in Louisville by way of a ramp leading upward from Critten-den Drive when his car was struck from the rear by an automobile driven by the defendant, Massingille. The ramp in question enters rather abruptly and at an acute angle onto the main traveled portion of the expressway, there being no merging or “feeder” lane. When Meridith had reached a point at or near the junction of the ramp with the expressway Massingille, who was following, saw him stop and look back over his left shoulder to observe whatever traffic might be coming along the expressway from the south. Massingille stopped about half a car length behind the Meridith car and also looked back down the expressway. He saw one vehicle approaching at a distance he estimated at 300 yards, which he judged to be sufficient clearance to allow both Meridith and himself to proceed onto the expressway. The Meridith car then moved forward, and Massingille followed suit. Massingille’s description of the collision follows:

“Well, * * * when I — we were sitting there I turned around in my car and looked out the expressway, I saw this one car on the bridge, and Mr. Meridith turned around also and looked back and he started movin’ out, and I started movin’ out and I took a quick glance in my mirror to see, for a safety check, and when I looked back to the highway I presumed Mr. Meridith had gone on because there was nothin’ to keep him from goin’ on, and he — he hit brakes and I— that was it, I couldn’t keep from hittin’ him. * * * I saw that car when I turned around, * * * and looked out the Expressway, and Mr. Meridith started movin’ out so I started movin’ out behind Mr. Meri-dith right here (indicating). So I just for a safety look I thought I’d look, I’d just glance in my mirror to see that I was really safe in goin’ and when I looked back Mr. Meridith had hit his brake, his lights was on and I had no chance other than to hit him because I was so close on him that I didn’t have time to touch the brakes * * * I saw no reason why Mr. Meridith would consider not going out because it was — the highway was clear, we were both sitting there waiting for a chance to go out.”

According to Massingille, Meridith moved forward a distance of 10 feet to three-quarters of a car length before stopping the second time, and it was during this brief interval that he took his eyes off the Meri-dith car in order to look again for himself through a rear-view mirror mounted on the fender of his automobile.

In Hainline v. Hukill, Ky., 383 S.W.2d 353 (1964), the plaintiff’s car was hit by a following automobile when he stopped suddenly on the Clark Memorial Bridge in (Louisville to pick up a hitchhiker. His suit against the owner and operator of the second vehicle resulted in a verdict and judgment for the defendants, from which he appealed, claiming he should have had a directed verdict. We held that he was not entitled to a directed verdict and that the trial court’s instructions concerning his own duties were not improper. It was the opinion of this court that under the circumstances of such a case the operator of the lead vehicle should keep a lookout not only ahead, but to the rear as well, and should give an appropriate signal of his intention to stop suddenly. As Meridith stopped suddenly without giving any signal other than his brake lights, Massingille relies on the Hainline case in support of his contention that a jury could reasonably find Meridith to have been contributorily negligent.

We feel that the circumstances of the two cases are not sufficiently comparable for analogy, principally because one is an intersection case and the other was not. KRS 189.380(3) requires the operator of the lead vehicle to signify his intention of stopping “when there is opportunity to give such signal.” There are various instances, however, in which the physical situation itself provides sufficient admonition to obviate a signal. For example, if the vehicles are approaching a clearly visible stop sign, a traffic light, a railroad crossing with a train on the track, or some other obvious obstacle, surely a hand signal would be superfluous. In this case there was only a “Yield” sign, but every motorist knows and must therefore anticipate that a high-speed, heavily traveled expressway demands the utmost caution of all who would enter safely upon it from an inferior thoroughfare, particularly when the view is restricted. No one would contend, we believe, that a hand signal by Meridith was necessary to herald his first stop, and it is our further opinion that none was required for the second.

We are not persuaded by the contrary viewpoint expressed by the courts of South Carolina, California, and Tennessee in Daniel v. Hazel, 242 S.C. 443, 131 S.E.2d 260 (1963); Whitford v. Pacific Gas & Electric Co., 136 Cal.App.2d 697, 289 P.2d 278 (1955), and Nichols v. Givens, 49 Tenn.App. 653, 358 S.W.2d 480 (1962). There are, moreover, some factual differences. Evidently in each of those cases there was evidence to support a finding that there was no traffic approaching on the cross-street when the lead vehicle suddenly stopped after moving into the intersection. Nevertheless, even if there had proved to be no traffic coming on the expressway, we do not think it was unreasonable for Meridith to stop twice in order to make a double check.

Considering the few feet he traveled between the two stops, Meridith could not have accelerated to a speed that would have justified Massingille in assuming that he had committed himself to continue without further hesitation. And once Massingille had made that assumption and taken his eyes off the Meridith car, what good would a hand signal have done?

Life is too precious and the incidence of death on the highways too great to justify a policy of law that would permit a jury to say that a motorist cannot, after stopping once at a dangerous intersection, stop again to make certain that he can proceed safely, without being negligent toward the driver and occupants of vehicles to his rear.

Some drivers, of course, are more circumspect than others. The motorist following closely behind another has no basis for assuming the degree of boldness or timidity of the driver ahead. He should be ready for either extreme. At an intersection such as the one in this case the best way to be ready is to stay far enough behind to defend against a sudden stop or decrease in speed. That is precisely what Massingille failed to do, and for that reason we are of the opinion that the trial court properly held him negligent as a matter of law.

The judgment is affirmed.


author: PER CURIAM.

text:
    Clara L. WASHINGTON, Petitioner, v. GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Respondent.
    No. A-11726.
    Supreme Court of Texas.
    Nov. 9, 1966.
    Rehearing Denied Dec. 7, 1966.
    Robert W. Hainsworth, Houston, for petitioner.
    Baker, Botts, Shepherd & Coates, John Held, Houston, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The Court of Civil Appeals has held that the appellant’s motion for new trial was overruled by operation of law on April 19, 1966. It dismissed the appeal because the appeal bond was not filed within thirty days after that date. 405 S.W.2d 856. In the course of its opinion, the intermediate court stated: “The judgment of the trial court overruling the motion for new trial was rendered on the day it was signed.”' As we interpret this statement, it means that for the purpose of determining the time within which the various steps of the appeal must be taken, the order is deemed to have been rendered on the day it was signed. See Rule 306a, Texas Rules of Civil Procedure. On the basis of that construction, we approve the opinion and the holding of the Court of Civil Appeals, and the application for writ of error is Refused.

SMITH, J., not sitting.


author: DICE, Commissioner.

text:
    Christine LYBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 39703.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.

      C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and Charles E. Bonney, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ON MOTION TO REINSTATE APPEAL

DICE, Commissioner.

Our prior opinion on motion to reinstate the appeal is withdrawn and the following substituted therefor:

In a supplemental transcript it is now shown that appellant was on bail at the time of his conviction. No further bond is shown to have been required of appellant.

Under the provisions of Art. 44.04 of the 1965 Code of Criminal Procedure, he was authorized to remain on such bail pending final determination of the appeal.

The supplemental transcript also includes the trial court’s docket sheet containing the notation: “Sentenced.”

The record on appeal does not contain a sentence, as required by Art. 40.09 of the 1965 Code.

The motion to reinstate the appeal is overruled.

Opinion approved by the court.


author: WOODLEY, Judge.

text:
    Don Elden VANNERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39837.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State
   OPINION

WOODLEY, Judge.

The offense is forgery; the punishment, six years, cumulated with the five year term assessed in the conviction for a like offense affirmed by this Court in Vannerson v. State, 403 S.W.2d 791.

Trial was had and notice of appeal given after January 1,1966.

No briefs were filed in the trial court assigning error.

The indictment contained three counts. The first count alleged the making of a false instrument in writing purporting to be the act of Dock Lundegreen, and contained explanatory averments. The second count contained like allegations without explanatory averments, and the third alleged that appellant knowingly and fraudulently passed a forged instrument in writing to William Charles Arthur which he knew to be forged.

The same instrument in writing (a credit card invoice) was set out in each of the three counts according to its tenor.

Motion to quash the indictment was filed on the ground that it charged more than one offense, in violation of Art. 21.24 Vernon’s Ann.C.C.P. The motion was overruled and exception was reserved.

Art. 21.24 C.C.P. reads:

“An indictment, information or complaint may contain as many counts charging the same offense as the attorney who prepares it, acting in good faith, may think necessary to insert, but may not charge more than one offense. An indictment or information shall be sufficient if any one of its counts be sufficient.”

We do not construe this statute as a prohibition against charging several ways in which one offense was committed, or charging more than one offense based upon the same incident, act or transaction. Jarnigan v. State, 171 Tex.Cr.R. 136, 345 S.W.2d 754.

This is especially true as to forgery and passing of the same instrument in writing, because of Art. 1005 of the Vernon’s Ann. Penal Code which provides in part that such offenses may be charged in separate counts in the same indictment.

Only the first count of the indictment was submitted to the jury. This count was sufficient hence, under Art. 21.24 C.C.P., the indictment was sufficient.

The judgment is affirmed.


text:
    Gussie Lee BURKS, Appellant, v. The STATE of Texas, Appellee.
    No. 39782.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.

      Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is negligent homicide, second degree; the punishment, a fine of $3,-<000.

The state moved to dismiss the appeal because the record contains no sentence as required by Art. 40.09 C.C.P.

Upon motion of appellant’s counsel filed in the trial court directing attention to the fact that no sentence had been pronounced, the trial court on October 17, 1966, pronounced sentence “to take effect nunc pro tunc as of the 15th day of March, 1966, when the judgment was rendered” and certified copies of the motion and sentence were forwarded to this Court to be made a part of the record on appeal.

Art. 42.04 C.C.P. 1965 requires that in all cases other than death penalty and probation cases “sentence shall be pronounced before the appeal is taken.”

Art. 42.06 C.C.P., relating to sentence nunc pro tunc, does not authorize the pronouncement of such sentence after an appeal has been taken.

The state’s motion is granted and the appeal is dismissed.


author: BELCHER, Commissioner.

text:
    Johnny L. YARBROUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 39860.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    LeRoy Peavy, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Commissioner.

The appellant waived a jury and pleaded not guilty on January 17, 1966, before the court to the charge of burglary of a private residence in the nighttime with a prior conviction for burglary alleged for enhancement. After the enhancement allegations were dismissed, the appellant was found guilty and his punishment was assessed at fifteen years.

Notice of appeal was given on February 4, 1966.

No brief, as required by statute, was filed by the appellant in the trial court assigning any ground of error which he desired to present for reversal on appeal. Vernon’s Ann.C.C.P. Art. 40.09, Sec. 9.

The brief filed in this court presents nothing for review.

The judgment is affirmed.

Opinion approved by the court.


text:
    Jose Joel RANGEL, Appellant, v. The STATE of Texas, Appellee.
    No. 39874.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    No appearance for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is burglary; the punishment, 3 years.

Trial was before the court on January 12, 1966, on a plea of not guilty, a jury being waived as provided in Art. 1.15 C.C.P., 1965.

No motion for new trial having been filed, sentence was pronounced on March 23, 1966, and appellant excepted and gave notice of appeal.

The record on appeal was prematurely forwarded to this Court without having been approved by the trial judge and, upon request, was returned to the trial court.

The record, having been supplemented and approved, was returned to this Court and the case was submitted on appellant’s motion to dismiss the appeal.

The supplemental record includes an affidavit of appellant filed in the trial court praying that he be allowed to withdraw his notice of appeal and accept the sentence; and the order of the trial judge granting said motion.

The trial court correctly found in such order that it retained jurisdiction of said cause and had authority to grant the mo tion and dismiss the appeal by virtue of Arts. 40.09 and 44.11 of the Code of Criminal Procedure.

Art. 44.11 provides in part:

“Upon the appellate record being filed in the Court of Criminal Appeals, all further proceedings in the trial court, except as to bond as provided in Article 44.04 and the proceedings in Article 40.09, shall be suspended and arrested until the judgment of the Court of Criminal Appeals is received by the trial court, * *

Art. 40.09, Section 9 et seq., provide a procedure in the trial court after the approval of the appellate record. Sections 9, 10 and 11 provide for the filing of briefs and oral arguments. Section 12 reads:

“It shall be the duty of the.trial court to decide from the briefs and oral arguments, if any, whether defendant should be permitted to withdraw his notice of appeal and be granted a new trial by the trial court. This duty shall be performed within the period of thirty days immediately after the State’s brief is filed, or, if none be filed, then within the period of thirty days immediately after the last day on which the State’s brief could be timely filed. Omission of the court to perform this duty within such period shall constitute refusal of the court to grant a new trial to defendant.”

Section 13 provides that upon refusal of the court to grant defendant a new trial, the clerk shall thereupon promptly transmit the record and briefs to the Court of Criminal Appeals.

The appellate record not having been approved and the time for filing briefs not having expired, the trial judge had authority to grant appellant’s application to dismiss this appeal and such order of dismissal will be confirmed.

The appeal is dismissed as of September 27, 1966, the date of the trial court’s order.


text:
    Walter Edmond BRILL, III, Appellant, v. The STATE of Texas, Appellee.
    No. 40002
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    No appearance for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

The offense is felony theft; the punishment, 4 years.

The appellate record transmitted to this Court reflects that prior to its being filed in this Court the trial' judge granted appellant’s motion and allowed him to withdraw his notice of appeal.

Under the provisions of Art. 44.11 C.C.P., further proceedings in the trial court are not suspended until the appellate record is filed in the Court of Criminal Appeals.

As to further proceedings under Art. 40.09 C.C.P., after the appellate record has been filed in this Court, see Rangel v. State, 408 S.W.2d 231.

The trial court was not without authority to allow appellant to withdraw his notice of appeal.

Notice of appeal having been withdrawn, the clerk was not required to transmit the record on appeal to this Court.

The appeal is dismissed as of October 28, 1966, the date of the trial court’s order.


author: MORRISON, Presiding Judge.

text:
    Ex parte Jerry Claude HENSON.
    No. 39857.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

This is an extradition proceeding. The warrant of the Governor of Texas was introduced which recited appellant was charged with the offense of robbery as shown by application, information, affidavit and allied papers. The warrant is regular on its face and is sufficient for extradition. Ex parte Escarrega, 388 S.W.2d 192. See Article 51.13, Vernon’s Ann.C.C.P., Note 8, and the cases collated.

The district judge did not err in ordering appellant to be delivered to the agent of the State of Florida for extradition.

The judgment of the trial court is affirmed.


text:
    Ex parte Louie D. YOUNG.
    No. 39975.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1966.
    George R. Milner, Dallas, for relator.
    Henry Wade, Dist. Atty., Kerry P. Fitzgerald, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Presiding Judge.

This is an original application for writ of habeas corpus by petitioner, an inmate of the Department of Corrections.

After further consideration we have concluded that this application was improvidently ordered filed by the writer in as much as practically the same contention presently presented was considered in his prior application. See Ex parte Young, 162 Tex.Cr.R. 381, 285 S.W.2d 749.

The writ is denied.


text:
    Ex parte José Trinidad ALEMAN.
    No. 39974.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1966.
    Phil Harris, Weslaco, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Commissioner.

This is an original application for writ of habeas corpus, wherein petitioner seeks his discharge from custody of the sheriff of Hidalgo County.

Said application was ordered filed by this court on October 21, 1966, and set for submission on the question of whether relief should be granted.

In a motion signed and sworn to by petitioner, he requests that he be allowed to withdraw the application and that no further action be taken thereon.

The motion is granted, and it is so ordered.

Opinion approved by the court.


text:
    Vernon E. GRANTHAM et al., Appellants, v. The STATE of Texas, Appellee.
    No. 39770.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1966.
    Rehearing Denied Nov. 30, 1966.
    Chappell & McFall, by John R. McFall, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is an appeal from a judgment making final the forfeiture of an appearance bond in the sum of $500.

The bond was executed on April 12, 1965 by Grantham as principal and the appellants Don Herriage and H. C. Trammel as sureties.

Judgment Nisi was entered on December 7, 1965 when the misdemeanor case was called for trial and the defendant Grantham failed to appear.

In their answer the sureties sought to invoke the provision of Art. 436 Vernon’s Ann.C.C.P. (now Art. 22.13) which provides, in part:

“The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
* * * * * *
“3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing.”

The facts alleged and proved show that Grantham was incarcerated in the Nebraska State Penitentiary on December 7, 1965 when his case was called for trial and his bond was forfeited, he having been committed to and received at said penitentiary on September 15, 1965 to serve a two year term, and tentatively scheduled for release on February 18, 1967.

The question presented is whether or not the incarceration of the principal in the penitentiary of another state upon a felony conviction is an “uncontrollable circumstance which prevented his appearance” to answer when the misdemeanor case was called for trial, and, if so, does proof of such incarceration in another state, standing alone, show “that his failure to appear arose from no fault on his part?”

This Court has held several times that the incarceration of a principal in the penitentiary or jail in another part of this state will exonerate under the statute. Allee v. State, 28 Tex.App. 531, 13 S.W. 991; Woods v. State, 51 Tex.Cr.R. 595, 103 S.W. 895; Sanders v. State, 166 Tex. Cr.R. 255, 312 S.W.2d 660.

Also, in Jones v. State, 112 Tex.Cr.R. 171, 15 S.W.2d 622, this Court has held allegations that the principal was in the federal penitentiary at the time he was to make his appearance “afforded a basis for the prayer that appellants be exonerated from liability on the appearance bond on account of uncontrollable circumstances which prevented the appearance of the principal at court.”

In Williams v. State, 130 Tex.Cr.R. 124, 92 S.W.2d 1036, relied upon by the state, the sureties on an appeal bond sought relief under the statute upon the contention that in as much as Williams, the principal, was confined in the State Penitentiary of the State of Iowa it was beyond their power to produce him and not within his power to appear.

The judgment forfeiting the appeal bond was reversed on other grounds but this Court, in overruling the contention that the sureties should be exonerated, said:

“ * * * it is obvious that if he was confined in the state penitentiary of the state of Iowa, it was his fault and his conduct that put him there, and he and his sureties could not be exonerated from liability by reason of his own act and conduct, which may have made it impossible for him to appear.”

The fact that the charge against the principal Grantham in this state is a misdemeanor which may be prosecuted after the felony sentence in Nebraska has been served, whereas Williams had been convicted in this state of a felony, convinces us that the reasoning of the Williams case should not be applied.

“The prime object or purpose of bail is to secure the presence of an accused upon the trial of the accusation against him.” Ex Parte Ramirez, 156 Tex.Cr.R. 280, 241 S.W.2d 157, 158.

Bail is not a revenue measure intended to be a substitution for a fine but is “intended to secure the trial of the offender rather than to mulct his securities in a penalty.” Jackson v. State, 13 Tex. 218, 219.

Reversal of the judgment forfeiting the bond will not release the sureties from liability on the appearance bond or prejudice the rights of the state to forfeit such bond should the misdemeanor case be called after the incarceration of the principal in the Nebraska Penitentiary has terminated and he fails to appear.

The judgment making final the forfeiture is reversed.


author: WERLEIN, Justice.

text:
    George BEDDALL, Appellant, v. READER’S WHOLESALE DISTRIBUTORS, INC., Appellee.
    No. 14870.
    Court of Civil Appeals of Texas. Houston.
    Oct. 13, 1966.
    Rehearing Granted Nov. 3, 1966.
    Wm. E. Hornbuckle, III, Wyckoff & Russell, James Wyckoff, Houston, for appellant.
    Ross, Banks, May & Cron, John A. Cavin, Houston, for appellee.
   WERLEIN, Justice.

Appellee, Reader’s Wholesale Distributors, Inc., sued William T. Myers and Claude Myers, individually and as partners, d/b/a Myers Floor Company, and Myers Floors, Inc., on a sworn itemized account, and appellant, George Beddall, as guarantor in writing of the indebtedness of Myers Floor Company. Upon request of appellee Claude Myers and Myers Floors, Inc., who were not served with citation, were dismissed from the suit without prejudice. The case was tried by the court without a jury, and the court upon the pleadings, stipulations made at the hearing, and arguments of the parties, rendered judgment in favor of appellee against William T. Myers in the sum of $3,600.00 and against appellant, George Beddall, who alone appeals, in the sum of $1,415.59.

Findings of fact and conclusions of law were not requested or filed. The statement of facts consists solely of the stipulations of the parties. They stipulated that prior to May 28, 1963, there existed a written contract of guaranty, wherein George Beddall guaranteed the indebtedness of William T. Myers and Claude Myers, individually and as partners doing business as Myers Floor Company; that on May 30, 1963, by written letter, George Beddall revoked his written guaranty and that the revocation was received by appellee on May 30, 1963; that the written contract and guaranty was to the effect that George Bed-dall would guarantee the debts of the partnership, Myers Floor Company, to Reader’s Wholesale Distributors, Inc.; that in such guaranty George Beddall had the right to revoke in writing at any time, and that such revocation was made on May 30, 1963; and that the address of the defendant, Claude Myers is unknown, and he cannot at the present time be located for purpose of service of citation.

Appellant contends that this case should be reversed because there is no evidence or stipulation that the guaranty expressly provided that the guarantor would be liable for debts incurred by the other defendants prior to the date the guaranty agreement was signed. The stipulation of the parties was to the effect that the written contract of guaranty existed prior to May 28, 1963. Appellant was advised when served with citation that the debt which appellee was asserting ran from November 5, 1962, and yet he did not testify or introduce any evidence as to the date of the agreement of guaranty. He did except in his original answer to the fact that appellee did not allege the date and the terms of the guarantee, but he failed to have the court pass on his exceptions and hence waived the same. There is nothing in the record before us to indicate that the court extended the guaranty to cover any indebtedness incurred prior to the date the guaranty agreement was executed.

This case was not submitted to the trial court upon an agreed statement of facts filed with the Clerk, as provided by Rule 263, Texas Rules of Civil Procedure. Said stipulations were made by counsel in open court. Hence the trial court could make any findings and draw any inferences supported by the evidence. Perry v. Aetna Life Insurance Company of Conn., Tex.Civ. App., 380 S.W.2d 868, writ ref., n. r. e. Furthermore, since there are no findings of fact and conclusions of law it will be presumed that the trial judge found every issuable fact necessary to sustain his judgment, where such fact is raised by the pleadings and can be supported by any reasonable theory supported by the evidence and authorized by law. McDonald, Texas Civil Practice, Vol. 4, Sec. 16.10(d), pp. 1302-3, and authorities there cited.

Appellant contends under his first point of error that appellee should not recover because it failed to plead and prove the point of beginning of the guaranty agreement and facts surrounding a default by the original debtors, such default being a pre-condition to any liability of appellant under the agreement. We are not in accord with this contention. The suit was brought by appellee on an open sworn account which showed the date that each item of indebtedness was incurred, and the total amount of the indebtedness owing appellee by William T. Myers against whom' judgment was rendered. Appellant and appellee stipulated in open court that prior to May 28, 1963, there existed a written contract of guaranty wherein appellant guaranteed the indebtedness of William T. Myers and Claude Myers, individually and as partners doing business as Myers Floor Company, and guaranteed the debts of the partnership to appellee. The court found in favor of ap-pellee and entered a default judgment against' the said William T. Myers for the amount of the claim as set out in the open sworn account. Thus, the amount of the indebtedness of the said William T. Myers to appellee was established.

Appellant was a party to such suit and was advised as to the nature of the claim and the indebtedness that was being sued for. At the trial it was stipulated that the guarantee terminated on May 30, 1963. Hence judgment was not entered against appellant for any amount of indebtedness accruing subsequent to such date. The guarantee of appellant was not limited or restricted in any way whatever but covered all the indebtedness owing appellee by Myers. The only limitation or restriction was contained in the stipulation that the guarantee was revoked on May 30, 1963. In his judgment the court found that appellant was indebted to appellee on his written contract of guaranty in the amount of $1,415.59. We are of the opinion that ap-pellee sufficiently identified and established the amount of the indebtedness which was guaranteed by appellant who was a party to the suit, and that in the absence of any restriction or limitation placed upon the agreement of guaranty the court properly entered judgment as was done.

Under his first point, appellant states that he filed a motion for new trial showing newly discovered evidence to the effect that the trial court’s judgment includes debts of the principal debtors which occurred before appellant knew or did business with them, and that upon a new trial he could show that the approximate date of the guarantee agreement was in January, 1963, and that it was incumbent upon ap-pellee to prove that such agreement provided that the guarantor would be liable for debts of the principals incurred prior to such date. Appellant has no assignment of error to the effect that the court erred in failing to grant a new trial because of newly discovered evidence. Moreover, he has wholly failed to allege and prove that he exercised diligence in connection with procuring the evidence which he now contends has been newly discovered. He executed the written guaranty and if he didn’t know the date thereof, he could easily have ascertained when it was. He stipulated that it was prior to May 28, 1963 and that he revoked the same on May 30, 1963. He has neither pled nor undertaken to show that the so-called newly discovered evidence was discovered after the trial or so late in the trial that it was impossible to present the evidence before the trial closed, or that it was not due to lack of diligence on his part that the evidence was not earlier discovered and made available at the trial. McDonald, Texas Civil Practice, Vol. 4, Sec. 18.16, pp. 1461-2; Wallace v. Petroleum Engineering & Tool Co. of Houston, Tex.Civ.App.1961, 349 S.W.2d 609.

Appellant has also failed to allege or prove that he exercised any diligence whatever in connection with discovering prior to the trial the fact that American Credit Insurance Corporation had paid either part or all of the account “under a contract of accounts receivable insurance with appel-lee.” He has also failed to plead or prove that if there was such insurance it would have inured to his benefit or resulted in any other judgment than that rendered. Hence, there is no merit in his assertion of newly discovered evidence. It should be noted also that appellant’s motion for new trial was overruled by operation of law and that the later action of the court in overruling such motion is a nullity. No evidence was introduced by appellant in such connection and there is nothing in the record before this Court with respect thereto.

Appellant lastly complains that appellee’s cause of action was barred by the two year statute of limitations. The principal debtors did not plead that the debt was barred by limitation and hence waived such defense. Travis County v. Matthews, Tex. Civ.App., 235 S.W.2d 691, writ ref., n. r. e. Judgment was taken against the said William T. Myers for the full amount owing, and against appellant for only the amount of indebtedness incurred from November 5, 1962 through May 27, 1963, which period was within four years of the date suit was filed. It is our view that the four year statute was applicable to appellee’s cause of action against appellant on his written guarantee. While there is some authority to the contrary, the great weight of authority is that an action to recover on a contract of guaranty cannot be defended by showing that the claim against the original debtor has been barred by the statute of limitations. In the instant case the principal debtors by not pleading limitation have waived the statute of limitations as to themselves; but even if they had pleaded the two year statute of limitations, appellant would still be liable on his written unconditional guaranty to pay the debt, and such guaranty was in nowise dependent on the vitality and force of the account. Western Casket Co. v. Estrada, Tex.Civ.App., 116 S.W. 113. The doctrine that a guarantor is not released or discharged even though the action against the debtor is barred by the statute of limitations finds support in numerous cases in other jurisdictions. See Annotation under Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P.2d 72, 58 A.L.R.2d p. 1273.

“The rule in this State is that the operation of the statute of limitation on the principal obligation does not of itself affect the undertaking of a guarantor. The bar of the statute is not a defense to the guarantor unless it has also operated on his own promise of guaranty.” 27 Tex.Jur.2d, p. 313, Guaranty, § 47, and authorities there cited. See also Charbonneau v. Bouvet, 1904, 98 Tex. 167, 82 S.W. 460.

In the instant case appellant did not plead or prove that he was not liable in the capacity in which he was sued, or that he was released from liability by failure of ap-pellee to notify him of non-payment by the principal debtor, or that appellee was guilty of laches in pursuing its remedy against the principal debtors, or that there was a mis-joinder of parties, or that the suit was as to him premature. Having failed to plead or prove these defenses in the trial on the merits of the case, appellant cannot raise such issues for the first time on appeal.

Judgment affirmed.

On Motion for Rehearing

We have reconsidered appellant’s Point 4 contained in his amended brief filed with leave of Court after submission and shortly before our opinion was handed down, in which he asserts that the open sworn account upon which judgment was rendered was hearsay as to him and therefore will not support the court’s judgment. We sustain this assignment. Products Unlimited, Inc., v. American R. & S. San. Corp., Tex.Civ.App., 397 S.W.2d 551, writ ref., n.r.e.; Duree v. Aetna Ins. Co. et al., Tex.Civ.App. 1933, 66. S.W.2d 764; National Surety Corporation v. Dabney, Tex. Civ.App. 1955, 282 S.W.2d 70; Meaders v. Biskamp, 1958, 159 Tex. 79, 316 S.W.2d 75.

Appellant’s motion for rehearing granted.

Judgment of the trial court reversed and remanded.


author: HIGHTOWER, Chief Justice.

text:
    James ELAM, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 6858.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 18, 1966.
    Motion for a Rehearing Overruled Nov. 2, 1966.
    Joe Bob Golden, Jasper, for appellant.
    Weller, Wheelus & Green, Beaumont, for appellee.
   HIGHTOWER, Chief Justice.

This is a suit for workmen’s compensation by plaintiff, James Elam, against Texas Employers’ Insurance Association, in which plaintiff alleged he was an employee of Coleman Cliburn and was injured in the course of such employment. The defendant denied he was an employee of Cliburn and alleged that Elam was an employee of Field Spikes, an independent logging contractor. Defendant filed its motion for summary judgment, supported by affidavits of Coleman Cliburn and Field Spikes, which alleged that Elam was employed by Field Spikes, who was an independent contractor. Defendant likewise made the opinion rendered by this court on a prior appeal of the same subject matter between the same parties a part of its motion. Texas Employers’ Insurance Association v. Elam, Tex.Civ.App., 376 S.W.2d 780. In that case we reversed and remanded a judgment in favor of Elam holding that, on the record, the finding of the jury that Elam was an employee of Coleman Cliburn was so against the great weight and preponderance of the evidence as to be manifestly unjust.

Though Elam filed no counter-affidavits, he swore to his answer to motion for summary judgment in which he alleged he was an employee of Cliburn and therein submitted to the court that he resisted said motion on the record made in the prior trial, including his verified amended petition, and the depositions on file and the official statement of facts.

Ordinarily, the question for the trial court to decide on defendant’s motion for summary judgment was whether there was an issue of fact as to any material matter and whether defendant was entitled to judgment as a matter of law. Texas Rules of Civil Procedure, rule 166-A. In the circumstances of this case, however, the trial court’s duty was to follow the holding of this court in our disposition of the first appeal, the effect of said holding being that there was some evidence of a probative nature contrary to defendant’s contentions.

The honorable trial judge was doubtlessly impressed by the vigorous insistence of defendant’s counsel that a retrial of the case would be a futile waste of time under the circumstances. Be that as it may, the situation confronted was the same as where a party’s only evidence, though meager and flimsy, is of some probative value. On motion for instructed verdict, after the close of all evidence, such evidence must be considered though the opposing evidence be overwhelmingly to the contrary and the court knows that a jury finding in favor of such meager evidence would necessitate granting a new trial.

The duty of the trial court being clear, it matters not that Elam’s affidavit to his reply to motion for judgment did not technically conform to the requisites set forth in Rule 166-A, supra, or that he filed no reply whatever in view of the contents of defendant’s motion.

The judgment of the trial court is reversed and the cause is remanded for trial on the merits.


author: RENFRO, Justice.

text:
    Frank LUTHER et al., Appellants, v. Edna Elizabeth GRAVES et al., Appellees.
    No. 16759.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 7, 1966.
    Rehearing Denied Nov. 18, 1966.

      Bryan & Amidei and Maurice Amidei, Fort Worth, for appellants.
    Garrett & Garrett and Rufus S. Garrett, Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

On December 13, 1961, Edna Elizabeth Graves, appellee, defendant below, was appointed Guardian of the person and estate of her mother, Amelia K. Luther, a non compos mentis. Mrs. Luther died February 21, 1964.

Claims paid by the guardian were approved by orders entered by the probate court during the guardianship, and on April 28, 1964, an order was entered approving the guardian’s account for final settlement.

Appellants, grandsons of Mrs. Luther, did not appeal from any of the probate orders approving claims.

By petition for writ of certiorari filed in District Court March 12, 1965, appellants, as petitioners, sought for the first time to challenge the orders approving claims paid by the guardian.

Judgment was rendered for the guardian, and petitioners appealed.

That the action of a probate court in approving a claim in guardianship proceedings cannot be carried to the District Court by certiorari has been established by a long line of cases. Such action must be done by direct appeal.

Some of the cases so holding are: De Cordova v. Rogers, 97 Tex. 60, 75 S.W. 16 (1903); Eastland v. Williams, 92 Tex. 113, 46 S.W. 32 (1898); Logan v. Gay, 99 Tex. 603, 90 S.W. 861; 99 Tex. 603, 92 S.W. 255 (1906); Jones v. Williams, 14 S.W.2d 300 (Tex.Civ.App., 1929, dism.); Bolton v. Baldwin, 57 S.W.2d 957 (Tex.Civ.App., 1933, dism.); Jones v. Silverman, 84 S.W.2d 1013 (Tex.Civ.App., 1935, no writ hist.); Wimberley v. Parish, 381 S.W.2d 135 (Tex.Civ.App., 1964, ref., n. r. e.).

There are some exceptions to the above rule, e. g., where the order entered by the probate court is void, or there is fraud, etc. The instant case does not fall within any of the exceptions.

Affirmed.


author: COLEMAN, Justice.

text:
    Pete MASON, Appellant, v. Hampton TOBIN, Administrator, Appellee.
    No. 14873.
    Court of Civil Appeals of Texas. Houston.
    Oct. 27, 1966.

      Baggett, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, Houston, for appellant.
    No attorney for appellee.
   COLEMAN, Justice.

This is a suit for the title to and possession of real estate. The case was called for trial on the jury docket, and all parties announced ready for trial. Before the jury had been selected, the trial court, at the request of the plaintiff, had a hearing in the nature of a pre-trial conference in chambers to determine what, if any, issues there were to submit to a jury.

At this hearing he considered the verified pleadings and certain documentary evidence tendered by the plaintiff, and concluded that no jury issues were presented. The trial court, being of the opinion that only issues of law were presented, dismissed the jury panel. Thereafter, in open court without a jury, the trial court permitted the plaintiff to introduce his documentary evidence and, after both parties rested, rendered a judgment for the plaintiff “upon his sworn pleadings and exhibits in support thereof, and upon the pleadings of the defendant.” (quotation from the judgment entered)

The defendant, appellant herein, excepted to the judgment and has assigned as a point on this appeal the error of the trial court in dismissing the jury prior to the introduction of testimony.

In defendant’s first amended answer, he pled a general denial; a plea of not guilty; parol gift together with possession, and valuable permanent improvements; adverse possession for ten years; adverse possession under a claim of title and valuable improvements; and other matters.

It is clear that issues of fact were presented by the pleadings. There is nothing in the statement of facts indicating that appellant objected to the introduction of evidence on the specific ground that he was being deprived of a jury trial. Nor does the statement of facts reflect that the trial court refused to permit appellant to offer evidence.

Rule 166, Texas Rules of Civil Procedure authorizes the trial court to require the attorneys and the parties to appear for a conference to consider the simplification of the issues; the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; and such other matters as may aid in the disposition of the action. The trial court is directed to make an order reciting the action taken at the pre-trial conference, “and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel.”

There is nothing in the rule authorizing the trial court to determine the merits of the issues raised by the pleadings at a pre-trial hearing, where the parties do not agree to limit the issues, and the issues raised by the pleadings are not disposed of by admissions.

Apparently the trial court considered certain matters contained in appellant’s pleading as judicial admissions. However, no order was entered as a pre-trial order limiting the issues. In view of the general denial and plea of not guilty found in appellant’s answer, the burden of establishing a prima facie case rested on appel-lee. The trial court erred in dismissing the jury panel, and in proceeding to trial without a jury, thereby denying appellant a jury trial. Const. Art. 1, Sec. 15, Vernon’s Ann.St.; Art. 2123, R.C.S.

Appellant demanded that appellee file an abstract of title as authorized by Rule 791, T.R.C.P., and no such abstract was filed. Rule 792, T.R.C.P., provides:

“Such abstract of title shall be filed with the papers of the cause within twenty days after the service of the notice, or within such further time as the court on good cause shown may grant; and, in default thereof, no evidence of the claim or title of such opposite party shall be given on trial.”

The trial court erred in admitting the deeds on which appellee’s prima facie case depended.

The judgment of the Trial Court is reversed and the cause is remanded for a new trial.


author: CLAUDE WILLIAMS, Justice.

text:
    Bob DeLEE, Appellant, v. ALLIED FINANCE COMPANY OF DALLAS, Appellee.
    No. 16797.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 21, 1966.
    Rehearing Denied Nov. 10, 1966.

      Henry Klepak and William B. Pasley, Dallas, for appellant.
    Locke, Purnell, Boren, Laney & Neely and John D. Crawford and J. L. Shook, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This appeal is from a consent judgment, as follows:

“FINAL JUDGMENT
“On this day came on regularly to be heard the above entitled and numbered cause and came the plaintiff, Allied Finance Company of Dallas, by its attorneys and announced ready for trial; and came the defendant Bob DeLee, in person and by his attorneys, in open court and all parties announced to the court that a compromise and settlement of all matters between the parties, including additional matters not heretofore alleged, to-wit, a Note and Chattel Mortgage, dated October 8, 1964 in the principal amount of $14,099.22 secured by the hereinafter listed personal property, said settlement and compromise being that plaintiff recover judgment against the defendant for the sum of $16,278.89, principal, interest and attorneys’ fees and that the plaintiff is entitled to judgment therefor, together with interest from this date until paid at the rate of 10% per annum and all costs of this suit, and is entitled to the establishment and foreclosure of its chattel mortgage lien and certificate of title lien as it existed on the date of said October 8, 1964 note, contract and chattel mortgage and the application for certificate of title; and it appearing that the defendant consents and agrees to this judgment and agrees that the pleadings support this judgment and further agrees that he will not appeal same;
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the court that plaintiff, Allied Finance Company of Dallas, a corporation, do have and recover of and from the defendant, Bob DeLee, the sum of $16,278.89, together with interest at the rate of 10% per annum from this date until paid, and all costs of this suit; and the chattel mortgage and possessory certificate of title lien (on title No. 22971906) on the following property is established and foreclosed, to-wit: ”
(Here follows a description of personal property and details of order of sale.)
“SIGNED and ENTERED this 5 day of January, 1966.
“/s/ Owen Giles
JUDGE
“AGREED TO AS TO FORM, SUBSTANCE AND ENTRY:
“By /s/ Roy J. True
Henry Klepak, Attorney for Bob DeLee
/s/ Bob DeLee
Bob DeLee, Defendant
“LOCKE, PURNELL, BOREN, LANEY & NEELY
“BY: /s/ John D. Crawford,
John D. Crawford, Attorney for Allied Finance Company of Dallas”

Appellant seeks to attack this judgment in two points of error wherein he alleges (1) that the trial court erred in rendering the consent judgment against appellant without a settlement agreement being reduced to writing or entered of record in open court, as required by Rule 11, Vernon’s Texas Rules of Civil Procedure, to thereby evidence the present consent of the appellant ; and (2) that the court erred in rendering judgment against appellant in an amount in excess of the pleadings. We find no merit in either of these points and overrule same.

While appellant’s points are preserved in an unverified motion for new trial, we find no statement of facts in this record which would reveal testimony introduced in support of the motion for new trial. Accordingly, the judgment, above recited, stands unchallenged and each finding recited therein is presumed to be true.

A casual reference to the judgment clearly demonstrates that it is sufficient to meet every requirement of Rule 11, T.R.C.P., relied upon by appellant. The recitations contained in the judgment are clear and explicit and the same was made in open court and agreed to by not only the attorneys but by the appellant himself. Thus we find appellant complaining of that to which he has agreed. This, he cannot do in the absence of allegation and proof of fraud, collusion, or some similar reason. As early as 1853 the Supreme Court of Texas had occasion, speaking through Chief Justice Hemp-hill, to classically announce the rule in such cases as follows:

“ * * * appellants are at once confronted with the general principle that consent takes away error, and that a judgment by agreement or compromise cannot be impeached, unless for fraud, collusion, or like causes, none of which appear in this record or are alleged or assigned. [Citing authorities.] The appellants are concluded by their own consent, and their appeal cannot be sustained.” Dunman v. Hartwell, 9 Tex. 495, 60 Am.Dec. 176.

The rule, more recently stated, is expressed in 3 Tex.Jur.2d, § 213, p. 479, as follows:

“A stipulation by the parties to an action as to the nature and terms of the judgment to be entered constitutes a waiver of all nonjurisdictional errors committed by the court prior to the agreement and judgment and justifies its af-firmance, if the agreement is based on a valid consideration and was not obtained by fraud, collusion, or the like.”

The rationale of such rule is that a party will not be allowed to complain on appeal of an action or ruling which he invited or induced. Having consented to the action of the court in entering judgment he thereby waives all errors committed or contained in the judgment, thus leaving nothing which could properly be considered by an appellate court, except want of jurisdiction. Posey v. Plains Pipe Line Co., Tex.Civ.App., 39 S.W.2d 1100; Blume v. Shadyacres Inv. Co., Tex.Civ.App., 83 S.W.2d 1026; Hall v. McKee, Tex.Civ.App., 179 S.W.2d 590; 69 A.L.R.2d 767 et seq.

Moreover, the final judgment executed by appellant and his attorneys of record was contractual in nature and is governed by the laws relating to contracts. Appellant has alleged no valid basis for vacating his contract reduced to judgment. Therefore, appellant cannot now be heard to complain that the agreement and judgment be set aside. Plumly v. Plumly, Tex.Civ.App., 210 S.W.2d 177; Alexander v. Alexander, Tex.Civ.App., 373 S.W.2d 800; Rawlins v. Stahl, Tex.Civ.App., 329 S.W.2d 308; 33 Tex.Jur.2d, §§ 105, 107, pp. 623, 626.

The judgment of the trial court is

Affirmed.


author: CHAPMAN, Justice.

text:
    Barbara HUFFMAN, Appellant, v. Joe HUFFMAN, Appellee.
    No. 7650.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 24, 1966.
    Shaver, Hurley & Sowder, Lubbock, Dan M. Hurley, Lubbock, of counsel, for appellant.
    LaFont, Tudor, Tunnell, Formby & Reep, Plainview, Bill LaFont, Plainview, of counsel, for appellee.
   CHAPMAN, Justice.

This is a venue case.

On July 22, 1963, in Hale County a judgment of divorce was granted Joe Huffman against Barbara Huffman in a suit filed by him. Prior thereto the parties had entered into an agreement respecting their community property rights, custody of their minor children and child support payments to be made by the plaintiff-father. As part of such agreement was the following inclusion concerning child custody:

“That said children are yet of tender years and need the attention of their mother, Barbara Huffman and that the care, custody and control of said children, subject to the approval of the court, should be awarded to their mother, however, Joe Huffman shall have the privilege of seeing and visiting with said children, without harrassment or embarrassment, every Sunday afternoon (2:00 to 6:00 o’clock p.m.), provided Barbara Huffman is notified of his intention to do so at least 24 hours prior to his visit; and when said children become older, and subject to further orders of the court, said children may visit through the summer months with their father, Joe Huffman. Future visitations and custody is to be left to court determination.”

The trial court in the-judgment and decree of July 22, 1963, entered as part of such judgment the language quoted in the preceding paragraph.

Following the divorce mentioned, Barbara Huffman moved with her children to Lubbock County, has lived there since and has not lived in Hale County since 1963.

On December 16, 1965, Joe Huffman filed in the same district court of Hale County a pleading he designated “Motion” in which he sought to have the four-hour weekly visitation period to which he had agreed in 1963 changed so as to permit him to have the three children in his home one week-end each month between the hours of 8:00 o’clock a.m. on Saturday morning until he delivered them to their mother by 5:00 o’clock p.m. on Sunday afternqon, three days each year during the Christmas holidays, and have them for the full time during June, July and August of each year until they reach their majority.

Mrs. Huffman filed a plea of privilege to have the hearing moved to the county of her residence. Appellee controverted with the claim that the case comes within Section 30 of Article 1995 of Vernon’s Texas Civil Statutes. Said exception to the right of one to be sued in the county of his or her residence provides: “Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

The trial court overruled the plea of privilege. We hold it committed reversible error in so doing.

Under Article 4639, Vernon’s Texas Civil Statutes, a suit to again litigate and adjudicate the custody of minor children whose custody had been previously litigated and adjudicated at a term of court which had expired was a new suit or an independent cause of action. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016. This is true notwithstanding the trial court entering the judgment undertook to retain exclusive jurisdiction to afterwards re-ad judicate and change custody. Lakey v. McCarroll, supra; Black v. Black, Tex.Civ.App., 2 S.W.2d 331 (N.W.H.), cited as authority in Lakey v. McCarroll, supra.

Article 4639a evidences no legislative intent to give the divorce court exclusive jurisdiction over later independent actions. Lakey v. McCarroll, supra.

The request for modification or change of custody in Glasgow v. Hurley, Tex.Civ.App., 333 S.W.2d 658 (N.W.H.) was less radical than the request granted by the trial court in the instant case and the Dallas Court of Civil Appeals held the pleadings and judgment involved a change in custody and not a mere change in visitation privileges. In our case, as there, we shall not attempt to point out the dividing line between change in visitation privileges and change in custody but clearly the radical change requested here constituted a change in custody. Since the pleading seeks a change or modification in the judgment of July 22, 1963, “ * * * it constitutes a separate, independent suit, the venue of which lies in the county of defendant’s [appellee’s] residence. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016; Spell v. Green, 144 Tex. 535, 192 S.W.2d 260. * * * "

What we have said disposes of the venue question but in the event of a trial on the merits we feel it is only fair to call to the attention of appellee that this court has for many years adhered to the principle that the division of custody of minor children should never be done " * * * except under special conditions in which there is no reasonable alternative and it is made essential and absolutely necessary.” Dunn v. Dunn, Tex.Civ.App., 217 S.W.2d 124 (writ dism.); Immel v. Immel, Tex.Civ. App., 231 S.W.2d 732; Bezner v. Sawyer, Tex.Civ.App., 217 S.W.2d 858; Kelly v. Applewhite, Tex.Civ.App., 231 S.W.2d 974 (N.R.E.). Courts of other jurisdictions have taken the same view. Towles v. Towles, 176 Ky. 225, 195 S.W. 437; Larson v. Larson, 176 Minn. 490, 223 N.W. 789; Bennett v. Bennett, 200 Iowa 415, 203 N.W. 26; Campbell v. Campbell, 96 N.J.Eq. 398, 130 A. 361.

The reasons for such rule are well stated by a former distinguished chief justice of the Supreme Court of Texas when he was serving as justice of the Court of Civil Appeals at Waco in the following language:

“In our opinion, the original decree awarding the child part time to each of the parents was unwise. Certainly, no child could grow up normally when it is hawked about from one parent to the other with the embarrassing scene of changing homes at least twice each year. Such decrees are usually prompted by a laudable desire to avoid injuring the feelings of the parents, but the net result is a permanent injury to the child without any substantial benefit to the parents. In addition to the lack of stability in his surroundings, the child is constantly reminded that he is the center of a parental quarrel. It is readily apparent that such practices are calculated to arouse serious emotional conflicts in the mind of the child and are not conducive to good citizenship. Moreover, the parents are continuously pitted against each other in the unenviable contest of undermining the child’s love for the other parent. Each parent is afraid to exercise any sort of discipline for fear of losing out in the contest. As a result, the child is reared without parental control. Such decrees by which the child is awarded part time to each of the parents have been condemned by numerous decisions.”

The Supreme Court of Texas in Mumma v. Aguirre, 364 S.W.2d 220 has recently stated that “ * * * our courts do not normally concern themselves with the righteousness of claims to custody of children; their paramount concern is with the best interests of the children.”

The judgment of the trial court is reversed and the case is ordered transferred to Lubbock County.

      . Hunt v. Boyd, Tex.Civ.App., 193 S.W.2d 970.

      . Martin v. Martin, Tex.Civ.App., 132 S.W.2d 426, 428.


author: LANGDON, Justice.

text:
    INDUSTRIAL SUPPLY COMPANY, Inc., Appellant, v. STOCKTON OIL COMPANY et al., Appellees.
    No. 16758.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 7, 1966.
    Rehearing Denied Nov. 18, 1966.
    Nelson & Sherrod, and Stan Carter, Wichita Falls, for appellant.
    Jennings, Montgomery & Dies, and Elton M. Montgomery, Graham, for appel-lees.
   OPINION

LANGDON, Justice.

This is a venue case. The appellees, plaintiffs in the trial court, sued for damages resulting from the alleged conversion of personal property from an oil and gas leasehold estate situated in Young County, Texas. The appellant, Industrial Supply Company, Inc., defendant in the trial court filed a plea of privilege asserting the right of trial in Wichita County, its residence and place of business. The plaintiffs filed controverting pleas contending the suit was properly filed and presented in Young County, Texas under Subdivisions 9 and 23 of Art. 1995, V.A. T.S. The trial court, following the venue hearing, overruled the defendant’s plea of privilege and it has appealed from this ruling contending by its thirteen points of error that there was no evidence, insufficient evidence and no evidence of probative force that (1) it committed a trespass or conversion, (2) had actual or constructive notice of the lien of appellees, (3) nor that plaintiffs have a cause of action against it and that each of such findings would be contrary to the great weight and preponderance of the evidence and finally that it purchased the property in question from the lawful owner without notice of the claims of the plaintiffs. We affirm.

Plaintiffs, Stockton Oil Company and J. O. Chambers Oil Co., Inc., owned several leases in Young County, including the Matthews Lease. These leases and others were operated for the plaintiffs by Jimmy Prickett, who had on occasion ordered supplies and materials for the leases to the account of the plaintiffs. On June 24, 1964, the plaintiffs advised the defendant by letter as follows:

“This is to advise you that neither D. L. Garlington nor Jimmy Prickett any further has the privilege of charging to the Stockton Oil Company, Inc. or J. O. Chambers Oil Co., Inc. for any service rendered on or after June 1, 1964.”

That the defendant received such letter has not been denied.

Some of the leases operated by Prickett, including the Matthews Lease, were sold by the plaintiffs to Prickett by assignment dated June 4, 1964, at 7:00 A.M. Contemporaneously with the conveyance, Prick-ett gave the plaintiffs a purchase money note of $100,000.00 and a deed of trust on the leases (including the personal property) to secure the note.

Neither the assignment to Prickett nor the deed of trust from Prickett to the plaintiffs was recorded immediately. The assignment was filed on September.3, 1964, and the deed of trust on September 14, 1964. Thus, at the time of the defendant’s actions hereinafter described, the record title of these leases was in the plaintiffs to the exclusion of all other parties.

On June 29, 1964, pursuant to the defendant’s request and instructions, the Davis Trucking Company of Wichita Falls went to the Matthews Lease and thereupon dismantled and removed the pumping unit from the 1-A Well situated in Young County.

The pumping unit was hauled to the Wichita Falls yard of the defendant. Thereafter on July 2, 1964, the defendant credited the account of Jimmy Prickett with its wholesale value of $2,050.00. It is undisputed that this transaction was made by and on behalf of the defendant with its knowledge and approval through its duly authorized agents and officers acting in the course and scope of employment.

After taking possession of the pumping unit, the defendant exercised full dominion and control over it and appropriated it for its own uses and benefit. After some maintenance work, the defendant sold the unit to Allen & Parker of Perryton, Texas, for the sum of $3,500.00.

Thereafter, Prickett defaulted in the payment of the $100,000.00 note due the plaintiffs, and on October 6, 1964, the plaintiffs re-acquired the leases and equipment by deed from the Trustee pursuant to foreclosure proceedings under the deed of trust.

The venue rules for Subdivision 9 are the same as those for Subdivision 23, as applied to the facts of this particular case. In 1 Texas Civil Practice (McDonald) 471 (§ 4.17.1) the rule is announced that, “Where the plaintiff seeks actual or nominal damages alleging an assault and battery, conversion of personal property, infringement of his possession of real or personal property, or similar intentional, forceful and direct invasions of his person or property, venue may be sustained under the ‘trespass’ aspect of exception 9. It is not necessary that the ‘trespass,’ to establish venue, violate the criminal laws. The exception applies in an action based on wrongful misappropriation of property, though the prayer be for recovery thereof rather than for damages. * * *

“Upon the venue hearing, plaintiff must establish by a preponderance of the evidence (a) that a trespass has been committed; (b) that it was committed in the county of suit; and (c) that the defendant asserting his privilege committed the acts, or that they were committed by another under circumstances that make the defendant legally responsible. Thus venue fails where the evidence, though sufficient to show that the person committing the trespass was an employee of the defendant, does not contain a showing that the employee was acting in the course of his employment at the time. These facts support a claim for nominal damages at least, so that it is not essential that actual damages be shown.” (Emphasis added.)

It is undisputed that the personal property on which a lien was held by the plaintiffs was removed from Young County by the defendant Industrial Supply Company. At the time of its removal, since the plaintiffs were mortgagees, the acts of the defendant constituted an affirmative trespass (conversion).

“A chattel mortgagee may bring trover for the conversion of the mortgaged goods.

“Usually an action in trover for conversion is brought against the mortgagor and purchaser, since both may be jointly liable to the mortgagee, but anyone instrumental in disposition of the property in denial of the mortgagee’s rights, or who causes or induces disposition of the property, may be held for conversion.” 14 Tex.Jur.2d 54, “Conversion”, § 59.

Appellant does not take issue with the principle above set forth. It seeks to avoid its application on the grounds that on June 29, 1964, at the time it moved the equipment from the lease, the plaintiffs had no lien rights of record and thus, defendant had no notice. The plaintiffs contend that since they held record title to the property on June 29, 1964, that failure to file the assignment and deed of trust is altogether immaterial and irrelevant on the question of notice. In this case notice is the basic element in determining whether the defendant’s removal of the property constituted conversion. We find ample evidence in the record to support the trial court’s judgment finding to the effect that the defendant was charged with notice of the plaintiffs’ rights under the circumstances, and that the defendant is thus guilty of conversion.

At the time the defendant dealt with Prickett on removal of the property from the lease, Prickett did not hold record title to the lease. A check of the records would have reflected no right on the part of Prickett to trade or sell the property in question or to contract with reference to it. This fact considered in connection with the June 24, 1964 letter above set forth would be calculated to put any prudent person on notice that Prickett was without any legal right to charge goods or services to plaintiffs or to trade or sell its property. Therefore, the defendant is not in a position to claim that it was without notice.

In 38 Tex.Jur.2d 613, “Mechanic’s Liens”, § 54, it is stated: “Where the record title is in the name of a person other than the one who contracts, it is the duty of the contractor to inquire as to the ownership of the land. Where the inquiry would have shown that the only title the person contracting could obtain was encumbered with a vendor’s lien, the mechanic’s lien is subordinate to the vendor’s lien in the absence of a showing that the purchaser acted as agent for the vendor in making the contract. The lienholder’s only remedy to defeat a rescission of an executory contract by the vendor holding a vendor’s lien is to tender the balance of the unpaid purchase money.”

Based on the state of the record as of June 29, 1964, the defendant was afforded constructive notice of the fact that Chambers and Stockton claimed the leases and equipment. When they contracted with Prickett at that time, they had the duty to inquire as to the ownership of the lease. Had they inquired pursuant to that duty, the defendant would have learned that, based upon documents off the record, Prick-ett did own the leases and equipment, but such ownership was subject to the rights of the plaintiffs as mortgagees. Therefore under the circumstances, the defendant cannot claim the benefits of “lack of notice”.

One of the cases cited for the rule stated above from Tex.Jur.2d is Harveson v. Youngblood, 38 S.W.2d 781 (Com.App., 1931). In that case, as in this one neither the deed nor the mortgage was of record when the purchaser in the unrecorded deed contracted for improvements. In holding that the purchase money lien had priority over another lien, the court said: “It is contended by Youngblood that he had no notice of these matters. The record shows that Sprowls had no title to the lot at the time his contract was made-and -for some time thereafter, but that the title thereto was vested of record in Rogers et al. Youngblood was charged with notice of what the record showed, and therefore knew that Sprowls had no title of record. This certainly put him on inquiry, and charged him with notice of what the inquiry would have disclosed.”

See also Eardley Bros. v. Burt (Civ.App., 1916), 182 S.W. 721.

There is no evidence in this case that the defendant made any inquiry concerning the rights of the record owners of these leases, the plaintiffs. Had the defendant done so, the evidence is conclusive that it would have learned that the only title which Prickett could claim was subject to a purchase money lien in favor of Stockton and Chambers, securing payment of the sum of $100,000.00.

We have carefully reviewed the entire record in this case and are unable to find any basis for the defendant’s points of error and they are each accordingly overruled and the judgment affirmed.


author: MURRAY, Chief Justice.

text:
    DALWORTH-SLURRY SEAL COMPANY, Appellant, v. James L. DAWSON et al., Appellees.
    No. 14506.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1966.

      Edward R. Finck, Jr., Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    J. Anthony Guajardo, San Antonio, for appellees.
   MURRAY, Chief Justice.

This is a venue case. James L. Dawsort and William C. Bryant brought this suit in the District Court of Bexar County against Dalworth-Slurry Seal Company seeking to recover for personal injuries allegedly arising out of an automobile collision. Defendant below filed a plea of privilege to be sued in Tarrant County, Texas, the county of its residence, which was controverted by plaintiffs below. After a hearing, the-trial court rendered judgment overruling the plea of privilege and defendant has prosecuted this appeal.

Appellant’s first contention is that there was no evidence to support the finding that appellant’s driver was guilty of negligence which was the proximate cause of the collision and appellees’ injuries.

Appellees’ controverting affidavit was based solely on Subd. 9a of Article 1995, Vernon’s Ann.Civ.St. In their controverting plea appellees adopted their original petition which accused appellant’s driver of the following acts of negligence:

“(1) In operating said five-ton truck at a rate of speed in excess of that which a person of ordinary prudence and in the exercise of ordinary care would have operated under same or similar circumstances ;
(2) In failing to maintain proper control over the five-ton truck prior to and at the time of the accident.
(3) In failing to observe traffic signals and yielding right of way to Plaintiffs’ vehicle.
(4) In failing to make timely and proper application of the brakes on said five-ton truck to stop and avoid the collision.”

There is absolutely no evidence in the record as to the speed at which appellant’s truck was traveling, as to the driver’s control or lack of control of the truck he was driving, and no evidence as to whether appellant’s driver applied the brakes or failed to apply the brakes. This leaves only the third allegation of negligence, relating to appellant’s failure to yield right of way to appellees’ automobile. In overruling the plea of privilege, the trial judge impliedly found that appellant’s driver failed to observe the traffic sign and yield the right of way to appellees’ vehicle.

The collision occurred on January 26, 1965, at Tinker and Duncan Drive, on Kelly Air Force Base, in Bexar County, Texas. Appellant’s truck was traveling north on Duncan Drive, and the vehicle occupied by appellees was traveling west on Tinker Drive. There is a yield right-of-way sign for traffic on Duncan at its intersection with Tinker. Appellee James L. Dawson was the only witness who testified at the hearing on the plea of privilege as to the facts surrounding the collision. He testified that the accident took place “right at the intersection” and, at another time, that it occurred “right in the middle of the intersection.” Appellee Dawson was a rider in the Ford Pickup involved in the collision, which was going west on Tinker. He was riding on the right side of the pickup, in the cab, and appellant’s truck struck this vehicle on the driver’s side. Dawson did not see appellant’s truck until just a moment before the collision. He did not attempt to say how fast appellant’s truck was traveling. He could not say whether the truck stopped at the yield sign or not. He could not say whether the driver of appellant’s truck applied his brakes.

Thomas E. Swiney, the driver of appellant’s truck, was an employee of appellant, and was in the scope of his employment on that occasion. Swiney was not tendered as a witness and was not made a party defendant. There was no showing as to whether he was employed by appellant at the time of the venue hearing or was available as a witness at that time. Hence, the fact that Swiney did not testify would not impute or give rise to a presumption that his testimony would be adverse to appellant. Smith v. Roberts, Tex.Civ.App., 265 S.W.2d 915. Appellee Bryant did not testify, although he was the driver of the vehicle in which he and Dawson were riding at the time of the collision. Since Bryant was a party plaintiff and did not testify, under all of the circumstances, it must be presumed that his testimony would be adverse to appellees. 23 Tex.Jur.2d, Evidence, § 104.

The testimony shows nothing more than that the collision occurred, and there is no evidence to show that appellant’s driver was guilty of negligence proximately causing the collision and appellees’ injuries. Dawkins v. Reeder, Tex.Civ.App., 344 S.W.2d 730; Smith v. Roberts, supra. There is no evidence as to visibility, lighting conditions, or condition of the weather at the time and place of the collision. We therefore cannot sustain the trial court’s implied finding that appellant’s driver was guilty of negligence in failing to yield the right of way to the vehicle occupied by appellees.

Appellee Dawson testified that he received injuries in the collision but Bryant did not testify, and there was no evidence offered as to any injury sustained by him. This in itself would be sufficient to require a reversal of the judgment as to Bryant. Saenz v. Hinojosa, Tex.Civ.App., 268 S.W.2d 476.

Appellant next contends that the court erred in overruling its plea of privilege because there is no evidence that appellant’s driver was guilty of negligence in Bexar County, Texas. The collision occurred within the confines of Kelly Air Force Base, a military reservation. The particular land comprising Kelly Air Force Base was ceded from the State of Texas to the United States of America by proclamation dated September 13, 1918, and Deed of Cession dated April 19, 1921. These instruments have the effect of ceding exclusive jurisdiction over the lands to the United States of America, with the reservation that the State of Texas retains concurrent jurisdiction for the execution of civil or criminal process on the premises. The ceded lands are physically located within the confines of Bexar County. Adams v. Calvert, Tex., 396 S.W.2d 948, discusses to some extent the question here involved. Chief Justice Calvert, speaking for the Supreme Court of Texas, in that case cited Yellowstone Park Transportation Co. v. Gallatin County, 9th Cir., 31 F.2d 644, 645 (1929), “in which it is said that ‘after the date of cession, the ceded territory was as much without the jurisdiction of the state making the cession as was any other foreign territory, except in so far as jurisdiction was expressly reserved.’ But we do not so hold.” The exact question here presented was not involved in that case. Inasmuch as we have herein held that the plea of privilege must be sustained because of the lack of evidence to show negligence on the part of appellant’s driver, we do not pass upon the question of whether or not, by establishing the fact that the collision occurred on Kelly Air Force Base, the requirements of Subd. 9a of Art. 1995, Vernon’s Ann. Civ.St., were complied with, and is sufficient to show that the collision occurred in Bexar County, Texas.

Appellees have not filed a brief herein.

The judgment of the trial court is reversed and judgment here rendered sustaining appellant’s plea of privilege and ordering the cause transferred to Tarrant County, Texas, in compliance with the provisions of Rule 89, Texas Rules of Civil Procedure.


author: DIXON, Chief Justice.

text:
    Verna Glenn BLAIR, Appellant, v. Douglas G. BLAIR, Appellee.
    No. 16796.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 21, 1966.
    Pat McDowell, Dallas, for appellant.
    Clyde, Hines & Craig and Wallace S. Craig, Fort Worth, for appellee.
   DIXON, Chief Justice.

Verna Glenn Blair has attempted to appeal from an order of the Juvenile Court of Dallas County, Texas, denying a motion to hold in contempt her former husband, Douglas G. Blair, for failure to pay child support.

The parties were divorced on August 8, 1949 and Douglas G. Blair was ordered to pay ten dollars per week as child support until their child should reach the age of sixteen years. There has been no modification of the child support order.

On November 8, 1965 Verna Glenn Blair filed a motion to hold the father in contempt for failure to pay child support as ordered by the court. She alleged that the father was $7,800 in arrears in his payments. The court set the motion for hearing for December 16, 1965.

On the last named date the parties appeared in court in person .and by their attorneys and announced ready for trial. The court considered the pleadings, the affidavits and other facts made known to the court, then denied the motion. The court’s reasons for so holding, as recited in the order, are as follows:

“* * * the Court is of the opinion that as a matter of law that it does not have authority to hold the defendant in contempt of Court for failure to pay child support to the plaintiff when the hearing on such contempt motion brought to hold the defendant in contempt of Court for said failure to pay child support to plaintiff is had at a time after the minor child made the subject of the child support order has reached the age of eighteen years;
“It is therefore accordingly ORDERED, ADJUDGED AND DECREED by the Court that plaintiff’s motion for contempt herein is denied for the reason that the hearing hereon of December 16, 1965, is after the eighteenth birthday of the minor child made the subject of the custody order heretofore entered by this Court.”

Verna Glenn Blair excepted to the ruling of the court and gave notice of appeal to the Court of Civil Appeals.

It is conceded that the motion seeks only to hold the father in contempt for his failure to make payments which became due prior to the time the child reached the age of eighteen years.

In her first point on appeal Verna Glenn Blair asserts that the order in controversy is a final judgment, therefore we have jurisdiction of the appeal. Douglas Blair in his appellee’s brief does not attack the appeal on the grounds of jurisdiction. In fact, in oral argument counsel for the father conceded that this court does have jurisdiction of the appeal.

Nevertheless, the question of jurisdiction is fundamental in nature and we cannot ignore it. We have concluded that the record shows on its face that we do not have jurisdiction of the appeal. Mitchell v. Mitchell, Tex.Civ.App., 266 S.W.2d 252; Ex parte Henderson, Tex.Civ.App., 300 S.W.2d 189, 190.

In the above cases the parties attempting to appeal had been held in contempt and sentenced to jail. In both instances it was held that a judgment of contempt was not appealable — the complainants’ only remedy being by application for a writ of habeas corpus.

.In the instant case the motion for contempt was denied. A release from jail is not involved, so the remedy of habeas corpus is not applicable. But the order of the court is not appealable. Appellant’s remedy, if she has one, is by mandamus. Allen v. Woodward, 111 Tex. 457, 239 S.W. 602, 22 A.L.R. 1253; Gierczic v. Gierczic, Tex.Civ.App., 382 S.W.2d 495 (no writ hist.) ; Rushing v. Bush, Tex.Civ.App., 260 S.W.2d 900; Rosenfield v. Campbell, Tex. Civ.App., 276 S.W. 728; 12 Tex.Jur.2d 535.

In Allen v. Woodward, supra, our Supreme Court held that mandamus would lie in a case where a district judge denied a motion for contempt on the ground that he was without authority to grant the order.

We are not here deciding the question whether the Judge of the Juvenile Court has the authority to pass on the motion for contempt under the circumstances presented in this case. We are simply holding that the order complained of is not appealable, therefore the appeal must be dismissed.

Appeal dismissed.


author: BARROW, Justice.

text:
    Lulu Elizabeth THORMAN, Appellant, v. Waggoner CARR, Attorney General of Texas, et al., Appellees.
    No. 14525.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 26, 1966.
    Rehearing Denied Nov. 16,1966.
    Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellant.
    Waggoner Carr, David Longoria, Austin, for appellees.
   BARROW, Justice.

This is a suit by the Trustees under the will of Lulu Elizabeth (Bettye) Thorman, deceased, for a declaratory judgment to construe said will. The Trustees sought to determine whether they abused their discretion in allocating to income the following receipts: A $2,950.00 face value Colonial Finance Corporation 7% debenture due January 1, 1967, and the proceeds from the sale of 117 shares of stock of One William Street Fund, including the accretion in value since the inception of the Trust.

Motions for summary judgment were filed by the Trustees and by defendant Waggoner Carr, Attorney General of Texas. Judgment was rendered on these motions that the Trustees improperly allocated to income the debenture as well as the net proceeds of the sale of the 117 shares of stock in the sum of $1,522.73. The trial court held, however, that the gain realized from the stock while it was held by the Trustees was properly allocated to income, and that the Trustees could properly distribute same to the lifetime beneficiary. Appellant, Lulu Elizabeth Thorman, complains of the court’s action in holding the action of the Trustees improper, and by cross-point the Attorney General complains of the allocating to income the gain realized from the stock.

Lulu Elizabeth (Bettye) Thorman died on February 2, 1963, and her will was duly admitted to probate. This will devised her residuary estate to the Trustees in trust for the benefit of appellant, decedent’s mother, and decedent’s brother for their lifetime, and directed that upon the death of both the Trustees distribute the remainder to an organization selected by them for cancer research. The Trustees have bound themselves to select a Texas charitable corporation. Decedent’s brother is now deceased and appellant is the only lifetime beneficiary. The will provides for the payment of all net income from the estate to appellant. Among other powers conferred upon Trustees, it grants them discretion to make allocations between income and principal as follows:

“III. (b) The Trustees shall, in their discretion determine what is principal or income of said trust and apportion and allocate receipts and expenses between the principal and income accounts.”

In 1943 the Texas Trust Act was enacted, and Texas thereby adopted, with but few amendments, the Uniform Principal and Income Act. Arts. 7425b — 1 to 7425b — 47, Vernon’s Ann.Civ.St. Under the definitions contained in this Act as well as that of all other jurisdictions, the debenture and the net proceeds from the sale of the shares of stock clearly belonged to the principal of the trust. Arts. 7425b — 4, 7425b — 27, supra. A more difficult question is presented as to the gain from the stock and it will be discussed separately. Subd. 26 of this Act provides substantially that the person establishing the trust may grant the trustee discretion to apportion receipts between principal and income. Appellant urges that the Trustees were acting within their discretion in treating the debenture and net proceeds from the stock sale as income.

We have found no Texas cases construing a discretionary income and principal clause. The rule applied in other jurisdictions is that although courts will not substitute their own judgment for the judgment of trustees given discretionary powers, the exercise of discretion by the trustees is, nevertheless, subject to the limitation that they must not act outside the bounds of reasonable judgment. All authorities recognize that the controlling consideration is the intention of the settlor. In determining this intention, the Courts must consider the whole instrument, aided by the surrounding circumstances, due weight being given to all the language of the instrument. In re Heard’s Estate, 107 Cal.App.2d 225, 236 P.2d 810, 27 A.L.R.2d 1313; Dumaine v. Dumaine, 301 Mass. 214, 16 N.E.2d 625, 118 A.L.R. 834; Sherman v. Sherman, Probate Ct. of Ohio, 202 N.E.2d 443; In re Watland, 211 Minn. 84, 300 N.W. 195; In re Briggs’ Estate, 150 Pa.Super. 66, 27 A.2d 430; In re Heard’s Estate, 107 Cal.App.2d 225, 236 P.2d 810, 27 A.L.R.2d 1313; 40 Yale Law Journal 1467.

By other powers conferred upon the Trustees by the will of settlor, the Trustees are given discretion to sell, trade, or hold all property received by them and to invest and reinvest all available funds in certain high grade stocks and bonds as in their discretion they may determine to be advisable. They are also given discretion to pay trust expenses from either principal or income, or from both. It is significant, under the above authorities, that the settlor did not use words such as “absolute,” “full” or “uncontrollable” in conferring any of these discretionary powers upon Trustees. It is also significant that the Trustees are not given any authority to pay the lifetime beneficiary any sum other than income from the trust. Further, the money is not paid for any specific purpose.

Under this record, the trial court did not err in holding that the Trustees abused their discretion in allocating to income the debenture and net proceeds of the stock sale. In re Watland, supra, is directly in point. There the Supreme Court of Minnesota upheld the trial court’s finding upon similar facts that the corpus of the es-' tate had been wrongfully invaded by the trustees. There is no case in point to the contrary.

There is a conflict in the authorities in other jurisdictions as to whether the gain realized from stock while held by the trustee is principal or income. Under one rule, if it be found that the fund out of which the dividend is paid accrued before the life estate arose, it is held to be principal belonging to the corpus of the estate. But when it is found that such fund was earned after the life estate arose, then it is income belonging to the life tenant. The other rule regards cash dividends, whether large or small, as income, and stock dividends, whenever earned and however declared, as capital. In re Heard’s Estate, supra; Bogert, Trusts & Trustees, 2d Ed., § 823.

In view of the absence of Texas authority resolving this conflict of authorities in other jurisdictions at the time settlor executed her will, the trial court did not err in holding that she intended to give the Trustees discretion to allocate as principal or income the gain realized from the stock while held by the Trustees. Dumaine v. Dumaine, supra; Sherman v. Sherman, supra.

The judgment of the trial court is affirmed.

      . “Art. 7425b — 26. Right of trustee to determine principal and income
      This Act shall govern the ascertainment of income and principal, and the apportionment of receipts and expenses between tenants and remaindermen in all eases where an express trust has been created; except that in the establishment of the principal, provision may be made touching all matters covered by this Act, and the person establishing the principal may himself direct the maimer of ascertainment of income and principal and the apportionment of receipts and expenses or grant discretion to the trustee or other person to do so, and such provision and direction, where not otherwise contrary to law, shall control notwithstanding this Act. Acts 1943, 48th Leg. p. 232, ch. 148 § 26; Acts 1945, 49th Leg. p. 109, ch. 77 § 9.”