author: O’QUINN, Justice.

text:
    The STATE of Texas, Appellant, v. Rex ROPE, Appellee.
    No. 11539.
    Court of Civil Appeals of Texas. Austin.
    Sept. 13, 1967.
    Rehearing Denied Nov. 1, 1967.

      Crawford C. Martin, Atty. Gen., George Cowden, 1st Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., John R. Grace and Kerns B. Taylor, Asst. Attys. Gen., for appellant.
    Lane, Savage, Counts & Winn, William V. Counts, Dallas, for appellee.
   O’QUINN, Justice.

The State of Texas sued the operator of the Bridgeport Ballroom in Dallas County for delinquent admissions taxes, penalty and interest amounting to $3,874.19. The State made Rex Rope of Ellis County, the owner of the land and building where the ballroom was located, a party to the suit under provisions of Article 21.04(2), Chapter 21, Title 122A, Taxation-General, V.A.T.S. (Acts 1959, 56th Leg., 3rd C.S., ch. 1, p. 187), seeking to effect foreclosure of the tax lien on the Rope property.

The statute provides that the State shall have a prior lien for all delinquent taxes and penalties provided for in the chapter on admissions tax "on all property used by the owner or operator of any place of amusement as designated in this Chapter.” (Emphasis added). Provision is also made for suit by the attorney general to collect the taxes and foreclose the lien.

There are several questions in this case, the foremost of which is whether the statute imposes a valid lien on the property of the landlord if the tenant, operating an amusement place on the premises, fails or refuses to pay the admissions tax.

In this case the State being unable to effect service on the operator, dismissed as to him and proceeded against the landlord. The record shows that the operator was running the business on the property under a written lease from the owner.

The case was tried before the court without the aid of a jury and on motions filed by both parties for summary judgment. The trial court overruled the State’s motion for summary judgment and entered judgment for appellee, the owner of the property, with decree that the State take nothing.

The State of Texas has perfected its appeal assigning six points of error. Ap-pellee has replied with eight points contending in the main that the statute does not include property not owned by the operator and that if construed to include property not owned by the operator, the statute is unconstitutional.

We reverse the judgment of the district court and render judgment for the State.

The tax with which we are concerned is imposed by Article 21.02(4) of chapter 21. This Article reads as follows:

“(4) There is hereby levied a tax of one cent (⅛) on each ten cents (1(⅝) or a fractional part thereof paid as admission to dance halls, night clubs, skating rinks, and any and all other like places of amusements, contests, and exhibitions where the admission charged is in excess of fifty-one cents (51$).” Acts 1959, 56th Leg., 3rd C.S., ch. I, p. 187; Art. 21.02(4), Ch. 21, Title 122A, Taxation-General, V.A.T.S.

Article 21.01 requires the owners and operators of places of amusement such as the business involved in this case to file with the state comptroller quarterly reports and pay to the state treasurer the tax in rates and amounts imposed by the statute. Article 21.03 requires the operators of amusements designated by this chapter to keep certain records of business operations and make the records available to the comptroller and the attorney general.

Article 21.04 of this chapter under the heading “Penalties” provides in pertinent part as follows:

“(2) The State of Texas shall have a prior lien for -all delinquent taxes and penalties provided for in this Chapter on all property used by the owner or operator of any place of amusement as designated in this Chapter, and the Attorney General of the State of Texas may file suit for the collection of such tax and penalties in any court of competent jurisdiction in Travis County, Texas, and for the foreclosure of such lien, and may enjoin the operation of any such business until such taxes and penalties are paid.”

Appellee contends that Article 21.04(2) does not place a lien upon any property except property belonging to the owner or operator of the place of amusement, and that the lien is limited to the property the owner or operator actually uses in the business. Appellee argues that the phrase “used by the owner or operator of any place of amusement” as employed in the statute has as its purpose the designation only of such of the taxpayer’s property as may be used in the operation, as distinguished from other of his property not used in the business. On this premise, appellee asserts that the lien in this case would attach only to the “leasehold estate,” since this was the only interest the operator had in the real property belonging to appellee.

We believe that this meaning does not derive from a correct construction of the statute. We think that the interpretation given the statute by appellee is contrary to the intention of the legislature in imposing the tax and in providing for the lien.

It is obvious from reading chapter 21, in the light of knowledge that is common to everyone, that collection of the admissions tax is attended with difficulties not encountered in the collection of most other types of taxes. The stock-in-trade of amusement businesses generally is a facility where customers may assemble, with such additional properties, mostly personal, as will aid in furnishing amusement or entertainment. Nothing tangible is produced or manufactured, little if any merchandise is sold, and inventories of goods are small or do not exist. The principal source of income is from admissions paid by customers for amusement or entertainment on separate occasions and usually on separate days.

Under these conditions the lien on all property used by the owner or operator in conducting the amusement business is an obvious, and perhaps the most practical and effective, means of collecting the tax. It appears reasonable that the legislature, having proposed to place a tax on admissions, would be aware of the collection problems, and would provide such means as the legislature believed would enable the State to collect its taxes. The levy of a tax without adequate means of enforcing collection would be purposeless and unavailing.

A similar statute, with respect to a lien existing upon all property used in the business without regard to actual ownership, is the “Motor Fuel Tax” which has been construed to apply to all property used, whether or not owned by the operator. Article 9.08, Chapter 9, Title 122A, Taxation-General, V.A.T.S.; Acts 1959, 56th Leg., 3rd C.S., ch. 1, p. 187.

In Johnston & Burnham, Inc. v. State, Tex.Civ.App., Austin, 95 S.W.2d 144 (no writ), this Court in 1936 construed the Motor Fuel Tax Act (now Article 9.08, supra) and held the lien valid as to all property used in the business, even though not owned by the operator. In imposing the lien, the motor fuel statute fixed a “preferred lien * * * upon all the property of any distributor, devoted to or used in his business as a distributor.” The article further provided that “any and all other property of every kind and character whatsoever and wherever situated devoted to such use, and each tract of land on which such refinery, blending plant, tanks or other property is located, or which is used in carrying on such business” was made subject to the state’s lien.

In the Johnston & Burnham case this Court in speaking of legislative intent with respect to the lien stated:

“These provisions of the act are broad and comprehensive, and were clearly intended to apply to each or ‘any distributor’ engaged in the taxed occupation or business, and indicate the legislative intent to fix the lien on any property devoted to or used in the occupation or business without regard to actual ownership.” (Emphasis added). 95 S.W.2d 144, 145, col. 2, 146, col. 1.

This Court observed in the Johnston & Burnham case that “Any other construction of the act would open the door to fraud, because by the mere expediency of leasing such property to irresponsible lessees the tax could be defeated.” 95 S.W.2d 144, 146, col. 1. The problem appears to have involved a fraudulent practice of operating motor fuel businesses through irresponsible lessees.

We find no evidence of fraud as such in this cause. The State was unable to effect service on the lessee, who also was the operator of the business and the person responsible for the tax. A similar situation exists in two of three other cases decided this same date. In three of the four cases, this case and two of the other three we have had under consideration, the operator appears unwilling or unable to accept responsibility for the tax and apparently is without means or property by which the State can realize collection of the tax from the operator. We think the facts in these cases underline the wisdom, as well as the intent, of the legislature in providing the lien as an effective means of preventing loss of the tax due the State,

In State v. Wynne, 134 Tex. 455, 133 S.W.2d 951 (dsmd. 310 U.S. 610, 60 S.Ct. 980, 84 L.Ed. 1388, reh. den. 310 U.S. 659, 60 S.Ct. 1094, 84 L.Ed. 1422), the Supreme Court of Texas approved the underlying principle of Johnston & Burnham v. State, supra, and observed that:

“Many courts hold that property used in a business may be subjected to a lien for an excise or occupation tax on the business carried on, although it is not owned by the person carrying on the business." 133 S.W.2d 951, 957, col. 2.

The Supreme Court cited authorities relied upon in the Johnston & Burnham case and quoted from the rule stated in 26 Ruling Case Law, sec. 350, p. 392, to the effect that:

“Property used in a business may be constitutionally subjected to a lien for an excise on the business although it is not owned by the person carrying on the business. The owner is not only chargeable with a knowledge of the law in respect thereto, but he is presumed to know the business there carried on, and to have let the property with knowledge that it might become encumbered by a tax imposed upon such business.”

The Supreme Court cited Hodge v. Muscatine County, 196 U.S. 276, 25 S.Ct. 237, 49 L.Ed. 477, and other authorities, including “103 A.L.R. 18, for an annotation of the many cases bearing upon this question.”

Although we do not consider it a controlling factor, nor one determinative of the results in this case, it is observed that when the appellee in this case bought the real property upon which the ballroom was operated, he bought knowing that it was already being used for that purpose. Later, when it became necessary to replace the building, appellee built a new structure on the land and leased to the operator who incurred the tax with knowledge that the lessee would operate a club or ballroom on the premises.

The observation of the Supreme Court in the Wynne case, to the effect that the “Legislature has been compelled to resort” to other than the ad valorem tax as “methods of raising revenue to meet the demands of our expanding State government,” is certainly not less valid today than it was in 1939. As said by the Supreme Court, “The burden of levying taxes rests on the Legislature, and that body has plenary power of prescribing the mode of taxation to raise revenue.” 133 S.W.2d 951, 958, col. 2. “It is the duty of the courts to uphold such legislation,” the Supreme Court said, “unless it clearly appears to violate some provision of our Constitution.” 133 S.W.2d 951, 959, col. 1.

In Hodge v. Muscatine County, supra, the Supreme Court of the United States upheld the constitutionality of a lien fixed by an Iowa statute upon cigarette dealers. The lien was fixed “upon all property, both personal and real, used in connection with the business.” The Supreme Court said that “It was within the power of the legislature to make the tax a lien upon the property whereon the business was carried.”

Appellee argues that use of the simple phrase “on all property used by the owner or operator of any place of amusement” must be construed to limit the lien to such property the owner or operator of the business employs in the place of amusement, and limited to the property belonging to the owner or operator of the amusement. It seems clear that the lien was meant to attach to property “used” by the owner or operator of the place of amusement, but it was meant to include “all property.” We cannot read into the statute, nor draw from its wording, any exception. By use of the words “all property,” we believe the legislature meant to include both real and personal property without regard to ownership.

We conclude that this construction is permissible under the rule that a statute should be so construed as to permit in the fullest manner the accomplishment of the apparent policy and object of the legislature in enacting it. Countz v. Mitchell, 120 Tex. 324, 38 S.W.2d 770 (Tex.Comm.App., 1931, opinion adopted by Sup.Ct.).

In State v. Wynne, supra, the Supreme Court confirmed the rule of Johnston & Burnham v. State, supra, that the tax lien is valid upon all property used in the business regardless of ownership. In the Wynne case it was held that the State may also create a lien prior to all other liens, regardless of when the other liens were created. In accord with this holding are Allied Finance Company v. State, Tex.Civ.App., Austin, 387 S.W.2d 435 (writ ref., n. r. e.) ; Gummelt v. Southwestern Indemnity Co., Tex.Civ.App., Waco, 363 S.W.2d 379 (writ ref., n. r. e.).

The lien provision in the admissions tax statute is not novel. As we have already indicated, a similar lien remedy was employed in the Texas motor fuel tax act. In Iowa a statute levying an occupation tax on liquor dealers was upheld in which a lien was fixed on property used in connection with sale of liquors regardless of ownership. Newton v. McKay, 130 Iowa 596, 102 N.W. 827 (1906). An Oregon statute levying a poundage fee on operation of a fish cannery was upheld in 1939 in which a lien was fixed on machinery and equipment used' in the operation, even though the owner of the property had no interest in the cannery. State v. Swensk, 161 Or. 281, 89 P.2d 587. The Supreme Court of Ohio affirmed the same rule of law as early as 1887 in Anderson v. Brewster, 44 Ohio St. 576, 9 N.E. 683. In that case the Ohio court observed that the lien need not work to the detriment of the owner of the real property upon which the lien was fixed. “If he leases property adapted to the business contemplated in the statute,” the court said, "he may stipulate with his lessee for an idemnity against any loss accruing to him from the statutory lien. He is presumed to take cognizance of the general laws of the state that are in force.” 9 N.E. 683, 687.

The most recent assembly of authorities on validity of the statutory tax lien on property not belonging to the taxpayer but used in his business is found in 84 A.L.R. 2d 1090. The case of Territory of Alaska v. Craig Enterprises, Inc., Alaska, 355 P.2d 397 (1960) is reported with the annotation at 84 A.L.R.2d 1082. This case upholds validity of the lien, although the statute would not be retroactive in its application.

The American Law Reports comments that “The comparatively few cases dealing with the question are generally to the effect that the taxing authority may provide that a license, occupation, or privilege tax may be made a lien upon property used in the exercise of the license, occupation, or privilege but not owned by the taxpayer, although there is some authority to the contrary * * * ” 84 A.L.R.2d 1090, 1091, col. 1. The case cited contra is State v. Lawton, 25 Wash.2d 750, 172 P.2d 465 (1946), involving a lien under the Unemployment Compensation Act.

The further comment is that “ * * * it has been held that the imposition or enforcement of such lien does not constitute a denial of due process, or the taking of the property of one person for the payment of an obligation of another.” 84 A.L.R.2d 1090, 1091, col. 2.

Application of Article 21.04(2) to appellee and his property does not violate the due process provisions of either the State Constitution or the Constitution of the United States. The restraints imposed by the Texas Constitution (Article I, section 19), Vernon’s Ann.St. and by the Fifth and Fourteenth Amendments of the United States Constitution are substantially the same. Mellinger et ux. v. City of Houston, 68 Tex. 37, 3 S.W. 249.

The general rule is stated in American Jurisprudence as follows:

“It is within the constitutional power of the legislature to make a license, occupation, or privilege tax a lien upon real property upon which a business is conducted, property kept, et cetera, although owned by a person other than the person against whom the tax is assessed.” 51 Am.Jur., Taxation, sec. 1012, p. 884.

To this statement is added the specific application of the doctrine to the owner of property charged with notice of the business being carried on upon his property:

“The owner is not only chargeable with a knowledge of the law with respect thereto, but he is presumed to know the business there carried on, and to have let the property with knowledge that it might become encumbered by a tax imposed upon such business.” 51 Am.Jur., Taxation, sec. 1012, p. 884.

In accord with these statements are Hodge v. Muscatine County, supra; Johnston & Burnham, Inc. v. State, supra; Territory v. Craig Enterprises, Inc., supra; Mirik v. Gims, 79 Ohio St. 174, 86 N.E. 880, 20 L.R.A.,N.S., 42; Brown Shoe Co. v. Hunt, 103 Iowa 586, 72 N.W. 765, 39 L.R.A. 291.

The tax under Chapter 21 is denominated an admissions tax and the rate is in proportion to the gross receipts from the admission charges. The purpose of the tax is to raise revenue and not to restrict the pursuit of any occupation. Payment of the tax is not a condition precedent to the right to transact business, and liability for the tax is incurred only after operations have begun. It is not an ad valorem tax on the business, and the rate of the tax bears no relation to the nature of the enterprise. The admissions tax under decision of the Supreme Court is an occupation tax.

In Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937), the Supreme Court observed :

“The principle of distinction generally recognized is that when, from a consideration of the statute as a whole, the primary purpose of the fees provided therein is the raising of revenue, then such fees are in fact occupation taxes, and this regardless of the name by which they are designated.” 110 S.W.2d 896, 899, col. 2.

More recently this rule was applied by the Supreme Court in Rouw Co. v. Texas Citrus Commission, 151 Tex. 182, 247 S.W.2d 231, 234, col. 1, citing Hurt v. Cooper, supra, and Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481 (1907).

We find no discrimination or inequality of the admissions tax rendering its application to the facts of this case in violation of Article VIII, section 1, of the Texas Constitution. State v. Wynne, supra, 133 S.W.2d 951, 957, col. 1.

Validity of the lien provision of Article 21.04(2) has been put in issue by appellee under the claim that the caption of the legislative act is defective for failure to provide notice required by Article III, section 35, of the Constitution of Texas. This provision of the Constitution restricts legislative bills, other than appropriation measures, to containing “one subject, which shall be expressed in its title.”

Appellee contends that nothing is found in the caption or title of the bill enacted into the admissions tax law concerning the tax lien.

The State brought its suit under Title 122A as enacted by passage of House Bill No. 11 in 1959. (Acts 1959, 56th Leg., 3rd C.S. ch. 1, p. 187). Under terms of the act itself, this legislation, which included Article 21.04, must be considered a revision by amendment of the former law (Acts 1953, 53rd Leg., ch. 49, p. 62), even though in form it enacts a new law and repeals the law of 1953. (Section 3 of House Bill No. 11).

The caption of H.B.No.11, as enacted in 1959, reads in part as follows:

“An Act revising and rearranging certain Statutes of Title 122 ‘Taxation’ of the Revised Civil Statutes of Texas and certain other laws of this State relating to taxation into a new Title to be known as Title 122A ‘Taxation-General’ * * * revising Statutes levying the * * * Admissions Tax, miscellaneous occupation taxes, and miscellaneous excise taxes * * * providing procedures for the administration and enforcement of such taxes and penalties for violations thereof * * * providing a savings clause; providing a severability clause * * * providing for an effective date; and declaring an emergency.” (Emphasis supplied).

Appellee’s position is that the language, “providing for procedures for the administration and enforcement of such taxes and penalties for violations,” logically relates only to “new taxes” enumerated immediately preceding this clause in the caption. The basic and misleading aspect of the caption, appellee asserts, is that the caption does not specify what tax is being secured, by what kind of lien, and on what property. That the caption does not call attention to a lien on property not owned by the taxpayer is part of appellee’s point of error.

Provisions similar to section 35 of Article III were contained in the earlier Constitutions of Texas. The Supreme Court very early adopted a rule of liberal construction. Breen v. Texas and Pacific Railway Co., 44 Tex. 302, “The section of the Constitution,” the Court asserted, “ * * * ' as has been uniformly held by this court, as well as all others where a like constitutional provision exists, is not to be given a strict or literal construction. To do so would defeat rather than accomplish the purpose for which it was incorporated into the Constitution.” 44 Tex. 302, 305.

In the Breen case the statute under attack was entitled, “An Act to fix the venue in certain cases.” In addition to fixing venue, the act directed how and upon whom process might be served in certain cases. The attack centered upon that part of the statute regulating venue. The Supreme Court held the statute valid. With reference to the provision of the Constitution limiting a bill to one subject and requiring that the subject of the bill “be expressed in its title,” the Supreme Court said:

“But while the purposes for which this section was incorporated into the organic law have been kept steadily in view it has uniformly received a broad and liberal construction. And it has been often held to be a sufficient compliance with its provisions, if the law has one general object which is fairly indicated by its title, though it may embrace different subjects which are connected with or appropriate for the accomplishment of this general object.” 44 Tex. 302, 306.

The rule that a statute will not be strictly construed under this requirement of the Constitution has been extended expressly to include revenue acts passed by the legislature. City of Beaumont v. Gulf States Utilities Co., Tex.Civ.App., Beaumont, 163 S.W.2d 426 (writ ref., w. o. m.).

The act of 1959, “revising and rearranging certain Statutes of Title 122” and certain other laws relating to taxation “into a new Title to be known as Title 122A.” is a law containing taxation as its subject. No other subject is incorporated, and the general object is fairly indicated in an extended and detailed caption enumerating the taxes imposed. All other subjects embraced in the law are connected with or are appropriate for the accomplishment of this general object. The fixing of liens is appropriately a part of the “procedures for the administration and enforcement of such taxes and penalties for violations.”

We can discover nothing misleading about the caption of the 1959 tax act. We believe it clearly expresses the subject embraced within the law itself. All of the details and provisions of the act need not be expressed in the caption. Murray v. Reagan, 129 Tex. 206, 102 S.W.2d 202 (Tex.Comm.App., opinion adopted by Sup.Ct., 1937). In fact, as was pointed out by the Supreme Court in the Breen case, supra, “If every detail necessary in accomplishing the general object to be effected by a law must be embraced in its title, one of the objects in view in this constitutional provision would be defeated, and all the advantages from having a title to a bill would be lost.” 44 Tex. 302, 306.

Once the statute levied taxes, and this subject had been clearly announced in the caption, all other provisions of the law were germane to matters of procedure, administration, and enforcement requisite to the accomplishment of the legislative purposes of the act itself. The description of these aspects of the tax law were adequate in the form stated in the caption.

The rule that impels this conclusion was stated by the Supreme Court in Johnson v. Martin, 75 Tex. 33, 12 S.W. 321, 324, as follows:

“This provision [of the Constitution] has been frequently construed to require only the general or ultimate object to be stated in the title, and not the details by which the object is to be attained. Any provision calculated to carry the declared object into effect is unobjectionable, although not specially indicated in the title.”

The provision of Article 21.04(2) fixing a lien upon all the property used by the operator or owner of a place of amusement in connection with the admissions tax levied under chapter 21 of Title 122A, even if not specially indicated in the title of the 1959 act, is not objectionable as contrary to the requirements of Article III, section 35, of the Constitution. King v. Carlton Independent School District, 156 Tex. 365, 295 S.W.2d 408 (1956). When the caption states the general purpose of the act, this gives notice that all related and incidental matters may be contained in the body of the law itself. State ex rel. Garza v. Rodriguez, Tex.Civ.App., San Antonio, 213 S.W.2d 877, 879, col. 1 (no writ).

On appeal appellee raises the contention that Article 1.07, Title 122A, Taxation-General, V.A.T.S., as amended in 1961, repealed Article 21.04(2) so as to confine the State’s tax lien for admissions taxes to the taxpayer’s property. (Acts 1961, 57th Leg., ch. 104, p. 201).

The record does not show that appellee pleaded this issue or contention in the trial court. If properly pleaded and placed in controversy, the issue, involving as it does statutory history, would have justified or entailed introduction of evidence on the question. Appellee may not be heard to raise the issue for the first time on appeal.

In another cause, decided by this Court this date, the issue here raised by appellee was properly brought forward and we decided the issue contrary to the position taken by appellee in this case. See Miller et al. v. Calvert, Tex.Civ.App., 418 S.W.2d 869.

As stated above, both the State and appellee moved for summary judgment in the trial court. There are no facts in dispute. Ordinarily when a summary judgment is reversed on appeal, the cause will be remanded for trial on the merits. But when both parties file motions for summary judgment and one of the motions is granted by the trial court, the court of civil appeals should determine all questions presented. If error is found requiring reversal, the appellate court should render the judgment which the trial court should have rendered. Lilac Variety, Inc. v. Dallas Texas Company, Tex.Civ.App., Dallas, 383 S.W.2d 193 (writ ref., n. r. e.); Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

The State pleaded its cause of action against appellee, Rex Rope, for foreclosure of the tax lien against property owned by appellee and used as a place of amusement operated on the property by the named operator and taxpayer as the Bridgeport Ballroom or Club. The State attached as an exhibit to the petition a description of appellee’s property. The amount of taxes due and unpaid was shown to be $3,874.19 by certified claim or audit of the comptroller, under seal, and duly sworn to and authenticated. Incorrectness of the claim was not shown. The certified claim was ádmissible in evidence and became prima facie evidence of the contents of the claim. (Article 1.08, Title 122A, Taxation-General, V.A.T.S.).

Although appellee denied by unsworn pleadings that the taxes constituted a claim against his property, no controverting affidavit or answer to the State’s motion for summary judgment refuted the certified claim. Appellee had the burden to show the tax levy was incorrect, excessive, illegal or arbitrary if the statutory presumption was to be overcome. The further burden was upon appellee to show that the levy worked to his substantial injury. State v. Federal Land Bank, 160 Tex. 282, 329 S.W.2d 847 (1959); City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954).

Appellee did not controvert the State’s motion for summary judgment in any manner. In effect appellee admitted the facts alleged in the State’s sworn affidavits supporting motion for summary judgment. Farmer’s State Bank v. First State Bank of Liberty, Tex.Civ.App., Waco, 317 S.W.2d 768 (no writ). Pleadings alone can not show that there is a genuine issue of fact so as to prevent a summary judgment. Schepps v. American District Telegraph Co., Tex.Civ.App., Dallas, 286 S.W.2d 684 (no writ).

Appellee’s motion for summary judgment incorporated exhibits showing his ownership of the property and the lease to the operator or owner of the amusement business. Appellee showed by affidavit that his property was operated as a night club and that at all pertinent times he knew his property was used as a place of amusement. Appellee’s constructive knowledge of the tax statutes pertaining to admissions taxes and the liens fixed upon all property used in the business will be conclusively presumed.

It appears that the only questions before the trial court were questions of law. There was no material ultimate fact question in controversy or dispute upon the showing made by the parties before the court.

We conclude that the trial court erred in granting the motion of appellee for summary judgment and in denying the State’s motion for summary judgment.

The judgment of the district court is reversed and judgment is here rendered for the State.

Reversed and rendered.


source: Caselaw Access Project

author: BELL, Chief Justice. BELL, Chief Justice.

license: Public Domain

text:
    CITY OF HOUSTON et al., Appellants, v. D. PARKINSON et al., Appellees.
    No. 14861.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    April 27, 1967.
    Rehearing Denied Oct. 12, 1967.
    Second Motion for Rehearing Denied Nov. 2, 1967.

      Wm. A. Olson, City Atty., and Homer T. Bouldin, Trial Supervisor, Houston.
    Edgar W. Monteith, Charles E. Williams and Peter S. Solito, Houston, and William P. Dobbins, San Antonio, amicus curiae in support of motion for rehearing.
    Danny R. Edwards and Joel B. McCarty, Jr., Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment enjoining the levying of any assessment against the property owners on Alba, Fisher, Donovan and Brinkman Streets in Houston for the paving of said streets, and cancelling any assessments that had been made, and holding void the ordinance making the assessments. The judgment was based on jury findings that the only notice given of the hearing on the proposed assessments was by publication in the Houston Press; that all those owning property on said streets were not given the right to be heard at the hearing date of February 20, 1963 on' any matter pertaining to the proposed improvements and assessments; that the curbs and gutters were not constructed in accordance with the specifications set forth in the pertinent ordinance; and, that the action of the City Council in passing the ordinance levying the assessments was arbitrary and capricious.

The action was brought as a class action under Rule 42(a) by five named plaintiffs, the named parties suing individually and as representatives of the other property owners on their respective streets. The named plaintiffs were: L. D. Parkinson of Fisher Street, Mr. and Mrs. A. H. Williams of Donovan Street; Richard Bruhn of Brink-man Street; and H. R. Henderson of Alba Street. Judgment was in their favor individually and as representatives of all the property owners of their particular class similarly situated.

The defendants were the City of Houston and its then Mayor.

Appellant urges the action could not have been maintained as a class action. It was purportedly brought under Rule 42(a) but under which subdivision is not stated. We are of the view it could be maintained under Subdivision (3) as a spurious class action. The character of the right sought to be enforced for the class was several; there was a common question of law and fact affecting the several rights and common relief was sought. 1 McDonald, Texas Civil Practice, Sec. 3.34.1, pages 347-351. We also find adequate representation for the respective classes.

On December 26, 1962, the City Council passed an ordinance, No. 62-1859, determining the necessity for and ordering the pavement of certain streets, including the above named ones. The ordinance was ordered published, as required by Article 1105b, Vernon’s Ann.Civ.St.Tex. The ordinance gave notice that a hearing would be held on February 20, 1963, at 11:00 o’clock a. m. in the Council Chambers, following which hearing assessments would be levied against the abutting property owners in accordance with the benefits in the enhanced value of each tract or property. This ordinance was properly published by publication in the Houston Press. No attack is made on the form of publication. The complaint is that this was the only notice furnished the owners of the property and such is not constitutionally sufficient to authorize the Council to levy an assessment.

We should notice that the record shows there were listed in the ordinance three groups of streets. Only Groups I and II are here involved.

Group I provided for construction of curbs and gutters and 7-inch cement stabilized shell base and hotmix asphaltic concrete surfacing. Under Group I are listed Fisher, Alba and Brinkman Streets. Alba is shown to be 37 feet in width. Brinkman is shown to be 24 feet in width. Fisher from the EPL of Golf Drive to 365 feet east of the EPL of Golf is shown to be 37 feet in width, and from that termination point to a point 442 feet east of the EPL of Brinkman, Fisher is shown to be 24 feet in width.

Group II includes a designated portion of Donovan Street and in addition to providing for the same improvements as called for in Group I calls for construction of sidewalks.

Further, there appears in the published ordinance the estimate of the rate of assessment to be made. For Group I the estimate for surfacing a width of 24 feet was at the rate of $5.58 per front foot, and for a 37 foot width it was $7.39. This, as we understand it, includes the estimated cost of the paving and curb and gutter. The estimate for Donovan Street that constituted Group II was $9.59 per front foot. This included sidewalks. Donovan Street was shown to be 37 feet in width.

On April 17, 1963, Council passed Ordinance No. 63-529, which formally closed the hearing, determined the benefits and levied the assessments.

In paragraph (f) it was recited that at said benefit hearing “all parties desiring to be heard * * * were heard and all matters as to the accuracy, sufficiency, regularity and validity of any and all of said proceedings were heard and considered; and the said City Council heard evidence as to special benefits to each parcel of abutting property and the respective owners thereof in enhanced value of said property by means of such improvements of the respective portion of the particular street or street on which the same abuts, and did give a full and fair hearing to all parties appearing and desiring to be heard; and did at such hearing determine the benefits as aforesaid.”

Paragraph (g) of the ordinance recited in substance that assessment on a uniform amount per front foot would not be equitable because of difference in the width of the streets, and because there are curbs and gutters to be constructed at some places and not at others. Further it is recited that adjustments in the assessments had been made because of the differences in the improvement is and that no assessment was more than the amount of the benefits in the enhanced value resulting to each tract of land and the owner thereof from the improvements.

Section 2 of the ordinance again recites the hearing of evidence, testimony and protest for and against the improvements and when there were no further protests offered or desired to be offered, the hearing was closed. The objections and protests were overruled and denied. Regularity of all proceedings is recited and direction is made for the issuance of certificates reciting such regularity and a lien securing the amount assessed is fixed.

The real complaints of appellees as evidenced by their petition and evidence offered on trial of the case are that the only notice given was by publication in the Houston Press; that all property owners were not given an opportunity to be heard at the hearing pertaining to the proposed improvements and assessments; that the curbs and gutters were not constructed in accordance with plans and specifications and that the action of the City Council in passing the ordinance levying the assessment was arbitrary and capricious.

The position of appellant is that the trial court was in error in submitting any of the four issues to the jury, the contention being that trial should not be de novo but should be under the substantial evidence rule. Also, it is contended that whether the action of the City Council was arbitrary, it allegedly, not being supported by substantial evidence, is a question of law to be decided by the court.

The first special issue, inquiring if the newspaper advertisement was the only notice of hearing given by the City, should not have been submitted because the evidence is undisputed that this was the only notice given. Only ultimate issues, the existence of which are in dispute under the evidence, are to be submitted. This is no reversible error because we find it established as a matter of law.

Appellees seem to take the position that constructive notice alone does not satisfy due process of law and therefore all proceedings are without effect. They cite cases that are discussed by the Texas Supreme Court in City of Houston v. Fore, Tex., 412 S.W.2d 35. We will not discuss or analyze them because that Court has done so. We understand the rule to be that constructive notice alone does not satisfy due process where it is practicable to give some form of personal notice. The witnesses testifying had lived at their respective addresses many years and as to them it may be assumed it was practicable to get personal notice to them. There is no evidence, however, along this line as to the other owners. However, we also understand the rule to be that though only-constructive notice was given in conformity to the statute, due process is satisfied if the parties complaining had actual notice. City of Houston v. Fore, supra; City of Corsicana v. Mills, 235 S.W. 220 (Tex.Civ.App.), ref.; McAlexander v. Smith Bros., 62 S.W.2d 530 (Tex.Civ.App.), writ dism.; Beatty v. Panhandle Construction Co., 275 S.W. 716 (Tex.Civ.App.), writ ref.

Under the record here it appears that all named plaintiffs, except Mr. Bruhn, had actual notice and appeared at the hearing on February 20. In addition to the named plaintiffs, except Mr. Bruhn, Audrey Turner, Mrs. Burnet Moers, H. O. Capps, Mrs. L. P. Ward, C. W. Spaulding, Virgil Parsons, all of whom lived on Fisher Street, testified in the trial court that they had actual notice of the hearing and attended it. Mrs. Garcia and Robert J. Page, who lived on Alba Street, had actual notice. Mr. Page attended the hearing, but Mrs. Garcia did not due to the illness of her husband. Mrs. A. H. Williams and W. L. Foreman, Sr., who lived on Donovan Street, had actual notice. In' each instance we have stated the parties had actual notice we mean they acquired it by means other than personal notice furnished by the City. Some learned of it from neighbors; some by seeing a survey being made; and one learned of it through his wife who read the published notice.

The evidence at the trial showed that a petition protesting the proposed improvements was signed by most of the property owners. All but one of the owners on Donovan Street signed such petition that was presented to City Council at the hearing. Those signing the petition obviously had actual notice. Too, another such petition that was presented to the Council was signed by 78% of the owners on Fisher, Brinkman and Alba Streets. Obviously these signers had actual notice. We are not informed as to which of the owners did not sign and do not know whether they had actual notice or not. If they did not, they would not have been accorded due process of law. However, those who signed the petition and those who testified at the trial that they were at the hearing were accorded due process insofar as notice was concerned. Those who had no actual notice may of course defend on such ground in any suit brought to enforce any assessments.

Appellant also contends the court erred in submitting Special Issue No. 2 inquiring as to whether all owning abutting property were given the right at the hearing to be heard on any matter pertaining to the proposed improvements and assessments. Its position is that in this appeal from the action of the City Council trial is not de novo but is under the substantial evidence rule and whether there was substantial evidence supporting Council’s action is a law question. It asserts there was no evidence that a hearing of meaning was not given and the ordinance recited the giving of a hearing to all interested parties as required by law.

Appellees’ position is that a hearing given to all abutting property owners is a prerequisite to the validity of any assessment and a hearing was not given to all such owners.

Unquestionably parties desiring to be heard, on making known their desire, are legally entitled to be heard. They are entitled to be heard, as provided by Article 1105b, Section 9, on the question of the benefits conferred, the amount.of the proposed assessment and the accuracy, regularity, sufficiency and validity of the proceedings in connection with the proposed improvements. The same section provides for appeal to contest the amount of the assessment or any inaccuracy, irregularity, invalidity or insufficiency of the proceedings with reference to the improvements or “on account of any matter or thing not within the discretion of the governing body”.

Section 3 of said Article provides that the governing body of a city shall have the power to determine the necessity for the improvements. This determination is a matter within the discretion of the governing body. While Section 9 seems not to allow judicial review of the exercise of a matter within Council’s discretion, an expression in the case of City of Houston v. Blackbird, Tex.Civ.App., 394 S.W.2d 159, indicates such might be subject to judicial review. We are of the view that it would, but such review in this respect would be limited to a determination that Council’s action was wholly arbitrary and capricious or fraudulent because the improvements were clearly private in nature and not public or could not conceivably confer any benefit on the abutting property.

The city ordinances determining the necessity of making the improvements, giving a statement of estimated cost, providing for published notice, and giving the proposed assessments based on benefits determined by Council, all appeared in evidence at trial, or at least their material contents were read in evidence. Too, the ordinance closing the hearing, finding benefits and levying the assessments that were recited not to exceed the enhanced value of the property caused by the benefits conferred, was in evidence.

We are of the view that any attack on the ordinances made in the trial court would be under the substantial evidence rule and not de novo. City of Houston v. Blackbird, supra. Whether all property owners desiring to be heard were given an opportunity to present their views is an evidentiary matter for the judge to consider in determining whether the action of Council was arbitrary and capricious. There was, therefore, error in submitting this issue to the jury.

There was error in submitting to the jury whether the action in passing the ordinance levying the assessment was arbitrary and capricious. This is a law question to be decided by the court.

It was error for the trial court, on a basis of the evidence in this case, to render judgment voiding all assessments that had been made and enjoining the levying of any that had not been made because under the evidence before us it cannot be said the action of Council was arbitrary and capricious, and there is no contention that it was fraudulent.

We have read the entire statement of facts. We will not detail all of the testi mony of each of the eleven witnesses who testified at the trial concerning what occurred at the hearing before City Council on February 20, 1963. Apart from the contention of appellees that we have notice above concerning the insufficiency of notice, the real complaint of appellees seems to have been that they were not allowed a hearing contemplated by law, that is all owners were not allowed to be heard. Some who were heard, they contend, were given too brief a hearing, so their views on all material matters were not heard.

The testimony given on trial by the witnesses concerning what occurred at the hearing on February 20 varies. It was variously estimated that there were from 25 to 60 property owners present at the hearing. A Rst of property owners is attached to appellees’ petition and 80 names appear on the list. However, it seems clear to us that all of those present did not intend to personally make their presentation of protest. To the contrary, with the exception of the persons we shall subsequently mention, they had signed a petition of protest which they intended to be presented to Council through their chosen representatives. The evidence shows that such petitions were presented to and received by Council. While the petitions are not in evidence, all witnesses testifying at the trial to the contents stated they were a protest against making any of the improvements because they were not needed. These witnesses stated the streets were already blacktopped. Too, they stated they had no drainage problems because there were good drainage ditches. The witnesses also testified the petitions pretty well expressed their views on the matter of the proposed improvements. It is very significant, we think, that there is no word in the record stating specifically that the petitions stated no benefits would be conferred by the improvements nor that the proposed assessments would exceed any enhanced value resulting to the abutting property. Neither is there any testimony on trial specifically asserting the want of benefits nor attacking the amount of the assessments. There was in the petitions, and there was on trial, the general conclusion that the property owners signing the petition and testifying on trial were opposed to the improvements because the streets were blacktopped; there was no drainage problem; there were curbs and gutters at some places, and they didn’t need the improvements.

Council having received the petitions, it must be presumed, particularly in view of the recitals in the ordinances, that it gave consideration to the owners’ views but disagreed with them.

The evidence on trial with regard to the time the meeting began, how long it lasted, and whether when there was a recess at noon it was announced it would resume in the afternoon, is very indefinite. It does seem that the meeting was held on a day during the Fat Stock Show and about noon Council recessed to attend some function in connection with the Show. Uncertainty is probably due to the fact that the witnesses arrived at the meeting at different times, sat at different positions in the Council chamber, and could not all hear well. Further, some were not listening too closely as they saw their representatives presenting their petitions and speaking to them before Council.

Mrs. Moérs testified the meeting began at 11:30 and it lasted about eight minutes. She did not ask to be heard. She would have spoken if she had been asked. She heard no one who asked to be heard denied the right. Mr. David Capps was one representative who spoke for them. Council announced the hearing would continue at 2. She went home.

Mr. H. O. Capps got there about 11:45 and people were speaking against improvements. Adjournment was about 12 noon. He did not make known his desire to speak. He made no attempt to speak. 35 or 40 people were present. Council made an announcement about a later meeting. He went home. He heard two persons speak. He wanted only to appear through petition.

Mrs. A. H. Williams arrived about 9. The meeting opened about 11:30. She made known her desire to speak and spoke about five minutes. The meeting lasted 15 or 20 minutes. Council announced a later meeting, but didn’t indicate it would be that afternoon. She knew of no one who raised a hand expressing a desire to speak who was not allowed to do so.

Audrey Turner said the hearing started at 11 o’clock and lasted until noon. Council did not ask her if she wanted to talk. She did not speak. The petition signed by her and presented by Mr. Capps presented pretty well her views.

W. L. Foreman presented the petition of the people on Donovan Street. He spoke about three minutes. The .meeting lasted until 12:10. Council said they would reconvene in the afternoon. He did not stay for it.

C. W. Spaulding, when the meeting recessed, made known his desire to speak. He went back to the afternoon session. Some other parties, when the morning session adjourned, said they wanted to be heard. He didn’t remember who they were. Council announced there would be an afternoon session. He was there but didn’t ask to be heard. The petition pretty well set out his views.

Mr. Page said Council met a couple of hours and said the hearing would be postponed to later date. Inconsistently, he said he returned for the afternoon meeting.

Mr. Parsons raised his hand, indicating that he wanted to speak. He heard others speak. He wanted to speak but was not asked to. He signed the petition. He helped get it up. He never asked anyone to let him speak. The people were not told when the morning session adjourned that the meeting would reconvene.

L. D. Parkinson presented one of the petitions and spoke about three minutes. We are just unable to understand from Mr. Parkinson’s testimony whether there was an afternoon session or whether his other appearances were all on other days.

Mrs. Ward said Council, at the conclusion of the morning hearing, announced it would reconvene but she was in the rear of the room and didn’t hear the time stated. Their representatives spoke.

We think the effect of all this is that those present were not denied the requisite hearing.

There was evidence from two or three witnesses that much of the curb did not conform to specifications. We need only note that if such is correct, it would not void the whole assessment. No evidence complains of the street, sidewalk or gutter improvement as not being up to specifications.

There is also testimony of a general nature that there is now more traffic on the streets and some “hotrodders” use it. This, as it appears in the record, is not sufficient to bring it within City of Houston v. Blackbird, supra. It is one item of evidence that could be considered on the question of benefits and enhanced value.

Too, there is some evidence of variance in the per front foot assessments. However, about the only complaint that this is not proper is the testimony that the houses were all about the same. Council, in its ordinances, recognized a uniform assessment on a front foot basis would not be equitable. There are many factors to be considered. Some of them are: shape and depth of lot, width of pavement, whether there were sidewalks and curb and gutters. The evidence in the record here is not of significance. See Foxworth-Galbraith Lumber Co., v. Realty Trust, et ah, 110 S.W.2d 1164 (Tex.Civ.App.), dism.

Reversed and remanded.

COLEMAN, J., not sitting.

On Motions for Rehearing

BELL, Chief Justice.

We adhere to our original judgment reversing and remanding this case for new trial. We, however, grant appellants’ motion for rehearing to the extent that we held the action to be maintainable as a spurious class action under Rule 42(a)(3), Texas Rules of Civil Procedure.

We are of the view that the special statute, Article 1105b, Section 9, giving the right of appeal to a person who desires to complain of the action by City Council is controlling. It provides in substance that anyone desiring to contest the proceedings and the resulting assessment shall have the right to appeal by instituting a suit in any court having jurisdiction, such suit to be instituted within fifteen days from the time an assessment is levied. This is not a mere statute of limitation, but is a statute conferring a right to appeal. Any individual desiring to take advantage of the statutory method of appeal must comply with its terms. Each person complaining must individually make himself a party to a suit instituted by himself and other individuals as plaintiffs, or he may file a separate suit or intervene so as to in effect become a party-plaintiff so long as his action is taken within the period prescribed. Whichever method he chooses he is individually exercising the right to appeal given by the statute. When purporting to appeal under the statute, he must make himself a party to the suit in his individual capacity.

The result in this case is that the named parties-plaintiff, that is, L. D. Parkinson, Mr. and Mrs. A. H. Williams, Richard Bruhn and H. R. Henderson, individually, were the only parties-plaintiff to the appeal from Council action.

We express no opinion as to the rights of other parties should they desire to defend against enforcement of the assessment against them, but note City of Houston v. Fore, cited in our original opinion.

Appellants’ motion for rehearing is granted to the extent that we hold the appeal provided by the statute may not be maintained as a class action. Our judgment reversing the case as to the named plaintiffs will remain undisturbed.

Appellees’ motion for rehearing is also overruled.

COLEMAN, J., sitting on rehearing.


author: CLAYTON, Justice.

text:
    C. R. SHADDIX et al., Appellants, v. John KENDRICK et al., Appellees.
    No. 5912.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 27, 1967.
    Rehearing Denied Oct. 25, 1967.

      W. B. Browder, Jr., and Gene L. Jame-son, Midland, Stubbeman, McRae, Sealy & Laughlin, Midland, of counsel, for appellants-appellees, Shaddix and others.
    Nelson, McCleskey & Harriger and Don Graf, Lubbock, for appellees-appellants, John Kendrick and others.
   OPINION

CLAYTON, Justice.

This is a suit attacking the formation and operation of an underground water conservation district. The suit was brought by C. R. Shaddix and three others, individually and as resident property owners and taxpayers of Gaines County, Texas, for themselves and as representatives of all property owners and tax-payers of the areas of seven Texas counties included in the South Plains Underground Water Conservation District No. 4, against John Kendrick, President, and five others, Directors of the District.

The history leading up to this litigation is, as briefly as possible, as follows: In the latter part of 1965 a petition signed by some fifty tax-paying landowners within the territory herein involved was presented to the Texas Water Rights Commission, pursuant to the provisions of Chapter 3A of Title 128, Vernon’s Ann.Tex.Rev.Civ.St, asking for a hearing on the creation and organization of an underground water district under Texas Constitution, Article XVI, section 59, Vernon’s Ann.St., and Article 7880-3c, T.R.C.S., to be known as South Plains Underground Water Conservation District No. 4. This petition described the territory to be included by metes and bounds, and stated that it was located wholly within Subdivision No. 4 of the Underground Water Reservoir, High Plains Area South of the Canadian River, as designated by order of the Texas Water Commission dated April 13, 1965. Pursuant to this petition, notice was issued and a hearing was held and order entered by the Commission on February 2, 1966 granting the petition and reciting that the boundaries of the proposed district are “co-terminus with the ‘subdivision 4 of the Underground Reservoir, High Plains Areas, South of the Canadian River.’ ” The order recited further that notice was given as required by law by publication in the Lubbock Avalanche-Journal, “a newspaper of general circulation in the area of the proposed district”, and stating that “said district shall be composed of the area described in the order of the Commission, dated April 13, 1965 * * * and includes portions of the counties of Andrews, Cochran, Dawson, Gaines, Lynn, Terry and Yoakum * * * ” and describing the said district by metes and bounds. The order also appointed Kendrick and four others as temporary directors of the district. This order was filed in the county clerk’s office in each affected county in the district.

The temporary directors then met and issued notice of an election to be held' on April 26, 1966, the voters to vote “for” or “against” confirmation of the district and “for” or “against” a maintenance ad valor-um tax, and the election of a director in each precinct of the district. This notice was published in the Lubbock Avalanche-Journal, described by the Commission as a newspaper of general circulation in this area. Voting precincts were so arranged that the votes in each municipality in a county could be counted separately from the votes in the balance, or rural, areas of the county, and those in each county counted separately from each other county.

The election was then held, with results as to the votes on confirmation of the district and the imposition of a maintenance tax being as follows:

Directors were elected in this election.

On May 2, 1966, the Directors met to consider the returns of this election on the proposition of whether or not the organization of the District should be confirmed. After canvassing the returns, the Directors resolved that “the election resulted in a majority vote for the confirmation of the” district “in the following segregated areas”— naming them. Also on that date, the Directors met to consider the returns of the election of April 26, 1966 on the proposal for a maintenance tax, but considered only “the votes in each box in the areas which voted in favor of the confirmation of said district”, and so considered, passed a resolution that since such vote was favorable for the tax, the Directors were authorized to “do any and all things necessary in connection with the favorable action in this election.”

On August 12, 1966 the Directors again met and passed a resolution reaffirming the resolution of May 2, 1966 confirming the district in certain areas, and set out the boundaries of these areas, which omitted the areas which opposed in the election the organization of the district. This resolution was filed in the Deed Records of Gaines County on August 16, 1966.

On September 15, 1966, plaintiff Shaddix and the other plaintiffs formally, by letter to defendant Kendrick,' objected to the “attempted organization and creation” of the district, and enclosed a copy of the petition on that day filed in this suit.

On January 31, 1967 the trial court entered his judgment cancelling and annulling the resolution of August 12, 1966 filed of record on August 16, 1966 in the Deed Records of Gaines County, Texas, which declared the boundaries of the District, as well as annulling the results of the April 26, 1966 election as declared by the resolution. It also declared that the District itself was invalid, illegal and ineffective, and that all clouds cast on plaintiffs’ titles to their lands be cancelled and removed. It then adjudged costs of court against the District, but provided that the District be maintained and remain in existence until all debts incurred had been paid, that all expenses of organization and elections be paid pro rata by the County Commissioners’ Court of each county included in the District by the order of the Texas Water Rights Commission of February 2, 1966 creating the District, and that if all debts were not paid in such manner, all lands and property included in such original District would be subject to taxes for the payment of all debts incurred by the District, to be assessed and collected as provided for in Article 7880, T.R.C.S. The court overruled defendants’ amended motion for new trial.

To the part of the judgment pertaining to the costs of court and the continuance in existence of the District until all debts incurred were paid, and providing for collection of taxes to pay such obligations, the plaintiffs gave notice of appeal, and the defendants appealed from the other action of the court. At the request of the defendants the court made Findings of Fact and Conclusions of Law in support of its judgment.

We believe that the first issue between the parties is whether the results of the confirmation election authorized the confirmation of the underground water conservation district with boundaries different from those set out in the Order of the Texas Water Rights Commission. If this is true, which defendants contend, then under what circumstances and to what extent can such changes be made? The defendants base their position on Article 7880-115 which provides:

“No town, city or municipal corporation shall be included within any district organized hereunder unless the proposition for the organization thereof shall have been adopted by a majority vote of the voters therein participating in such election. Any such municipal corporation included within a district shall be a separate voting district and the ballots cast therein shall be counted and canvassed to show the result of such election therein. No district hereafter organized embracing a town, city or municipal corporation shall include lands outside of such municipal corporation unless the election held therein to confirm and ratify the formation of such district shall be adopted thereby independent of the vote in such municipal corporation.
“No district, the major portion of which is in one county shall be organized to include lands in another county unless the election held therein to confirm and ratify the formation of such district shall be adopted by the vote of those voting such portion of such county, independent of the vote of the portion thereof in such other county or counties.
“In the event any portion of a district, under the provisions of this section shall vote against the formation of a district and the balance of such district shall vote for the formation thereof such proposition shall be adopted and such district be confirmed and ratified with the exception of the territory so voting against same, which is thereby automatically excluded therefrom and from all debts and obligations thereafter incurred, provided, however, if as many as ten per cent of the voters of such district so organized shall file with the board of directors a petition asking for a new election on such issue, such new election shall be ordered and held for the remaining portion of such district, or such district organization may be dissolved by order of the hoard of directors and a new district be formed. All lands and property included in such original district shall be subject to the payment of taxes for the payment of all debts and obligations incurred while it was a part thereof including organization expenses. The petition asking for a new election herein provided for.shall be filed within thirty days after the date upon which the result of such election is canvassed and declared by the directors and not thereafter. Acts 1925, 39th Leg., ch. 25, p. 119, § 115.”

In obedience to this article, the Directors of the District excluded the municipalities of Lamesa, Seminole and Denver City, but included Brownfield, Seagraves and Plains, and excluded the counties of Lynn, Dawson and Andrews. In thus redefining the District pursuant to the above article, the Directors properly included Gaines County in the District, since the combined vote of Seagraves and the rural section of the county was favorable to confirmation, as well as for imposition of maintenance tax.

The defendants, in support of their position, cite us to the Texas Supreme Court case of Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927), which holds:

“Returns showed that a majority of all the votes cast in the entire district was against its creation and the issuance of preliminary or organization notes. There were three incorporated towns in the district, however, Ballinger, Bronte, and Miles. The returns from Ballinger showed a large majority against the organization of the district and issuance of the notes, while the returns from Bronte and Miles showed majorities in favor of each proposition. By eliminating Bal-linger only from'the district, a majority favored the creation of the district and the issuance of the notes. By eliminating all of said incorporated towns, the creation of the district and the issuance of the notes lost. Inasmuch, however, as by eliminating Ballinger a majority of the votes in the proposed district was in favor of the proposition submitted, the district was declared created and its directors qualified as such.”

and:

“The conclusion of the trial court that the vote of the incorporated town of Ballinger could not he excluded in counting the votes in the district was error. The statute expressly provides that such a municipality could or not be included in the district, and if the vote of the municipality is against its inclusion, then it is to be excluded; and the vote of Ballinger was rightly excluded in this instance. Vernon’s Statutes 1918 Supplement, Art. 5107 — 1, 1922 Supplement, Art. 5107 — 118”. (Emphasis added).

In discussing this authority, plaintiffs contend that it is based on the language of a specific statute, Article 5107-118, now Articles 7622 and 7775 (T.R.C.S.), but we find in the instant case statutory provisions of a similar character, which reinforces the conclusion that a district may be carved so as to include those areas in which a favorable vote is registered, omitting areas where the vote is opposed to the formation of the district. In further support of this conclusion, defendants have cited us to the language used in a 1927 amendment to Article 7880-4 (the italicized portion of Article 7880-4 being that added by the 1927 amendment), as follows:

“Such districts may include the area of any county or counties, or any portion thereof, including towns, villages, or municipal corporations. Such districts may include any county and number of counties, or any political subdivision of the State, and defined district or parts of any or all counties in the State of Texas; and the land composing said districts need not he in one body, but may consist of separate bodies of land separated by land not embraced in the district; provided, however, that each segregated area must cast a majority vote in favor of the creation of the district before such segregated area can be included in the district.
"Provided that no district provided for in this Act shall embrace territory situated in more than one county except by a majority vote of the property tax paying voters residing within the territory in each county sought to be embraced within said District. * * *" (Emphasis supplied).

and further pointing out the wording included in the caption for this amendment:

“ * * * and to amend Section 4, Chapter 25 of the Acts of the 39th Legislature of the State of Texas, by providing that the land composing water control and improvement districts may consist of separate bodies of land, separated by land not embraced in said district.” (Acts 1927, 40th Legislature, 1st c.s., p. 496).

The above discussion is directed to defendants’ Points of Error Nos. 1 and 2, that the trial court erred in declaring that the District was not legally confirmed in the election and that the Directors could not legally declare the boundaries of the District as they did. Although we have been favored by exhaustive and persuasive briefs on both sides of the controversy, we feel impelled to sustain these points of error and reverse the judgment of the trial court in cancelling and annulling the resolution of the Directors of August 16, 1966 declaring the boundaries of the District, and further declaring that the District itself was invalid, illegal and ineffective under the results of the election of April 26, 1966 as declared by the said resolution. We hereby render the judgment to affirm the validity of the District and its resolution setting out the boundaries thereof.

As to defendants’ Points of Error Nos. 3 and 4, asserting error in failing to dismiss the suit for the reason that the trial court had no jurisdiction because of the asserted failure of the plaintiffs to file their suit within a proper period of time allowed by law and failure to comply with Article 9.03 and 9.30 of the Election Code, V.A.T. S., these points are overruled.

Point of Error No. 5 is sustained— that proper notice of the confirmation election was given.

The plaintiffs here presented eleven “Points”. The first four points all recite that the trial court properly entered judgment declaring that the District was invalid, illegal and ineffective, but asserting error in:

(1) Ordering the District to be maintained and remain in existence until debts incurred shall be paid;

(This is provided for in Article 7880-115 and, in view of our decision, the District is in existence as reformed, which included Gaines County except for the municipality of Seminole).

(2) The court erred in ordering that all expenses of organization of the District shall be paid pro rata by the County Commissioners Court of each county included in the District; and
(3) Ordering that all expenses of elections shall be paid in the same manner;
(4) Ordering that if any debts and obligations of the District are not paid by the County Commissioners Court of each county included in the District, all lands and property included in the original District shall be subject to taxation for the payment of all such debts and obligations.

In addition to what has been heretofore said, we quote from the statutory requirements set out in Articles 7880-24 and 7880-115, T.R.C.S., on these points:

“Art. 7880-24
* * * If a majority of those voting at such election vote against the district, same shall have no further authority except that any debts incurred shall be paid and the organization shall be maintained until all such debts are paid.”
“Art. 7880-115
* * * All lands and property included in such original district shall be subject to the payment of taxes for the payment of all debts and obligations incurred while it was a part thereof including organization expenses.” (Emphasis supplied.)

These first four points are overruled.

The plaintiffs’ Point Five asserts that the court properly entered judgment annulling the resolution of the Directors filed in the Deed Records of Gaines County on August 16, 1966 declaring the boundaries of the District. We believe this point has heretofore been sufficiently discussed and overrule this point, as well as Point Six, which reads as follows:

“The trial court properly entered judgment declaring invalid, illegal and ineffective the South Plains Underground Water Conversation District No. 4 and cancelling, abrogating and annulling the instrument entitled ‘Resolution Declaring Boundaries of the South Plains Underground Water Conservation District No. 4,’ because (a) the district as designated in the resolution was not the same district for which any petition had been filed with the Texas Water Rights Commission, (b) the district with the areas designated in the resolution was not the same district for which any petition had been granted by any governmental agency, (c) there had been no legally sufficient notice of any election for confirmation of the district, (d) the resident, taxpaying property owners had voted against confirmation of the district, and (e) there had been an election held on the proposition of levying taxes for the district, but the vote was against levying of any such taxes.”

Point Seven attacks that portion of the judgment that provides that organization expenses of the District and the election costs are to be paid pro rata by the County Commissioners Court of each county included in the District by order of the Texas Water Rights Commission of February 2, 1966 creating the District, since none of these counties nor any members of the respective Commissioners Courts were parties to this suit, and thus such portion of the judgment was beyond the jurisdiction of the court. We consider this point to be well taken and that it should be sustained, and the judgment of the trial court in this respect reversed and here modified so as to eliminate this provision.

Point Eight is the same, but adds “that the lands in the original district shall be subjected to taxes to pay such debts and obligations, is void because there was no pleading or prayer by either party for such relief.” The petition of plaintiffs was brought for themselves individually as taxpaying citizens and qualified voters of Gaines County, Texas “and as representatives of all property owners and tax-payers” of all the other counties “who own lands within the area” claimed by defendants to be included in the district. Their prayer is for annulling “ * * * the orders and taxes of said district”. This point is overruled.

Point Nine asserts that no evidence was adduced, or even offered regarding the existence or amount of any debts, obligations or election costs of the proposed district, “so that the judgment of the trial court is an illegal and improper carte-blanche authorization to the directors of the district to pay whatever amount they may decide to be appropriate to whomsoever they please for such services as they might desire.” This point is overruled, but plaintiffs will still have their right to contest any improper debts attempted to be paid.

Points Ten and Eleven are as follows:

“Point Ten
“The Constitution of the State of Texas prohibits the creation or fixing of any indebtedness by any political subdivision of the State except when authorized by vote of the resident property owning taxpayers and, therefore, the relief authorized by the trial court illegally and unconstitutionally imposes debts, burdens, and taxes on the counties, the properties and the property owning taxpayers within the district.
“Point Eleven
“The trial court erred in entering judgment that taxes are to be assessed and collected for the payment of the debts and obligations incurred by South Plains Underground Water Conservation District No. 4.”

Defendants assert:

“Art. 16, Sec. 59 of the Texas Constitution is the section under which the South Plains Water District is created. It provides that the Legislature shall authorize indebtedness for improvements and the maintenance thereof, but that such indebtedness shall not be authorized except upon the approval of the qualified property tax-paying voters. Expenses of organization and for a confirmation election cannot be characterized as indebtedness for improvements or maintenance. Since no voter approval is required except for improvement or maintenance indebtedness, the Legislative authority for the creation of organization and election expenses should be honored.”

Points Ten and Eleven are overruled.

We believe we have covered all points raised by defendants and plaintiffs herein and, while our decision has not been easy, it is our considered opinion that the trial court’s judgment must be reversed and rendered in part, reversed and modified in part, and affirmed in part in accordance with this opinion.


author: WALTER, Justice.

text:
    Oleta Fern JETER, Appellant, v. The CITIZENS NATIONAL BANK, Appellee.
    No. 4190.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 8, 1967.
    Rehearing Denied Oct. 13, 1967.

      Dell Barber, Colorado City, for appellant.
    Wagstaff, Alvis, Charlton & Alvis, Abilene, for appellee.
   WALTER, Justice.

The Citizens National Bank in Abilene filed suit against Oleta Fern Jeter, individually and as independent executrix of the estate of G. B. Jeter, deceased, on a note in the principal amount of $14,285.22, dated March 18, 1965, payable to the Bank and executed by her individually and as independent executrix of her husband’s estate. It was executed by Mrs. Jeter in renewal of a $15,000.00 note executed by her husband to the Bank on October 14, 1964. Mrs. Jeter filed a general denial and a verified answer asserting the note sued upon was without consideration.

In a non-jury trial, the court rendered judgment in favor of the Bank and against Mrs. Jeter, individually and as independent executrix of her husband’s estate. Mrs. Jeter has appealed.

Mr. Jeter died on February $, 1965, leaving a will appointing his widow independent executrix. At the time of his death there was a balance of $2,425.56 in his checking account.

On March 3, 1965, Mrs. Jeter presented her letters testamentary to the Bank and the bank transferred the balance of Mr. Jeter’s checking account to a new account entitled “Estate of George B. Jeter.” The note executed by Mr. Jeter contained the following provision:

“ * * * the account or accounts of any of the parties hereto in said Bank, including endorsers, guarantors, and/or sureties, may be charged with the amount of this note, including attorney’s fees and earned interest, at any time either before, or after maturity.”

Mr. Benson, executive Vice President of the Bank, testified substantially as follows: After the account was transferred, I placed a “Hold” on the account. I did not feel secure on the note and that is the reason I placed the “Hold” on the balance. The Bank refused to pay a check given to the Cross Plains Bank by Mrs. Jeter.

The Bank came to the conclusion that the assets and net worth shown on Mr. Jeter’s financial statement were not correct. No evidence was introduced by appellant to the contrary.

We find there is evidence to support the court’s following findings of fact:

“12. That subsequent to March 5, 1965, Oleta Fern Jeter, acting by and through her duly authorized attorney of record, David Hooper, represented to Bank that if the ‘Estate of George B. Jeter’ account would be released for use by the Estate, that the said Oleta Fern Jeter would, for the purpose of paying the G. B. Jeter note, execute a new note, both in her individual capacity and as Independent Executrix of the Estate of George B. Jeter.
13. That in reliance upon the assurances of Oleta Fern Jeter, made by and through her attorney of record, David Hooper, that such additional security would be provided, Bank released the funds in such described account; on March 10,1965, paid the $297.50 check to the Citizens State Bank of Cross Plains, Texas; and thereafter paid assorted checks drawn on such account until the account was reduced to a balance of $2.34, the balance on the date of trial.
14. That in compliance with such agreement, Oleta Fern Jeter did in fact execute a new note individually and as independent Executrix of the Estate of G. B. Jeter, deceased, in the amount of $14,285.22, dated March 18, 1965. Such note was delivered -to Bank and Oleta Fern Jeter made payments thereon until September 7, 1965, at which time the balance of such note had been reduced to $13,240.56; * * *
15. That in reliance upon the defendant’s agreement to execute such note and the subsequent execution thereof Bank did waive and forego its right to credit the checking account funds of G. B. Jeter against the face amount of such note; and that the agreement by Oleta Fern Jeter to execute such new note individually was made for the purpose of inducing Bank to waive and forego such right.
16. That, upon execution on March 18, 1965, of the above described note by Oleta Fern Jeter, the note executed by G. B. Jeter on October 14, 1964, was paid; a payment of $14,285.22 was entered on Bank’s Direct Liability Ledger Sheet and a zero balance shown; that thereafter Bank looked only to the note of Oleta Fern Jeter for payment of its indebtedness; that such new note completely replaced the G. B. Jeter note.”

If there is any evidence of probative force to sustain the judgment that Mrs. Jeter’s note is supported by a consideration, we must affirm the judgment because the burden of establishing that there was no consideration was upon her. Having pleaded no consideration and having failed to secure a favorable finding from the trial court on this defense, her burden before this court is to show that the record conclusively establishes such defense. Stated another way, her burden is to establish that there is no evidence of probative force to support the finding of a valid consideration.

Appellant contends the court erred in holding that the set-off provision of the note, quoted above, created a valid contractual right in favor of the Bank which is enforceable against the personal representative of G. B. Jeter.

A consideration may be either a benefit to the promisor or a detriment to the promisee. Jones v. Alvin State Bank, Tex.Civ.App., 332 S.W.2d 124, (no writ history). In Van Winkle Gin & Machinery Co. v. Citizens’ Bank of Buffalo (Sup.Ct.), 89 Tex. 147, 33 S.W. 862, the court said:

“The relation of the bank to its depositors is that of debtor and creditor, and its right to offset its indebtedness to the depositor against the indebtedness of the latter to it is of an equitable nature, intended for its protection, and does not depend upon any statute in relation to offsets.”

The Supreme Court adopted the opinion of the Commission of Appeals in which it cited and approved the Van Winkle decision in First National Bank of Schulenburg v. Winkler, 139 Tex. 131, 161 S.W.2d 1053. The Bank was authorized to exercise its right of set-off after the death of Mr. Jeter. Traders’ National Bank v. Cresson, 75 Tex. 298, 12 S.W. 819, (Sup.Ct.1889). In Browning v. Eiken, 189 Minn. 375, 249 N.W. 573, the court said:

“The right of set-off or application of securities held for the payment of a depositor’s indebtedness to a bank exists against the administrator of the debtor’s estate. 3 R.C.L. 593 § 221; Little’s Adm’r v. City National Bank, 115 Ky. 629, 74 S.W. 699, 103 Am.St.Rep. 349; notes to 19 Am.Dec. 421, and to 111 Am.St.Rep. 422; Smyth v. [George W.] Bates & Co., 112 Or. 160, 228 P. 931, 37 A.L.R. 473; Laighton v. Brookline Trust Co., 225 Mass. 458, 114 N.E. 671, L.R.A.1917C. 129. An agreement that all collateral or property, which may be at any time be held by a bank or be in its possession, may be treated as collateral to any indebtedness owing to the bank, justifies the bank to apply the debtor’s deposit account upon his indebtedness, as against the administrator of the debtor’s estate. Fisher v. Continental Nat. Bank (C.C.A.) 64 F. 707. The deposit account of Dr. Browning being at the time of his death pledged to the payment of his notes, his death did not terminate or invalidate the agreement.”

We hold that there was some evidence of probative force to support the court’s judgment that the Bank had a contractual and an equitable right of set-off. We also hold that the Bank’s agreement not to exercise its right of set-off against Mr. Jeter’s note constituted a valid consideration for the execution of the note by Mrs. Jeter, individually and as independent executrix of the estate.

Appellant contends that certain findings are against the preponderance of the evidence. We have considered all of these points and, after considering the entire record, we find that such findings are not against the weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

' We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    Mrs. June BOBBITT et al., Appellants, v. AMERICAN NATIONAL INSURANCE COMPANY, Appellee.
    No. 11536.
    Court of Civil Appeals of Texas. Austin.
    Oct. 11, 1967.
    Rehearing Denied Nov. 1, 1967.
    John D. Reed, Austin, for appellants.
    Graves, Dougherty, Gee, Hearon, Moody & Garwood, Thomas G. Gee, Wm. Terry Bray, Austin, for appellee.
   HUGHES, Justice.

This is an appeal from a summary judgment rendered in favor of appellee, American National Insurance Company, in a suit brought by Mrs. June Bobbitt and Mrs. Wi-lora Bobbitt, widow and mother of Oscar Joe Bobbitt, deceased, respectively, to recover $8,000.00 under an application for life insurance made by Mr. Bobbitt to appellee and under the terms of a conditional receipt issued by appellee to Mr. Bobbitt upon the payment by him of the first month’s premium.

Mr. Bobbitt applied for insurance on October 28, 1965, and the conditional receipt was issued by appellee on the same date. Mr. Bobbitt died October 30, 1965, from causes unrelated to any condition of health stated in his application for insurance.

The application of Mr. Bobbitt for insurance was rejected by appellee after the death of Mr. Bobbitt.

The application of Mr. Bobbitt revealed that he had been treated for an ulcer in 1963, and that in October 1965 an ulcer had affected him adversely in insurance matters.

In the application, Mr. Bobbitt gave consent for release of medical information concerning himself and family.

The application contained this provision:

“if the full first premium on the insurance applied for is paid in exchange for the Conditional Receipt bearing the same date and serial number as this application, the liability of the Company shall be in accordance with the provisions .of the Conditional Receipt; * * * ”

We copy from the conditional receipt issued by appellee to Mr. Bobbitt:

“The insurance for which application is made shall be effective (1) on the date of this receipt or (2) on the date of completion of all medical examinations required by Company rules and practices, which ever date is later, if on such effective date all persons to be insured are in good health and acceptable for insurance under established rules and practices of the Company for the plan, amount, and premium applied for.”

The record discloses, without dispute, that under the rules and practices of appellee an applicant for insurance who had suffered from or been treated for an ulcer within the past five or ten years, the time depending on the type or severity of the ulcer, must undergo a medical examination regardless of the amount of insurance sought.

Under these circumstances, a medical examination of Mr. Bobbitt was a prerequisite to potential liability under the conditional receipt. No medical examination of Mr. Bobbitt having occurred, the potential liability of appellee under this receipt did not arise.

The conclusion reached, as stated above, disposes of this appeal unless there is substance to appellants’ two points, the first of which is that there are material fact issues present in the record which preclude the granting of a summary judgment.

Mr. Wayne R. Youngblood, soliciting agent for appellee testified, in part:

“Q Now, at any time during the taking of this application, Mr. Youngblood, did you request or inform Mr. Bobbitt in any way that he was going to have to take a medical examination ?
A I told him that the subsequent application he had made eliminated any physical, because of the amount of insurance, but because of the fact that he had had, I believe, an ulcer within two years, that I didn’t know of any reason why he would. It wouldn’t be left up to me to decide that.
Q Well, you never requested him to take a physical in reference to this application ?
A No, sir, we did not, or I did not.
Q And as far as you know, your company never requested him to take a physical prior to his death?
A No, sir.”

Appellants pleaded that the application of Mr. Bobbitt and the advance premium was accepted by Mr. Youngblood at which time “ * * * the said Oscar Joe Bobbitt was informed and assured by Wayne R. Young-blood, an agent for the defendant company, that he was covered for that amount of life insurance by the defendant company * * * Jt

There is nothing in the record to substantiate this pleading. Mr. Youngblood did testify that he told Mrs. Wilora Bobbitt, after the death of Mr. Bobbitt, that he “presumed” Mr. Bobbitt was “covered” by the conditional receipt.

A witness also stated that Mr. Young-blood had told him after the death of Mr. Bobbitt that his insurance “was in force.”

The above statements are not, in our opinion, sufficient to raise a fact issue regarding any representations made by Mr. Youngblood to Mr. Bobbitt of the nature pleaded by appellants.

The other point of appellants is that the trial court erred in granting appellee’s motion for a new trial.

This point is far too general to require our consideration, but we will discuss it briefly.

This case was first tried by the Honorable Jack Roberts, without a jury, and judgment rendered for appellants for the sum of $8,000.00. This judgment was set aside and a new trial was granted by the Honorable James R. Meyers who succeeded Judge Roberts as judge of the trial court. Thereafter, appellee filed its motion for summary judgment which, as above stated, was granted.

These proceedings are wholly immaterial. They, in no sense, smack of irregularity or impropriety.

Appellants’ points are overruled, and no error appearing of record, the judgment of the trial court is affirmed.

Affirmed.


author: RENFRO, Justice.

text:
    Jerry Lynn WOODS, Appellant, v. Jo Frances WOODS, Appellee.
    No. 16855.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 6, 1967.
    Rehearing Denied Nov. 3, 1967.

      Hooper, Steves & Kerry and Henry E. Kerry, Jr., Fort Worth, for appellant.
    Curry & Curry and Tim C. Curry, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

This is a divorce case.

The plaintiff-appellee is Jo Frances Woods. The defendant-appellant is Jerry Lynn Woods. The divorce was granted on February 17, 1967.

The defendant, having left the State for Sweden with the minor daughter of the parties in violation of a court order, did not testify.

In answer to special issues the jury found: No. 1, Jerry Lynn Woods has been guilty of excesses, cruel treatment or outrages toward plaintiff; No. 2, such conduct was of such a nature as to render their further living together insupportable; and No. 3, such conduct on the part of defendant was brought on and provoked by acts and conduct of plaintiff.

On motion of plaintiff the court disregarded the jury’s answer to issue No. 3 and awarded a divorce and custody of the child to plaintiff.

In nine related points of error the defendant protests the action of the court in disregarding the answer to issue No. 3.

The judgment, referring to plaintiff’s motion to disregard issue No. 3, recites : “ * * * and the Court having heard and considered such motion, the evidence and argument of counsel, and being of the opinion that there was no evidence to raise said issue, that the jury finding and answer has no support in the evidence, and that such motion should be granted * * * ” and further, “The Court finds that the evidence of misconduct upon the part of the wife after reconciliation was very slight and unsatisfactory, and was not of the same degree or of the same general character as the misconduct of the defendant, and that such evidence on behalf of the plaintiff was not sufficient evidence of misconduct upon the part of the plaintiff on which to base an affirmative answer to Special Issue No. 3, * *

No issue was given or requested on reconciliation.

Over a period of several months plaintiff had frequently had dates with one Gregory. Although she was with Gregory during the first week in June, 1966, she testified that after her last date with Gregory she broke off with him and had a reconciliation with defendant and lived with him as husband and wife; that since the reconciliation she had not been out with Gregory, nor had any communication with him; that after the reconciliation defendant resumed his conduct of physical and mental abuse. She filed the current suit on September 7, 1966, or approximately three months after the reconciliation. In other testimony she testified that the reconciliation took place on June 1, and she admitted that she spent two hours in a motel room with Gregory on June 5. There is other evidence she was with Gregory after the middle of June. After June 5, plaintiff, in the presence of her pastor and a family friend, confessed her love for Gregory. In response to defendant’s plea for a reconciliation she told him to just leave her alone.

Plaintiff’s credibility as a witness and the weight to be given her testimony were matters for jury determination.

We think there can be no doubt there was some evidence of probative force from plaintiff, as well as of other witnesses, to support an affirmative answer to issue No. 3. The court erred in disregarding such answer.

Under the law as pronounced in such cases as Loring v. Loring, 17 Tex.Civ.App. 95, 42 S.W. 642 (1897); Lawson v. Lawson, 293 S.W. 336 (Tex.Civ.App., 1927) ; Smith v. Smith, 200 S.W. 1129 (Tex.Civ.App., 1918); and Franzetti v. Franzetti, 120 S.W.2d 123 (Tex.Civ.App., 1938), the divorce plea should have been denied or a new trial granted.

In the Loring case, supra, the court said: “The party suing for a divorce must show ill treatment on the part of the other of such a nature as to render their living together insupportable. If the plaintiff has wrongfully provoked such treatment as a natural consequence of her acts, she should not be permitted to predicate a divorce upon it; for in such a case the treatment is the consequence of her fault, and, by changing her conduct, she may avoid the treatment it produced, and make living with her husband, at least, supportable.”

Since the question of reconciliation was not fully or satisfactorily developed, we think justice will be better served by a remand for a new trial rather than a rendition of judgment for defendant.

Reversed and remanded.