author: POPE, Justice. CALVERT, Chief Justice

text:
    EMPLOYERS REINSURANCE CORPORATION, Petitioner, v. Jesse J. HOLT, Respondent.
    No. A-10959.
    Supreme Court of Texas.
    Dec. 7, 1966.
    Rehearing Denied Feb. 8, 1967.
    R. H. Whilden and N. E. Nadeau, Houston, for petitioner.
    Dixie & Schulman, Robert E. Hall, with above firm, Houston, for respondent.
   POPE, Justice.

This is a Workmen’s Compensation case and the controlling question is whether the order of the Board was a final ruling and decision as required by Section 5, Article 8307, Vernon’s Ann.Tex.St. before an order on a claim may be appealed. The trial court held that the Board order was not final and dismissed the appeal for lack of jurisdiction. The Court of Civil Appeals held that the order was final and ap-pealable. 393 S.W.2d 329. We affirm the judgment of the Court of Civil Appeals.

Jesse J. Holt injured his finger on March 8, 1955. He timely filed his notice and claim with the Industrial Accident Board. In May 1955, the Board wrote Holt that it required a medical report in support of the claim, and that it would await further advice from him. Nothing was done for a period of more than eight years. In November 1963, Holt wrote the Board and asked that the claim be set for a hearing. On November 26, 1963 the Board wrote the following letter which Holt treated as a final appealable order:

“This will acknowledge your letter dated November 6, 1963, in which you requested this case along with another case for the claimant to be scheduled for a hearing.
“Since the courts have held that this Board is without jurisdiction to act on a claim after a period of 401 weeks following the date of the injury, this Board has no jurisdiction over Mr. Holt’s claim for an accident occurring to him March 8, 1955. You may consider this the final action of this Board.”

The order was erroneous in that it stated the Board was powerless to act on a claim after a period of 401 weeks following the date of injury. In Texas Emp. Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900 (1937) it was held that the Board may not allow compensation for incapacity which extends beyond the end of the compensation period. Holt’s claim was for compensation for disability which occurred within the statutory compensation period, but it was not acted upon until after that time had expired. The Board’s jurisdiction over a claim for compensation for disability which occurred within the com-pensable period is not lost because the claim is not acted upon until after the end of the compensable period.

The real point in this case, however, is whether the order of the Board was a final ruling. The order shows that the Board, though for an erroneous reason, intended it as its final order. It reserved nothing for further decision. So far as the Board was concerned, it was through with all phases of the claim. Texas State Highway Department v. Fillmon, Tex.Civ.App., 236 S.W.2d 635, affirmed 150 Tex. 460, 242 S.W.2d 172 (1951); Southern Casualty Co. v. Todd, 29 S.W.2d 973 (Tex.Com.App.1930, judg. adopted); Indemnity Insurance Company of North America v. Marshall, 308 S.W.2d 174 (Tex.Civ.App.1957, writ ref. n. r. e.); Brown v. Texas Emp. Ins. Ass’n, 276 S.W.2d 314 (Tex.Civ.App.1955, writ ref. n. r. e.); Verrett v. Texas Emp. Ins. Ass’n, 223 S.W.2d 33 (Tex.Civ.App.1949, no writ).

Prior to 1930 there was some confusion in the law with respect to the finality of Board orders which determined it lacked jurisdiction over a claim. This court granted a writ in Southern Casualty Co. v. Todd, supra, because on this issue, there was a conflict between the opinion of the intermediate court and Jones v. Texas Indemnity Ins. Co., 15 S.W.2d 1077 (Tex.Civ.App.1929, writ ref.). While the Board letter in Todd comes close to being one in which the Board simply stated it would not proceed, the court in overruling Jones held that a Board order which declares that the Board lacks jurisdiction is nevertheless a final and appealable order. From that time until the recent decisions in Thompson v. Midwestern Ins. Co., 361 S.W.2d 720 (Tex.Civ.App.1962, no writ) and Hart v. Texas Emp. Ins. Ass’n, 387 S.W.2d 706 (Tex.Civ.App.1965, writ ref. n. r. e.) the Board and the courts have proceeded upon the rule that a Board order that it lacked the power to act was a final decision. In Oilmen’s Reciprocal Ass’n v. Harris, 116 Tex. 247, 288 S.W. 809 (1926), holding an order of the Board was final though there had been no hearing on the merits, the Supreme Court wrote: “It is not required, to be final, that the adjudication actually be upon the merits of the case, provided the decision does, in effect, preclude the court from a further consideration of the rights of the parties and puts an end to the then controversy.” This common-sense construction has been consistently followed.

The Supreme Court later expressed itself again in Tex.Civ.App., Texas State Highway Department v. Fillmon, 236 S.W.2d 635, affirmed 150 Tex. 460, 242 S.W.2d 172 (1951). The Board dismissed Fillmon’s claim because he

“ * * * failed to establish * * * that claim was filed within six months as provided by law or that good cause existed for delay in filing to the date it was filed. Therefore, the Board is without jurisdiction and claim is dismissed from the docket of said cases of the Board without further action.” (Emphasis added).

One of the questions on appeal was whether the order was final and appealable. The Court of Civil Appeals held that “The effect of this ruling by the Board was to deny appellee compensation. In our opinion, the order was a final ruling on appellee’s claim as contemplated by the Statute and was appealable.” 236 S.W.2d 635 (1951). The Supreme Court affirmed, using substantially the same language.

In Indemnity Insurance Company of North America v. Marshall, 308 S.W.2d 174 (Tex.Civ.App.1957, writ ref, n. r. e.) a claimant had filed a claim first with the Board and then later with the Federal Bureau of Employee’s Compensation. Some time later the Board wrote the claimant that it had no jurisdiction over his claim. There was no mention of the Board’s granting or denying the claim on the merits. The order which held that the Board lacked jurisdiction was a final and appealable ruling or decision. The order was:

“The hearing for this claim is canceled because:
“(3) This claim is one coming under the jurisdiction of the U.S. Dept, of Labor, Bureau of Workmen’s Compensation.
⅜ ⅜ ⅜ ⅜ * ⅜
“This is the final award of the Board. If you are dissatisfied with this award and desire to appeal it, you must give the board written notice within 20 days from the date this award is entered * * ”

Brown v. Texas Emp. Ins. Ass’n, 276 S.W.2d 314 (Tex.Civ.App.1955, writ ref. n. r. e.) is another example of a final Board order which was grounded on the absence of jurisdiction. Claimant sustained one injury on May 18, 1952 and another on December 13, 1952. He filed only one claim and it was on the first injury. Claimant settled the first claim six months after he sustained the second injury and then filed a claim with the Board on the second injury. He said that the second injury increased the disability sustained by him in the first injury. The Board followed Oilmen’s Reciprocal Ass’n v. Harris, supra, and held that it had no jurisdiction over the second claim but did not directly pass upon the merits. The intermediate court held that this order “was a final and appealable order of the Industrial Accident Board, from which the claimant was privileged to perfect an appeal to the District Court * *

“* * * this Board has no further jurisdiction in this case. On May 20, 1953 an agreed judgment was filed in this office which was in final settlement of both cases that this claimant had pending before this Board * * *.”

In Verrett v. Texas Emp. Ins. Ass’n, 223 S.W.2d 33 (Tex.Civ.App.1949, no writ), claimant filed an application with the Board for compensation for injuries sustained while working in a shipbuilding company. Prior to filing his claim with the Board, claimant started receiving compensation payments under the Federal Longshoremen’s and Harbor Workers’ Compensation Act. Thereafter the Board made an order in which it said:

“Therefore, this Board is without jurisdiction, and this claim is dismissed and no further action will be taken by this Board.” (Emphasis added).

In holding that this order was final and appealable, the Court of Civil Appeals said:

“In determining that appellant’s claim was covered by the Federal Longshoremen’s and Harbor Workers’ Compensation Act, rather than the State Workmen’s Compensation Law, the Board necessarily-passed upon the facts of the claim. When it decided, from the facts before it, that the Federal and not the State Act applied, it made as final an award against the appellant as it would have made if it had held that the claimant was not injured in the course of his employment * * * We believe the order of the Board was a final award * * * ”

Petitioner insists that there can be no final order unless the face of the order shows that the Board acted upon the merits of the claim. The cases discussed above do not sustain that position. The Board actually denies a claim by an order that holds clearly and finally, that it is powerless to entertain it at all. A number of cases hold that a Board order is not final so long as it shows that there is something reserved to the Board for further decision. In Kelly v. Industrial Accident Board, 358 S.W.2d 874 (Tex.Civ.App.1962, writ ref.) the Board refused to hold a hearing until the claimant filed a medical report. In Cordova v. Associated Employers Lloyds, 250 S.W.2d 945 (Tex.Civ.App.1952, writ ref.) the court held that the trial court lacked jurisdiction over an appeal from a Board order approving a compromise settlement, because the compromise settlement first had to be set aside in an original proceeding in a court of competent jurisdiction. In Industrial Accident Board of Texas v. Hudson, 246 S.W.2d 715, (Tex.Civ.App.1952, no writ), the Board refused to proceed after it had made an interlocutory order ordering the claimant to submit to an operation.

The distinction between orders in which the Board holds that it is without jurisdiction to act and orders in which the Board refuses to proceed or reserves something for future decision has been recognized and observed by the Board and courts until the recent decisions in Thompson, supra, and Hart, supra. The Board order in Hart is substantially the same as that in the present case except that the Hart order lacked the evidence, of finality contained in this additional sentence in the Holt order: “You may consider this the final action of this Board.” However, it is our opinion that both Thompson and Hart failed to distinguish the cases holding that Board orders about jurisdiction may be final whereas Board orders which reserve something for future decision may not' be. Neither of those cases considered Fillmon, Todd, Pearce, Marshall, Brown or Verrett.

In our opinion the better rule is to follow the distinction which has previously been observed by the cases and the one which guided the Board-in making its order on the Holt claim. Since this was not a case of the Board’s refusal to proceed or one in which it reserved something for future decision, it was a final appealable order. Thompson and Hart are not in harmony with this rule and are disapproved.

Section 5 of Article 8307 provides that “All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board.” Any claim for compensation which comes within the provisions of the Workmen’s Compensation Act presents one basic question for decision: is the claimant entitled to the relief sought? The Board has jurisdiction to settle that question and should do so. The finality of Board orders would be clearer and more manifest in such cases as this one if the orders would state: “The claim is not compensable within the provisions of the Workmen’s Compensation Act and is denied.”

Since the order in this case was final and appealable, the whole claim was properly before the court for decision. Texas State Highway Department v. Fillmon, supra; Texas Emp. Ins. Ass’n v. Bradshaw, 27 S.W.2d 314 (Tex.Civ.App.1930, writ ref.). The judgment of the Court of Civil Appeals which reversed the judgment of the trial court and remanded the cause to the trial court for trial upon the merits is affirmed.

CALVERT, Chief Justice

(concurring).

It is unfortunate that the Industrial Accident Board should ever have adopted a practice of refusing to act on claims for compensation for want of jurisdiction or of dismissing them for that reason. The practice has resulted in confusing situations and a confusion of remedies as is so well illustrated by the cases cited and analyzed in the court’s opinion in this case, with the proper remedy often made to turn on the peculiar wording of the particular order. But however that may be, there should be no occasion for continuing the confusion.

The Board has jurisdiction of every claim filed seeking benefits under the Texas Workmen’s Compensation Act. It has jurisdiction to grant the claim, in whole or in part, and to deny it. If it does not make an award of benefits, it should deny the claim. It should deny the claim if it is of the opinion that the claimant is not entitled to the benefits he seeks, whatever may be its reason for reaching that conclusion.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Demetrio TIJERINA, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40038.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Ray Stevens, Houston, for appellant.
    Carol S. Vance, Dist. Atty. James C. Brough and Gene Miles, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is carrying an unlawful knife (Art. 483 Vernon’s Ann.P.C., which makes it unlawful to carry on or about the person “a knife with a blade over five and one half (5Yz) inches in length”) ; the punishment, a fine of $100.

Appellant was stopped by a police officer in Harris County for driving at a high speed and in an erratic manner. The officer was in the process of arresting appellant for being intoxicated when he discovered a knife in a leather holder beneath the sun visor in appellant’s car.

At the trial, the officer testified that the knife blade was over five and one half inches long and the knife was introduced in evidence.

Appellant’s contention, raised in his brief filed in the trial court, is that the legislature did not intend to outlaw the carrying of all knives with a blade of over five and one half inches in length, but only those knives which were manufactured for the purpose of offense or defense. This question was settled contrary to appellant’s contention in Hobbs v. State, Tex.Cr.App., 407 S.W.2d 791, and Dawson, v. State, 171 Tex.Cr.R. 154, 346 S.W.2d 132.

The judgment of the trial court is affirmed.


author: DICE, Judge.

text:
    Ex parte Sidney SMITH.
    No. 40042.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    No attorney on appeal for appellant.
    Barton Boling, Dist. Atty., Jack N. Ferguson, Asst. Dist. Atty., El Paso, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

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

At the hearing, the state introduced in evidence the executive warrant issued by the Honorable Preston Smith, Acting Governor of this State, which recites that it has been made known to him by the Governor of the State of New Mexico that appellant stands convicted by “JUDGMENT OF CONVICTION, SENTENCE, ORDER REVOKING PROBATION AND SUPPORTING DOCUMENTS before the proper authorities, with ABSCONDING FROM PAROLE IN NEW MEXICO WHILE SERVING A TERM 2-5 YEARS FOR THE CRIME OF OBTAINING MONEY WITH INTENT TO CHEAT AND DEFRAUD,” and that he has taken refuge in this State.

The executive warrant, being regular on its face, made out a prima facie case authorizing appellant’s return to the demanding state as a parole violator. Art. 51.13, Sec. 3, Vernon’s Ann.C.C.P. of 1965; Ex parte Guinn, 162 Tex.Cr.R. 293, 284 S.W.2d 721; Ex parte Harris, Tex.Cr.App., 375 S.W.2d 453; Ex parte Pfouts, Tex.Cr.App., 383 S.W.2d 598.

The fact that appellant was brought into this state involuntarily, as a federal prisoner, to be confined in a correctional institution does not prevent his return to the demanding state of New Mexico. Art. 51.13, Sec. 5, C.C.P. of 1965; Ex parte Guinn, supra.

The question of whether appellant’s parole should have been revoked is not to be determined in this proceeding.

The judgment remanding appellant to custody is affirmed.


author: ONION, Judge.

text:
    Ex parte Thomas Alan TURNER.
    No. 39936.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Sam Houston Clinton, Jr., Austin, for appellant.
    Leon' B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Judge.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Ohio as a parole violator.

The Requisition of the Governor of Ohio and supporting papers upon which the Executive Warrant of the Governor of Texas was issued reflect the following:

On May 7, 1962, Thomas Alan Turner was sentenced to the Ohio State Reformatory for a period of one to fifteen years for the crime of burglary. He was paroled on February 17, 1965, and was declared a parole violator on August 6, 1965.

Appellant was received in the Texas Department of Corrections on December 30, 1965, and was scheduled for release on June 7, 1966. He declined to waive extradition. Extradition papers were prepared and on July 28, 1966, the Executive Warrant was issued.

The record clearly indicates that the appellant was indigent and that he repeatedly requested of the Court the appointment of counsel stating he was unable to represent himself. His requests were denied.

The question presented is whether an indigent person is entitled to court appointed counsel to represent him in a habeas corpus proceeding brought under Section 10 of the Texas Uniform Criminal Extradition Act (Article 51.13, Vernon’s Ann.C.C.P.).

This is a case of first impression in Texas, but undoubtedly this question will be presented again and again.

Section 10 of Article 51.13, Vernon’s Ann.C.C.P. is in most respects identical to Section 10 of the Uniform Criminal Extradition Act (9 ULA, Uniform Criminal Extradition Act, par. 10). Section 10 provides :

“No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this State, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such a writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding State.”

No express provision is made in the statute for the appointment of counsel to represent indigent persons, and there appears to be no authority for the allowance of a fee where counsel is so appointed. It should be observed, however, that in enacting the statute the Legislature obviously recognized that the assistance of counsel in such proceedings is not only important, but is a “right” of the accused person. In enacting the 1965 Code of Criminal Procedure the Texas Legislature, being acutely aware of the growing need for the right to counsel for indigent persons, re-enacted and expanded existing statutes relating to the right to counsel, and extended such right to misdemeanor cases punishable by imprisonment and to probation revocation hearings, etc. See Articles 26.04; 26.05; 15.17; 1.13; 42.12; 46.02, Sec. 8; 16.01; 28.01, V.A.C. C.P., etc.

The Texas Uniform Criminal Extradition Act, originally adopted in 1951, was brought forward as a part of the 1965 Code of Criminal Procedure with only minor changes. It does not appear that the Legislature intended that the “right” expressed in Section 10 was to be limited to those individuals who are financially able to employ counsel of their own choice. There, of course, should be no difference in our criminal procedures stemming from differences in wealth.

In People ex rel. Harris v. Ogilvie, 221 N.E.2d 265, the Supreme Court of Illinois held that Section 10 of the Illinois Uniform Criminal Extradition Act (similar in language to our Section 10, Article 51.13, V.A. C.C.P.) requires that counsel be appointed to represent indigent persons who do not have the means to procure legal counsel for themselves. In so holding, the Illinois court said:

“Even though the issues in a habeas corpus proceeding under the Uniform Criminal Extradition Act are limited to certain questions, we think it clear that legal expertise is necessary to consider and properly raise such pertinent questions as to whether the various extradition papers are in proper form, whether the arrested person is in fact a fugitive from justice subject to extradition, and whether he is in fact a person charged with a crime in the demanding State. Very few persons would be able to represent themselves adequately in an extradition hearing without the advice and assistance of counsel.”

We concur in the decision reached by the Illinois Supreme Court, and hold that Section 10 of Article 51.13, V.A.C.C.P., which grants to persons arrested under the Act the right to demand and procure counsel requires that counsel be appointed to represent indigents who do not have the means to procure counsel for themselves.

Our construction of the statute requires that appellant be granted a further hearing at which he may, with the assistance of counsel, test the legality of his arrest under the Governor’s Warrant.

We do not reach the question of whether the failure to appoint legal counsel to represent an indigent in a habeas corpus proceeding testing the legality of his arrest under Executive Warrant for his extradition constitutes a denial of a constitutional right. We need not therefore consider whether or not, in deciding such question, a distinction may be drawn between post-conviction proceedings where the prisoner has been convicted of a crime in the demanding state and has escaped from confinement, or has violated the conditions of his parole, and a proceeding where the indigent prisoner is charged with, but has not been convicted of a crime in the demanding state.

The opinion affirming the judgment is withdrawn.

Appellant’s motion for rehearing is granted and the judgment is now reversed and the cause remanded.


author: MORRISON, Judge.

text:
    Billie Lois SNOWDEN, true name, Billie Lois Roden v. The STATE of Texas, Appellee.
    No. 40019.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1967.
    Gladys Melton, M. E. Schwille, of Duke & Melton, Dallas, for appellant.

      Henry Wade, Dist. Atty., Al Alsup, Darrell Jordan and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is unlawful sale of barbiturate drugs; the punishment, a fine of $3,000.00 and confinement for two years in the Dallas County Jail.

Neither the Appellant’s nor the State’s original brief was filed in the trial court as required by Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P. Such omission eliminates the need for a consideration of all grounds of error contended by this appeal since none are of constitutional dimension.

The judgment of the trial court is affirmed.


author: McDonald, judge.

text:
    Samuel SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39832.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    Rehearing Denied Feb. 8, 1967.
    See also Tex.Cr.App., 389 S.W.2d 466.
    H. R. Rolston, Lufkin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

The offense is murder without malice; the punishment, five years confinement in the Texas Department of Corrections.

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

The indictment alleged that appellant killed Pamela Smith by beating her with a fan belt. Testimony offered by the state reflects that the deceased was the daughter of the appellant.

Wanda Smith, sister of the deceased child and daughter of the appellant, was the only witness who testified that she saw the alleged beating. At the trial she testified that she was eight years old; that she was the daughter of the appellant and the oldest child in the family; and that the deceased, Pamela, was six years old. She further testified that on the day in question she saw appellant and his wife whip the deceased with a fan belt on the back and on the head; that Pamela went to bed; that later she got up and went to the bathroom where she fell; that appellant then had Wanda help put pajamas on Pamela.

The record further reflects that appellant and his wife took Pamela to the hospital where she was examined and pronounced dead.

At the trial Wanda Smith identified the fan belt as the instrument used in the beating.

The doctor who performed the autopsy testified that he considered the deceased to have died from traumatic injury with hemorrhage into the brain. He further testified that the injuries causing the death were sustained within a few hours prior to death; that there were large areas of bruises all over the body of the child, mainly on both sides of the chest, both sides of the neck, about the left eye, on the right thigh and knee, and on top of the skull. He also testified that the injuries were caused by a blunt instrument which was flexible rather than rigid, because the injuries were diffused.

Appellant contends that the trial court erred in overruling his motion to quash the indictment for the reason that the description therein of the murder weapon is insufficient to apprise him of what the weapon was. He contends that the indictment should have specified what kind of fan belt, automobile or otherwise. In Wilson v. State, 155 Tex.Cr.R. 323, 234 S.W.2d 882, this court held that an indictment alleging that one was killed by being struck with a hammer was not invalid for failure to name the kind of hammer that was used. We think that the words fan belt are widely used and that its descriptive meaning is amply understood in this age of mechanization. We hold that the words fan belt used in the indictment are sufficiently specific to have informed the appellant as to the nature of the weapon used in committing the alleged offense.

Appellant next complains that the witness, Wanda Smith, should not have been permitted to testify because she did not have the mental capacity to understand the nature and the obligation of the oath. The trial court examined this witness and found her competent to testify. A careful reading of her testimony reveals that it contains contradictions. Considering, however, the age of this witness and some of the questions propounded her, we are not able to say that this would make her incompetent. Further, there is no evidence or theory offered which would establish deceased’s cause of death to be other than by the whipping testified to by this witness. For these reasons we are unable to say that the trial judge abused his discretion in qualifying this witness to testify.

Appellant’s remaining contentions question the sufficiency of the evidence which warranted the trial court to charge on any phase of murder or on intent to kill. We have examined the authorities cited in support of this contention and do not find them to be controlling here. We find the evidence sufficient to justify such charges and to sustain the conviction.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    Duane JOHNSON, Appellant, v. BENBROOK WATER AND SEWER AUTHORITY, Appellee.
    No. 16773.
    Court of Civil Appeals of Texas. Fort Worth.
    Dec. 16, 1966.
    Rehearing Denied Jan. 27, 1967.
    Pannell, Hooper, Steves & Kerry and Henry E. Kerry, Fort Worth, for appellant.
    Jacobs, Lipscomb & Renfro, Lindley D. Eakman and Cue Lipscomb, Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This is a suit for declaratory judgment pursuant to Article 2524-1, Vernon’s Ann. Tex.St., and an ancillary writ of mandamus. It contains a prayer for refund of all monies expended for extension of water and sewer services to an addition. It was tried to the court without a jury and resulted in judgment denying all relief sought by the plaintiff (appellant).

The appellant by his points 1-37 contends that he has been denied substantive and procedural due process and equal protection of the law. Points 38-42 relate to tap fees, 43-46 his damages and 47 through 49 to the appropriateness of the relief sought by him.

We affirm.

Findings of fact and conclusions of law were made and filed as follows: “1. The Defendant, Benbrook Sewer and Water Authority, was created as a governmental agency and a body politic and corporate under and by virtue of Article 8280-163 of Vernon’s Annotated Civil Statutes of Texas, which Article was an act passed by the 54th Legislature of this State in 1955.

“2. The Defendant obtains its authority and powers to operate under Article XVI, Section 59 of the Texas Constitution, [Vernon’s Ann.St.] and from the above mentioned Article creating said Defendant, and it possesses all of the rights, power and privileges conferred by the General Laws of this State applicable to water control and improvement districts created under the above mentioned Article and Section of The Texas Constitution.

“3. At the time of its creation, the Defendant’s boundaries were identical with those of the village of Benbrook, Tarrant County, Texas.

“4. The Plaintiff, Duane Johnson, is a person primarily engaged in purchasing, sub-dividing, improving and reselling real estate located within the Defendant’s boundaries, and he has been so engaged since before the Defendant was created.

“5. Shortly after its creation, the Defendant duly adopted a policy of requiring all builders, sub-dividers and developers, of which Plaintiff was one, to pay the entire cost of extending the Defendant’s existing sewer and water systems to and through any new area being developed by such developer and for which the developer had requested water and sewer service from the Defendant. Such planned extensions of the Defendant’s systems were required to be designed or approved by the Defendant’s engineer, and prior to the commencement of construction of such extensions the developer was required to deposit the entire cost thereof with the Defendant. The actual extension is accomplished in the name and by authority of the Defendant; and upon completion of construction and acceptance by the Defendant; it is expressly understood that the title to the extension vests in the Defendant.

“6. In addition to the extensions of the Defendant’s systems which are under its policies required to be paid by developers such as Plaintiff, the Defendant has at all times paid the entire cost of other substantial capital improvements necessary to provide and maintain adequate water and sewer service for persons residing within its boundaries; all of such additional capital improvements being paid for by Defendant without contribution from developers. Such capital improvements include but are not limited to water supply, treatment and storage facilities, large trucks, distribution and collector lines and sewerage treatment facilities. In addition to such capital improvements, the Defendant also bears the entire cost of maintaining and replacing all facilities, whether initially paid for by developers or by the Defendant.

“7. Even with the developers paying for the extensions required of them under the Defendant’s policies and procedures, the Defendant has steadily increased its indebtedness since its creation.

“8. The extensions which the Defendant’s policies require developers to pay for have some of the characteristics of both an asset and a liability. Although each such extension provides the Defendant with additional customers, the Authority also at the same time receives water and sewer systems which must be maintained. Also, the water lines must be kept supplied with water and the sewerage collected must be treated and disposed of.

“9. The Plaintiff has purchased, developed and resold land within the Defendant’s boundaries on many occasions before the development which is the subject of this lawsuit, and the extensions of water and sewer lines to such areas previously developed by Plaintiff were accomplished under the same policies and procedures of which he complains in the case at bar.

“10. The Plaintiff is the owner, sub-divider and developer of a tract of land known as Blocks 56, 57, and 58 and portions of Blocks 54 and 55 in Lakeside Addition to the City of Benbrook, Tarrant County, Texas, the development of which tract is the subject matter of this lawsuit, and all of which land is located entirely within the territorial limits and boundaries of the Ben-brook Sewer and Water Authority.

“11. On June 1, 1965, the Plaintiff made a formal application through his attorney asking the Defendant to make an exception to said Defendant’s policies and procedures by either paying for the entire cost of extending water and sewer lines into the above described area or to reimburse Plaintiff in whole or in part in the event he was required to pay for the extension. At the same time, the Plaintiff also requested that the “tap fee” which is charged by the Defendant for each connection to cover the cost of obtaining and installing a meter be waived for the Plaintiff.

“12. The Defendant, acting by and through its Board of Directors considered the Plaintiff’s request and through its counsel notified Plaintiff and Defendant declines to make any exception to its policies and procedures as requested by Plaintiff.

“Thereafter, as required by Defendant’s said policies, Plaintiff deposited the sum of $5,214.00, the entire cost of extending the water and sewer facilities, which are also the subject matter of this lawsuit. Contemporaneously with the deposit of said sum by Plaintiff with Defendant, Plaintiff executed the required Developer-Authority agreement regarding the involved extension and notified the Defendant that such contract was being executed and such deposit made without prejudice to his right to obtain the reimbursement he had previously requested of the Defendant.

“13. Thereafter, the subject extensions of water and sewer lines into the area involved were made in the name and by authority of the Defendant and such extension was paid for by Defendant using the sum deposited by Plaintiff.

“14. The Plaintiff, as a sub-divider and developer, customarily pays the entire cost of the paving of streets and the installation of curbs and gutters in areas developed by him, and amounts expended for such purposes are added to his expense in extending water and sewer lines into such areas. The total of such expenditures by Plaintiff is customarily divided by the number of tracts of land to be sold within such improved area and added to the sale price of such tracts.

“It is uncontradicted that the extensions of water and sewer facilities, like the curbs, gutters and paved streets, increases the value of the tracts of property located within the area so developed.

“15. It is also uncontradicted that the Plaintiff had prior to trial of this case already recovered in the sale price of each tract of property which had been previously sold within the involved area the pro rata share of the total cost of extending the water and sewer systems into said area al-locable to each of said tracts. The Plaintiff also testified that he will recover the remainder of his cost regarding such water and sewer extensions when the remaining tracts within the developed area are sold.

“16. None of the persons to whom the cost of these water and sewer extensions have been shifted by Plaintiff are parties to this lawsuit.

“17. In addition to the fact that the same policies and procedures here complained of by Plaintiff have been previously applied to him, the same policies have been uniformly applied to other persons who have developed property within the Defendant’s boundaries.

“18. Regarding the tap fee charged by Defendant to cover the cost of purchasing and installing water meters in developed areas, which fee is also complained of herein by Plaintiff, such fee has been uniformly paid by developers since the Defendant’s creation, except that such fee was waived by the Defendant, for the Plaintiff only, during the infancy of the village of Benbrook in order to encourage speedier sub-division and development of property.

“19. The Plaintiff was not damaged, irreparably or otherwise, by the Defendant’s action herein complained of, nor will he be so damaged thereby.

“CONCLUSIONS OF LAW

“1. The Defendant was authorized under the statutes creating Benbrook Water & Sewer Authority, the general law per-taming to water control and improvement districts and under the Constitution of the State of Texas to adopt the rules and regulations herein complained of by Plaintiff.

“2. The Plaintiff is not entitled to a Writ of Mandamus under the facts of this case, because the matters complained of by Plaintiff are discretionary in nature.

“3. The Plaintiff is not entitled to a Declaratory Judgment as prayed for by said Plaintiff, under the facts of this case.

“4. The Defendant’s policies and procedures which have been in effect at all times material to this law suit are not arbitrary, unreasonable, capricious and/or discriminatory.

“5. There has been no discrimination in the manner in which the Defendant’s policies and procedures have been applied to the Plaintiff.

6. There has been no confiscation of Plaintiff’s property by Defendant without due process of law.

“7. The Plaintiff has not been denied by Defendant equal protection of the law.

‘ 8. The Defendant’s action herein complained of by Plaintiff does not amount to an abuse of discretion on the part of said Defendant.” As to findings by the court and its conclusions of fact and law see Rules 296-299, Texas Rules of Civil Procedure, both inclusive, and authorities cited thereunder. There is competent evidence to support the court’s findings and its judgment.

Admittedly, most of the facts of this case are undisputed. It occurs to us that there is only one question to be resolved and that simply stated is whether or not the appellee has the constitutional and statutory authority to require the developer to extend the water and sewer extensions at his own expense. We are of the opinion that the trial court did not err in holding that it does have such authority.

The appellant presents the question to be adjudicated in much the same language as follows: “Does the policy of the authority in requiring a developer to pay the entire cost of water and sewer extensions into a new area without compensation and without reimbursement constitute an appropriation or a taking of the developer’s property without due process of law, and does the implementation of that policy to the developer in this case deny to him equal protection of the law?” We think not.

City of Snyder v. Bass, 360, S.W.2d 426 (Eastland Civ.App., 1962, Ref., n. r. e.); Hightower v. City of Tyler, 134 S.W.2d 404 (El Paso Civ.App., 1939, ref.); Moser v. Greenland Hills Realty Co., 300 S.W. 177 (Dallas Civ.App., 1927, ref.); see also 48 A.L.R.2d 1224 and cases cited. All points of error are overruled and judgment of the trial court is in all things affirmed.


author: BATEMAN, Justice.

text:
    George A. JACKSON, Appellant, v. Bobbie C. JACKSON, Appellee.
    No. 16831.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 2, 1966.
    Rehearing Denied Jan. 6, 1967.

      Robert C. Cox, of Erhard, Cox & Ruebel, Dallas, for appellant.
    Henry Klepak and Roy J. True, Dallas, for appellee.

       The attorneys appearing for appellant in this Court did not participate in the trial of the case.

   BATEMAN, Justice.

Appellee Bobbie C. Jackson sued the appellant George A. Jackson for a divorce, division of community property and judgment for the total of certain loans of cash and personal property which she alleged she advanced to him. The parties agreed that the evidence pertaining to the divorce action be heard by the court without the aid of the jury, and that “certain community rights would be adjudged by the court, separate and apart from the jury.” The remainder of the case was submitted to the jury, which found in answer to the first two special issues that (1) appellee made loans to appellant during the marriage, and (2) the sum of money so loaned was $9,439.57. The remaining five jury findings are not involved on this appeal.

The court rendered judgment which awarded appellee a divorce, fixed “a community lien” in favor of appellee for $1,690 against certain separate real property of appellant, awarded to the parties the personal property in their possession, and awarded appellee judgment against appellant for $9,439.57 and her attorney’s fee of $750.

Appellant’s first point of error on appeal asserts that appellee failed to establish grounds for the divorce by full and satisfactory evidence, as required by Vernon’s Ann.Civ.St., Art. 4632. However, the statement of facts contains only the proceedings of that part of the trial held in the presence of the jury, and not any of the evidence adduced at the nonjury hearing, and no findings of fact or conclusions of law were filed. The judgment recites that evidence was heard, but since the record is silent as to what that evidence was the only question open to consideration now is whether the pleadings support the judgment. Broadway Plan v. Ravenstein, Tex.Civ.App., 364 S.W.2d 741, 744, wr. ref. n. r. e.; Lam v. Lockhart, Tex.Civ.App., 151 S.W.2d 620, wr. dism. judgment cor.; 3 Tex.Jur.2d Appeal and Error — Civil Cases, § 449, p. 698. The pleadings do support the judgment and appellant’s first point is accordingly overruled.

By his second point of error appellant says the court erred in sustaining ap-pellee’s motion in limine to exclude evidence concerning her conduct and activities prior to the marriage. This point is without merit and is overruled. There being no claim that appellant was tricked into marrying appellee by fraudulent concealment of her prior conduct or activities, such evidence would not be material unless it was of such nature as to reflect on her veracity and therefore admissible for impeachment; and as to this possibility appellant makes no showing as to what the evidence would have been had it not been excluded. That being true, no reversible error is shown. 3 Tex.Jur.2d, Appeal and Error — Civil Cases, § 416, p. 670; J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698.

By his third point of error the appellant complains that the jury finding that the total of the loans made by appellee to appellant was $9,439.57 was “against the greater weight of credible evidence and had no basis as an answer for the amount of the loan by plaintiff to defendant.” We see no merit in this point, whether it be considered a “no evidence” point or an “insufficient evidence” point. We have read the entire statement of facts and find therefrom that appellee testified that the next month after her marriage to appellant, at his request, she lent him $3,000 and that in April, 1963 she lent him $850.26, both of which loans he promised to repay as soon as he sold certain land he owned in Denton County. She also said that appellant persuaded her to let him sell her 1959 Oldsmobile, that he received the $1,500 for which it was sold and that she did not get any part of it, and that he told her that when he sold his Grapevine property he would buy her a new automobile. She also testified that in May, 1963 she paid $4,089.31 to one Cox, who held a promissory note for $4,100 signed by appellant and another. Judgment had been rendered thereon and execution levied on property of appellant, and the money was paid to prevent the forced sale thereof. She also said that appellant sold his Denton County land in September, 1964 for $106,875.

It is true that appellant testified that she did not ever loan $3,000 to him at one time, and that he kept the $850 she had “given” him and the $1,500 she received for her old car and with these funds bought her a new automobile. He also testified that he had signed the $4,100 note held by Cox to accommodate his co-signer, but did not deny that the $4,089.31 paid by appellee actually satisfied a judgment against him and prevented an execution sale of his property. Viewing all of the evidence of both parties as a whole, we conclude that there is evidence to support the jury finding and that such finding is not against the weight or preponderance of the evidence. The third point of error is overruled.

By his fourth point of error, appellant charges error in the failure of the trial court to sustain his exception to allegations of oral loans and advancements by plaintiff to defendant. Appellant’s only special exception to any of appellee’s pleadings is that the court in a divorce suit lacked jurisdiction to decide a civil suit for debt. This point cannot be considered by us for three reasons: (1) It is not germane to any assignment of error in the amended motion for new trial. Rules 374 and 418 (b), Vernon’s Texas Rules of Civil Procedure; Reid v. Nortex Construction Co., Tex.Civ.App., 366 S.W.2d 870, wr. ref. n. r. e.; Coggin v. Coggin, Tex.Civ.App., 204 S.W.2d 47, 55. (2) It is not briefed and must be considered as waived. Rule 418(c), T.R.C.P.; Young v. Texas and Pacific Ry. Co., Tex.Civ.App., 347 S.W.2d 345, no wr. hist.; Fulton v. Abramson, Tex.Civ.App., 369 S.W.2d 815, no wr. hist. (3) It does not appear to have been presented to or passed upon by the trial court. Ellis Drilling Corporation v. McGuire, Tex.Civ.App., 321 S.W.2d 911, wr. ref. n. r. e.; 3 Tex. Jur.2d, Appeal and Error — Civil Cases, § 406, p. 662.

Appellant’s fifth point of error complains of the trial court’s failure to submit appropriate definitions of “separate property” and “community property” to guide the jury in answering Special Issue No. 2. Neither of these phrases was used in Special Issue No. 2, or elsewhere in the charge; hence, there was no occasion for the court to give the jury definitions thereof. Moreover, appellant did not object to the charge because of the absence of such definitions, or request the court to include them in the charge, or otherwise call the matter to the attention of the trial court prior to verdict. See Rules 273, 274 and 279, T.R.C.P. Also, it is obvious that no harm could have resulted. Rule 434, T.R. C.P. Therefore, no reversible error is shown, and the fifth point is overruled.

Affirmed.


author: COLLINGS, Justice.

text:
    V. J. MALONEY et ux., Appellants, v. Robert H. STRAIN, Jr., Appellee.
    No. 4099.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1966.
    Rehearing Granted Nov. 18, 1966.

      Sam Cleveland, Dist. Atty., Stephenville, for appellants.
    Thomas J. Newton, Mineral Wells, for appellee.
   COLLINGS, Justice.

Robert H. Strain, Jr., a licensed real estate broker, brought suit against V. J. Ma-loney and wife for real estate commissions in the amount of $300.00. The Maloneys answered alleging that plaintiff did not have a written contract listing their property for sale and agreeing to pay a commission, as required by law, at the time he found a purchaser and at the time a contract of sale was entered into between defendants and such purported purchaser. The case was tried before the court without a jury and judgment was rendered in favor of plaintiff for $175.00, with interest. The Maloneys have appealed from the judgment. Strain has also appealed, asserting that he was entitled to a judgment for $300.00 as provided in the contracts for sale of the property.

Article 6573a, Sec. 28, Vernon’s Ann.Tex. Civ.St. provides as follows:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

The record shows that Robert H. Strain, Jr., was at all times material a licensed real estate agent. He entered into two contracts in writing with V. J. Maloney and wife to sell their property on a 5% commission basis. The first of these contracts was executed on July 10, 1963 and the second on November 26, 1963. Both of said contracts provided for a listing of the Maloney property for a period of ninety days and further that any person Strain might interest in the purchase of said property should be considered Strain’s customer for a period of six months after termination of the listing. No prospective purchaser was secured by Strain during the time stated in the contracts. From time to time thereafter, however, the Maloneys urged Strain to continue his efforts to sell their property. On March 3, 1964, the Maloneys sent a postcard to Strain stating “Hope we have a call soon.” Strain testified that sometime after March 1, 1964, he first contacted Leslie Cox and interested him in the purchase of the Maloney property. Thereafter on about September 1, 1964, Strain brought Mr. Maloney and Mr. Cox together in regard to the matter. On September 13, 1965, the Maloneys executed a sales contract with Leslie Cox, the prospective purchaser secured by Strain in which the Maloneys agreed to sell and Cox agreed to purchase the land for $6,000.00. This contract contained a provision that sellers would furnish abstract showing good title and that the sellers would pay the Strain Agency a commission equal to 5% of the stated purchase price for services in connection with the sale, “said commission to be paid out of the first monies received upon closing.” Title objections were made by Cox’s attorney and the Maloneys sought to cure such objections. On November 18, 1965, the Maloneys had not furnished one of the title instruments required, and at a meeting between the Maloneys, Mr. Strain and Mr. Cox, the sales contract was torn up. The record shows, however, that at the time the contract of sale was torn up the Maloneys had in their possession an affidavit which would have cleared the final objection to the title. The record further shows that neither Strain nor Cox knew that such affidavit was in the possession of the Maloneys at the time the contract was torn up. They testified that had they known of the existence of the affidavit they would not have torn up the contract. The attorney representing Cox testified that if such affidavit had been submitted to him he would have approved it as removing his last objection to the title. Mr. Cox testified that if he had known that the title objection had been met by securing such affidavit he would have been willing to accept a deed to the land and pay the agreed price of $6,000.00 for the land.

Appellants, V. J. Maloney and wife, urge two points contending that the court erred in rendering judgment for Strain for any amount (1) because at the time of the finding of the purchaser by Strain he did not have a written contract with appellants then in effect listing the property for sale and (2) because at the time of the entering into the contract of sale and purchase between the Maloneys and purchaser Cox, the written contract of listing between the Maloneys and Strain had expired more than a year prior thereto, and Cox was not then a customer of Strain. These points are overruled.

The Maloneys are correct in the contention that the written contracts of July 10th and November 26, 1963, listing the property for sale with Strain had expired and were of no further force and effect. Strain was not entitled to recover under and by virtue of these contracts. The record, however, shows subsequent dealings between the parties whereby Strain at the instance of the Maloneys continued his effort to make a sale, and procured Leslie Cox, a prospective purchaser of the property. It is undisputed that on September 13, 1965, the Maloneys, by reason of the efforts of Strain, entered into a written contract with Cox for the sale and purchase of the property for $6,000.00. One of the provisions of the contract of sale was that the Maloneys were to pay to Strain a commission of 5% of the purchase price. This written contract was signed by the Ma-loneys. It is held that such a contract of. purchase and sale which provides that the seller shall pay a stated commission to the real estate agent is sufficient to comply with Sec. 28 of Article 6573a. Bridwell v. Sandefur, 341 S.W.2d 710 (Tex.Civ.App. 1960, writ dismissed). It is further held that a real estate agent so employed to sell is entitled to compensation for his services when he procures a purchaser who is able, ready and willing to purchase the property at the price and upon the terms authorized. 12 C.J.S. Brokers § 85 page 187; Kendrick v. Boon, 254 S.W.2d 1016 (Tex.Civ.App.1953, ref. n. r. e.); Golden v. Halliday, 339 S.W.2d 715 (Tex.Civ.App.1960, writ dismissed); Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 195 S.W. 848; Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725; McNeil v. McLain, 272 S.W.2d 573 (Tex.Civ.App.1954, no writ history). Strain had procured a purchaser ready, able and willing to purchase the property as provided in the contract and was entitled to his commission.

It is true that the written contract in question was later torn up by agreement of all the parties when it appeared that the Maloneys were unable to satisfy an objection to the title but the record shows, conclusively, that at the time the contract was torn up Mr. Maloney had in his possession an affidavit which fully met the last remaining title objection. The evidence shows that Cox was ready, willing and able to purchase the property on the terms provided in the contract. The failure to consummate the sale was not due to the fault of Strain but to the fault of the Maloneys. Under such circumstances, Strain was entitled to the commission provided in the contract. West Realty & Investment Co. v. Hite, 283 S.W. 481 (Tex.Com.App.); Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952); Golden v. Halliday, supra; Lattimore v. George J. Medina & Co., 195 S.W.2d 250 (Tex.Civ.App.1946, no writ history); Peters v. Coleman, 263 S.W.2d 639 (Tex.Civ.App.1953, no reversible error); Merzbacher v. Kirk, 278 S.W.2d 544 (Tex.Civ.App.1954, writ dismissed); Caneer v. Martin, 238 S.W.2d 828 (Tex.Civ.App.1951, writ dismissed); Kittrell v. Barbee, 198 S.W.2d 155 (Tex.Civ.App., 1946, writ dismissed); McGregor v. Alexander, 274 S.W.2d 867 (Tex.Civ.App.1954, Ref. N.R.E.).

Strain’s counterpoints urging in effect that the court erred in not rendering judgment in his favor for the full 5% commission provided in the sales contract is well taken. At the instance of the Maloneys Strain secured a purchaser who was ready, able and willing to purchase their property at the agreed price. By reason of Strain’s efforts the Maloneys and the prospective purchaser, Cox, entered into a written sales contract which was signed by the Maloneys. By the terms of the sales contract the Ma-loneys were obligated to pay to Strain a 5% commission. Strain was entitled to the full commission. The judgment for Strain is proper but should be and is hereby modified to grant him recovery of the full 5% commission provided in the contract, towit, $300.00.

The judgment is reformed and affirmed.

ON MOTION FOR REHEARING

In their motion for rehearing appellants particularly urge that we erred in reforming the judgment and giving appellee Strain the full five percent (5%) commission sued for because appellee did not except to that judgment in the trial court and complained of the judgment for the first time by counterpoints set forth in his brief filed in this court. Appellants’ contention in this respect is well taken.

The trial was before the court without a jury and no motion for a new trial was required as a prerequisite for an appeal. Rule 324, Texas Rules of Civil Procedure. In such a case a Court of Civil Appeals is authorized to consider errors assigned by an appellee by way of cross-points even though he has not perfected an appeal. Bowman v. Puckett, 144 Tex. 125, 188 S.W.2d 571; Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 185 S.W.2d 427; English v. Century Indemnity Co., 342 S.W.2d 366 (Tex.Civ.App. no writ history); South Texas Building Co. v. Ideal Engineering, Inc., 402 S.W.2d 292 (Tex.Civ.App.); 1966 n. r. e. It is required, however, that an appellee must apprise the trial court of any complaint or objection he has to the judgment. First National Bank in Graham v. Corbin, 153 S.W.2d 979 (Tex.Civ.App.), 1941 ref. w. m.; Rule 324, supra. In the instant case appellee did not except to the judgment, give notice of appeal therefrom, or in any manner apprise the court of his dissatisfaction therewith. His cross-points should be and are therefore overruled. West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609; Tarin v. Tarin, 340 S.W.2d 364 (Tex.Civ.App.), 1960 n. r. e.; Walker-Smith Co. v. Coker, 176 S.W.2d 1002 (Tex.Civ.App.), 1943, ref. w. m.

The judgment is in all things affirmed.


author: DUNAGAN, Chief Justice.

text:
    LAWYERS SURETY CORPORATION, Appellant, v. GULF COAST INVESTMENT CORPORATION, Appellee.
    No. 243.
    Court of Civil Appeals of Texas. Tyler.
    Jan. 5, 1967.
    Rehearing Denied Jan. 26, 1967.

      L. Alexander Lovett, Houston, Lawrence W. Vance, Dallas, for appellant, Strasbur-ger, Price, Kelton, Miller & Martin and Royal H. Brin, Jr., Dallas, on motion for rehearing only.
    Urban, Coolidge, Pennington & Heard, Bryan W. Scott, Houston, for appellee.
   DUNAGAN, Chief Justice.

The judgment heretofore entered on December 8, 1966, is set aside and the original opinion is withdrawn. This opinion is substituted for the original.

This is a suit against a notary public and his bonding company for the falsifying of an acknowledgement in a Mechanic’s & Ma-terialman’s Lien Contract on a homestead. Gulf Coast Investment Corporation, appel-lee, and plaintiff in the trial court, instituted this suit as against Harold A. Currlin, a notary public in and for Harris County, Texas, and the surety company on his statutory bond, Lawyers Surety Corporation, appellant.

Appellant, Lawyers Surety Corporation, filed its answer in which, among other things, it specifically pleaded the two-year statute of limitations.

Trial was had before the court and judgment was entered in favor of Gulf Coast Investment Corporation as against both defendants. Only Lawyers Surety Corporation appealed from this judgment. No findings of facts or conclusions of law were filed and none were requested.

Appellant has brought forward only one point of error by which it contends that ap-pellee’s cause of action is barred by the two-year statute of limitations.

Appellee contends that the four-year statute of limitations is applicable.

Appellant was the surety on a notary bond for Harold A. Currlin, a notary public in and for Harris County, Texas, in April, 1960. On April 12, 1960, Harold A. Curr-lin, notary public, certified the acknowl-edgement of Joanie J. Moncrief to a contract of labor and materials and trust deed given as security for a promissory note to the appellee, Gulf Coast Investment Corporation. The property securing the contract and deed of trust in .question was the homestead of Robert F. Moncrief and his wife, Joanie J. Moncrief. The notary public, as well as Joanie J. Moncrief, admitted under oath that she never signed the instrument and never appeared before the notary, Harold A. Currlin, concerning this contract of labor and materials and trust deed and that the acknowledgement by Mr. Currlin was fraudulent in that he was certifying under oath to facts that were not true. The notary further admitted that he knew Mrs. Moncrief personally and would have recognized her, if she had actually appeared before him.

This case was filed less than four years and more than two years from the date of the contract and the false and fraudulent acknowledgement thereon.

The only question presented is whether the two-year or the four-year statute of limitations applies to appellee’s cause of action.

The appellant in support of its contention relies on Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 98 A.L.R. 1213, 1935, and Cowart v. Russell, 135 Tex. 562, 144 S.W.2d 249, 1940.

The Supreme Court in the Hatcher case was concerned with the official bond of the state treasurer which was conditioned in the language of the statute (Article 4368) “that he shall faithfully execute the duties of his office” and in discussing therein its decision in Hillman v. Gallagher, 103 Tex. 427, 128 S.W. 899, said:

“ * * * In that case a father sued on a liquor dealer’s bond on account of the defendant’s permitting plaintiff’s minor son to enter and remain in a saloon. * * * The statute requiring the bond gave to any person aggrieved by the violation of any of its provisions the right to sue on the bond, and to recover the sum of $500 as liquidated damages. The Court of Civil Appeals, following Phillips v. Hail [118 S.W. 190], supra, held that the suit was barred by the two-year statute of limitations. 120 S.W. 505. In reversing that decision, the Supreme Court, speaking through Chief Justice Gaines, after quoting the four-year statute, said: ‘The cause of action in this case is both “evidenced by and founded upon a contract in writing,” to wit, the statutory bond. The bond states the conditions upon which the recovery may be had and promises to pay, in accordance with such conditions. Without the bond there can be no recovery.’ ”

The emphasis is that of the Supreme Court in the Hatcher case, and by such emphasis it pointed out what it considered to be the controlling distinction.

The Supreme Court in the Hatcher case then goes on to say, following its quotation from the Hillman case:

“The difference between that case and the instant case is plain. There the suit was brought as the statute authorized it to be brought upon the very bond itself. The plaintiff had no cause of action without the bond. Here the cause of action does not arise out of and is not dependent upon the official bond. If the state treasurer owed defendants in error a duty for the breach of which a cause of action-would lie, the law imposed the duty, and the duty rested upon him regardless of the bond. The obligation sought to be enforced, if it exists, arises out of a breach of official duty, not out of the bond. There is no statement in the bond of the state treasurer of the conditions upon which recovery may be had, and there is no promise in the bond to pay in accordance with such conditions. The bond, which is phrased in the same general terms as those contained in the statute, merely affords security for the faithful performance of the official duties. It seems clearly apparent, therefore, that the action is not founded upon the bond.
“Nor is the action evidenced by the bond. The bond contains no statement of what the duties of the treasurer are, and no promise that he will make payment of any particular funds or amount to any certain person. The duties of the state treasurer are found in the statutes. There is no evidence, not even a recital, of them in the bond. Proof of the existence of a duty to defendants in error, of the breach of that duty, and of damages suffered by the breach, must be made by evidence outside of the bond.
“As to the surety, the bond but evidences its promise to stand surety for the principal. Both the existence and the evidence of a cause of action against the surety must be found in the existence and evidence of a cause of action against the principal. If there can be no recovery against the principal, there can be no recovery against the surety. The bond is but incidental to the official obligation, in the same way that a mortgage is incidental to the debt which it secures. * * * ”

The decision of the Supreme Court in Cowart v. Russell, supra, followed its opinion in the Hatcher case.

In the Hatcher case the court recognized the conflict in the decisions of the various Courts of Civil Appeals and adopted the line of decisions which hold that since the action is, in effect, one against the principal for a breach of his statutory duty as a public officer, the bond for faithful performance of duty was collateral security only and the two-year statute of limitations was applicable. When suit was barred for the breach of duty, the action on the bond was likewise barred.

The Supreme Court in Cowart v. Russell, supra, again held that the bond of an officer for the performance of official duty was collateral security for the performance of such duty, and was not a contract in writing to pay, and that the two-year statute of limitations applied. A notary public is a public officer, 41 Tex.Jur.2d, page 502, Sec. 1, and is required to take the official oath of office and execute a bond “for the faithful performance of the duties of his office,” Sec. 7, Article 5949, V.A.C.S., which in the instant case was done.

Appellee relies on Standard Acc. Ins. Co. v. State, 57 S.W.2d 191, (Tex.Civ.App., Fort Worth) 1933, writ dism., as supporting its contention that the four-year statute of limitations applies to this case. The Standard Accident case was a suit upon the notary’s official bond and against the notary for his false and fraudulent certificate to a deed. There the court held that the four-year statute of limitations applied.

The Standard Accident case arose before the Hatcher case and at a time when there were two lines of authority among the Courts of Civil Appeals as to official bonds generally, one holding the two-year statute applicable and one holding the four-year statute applicable. The Standard Accident case did not go off on any peculiarities of notary bonds, but was merely one of the cases in the line of opinions holding the four-year statute applicable to official bonds generally. It cites Hillman v. Gallagher, supra, which dealt not with a notary bond but a liquor dealer’s bond.

The two lines of cases were expressly considered by the Supreme Court of Texas in Hatcher v. State, supra, and it decided in accordance with those holding the two-year statute applicable and rejected the line of cases holding the four-year statute applicable, which included the Standard Accident case.

The instant case is analogous to the Hatcher case and is distinguishable from the Hillman case in the very respects noted by the Supreme Court in the former. If a notary public gives a false acknowledgement, he has breached a duty imposed by law for which a cause of action would lie. This duty rests upon him regardless of the bond. The liability of the notary arises out of a breach of official duty and not out of the bond.

There is no statement in the bond of a notary of the conditions upon which recovery may be had and no promise to pay in accordance with such conditions beyond that contained in the bond for the state treasurer of merely affording security that the principal “shall faithfully perform the duties of said office.”

Just as the treasurer’s bond in the Hatcher case contained no statement of what the duties of the treasurer are and no promise that he would make payment of any particular funds or amount to any certain person, so the notary bond here involved contains no statement of what the duties of a notary are and no promise that he will make payment of any particular funds or amount to any certain person. Just as the duties of the state treasurer are found in the statute, so are the duties of a notary. Likewise, the other statements of the Hatcher case about the treasurer’s bond before it, as opposed to the liquor dealer’s bond in the Hillman case, are applicable to the notary bond in the present case.

We think the Hatcher case and other cases following it have definitely settled the law in this state that the two-year statute of limitations is applicable to a notary bond which is conditioned “shall faithfully perform the duties of said office of said notary public.” We hold that the action here is not one for “debt where the indebtedness is evidenced by or founded upon any contract in writing” within the meaning of Sec. 1 of Article 5527, V.A.C.S.

Since appellant specifically pleaded the two-year statute of limitations, and ap-pellee’s petition showed clearly that it was more than two years before the suit was filed after the alleged wrong, the trial court erred in granting judgment to appellee.

Judgment reversed and rendered for appellant.


author: HUGHES, Justice.

text:
    INDUSTRIAL GENERATING CO., Appellant, v. James W. JENKINS, Appellee.
    No. 11430.
    Court of Civil Appeals of Texas. Austin.
    Dec. 7, 1966.
    Rehearing Denied Jan. 11, 1967.
    Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, Burford, Ryburn & Ford, Logan Ford, Spencer C. Relyea, III, Dallas, for appellant.
    Barkley, Cutcher & Alderson, James L. Cutcher, Taylor, for appellee.
   HUGHES, Justice.

This attempted appeal is by way of writ of error proceedings the purpose of which is to review a judgment rendered in cause styled James W. Jenkins v. Pan American Life Insurance Company, No. 15,461, on the docket of the District Court of Milam County. The defendant in that suit, and the only defendant, Pan American Life Insurance Company, did not perfect an appeal from such judgment.

We quote from appellant’s Petition for Writ of Error the following as indicating the basis upon which it asserts a right to appeal from the judgment entered in this case:

“The Court, in the above numbered and entitled cause, rendered and entered a judgment on December 10, 1965, recorded in Volume Q page 632-633 of the Minutes of the District Court of Milam County, Texas, where James W. Jenkins is plaintiff and Pan American Life Insurance Company is defendant. This judgment purports to fix the number of installments within which the proceeds of a group insurance policy recovered from defendant by plaintiff herein would be paid, although the right to determine such installments under the contract of insurance upon which this motion is based is vested solely in this petitioner. In spite of the fact that this petitioner was a party to the insurance contract upon which this action is based, was conferred the right to fix the installments of any proceeds paid thereunder, and purchased and paid for such right by contributing to the premiums paid thereunder, petitioner was not joined as a party defendant, was not served with citation and was not represented by counsel upon trial of the cause. Petitioner as a necessary and indispensable party to this action therefore has the right to file this application for writ of error to bring all errors of law committed by the trial court before this appellate court.”

The record shows that appellee, James W. Jenkins, sued Pan American Life Insurance Company to recover benefits under a group policy of insurance issued to his employer, Industrial Generating Company, alleging that he sustained accidental injury while working as an employee of Industrial. Appellee’s Petition contained the following allegation:

“Plaintiff would further show unto the Court that the stipulations in said policy provide that such benefits, in the sum of FOURTEEN THOUSAND AND NO/100 ($14,000.00) DOLLARS, for total and permanent disability should be paid in a fixed number of monthly installments chosen by Plaintiff’s employer, Industrial Generating Company. However, Plaintiff would show that he is totally and permanently disabled and is entitled to the full sum of such benefits and the same should be paid in a lump sum. However, in the alternative, if it should be found that Plaintiff is not entitled to receive said benefits in a lump sum under said pólicy, then and in that event Plaintiff would show unto the Court that the said employer, Industrial Generating Company, is prejudiced against this Plaintiff and that the agents, servants and employees of the said Industrial Generating Company, who would normally be the proper persons to fix the number of monthly installments under said policy, are also agents, servants and employees of the Pan American Life Insurance Company and, therefore, Plaintiff requests this Honorable Court to set the number of installments for Plaintiff herein.”

The insurance policy sued on provided that benefits under it should be paid “ * * in a fixed number of monthly installments chosen by the Employer from the following table, but extending over a period of not less than two years. * * * ”

Pan American questioned the absence of Industrial by special exception and by motion for judgment notwithstanding the ver-diet, contending that Industrial was a necessary and indispensable party. The exception and motion were overruled.

Following trial to a jury, the court entered an interlocutory judgment from which we quote:

“The Court finds that the said policy of insurance designates Industrial Generating Company of Rockdale, Texas, as the employer under the terms of said policy to choose the number of installments in which the insurance is to be paid and the Court hereby orders the Clerk of this Court to furnish the said Industrial Generating Company a certified copy of this Interlocutory Decree and to request the said Industrial Generating Company to designate, in writing, the number of installments in which the insurance should be paid and to furnish a copy of the same to the Court and to all attorneys of record in this cause on or before 4th day of September, 1965.
It is further ORDERED that a hearing should be had in this cause at ten o’clock A.M. on September 10th, 1965, at which time the Court will determine all issues pertaining to the amount of recovery, the manner of payment of same and any and all other issues raised by the pleadings on file herein.”

Although Industrial was notified as directed by the court, it failed to respond and the court entered judgment ordering benefits totaling $14,762.28, plus penalty and attorney’s fees, to be paid appellee over a period of five years in monthly installments of $254.66, commencing as of November 15, 1960.

Appellee has moved to dismiss the appeal of Industrial on the ground that it was not a party to the suit below and has no right of appeal.

Appellant replied to this motion by stating that the motion to dismiss goes to the merits of its petition for writ of error and that ruling on the motion should be postponed until after briefs were filed and oral arguments made. Appellant filed its original brief but in it we find no point directed to its right of appeal and no discussion of the question. It also filed a reply to appellee’s brief, but it, too, is silent regarding the motion to dismiss.

By a post submission brief, appellant asserts that it is entitled to appeal by writ of error since it is “clearly” a party within the meaning of Arts. 2249, 2249a, 2250, 2251, 2255, Vernon’s Ann.Tex.Civ.St., and Rules 352 and 363, Texas Rules of Civil Procedure, and cites Ambassador Oil Corp. v. Robertson, 384 S.W.2d 752, Tex.Civ.App. (Austin), writ ref., n. r. e., Robertson v. Blackwell Zinc Co., 390 S.W.2d 472, Tex.Sup.Ct., and Specia v. Specia, 292 S.W.2d 818, Tex.Civ.App. (San Antonio), writ ref., n. r. e. as supporting its conclusion.

Ambassador is not in point. It was a class suit' brought under the provisions of Rule 42, T.R.C.P. It was held that a non-cited, nonappearing, member of the class could appeal. The suit below was not a class suit. Pan American and Industrial do not constitute a class “ * * * so numerous as to make it impracticable to bring them all before the Court” as required by Rule 42.

Specia is a will contest. The executors named in the will, Ben Specia, Jr. and G. J. Luchese, filed application in the County Court for its probate. A contest, on the ground of lack of testamentary capacity of testator was filed by Charles Specia. The will was admitted to probate in the County Court, but denied probate in the District Court. The executors did not appeal. David Specia, one of the principal beneficiaries under the will, perfected an appeal by writ of error. The court held David Specia to be a party and entitled to appeal. This holding is correct under the doctrine of virtual representation. Mason v. Mason, 366 S.W.2d 552, Tex.Sup. (1963). The Court there held minor beneficiaries under a will were virtually represented by Mrs. Mason, a beneficiary under the will and its executrix and trustee, where the only issue submitted to the jury was whether it was procured through undue influence, the Court saying that “ * * * the interests of the trustee and these beneficiaries were identical.”

It is the identity of interests which is of paramount importance in determining the applicability of the doctrine of virtual representation. 39 American Jurisprudence, Parties Sec. 47. If the interest of the parties in court is not identical with the interests of those who are absent and who are sought to be bound by the judgment, then there is no safe guarantee that those absent will be adequately represented by those present. The Court in Mason quoted, approvingly, the following from Cottman Co. v. Continental Trust Co., 169 Md. 595, 182 A. 551:

“ * * * It is the interest which the court is considering, and the owner merely as the guardian of that interest; if, then, some other persons are present, who, with reference to that interest, are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be so required, and the court may, without putting any right in jeopardy, take its usual course and make a complete decree.”

We also quote from Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22:

“It is one thing to say that some members of a class may represent other members in a litigation where the sole and common interest of the class in the litigation, is either to assert a common right or to challenge an asserted obligation. * * * It is quite another to hold that all those who are free alternatively either to assert rights or to challenge them are of a single class, so that any group merely because it is of the class so constituted, may be deemed adequately to represent any others of the class in litigating their interests in either alternative. Such a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires. The doctrine of representation of absent parties in a class suit has not hitherto been thought to go so far.”

It is obvious that the interests of Pan American and Industrial are not identical. The interest of Pan American is one of liability for the payment of more than $19,000.00. The interest of Industrial is merely to prescribe the period over which such payments should be made. But for allegations contained in appellee’s pleadings, we would consider the position of Industrial, the employer, to be of a paternalistic nature in behalf of its employee and, hence, more closely aligned with the prosecution of his claim rather than with the defense of it. It is enough for us to hold, however, that identity of interest of Pan American and Industrial is not present and that the doctrine of virtual representation is not applicable.

We believe that this case is controlled by the opinion in Gunn v. Cavanaugh, 391 S.W.2d 723, Tex.Sup. (1965). There the Court followed the time honored rule that only persons who are parties or their privies, regardless of their interest in the outcome of a case, may appeal from the judgment in the case, and if relief from such judgment is sought by persons other than parties and their privies, such relief must be sought in a court of original jurisdiction.

We believe that the language of Chief Justice Fly in Most Worshipful King Solomon Grand Lodge v. Mitchell, 234 S.W. 687, Tex.Civ.App., San Antonio, no writ, where the Court held that one Boozier who had been enjoined from representing the Lodge, but who was not a party and could not appeal by writ of error, is peculiarly appropriate here:

“Boozier alone filed a petition for a writ of error as against the persons declared to be the regular officers of the plaintiff. In the petition for writ of error, he states:
‘Your petitioner did not file a motion for new trial herein, not having been a party to said suit, and having entered no appearance therein, and having filed no answer herein. In this connection, petitioner respectfully represents that he has not had his day in court as to said judgment.’
He does not pretend that he did not fully understand what was taking place in the lower court, and yet, not being a party to a suit affecting his interests, he made no effort to have himself made a party thereto, but endeavors to come into an appellate court through a writ of error, and, ignoring the plaintiff with the sonorous and long drawn out title, seeks to prosecute a case to which he was not a party. If he was not a party to the suit, it follows that he is not affected by it; if he has not had his day in court, there is no binding judgment against him, but he cannot adjudicate the points in a case to which he was not a party through the medium of a writ of error.
If, as alleged by Boozier, he was not served as a party to the suit, and made no appearance in the suit, no valid judgment could have been rendered against him, and his remedy could not be by appeal or error. Only parties to the record, as a general rule, can exercise that right.”

We express no opinion upon the validity of the judgment below; it is not before us.

The motion to dismiss this appeal is granted.

ON MOTION FOR REHEARING

In our original opinion we stated that, “The interest of Industrial is merely to prescribe the period over which such payments should be made.” Appellant directs our attention to the policy issued by Pan American which provides that the amount of premiums paid by Industrial are offset by refunds based on its loss experience under the policy from which Industrial concludes, “Thus Industrial’s right to designate the period over which benefit payments should be paid is one which is valuable to it, and one which should not be lightly regarded. Indeed, because Industrial’s loss experience determines its future premiums, it has an equally real, direct interest in resisting liability under the policy if it deems such action appropriate.”

We find nothing unique in the provision of the policy that rates are affected by losses. All insurance rates are affected by losses.

Even though the interest of appellant in the suit brought by appellee is greater than stated in our original opinion, we hold that it lacks sufficient identity with the interest of Pan American to come within the rule which we quoted from Hans-berry v. Lee. The substantial interests of Pan American and Industrial are not necessarily or even probably the same.

Appellant in its motion for rehearing states, “We agree with the Court that the doctrine of virtual representation is inapplicable here * * * ”

The motion is overruled.

      . This case, being a probate case, is distinguishable. Gunn v. Cavanaugh, 391 S.W.2d 723, Tex.Sup. (1965).

      . Quere: What would Pan American say if Industrial had attempted to represent it in the court below, in the absence of Pan American, on the theory of virtual representation?