author: DIXON, Chief Justice.

text:
    Flossie Bell GARRETT et al., Appellants, v. Vallee Stringfellow DOWNS et al., Appellees.
    No. 16302.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1964.
    Rehearing Denied March 20, 1904.

      Ely Straus, and Robert A. Neathery, Dallas, for appellants.
    C.. C. Renfro, Biggers, Baker, Lloyd & Carver and Ralph D. Baker, Dallas, for appellees.
   DIXON, Chief Justice.

Flossie Bell Garrett and several other plaintiffs filed suit July 27, 1961 in trespass to try title and to remove cloud from title to their alleged interest in approximately 19 acres of land in Dallas County, Texas. The defendants are Vallee Stringfellow Downs, Veterans Land Board, Everts E. Jackson and William A. Long. Vallee Stringfellow Downs is the grantor in a deed to William A. Long.

Plaintiffs sued as heirs of their mother, Amanda Moore Stringfellow. Defendants answered with pleas of general denial, not guilty and limitations, and further pled that plaintiffs’ claim was long ago concluded when Amanda Moore Stringfellow, through her husband, accepted a partition deed for her share of the estate of her deceased brother, James P. Moore.

A jury in answering special issues found that (1) Henry C. Moore, under whom defendants claim title, held peaceable and adverse possession of the 19 acres in question, cultivating, using, or enjoying the same for a period of ten consecutive years before his death in 1948; (2) defendant Everts E. Jackson and those under whom he claims similarly held peaceable and adverse possession of 16.926 acres out of the 19 acres for ten years prior to 1948; (3) defendant William A. Long and those under whom he claims similarly held peaceable and adverse possession of all the 19 acres of land in question (except the 16.926 acres claimed by Everts E. Jackson) for ten years after March 8, 1948 and before July 27, 1961; (4) plaintiffs and those under whom they claim did not exercise any dominion or control over the 19 acres in controversy during the twenty-five years immediately preceding July 27, 1961; and (5) plaintiffs have not paid any taxes on the land in controversy for any year during the last twenty-five years preceding July 27, 1961.

Based on the jury verdict judgment was rendered that plaintiffs take nothing and that title be confirmed in the defendants, Veterans Land Board, Everts E. Jackson and William A. Long.

FACTS

Some of the facts have been stipulated by the parties. The common source of title is James P. Moore who died in 1890 owning 270 acres of land including that in controversy. He left as his heirs five brothers, one of whom was Plenry C. Moore, one sister, Amanda Moore String-fellow, under whom plaintiffs claim title, and two half sisters. In 1893 one of the surviving brothers, Henry C. Moore, acquired the interests of all the other heirs of James P. Moore except that of his sister, Amanda Moore Stringfellow, plaintiffs’ mother. Thus Henry C. Moore and his sister, Amanda Moore Stringfellow, became cotenants of the property in controversy.

Amanda Moore Stringfellow died in 1909.

Henry C. Moore died in 1948. By will he left his estate to his three daughters. Through successive conveyances the property here in dispute was acquired by defendants William A. Long and the Veterans Land Board. In 1959 the Veterans Land Board entered into a contract to sell 16.926 acres of the land to defendant Everts E. Jackson.

The record includes a deed from the Estate of Henry C. Moore and his daughters dated May 28, 1948 to Ben Stringfellow (not related to plaintiffs) and his wife, conveying the tract of land in dispute.

The defendants presented as a witness one M. L. Robertson, a real estate broker, who testified that he had lived in the vicinity of the land in dispute for about eighteen years. During that time he had personal knowledge of the land and its fence lines. Ben Stringfellow, now dead, a grantee in 1948 of the land from the William C. Moore Estate, owned the land, had possession of it and claimed it for eighteen years. Robertson testified that the fences had been on the land ever since he had known it and there had been cattle on it; that some of the land was not under fence now, but had been all the years except the last three or four years. He knew Ben Stringfellow and his wife and two sons. Ben String-fellow lived in a house on the land for fifteen to eighteen years. However, when pressed on cross examination Robertson admitted that he had never walked the fence lines, so he did not know absolutely that the land was completely fenced during all that time. He further admitted that Ben String-fellow lived in the nearby town of Carroll-ton when he first knew Ben Stringfellow and that he did not really know how long Ben Stringfellow had lived on the land in controversy.

Included in the record is Defendants’ Exhibit No. 4, which is an affidavit dated February 20, 1948 signed by Maude Holley, a daughter of Henry C. Moore, and E. R. Wolters and M. C. Milliken. Plaintiffs objected to this document as hearsay. The affiants deposed that in 1891 and 1892 the land of James P. Moore was partitioned among the brothers and sisters of James P. Moore; that Henry C. Moore received a tract of land in the partition including the land in dispute; that he immediately went into possession of his land, which was under fence and was occupied, used, cultivated and claimed by Henry C. Moore for more than fifty years. The affidavit contains many other statements in regard to adverse possession which statements are in the nature of legal conclusions.

Also in the record is Exhibit No. 16, a deed dated January 4, 1892 from H. C. Moore, Mary O. Moore, J. H. Bennett, Mary A. Bennett and T. J. Parrish to T. J. Stringfellow, husband of Amanda Moord Stringfellow. This is the instrument which defendants contend is a partition deed whereby Amanda Moore Stringfellow accepted her share of the estate of her brother, James P. Moore, consequently she could not thereafter claim any interest in the land which is the subject of this suit, nor can her heirs do so now.

This alleged partition deed requires further description. It recites a consideration of “Three hundred and two Dollars, paid by T. J. Stringfellow — paid by relinquishment of his claim against the J. P. Moore Estate.” It further recites “and in conveying this land it is done with the distinct understanding that the said T. J. Stringfel-low does release all of his claim on all other parts of the Estate, and he accepts this deed as his share of the said estate as inherited by his wife.” (Emphasis ours.)

It will be noticed that T. J. Stringfellow, not his wife, Amanda Moore Stringfellow, accepted this deed as his share of his wife’s inheritance. Defendants claim that this deficiency in the instrument could not later be urged by Amanda Moore Stringfellow or her heirs, because on January 25, 1893, Amanda Moore Stringfellow, as shown by Exhibit No. 17, joined her husband in conveying the same land to one H. F. Holley. It is defendants’ view that as a result of her executing this deed Amanda Moore Stringfellow ratified the acceptance of the alleged partition deed for her by her husband, and she and her heirs were forever afterward estopped to claim an interest in the land now in dispute.

Several of the plaintiffs testified. But for the most part their testimony went little further than to establish the family relationship among the parties. For many years they have not been on or near the land. Théy have established residences in another stat'e and in other communities: They knew nothing of any claim they might have to the property in dispute until four or five years ago when one of the plaintiffs, now a resident of California, was sent a form of release which he was asked to sign.

One of the plaintiffs, seventy-five years of age at the time of the trial, testified that in his youth he knew Henry C. Moore. The witness then lived on his mother’s farm nearby. When he was about nineteen years of age he heard his uncle, Henry C. Moore, tell a Mr. Kirk that his, Henry’s, sister, Mandy Moore, owned 19 acres that were in his possession. Evidently the jury, judging from the jury verdict, did not believe this testimony.

OPINION

Plaintiffs’ contention is that following the death of James P. Moore in 1890, Henry C. Moore, having acquired all interests in James P. Moore’s estate except that of his sister, Amanda Moore Stringfellow, became a cotenant with his sister, Amanda Moore Stringfellow, of the land in dispute; that the land was never partitioned; and that neither Henry C. Moore nor his successors in title ever acquired the interest of Amanda C. Moore or her successors in title by adverse possession, or otherwise.

In their first ten points on appeal and their twelfth and fifteenth points, plaintiffs assert in effect that the court erred in overruling their motion for instructed verdict; in overruling their objections to the court’s charge; and in rendering judgment for defendants based on the jury's answers because there was either no evidence of adverse possession under Arts. 5510, 5519 or 5519a, Vernon’s Ann.Civ.St., or the evidence was insufficient to support the jury’s answers, that is, the answers were contrary to the overwhelming weight of the evidence.

In our opinion the evidence in this case was insufficient to support the jury’s verdict, or the judgment in favor of defendants.

The affidavits in regard to the ownership, possession and claim of title by'Henry C. Moore by partition and adverse possession are hearsay and in part legal conclusions.

The so-called partition deed of 1892 is on its face insufficient to divest Amanda Moore Stringfellow of her interest in the estate of her deceased brother, James P. Moore. Her husband, T. J. Stringfellow, could not by accepting said deed deprive Amanda of her inheritance. And Amanda did not ratify his purported relinquishment of her inheritance by subsequently joining her husband in conveying to H. F. Holley the land described in the alleged partition deed. There is no showing that she knew of the recitals in the alleged partition deed, or realized their import. Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 232, 136 S.W.2d 207. In the absence of such knowledge there could be no ratification. 2 Tex. Jur.2d 534. Moreover, defendants did not plead ratification o'r estoppel.

The inconsistent testimony of M. F. Robertson does not satisfy the requirement that title by limitation must be established by clear and unmistakable evidence. The authorities are in agreement that one asserting title by limitation has the burden of proving every fact necessary to give such title. The claimant must show use, claim of title, and possession hostile to the claim of another. Monroe, et al. v. Lyons, Tex.Civ.App., 189 S.W.2d 90; Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781, 787; 2 Tex.Jur.2d 367-368. Such proof must be clear and satisfactory, and this is especially true where a cotenancy exists, as it did in this case. Our Supreme Court has said: “The * * * authorities show that possession of a cotenant will be presumed to be in his right as cotenant and that acts relied upon to establish an ouster of his contenants and to start the running of limitation against them must be of such unequivocal nature and so distinctly hostile to their rights that the intention to disseize is clear and unmistakable.” Poenisch v. Quarnstrom, Tex., 361 S.W.2d 367, 370.

So far as appellants’ first ten points and their twelfth and fifteenth points assert that there is no evidence to support the jury’s verdict we overrule them; so far as they assert that the evidence is insufficient to support the jury’s verdict, that is, that the verdict is contrary to the overwhelming weight of the evidence, we sustain them.

In their eleventh and thirteenth points plaintiffs complain that Special Issues Nos. 5 and 6 as drawn erroneously placed the burden of proof on plaintiffs to establish defendants’ pleas of limitation. We do not agree with plaintiffs.

The two issues inquired (S) whether the jury found from a preponderance of the evidence plaintiffs and those under whom they claim “have not exercised dominion or control over the 19 acres in controversy * * * during the twenty-five years” preceding the date of the filing of suit; and (6) whether plaintiffs have not paid taxes on said land for any year of said twenty-five year period. (Emphasis ours.)

Under Arts. 5519 and 5519a it is necessary for one claiming title by adverse possession to show that those holding apparent record title have not exercised dominion or paid taxes thereon-one or more years during the twenty-five year period. Thus the claimant by adverse possession has the burden of proving the negative of the issues. The burden would be erroneously placed on the apparent record title claimant if he were to be required to show by a preponderance of the evidence that he did exercise control or did pay taxes every year during the twenty-five year period. 2 Tex.Jur.2d 373. Appellants’ eleventh and thirteenth points are overruled.

In their fourteenth point plaintiffs say that it was error to submit Special Issue No. 6 because there is no evidence that defendants 'paid any taxes on the property. We agree that there was no such evidence. But the issue did not inquire whether defendants had paid any taxes. It inquired whether plaintiffs had not paid taxes. The fourteenth point is overruled.

Plaintiffs have prayed that we reverse the court’s judgment and render judgment for plaintiffs; or in the alternative that we reverse the judgment and remand the cause for another trial.

Since we have overruled plaintiffs’ “no evidence” points and sustained their “insufficient evidence” points we may not reverse and render; we may only reverse and remand. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Calvert, “‘No Evidence’ and ‘Insufficient Evidence’”, 38 Tex. Law Rev. 361.

Further, we are of the opinion that the facts have not been fully developed in this case and that the cause should be remanded for another trial. Jones v. Guy, 135 Tex. 398, 143 S.W.2d 906, 142 A.L.R. 77.

The judgment of the trial-court is reversed and the cause remanded to the trial court for another trial.

Reversed and remanded.


source: Caselaw Access Project

author: PRESLAR, Justice. FRASER, Chief Justice CLAYTON, Justice

license: Public Domain

text:
    Harold Gene EVERSON et ux., Appellants, v. Nova Noleta BOYDSTON and her husband, Skip Boydston, Appellees.
    No. 5631.
    Court of Civil Appeals of Texas. El Paso.
    March 18, 1964.

      Mike R. Mason, Odessa, for appellants.
    Milburn, Bell, Knight & Barnes, Clyde C. Bishop, Odessa, for appellees.
   PRESLAR, Justice.

This is an appeal from an order of the District Court of Ector County, Texas, sustaining a plea to the jurisdiction of the court and dismissing a suit for child custody. The sole question for determination is one of jurisdiction, and we have determined that the Texas court does have jurisdiction and should hear the case on its merits.

Appellant, the father, was granted a divorce from the appellee-mother by this same Ector County court in February, 1955, in an uncontested action. The two children of the marriage, Patsy Jean, who is. now some 14 years of age, and Paula Kay, who is now 12 years of age, are-the subjects of this custody suit. The divorce judgment approved a property settlement, ordered the plaintiff-husband to pay child support, but as to custody of the children it made no award or order, as such. It simply recites that the parties have agreed that the mother shall have custody. Following the divorce the mother took the children to Oklahoma to her parents’ home. Some months later she requested the father to take them, she says, until she could get a job. Both parties remarried and the children have remained with the father in Odessa, Texas, through -the years except for visits of several weeks’ duration with the mother in Oklahoma. The last such visit, by the younger girl ■only, brought about this custody suit, when the mother refused to allow her return to Texas. The father filed this suit seeking an award of custody of both girls based •on changed conditions. Service was by nonresident citation on the mother in Oklahoma, and she filed a plea to the juris■diction, and appeared for the hearing from which this appeal is perfected.

We think the Texas court has jurisdiction on several bases. Our courts have held that the state in which the chil-idren have their domicile has jurisdiction to determine their custody, and that the •domicile of children of divorced parents follows the domicile of the parent to whom their custody was awarded. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946). We are of the opinion that the mother failed to meet her burden of proof ■on her plea to the jurisdiction, in that she failed to establish the domicile of the •children as being other than Texas. The divorce judgment being silent as to award ■of custody, we think that she took them to Oklahoma by agreement of the parties, and that such agreement was changed by the subsequent agreement by which they were returned to the father in Texas. If the domicile of the children followed the •mother to Oklahoma, under the first agreement, then it changed to Texas under the second agreement. The children have remained in Texas under such agreement for some seven years now, and the record in this case does not show any change of •that agreement. The younger child was in Oklahoma at the time of the hearing, and the older one was in Texas, so that if we assume there was a third agreement ■which changed the domicile of such younger child to Oklahoma or that jurisdiction was lost by its absence from the state, it would ■still be proper for the Texas court to re-fain jurisdiction for custody purposes of both to prevent a multiplicity of suits.

We are of the further opinion that the Texas court could retain jurisdiction even if it can be said that, technically, the domicile of the children is with the mother in Oklahoma. This' for the broader consideration of the welfare of the children. What is best for them is paramount to the rights of the parents, and all other things being about equal, the court best able to make the custody decision should take jurisdiction. Here the children had been in Odessa for the past seven years, the older girl is still there, and the younger one had been in Oklahoma only a short time prior to the filing of the suit. Here were the witnesses and here was where the record was made as to the care or lack of care which they had. The language of Justice Hart, speaking for the Supreme Court in Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187, is applicable here:

“After carefully reviewing the authorities, this court held in Wicks v. Cox, 146 Tex. 489, 493, 208 S.W.2d 876, 878, 4 A.L.R.2d 1, that the ‘technical legal domicile of the child in this state is not a sine qua non of child custody jurisdiction on the part of our courts.’ Whether our courts have and will exercise jurisdiction depends in part upon domicile and also upon broader considerations, including among other things the physical presence before the court of the child and the contesting parties and the general situation affecting the ability of the court to form an intelligent judgment on what will be best for the child’s welfare. Here the facts show that the child and both parents were before the court; the husband is still a Texas domiciliary; most of the relevant facts occurred in Dallas, where the domicile of all of the parties had been until only a few months before the trial, and apparently all important witnesses actually were present and testified. Under these facts we think that the Texas court was in a better position to pass intelligently on the matter of the child’s welfare than the courts of Virginia, and therefore that the Texas court had jurisdiction to award custody.”

The judgment of the trial court is reversed and remanded for further proceedings.

FRASER, Chief Justice

(concurring).

I should like to add a concurring opinion to the majority opinion written by Justice Preslar.

This is simply a matter of jurisdiction but, as in many such cases, the jurisdictional matter involves the welfare of children, a matter about which the Texas courts have long, and rightfully, been very seriously concerned.

As stated in the majority opinion, the trial court in its original decree divorcing the parents did not, by such judicial decree, award the children to either parent. The judgment recites that the parents have agreed that the mother should have custody. However, I have not seen any cases where such agreement would have any effect whatever without the express approval of the trial court. Courts, not parents, decide who shall have custody of children involved in a matter of this nature. Here the court made no such finding, and did not make any finding as to the fitness of the mother to have the children; so at the conclusion of the divorce the only thing involving the care of the children was this agreement between the divorced mother and father; and it is my opinion that this agreement did no more than to permit the mother to have the supervision and care of the children. As stated in the majority opinion, this she shortly surrendered to the father by her own request, and the children then lived in Odessa, where this decree of divorce was handed down, for a period of seven years or more, and apparently for a considerable time before the divorce. To my mind the domicile of the children was and is clearly defined as being in Ector County, Texas. There is nothing in the record, to show that it was ever changed. The presence of the one child in Oklahoma has been brought about simply by the refusal of the mother to return the child to Texas. Some courts have been influenced by decisions holding that a child’s physical presence gives the court of that particular location jurisdiction. I think this is true only when the child needs the attention of the court and some jurisdictional care must be taken of the child in question. But where the child is just on a normal visit and remains there because of the refusal of the parent to return the child to its domicile, this should not, in my opinion, give jurisdiction to any court other than the domiciliary court. If this were not so, any state through which the child might pass or in which it might visit for a few days or weeks could announce that it had jurisdiction, whether the child was in need or trouble or not, simply because of the presence of the child.

Here, the parties submitted themselves to the Ector County District Court for the dissolution of their marriage, and by such action also placed their children in and under the custody and jurisdiction of the Ector County district courts. This jurisdiction has never been surrendered, and to my mind still exists. The only thing contrary to this statement is that the child went on a visit to its mother in Oklahoma, and she refused to return it. I do not believe that this does, or should, deprive the original court of its jurisdiction of children who became, in a manner, wards of the court when their parents submitted their case for divorce to such court.

One of the peculiarities of this case is that the appellant father himself overlooked the actual terms of the judgment of the Ector County court in 1955, and the father apparently believed that the court had awarded custody of the two little girls to their mother. He seemingly entertained this same view when he presented his appeal to this court. But, as stated above, the divorcing court, in 1955, merely recited that the parties had agreed that the mother should have custody. The court did not give legal dignity or judicial approval and effect to this agreement, but did specifically announce and approve the agreement of the parents with respect to the amount of money to be paid by the father for the children’s support. It cannot he overlooked that the court specifically found a certain amount to be proper for the support of the children, but did not make any finding as to the fitness of either parent to have custody, nor did it award custody to anyone. Perhaps the trial court was not ready or willing to so find or hold. This divorcing court having had all parties before it, had the right and the obligation to look to and adjudicate the future welfare of these children. I find nothing in the record that is legally sufficient to cancel or to have canceled the jurisdiction that the Texas court, to my mind, has always had. Having jurisdiction, therefore, of the parties and of the children, the court is empowered and obligated, as it has always been under the state of the record, to adjudicate and pass upon the custody of the children. A suit asking that very thing has been filed, alleging changed conditions.

I further feel that certain elements should he determined, such as the wishes of the children, the fitness of the parents, and many other matters, so that the future welfare of the children can best be regulated. They have lived for the past seven years, and probably a considerable time before the divorce, in Odessa; and certainly that court is in the best position to pass on this matter of custody. In the final analysis it cannot be denied that the welfare of the children is the first and paramount consideration in matters of this sort. The children having lived seven or more years in Odessa before and after the divorce, certainly the court there would be in a position to investigate the welfare of the children during that period of time. He would have available the testimony of school teachers, Sunday school teachers and church authorities, child welfare authorities, friends, neighbors, etc. All of these would surely give useful and valuable information to the court passing upon the question of what should be done about the custody of the children, and whether the present environment is and has been for the best interests of the children.

In conclusion, it must not he overlooked that these young girls lived for seven years in Odessa after the divorce and no one ever agreed, or decreed, that they could or should live anywhere else after they had come back from Oklahoma. This, then, should certainly establish their residence and/or domicile; and certainly, having grown up and lived together, it seems highly unfortunate that they should now, without any apparent wish on their part, be separated and an attempt made to rear them in separate homes. For the above reasons I feel that the District Court of Ector County had, and has always had, and has now, exclusive jurisdiction to determine the proper custodian for these two girls. I therefore respectfully submit this concurring opiniori.

CLAYTON, Justice

(dissenting).

I respectfully dissent, in part, from the conclusion reached by my colleagues herein. I would reverse the judgment of the trial court in so far as it held that it had no jurisdiction to hear the matter of custody of the older child, Patsy Jean Everson, and remand this part of the cause for trial on the merits; but I would affirm that part of the judgment that found no jurisdiction to hear the cause as to the younger child, Paula Kay, who was apparently in Oklahoma at the time of these proceedings.

In the first place I am not convinced that the judgment of the court that granted the then parties a divorce was not sufficient also to grant custody of the two children to the mother. That judgment recites that the parties had agreed that the defendant mother was to have the custody of the children with the right of the plaintiff father to see the children at all reasonable times and places. The judgment then ordered the plaintiff to contribute a certain sum monthly for the' support and maintenance of the children until further order of the court. While the judgment did not expressly approve the agreement as to custody or by precise wording grant custody of the children to the mother, such a judgment in Duff v. Collins, 225 S.W.2d 213 (Civ. App., Ref., N.R.E.) apparently was construed as an award of custody. The parties here treated it as such, and the father (appellant here) alleges in his “Petition for Change of Custody” that in the decree of the divorce court “the said defendant, Nova Noleta Boydston (then Everson) was granted the custody of the two minor children”. No deficiency of the decree in this respect was ever raised by the parties, even on this appeal.,

If such decree served to grant custody of the children to the mother, then under the authority of Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551 (1946) the domicile of the children became the mother’s domicile, which under the facts of' this case was satisfactorily shown to be in Oklahoma. The same authority further-held-that-jurisdiction to award (and probably to change) custody of a minor child depended upon the domicile of the child. This rule was enlarged, however, by the holding of ’the Supreme Court in Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1 (1948),' which was to--the effect that our courts need not decline- jurisdiction in custody cases whenever it appeared that the legal domicile of the child was in another state, and further, that technical legal domicile of the child in Texas was not a sine qua non of child custody jurisdiction on the part of our courts. Worden v. Worden, 148 Tex. 356, 224 S.W.2d 187 (1949) held that other matters to be considered, besides domicile, included physical presence before the court óf the child and contesting parties, and Ex parte Birmingham, 150 Tex. 595, 244 S.W.2d 977 (1952) held that:

“ * * * Except where the child is domiciled or physically present within the state, we have yet to hold our courts to be vested with custody' jurisdiction, while considerable authority from other-sources has expressly rejected jurisdiction where both of these prerequisites are lacking, and this although the contending parents may both be before the court.” (Citing cases). (Emphasis supplied).

And DeLaughter v. DeLaughter, Tex.Civ.App., 370 S.W.2d 207 (1963), (Ref., N.R.E.), which reviewed the various authorities,, adds:

“It is our further view that where tiie only basis for jurisdiction is the fact of the physical presence of the child in this state, that such physical presence relates not merely alone to the time when the custody suit was filed but also in particular relates to the time of the hearing by the court.” (Emphasis supplied).

Applying these authorities, then, to the facts of the present case as I deem them to be from the record, I would hold that the Texas court had jurisdiction to hear the matter of custody as to Patsy Jean Everson, the elder child who was physically present in Texas even though her technical domicile was probably in Oklahoma, and I would reverse the judgment in this cause in this respect and remand the same to the trial court; bpt I would affirm the finding of lack of jurisdiction of the trial court as to Paula Kay, who I say was neither domiciled nor actually present in Texas at the time of these' proceedings in the trial court. Another quotation from the Birmingham case, supra, emphasizes my position here:

“It cannot, in our opinion, be said that in effect the children were present . in the forum as a result of having resided (if they • actually did so) in Bowie County for some six months and up until only a day before Mrs. ■ McCullough brought' her suit. Assuming, as we may do against her interest, that she truthfuly 'alleged relator to . have taken them 'away, 'he had power , as custodian to do as much, and wheth- ' er he did so a day or a week or a month before suit was filed is immaterial, as is • also the fact, were it established, that he did so surreptitiously.”

However, if it is to be held that the divorce decree did ' not effectively grant custody of the children to their mother, the ultimate result herein would be the same. If there was no award of custody, the mother’s rights, until adjudicated otherwise, would at least be equal in law to those of the father. No suit of any kind was pending at the time the mother refused to allow Paula Kay to return to Texas. The mother’s refusal was nothing more than was her right, even though it might result in depriving a Texas court of jurisdiction over the child.

I must add that I am in entire accord with the expression of the majority of this court that the welfare of the children in this, as in any other custody matter, is of primary consideration. But I am constrained to follow the pronouncements of our Supreme Court in such matters, until they may be altered, in order to effect standardized rules of law and procedure and avoid, in so far as possible, a conflict of jurisdictions. Nor do I fully agree with the finding of the majority of this court, inherent in their decision, that the Texas court is necessarily in a better position to judge of the best interests and welfare of these children than an appropriate court in Oklahoma. The nature of this suit is for the award of custody because of changed conditions since the time of the original divorce decree. In support of his prayer, the father alleges that the mother, during the time that the children were with her (which was during the time that they were in Oklahoma), was guilty of certain misconduct toward and neglect of the children, and that she kept them in an environment that was not good for the children. Surely this must be proved, in part at least, by persons resident in Oklahoma, or acts which took place there, which matters are more readily presentable to an Oklahoma court. Furthermore, it may be said in criticism of the father herein that, after he presumably had. come into knowledge of the circumstances alleged in his petition, he allowed the children to be returned to Oklahoma on “visits” to their mother, and apparently made no attempt while the children were with him to remove them from the alleged harmful influences of which he complains, such as by requesting a court to re-examine the issue of custody because of changed conditions.

As stated, I would reverse in part and remand with instructions, and affirm in part.


author: WILLIAMS, Justice.

text:
    MOONEY AIRCRAFT, INC., Appellant, v. Mrs. George Barton ADAMS et al., Appellees.
    No. 16360.
    Court of Civil Appeals of Texas. Dallas.
    March 20, 1964.

      Hal Rachal, Midland, for appellant.
    Woodruff, Hill, Bader & Kendall and Wm. Andress, Jr., Dallas, for appellees.
   WILLIAMS, Justice.

The sole point presented by this appeal involves the propriety of the action of the trial court in sustaining motion for summary judgment directed against appellant’s plea of privilege.

On February 13, 1963, Frank H. Abel and George Barton Adams were killed in the crash of an aircraft which had been manufactured by appellant, Mooney Aircraft, Inc. Mrs. George Barton Adams, on her own behalf and on behalf of those other persons entitled to recover for the death of George Barton Adams, under the wrongful death statutes of the State of Texas, filed suit in the 116th District Court of Dallas County, Texas against appellant, appellee Mrs. Mary Frances Abel, Independent Executrix of the Estate of Frank Abel, Deceased, and others, said cause being numbered 77505-F. Mary Frances Abel filed a separate and distinct suit, both individually and as independent executrix of the estate of Frank H. Abel, deceased, against appellant, and others, seeking recovery for his death, said suit being filed in the 134th Judicial District Court and being numbered 78010-G. Thereafter, in each of the suits, appellant filed a plea of privilege, in statutory form, seeking to remove said causes to the District Court of Kerr County, Texas. In each of said cases a controverting affidavit was filed opposing the plea of privilege. Prior to a hearing on either of the pleas of privilege, appellant filed a motion in Cause No. 78,010-G, in the 134th District Court, to consolidate the two cases. This motion was granted and the court entered an order consolidating the two named cases into Cause No. 77,505-F/E, in the 101st District Court of Dallas County, Texas. Thereafter, appellee Mrs. George Barton Adams filed her motion for summary judgment on the plea of privilege, asserting as grounds for the motion: (a) that appellant, by filing its motion to consolidate, had invoked the affirmative jurisdiction of the court and had waived its plea of privilege, and (b) that under the affidavits, answers to interrogatories, and pleadings, appellee had established a cause of action against the estate of Frank H. Abel, deceased, who was a resident of Dallas County, and which estate was pending in Dallas County; and therefore, under Subdivision 4 of Art. 1995, Vernon’s Ann.Civ.St., venue was properly maintainable in Dallas County against appellant. Upon hearing of said motion the District Court sustained same and entered an order overruling the plea of privilege of appellant.

Appellant’s only point on appeal is: “The trial court erred in sustaining appel-lee’s motion for summary judgment on appellant’s plea of privilege.” Both appel-lees contend that this point does not comply with the requirements of Rule 418 Texas Rules of Civil Procedure, in that it is too general and does not direct the attention of the court to the error relied upon. We agree with the appellees in this regard. Appellant’s brief, following its point, is likewise extremely general in nature. While we agree that there is great virtue in brevity, yet it is likewise true that brevity, when spread too thin, approximates obscurity. We have had occasion to discuss the sufficiency of similar points in other cases. In each of them we have held that such a general point does not meet the requirements of the briefing rules. White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S. W.2d 793; Little v. Employees Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517; and Covington v. City of Denison, Tex.Civ.App., 369 S.W.2d 824. However, in an effort to give liberal construction to the rules we will, when possible, discuss the grounds as we understand them upon which appellant apparently relies to support his appeal, as disclosed in the statement and arguments accompanying his point. Wyche v. Noah, Tex.Civ.App., 288 S.W.2d 866; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. Following this policy, we have carefully examined appellant's brief and find that there is no statement following its point on appeal but under “Argument” we find a number of cases cited and relating to several propositions of law. Not without difficulty we have been able to ascertain, with reasonable certainty, that it intends to present two points to challenge the trial court’s judgment: (1) that its motion to consolidate the two causes, together with the court’s action thereon did not constitute a waiver of its pleas of privilege; and (2) that the affidavits attached to the motion were insufficient, as a matter of law, to comply with the provisions of Rule 166-A (e) T.R.C.P.

The primary question is that of waiver vel non of appellant’s plea of privilege. After careful consideration of the factual situation presented by this record we have concluded that appellant, by his own action in invoking the general jurisdiction of the court by its motion to consolidate the two causes, has effectively waived its plea of privilege.

It has long been the law of Texas that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. The matter of venue is a personal privilege which may be waived. 43-B Tex.Jur., Sec. 113, Pages 301-303; McDonald, Texas Civil Practice, Vol. 1, Sec. 4.40, Pages 426-432; Clark, Venue in Civil Actions, Sec. 6, Pages 6-9; Masterson v. Cundiff, 58 Tex. 472; O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791; Everts v. Garlington, Tex.Civ.App., 117 S.W.2d 820; Mahler v. J. R. Watkins Co., Tex.Civ.App., 120 S.W.2d 459; Texas & Pacific Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652.

The accomplishment of a waiver of venue privilege may be either express or implied. An express waiver is shown by clear, overt acts evidencing an intent to waive. The determination of an implied waiver presents more problems than that of-an express waiver. An implied waiver occur? ,-wihen party, often inadvertently, takes some action inconsistent with his position upon the venue issue and therefore is held, to have, waived his rights thereon. McDonald,. Texas . Civil Practice,. Vol. 1,, Sec. 4.40, Pages 426-427.. It has been conclusively established that the inconsistent action .resulting in waiver is one which invokes the. general jurisdiction of the court without reservation of rights asserted by the filing of the plea of privilege. Thus our courts have said that when the party seeking a change of venue does not first secure a ruling on the plea of privilege its benefits may be waived by submitting, for determination by the court, a plea in abatement; O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791; Texas & Pacific Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652; Guinn v. County School Trustees of Hays County, Tex.Civ. App., 261 S.W.2d 913; by pleading to a cross action in which affirmative relief is sought; Douglas v. Baker, 79 Tex. 499, 15 S.W. 801; Atwell v. Talk, Tex.Civ.App., 202 S.W.2d 314; by asking for and obtaining a continuance; Sack v. Toplitz, Tex.Civ.App., 165 S.W.2d 756; by invoking rule for cost; Barrett v. Cheatham, Tex.Civ.App,. 281 S.W.2d 761; and by invoking the judgment of the court on any action not incident to or pertaining to the plea of privilege and otherwise submitting to the jurisdiction of the court. Citizens State Bank v. First Nat. Bank, Tex.Civ.App., 293 S.W. 913; Burka Bagging Co. v. State, Tex.Civ.App., 131 S.W.2d 1111; Fairbanks v. McAllen, Tex.Civ.App, 170 S.W.2d 581; and Smith v. Strauch, Tex.Civ.App, 96 S.W.2d 554. See also 43-B Tex.Jur, Par. 113, Pages 301-303 and McDonald, Texas Civil Practice, Vol. 1, Sec. 4.40, Pages 429-431.

While we have been cited no Texas case, nor have we been able to discover any as a result of our research, holding directly that a motion to consolidate amounts to an implied waiver of a plea of privilege, we think the opinion of the Commission of Appeals in O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791 is determinative of this question; In. that case two suits were pending and pleas of privilege had been filed. Prior to hearing the pleas of .privilege a plea in abatement had been filed asking the court to abate the One suit pending hearing another, and subject’ thereto, a motion to consolidate was filed; asking that both cases be consolidated and tried together. The question presented to the Commission of Appeals was whether these actions amounted to a waiver of the pending pleas of privilege. Judge Nickels, speaking for the court, held that the filing of the plea in abatement constituted a waiver of the plea of privilege, using the following language;

“The matter of abatement on account of another suit (earlier filed) pending involved judicial inquiry about facts dehors the record (in the suit sought to be abated) as precedent to judicial action possibly terminating the suit then before the court. Appellant tendered the relevant issue of fact and law and procured judgment thereon. In doing so, he acted, ex vi necessitate, upon presupposition of jurisdiction to determine the issues and to end the suit. The relief thus sought is wholly alien to that sought in mere effort to change the venue which proceeds on a theory that a suit should not be ended, but, contrarily, should be transferred to another district for trial and disposition upon pleas in abatement, bar, merits, etc.
“[1] A ‘plea of privilege’ is one of venue and of personal privilege, and, per force, waivable at pleasure.
“[2] We do not hold that mere filing of a plea in abatement (of the kind shown here), even though the question as to privilege of venue be not expressly saved in the plea amounts to a waiver; what we do hold is that, if such a plea with its issues be actually submitted for determination before action on the plea to venue, there is submission to jurisdiction of the court with consequent waiver of the latter plea.”

Judge Nickels concluded the opinion by stating that since they had held the plea in abatement to constitute a waiver that it was not necessary to pass upon the question of motion to consolidate. We think the reasoning of the court in this case, relating to a plea in abatement, bears equal weight on the question of motion to consolidate. In each instance the general jurisdiction of the court is invoked on matters other than the venue question.

The question presented by motion to consolidate two cases is much broader than that of venue. Rule 174 T.R.C.P. provides that when actions involving a common question of law or fact are pending before the court that the court may order a joint hearing or trial of any or all of the matters in issue in the actions; that the court may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. To answer the questions presented on a motion to consolidate the trial court must, of necessity, consider all questions of law and fact to arrive at a conclusion as to whether a consolidation would be in the best interest of justice in that particular case. The decision necessarily involves areas outside the question of venue. The rule bestows upon a trial judge broad discretionary powers in the matter of consolidation of causes. The granting or denial of a motion to consolidate two causes, invokes the judicial power of the court. It is not a mere ministerial act. The broad judicial discretion vested in a trial judge to determine that a motion to consolidate should be denied or granted will not be disturbed on appeal except for abuse of discretion. Hamilton v. Hamilton, 154 Tex. 511,. 280 S.W.2d 588; Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438; Montgomery v. Willbanks, Tex.Civ.App., 202 S.W.2d 851.

The motion of appellant to consolidate the two causes is general in nature and does-not restrict the court’s consideration to consolidation for venue purposes only. It is a. general motion invoking all the rights and powers of the court on all questions of law and all questions of fact. No effort was-made by appellant to limit the consideration of the court in considering this motion to-venue questions nor to reserve its rights-to have the venue questions heard in advance of a hearing on the merits.

By its action in granting appellant’s motion to consolidate the two causes the trial court must be said to have considered all of the issues to reach a determination that it would be in the ends of justice to put the two cases together for trial. Having thus invoked the general jurisdiction of the court on matters dehors the venue issues appellant effectively waived his venue rights.

‘NO. 78010-G

What we have said renders immaterial the other question pertaining to the sufficiency of appellees’ affidavits. Even so, and in the event it should be held we are in error in our conclusions announced herein, we have carefully considered the entire record before the trial court and find that, even aside from the affidavits complained of by appellant as being insufficient to comply with Rule 166-A(e) T.R.C.P., there is sufficient evidence in the form of the uncon-troverted pleadings, requests for admissions and answers thereto, which clearly establish the applicability of Subsection 4, Art. 1995 V.A.C.S., and such being true the trial court correctly sustained the motion for summary judgment as to venue. Rule 166—A T.R.C.P.; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Appellant’s point is, in all things overruled.

Affirmed.

      .MARY PRANCES ABEL,

      MOTION TO CONSOLIDATE
      TO SAID HONORABLE COURT:
      Mooney Aircraft Inc., Defendant in the above entitled and numbered Cause makes motion to consolidate this Cause with Cause No. 77505-P which is now pending in the 116th Judicial District Court of Dallas County, Texas for the following reasons:
      1. Both actions arose out of the same incident.
      2. Both actions are against the same Defendants.
      3. Both actions involve the same fact questions and same law questions.
      Premises considered, this Defendant prays that this Cause be consolidated with Cause No. 77505-P which is now pending in the 116th Judicial Court of Dallas County, Texas.
      /s/ Hal Raehal
      Hal Raehal
      Box SOI
      Midland, Texas
      ATTORNEY POR DEPENDANT, MOONEY AIRCRAFT, INC.”


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Glen E. CROW, Appellant.
    No. 49722.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Phillip C. Houx, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Glen E. Crow, appellant, in pro. per.
   STOCKARD, Commissioner.

In this case, which comes to the writer upon reassignment, Glen Eugene Crow was found guilty by a jury of burglary, second degree, and of stealing, and after finding that he had previously been convicted and sentenced for the offense of stealing chickens in the nighttime and attempt to break jail as alleged in the amended information, punishment was fixed by the trial judge at imprisonment for ten years for the burglary and five years for stealing, the two sentences to run concurrently. Sentence and judgment followed and defendant has appealed to this court.

The jury could find from the evidence that defendant, with three others, broke into and entered a building known as the Carthage Foundry, which belonged to R. E. Jansen, and stole six dollars from an unlocked safe. One of the participants, Fred Shropshire, testified for the State and related in detail defendant’s participation in the burglary and the theft. Defendant’s evidence presented the defense of alibi, but he did not testify.

At the time of the arraignment and during the trial defendant was represented by employed counsel of his own selection. The verdict was returned on March 6, 1962, but the trial court deferred “setting the amount of punishment” until March 14. The transcript before us does not show that a motion for new trial was filed or that an extension of time to file a motion was requested or granted.

On March 17, 1962, defendant’s counsel wrote to the clerk of the trial court as follows : “Please inform Judge Oldham that I have withdrawn as attorney for Glen Crow in the three criminal cases pending against him.” There is nothing in the transcript to show that this information was furnished to defendant or that the withdrawal of counsel at this crucial stage of the after-trial proceedings was by leave of court. On April 24, 1962, defendant was brought before the court for allocution and sentencing. His trial counsel was not present, and he was not represented by other counsel. Although such after-trial pleading has been abolished, Supreme Court Rule 27.21, V.A.M.R., defendant presented to the court a document entitled “Motion in Arrest of Judgment” prepared pro se in which he requested an order “arresting the judgment of conviction and sentence in the above entitled cause.” This motion was overruled. During the discussion which occurred at this time, the trial court commented that no motion for a new trial had been filed. Defendant then stated: “Your Honor, I mailed one to [from?] the county jail, I have a copy of it, March 22.” The transcript then shows that he handed a paper to the court who remarked, “There was no such motion filed such as shown by the records of the court, and I received no copy of the motion.” Defendant replied, “All I can do is to put it in the mail. That is all I am required to do. I can’t deliver it.” The contents of the paper which was handed to the court are not shown in the transcript.

The trial court then asked defendant if he had “anything else to say before sentence is pronounced upon you,” and the following occurred.

“Mr. Crow: Yes. I think I am entitled to counsel here.
“The Court: Mr. Crow you fired your counsel, isn’t that correct?
“Mr. Crow:- No, not in this case, on the other two remaining cases I asked him to withdraw, but he has' never notified me that he officially withdraws from any case.
“Mr. Pyle: [the prosecuting attorney] The attorney representing Mr. Crow indicated to the court and indicated to me on whatever date the record shows, that he was no longer employed, but had been requested to not represent Mr. Crow in any further proceedings.
“The Court: That is the situation, and the court was notified in writing of that.
“Mr. Crow: Somebody should notify me.
“The Court: And the notice which the court received showed the posting of the notice to you, and it wasn’t his withdrawal. It was your discharge of him.
“Mr. Crow: Not in this case. I specifically made it clear that I wanted him to remain in this case. I believe I wrote the court two different letters concerning that same thing and made it clear in both of them that I didn’t intend to have him withdraw from this.
“Mr. Pyle: Then why was it you found it necessary to file a motion for new trial? Why didn’t your attorney do it? You have been filing all sorts of motions ever since this trial.
“Mr. Crow: I don’t know what he is going to do, and I take it upon myself in the event he doesn’t, and he has not done anything in it yet. He refuses to answer letters and tell me what is going on or what has happened in the other two charges. I still don’t know what has happened to them.
“Mr. Pyle: He wasn’t the court appointed attorney. He was the attorney of the defendant’s choice.
. ' “Mr. Crow: I am entitled to full representation. . ' '
“Mr. Pyle: He is a competent, qualified lawyer and should be before the court and represent you.
“Mr. Crow: I have never been advised by anybody what happened to the other two cases, * *
“The Court: I will deal with that in just a second. In the matter of your being represented I have at least one letter, and I think two, from you, definitely stating that Mr. Graves is discharged as your attorney, and that he no longer represents you in this or any other case, and that you requested the court to permit you to represent yourself. Those letters are in my file at , Joplin. * *

The trial court then explained to defendant the status of two other cases involving charges against defendant and entered judgment and sentence in this case.

The transcript does not contain a motion for new trial, and for that reason our review is limited to those matters upon the record before us. Supreme Court Rule 28.02, V.A.M.R.; State v. Bearden, Mo., 245 S.W.2d 838. In his brief defendant purports to raise several constitutional questions, some of which were not at any time presented to the trial court, and none of which were presented in a motion for new trial as far as shown by the record, and for that reason, if not because of the limited scope of our review, they are not preserved for appellate review. State v. Barnes, Mo., 345 S.W.2d 130; State v. Griffin, Mo., 339 S.W.2d 803, certiorari denied, 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849; State v. Malone, Mo., 301 S.W.2d 750. However, in his brief defendant does challenge the sufficiency of the amended information. We shall examine his contentions and also the entire amended information, see Supreme Court Rule 28.02, V.A.M.R., to determine its sufficiency, including allegations pertaining to prior convictions. State v. Kiddoo, Mo., 354 S.W.2d 883.

The amended information, insofar as it charges defendant with burglary, second degree, and with stealing is in the form which has repeatedly been approved, and is sufficient. See State v. Edmonds, Mo., 347 S.W.2d 158; State v. Zammar, Mo., 305 S.W.2d 441. Defendant makes no challenge of this portion of the amended information. He does contend that the allegation therein that he had previously been convicted of the misdemeanor of attempt to break jail results in the amended information being fatally defective insofar as it purports to invoke the procedure in his trial provided for by Section 556.280, (all statutory references are to RSMo 1959, V.A.M.S.), known as the Habitual Criminal Act.

That portion of Section 556.280 which is material is as follows:

“If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony, he shall be tried and if convicted punished as follows: *

We note that while an attempt to break jail is a misdemeanor, see Section 557.410, the offense of breaking jail, either before or after conviction, see Sections 557.380 and 557.390, is punishable by confinement in the penitentiary. Therefore, it would appear that it was alleged that the defendant was convicted of “an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary.” However, we see no occasion to rule on what is an academic question under the facts of this case. In the amended information it was alleged that defendant had previously been convicted and sentenced for the offense of stealing chickens in the nighttime, which is a felony and which is punishable by confinement in the penitentiary. See Section 560.161. This allegation was proved by competent and substantial evidence, and the trial court, after a hearing on this issue outside the presence of the jury found the facts as alleged. Therefore, the procedure of trial and the determination of the punishment as set forth in Section 556.280 was properly invoked in the trial of this case regardless of whether or not the allegation of the other offense was proper. In any and every event its allegation, the proof thereof, and the finding in respect thereto was surplusage. State v. Broaddus, 315 Mo. 1279, 289 S.W. 792; State v. Dickhout, 324 Mo. 1194, 26 S.W.2d 937; Gemignani v. United States, 6 Cir., 9 F.2d 384; 42 C.J.S. Indictments and Informations, § 145(c). Proof of these prior convictions is not made before the jury and therefore the reasoning of State v. St. Clair, Mo., 261 S.W.2d 75, pertaining to the prejudicial effect before a jury of the proof of an unauthorized previous conviction would not apply. But, in any event, on this appeal we are limited to determining the sufficiency of the information, and we rule that the amended information in this case was sufficient.

Defendant also challenges the sufficiency of his allocution, a matter we examine pursuant to Supreme Court Rule 28.02, and we are convinced that there are two reasons why the judgment in this case must be reversed and the cause remanded for allocution.

At the time of allocution defendant advised the court that on March 22, 1962, he had mailed a motion for new trial from the jail where he was confined. From the record it appears that he then handed the trial judge a copy of that motion. Who commented that no such motion had been filed as shown by the records of the court and that he personally had received no copy of the motion. Nothing was said about the fact that the alleged mailing occurred sixteen days after verdict, and that the motion was untimely if no extension pursuant to Supreme Court Rule 27.20 had been granted. The matter was disposed of solely on the basis that no copy reached the clerk or the judge regardless of the reason. Yet on March 22 defendant was in jail, and according to the trial judge, he had no counsel and was acting as his own attorney, although that is a factual issue we cannot determine from the record. When the defendant was in the jail he was in the custody of the sheriff, and he had to rely on the sheriff or the other officials to cooperate, or at least not to interfere, in his attempt to transmit the motion for new trial to the office of the circuit clerk. At the time of allocution when this matter was presented, the trial court should have, determined the factual issue, and made a record of its findings, of whether such motion, if mailed at the time defendant asserted it was, would have been timely, and if so, whether its failure to reach the clerk was the result of any unlawful interference on the part of public officials. See State v. Taylor, 301 Mo. 432, 256 S.W. 1059; State v. West, Mo., 270 S.W. 279. An alternative action would have been to incorporate into the record the copy of the motion for new trial, if in fact one was presented by the defendant to the court at that time, and if, as a matter of law, each assignment of error therein was without merit, defendant could not have been prejudiced by the fact the motion was not filed, regardless of the reason. However, as the record before us stands, it shows that at the time of allocution defendant presented a factual situation which, if found by the trial court to have been as he asserted, could have resulted in sufficient legal cause why judgment and sentence should not have then been pronounced.

The record also shows that at the time of allocution defendant stated that he wanted counsel present, and he denied that he had discharged his counsel in this case. Whether or not the trial court correctly came to the conclusion that defendant had discharged his counsel cannot be determined from the record, and we cannot look to the contents of letters not in the record. The withdrawal of counsel under the circumstances here was, as far as shown by the record, without notice to defendant and at a crucial time in the after-trial proceedings. See generally, 23 C.J.S. Criminal Law, § 979 (7). In view of the provisions of Supreme Court Rule 4.44, V.A.M.R., when a withdrawal of counsel occurs under circumstances similar to those here, both counsel and the court should be careful to see to it that a proper and complete record is made. Absent some showing that the situation was brought about by misconduct of defendant, or at his express request, or some similar satisfactory reason, defendant was entitled upon request to be represented by counsel at allocution and sentencing. See the discussion of this in Martin v. United States, 182 F.2d 225, 20 A.L.R.2d 1236, certiorari denied 340 U.S. 892, 71 S.Ct. 200, 95 L.Ed. 647, and in 24 C.J.S. Criminal Law § 1574 at pp. 512-515. We must necessarily conclude that from the record before us that defendant was entitled to counsel of his own selection or by court appointment at the time of allocution and sentencing.

We do not purport to express any opinion concerning the truthfulness of the contentions made by defendant at the time of allocution. That is an issue of fact to be determined by the trial court. However, by reason of recent developments in the field of habeas corpus and post conviction review, it is becoming increasingly essential that at the time of allocution a complete record be made of the rulings, and the factual basis therefor, on contentions of the defendant which, if made subsequently in an application for habeas corpus or for relief pursuant to Supreme Court Rule 27.26, would require a hearing. A thorough discussion of recent decisions of the federal courts, with suggested procedures, which by analogy are helpful in state criminal proceedings, are to be found in the Report of Judicial Conference Committee on Habeas Corpus and in a collection of articles printed in 33 Federal Rules Decisions 363-505, entitled “Applications for Writs of Habeas’ Corpus and Post Conviction Review of Sentences in the United States Courts.”

The judgment is reversed, and the cause is remanded to the trial court with directions that the defendant be brought before the court for allocution, and such subsequent action by the court as may be determined to be proper in view of such facts and circumstances as may then and there be developed.

BARRETT, C, and PRITCHARD, C., concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the judges concur.


author: HOGAN, Judge.

text:
    W. M. CRYSLER COMPANY, a corporation, Plaintiff-Appellant, v. Charles SMITH, Defendant-Respondent.
    No. 8240.
    Springfield Court of Appeals. Missouri.
    March 26, 1964.

      Franklin D. Holder, Kennett, for plaintiff-appellant.
    Charles M. Cable, Cable & Stephenson, Kennett, for defendant-respondent.
   HOGAN, Judge.

This action was brought to recover a deficiency judgment. The defendant filed a motion to dismiss the action on the grounds that a prior suit upon the same cause of action had been dismissed for failure to prosecute, and that the dismissal constituted a prior adjudication upon the merits. After hearing evidence, the trial court granted the motion and dismissed this cause. The plaintiff has appealed.

The pleadings in the first action are not before us, but it is conceded that in both the earlier case and the present one, the cause of action and the parties were identical. In this last action, begun on January 29,. 1963, the plaintiff’s petition recited its corporate existence, the execution of an in-stalment note by defendant to the plaintiff",, subsequent default by the defendant, exhaustion of the security, and the existence of an unpaid balance due on the note. The plaintiff alleged demand and refusal to pay, and prayed judgment for the balance due.

The defendant’s motion to dismiss specifically set out in this present case that (1) a prior suit upon the same cause of- action (reciting the style and number) had been begun in the same court on November 18, 1960, and that personal service had been obtained on the defendant; (2) on May 17, 1962, “after due notice to plaintiff,” the trial court had dismissed this earlier action for failure to prosecute; and (3) the first order of dismissal was, in legal effect, a dismissal with prejudice, and therefore was res judicata as to the second or present case.

The trial court heard evidence on the instant motion to dismiss on two occasions. Through the testimony of the circuit clerk, a Mr. Ross, and by reference to the court’s files and its permanent record, it was established that on November 18, 1960, the plaintiff had declared upon the same cause of action through a different attorney, and subsequently service was obtained on the defendant. On December 27, 1960, the defendant filed an alternative motion to dismiss or to make more definite and certain. The record before us does not indicate for what reason the cause failed to progress to trial, but it does appear that nothing further was done with the case until May 14, 1962, when it was dismissed for failure to prosecute. The permanent record of the circuit court revealed that at that time this entry had been made: “Now on this day, cause dismissed for failure to prosecute.” There is nothing in this record to show that the case was ever placed on any motion docket or that any request was ever made that the motion be disposed of. Neither the trial court’s .record nor the case file contained any copy of any notice, or notation of any notice, given before the order of dismissal was entered. It does appear that after the order of dismissal had been entered, a copy was sent by mail both to the attorneys for the plaintiff and for the defendant on May 17, 1962.

Mr. Ross, who had been circuit clerk since 1947, testified that in April 1962 (he was not certain as to the precise date) the trial court entered an order that all “old and inactive” cases would be set for hearing', or called, on May 14, 1962, so that some disposition could be made of them. As we understand the record, there was no local rule governing the procedure to be followed in dealing with inactive matters, but during the course of the trial the court interjected that “during the past eight or ten years” it had been the court’s “custom” to dismiss cases which had been inactive for a year or more on an “annual dismissal day.” The April 1962 order did not specify how old a case would be considered “old and inactive,” but the clerk, attempting to implement the order and acting upon his understanding of the trial court’s customary practice, went through the docket on his own initiative and “fixed one year as the dead line, that was on my own, and notified every firm that had a case that was on the docket that was a year old * * * that this order had been made, and on May 14th these cases would be called.”

It is clear from the record that Mr. Ross believed a notice of the proposed hearing— that of May 14, 1962 — was sent to the attorneys representing the plaintiff sometime prior to the hearing and dismissal on May 14, 1962, but the evidence is not at all clear as to the content of the notice or the manner in which it was transmitted. No copy of the notice made up by Mr. Ross appears in the record and, in explaining what the notice recited, Mr. Ross stated that “[it] was a general notice to the firm, it did not specifically list any lawsuit, it was just a general notice that all cases that were a year old on that day would be called. * * * ” While the clerk testified that such a notice was transmitted, we find no positive statement establishing whether it was mailed, or if it was to whom it was mailed, or how it was addressed. Mr. Ross testified that “it could have been” that he notified the plaintiff’s attorneys by telephone; he had, however, no record to indicate that he had actually done so, and he seems not to have been sure that he telephoned them at all. On the other hand, there is no substantial controversy as to the notice given subsequent to, the order of dismissal. The trial court’s case file contained a copy of the order of dismissal which had been mailed both to the attorneys for the plaintiff and for the defendant on May 17, 1962, three days after the first action had been dismissed. Mr. Ross testified that no communication of any sort had been received since that time from the plaintiff’s former attorneys, and there was no record of any request for action by the trial court upon the part of the plaintiff’s former attorneys.

Before proceeding to the merits of this appeal, we must deal briefly with two preliminary matters, the first of which is our jurisdiction. The question upon which this case turns is whether the plaintiff or its attorneys received a reasonable notice and opportunity to be heard in connection with the trial court’s dismissal of the first action. Rule 67.03 provides in part that “ * * * any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.” On its face, therefore, the order in question would operate as a dismissal with prejudice. However, due process requires that the plaintiff be given notice and an opportunity to be heard before a dismissal for failure to prosecute will operate as a dismissal with prejudice and as an adjudication on the merits, whatever the order recites. Crispin v. St. Louis Pub. Serv. Co., 361 Mo. 866, 869-870, 237 S.W.2d 153, 155-156 [1] [2, 3]; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 37-38, 213 S.W.2d 387, 391 [5-7] [8] ; Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 617 [3-5], Thus, in one sense, this case turns on whether the appellant plaintiff was afforded due process when the first case was dismissed, and if the construction of the federal constitution or the Missouri Constitution of 1945 is involved, then exclusive appellate jurisdiction of this appeal is in the Supreme Court. Const, of 1945, art. V, § 3, V.A.M.S. Still, the jurisdiction of the Supreme Court is not invoked by the mere fact that a constitutional question inheres in the case, or may be argumentatively inferred from the facts, City of St. Louis v. Butler Co., 358 Mo. 1221, 1229, 1233, 219 S.W.2d 372, 378, 380. If the appellant wishes to invoke the jurisdiction of the Supreme Court on constitutional grounds, he must, among other things, explicitly designate the constitutional provision which he claims has been violated, and he must adequately cover the constitutional points in his brief. Cirese v. Spitcaufsky, Mo., 259 S.W.2d 836, 838 [1] [2]; City of St. Louis v. Butler Co. supra, 358 Mo. at 1227, 219 S.W.2d at 376 [5, 6]; Baker v. Baker, Mo.App., 274 S.W.2d 322, 325 [5-9], On this appeal, the plaintiff has neither specified any section or article of the federal or state constitution as having been violated, nor has he briefed any constitutional question. Since this is true, and since the question whether there was proper notice in a particular case is ordinarily a fact question, Greene v. Greene, Mo., 368 S.W. 2d 426, 428 [1-7], Baker v. Baker, supra, 274 S.W.2d at 325, we somewhat hesitantly have resolved that we have jurisdiction.

Further, we should briefly notice the posture of the case on appeal. The plaintiff filed no motion for new trial, but appealed directly from the trial court’s order dismissing the second action. Such a procedure brings the case to us just as any other court-tried case, and it is therefore our duty to review the matter both upon the law and the evidence. Crispin v. St. Louis Pub. Serv. Co., supra, 361 Mo. at 870, 237 S.W.2d at 156 [4] ; Rule 73.01(d).

Turning to the merits of the case, the positions of the parties may be simply stated. The burden of the plaintiff’s position here is that it received either no notice or insufficient notice of the trial court’s intended action when the first case was dismissed. The defendant argues that the plaintiff’s former attorneys received an adequate oral notice, according to the evidence, and that an oral notice was sufficient. The grounds upon which the trial court acted are not apparent from the record.

The case is not without its difficulties. It was stipulated that if plaintiff’s former attorney were present, he would testify that he received no notice prior to the dismissal of the first case, but there is no avoiding the fact that notice of the trial court’s action was given within four or five days after the order was entered. Mr. Ross testified that he has had no communication whatever from the plaintiff’s former attorneys since the order of dismissal was made, and upon the record before us it appears that no action whatever was taken in the face of an order of dismissal, which was known to counsel very shortly after it was made. Since the record is wholly silent as to why the case had lain unattended from December 27, 1960, to May 14, 1962, when the case was dismissed for failure to prosecute, and also contains no suggestion as to why counsel made no inquiry about the case after it was dismissed, we can make no inference from the lack of attention it apparently received. It seems apparent, however, that if notice subsequent to the order of dismissal meets the requirements of the law, the trial court would be justified in construing the order of dismissal as a dismissal with prejudice.

It is true that broad general statements may be found to the effect that the federal due process clause, U.S.Const, amend. XIV, § 1, does not invariably require advance notice of the possibility of dismissal in this hind of situation. Link v. Wabash R. R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 8 L.Ed. 2d 734, 739. However, the facts in the Link case were that the litigation had been prolonged for more than six years, and two fixed trial dates had been postponed. The trial court in which the action was pending had threatened to dismiss the case in 1959. In September 1960, the plaintiff was given nearly two weeks advance notice of a pretrial hearing, and counsel defaulted in appearance, without any reasonable excuse, after advising the court he would be present. The trial court thereupon dismissed the cause for failure to prosecute, with prejudice, without further advance notice, ■and the Supreme Court of the United States •held that “[t]lie circumstances here were such as to dispense with the necessity for advance notice and hearing.” Link v. Wabash R. R. Co., supra, 370 U.S. at 632, 82 S.Ct. at 1390, 8 L.Ed.2d at 739. Upon the reported facts, we admit it is difficult to see what useful purpose a further notice would have served in the Link case, and we find that case indistinguishable in principle from our own cases of Doughty v. Terminal R. R. Ass’n. of St. Louis, Mo., 291 S.W.2d 119, 121 [1], and Hannibal v. St. Louis Pub. Serv. Co., Mo.App., 200 S.W.2d 568. Those cases, in effect, hold that when a party defaults on a trial setting, he has had the requisite notice, and a final adjudication may be made by dismissal with prejudice for failure to prosecute.

We do not, in our view, have such an affirmative situation in the case before us. Whatever may be the rationale or underlying reason for the rule, our cases dealing with voluntary and involuntary dismissals seem to require reasonable advance notice of the proposed court action and an opportunity to be heard before a dismissal for failure to prosecute will operate as an adjudication upon the merits, unless the plaintiff is in default for failure to appear at the time, or is actually before the court. This is true even though the order of dismissal fails to specify that it is made with prejudice. Sometimes this requirement is discussed in terms of due process as in Bindley v. Metropolitan Life Ins. Co., supra, 358 Mo. at 37, 213 S.W.2d at 391 [5-7], and sometimes merely in terms of the construction and purpose of the Rules of Civil Procedure, as in the Crispin case, Crispin v. St. Louis Pub. Serv. Co., supra, 361 Mo. at 870, 237 S.W.2d at 155-156 [2, 3]. In any event, in the case with which we are presently dealing, the plaintiff was not in default upon a trial setting, nor was the dismissal entered upon motion and notice by the defendant, nor were the parties actually before the court at the time. The only reasonable inference which we can draw from the record before us is that the trial court dismissed the cause upon its own motion in an effort to clear its docket of stale cases. We therefore begin with the premise that if the plaintiff had reasonable preliminary notice of the trial court’s intended dismissal of the first case, it is now barred from instituting the present action. Otherwise, the first order of dismissal is not res judicata in this second case.

This court has recognized the imprudence of attempting to formulate a definition of the phrase “reasonable notice” which would be apt in all circumstances, Baker v. Baker, supra, 274 S.W.2d at 326, and we adhere to that view. It would seem fair to say that since the contemplated action — dismissal for failure to prosecute with prejudice — in this matter involved a decision on the merits and possible deprivation of rights and property, the notice should have been one reasonably-calculated to apprise the plaintiff of the setting of the first case for disposition on May 14, 1962, and to afford a reasonable opportunity to present its objections. If this very general test were met in the context of the circumstances, we believe “reasonable notice” would have been given.

Even so, from a factual standpoint, the record evidence does not sustain a finding that such notice was given, principally because the record does not show the content of the notice that was given, nor even, for that matter, that notice was ever transmitted. Mr. Ross did testify, in several different ways, that he did “notify the attorneys” of the trial court’s contemplated action, but we have searched the record in vain to determine what information the notice contained. Mr. Ross’s explanation was that it “was a general notice to the firm, it did not specifically list any lawsuit, it was just a general notice that all cases that were a year old on that day would be called.” We cannot determine, from the record, when this notice was mailed, whether it was sent ordinary or certified mail, nor, for that matter, to whom it was addressed. Without some evidence of what the notice recited, when it was transmitted and by what means, we are of the opinion it could not be found, or even reasonably inferred, that the plaintiff had such notice as was reasonably calculated to apprise it of the setting of its case and afford a reasonable opportunity to present its objections. This case differs considerably on its facts, in our view, from Bindley v. Metropolitan Life Ins. Co., supra, 335 S.W.2d 64, in which the case had been listed for trial or dismissal in a publication specifically provided to give notice of settings for trial and other disposition, and from Levee Dist. No. 4 of Dunklin County v. Small, supra, 281 S.W.2d 614, in which the plaintiff’s attorney admittedly received notice. Limiting our holding to the specific facts before us, we conclude that neither' plaintiff nor its counsel had sufficient advance notice to make the dismissal of the prior case a dismissal with prejudice, so as to bar this second action.

The defendant has argued in this court specifically that the plaintiff had reasonable and legally sufficient oral notice. Though technically we might take this argument as a formal concession or admission that there was no prior written notice, Rukavina v. Accounts Supervision Corp., 241 Mo.App. 195, 199, 237 S.W.2d 503, 506 [2], we have not chosen to do so. It is-plain, however that the defendant’s position-, in this respect is untenable. We do not reach the question whether an oral notice-would have been sufficient, but the weakness of the defendant’s claim of oral notice lies in the fact that there is no evidence that: an oral notice was ever communicated to - plaintiff’s counsel. Mr. Ross upon being’ asked if “it might have been by telephone - that you notified any of the firms,” answered. “Yes, it could have been.” He further-testified that he “didn’t call up and ask for-[plaintiff’s former attorney]”; he gave: notice “to the firm.” This is all the testimony we can find concerning oral notice. We believe evidence of Mr. Ross’s conversation on the telephone might have been-admissible had the person with whom he spoke — the antiphonal speaker — been identified. Annos. 71 A.L.R. 5, 10, III (a); 105 A.L.R. 326, 328, III (a). But the plaintiff could not be bound by a telephone conversation with a person unidentified in any manner. Meyer Milling Co. v. Strohfeld, 224 Mo.App. 508, 516, 20 S.W.2d 963, 967 [9], cert. quashed State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462. A telephone notice given to someone without knowing to whom it is given, and without evidence that it reached the person or concern intended to be notified, would con- ■ stitute no notice at all. Strack v. Missouri. & K. Telephone Co., 216 Mo. 601, 614, 116 S.W. 526, 529.

We do not say, nor wish to he understood as saying, that the trial court did not have the inherent discretionary power to dismiss the first case for failure to prosecute without prejudice. Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87, 90-91; Bindley v. Metropolitan Life Ins. Co., supra, 335 S.W.2d at 69 [1]. The trial court’s exercise of a reasonable discretion in dismissing the prior action is not questioned here. We merely hold that the dismissal in case 33,600 did not operate as a dismissal with prejudice, and does not operate as an adjudication on the merits, nor bar the present action.

For the reasons indicated, the judgment should be reversed and the cause remanded. It is so ordered.

RUARK, P. J., and STONE, J., concur.

      . AH references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.lt.

      . Doughty v. Terminal R. R. Ass’n. of St. Louis, supra, 291 S.W.2d at 121 [1]; Healer v. Kansas City Pub. Serv. Co., Mo., 251 S.W.2d 06, 67-68 [1, 2]; Crispin v. St. Louis Pub. Serv. Co., supra, 361 Mo. at 870, 237 S.W.2d at 155 [2, 3]; Bindley v. Metropolitan Life Ins. Co., supra, 358 Mo. at 37-38, 213 S.W.2d at 391 [8]; Levee Dist. No. 4 of Dunklin County v. Small, supra, 281 S.W.2d 614, 617 [3-5]. Sec also State ex rel. Wells v. Mayfield, 305 Mo. 238, 243-244, 2S1 S.W.2d 9, 11.

      . Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865, 873; Bindley v. Metropolitan Life Ins. Co., Mo., 335 S.W.2d 64, 69 [2-4]; State v. Goodbar, Mo., 297 S.W.2d 525, 528 [5-8]; In re Barger, Mo.App., 365 S.W.2d 89, 97.