text:
    BROWN et al. v. JONES et al.
    No. 5086.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 27, 1939.

      K. E. Bain, of Floydada, for appellants.
    Ayres & Ayres, of Floydada, for appel-lees.
   JACKSON, Chief Justice.

Emma Jones, joined pro. forma by her' husband, Edgar F. Jones, filed this suit in the District Court of Floyd County on September 12, 1938 against W. Edd Brown and R. Fred Brown to cancel and annul a deed alleged to be a mortgage, against their homestead executed by Emma and Edgar F. Jones conveying to W. Edd and R. Fred Brown certain lots in the town of Floydada.

The petition, after giving the marginal venue, the term of court and the address, commences: “Your petitioner, Emma Jones, joined herein pro forma by her husband, Edgar F. Jones, hereinafter called plaintiffs, complaining of W. Edd Brown and R. Fred ■ Brown, hereinafter called defendants, would with resp/ect show to the court.”

Thereafter the cause of action is alleged and Emma and Edgar F. Jones are called “plaintiffs” and the prayer is that “plaintiffs” have judgment against the defendants.

On October 11, 1938 the defendants answered by general demurrer, general denial, plea of not guilty, the four and ten years statutes of limitation, and alleged that the deed sought to be cancelled was not a mortgage but a bona fide transaction evidenced by valid conveyance to them of the lots involved for the sum of $3,000 paid, a valuable consideration.

On October 18, 1938, with leave of the court, what is designated as plaintiffs’ first amended original petition was filed, the commencement of which is as follows :

“Comes now the plaintiffs herein and. with leave of the court file this their first amended originial petition herein in lieu of their original petition filed herein on the 12th day of September, 1938, and would with respect show to the court.
“1.
“That plaintiffs were at the time of the' transaction hereinafter complained of and are at this time husband and wife and reside in Floydada, Floyd County, Texas, and that the defendants both reside at Floydada in Floyd County, Texas.”

The plaintiffs then set out in the first amended original petition the cause of action contained in the original petition and allege in effect that about April 2, 1920 plaintiffs purchased Lots Nos. 14, 15 and 16 in Block “C”, Bowers & Price Addition to the town of Floydada, for the purpose and with the intention of improving said lots and occupying them as their home; that promptly after acquiring title plaintiffs did construct and build upon said lots a residence for their home and moved into it with their three minor children and have continuously since used, claimed and occupied said building and lots as a home and have never at any time acquired or occupied any other property for a home; that during the time plaintiffs were occupying the property as. their home plaintiff Edgar. F. Jones became indebted to defendants in the sum of approximately $3,000; that on July 23, 1928 and prior thereto the defendants requested and urged plaintiffs to secure said $3,000 by executing and delivering to them a mortgage lien against their homestead; that they finally acceded to such request, agreed to give defendants a lien on the homestead and executed and delivered to defendants the instrument dated July 23, 1928 conveying the homestead to defendants to secure the $3,000 debt of said Edgar F. Jones by a lien against their, said homestead; that the instrument on its face was an absolute deed of conveyance but was executed and delivered for the sole- purpose and with the sole intention of attempting to fix and create a lien against the homestead of plaintiffs to secure the indebtedness of Edgar F. Jones to defendants. The prayer was that plaintiffs have judgment.

The case was tried without the aid of a jury on October 18, 1938 and the dis-position of the case and the judgment to be rendered therein was taken under consideration by the court.

On November 5, 1938 the plaintiffs obtained permission of the court and over the objections of defendants filed a trial amendment to their first amended original petition, the essential part of which reads as follows: “Your petitioners, Emma Jones and husband, Edgar F. Jones, plaintiffs, (the said Edgar F. Jones appearing herein as a real and actual party plaintiff and not merely pro forma) complaining of W. Edd Brown and R. Fred Brown, defendants, would with respect show to the court.”

Thereafter the court rendered judgment to the effect that the purported deed conveying the land in controversy to the Browns be in all things cancelled, set aside and for naught held and that the plaintiffs, Edgar F. and Emma Jones have and recover of and from the defendants, W. Edd and R. Fred Brown, title to Lots 14, IS and 16, in Block C, free and clear of all claims, liens or incumbrances asserted by the defendants, and from such action of the court this appeal is prosecuted.

The appellants by proper assignment contend that it was an abuse of discretion for the trial judge to allow appellees to file a trial amendment after the evidence had been closed and at the same time refuse appellants’ request for a retrial of the cause since the trial amendment changed the pleadings.

The court found in his findings of fact that Emma Jones and Edgar F. Jones were husband and wife, acquired the title to the property involved in this controversy in 1920, immediately erected a residence thereon and had used and occupied such property as their homestead continuously since said date; that the plaintiffs borrowed from the defendants $3,000 and to secure the payment thereof executed the deed herein sought to be cancelled purporting to convey the lots described to the defendants with the Understanding that the deed should constitute a lien 'to secure the payment of the $3,000 loan arid not a conveyance of title. These findings are not challenged by the appellants and it follows conclusively therefrom that the plaintiffs were husband and wife; that the property was their community homestead and that the purported deed was void and the judgment of the court is correct if the amended petition is sufficient to support the judgment or if the court did not abuse his discretion in permitting the plaintiffs to file the. trial amendment.

In our opinion the original petition in which Emma Jones designated herself as “your petitioner * * * joined pro forma by her husband, Edgar F. Jones,” constituted Mrs. Jones the only party plaintiff at interest notwithstanding that later in the petition the word “plaintiffs” was employed several times. We think that a party made a party pro forma continues in that capacity until his status is changed by appropriate allegations.

In Yellow Cab & Baggage Co. v. Smith et al., Tex.Civ.App., 30 S.W.2d 697, 702, it is said: “The term ‘pro forma’ is defined in Webster’s Unabridged Dictionary as ‘for the sake of form; as a matter of form.’ In 32 Cyc., p. 956, pro forma is defined ‘as a matter of form.’ In Black’s Law Dictionary (2d Ed.) it is said that: ‘The formal parties are those who have no interest in the controversy between the immediate litigants. * * * Nominal parties are those who are joined as parties or defendants, not those that have any real interest in the subject matter or because any relief is demanded as against them, but merely because the technical rules of pleading require their presence in the record.’ ”

In Rhodes v. Taliaferro et al., Tex.Civ.App., 119 S.W.2d 703, 705, the court says:

“The petition upon which both plaintiffs relied disclosed that Mrs. Taliaferro was a married woman. Her husband was joined ‘pro forma’; this means that he was named simply as a matter of form, and did not thus become a party' to the suit. Houston Gas & Fuel Co. v. Spradlin, Tex.Civ.App., 55 S.W.2d 1086; Hill v. Kelsey, Tex.Civ.App., 89 S.W.2d 1017, writ dismissed; Yellow Cab & Baggage Co. v. Smith, Tex. Civ.App., 30 S.W.2d 697, writ dismissed.
⅜ ⅝ ⅝ ⅜ if.
“It is a well settled rule of law in this state that a married woman may not sue to recover even her separate property or damages thereto, unless * she alleges that her husband has failed and neglected to do so; if she seeks a recovery of the property in her own right, she must allege facts, which, if proven, would fix the title in her.”

Under these authorities, Mrs. Jones was not entitled to recover judgment under the original petition. However, on October 18, 1938 plaintiffs’ “first amended original petition” was filed, the substance of which we have heretofore given, and contained, we think, sufficient allegations as against a general demurrer to plead a cause of action on which both the husband and wife could recover.

An original petition is abandoned when an amended petition, other than a trial amendment, is filed and even a reference thereto would not, make the original a part of the amended pleading. 33 Tex.Jur. 513, para. 83.

The omission of the words “pro forma” was one of the amendments in the amended petition which stated the plaintiffs were husband and wife, named the defendants and repeatedly referred to “plaintiff Edgar F. Jones”; a joint cause of action was alleged, joint relief was sought and both husband and wife were interested in the community homestead. We think the first amended original petition was sufficient against a general demurrer to support the judgment.

The appellants’ bill of exception shows that their objections to the filing of the trial amendment were in effect that plaintiffs’ original petition did not make Edgar F. Jones a real party to the suit; that the first amended original petition made no new parties to the suit and did not state who the plaintiffs in the case were and that the defendants would be grossly wronged if the court permitted, the trial amendment, for which reason they objected to the filing thereof but asked that in the event the trial amendment was allowed that the court declare a mistrial and permit a retrial of the case. It will be observed that neither the first amended original petition nor the trial amendment was' to make new parties but to change the status of the husband from a pro forma plaintiff to a plaintiff at interest. There is no statement in this bill of exception that the defendants had other or additional testimony they would have offered if the trial amendment had been contained in the first amended original petition or that they would have amended their pleadings in any particular to meet any new conditions caused by the trial amendment had a'retrial been granted. No surprise .is claimed and the court in his qualification of defendants’ bill of exception states that defendants’ counsel admitted, in effect, that he was not surprised by the contents of the trial amendment. The court finds the omissions corrected by such amendment were due to inadvertence and clerical errors on the part of plaintiffs’ counsel; that neither the theory on which the case was tried, the fact issues nor the law was affected by the trial amendment; that the testimony of all parties was fully developed and defendants failed to show any injury, prejudice or surprise by the filing of such amendment. 33 Tex.Jur. 519, para. 87, also page 521, para. 89.

In the condition of this record we do not feel authorized in holding that the trial court abused his discretion in allowing the trial amendment to be filed but, in any event, the judgment, we think, was authorized by the first amended original petition and the unchallenged findings of the trial court.

The judgment is affirmed.


source: Caselaw Access Project

author: FOLLEY, Justice.

license: Public Domain

text:
    MATHES v. WILLIAMS et ux.
    No. 5060.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 2, 1939.
    Rehearing Denied Nov. 13, 1939.

      Underwood & Strickland, of Amarillo, for plaintiff in error.
    H. H. Cooper, of Amarillo, for defendants in error.
   FOLLEY, Justice.

This is a suit by the plaintiff in error, Roy Mathes, against the defendants in error, Johne Williams and wife, Carrie Williams, upon a mechanic’s and materialman’s lien note in the sum of $625, payable in monthly installments, and for foreclosure of the mechanic’s and materialman’s lien and a sequestration lien upon land and premises situated in Potter County, Texas, and known as Lot 1 in Block 47 of the Miller Heights Addition to the city of Amarillo, Texas. The suit also involves the cross-action of the defendants in error for damages for an alleged wrongful sequestration of the property by the plaintiff in error.

The note and lien were given in connection with a contract dated May 1, 1934, entered into between the defendants in error and R. S. McDaniel wherein the latter as contractor, with materials furnished by W. M. Moore, was to erect a four room house with bath upon the lot above mentioned, the same to constitute the homestead of the defendants in error. The contract provided that the improvements were to be completed within a period of ninety days. It further provided that the contractor was not to supply or install the plumbing, wiring or light fixtures, nor was he to furnish the labor for the painting or papering. The contract also contained the following stipulation : “It is further agreed that a failure to complete said improvements, or failure to complete the same according to contract, shall not defeat said indebtedness and lien, but in such case the indebtedness and lien upon said premises and improvements shall exist in favor of said party of the second part, his heirs and assigns, for said contract price, less such an amount as would be reasonably necessary to complete said improvements according to the said plans and specifications,”

The construction of the house was begun about two weeks after the written contract was made, McDaniel having charge of the construction, securing materials and supplies from W. M. Moore. The house was never completed nor was there a substantial compliance with the building contract. On August 3, 1934, while the house was in fits unfinished condition, the note and mechanic’s lien contract were assigned to the plaintiff in error.

There is no statement of facts in the record, however, the trial court, who tried the case without a jury, filed findings of fact and conclusions of law which we deem sufficient to present the issues hereinafter discussed. The court found that the house was never completed according to the contract; that on August 1, 1934, the floors had not been put in the house; that the roof was not on nor were there any doors or windows in the place; that some work was done after August 1, 1934; that the windows were put in, some of the doors installed and the floor laid; that the roof was put on in the early part of 1935; that none of the sheeting on the inside of the house was put on in a workmanlike manner ; that it would cost $300 to complete the contract in a workmanlike manner, exclusive of the plumbing, electric wiring and the labor in painting and papering the house; that the defendant in error, Johne Williams, tried many times to have the house completed, usually making his demands upon W. M. Moore, who always gave as his reason for not completing the building that Williams had not done the “roughing in” for the plumbing; that the contractor could have completed his part of the contract even if no plumbing work were done on the premises; that whether or not the contract was made for the benefit of W. M. Moore or R. S. McDaniel, or both of them, neither of them made any bona fide effort to complete the house within the time or in the workmanlike manner provided in the contract, nor did they, or either or them, ever notify the defendants in error, or either of them, that they would not complete the house; that at some time prior to 1937, the defendant in error, Johne Williams, demanded possession of the premises, but such demand was refused by W. M. Moore in whose possession the key to the house was kept; that early in 1937 Johne Williams entered the house by breaking a window glass and continued to occupy it until he was dispossessed by virtue of a writ of sequestration about December 29, 1937; that at the time the plaintiff in error took the assignment to the note and the mechanic’s lien he knew the house in question was being constructed for a home for the defendants in error and that it was not completed, though the time for its completion had then elapsed; that the writ of sequestration was wrongfully sued out and that the defendants in error suffered actual damages of $25 and exemplary damages of $50 by reason of such wrongful sequestration ; that the defendants in- error had paid $10 on - the note; and that Johne Williams owed on the note its face value of $625, with interest as provided- therein, less the $300 necessary to complete the building, less the $10 paid on the note and less the $75 damages allowed' on the cross-action of the defendants in error. The court further found that Carrie Williams, by reason of her coverture, was not liable on the note, and that Johne Williams, in taking- possession of the house did not intend to accept it as a completed job.

The trial court rendered a personal judgment against the defendant in error, Johne Williams, and in favor of the plaintiff in error, in the sum of $412.85 with interest at 10% from date of the judgment, which amount was in accordance with the above findings of fact, but denied the plaintiff in error a foreclosure of the mechanic’s and materialman’s lien on the property as against either of the defendants in error. From this judgment Roy Mathes prosecutes this writ of error, asserting, first, that the court erred in denying him a foreclosure of the lien.

For a reversal of the judgment upon the court’s action in refusing to foreclose the lien, the plaintiff in error relies chiefly upon the authority of the case of Galbraith-Foxworth Lumber Company v. Long et al., Tex.Civ.App., 5 S.W.2d 162, which case deals with a lien upon a homestead and in which a writ of error was refused by the Supreme Court of Texas. In that case the contract contained a provision identical with the provision quoted above from the contract in the instant case to the effect that a failure to complete the improvements should not defeat the indebtedness and lien, but that in such case the indebtedness and lien should exist in favor of the contractor for the contract price, less such amount as would be reasonably necessary to complete the improvements according to the plans and specifications agreed upon. In the Long case, supra, although the improvements were not completed by the contractor and it was necessary for Long to spend $5,369.13 to complete the building according to the specifications, the court allowed a recovery for the contract price less this expenditure and a payment made by Long, and adjudged a foreclosure of the mechanic’s lien in favor of the holder of the note and lien for this unpaid balance.

In reply to the contention of the plaintiff in error, the defendants in error rely mainly upon the case of Murphy et al. v. Williams, 103 Tex. 155, 124 S.W. 900, in which it was held that where a building contractor agreed with a husband and wife to build a house upon their homestead for a specified sum and abandoned the work before it was substantially completed he could not maintain an action on the contract nor enforce a lien for the work done, though he might under some circumstances recover a personal judgment for a quantum meruit, “not by force of the contract, but independent thereof”. Paschall et ux. v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 47 S.W. 98, 100, writ denied. The Murphy case announces the following rule (103 Tex. 155, 124 S.W. page 902): “No such lien can exist on the homestead without compliance with the constitutional provision. The debts of this kind to which that provision allows the homestead to be subjected are, ‘for work and material used in constructing improvements thereon,’ and for them only when ‘contracted for in writing with the consent of the wife,’ etc. And the lien to secure such debt is declared to be for '* * * improvements thereon as herein-before provided,’ which plainly means improvements actually made by the use of the work and material. Both the contract and the employment of the work and material upon the homestead in compliance with it are thus made essential to the lien.”

It is our opinion that the Long case and the Murphy case on the issue of foreclosure are in complete harmony with each other and announce distinct rules of law dealing with divergent situations, which rules, in their respective places, still obtain in this State. Although both cases have to do with contracts where there was -a lack of substantial performance, the Murphy case deals only with a contract entire in its character containing no provision for recovery for a partial performance. The Long case, however, deals with a situation similar to that of the case before us wherein provision is made for the enforcement of the debt and lien upon partial performance of the contract. When the parties agree by written contract upon a complete performance and no provision is made for a recovery for a partial performance, the rule announced in the Murphy case, with reference to the foreclosure of the lien when there is no substantial compliance with the contract, seems to be the settled law of 'this State. However, when such a situation presents itself as exists in this case, and as existed in the Long case, the rule seems settled that, in a suit directly upon the contract both the debt and lien may be established for the full amount of the contract price less such amount as would be reasonably necessary to complete the improvements according to the specifications agreed upon. Harrop et al. v. National Loan & Investment Co. of Detroit, Mich., Tex.Civ.App., 204 S.W. 878, writ refused; Equitable Casualty & Surety Co. v. Nowlin, Tex.Civ.App., 35 S.W.2d 1112, writ refused; North American Building & Loan Ass’n v. Bell, Tex.Civ.App., 88 S.W.2d 633.

Regardless of the rule as to recovery for partial performance as above announced, it is our opinion that the pleadings of the plaintiff in error are insufficient to authorize such a recovery in the absence of a substantial performance of the contract. The plaintiff in error filed an original petition and a supplemental petition. In his original petition he brought suit for the entire amount of the note, alleging full performance of the contract, and asking for a foreclosure for the full amount of the contract price. The defendants in error answered alleging that the note and lien were void for the reason, among other things, that the contract had never been complied with and because the building had not been constructed according to the specifications. By his supplemental petition the plaintiff in error admitted that the building had not been completed as specified in the contract but alleged that the defendants in error were to do all the plumbing and wiring and that all the work in the building was completed so far as the same could be done until the defendants in error had caused to be “roughed in” the plumbing and wiring. In this connection the court found, as above stated, that the reason given Johne Williams by W. M. Moore for not completing the building was that Williams had not done the “roughing in” for the plumbing, and the court further found that the contractor could have completed the building if no plumbing work had been done. In his supplemental petition the plaintiff in error further alleged that the reasonable value of the labor and material used in the erection of the improvements was in excess of the amount of the contract price and prayed for a full recovery as in his original petition. At no place in either of his petitions did he allege that the contract contained the provision above quoted as to partial performance and at no place did he allege the amount reasonably necessary to complete the improvements according to the specifications. There was no separate count in his petitions for recovery of any amount less than the contract price. At no place in his pleadings or in his prayers for relief did he ask for a recovery of his debt and establishment of his lien for the full contract price less the amount reasonably necessary to complete the building. In other words, he sought no recovery for partial performance. Under such pleadings, in the absence of a substantial compliance with the building contract, it is our opinion that the trial court would have been unwarranted in rendering a judgment of foreclosure under the partial performance provision of the contract. Sloan Lumber Co. v. Davis et ux., Tex.Civ.App., 19 S.W.2d 355, writ refused. Therefore, in view of the rule in the Murphy case which deprives the plaintiff in error of the right to foreclosure upon an uncompleted contract, and the further fact of the failure of the plaintiff in error by his pleadings to seek a recovery for partial performance, it is our opinion that the court did not err in refusing to render judgment foreclosing the lien upon the property involved herein.

The plaintiff in error further qom-plains of the court’s action in rendering judgment in favor of defendant in error, Johne Williams, upon the latter’s cross-action, for $25 actual damages and $50 exemplary damages for the alleged wrongful sequestration of the premises by the plaintiff in error. The plaintiff in error asserts that under the findings of the court the sequestration was not wrongful but was a remedy to which the plaintiff in error was legally entitled. The trial court found in his findings of fact that the sheriff, acting under the writ, took possession of the property of the defendant in error, Johne Williams, took some of his personal property ta another house nearby, and left some of the furniture in the yard on the lot upon which the improvements were situated. The court further found that the writ was wrongfully sued out and that the defendants in error suffered actual damages in the sum of $25 and that exemplary damages should be awarded in the sum of $50. In the absence of a statement of facts the finding of the court that the writ was wrongfully sued out is binding upon this court. Hidalgo County Water Improvement Dist. No. 2 v. San Juan State Bank & Trust Co. et al., Tex.Civ.App., 280 S.W. 845, writ refused; First State Bank of Agua Dulce v. First Nat. Bank of Robstown, Tex.Civ.App., 282 S.W. 846, writ dismissed; 3 Tex. Jur. 1120, para. 785. This finding, we think, constitutes a sufficient predicate for a'judgment in favor of Williams for the $25 actual damages. Graham et al. v. Walters et al., Tex.Civ.App., 45 S.W.2d 281, and authorities cited. But to authorize a recovery for exemplary damages in connection with the issuance of a writ of sequestration it must not only appear that the issuance was wrongful but that it was also malicious. Harris & Fox v. Finberg, 46 Tex. 79. In the case of Millheisler v. Wheeler, Tex.Civ.App., 265 S.W. 768, 769, it is said: “In order to recover exemplary damages in case of the issuance of a writ of sequestration malice must be shown. Where it is merely wrongful only actual damages can be recovered. A verdict for exemplary damages or for a wrongful sequestration is never authorized unless it appears from the evidence that it was obtained wrongfully, maliciously, and without probable cause. Harris & Fox v. Finberg, 46 Tex. 79; Vance v. Lindsey, 60 Tex. 286; Lynch v. Burns (Tex.Civ.App.) 79 S.W. 1084; Webb v. J. L. Wiginton & Co., 55 Tex.Civ.App. 413, 118 S.W. 856; Mercer Dry Goods Co. v. Fikes (Tex.Civ.App.) 211 S.W. 830.” That a writ might be issued wrongfully without necessarily being issued maliciously, is elementary. In Black’s Law Dictionary (Third Edition) the word “wrongful” is defined: “Injurious, heedless, unjust, reckless, unfair. * * * ‘Wrongful’ implies the infringement of some right, and may result from disobedience to lawful authority.” In the same dictionary the term “malicious act” is defined: “A wrongful act intentionally done without legal justification or excuse; an unlawful act done wilfully or purposely to injure another.” The finding that the writ in this case was wrongfully issued is not necessarily a finding that the same was issued with malicious intent or wilfully done to injure the defendants in error. Therefore, it is our opinion that the findings and conclusions of the court in this respect do not support the $50 item for exemplary damages and that to the amount of the judgment in the sum of $412.85 in favor of the plaintiff in error should be added the sum of $50, which amount was erroneously deducted from the total amount that would have been due had not this $50 offset been allowed.

The defendant in error, Johne Williams, has not appealed from the personal judgment against him upon the note and the only complaint he makes in this court in regard thereto is the assertion in his brief that the plaintiff in error “ought not to have been permitted to recover a judgment for any sum”. Therefore, unless the action of the court in this respect presents fundamental error we would be unwarranted in disturbing this portion of the judgment. On this issue we deem it sufficient to state that the pleadings of the parties and the findings and conclusions of the trial court are adequate to authorize a recovery against the defendant in error, Johne Williams, for the face amount of the note less the offsets allowed, and that such recovery does not, in our opinion, constitute fundamental error. Hillyard v. Crabtree’s Adm’r, 11 Tex. 264, 62 Am.Dec. 475; Weis v. Devlin, 67 Tex. 507, 3 S.W. 726, 60 Am. Rep. 38; Gonzales College et al. v. McHugh, 21 Tex. 256, 257.

The judgment herein is reformed so as to allow the plaintiff in error a recovery in the sum of $462.85, with interest at 10% per annum from the .date of the judgment, which amount includes the original amount of the judgment in the sum of $412.85 plus the sum of $50 which the trial court allowed as an offset in favor of the defendant in error, Johne Williams, and as so reformed the judgment is affirmed.

On Motion for Rehearing.

The plaintiff in error in a motion for rehearing vigorously attacks our holding above to the effect that the pleadings were insufficient to authorize a foreclosure for partial performance of the contract and asserts that such recovery was authorized under his prayer for general relief. While the relief granted to a party must have support in a specific or general prayer, the relief asked must be consistent with the facts alleged. In interpreting the pleading the prayer may be considered but it is subordinate to the averments of fact because the facts alleged go to the cause of action while the relief asked merely specifies the purpose of bringing the suit. 33 Tex.Jur. 466, para. 46. The prayer of a petition will not be construed as enlarging upbn the petition so as to embrace a cause of action not pleaded. Arrington v. McDaniel et al., Tex.Com.App., 14 S.W.2d 1009; Nye et al. v. Gribble, 70 Tex. 458, 8 S.W. 608. In Milliken v. Smoot, 64 Tex. 171, in an opinion by Justice Stayton, it is held: “A plaintiff must recover in the right in which he sues,, and upon the facts stated in his pleadings as the basis of, that right, and cannot recover through a right adverse to that as^-serted, it matters not what the prayer of the petition may be. * * * A prayer for relief inconsistent with the facts stated as the basis for relief is of no value whatever.”

In connection with this rule announced by our Supreme Court we again call attention to the fact that the plaintiff in error failed to allege that the contract contained a provision for foreclosure upon partial performance nor did he allege.the amount reasonably necessary to complete the improvements. These averments were necessary in order to have authorized the •court to grant the relief under the general prayer which the plaintiff in error now contends he was entitled to. Without these fact allegations the jurisdiction of the court was not invoked to grant such relief. On the issue of jurisdiction of the court as based upon the pleadings, in Dunlap et al. v. Southerlin et al., 63 Tex. 38, 42, Justice .Stayton, agaiii speaking for the Supreme •Court of Texas, said: “Courts have no more power, until their action is called into exercise by some kind of pleading, to ren■der a judgment in favor of any person than they have to render judgment against a person until he has been brought within the jurisdiction of the court in some method recognized by law as sufficient; * *

The motion for rehearing is overruled.


author: HIGGINS, Justice.

text:
    PEARCE v. HARRIS et al.
    No. 3915.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1939.

      Miller & Dawson, of Sinton, for appellant.
    W. B. Moss, of Sinton, for appellees.
   HIGGINS, Justice.

On September 28, 1937, Doris Pearce " was granted a divorce from her husband, A. W. Pearce, by the District Court of San Patricio County. The custody of Ardyce Ann Pearce, the child of Mr. and Mrs. Pearce, was awarded to Mrs. Pearce, with the right of the father to visit the child at' any reasonable time. A. W. Pearce, by the terms of the decree, was ordered to pay Mrs. Pearce $25.00 a month for the maintenance, support' and education of the child. Thereafter Mrs. Pearce married T. W. Harris. On October 17, 1938, Harris and wife filed a petition in the District Court of San Patri-cio County for leave to adopt the said child and that her name be changed to Ann Harris. October 27, 1938, the Court granted the petition and ordered the child’s name changed to Ann Harris. On October 31, 1938, Harris and wife, by an instrument duly acknowledged, adopted the child as their legal heir. The child at this time was about six years old.

On January 9, 1939, A. W. Pearce filed this suit to set aside the judgment of October 27, 1938, above mentioned. He set up that in September and October, 1938, Mrs. Harris sought to obtain his signature to an instrument consenting to the adoption of the minor by Mrs. Harris and her husband, T. W. Harris, and he had refused to do so; that he had made inquiry of the District Clerk of San Pa-tricio County whether any proceedings had been commenced to adopt the child and was informed that there had not been, and he first learned of the adoption of the child after the term of the court had ended at which the judgment of October 27, 1938, had been rendered. He attacked the validity of the decree of adoption upon the ground that it was rendered without notice to him, he had not consented to such adoption, and had not abandoned nor deserted the child or voluntarily left her to the care, custody and control of other persons. It is unnecessary to state other allegations in the petition.

Upon trial without a jury judgment was rendered denying the relief sought by Pearce. Full and complete findings of fact were filed by the trial court, but need not be stated at length. Among other matters the court found: The plaintiff did not consent to the adoption of his child by Harris and wife and he was given no notice of the pendency of the proceedings for adoption in the District Court of San Patricio County, nor did he appear or participate therein; pricvr to and during the pendency of the adoption proceedings Pearce resided in San Patricio County and his residence was known to Harris and wife; Pearce did not voluntarily abandon and desert his chil,d for a period of two years; nor did he leave her to the care, custody, control and management of other persons; nor did he fail to contribute to her support during such two years period; the County Judge of San Patricio County, where the child resided, did not give his consent in writing for T. W. Harris and wife to adopt'the child; other than the order in the divorce decree there is no judgment, decree or order affecting, transferring or terminating the parental rights of A. W. Pearce prior to the judgment rendered in the adoption proceedings; A. W. Pearce first learned of the institution of the adoption proceedings and the judgment rendered therein after the expiration of the term of court at which the judgment was rendered granting the leave to adopt.

The decree of October 27, 1938, does not show A. W. Pearce consented to the adoption of his child, nor does such decree show any character of notice to Pearce of the pendency of the adoption proceedings.

An Act of the 42nd Legislature, Ch. 177, p. 300, Art. 46a, Vernon’s Annotated Civil Statutes, authorizes the adoption of a minor child by an adult upon petition by such adult so to do in the District Court and leave granted by such Court. The sixth section of the Act was amended by Chapter 490, Acts 45th Legislature, p. 1324. Amended Section 6 reads:

“Sec. 6. Except as otherwise amended in this Section, no adoption shall be permitted except with the written consent of the living parents of a child; provided, however, that if a living parent or parents shall voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, and shall have left such child to the care, custody, control and management of other persons, and such parent or parents so abandoning and deserting such child shall not have contributed to the support of such child during such period of two (2) years, then in such event it shall not be necessary to obtain the written consent of the living parent or parents in such default, and in such cases adoption shall be permitted on the written consent of the Judge of the Juvenile Court of the county of such child’s residence, or if there be no Juvenile Court, then on the written consent of the Judge of the County Court of the county of such child’s residence.
“In the case of a child fourteen (14) years of age or over, the consent of such child also shall be required and must be given in writing in the presence of the Court. Consent shall not be required of parents whose parental rights have been terminated by order of the Juvenile Court or other Court of competent jurisdiction; provided, however, that in such cases adoption shall be permitted only on consent of the superintendent of the home or school, or of the individual to whom the care, custody, or guardianship of such child has been transferred by a Juvenile Court or other Court of competent jurisdiction. In case of a child not born in lawful wedlock the consent of the father shall not be necessary.”

Section 9 of the original. Act in part reads as follows: “Sec. 9. When a child is adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties between such child and its natural parents shall cease and determine, provided however, that nothing herein shall prevent such adopted child from inheriting from .its natural parent; all adopted children shall inherit from the adopted as well as its natural parents. Said child shall thereafter be deemed and held to be, for every purpose, the child of its parent or parents by adoption as fully as though born of them in lawful wedlock. Said child shall be entitled to proper education, support, maintenance, nurture and care from said parent or parents by adoption, and shall inherit from said parent or parents by adoption, and as the child of said parent or parents by adoption, as fully as though born to them in lawful wedlock; subject, however, to the provisions of this Act. Said parent or parents by adoption shall be entitled to the services, wages, control, custody and company of said adopted child, and shall, as such adopting parent or parents, inherit from and as the parent or parents of said adopted child as fully as though the child had been born to them in lawful wedlock; provided, however, that upon the death of such adopted child, while unmarried and without issue of its body, all of its property, of whatsoever kind and nature, shall pass and descend to the adopting parent or parents, if living, * *

Succeeding portions of Section 9 also exclude the natural parent of any right of inheritance from the child.

The statute does not provide for any notice to the - natural parent of the petition for leave to adopt.

From the trial court’s conclusions of law we quote: “I conclude, as a matter of law, that the decree of divorce in cause No. 4763, Doris Harris v. A. W. Pearce, in the District Court of San Patricio County, Texas, awarding the custody of Ardyce Ann Pearce to the defendant Doris Harris terminated the parental rights of the-plaintiff, .A. W. Pearce, in and to his daughter, Ardyce Ann Pearce, and was the termination of the parental rights of A. W. Pearce to his daughter, Ardyce Ann Pearce, by order of a Juvenile Court or other Court of competent jurisdiction within the contemplation of the exceptional provision of Article 46a, Vernon’s Annotated Revised Civil Statutes as amended, Acts .1937, 45th Legislature, p. 1324, ch. 490 § 1, dispensing with the consent of the living parents.”

Appellees here seek to sustain the judgment upon the theory indicated in the foregoing conclusion of law. We doubt, if under any circumstances, a natural parent may be deprived of his natural and legal parental rights by a proceeding to which he is not a party, to which he does not consent, and of which he has no notice, actual or • constructive, and in which he is afforded no opportunity to appear, assert his rights and resist the petition of others to adopt his child.

In this connection we quote from 2 C.J.S., Adoption of Children, page 373, § 5, as follows: “A statute by which a parent or other natural guardian could be deprived of his child without notice or opportunity to be heard would, without doubt, be held void as an unconstitutional deprivation of right without due process of law.”

See also 2 C.J.S., Adoption of Children, page 390, § 21; 1 R.C.L., pp. 609 and 628.

But for the purpose of this case it may be assumed that under the exceptional conditions stated in amended Section 6 it is constitutionally permissible to grant the leave to adopt without the consent of the natural parent and without notice to such parent.

In our opinion it is obvious that the divorce decree in which the care, custody, control and education of the minor were awarded to the mother did not terminate the parental rights of the father. In the first place, this order was temporary in its nature and subject to revocation and change by the District Court at a later date. Upon a proper petition and evidence supporting the same the court at a later date might revoke that portion of the divorce decree and vest in the father the care, custody, control and education of the child. Citation of authority to this effect is unnecessary. Upon its face the order in the divorce proceeding did not terminate all of the parental rights of the father. It expressly reserved and granted to him the right to visit the child at any reasonable time. Certainly the divorce decree did not divest the father of the legal right of inheritance from the child. Whereas under our adoption Act such right is cut off and vested in the adopting parents to the complete exclusion of the natural parent who has been deprived of -his rights by judgment in adoption proceedings.

As we have stated above, the adoption statute makes no provision for notice to a natural parent whose child is sought to be adopted by others, but in lieu thereof, and for other reasons, the statute provided that except in certain cases the written consent of the natural living parents was required before the court would be authorized to grant a petition for leave to adopt. The requirement of such written consent is jurisdictional. 2 C.J.S., Adoption of Children, page 415, § 35. Without it, and in the absence of the exceptional provisions mentioned in amended Section 6, the court is without jurisdiction to grant a petition for adoption.

The judgment of the court below is reversed and judgment here rendered in favor of the appellant, vacating, setting aside and holding for naught in its en-. tirety the judgment of October 27, 1938, wherein the appellees were granted leave to adopt the minor Ardyce Ann Pearce and changing her name to Ann Harris.

Reversed and rendered.


author: WILLIAMS, Justice.

text:
    STONE et al. v. MILLER et al.
    No. 5483.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 28, 1939.
    Rehearing Denied Dec. 7, 1939.

      Bailey & Shaeffer, of Dallas,'for plaintiffs in error.
    Caves, Waldrop & Shaw, of Henderson, and W. E. George, of Wichita Falls, for defendants in error.
   WILLIAMS, Justice.

In judgment entered, Mrs. C. M. Miller, W. A. Baber, and W. E. George, Trustees of Estate of L. P. Hammond, deceased, for the use and benefit of said estate, recovered of Jerome S. Stone and Helen Anderson, individually and as -.independent executors of Estate of J. W. Stone, deceased, and Jerome S. Stone, Trustee, the title to ⅞2 of the oil and gas leasehold estate covering a 2.5-acre tract out of the Ximines Survey in Rusk County. T. R. Boone, as inter-venor, recovered of same defendants title to ⅝ of said leasehold estate. Mrs. C. M. Miller as Independent Executrix was denied ■ any recovery. The parties first named will hereinafter be referred to as plaintiffs, and the others, except Boone, will be referred to as defendants, their respective positions in the trial court.

This suit is for specific performance and for damages based upon a written contract executed by C. M. Miller, Independent Executor of Estate of L. P. Hammond, deceased, and Jerome S. Stone, by the terms of which Stone was to complete an oil well started by Hammond before his death, and after discharging the expenses and debts against the enterprise, plaintiffs alleged Stone was to assign back to the Hammond estate ½ interest in the leasehold. In pursuance to this agreement the leasehold estate was assigned to J. W. Stone, the father of Jerome S.. Stone, it being alleged that it was placed in the name of J. W. Stone in trust. We deem the foregoing is a sufficient history for an understanding of the propositions presented on this appeal.

On December 20, 1934, a suit for specific performance grounded upon this contract was filed in the Special District Court of Rusk County and given number 10837 on the docket. C. M. Miller, Administrator of Estate of L. P. Hammond., deceased, was styled Plaintiff, and Jerome S. Stone, Alice Roberts, Executrix of Estate of H. W. Roberts, deceased, and Helen Anderson, a widow, were styled defendants. The court on April 6, 1936, dismissed the suit because of want of prosecution. ■ A motion to reinstate the cause was filed May 11, 1937, and notice of hearing to be had on May 22nd was served upon Jerome S. Stone, Helen Anderson, individually and as independent executors of the estate of J. W. Stone, and Jerome S. Stone as trustees of said estate. On this last date an amended motion to reinstate was filed, and for the first time Mrs. C. M. Miller, Independent Executrix of Estate of L. P. Hammond, deceased, and Mrs. C. M. Miller, W. A. Baber, and W. E. George, Trustees,- were named as plaintiffs. This amended motion suggested déath of C. M. Miller, and alleged that the trustees above named had been appointed under the provisions of the Hammond will. On May 22, 1937, the court reinstated above-numbered cause. To this action defendant excepted and gave notice-of, but did not perfect an appeal. Then on same date plaintiffs herein filed what they styled their first amended original petition, carrying, the same style and number as the original.

When cause No. 10837 was called for trial on December 20, 1937, *at a subsequent term, defendants appeared in court and on that date filed and urged a motion for continuance. Issue was joined on this motion. After hearing evidence and argument the motion was overruled. Defendants then filed their answer, styled defendants’ first amended original answer, in which they joined the issues set up in plaintiffs’ amended pleading so filed on May 22nd and in which they leveled an exception to the jurisdiction of the court and further answered with general demurrer and denial, plea of not guilty, several defensive pleas of -limitation in bar of plaintiffs’ right to recover, and Jerome S. Stone’s discharge in bankruptcy from his debts. Boone, who was interested in the litigation, was granted leave to intervene. The judgment recites that neither plaintiffs nor defendants interposed any objection to Boone’s application to intervene. After plea to jurisdiction was overruled, plaintiffs, defendants and intervenor waived trial by jury. Defendants introduced documentary evidence and numerous witnesses in their defense. Their attorney participated in the examination and cross-examination of witnesses and otherwise fully participated in the trial of the cause.

No attack is made upon the judgment rendered other than a jurisdictional question and certain limitation defenses. Defendants assert that the court’s order of May 22nd reinstating the suit, after having dismissed it at a previous term, was void. And in support thereof they cite Wear v. McCallum, 119 Tex. 473, 33 S.W.2d 723; Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819.

The regularity or validity of the court’s order dated May 22nd reinstating cause No. 10837 is not necessary to sustain the validity of the judgment entered herein. If the court’s order reinstating the suit was invalid, then the dismissal order remained in force. Such a dismissal would not preclude the filing of another suit by the original plaintiff or by the plaintiffs named in the first amended original petition. Southern Pac. Co. v. Winton, 27 Tex.Civ.App. 503, 66 S.W. 477; Burger v. Young, 78 Tex. 656, 15 S.W. 107; 15 T.J. pp. 268, 283.

Whether the pleadings filed on May 22nd be considered an amended original petition, or as an orginal petition of the latter-named plaintiffs, in either event defendants voluntarily appeared and answered the suit set up in the amended pleadings by first making an application for continuance. They so further appeared, waived trial by jury, and then participated fully in the trial of the case. By this conduct defendants invoked and submitted themselves to the jurisdiction of the court. The validity of the judgment entered herein is sustáined. Art. 2047, R.C.S. 1925; 4 Tex.Jur. 628, Sec. 12; Degetau v. Mayer, Tex.Civ.App., 145 S.W. 1054; Republic Oil & Gas Co. v. Owen, Tex.Civ.App., 210 S.W. 319; Waco Hilton Hotel Co. v. Waco Dev. Co., Tex.Civ.App., 75 S.W.2d 968; York v. State, 73 Tex. 651, 11 S.W. 869.

The respective three, four, and five years statutes of limitation, Articles 5507, 5527, and 5509, R.C.S. of 1925, urged by defendants in bar of plaintiffs’ right to recover is not tenable. The contract here involved provided that the Hammond estate was not to receive,, nor was conveyance back to be executed, until the indebtedness against the leasehold had been paid and this to be paid out of the first oil run. Plaintiffs’ cause of action did not accrue until June 1936, when the last indebtedness was paid. At least there is no testimony to show such indebtedness was paid any earlier.

The judgment of the trial court is affirmed.


author: SMEDLEY, Commissioner.

text:
    STATE et al. v. QUINTANA PETROLEUM CO. et al.
    Motion No. 14283; No. 7634.
    Supreme Court of Texas.
    Jan. 3, 1940.
    For former opinion, see 133 S.W.2d 112.
    Gerald C. Mann, Atty. Gen., George W. Barcus and A. S. Rollins, Asst. Attys. Gen., and Hobart Huson, of Refugio, for the State.
    Crain, Vandenberge & Stofer, of Victoria, for plaintiff in error O'Connor.
    Harry Holmes, of Houston, for defendant in error Quintana Petroleum Co.
    K. W. Gilmore, of Houston, for defendant in error Humble Oil & Refining Co.
    Sanders & Scott, of Amarillo, amici curiae.
   SMEDLEY, Commissioner.

In motion for rehearing filed in behalf of the State of Texas by the Attorney General it is argued that the judgment rendered herein, affirming the judgment of the Court of Civil Appeals, Quintana Petroleum Co. v. State, 127 S.W.2d 354, is inconsistent with what is said in the opinion filed herein on November 22, 1939, State v. Quintana Petroleum Co., Tex.Sup., 133 S.W.2d 112, as to the nature of the interests granted to the lessee and reserved by the lessor and the method of assessing and valuing such interests for taxation. This argument seems to grow out of a construction placed by the State’s Attorney upon the opinion of the Court of Civil Appeals and the assumption that affirmance by the Supreme Court of the judgment of the Court of Civil Appeals amounts to an approval of what is said in the opinion of that court.

To prevent misconception of the effect or meaning of the affirmance of the judgment rendered by the Court of Civil Appeals and without intimating that the construction placed on the opinion of that court in said motion for rehearing is either correct or incorrect, we deem it sufficient to say that the affirmance of the judgment of the Court of Civil Appeals was not intended as an approval of the opinion of the Court of Civil Appeals as that opinion is construed in the said motion for rehearing, but the said judgment was affirmed for the reasons stated and on the conclusions expressed in the opinion filed herein on November 22, 1939. With this explanation, the said motion for rehearing is overruled.

Opinion adopted by the Supreme Court.


author: CRITZ, Justice.

text:
    LAKEY v. McCARROLL.
    No. 7605.
    Supreme Court of Texas.
    Jan. 3, 1940.

      Stinson, Hair, Brooks & Duke, of Abilene, for appellant.
    Fred T. Porter, of Kaufman, and Fred V. Meredith, of Terrell, amici curiae.
    Smith & Smith, of Anson, for appellee.
   CRITZ, Justice.

This case is before the Supreme Court on certified questions from the Court of Civil Appeals at Eastland. The record shows the following:

On October 25, 1937, P. B. Lakey filed this suit in the District Court of Jones County, Texas, against R. O. McCarroll, residing in Dawson County, Texas. We shall hereafter refer to F. B. Lakey as Lak-ey, and to R. O. McCarroll as McCarroll. Lakey’s petition in the district court alleges that he was married to Velma Lakey on December 23, 1933; that Velma Lakey was a daughter of McCarroll; that two children were born to such marriage,-— namely, George Anthony Lakey, a son two and one-half years of age, -and Alvin Lakey, a son ten months of age; that on March 9, 1937, Velma Lakey, who was then living, but who has since died, filed suit in the District Court of Jones County, Texas, for divorce and for the care and custody of the above-named two minor children; that Lakey filed answer to such suit; that such suit was finally tried in said court on May 7, 1937; that as a result of such trial Velma Lakey was granted a divorce and the bonds of matrimony existing between Lakey and his said wife dissolved; and that in such divorce decree the court awarded the care and custody of the above-named children to McCarroll, subject to the further orders of such court. The part of the divorce decree dealing with the care and custody of these children is set out in the petition. It is as follows: “The Court further finds that it would be to the best interest of the two minor children of the plaintiff and defendant that the care and custody be awarded to R. O. McCar-roll, the father of the plaintiff, until the further orders of this court, but that the defendant be permitted' at all reasonable times to visit and see said children and that defendant’s mother, Mrs. Emma Lakey, the grandmother of said children, should be permitted occasionally and with the consent of R. O. McCarroll, to take one or both of said minor children in her home and permitted to keep them over-night if she desired, but that neither of said children be taken out of the state at any time without further orders of the court.”

Lakey’s petition further alleges that since the entry of the above judgment Velma La-key has died. It is then alleged that since the entry of the judgment awarding the care and custody of these children to McCarroll, conditions have changed in such a way as to render McCarroll an unfit person to have the care and custody of such children, and to make it to their best interest to remove them from McCarroll’s custody and award them to the custody of their father. The petition then contains allegations tending to show that Lakey would be a proper person to have the care and custody of his children. Simply stated, the petition contains allegations of fact which, if found to be true, would justify a court of competent jurisdiction in removing these children from the care and custody of McCarroll and awarding them to the care and custody of Lakey, on account of conditions having changed since the entry of the divorce judgment.

The prayer as contained in Lakey’s petition in this suit prays for the issuance of citation, and that on final hearing the court alter and change the original judgment regarding the care and custody to-him. The petition also prays for an injunction restraining McCarroll from interfering with Lakey’s care and custody of such children, should they be awarded to him, and’for general and equitable relief. The petition, taken as a whole, including the prayer, is sufficient to invoke action-of a court of competent jurisdiction to-relitigate and readjudicate the custo.dy of these children on account of changed conditions.

The record shows that citation was duly issued and served on McCarroll; whereupon he, in due form of law, filed his .plea of privilege to be sued in Dawson County, Texas, the county of his residence. Lakey filed a controverting affidavit to this plea of privilege. This affidavit expressly refers to Lakey’s petition, and makes it a part thereof. Simply stated, the controverting affidavit is sufficient to show that venue in Jones County, Texas, lawfully exists in this case, if the divorce suit and judgment therein have legal effect to confer or preserve the same in such court. On the other hand, if the divorce suit and decree therein do not have such legal effect, then venue is in Dawson County, as the county of McCarroll’s residence. We will later proceed to demonstrate the co-rectness of this conclusion.

On hearing of the plea of privilege alone in the District Court of Jones County, judgment was entered sustaining McCar-roll’s plea of privilege, and ordering the cause transferred to Dawson County. Lak-ey duly appealed to the Court of Civil Appeals at Eastland. On original hearing in the court of civil appeals, that court, by a majority opinion, reversed the judgment of the district court, and remanded the cause thereto, with instructions to dismiss the plea of privilege. Justice Funder-burk dissented. Pending action on the motion for rehearing filed by Lakey in that court, the court of civil appeals has certified to this Court two questions. These questions are preceded by a preliminary statement which we must reproduce in order that the questions may be understood. Such preliminary statement and questions are as follows [131 S.W.2d 181, 182]:

“From what has been said and in view of the statute (Art. 4639a) and the opinions construing the same, it was the view of the majority of this court that under a proper construction of said statute (4639a) said District Court of Jones County having once obtained and exercised jurisdiction to adjudicate the issue of proper care and custody of said minors, such court (until the children reached the age of 16 years) had a continuing jurisdiction thereof to re-adjudicate under proper pleadings and testimony the issue of custody thus determined or adjudicated prior thereto.
“(1) Were we correct in so holding? The original opinion by the majority, as well as the minority, is here referred to for fuller statement of the facts involved, as well as the conclusions reached in the respective opinions.
“(2) In the light of said section 2 of Art. 4639a, is Art. 4639a rendered invalid or ineffective to retain in the District Court of Jones County (court of original decree) a continuing and exclusive jurisdiction as respects the custody, control and support of said children (while under the age of 16 years) beyond the finality of such judgment (May 7, 1937) under pre-existing laws in Texas?”

Opinion.

Before proceeding with this opinion, we deem it advisable to copy herein two statutes, such statutes being Articles 4639 and 4639a, Vernon’s Ann.Civ.St. These statutes are as follows:

“Art. 4639. A divorce shall not in anywise affect the legitimacy of the children of the parents so divorced. The court shall have power, in all divorce suits, to give the custody and education of the children to either father or mother, as the court shall deem right and proper, having regard to the prudence and ability of the parents, and the age and sex of the children, to be determined and decided on the petition of either party; and in the meantime to issue any injunction or make any order that the safety and well-being of any such children may require.”
“Art. 4639a. Section 1. Each petition for divorce shall set out the name, age, sex and residence of each child under sixteen (16) years of age born of the marriage sought to be dissolved, if any such child or children there be; and if there be no such child or children, then the petition shall so state. No Court having jurisdiction of suits for divorce shall hear and determine any such suit for divorce unless such information is set out in such petition or in each cause of action for divorce. Upon the trial of any such cause, and in the event a divorce is granted by the Court, if there are such minor children, it shall be the duty of such trial Court to inquire into the surroundings and circumstances of each such child or children, and such Court shall have full power and authority to inquire into and ascertain the financial circumstances of the parents of such child or children, and of their ability to contribute to the support of same, and such Court shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same; and said Court may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years, or, said Court may enter a judgment in a fixed amount for the support of such child or children, and such Court shall have full power and authority to enforce said judgments by Civil Contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out- the terms thereof, and for the purpose of ascertaining the ability of the parents of such child or children to contribute to the support of same, they may be compelled to testify fully in regard thereto, under penalty of contempt of Court, as in other cases. Said Court shall have power and authority to alter or change Such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.
“Sec. la. The person ' or persons to whom the payments above provided for are made under the judgment of the Court shall file sworn monthly reports with the Clerk of the Court before which the cause is pending setting out an itemized statement of the expenditure of such sum or sums of money as may have been received showing in detail the manner in which such money has been spent. The report so filed shall be examined and approved or disapproved by the Judge before which said cause is pending.
“Sec. 2. This Act shall be cumulative of all other laws upon the same subject, and is not intended to repeal any other law upon the subject of the care or support of such minors. (Acts 1935, 44th Leg., p. Ill, ch. 39.)”

A reading of the majority opinion of the Court of Civil Appeals will disclose that it holds that prior to the effective date of Article 4639a, supra, venue in suits of this kind lay in the county of the residence of the defendant, but that the provisions of such statute have operated to change such rule as regards children under the age of sixteen years, so as to confer on the district court entering the divorce decree exclusive jurisdiction and venue of actions of this kind. The dissenting opinion holds that Article 4639a in no way operates to change the rules of law governing jurisdiction or venue in cases like this. We are in accord with the dissenting opinion.

It will be noted that Article 4639 has been on our statute books for many years. It has been interpreted so many times that no doubt remains as to how it should -be construed regarding questions of jurisdiction .and venue in • cases such as this. It will be noted that such Article deals with all minor children. Its terms do not confine the divorce court to the power of awarding the custody of children under sixteen years of age, as does Article 4639a. Article 4639 expressly authorizes the divorce court, in the divorce action, to “give the custody and education of the children to either father or mother, as the court shall deem right and proper * * In spite of the fact that Article 4639 only mentions the father and mother, it is settled that, under the statute just mentioned, and under its constitutional and equity powers, a 'district court has power, in a divorce decree, to award the custody of the children of the marriage involved in the divorce action, to a third person; when the welfare of such children requires such action. Rice v. Rice, 21 Tex. 58; Ex parte Ellerd, 71 Tex.Cr. 285, 158 S.W. 1145, Ann.Cas.1916D, 361; Futch v. Futch, Tex.Civ.App., 299 S.W. 289.

Prior to the time that Article 4639a became effective it was the law of this State that a judgment in a divorce action awarding the custody of minor children was a final judgment, and that notwithstanding the fact that the court entering same should have undertaken therein to retain exclusive jurisdiction to afterwards readjudicate and reaward such custody. Black v. Black, Tex.Civ.App., 2 S.W.2d 331, and authorities there cited; Keith v. Keith, Tex.Civ.App., 286 S.W. 534; Ex parte Garcia, Tex.Civ.App., 187 S.W. 410, and authorities there cited.

Prior to the time Article 4639a became effective, even though a divorce judgment awarding the custody of minor children was regarded as a final judgment in such reápect, it was only res ad-judicata on the question of such- custody so long as conditions remained the same as they were at the time such judgment was rendered. As regards custody, that matter could again be litigated and again be adjudicated on questions regarding changed conditions. The matter of custody could again be litigated and again adjudicated should a showing be made in' a subsequent action that conditions had so-changed since the rendition of the former judgment that a change of custody should' be had in order to conserve the welfare of the children involved. Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am.St.Rep. 928; Smith v. Long, Tex.Civ.App., 181 S.W. 478, and authorities there cited.

Prior to the effective date of Article 4639a, a suit to again litigate and again adjudicate the custody of minor children whose custody had already been litigated and adjudicated at a term of court which had expired was regarded as a new suit or an independent cause of action.” 15 Tex.Jur. p. 675, § 170, and authorities there cited; Black v. Black, supra; Keith v. Keith, supra. Simply stated, the new suit was not an action to set aside the old judgment and retry the original case, as in an action for bill of review, but was a new and independent action to determine custody on changed facts and circumstances. A bill of review involves the retrial of the original suit; while prior to the effective date of Article 4639a a suit to rel’itigate and readjudicate the custody of minor children on the ground of changed conditions was a new and independent action which did not involve in any sense the retrial of the original action. It follows that suits to relitigate and readjudicate custody of minor children on account of changed conditions were governed by the general law of venue, and such venue lay in the county of the residence of the defendant. Black v. Black, supra; Keith v. Keith, supra; 15 Tex.Jur., supra, and authorities there cited.

It is evident from what we have already said that we hold that venue in this suit lies in Dawson County, Texas, as the county of McCarroll’s residence, unless Article 4639a has effect to change the law as it existed prior to its effective date as regards actions to relitigate and readjudi-cate the custody of children under sixteen years of age under changed conditions.

When we come to consider Article 4639a, we find that Section 2 thereof in plain legal effect provides that it is not intended as a repealing statute, but as a cumulative one. We must give this provision effect so far as it is reasonably possible to do so. When we read this statute in its entirety, and construe it from its four corners, we are convinced that it evidences no legislative intent to alter or change the pre-existing rules of law as regards the custody of children in actions such as the instant one. It will be noted that such statute deals alone with children under the age of sixteen years. It has no application to children over that age. It is true that such statute, by express language, confers jurisdiction on the divorce court, in the divorce action, to make orders awarding the custody of children under the age of sixteen years. In this respect, however, nothing was added to the jurisdiction of the court. It already had such power under article 4639, as well as under its general constitutional and equity powers. Rice v. Rice, supra; Futch v. Futch, supra. The general effect of Article 4639a as regards the awarding of custody of children is to make it the affirmative duty of the court to provide such custody as regards children under sixteen years of age; whereas, Article 4639 merely confers the power to make such award as to all children. Article 4639a contains no language that evidences a legislative intent to give the divorce court exclusive jurisdiction over later independent actions to relitigate and readjudicate the custody of children under sixteen years of age on account of changed conditions.

Further discussing Article 4639a, we call attention to the fact that after providing that the divorce court in divorce actions "shall make such orders regarding the custody and support of each such child or children, as is for the best interest of same,” etc., such statute then proceeds to provide that the divorce court “may by judgment, order either parent to make periodical payments for the benefit of such child or children, until same have reached the age of sixteen (16) years, or, said Court may enter a judgment in a fixed amount for the support of such child or children, and such Court shall have full power and authority to enforce said judgments by Civil Contempt proceedings after ten (10) days notice to such parent of his or her failure or refusal to carry out the terms thereof,” etc. The Act then-provides that the .divorce court “shall have-power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.” Manifestly, the power given by the statute to alter, change, and suspend divorce judgments as the facts and circumstances and justice may require only has reference to that part of the divorce decree dealing with orders requiring- either or both parents to make contributions for the support of their children under sixteen years of age. As already stated, the Act manifests no legislative intent to-clothe the divorce court with continuous, exclusive jurisdiction or venue of all future actions to relitigate and readjudicate custody of children under sixteen years, of age on account of changed conditions. Finally, we think there is no escape from this conclusion when it is noted that this Act, in effect, provides that the divorce court may exercise his power to alter or change upon notice to such parent, or with his or her consent. As already shown,, custody may be awarded to a person not a parent. If the part of the statute giving the divorce court the power to alter or change his decree applies to custody, such power can be exercised without even giving-notice to the person given such custody. Manifestly, the statute should not be given such a construction unless it is susceptible-of no other.

It seems to be contended that Article 4639a is unconstitutional and void,, in so far as it applies to custody, because its caption contains no mention of that subject, and is not sufficient to embrace the same. Under the construction we have given such statute, as regards custody, its-constitutionality or unconstitutionality in that regard could not in any way alter our answers to the questions here certified. This is because we hold that such statute-does not have effect to give the divorce court exclusive jurisdiction or venue of actions of this kind to relitigate and read-judicate the custody of minor children under the age of sixteen years on account of changed conditions. Finally, we think: the caption is sufficient to cover all portions of the Act.

This opinion is certified as answering the questions of law propounded to us by the Court of Civil Appeals.


author: HICKMAN, Commissioner.

text:
    ROWAN v. ALLEN.
    No. 2277—7409.
    Commission of Appeals of Texas, Section A.
    Jan. 3, 1940.
    Eskridge & Groce and Walter Groce, all of San Antonio, for plaintiff in -error.
    Carter & Lewis, H. C. Carter, Champe G. Carter, and Randolph L. Carter, all of San Antonio, for defendant in error.
   HICKMAN, Commissioner.

For convenience Mrs. Louise Gallagher Allen will be" called plaintiff and J. V. Rowan will be called defendant. Plaintiff sustained personal injuries in a collision between two automobiles on a street in San Antonio, and brought this suit against defendant for damages on account thereof. The trial resulted in a judgment in her favor, which judgment was affirmed by the Court of Civil Appeals. 113 S.W.2d 322.

Plaintiff, at the time of the collision, was riding in an automobile belonging to, and being operated by, defendant. It .appears that her suit was brought upon the theory that she was being transported for hire and that, therefore, the defendant was liable to her for damages which she sustained as a result of his failure to exercise that degree of care owing in such relationship; but that, in the event it should be found that she was a guest of defendant, and not a passenger, defendant was nevertheless liable to her on account of certain negligent acts, hereinafter to be noticed, which bring the case within the terms of our guest statute, Article 6701b, Vernon’s Annotated Civil Statutes.

Before making a statement of the material facts we take notice of some questions of practice. Plaintiff objects to a consideration of defendant’s assignments of error upon the ground that defendant did not file a motion for a new trial in the trial court. The case was tried prior to the date the opinion was released in Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270, in which opinion an amendment of District and County Court Rule 71a was announced. The Court in that case recognized that conflicting lines of decision had developed with reference to the necessity of a motion for a new trial as a condition precedent to the right to assign errors on appeal. Under one line of decisions it would seem that such motion was necessary. Under another line, of which the leading case is Phillips Petroleum Co. v. Booles, Tex.Com.App., 276 S.W. 667; such motion was not required, and assignments presenting questions once ruled upon by the trial court were entitled to consideration on appeal without the necessity of again presenting such questions to the trial court in a motion for a new trial. In order to prevent manifest injustice to litigants who had relied upon the opinion in the Phillips Petroleum Co. v. Booles case, it was announced that in cases theretofore tried the liberal rule announced in that case would be applied. In the instant case the questions presented by assignments are questions upon which the trial court was given one opportunity to rule, and the objection to a consideration of such assignments is overruled.

A question is raised as to the sufficiency of the proceedings with reference to the filing of a motion for judgment non obstante veredicto. We do not find it necessary to detsrmine whether a proper motion of that nature was timely filed, for the reason that the defendant seasonably filed and presented' his motion for a peremptory instruction, which motion was overruled, and the action of the court thereon properly assigned as error. That sufficiently preserved and presented the question of defendant’s liability, and a motion for judgment non obstante veredicto was not necessary to have that question reviewed.

The evidence establishes the following material facts: Plaintiff, a widow, and her two children, one a daughter sixteen or seventeen years of age, and the other a son fourteen years of age, lived together as a family in the City of San Antonio. She and her children were close friends of the Rowan family and that relationship had existed for a period of about three years. Plaintiff and the Rowans frequently attended the races at Alamo Downs together, going sometimes in plaintiff’s car and sometimes in the Rowan car. On the day of the accident giving rise to this law suit, the plaintiff went to the Rowan home and invited Mrs. Rowan to go with her to the races. We quote from plaintiff’s own testimony as follows:

“Q. Mrs. Allen, I want you to just explain to the jury just how Mr. Rowan came to take you out on that occasion? A. Well, I had been in town,- and on my way home, I asked Mrs. Rowan to go to the races. Mrs. Rowan had a sick child and she had not been out for some time; and she said she couldn’t go because the boy didn’t want her to leave him; so, I asked the boy if he would mind his mother’s going if I would have my daughter come over and spend the afternoon reading to him, and so he said he would let her go if my child would go over there. And so Mr. Rowan said he would take his car and go if my daughter, when she returned from school, would go over there and spend the afternoon with the child. So, I left a note for my child to go over there after school and spend the rest of the afternoon reading to him, which she did, and Mr. Rowan took me out to the races. * * *
“Q. Were you talking' to him in their house at the time ? A. Oh, yes. The child was sick in bed.
“Q. And would the little hoy let Mrs. Rowan go and then some arrangement like that was made? A. He said he would let her go if my daughter would come over and spend the afternoon reading to him; he was very fond of her, and disliked the nurse very much.
“Q. You had planned to go out in your car? A. Yes, I had—I had planned to have them go out with me.
“Q. What did Mr. Rowan say, Mrs. Allen ? A. Mr. Rowan said he would come by and get me and take me out.
“Q. On what condition? A. That my child was going over there. She would have to use my car to go over there to see their child.
“Q. Was that the understanding? A. That was the understanding, yes.
“Q. Now, state whether or not you did make that arrangement and what you did with your car? A. I left my car at home there for my daughter to use so that she might go over there.”

While on the way to the races the Rowan car collided with another car, resulting in personal injuries to the plaintiff, and the judgment here under review was rendered in favor of plaintiff against defendant for damages on account of such injuries.

The evidence presents a familiar picture of a fine, friendly relationship between two families, each glad to contribute to the happiness and welfare of the other. We find in it no suggestion from which a legitimate inference could be drawn that such relationship was commercialized by the plaintiff’s hiring out her daughter to the defendant in consideration of the latter’s agreement to transport plaintiff to the races. Such an inference would do violence to the motives of each party. Plaintiff was not in need of a conveyance; she had her own car. According to her testimony she initiated this trip by inviting Mrs. Rowan to go with her in her car to the races. What she did was not for the purpose of earning transportation for herself, but for the neighborly purpose of enabling her friend, Mrs. Rowan, to get away from the sick room and attend the races. As was well said by the Supreme Court of Connecticut in the case of Chaplowe v. Selma Powsner, 119 Conn. 188, 175 A. 470, 472, 95 A.L.R. 1177, the situation “is barren of such’ definite relations, contractual or otherwise, and of such tangible mutual benefits as the statute contemplates in order to remove the plaintiff from the status of a guest and the consequences attaching thereto.” Like conclusions have been announced in somewhat similar states of fact in the following cases: Master v. Horowitz, 237 App.Div. 237, 261 N.Y.S. 722, affirmed, 262 N.Y. 609, 188 N.E. 86; Syverson v. Berg, 194 Wash. 86, 77 P.2d 382; McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909; Flynn v. Lewis, 231 Mass. 550, 121 N.E. 493, 2 A.L.R. 896; Audia v. De Angelis, 121 Conn. 336, 185 A. 78.

The fact that the trip may have been for the mutual pleasure of the plaintiff and defendant, does not operate to change the status of the plaintiff from that of guest. Raub v. Rowe, Tex.Civ.App., 119 S.W.2d 190, error refused.

Having concluded that plaintiff was a guest of defendant, and not a passenger, the question of defendant’s liability must be determined under the terms of our guest statute, Vernon’s Statutes, Art. 6701b, Sec. 1, reading as follows: “No person transported over the public highways of this State by the owner or operator of a motor vehicle as his guest without payment for such transportation, shall have a cause of action for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator, or caused by his heedlessness or his reckless disregard of the rights of others.”

There is no contention that the accident in this case was intentional. The question, then, is reduced to this: Does the evidence raise an issue of fact that plaintiff’s injuries were caused by defendant’s “heedlessness or his reckless disregard of the rights of others?” The language last above quoted conveys the same meaning as does the term gross negligence. Raub v. Rowe, supra; Napier v. Mooneyham, Tex.Civ.App., 94 S.W.2d 564, error dismissed; Pfeiffer v. Green, Tex.Civ.App., 102 S.W.2d 1077; Glassman v. Feldman, Tex.Civ.App., 106 S.W.2d 721; Hamilton v. Perry, Tex.Civ.App., 109 S.W.2d 1142.

In Missouri Pacific R. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 411, gross negligence was defined as follows: “Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.”

That definition has been many times quoted with approval. Texas Pacific Coal & Oil Co. v. Robertson, 125 Tex. 4, 79 S.W.2d 830, 98 A.L.R. 262. The acts of the defendant which, it is claimed, disclose reckless disregard of the rights of plaintiff, or, stated differently, a conscious indifference to her rights or welfare, consist of, first, driving at an excessive rate of speed, and, second, driving too far to the left. The other car involved in the collision was being driven by a Mrs. Hammer, who testified, as a witness for plaintiff, that the collision occurred on Woodlawn Avenue at a time when there were no other cars in the vicinity except the two which collided. She further testified that she and her mother were out to visit a friend, Mrs. Ferguson ; that she had never been to Mrs. Ferguson’s home, but knew her number; that when she found the house bearing that number and had decided which driveway was Mrs. Ferguson’s she turned her car slightly to the left; that she did not believe she had gotten out to the middle of the avenue; that she gave no signal of her intention to turn to the left, because she looked back and saw no car coming from that direction; that she did not see defendant’s car until the instant before the collision when she Jieard the brakes.

The plaintiff testified as follows:

“Q. Now, just describe to the jury, Mrs. Allen, just what occurred and how the accident happened? A. Well, we were going west on Woodlawn, and in the ten hundred block, there was another car going east, and Mr. Rowan was going at a high rate of speed at that time, and he was driving practically on their side of the street, and this other car was going very slowly, as we were going west, and he struck it.
“Q. How fast was Mr. Rowan’s car travelling — I don’t mean right at the time of the impact, but, say, back a half block before that? A. I should judge he was going between 45 and 50 miles an hour.
“Q. Had he been making that speed the whole of the time since he left your house or where he had gone to? A. No, he had not, he had just shortly speeded up his car.
“Q. And your estimate of the speed then is what? A. Between 45 and 50 miles an hour.
“Q. Now, before the actual crash or the collision occurred, state whether or not Mr. Rowan applied the brakes on his car? A. Yes, he did apply the brakes on his car.
"Q. Did he apply them violently or moderately? A. No, he applied them very violently.
“Q. State whether or not there were any other vehicles over on his right-hand side that would prevent him from passing this other car on the right-hand side? A. There were no other cars parked or passing at the time, the street was clear, there was no traffic except these two cars, the car I was in and the car we struck.”

Bearing in mind the relationship existing between the parties and all other surrounding circumstances, this evidence does not raise the issue that the defendant drove in reckless disregard of the rights of plaintiff or was consciously indifferent to her welfare. Hamilton v. Perry, supra. To permit findings of gross negligence to stand under these facts would be to permit a jury to treat the language of our guest statute as dead words.

This case as a whole will permit of no inferences other than that these parties, as friends, attended the races together for their mutual enjoyment, the plaintiff as defendant’s guest, and that the defendant on his way to the races committed acts of ordinary negligence, that is, he failed to exercise ordinary care in the manner of operating his automobile. No facts or circumstances are shown which would justify the inference that defendant’s conduct was grossly negligent, and, therefore, within the terms of our guest statute, supra.

The case appears to have been fully developed. No reason is perceived, therefore, for any further proceedings therein. It is accordingly ordered that the judgments of the Court of Civil Appeals and the trial court both be reversed and that judgment be here rendered that plaintiff (defendant in error) take nothing.

Opinion adopted by the Supreme Court